Kenya National Disability Rights Moot Court Competition 2021

 Hypothetical Case before the High Court of Achumbati, sitting in Lotodo in the case between 

Mental Health Advocates  and Attorney General in the Republic of Achumbati

 

1. The Republic of Achumbati is a small, low-income country situated on the eastern part of Africa. It consists of eight provinces which are divided into 65 districts. Achumbati became independent in 1953 and has since enjoyed relative peace and stability. Lotodo is the capital city of Achumbati.  

 

2. Achumbati operates under a common law legal system as provided for under the 1955 Constitution. The Constitution contains, verbatim, the rights, obligations and duties set out in Articles 19 – 57 of the Constitution of Kenya 2010. Article 13 of the Constitution was also amended in 2017 to have verbatim provisions of Article 2 of the Constitution of Kenya 2010.The Achumbati Parliament consists of two houses:the upper and the lower house. Bills initiated by the lower house need to pass through the upper house to become law. In terms of the Constitution, legislation adopted by Parliament only enters into force once signed by the President. 

 

3. Achumbati has a four-tier court system consisting of:
   1. the Supreme Court, which is located in Lotodo This court has national jurisdiction and it is the final court of appeal.
   2. the Court of Appeal also located in Lotodo.
   3. the High Court, which has a station in each of the eight provinces. Each station has aseparate division for civil, criminal, and commercial and labour matters. Through a constitutional amendment in 1997, the High Court has jurisdiction to hear any question respecting the interpretation of the Constitution, including determination ofwhether any law is inconsistent with or in contravention of the 1955 Constitution of Achumbati. 
   4. Districts Courts, which at present are only 49 out of the 65 districts. 

 

4. Achumbati is a member of the United Nations (UN), the African Union (AU) and the East Africa Community (EAC). It has ratified the following UN human rights treaties: the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Discrimination Against Women (CEDAW);the Convention Against Torture or other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD). Upon ratification of CRPD in 2010, the government of Achumbati stated that it is prepared to apply all the provisions of CRPD for as long as they are compatible with its national laws. 

 

5. At the continental level, Achumbati has ratified the following AU human rights treaties: the African Charter on Human and Peoples’ Rights (African Charter); the African Charter on the Rights and Welfare of the Child (African Children’s Charter); the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol); and the Protocol to the African Charter on the Rights of Persons with Disabilities in Africa (Disability Rights Protocol). 

 

6. Achumbati’s Criminal Procedure Code guides the Courts in criminal litigation and proceedings. Section 10 of theCode provides as follows: 
   1. Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission. 
   2.  When a special finding is so made, the court shall report the case for the order of the President and shall meanwhile order the accused to be kept in custody in such place and in such manner as the court shall direct. 
       
   3. The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody. 
       
   4.  The officer in charge of a mental hospital, prison or other place in which a person is detained by an order of the President under subsection (c) shall make a report in writing to the Minister for the consideration of the President in respect of the condition, history and circumstances of the person so detained, at the expiration of a period of three years from the date of the President’s order and thereafter at the expiration of each period of two years from the date of the last report.
       
   5. On consideration of the report, the President may order that the person so detained be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit. 
       
   6. Notwithstanding the subsections (d) and (e), a person or persons thereunto empowered by the President may, at any time after a person has been detained by order of the President under subsection (c), make a special report to the Minister for transmission to the President, on the condition, history and circumstances of the person so detained, and the President, on consideration of the report, may order that the person be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.
       
   7.  The President may at any time order that a person detained by order of the President under subsection (c) be transferred from a mental hospital to a prison or from a mental hospital, or from any place in which he is detained or remains under supervision to either a prison or a mental hospital.

 

7. Section 11 of the Criminal Procedure Code also provides as follows:
   1. If the accused, though not insane, cannot be made to understand the proceedings—
      1.  in cases tried by a district court, the court shall proceed to hear the evidence, and, if at the close of the evidence for the prosecution, and, if the defence has been called upon, of any evidence for the defence, the court is of the opinion that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused, but if the court is of the opinion that the evidence which it has heard would justify a conviction it shall order the accused to be detained during the President’s pleasure; but every such order shall be subject to confirmation by the High Court; 
          
      2. in cases tried by the High Court, the Court shall try the case and at the close thereof shall either acquit the accused person or, if satisfied that the evidence would justify a conviction, shall order that the accused person be detained during the President’s pleasure. 
   2.  A person ordered to be detained during the President’s pleasure shall be liable to be detained in such place and under such conditions as the President may from time to time by order direct, and whilst so detained shall be deemed to be in lawful custody. 

