Introduction
Existing mental health laws in Kenya violate the fundamental rights of persons with psychosocial disabilities. The laws construct persons with these disabilities as objects that should be detained and subjected involuntarily to treatment in mental health asylums and prisons. The oppressive and coercive orientation of the laws has its genesis in the colonization of Africa: colonial regimes introduced laws, policies and practices that regulated the management of psychosocial disability through the drastic curtailment of the liberty and dignity of affected persons in ways analogous to arbitrary incarceration. At independence, Kenya steadfastly retained the laws, thus perpetuating a harmful legacy on the pretext of administering treatment.
This article seeks to use a decolonial approach to interrogate colonial mental health institutions, laws and policies that compel the admission and treatment of persons with psychosocial disabilities. It focuses on laws and policies relating to admission to healthcare facilities and to the freedom to decide about treatment for these persons in Kenya, against an African background. At the same time as appraising domestic jurisprudence, it also considers the implications of international and regional instruments, especially the Convention on the Rights of Persons with Disabilities (CRPD) and its regional counterpart, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (African Disability Rights Protocol), for domestic legal reform.Footnote 1 We argue that an African-centred decolonial approach that is accompanied by a human rights framework offers a remedial and transformative way forward for Kenya.
The article has four parts. The first part is the introduction, while the next examines the history of mental health laws in Kenya against the background of the colonization of the African continent. We then advance a decolonial and human rights law agenda for mental health systems, laws and policies that compel the admission and treatment of persons with psychosocial disabilities in Kenya, before giving our conclusion.
Management of psychosocial disability: The genesis in coloniality
Psychosocial disability is a social construct. It refers to the interaction between psychological and social or cultural components of disability.Footnote 2 In this article, we use the term “person with a psychosocial disability” as a person-centred description of people previously described as “lunatics”, “mentally ill”, “insane”, “mad” or “crazy”.Footnote 3 We subscribe to a human rights-based approach; our goal is to embrace a shift from a discourse that has historically sought to stigmatize psychosocial disability, seeing it as an intrinsic limitation arising from a mental health deficit, to one that sees it as a limitation arising out of the interaction between the mental health condition of an individual and their environment. The human rights approach that is inscribed in the CRPD complements our decolonial objective. It is a normative tool for facilitating the transformation of a decolonial agenda into a juridical framework for respecting, protecting, promoting and fulfilling the rights to equality and human dignity of Africans with psychosocial disabilities on an equal basis with others. We recognize persons with disabilities as persons with legal capacity, as is enjoined by the CRPD.Footnote 4
Under the CRPD, legal capacity is linked to human dignity. By ensuring the full and equal enjoyment of all human rights and fundamental freedoms by persons with psychosocial disabilities, article 12 of the CRPD promotes respect for their inherent dignity.Footnote 5 Accordingly, any deprivation of liberty on the basis of actual or perceived impairment or health conditions in prisons or mental asylums which deprives persons with psychosocial disabilities of their rights amounts to a violation of both their dignity and their legal capacity under the CRPD.Footnote 6 As will be discussed later, the right to legally act on an equal basis with others implies the end of forced institutionalization and treatment under the law, as was decided by the African Commission on Human and Peoples’ Rights in Purohit and Moore v the Gambia (Purohit).Footnote 7
The development of systems for managing psychosocial disability across Africa can be divided into three stages: the precolonial, colonial and postcolonial periods. A good place to begin a review of the management of mental health legislation in Africa is by defining the features of precolonial and colonial mental health regimes and the conditions they sought to address.
Precolonial management of psychosocial disability
Contrary to the essentializing colonial imaginary, Africa is not one culturally homogenous country but a continent with diverse cultures.Footnote 8 However, notwithstanding any differences among Africans, broad generalizations can be made. Precolonial Africa is marked by the absence of allopathic medicine. Worry and more particularly moral retributive magic were understood to be the main causes of psychosocial disabilities, and common forms of treatment included suggestion, confession, faith, medication and group support.Footnote 9 In some instances, especially where the psychosocial disability was not caused by worry, no medical treatment was required. Instead, the patient was simply advised to confess, apologize or make compensation. Religion or spirituality was a cardinal component of curative approaches.
