Adults with disabilities are in the criminal justice system as
(i) accused persons,
(ii) convicts or
(ii) awaiting administrative process under the Mental Health Act of 1963.

In the year 2010, the High Court of Kenya found that it was unconstitutional to sentence persons with mental disabilities at the president’s pleasure. This created a challenge for social workers and the judiciary on what are the alternative sentencing procedures or accommodations required for offenders with special needs.

In the absence of appropriate training and sensitization, law enforcement officials demonstrate lack of understanding and they can be actively hostile in their treatment of individuals with mental disability in conflict with the law. Offenders with mental disability may be indirectly discriminated against in their access to justice partly due to legal framework that is discriminatory and not responsive to their needs. These include sections of the Penal Code, Criminal Procedure Code and Mental Health Act. Their rights to dignity, legal capacity and inclusion in the community for persons with mental disabilities, are often denied through the criminal justice system.

More research needs to be done to identify the gaps in rehabilitating offenders with mental disabilities; and alternative trial and sentencing procedures to accommodate person with mental disabilities, who are likely to be sentenced under the president’s pleasure. This research would inform appropriate reforms in policy, programs, institution and processes to promote rights of persons with mental disability in the criminal justice system.

The overall goal of this project is to develop a framework on access to justice for persons with disabilities within the criminal justice system. The project is funded by Open Society Initiative for Eastern Africa. It is based on the premise that adult care givers form the first circle of protection for children. Therefore when adults with mental disability are incarcerated indefinitely as is often the case, their children are exposed to risks of neglect, abuse and exploitation .

The specific objectives are:

1. Document the estimated number of persons with mental disability in the criminal justice system (police/ judiciary/ health facilities/ prisons/ probation) in Kenya
2. Document the challenges that persons with mental disability face in accessing justice in the criminal justice system.
3. Outline the current measures being taken by the courts and probation, the policies in place to address these needs and the effectiveness of these measures.
4. Identify the gaps in the criminal courts and probation department in addressing offenders with mental disabilities and make recommendations on how to address the gaps