 

3. The President may at any time of his own motion, or after receiving a report from any person or persons thereunto empowered by him, order that a person detained as provided in subsection (b) be discharged or otherwise dealt with, subject to such conditions as to the person remaining under supervision in any place or by any person, and such other conditions for ensuring the welfare of the detained person and the public, as the President thinks fit.
    
4. When a person has been ordered to be detained during the President’s pleasure under paragraph (i) or paragraph (ii) of subsection (a), the confirming or presiding judge shall forward to the Minister a copy of the notes of evidence taken at the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

 

8. Ngijabule is an adult male who lives with his mother in Solwezi, three siblings and his cousin who also sometimes looks after him. His father works in another town, Kasama, while his mother works in his hometown. He attended primary school until Standard 8. According to Ngijabule, it was his mothers’ decision for him not to continue to secondary school, although he would have preferred to stay in education. His brother confirmed it was because Ali “didn’t do well at school” and the fact that there was no special school close to their township. 

 

9. In 1982, there was a confrontation between Ngijabule and his neighbour Karegi. As a result of the confrontation, Ngijabule was arrested and charged with assault under the penal laws of Achumbati. During his trial, the District Court determined that Ngijabule was unable to understand the proceedingsof the court. He was therefore sentenced under Section 11 of the Criminal Procedure Code.As a result, he has been held in Uyalanya Maximum Prison since 1983.

 

10. Matwa lives with his mother in the capital city. Due to family problems, the family moved a lot as Matwa was growing up. His father abandoned the family when he was young. “This is something which has disturbed me for many years”, Matwa noted. In his free time, Matwa likes going to the local church “so that I can listen to the preaching like on how the youths should be engaged in productive living and also not to be involved in bad things.” Matwa feels supported and likes listening to advice from people around him and applying it to his life. He still appreciates his Mother’s advice

 

11. In 1997, Matwa was found to be guilty but insane after committing murder. Matwa was convicted of murder contrary to the penal laws of Achumbati. Matwa was therefore sentenced under Section 10 of the Criminal Procedure code two years later. He has since been held at Ndiyana Mental Hospital since then. 

 

12. Mental Health Advocates (MHA) is a user led organisation that works to protect the rights of people with mental disabilitiesin Achumbati. It is registered in Achumbati as a non-governmental organization and its head office is located in Lotodo. In 2009, MHA obtained observer status before the African Commission on Human and Peoples’ Rights (African Commission). 

 

13. Since 2013, MHA has mostly focused on the issue of denial of liberty for people with mental disability in Achumbati, both in its domestic advocacy activities and in its oral statements before the African Commission. In this context,has consistently called on the government to stop the indeterminate detention of people with mental disabilities under sections 10 and 11 of the Criminal Procedure Code. It has published several policy briefs on the reintegration of people with mental disabilities back into society from prison. It has also formed a coalition with other user led organizations to put pressure on the government on matters relating to the rights and plight of people with mental disabilities who are being held in various detention facilities around the country. MHA’s advocacy on this issue draws upon the relevant provisions of the UN and AU human rights treaties to which Achumbati is a party. 

 

14. On 10 October 2020, which also marked the World Mental Health Day, MHA published a policy brief entitled “No End in Sight: The Indefinite Detention of People with Mental Disabilities in Achumbati”. Using case studies of the plight of Ngijabule and Matwa, the policy brief highlighted the magnitude and impact of indeterminate detention of people with mental disabilities under sections 10 and 11 of Achumbati’s Criminal Procedure Code. The report found that there are hundreds of people with mental disabilities across Achumbati who are detained at the President’s pleasure either in prisons or mental hospitals. The report concluded that there is an urgent need for significant structural change in the way the Achumbati state deals with people with mental disability in the criminal justice system, starting with repealing sections 10 and 11 of the Criminal Procedure Code. 

 

15. As a follow-up to the publication of the policy brief, MHA filed a case at the High Court in Lotodoin January 2021 contending the following:
    1. Achumbati has violated the right to freedom from denial of liberty of Ngijabule and Matwa;
    2. Achumbati has violated the right to non-discrimination of Ngijabule and Matwa;
    3. Achumbati has violated relevant human rights treaties by failing to protect the rights of Ngijabule and Matwa; and
    4. Sections 10 and 11 of the Criminal Procedure Code are unconstitutional and in contravention of the  human rights treaties that Achumbati has ratified.

 

16. The matter is set to be heard by the High Court in Lotodo in June 2021.  Prepare memorials for both MHA (Applicant) and Achumbati (Respondent) setting out the following arguments: 
    1. The parties’ position on the procedural aspects (jurisdiction and admissibility) of the case. 
    2. The parties’ position on the material aspects (merits) of the case, and the appropriate remedies.