In North Africa, psychosocial disabilities were treated by healers using traditional medicine.Footnote 10 Such disabilities were sometimes perceived as a family curse, affecting children because their parents had transgressed divine law.Footnote 11 Therapeutic strategies for milder psychosocial disabilities involved religious forms of healing.Footnote 12 North Africans believed that milder psychosocial disabilities occurred when someone was possessed by j'nun, or invading spirits. Spiritual healers, or marabouts, meaning “men connected to God”, who practised exorcisms were sought out in order to reconcile the possessed person with the invading spirit and to offer protection against future possession. For persons with severe psychosocial disabilities, treatment was in the form of confinement in the home or in maristans, where they were treated by physicians according to Islamic medical theories.Footnote 13
Other parts of Africa, including Central, East and West Africa, had thriving indigenous medical traditions before the arrival of colonialists. In East Africa, people depended on traditional healers for treatment of all types of illnesses, including those related to mental health.Footnote 14 Faith in the healer was one of the methods used to treat psychosocial disabilities.Footnote 15 Group support was considered key; for example, the Ndembu of Zambia used kinsmen to join with persons with psychosocial disabilities in what amounted to group therapy, complete with confessions and social reintegration as a form of treatment.Footnote 16 Suggestion involved the use of a healer's personality to treat people without the use of any direct or indirect communication.Footnote 17 This could be done through rituals or religious and magical representations.Footnote 18
The arrival of colonialists was the beginning of the marginalization of traditional and spiritual healers across Africa, as most of their healthcare practices were dismissively lumped into superstition, witch-doctoring, fetishes and idolatry.Footnote 19 Writing about mental health in colonial Lesotho, Thabane describes the attitude of colonialists as follows: “In typical colonial thinking and colonial ways of doing things, the new regime excluded not only indigenous knowledge and how mental illnesses were diagnosed and treated before colonial rule, but also questioned skills, knowledge and authority of even those Basotho who had received medical training at British universities.”Footnote 20 Legislation banning and criminalizing witchcraft, magic and other African traditional healing practices was quickly put in place by the colonial administrators. Anyone found practising traditional medicine could be convicted of witchcraft and sent to prison. In practice, African traditional healers were only prosecuted if they worked at the level of the larger community, as opposed to on an individual basis.Footnote 21
Colonial mental health management of psychosocial disability
The advent of colonial mental health regimes cannot be understood without first appreciating the colonization of Africa following the Berlin Conference of 1884–85, which marked a new type of colonialism.Footnote 22 It subjected the continent to a status-subordinating system that gave validity only to the western world. The system continues today in metamorphosing and pervasive forms. Colonialism ushered in what Césaire, a leading decolonial theorist, describes as a “disruptive, ‘decivilizing’, dehumanizing, exploitative, racist, violent, brutal, covetous and ‘thingifying’ system”.Footnote 23 Politically and economically, Africa was perceived as a territory that existed primarily to serve the interests of the colonizing country.Footnote 24 Colonization came with a full complement of authoritarian rule, arbitrary governance and a desire to conquer the psyche of the colonized.Footnote 25 The roots of colonization in colonial Africa were in the form of knowledge claims, power relations and in a set of hegemonic cultural discourses. By 1878, European powers controlled a quarter of Africa, and by 1930 colonization of almost the entire continent was complete.Footnote 26
The history of mental health facilities in Africa is interwoven with histories of struggles – struggles to impose a colonial social order, struggles to resist and do away with that social order, and struggles to forge new nations. Colonial psychiatry is inextricably tied to racism and oppression.Footnote 27 Africans’ cognitive abilities were equated with lobotomized Europeans. The colonialists characterized Africans as childish, impulsive, hypersexual and biologically incapable of suffering more “refined” forms of psychosocial disabilities, such as melancholia.Footnote 28
Colonialists viewed disability from the perspective of a medical model, leading to a distinction between “normal” and “abnormal”. Normal people were considered to have both normal bodies and normal behaviours, while abnormal people had abnormal bodies and exhibited deviant behaviours.Footnote 29 One of the objectives of health activities in colonial territories was to treat abnormal bodies.Footnote 30 Such treatment used psychotherapy, electroshock therapy, work therapy, tentative social re-adaptation, water treatment and sedation as panaceas for a range of psychosocial disabilities.Footnote 31 To a point, colonial psychiatrists endeavoured to treat and care for persons with these disabilities as a way of ameliorating their living conditions. The colonial medical model also sought to “civilize” and develop occupied territories.Footnote 32 To the extent that colonial psychiatry purported to introduce colonial mental health-service structures that were based on allopathic practices which discouraged reliance on superstition and beliefs in moral retribution, they can be said to have ushered in a liberating discourse which was juxtaposed with oppression.
