Why does the Marriage Bill Discriminate on Account of Mental Illness? Where Are My Human Rights?

By Maina Mucuthi

The marriage bill can be downloaded from here

When the new constitution 2010 was passed, everybody Kenyan citizen got their right to life and non discrimination enshrined and guaranteed in this document. Upon further analysis of the document, at no point did it clearly desegregate people suffering from ailments. This could have been as a result of the realization that ailments can afflict any person and they are momentary in nature. Additionally, the drafters of the constitution could have understood that having an ailment is not reason enough not to enjoy all the rights enjoyed by others not having ailments.

The 11th parliament has been very vocal in telling anybody who cares to listen that they are the supreme legislation body and it is their primary responsibility to make laws for Kenyans. They have also been very vocal in making it clear that in their legislative role, nobody should tell them what to do or purport to school them on how they should conduct their business. Despite the election of capable and learned people into the August house, I stand to disagree with some of the work product of the august house – specifically the marriage bill as currently drafted.

Clauses 5, 11, 12, 66, 73 and 89 of the bill are discriminatory against persons with mental illnesses. According both to medics and from the definition offered by the Oxford English Dictionary, mental illnesses include but are not constrained to Dyslexia among others. Dyslexia is characterized by difficulty with learning to read fluently and with accurate comprehension despite normal intelligence.

The Users and Survivors of Psychiatry in Kenya (USP) have said that the clauses deny persons with mental conditions and disabilities the right to marry and found a family while perpetuating stereotypes about people with mental conditions. The group further says that the bill establishes discriminatory grounds which not only violate persons with mental health conditions and disabilities but also opens up more avenues for abuse of others in vulnerable circumstances. “Categorizing “incurable insanity” as a ground for divorce will serve, and already serves, as tool for the powerful side in the marriage to abuse the other side, whether or not there is a disability or illness.” USP say

“You take away the right to marry, you take away the choice to self-determination, right to own property, ability to engage in commerce, operate bank accounts, right to health, who to live with and other liberties that enhance the quality of life for all Kenyans on an equal basis with all the other citizens. We will be creating a subclass in society of superior and inferior citizenship which is unconstitutional and against international legal obligations that bind Kenya as a State in the world.” USP add. I agree with this lobby group when they further say that mental illnesses/disorders are categorized as Non-Communicable Diseases as they have the potential to be long-term and chronic but it is not always the case. These conditions are manageable if affected individuals can live a normal life with the right support systems, policies and access to consistent medical bill.

“This bill seems to imply that having a mental illness or condition such as depression or anxiety is full time. The nature of illness in the human body is unpredictable just as our humanity is, and if this Bill had gone through public participation as envisioned in the Constitution they would have received an education on the same from the persons affected, their families and professionals as stakeholders to the life changing consequences that emanate.” USP say. Finally I ask, does it mean that because I am ill I do not qualify to enjoy all the rights like other Kenyans? Am I a lesser Kenyan just because I am ill? If I have learning difficulties, how does that make me a bad or poor husband such that I do not qualify to enjoy the institution of marriage?

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