Colonial doctors focused more on the differences between African and European mentalities. Colonialists used mental institutions to colonize the consciousness of the indigenous people into accepting a Eurocentric hierarchization of power. Indigenous Africans were portrayed as liminal subjects. For example, in Curing Their Ills, Megan Vaughan affirms that Africans with psychosocial disabilities emerged “in the colonial historical record not as standing for the ‘Other’ but more often as being insufficiently ‘Other’”.Footnote 33 She continues to state that the “madness” of colonial subjects was feared because it was “indicative of ‘deculturation’ and the breaking of barriers of difference and silence”.Footnote 34 The objectification of indigenous Africans by colonial psychiatry was an attempt to produce the “coloniality of being” among mental health patients so as to construct radical ontological differences between the colonized and the colonialists, based on a series of fundamental existential characteristics and symbolic realities. Apart from treating Africans with psychosocial disabilities as biologically different from Europeans with such disabilities, colonialists also discriminated against them in terms of treatment. According to Kang'ethe, race played a key role in determining the quality of care that was offered to Africans with psychosocial disabilities.Footnote 35 Europeans with psychosocial disabilities were accorded better treatment and accommodation, compared to Africans in colonial asylums.Footnote 36
Colonial mental health regimes as instruments of control
Colonial institutions for the care and management of persons with psychosocial disabilities replicated mental asylums in Europe. They were also mediated by the colonial project of effecting state repression to suppress political insurrection.Footnote 37 JED Esquirol, a French psychiatrist tasked with formulating state policy on the “insane”, played a key role in designing French laws establishing asylum psychiatry as the sole legal model for the care of the “mentally ill”. He believed that isolation directly affects the brain, resulting in “repressing the liveliness and mutability of impressions” and “moderating the exaltation of ideas and affectations” in asylum patients.Footnote 38 Reports of the British colonial psychologist John Carothers, in his books The African Mind in Health and Disease and The Psychology of Mau Mau that propagated theories of psychological differences between African and European cognitive abilities, were used by the British colonialists to crack down on political rebellion in Kenya.Footnote 39 Indigenes who posed a threat to the rule of the Europeans had to be incarcerated. Robert Edgar and Hilary Sapire write about the incarceration of indigenous South Africans in mental asylums, stating that colonial authorities
“invariably only confined deranged Africans in asylums when they disrupted the regimes and disciplines of work on white farms, in the kitchens, and mines or when they threatened social peace more generally, whether in the street or ‘native reserves’. The primary concern in confining mad Africans thus was less with ‘curing’ or alleviating their mental pain than with removing them as a source of disturbance to society as a whole.”Footnote 40
This argument is echoed by Lynette Jackson in her study of the Ingutsheni Asylum in colonial Zimbabwe. She states that “the most common reason for admitting African women to the colonial mental hospital was ‘strayness’, meaning that African female admissions were generally those who, for one reason or another, were thought to be in the wrong place”.Footnote 41 Therefore, in order to maintain docile communities, individuals who the colonialists considered disruptive were labelled insane and jailed or committed in mental asylums. For example, the prophet Nontetha Nkwenkwe was confined in a South African asylum because of his popularity, which the colonialists considered to be a threat to their rule.Footnote 42 “Appropriate” social niches were very important to the colonialists, and anybody who went against them was “mad” and had to be confined.Footnote 43
Colonial mental health regimes and the construction of the criminally insane and the unfit
Another common factor that led to the establishment and development of asylums in African colonies was the need to separate the “criminally insane” from other prisoners.Footnote 44 Many of the colonial mental health laws primarily focus on involuntary admission and treatment, restraints and seclusion, thus limiting rather than promoting the autonomy and liberty of persons with psychosocial disabilities who were declared criminally insane. Colonial laws empowered the government to admit and treat such people against their will in cabins or cells of the civil and military hospitals or in other colonial hospitals.Footnote 45
The “criminally insane” were declared so by colonial courts.Footnote 46 However, the concept of “insanity” was influenced by other factors which went beyond the law, to include social, cultural, medical and political factors. These factors led to difficulties in defining the phrase “criminally insane”. Once somebody was socially labelled “insane”, the role of experts was only to ratify them as such.Footnote 47 Persons with psychosocial disabilities were considered a danger to themselves and to the public and had to be removed from the society. For example, the British mental systems were administered as prison annexes, and were used to house Africans who were considered dangerous.Footnote 48 However, this was not the case for all the colonial powers: the French asylums focused more on cultural assimilation, which had the effect of tempering, though not eradicating, a racist system.
Colonial mental health laws were also meant to govern “lunatics”, “idiots” and any other “persons of unsound mind” who were declared unfit.Footnote 49 The procedures for admitting persons with psychosocial disabilities into colonial asylums, and for discharging them, were established. The laws provided for their involuntary detention until they were fit to return to the community.Footnote 50 The procedural requirements for commitment provided for by the colonial mental health laws involved the use of both a medical practitioner and a judicial officer.Footnote 51 The laws ensured the control of persons with psychosocial disabilities by the colonial government through the police and other public administrators.
Structures in colonial mental health facilities
Most colonial mental asylums had several different units. For example, in Belgian territories, colonial asylums were divided into a communal unit, which housed “normal” mental health patients, and isolation units, which were reserved for the most difficult and most agitated patients.Footnote 52 These were people accused of offences such as murder, arson and assault. There was also a racial policy for segregating black and white patients, without any considerations for patients with both black and white ancestry.Footnote 53 The health system in Portuguese colonial territories also had a racist structure, and the asylums were concentrated in the cities and towns where the majority of the colonialists lived.Footnote 54 Since the majority of the locals lived in rural areas, they relied on traditional medicine as a way of securing their health.
Poor conditions in colonial mental health facilities
Colonial mental asylums were extremely basic, with no specialist facilities and little or no capacity for treating persons with psychosocial disabilities. For example, European settlers housed in British colonial asylums were mainly people with alcohol-use disorders who could not be cared for in conventional hospitals. Africans were mainly employees who were experiencing challenges transitioning from a rural agricultural tradition to urban wage labour.Footnote 55 These asylums resembled penitentiaries rather than medical facilities; colonialists viewed Africans as people who were irremediably primitive and criminal by nature.Footnote 56 Public-order confinements rapidly increased the population of people in asylums, which housed an amalgamation of patients, people with no settled residence and criminals. For example, in Zimbabwe the British Lunacy Ordinance empowered magistrates or constables to apprehend, convey to prison or hospital and present for legal proceedings any person who was found wandering at large, as that was a sign that the person was “mentally ill”.Footnote 57
As a result of overcrowding, conditions in mental facilities became deplorable, with substandard hygiene. Conditions in the asylums have been described as atrocious.Footnote 58 For example, in the Sadiki asylum in North Africa, persons with psychosocial disabilities lived in tiny cells resembling dark dungeons, furnished with only straw mats and blankets. Residents living around the asylum continuously complained of hearing screams from the cells. The Tekia women's facility resembled cages, with chains hanging from the walls. Three or four patients shared cells designed for one, and many died from exposure to infectious diseases and overcrowding.Footnote 59 The facilities were loosely guarded, thus leading to frequent escapes. However, Europeans were housed under better conditions.
Colonial mental institutions were also characterized by other factors, such as the removal of persons from their relatives, not allowing the family access to the patient during their recovery period, barring any contact between the patient and the community, and encouraging the patient's dependence on the institution instead of their independence.Footnote 60 These factors led to overcrowding in mental asylums, stigma, reinforcement of “mental illness” and inadequate care.Footnote 61 However, persons with psychosocial disabilities were not separated from their families in all cases; the Dutch colonial empire made allowance for them to be looked after by their families.
Development of mental health laws in Kenya
This section will focus on the persistence of coloniality in Kenya's mental health laws and will discuss a decolonial agenda for ensuring the liberty and dignity of persons with psychosocial disabilities. Kenya's mental health laws developed from British colonial laws, which the country inherited after independence. British colonial mental health laws treated many people with psychosocial disabilities as “things”, and the coloniality of objectification subsists in post-independence Kenya. Involuntary detention and treatments, which were employed to control persons with psychosocial disabilities, are still used to manage mental health in Kenya.
The persistence of coloniality in Kenya's mental health laws
Kenya became a British colony in 1895 and has since adhered to British colonial medical practice. Its mental health system has improved little since the country gained independence, as coloniality subsists.Footnote 62 Kenyan mental health laws are still largely a reproduction of colonialism; the experiences, imaginations and knowledge of Kenyans count for less, or simply do not count at all.
The concept of coloniality exists as embedded logic.Footnote 63 It is epistemological, continues to enforce domination and exploitation, and is always portrayed as being good for everyone. Coloniality is hidden in institutions and laws that govern psychosocial disability in Kenya's mental health system. Nelson Maldonado-Torres states:
“Coloniality is different from colonialism. Colonialism denotes a political and economic relation in which the sovereignty of a nation or a people rests on the power of another nation, which makes such a nation an empire. Coloniality, instead, refers to long-standing patterns of power that emerged as a result of colonialism, but that define culture, labour, intersubjectivity relations, and knowledge production well beyond the strict limits of colonial administrations. Thus, coloniality survives colonialism. It is maintained alive in books, in the criteria for academic performance, in cultural patterns, in common sense, in the self-image of peoples, in aspirations of self, and so many other aspects of our modern experience. In a way, as modern subjects we breathe coloniality all the time and every day.”Footnote 64
Coloniality is still operative in Kenya's mental health system; persons with psychosocial disabilities are the damnés de la terre, “the wretched of the earth”.Footnote 65 According to Frantz Fanon, they belong to the “zone of non-being”.Footnote 66 Ghassan Hage classifies them as people living on the wrong side of the “global apartheid”, and Arundhati Roy identifies them as the “surplus people”.Footnote 67 Kenya's mental health system objectifies persons with psychosocial disabilities and considers them “disposable”.Footnote 68 Decoloniality, which is against all vestiges of colonialism and realities of coloniality, champions the “delinking” of Africa's mental health systems from the colonial regimes in order to allow African epistemic formations to be acknowledged, reckoned with and considered as alternatives to colonialism.Footnote 69
Kenya gained independence in 1963 but adopted some of the previous common law legal system and its sources of law.Footnote 70 The Judicature Act provides that Kenya's sources of law include
“(b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule; (c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date.”Footnote 71
The published text of many of these laws is nowhere to be found in Kenya. Most people do not know which pre-independence mental health laws are in force in the first place. Despite this, these lesser-known colonial laws remain presumptively valid until they are either repealed by Parliament or struck down by the judiciary. The image of colonialism is reflected in Kenya's postcolonial mental health laws, which are still informed by involuntary institutionalization and treatment.
The main mental health institution in Kenya is the Mathari Mental Hospital.Footnote 72 It was established by British colonialists to act as an isolation centre for patients suffering from chickenpox in the late 19th century; it later changed to the Nairobi Lunatic Asylum in 1910. As a mental asylum, the Mathari hospital provided care and treatment to persons with psychosocial disabilities. Although it is more than a century old, it represents the state of Kenya's mental health care from both a historical and a contemporary perspective. It still bears the legal and practical hallmarks of colonialism, and patients still suffer from marginalization, neglect, lack of accommodation and overcrowding.Footnote 73
Presently, it is divided into two units: the civil unit and the maximum security unit. The civil unit houses ordinary patients, while the maximum security unit is for offenders with mental disabilities who have committed capital offences or those who have been referred for mental assessment and treatment within the criminal justice system. Criticisms have been levelled against the conditions in the Mathari hospital: it is inadequately resourced, and staff lack the necessary skills required to care for patients.Footnote 74 Mental health is among the lowest priorities in Kenya; the national mental health budget amounts to less than 1 per cent of the total public health budget. It has also been reported that conditions in the Mathari hospital are appalling and that persons with psychosocial disabilities live under the constant threat of exploitation, violence, neglect and abuse.Footnote 75
Kenyan legislation dealing with psychosocial disabilities positions the state as parens patriae, assuming guardianship over persons with such disabilities. The right of the state to intervene in the lives of these people is determined on the basis of two categorizations, guardianship and dangerousness. With regard to the former, the state in its paternalistic and protective role considers itself to have a moral obligation and responsibility to uphold the rights of persons with psychosocial disabilities to receive treatment and safe custody and to be returned to society as a healthy person. In line with ideas of diminished responsibility associated with mental illness, guardianship in this context implies that these interventions are undertaken for the good of the suffering individual, who is incapable of making informed decisions about his or her own welfare or affairs.
Kenya's mental health legislation is also informed by the colonial medical and charity model of disability, which views disability as a disease that needs to be cured and the disabled person as a problem that needs to be removed to mental institutions.Footnote 76 The CRPD abhors the medical model of disability and instead calls for the adoption of the human rights model, which focuses on mainstreaming disability and removing “attitudinal and environmental barriers” which cause the marginalization and stigmatization of persons with psychosocial disabilities.Footnote 77
The first mental health legislation was introduced in Kenya in 1933 by the British government and was known as the Indian Mental Health Act. In 1949, the colonial Parliament in Kenya enacted the Mental Treatment Act, which was based on a prototype from Britain and which determined how patients were treated. In 1959, the Mental Treatment Act was replaced with the English Mental Health Act; most of its provisions were borrowed from Britain.Footnote 78 On psychosocial disabilities, the Mental Health Act provided for the medical treatment of “mental illness” and for community mental health services.Footnote 79 Although at the time this Act was touted as progressive, it was replaced in 1989 by the current Mental Health Act (1989).Footnote 80 Among the aims of the 1989 Act are the provision of care for persons who are suffering from “mental disorder” or “mental subnormality with mental disorder”, custody of their persons and the management of their estates, and the management and control of mental hospitals.Footnote 81
The second focus of concern in relation to the notion of guardianship and the parens patriae of the state is the issue of persons with psychosocial disabilities who are violent and dangerous and pose a threat to the public. Public-order charges brought against persons with such disabilities on the pretext of social security and defence are another driving force behind involuntary commitment in Kenya. These public-order offences include loitering, being a disturbance, indecent exposure, causing public nuisance, urinating or defecating in public, and being drunk and disorderly.Footnote 82 Section 16 of the 1989 Mental Health Act also gives significant discretionary power to the police with regard to the involuntary admission of persons with psychosocial disabilities into institutions. Police officers are empowered to take a person into custody where they believe that the person is suffering from a mental disorder, where the person is dangerous to him/herself or to others, or when the person is not under proper care and control.
Colonial laws on compulsory civil commitment and the category of “dangerousness” with regard to persons with psychosocial disabilities have impacted on mental health policies and practices in Kenya's criminal justice system. Sections 162, 166 and 167 of the Criminal Procedure Code are the main provisions that deal with the issue of detention of persons with such disabilities in Kenya's criminal justice system.Footnote 83 Sections 162 and 167 empower the court to involuntarily detain and treat an accused person who is found unfit to plead or to proceed with the trial. Section 166 empowers the court to make a special finding of guilt against an accused with a psychosocial disability by holding that they were “insane” at the time of the offence.Footnote 84 This allows the court to make a report to the president and in the meantime detain the accused in manner that it deems proper.Footnote 85 After receiving the report, the president may make an order for the person to be detained in a mental hospital, prison or other suitable place of safe custody.Footnote 86 Detention is involuntary and was declared unconstitutional in Kimaru and 17 Others v Attorney General (Kimaru).Footnote 87 This case involved the detention of persons with psychosocial disabilities in various prisons in Kenya at the president's pleasure under the Criminal Procedure Code. The High Court declared sections 162(4) and (5), 166(2)–(7), 167(1)(a) and (b), and 167(2)–(4) of the Code, which allow for the detention of persons with psychosocial disabilities at the pleasure of the president, to be unconstitutional. According to the court, the provisions infringed on the rights of these persons to equality, human dignity, freedom and security of the person, fair hearing and the rights of persons detained, held in custody or imprisoned, as enshrined in the Constitution of Kenya 2010 (the Constitution).
Further reform proposals were raised by the Court of Appeal of Kenya in the case of Wakesho v Republic (Wakesho). Firstly, the court held that the phrase “guilty but insane” under the Criminal Procedure Code should be replaced with “guilty by reason of insanity”. The latter, according to the court, is more appropriate where an accused person is “suffering from a defect of reason caused by a disease of the mind at the time of the commission of an offence”.Footnote 88 Secondly, the court proposed that judges should be granted discretion to impose appropriate measures to suit the circumstances of each case, upon a finding of not guilty by reason of insanity. In Wakesho, the appellant had been convicted of the offence of murder despite indications that he was suffering from a disease which affected his mind and made him incapable of understanding what he was doing or knowing that what he was doing was wrong at the time of the commission of the offence. The court substituted the conviction with a special finding that the appellant did the act charged but was insane at the time.
Despite the decisions in Kimaru and Wakesho, the dominant medical attitude of the state towards persons with psychosocial disabilities is still reflected in Kenya's court system. In the case of Republic v CMW, the High Court, after finding the accused “guilty but insane”, recommended that the country should build “a mental asylum where persons with psychosocial disabilities facing trial for various offences may be held, and properly medically treated”.Footnote 89 Similar reasoning is also found in Republic v SOM, where the court, after finding the accused “guilty but insane”, recommended that he be committed to a mental institution for a term of 15 years, subject to periodic reviews by the court in accordance with section 166 of the Criminal Procedure Code and in any case before the expiry of every two years.Footnote 90
Article 54 of the Constitution provides explicit protection for disabled persons and affirms their rights, including the right to be treated with dignity and respect. Kenya ratified the CRPD on 19 May 2008 and the African Disability Rights Protocol on 15 November 2021; article 2(5) of the Constitution provides that the “general rules of international law shall form part of the law of Kenya”. The CRPD encompasses international standards regulating the deprivation of liberty for persons with psychosocial disabilities. Article 14 states:
“States Parties shall ensure that persons with disabilities, on an equal basis with others: (a) Enjoy the right to liberty and security of person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. (2) States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.”
The right to liberty and security of persons is reaffirmed in article 9 of the African Disability Rights Protocol. Liberty denotes “freedom from confinement of the body”, while security of the person concerns “freedom from injury to the body and the mind”.Footnote 91 The landmark policy initiated by the government on the liberty of persons with psychosocial disabilities is the Persons with Disabilities Act, which provides for the rights and rehabilitation of disabled persons.Footnote 92 However, it does not expressly make provisions against involuntary admissions and the treatment of persons with psychosocial disabilities.
Although article 14 of the CRPD forms part of Kenya's legal framework, it has not resulted in any amendment of laws that allow for the involuntary admission and treatment of persons with psychosocial disabilities. Instead, the state has enacted the Person Deprived of Liberty Act, which together with the 1989 Mental Health Act sets out the criteria for the involuntary admission and treatment of persons with psychosocial disabilities.Footnote 93 Kenya reformed its mental health laws through the Mental Health Amendment Act.Footnote 94 However, section 22 of this Act contains provisions on involuntary admissions of persons with psychosocial disabilities. This is a Eurocentric way of reforming laws. Kenyan mental health laws and institutions are vestiges of colonial norms and asylums, rooted in what the British colonial masters conceived as normal, ideal or rational. In Purohit, the African Commission validated the connection between mental health and human rights, providing regional fora for recognizing and enforcing the human rights of persons with psychosocial disabilities.Footnote 95 In that case, the complainants were mental health advocates who submitted the communication on behalf of patients detained at a psychiatric unit in the Gambia, under the Lunatics Detention Act (LDA).Footnote 96 They alleged that there were no review or appeal procedures against a determination or certification of one's mental state for both involuntary and voluntary mental patients under the LDA and no remedy for wrong certification or diagnosis. The African Commission found that the LDA did not comply with articles 2 and 3 of the African Charter on Human and Peoples’ Rights (African Charter) on equal protection of the law and non-discrimination, which Kenya ratified on 23 January 1992.Footnote 97
The Purohit decision is a milestone in the promotion and protection of the rights of persons with psychosocial disabilities in Africa. It analysed disability from a human rights perspective. This rights-based approach affirms that persons with psychosocial disabilities have a right to equal protection of the law and non-discrimination. Abbay has argued that the Purohit communication is important because it clearly articulates the rights of persons with disabilities, which were not adequately addressed under the African Charter.Footnote 98 The case offered the opportunity to test the extent to which disability rights are protected under the African system. The African Commission expounded the understanding of disability rights by relying on regional human rights instruments, such as the African Charter, thus paving the way for future challenges to violations of disability rights in the region. In the absence of other jurisprudence dealing with disability rights on the continent, the decision in Purohit remains a beacon of hope for persons with psychosocial disabilities and may encourage similar communications in the future. However, the fact that the Commission has only ever received one communication relating to disability rights may be interpreted as a sign that persons with disabilities in Africa are still perceived as objects, as opposed to subjects of rights.
The East African Community (EAC), which Kenya is party to, has also taken initiatives to protect the rights of persons with psychosocial disabilities by adopting the EAC Policy on Persons with Disabilities (EAC Policy).Footnote 99 The EAC Policy stipulates that state parties shall through this policy promote the development or establishment of disability user-friendly facilities and infrastructure, including in health and the judiciary. Kenya must embrace the ideals espoused in the CRPD, the EAC Policy and the Purohit decision and take the necessary practical measures to articulate and ensure the rights of persons with psychosocial disabilities.
A decolonial agenda for Kenya
Colonial laws ignored and continue to ignore the unique characteristics of African society. The British imported the common law from England which now governs Kenya's civil and criminal mental health laws. The decolonial agenda for Kenya should involve four intersecting dimensions: structural, relational, epistemic and personal.
Structural decolonization denotes the reopening of mental health institutions in ways that do not echo and reproduce colonial relations.Footnote 100 Community living is part of structural decolonization and one of the ways of empowering persons with psychosocial disabilities in order to enable them to live independently.Footnote 101 In Kenya, care services for persons with these disabilities have traditionally been provided in segregated mental institutions, a practice based on the colonial medical model of disability. In contrast, community living has been defined as providing support for community participation. Persons with psychosocial disabilities in Africa have been reported as preferring support from the community, as opposed to being institutionalized.Footnote 102
Relational decolonization announces the human agency and interdependence of persons with psychosocial disabilities.Footnote 103 It calls for equity, mutuality and reciprocity, as opposed to paternalism and power over such persons. Relational decolonization can be called upon to remediate all forms of domination against persons with psychosocial disabilities in Kenya's mental health system. According to the medical model of disability – a form of relational coloniality upon which most of Kenya's laws are based – psychosocial disabilities are illnesses that needs to be treated. Instead of focusing on the involuntary admission and treatment of persons with these disabilities, the law should focus on support and empowerment. Article 19 of the CRPD and article 14 of the African Disability Rights Protocol provide for the right of persons with psychosocial disabilities to live independently and to be included in the community. The term “community” denotes belonging; it presupposes commonality, consensus and interdependence, as opposed to individuality, personal will and self-dependence.Footnote 104 Persons with psychosocial disabilities, and their families, who are adequately supported and empowered are capable of living independently or semi-independently.
Epistemic decolonization avoids reproducing Eurocentric assumptions about legitimate ways of caring for and treating persons with psychosocial disabilities in Africa. Colonial laws present serious epistemic barriers to the health, human rights and development of persons with these disabilities. The provisions of involuntary admission and treatment are in conflict with both the CRPD and the Constitution of Kenya, which require the dignity and liberty of persons with psychosocial disabilities to be respected, promoted, protected and fulfilled.Footnote 105 One of the main barriers presented by colonial laws is epistemic in nature. Judicial involuntary admission and treatment in hospitals or prisons are themselves deterrents to ensuring the mental health of persons with psychosocial disabilities.Footnote 106 This article makes a case for the repeal of all colonial mental health laws in Kenya, which were crafted to perpetuate health inequalities between Europeans and Africans. In modern Africa, the effect of these discriminatory colonial laws and policies continues to be felt in practice by persons with psychosocial disabilities, who are separated from their community, without access to the options and choices that are available to non-disabled people.
Epistemic coloniality is also found in Kenya's criminal justice system, the state public-order laws of which should be repealed. These laws were meant to promote mental hygiene and were intended to target the poor and marginalized groups, including persons with psychosocial disabilities.Footnote 107 Such laws undermine the rights of these people to an adequate standard of physical and mental health, perpetuate social exclusion and economic hardship, and lead to involuntary detention and treatment.Footnote 108 Judicial involuntary admissions and treatment should also be applied sparingly. Instead, the judiciary should adopt other, non-incarceration measures, such as the use of traditional dispute resolution mechanisms, alternative dispute resolution mechanisms and the diversion of cases away from the court system.
The other example of epistemic coloniality in Kenya's mental health systems can be found in the use of diagnostic criteria of psychosocial disorders, as exemplified in the World Health Organization's International Classification of Diseases and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, which are pegged on the power of modern Eurocentric psychiatry and international health organizations. The essence of decolonialism is to offer alternative diagnostic epistemologies to persons with psychosocial disabilities. Decoloniality calls for the de-normalization of Kenya's mental health laws; it destabilizes colonial mental health structures that continue to oppress persons with psychosocial disabilities under the regime of modern coloniality.Footnote 109 It also problematizes default positions, such as the institutionalization of persons with psychosocial disabilities and, particularly, psychiatric hospitalization.
Personal decolonization is both an individual and a collective awareness of the dynamics of hegemony and a commitment to disrupting dominant colonial mental health practices through everyday occupational consciousness.Footnote 110 Religion and spirituality have a crucial role in combating personal coloniality through the coping strategies of the parents and caregivers of disabled persons.Footnote 111 It is estimated that traditional and spiritual healers manage at least 80 per cent of the healthcare needs of rural inhabitants of East Africa.Footnote 112 The Constitution and the Persons with Disabilities Act allow persons with psychosocial disabilities the right to participate fully in cultural activities.Footnote 113 Like other disabled people, persons with psychosocial disabilities also have religious and spiritual affiliations, which provide meaning and purpose to their lives and assist them in coping with stressful life events such as loss and illness, among other things. The role of spiritual healers may provide an important source of support both to the families of persons with psychosocial disabilities and to those people themselves. Other community-based practices that may be used to alleviate the conditions of persons with such disabilities without infringing on their rights include the use of community health workers and peer-based support.
Conclusion
The extended domination of colonial laws over Africa is a form of coloniality. A “decolonial turn” in Kenya's mental health epistemicides can productively enhance the rights of persons with psychosocial disabilities. Kenya's society has its own traditional methods of empowering and accommodating these people. Colonial mental health systems have power and a purpose which have come with a very restricted view, denigrating other African conceptions and ways of coping. However, it is colonial mental health laws that have become a part of Africa's responses to dealing with psychosocial disabilities. Postcolonial African laws still view persons with such disabilities as objects of charity, medical treatment and social protection. They are based on colonial laws, which also objectified such persons. The decolonial turn in Africa requires a shift from all forms of objectification towards viewing these people as subjects with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as of being active members of society.
Colonial medical traditions of involuntary treatment and admission have proved unsuccessful in articulating the experiences of Africans. Radical revision is needed of Kenya's mental health laws and policies. Laws and policies that promote the right of persons with psychosocial disabilities to live independently and in the community are important. Policy-makers should recognize the need for a cross-cultural approach when dealing with psychosocial disabilities in Africa, entailing the use of both local practices and local languages when providing mental health services. These policies must also be accompanied by adequate resource allocation in order to combat Africa's most prevalent mental health challenges. Non-Eurocentric training of mental health providers on supportive counselling and facilitating the creation of community self-help groups and peer-support services is also important.
Parliament has the power to legislate in Kenya. The country also has a strong Law Reform Commission and a competent independent judiciary which is in charge of interpreting laws. The long-term mechanism for fundamental reforms and their subsequent maintenance is therefore in place. Colonial laws do not reflect modern, postcolonial states’ values and appreciation for the principles of international human rights norms. By identifying and discussing the origins of such laws, governments are better able to determine their continued utility or the lack thereof. These efforts must be supported. What remains is the process of reviewing and invalidating obsolete colonial mental health laws and replacing them with African-centred human rights model laws which focus on mainstreaming disability and removing “attitudinal and environmental barriers” that cause the marginalization and stigmatization of persons with psychosocial disabilities.Footnote 114 Ridding itself of colonial mental health laws will enable Kenya to not only restore its full sovereignty and bring legal clarity, but will also ensure the full realization of the rights of these persons.
The burden of mental health coloniality has removed the liberty of persons with psychosocial disabilities in Kenya, who still live under the domination of oppressive colonial laws. Decolonial thinking emphasizes the re-experiencing, re-imagining and re-thinking of Kenya's mental health system, based on different epistemic mental health foundations and ontologies.Footnote 115 Decoloniality theorists advocate for a broad “decolonial turn” that involves the “task of the very decolonization of Kenya's mental health systems”.Footnote 116
Competing interests
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