Table of Content
1.1 BACKGROUND INFORMATION
1.2 PROBLEM STATEMENT
1.3 RESEARCH OBJECTIVES
1.4 RESEARCH METHODOLOGY
1.5 RESEARCH QUESTIONS
1.6. OVERVIEW OF THE CHAPTERS
2.2 TREATY LAW PROTECTING THE RIGHT TO LIFE OF PEOPLE WITH ALBINISM
2.3 STATE DUTY TO PROTECT PEOPLE WITH ALBINISM
2.4 MONITORING AND COMPLIANCE OF INTERNATIONAL TREATIES
3.2 NATIONAL LAWS PROTECTING PEOPLE WITH ALBINISM
3.3 CONCLUSION AND RECOMMENDATIONS
1.1 BACKGROUND INFORMATION
Albinism is a rare genetic condition that affects the entire human population. The condition is characterised by skin hyperpigmentation:due to the absence of melanin synthesis in the body.1 Consequently, causing adverse health effects.2 Apart from the life-long challenges presented by the condition, people with albinism live in constant fear of being attacked.3 On September 2015,Jamenya, a man living with albinism, died after being attacked by three men at his home in the rural part of Kenya, his body was cut to pieces for ritual purposes.4 While on August 2010 Nathan Mutei, was sentenced for trafficking his friend Robinson Mkwama from Kenya to Tanzania, with an intention of selling him for ritual purposes, Mutei was sentenced to 17 years in prison.5
Despite the danger faced by people with albinism in Africa, documented data on these attacks are scarce.6 The paucity of information arises from the secrecy that often surrounds witchcraft rituals.7 Leading to the development of serious violations of human rights.8 People with albinism have been particularly made vulnerable, as the trade in albino body parts is orchestrated by witch doctors; who claim that people living with albinism are an unusual entity.9 Witch doctors indicate that body parts/or bones derived from albinos can cure disease, bring wealth and success in life.10 Fishermen, are also enticed in using nets woven with albino hair, with the absurd belief, that they will harvest more fish.11
Consequently, lucrative markets have emerged where people sell albino body parts:for use in rituals, potions or talismans.12 The prices for the parts, are utterly absurd, and range anywhere from $2000 for an appendage and $75000 for a cadaver.13 These erroneous myths have exposed albinos to a systematic series of incomprehensible injustices.14
In East Africa, Tanzania is notoriously known for crimes against persons living with albinism.15 In order to satisfy the high demand of albino body parts, this gangs tend to cross the border between Tanzania and Kenya to perpetuate further attacks against albinos in Kenya.16 Consequently,13 cases of these attacks have been documented in Kenya.17
This brings up the question whether Kenya should afford protection to people with albinism against any form of violence. First, killing a person with albinism destroys life. The right to life is of supreme value, meaning that the right to physical existence supersedes all other rights within the hierarchy of human rights. This was demonstrated by in the matter of Ward of Court where the Court reiterated the supremacy of the right to physical existence to other constitutional rights.18 Likewise, in the well publicised case of State v Makwanyane, the court affirmed this position by saying that the right to life and dignity are most important of all human rights, and a source of all personal rights in Chapter 3 of the Constitution.’19 Thus, the right to life of people with albinism must be afforded high protection by the rule of law.20
Second, an individual rights and fundamental freedoms, are protected and preserved without reservation in international norms.21 When a State ratifies a treaty, its expected to perform its duties and obligations in good faith thus, any such acts contrary to its treaty obligation is in breach of its international obligations. Therefore, standards articulated by international norms, human rights organisations and judicial institutions demonstrate that the states should shoulder the duty to protect its citizens and prevent any acts that led to arbitrary deprivation of life.
This explicitly endorses the necessity of States to ban horrendous acts that violate the right to life and security of persons with albinism;through pledging to protect and promoting individual human rights, more importantly, putting an end to all human rights violation within their territories.
The deprivation of life among persons with albinism, is absolutely prohibited under international treaties. The Universal Declaration of Human Rights(UDHR) was the first international agreement to provide an extensive umbrella for the right to life. Article 3 of the Declaration proclaims the ‘right to life, liberty and security’ of an individual is protected under the rule of law.22 The UDHR has given rise to a number of important human right treaties that have generally expounded the principles codified in the Declaration. The Convention on the Rights of Persons with Disabilities; which recognises the principles enumerated in the UDHR, is generally lauded for its extensive and detailed jurisprudence on the rights of disabled persons. Nevertheless, emerging evidence classifies people with albinism as disabled;this is from the systematic barriers they face that restrict their day to day activities, as well as the physical impairments arising from the condition.23 Despite the magnitude of problems faced by people with albinism the UN Convention offers extensive protection to the vulnerable group, as the Convention mandates states to respect and promote fundamental rights of people with disabilities in their jurisdiction. Violence and persecution against persons with albinism jeopardises their right to life.
The study examines the legal significance of international treaties in protecting the right to life and security. The study formulates a link between harmful traditional practices, discriminatory practices, among other practices and the deprivation of life among people with albinism. An illustration of the principles established in the Convention on the Rights of Persons with disabilities and other core international norms that ordinarily protect the right to life will be provided.24 Nevertheless, international human rights serves as a catalyst for legal change furthering the promotion of fundamental human rights. In light of this observation, this study illustrates national court cases, interpreting and applying international law in their decisions and finally examines domestic laws and practices structured by the Kenyan government that comply with its international obligations, in promoting and preserving the right to life. Nonetheless, states should take concrete steps, and implement policies and measures, that monitor and protect the lives of people with albinism.25
1.2 PROBLEM STATEMENT
Unjustified attacks against persons with albinism, treats them as non-humans and objects to be toyed with and discarded. These attacks are constitutionally invalid, and against fundamental efforts to preserve and protect the right to life of each and every human. The bizarre myths surrounding people living with albinism has subjected them to ill-treatment, trafficking and premeditated deaths. So far 13 attacks have occurred in Kenya. Human Rights Organisations indicate this data as an imprecise computation, due to the secrecy surrounding the illegal trade in albino body parts. There is need to address the root cause of violence against persons with albinism, the government has an obligation to design and unveil measures that protect the right to life of vulnerable groups and prosecute individuals or criminal gangs responsible for such atrocious crimes.
1.3 RESEARCH OBJECTIVES
This study examines the legal principles enshrined in the Constitution of Kenya and other national laws promoting and preserving the rights to life among people with albinism.
1.4 RESEARCH METHODOLOGY
Information in the study is based on secondary data. The research information will be extracted from government and private bodies associated with people with albinism. Data will be extracted from published and unpublished sources i.e. websites, books, newspapers and journals and publications from international bodies.
1.5 RESEARCH QUESTIONS
a) Do international laws adequately enhance protection for the rights of life of a person with albinism in Kenya?
b) How does Kenya national law protect the right to life of a person with albinism?
c) Should the State be held responsible for violation of rights of persons with albinism?
1.6. OVERVIEW OF THE CHAPTERS
The thesis is divided into four chapters. Chapter one introduces the study and provides a statement of the problem and the objectives of the study. Chapter two demonstrates international norms protecting the right to life of persons with albinism, and examines the doctrine state obligation in international law. Chapter three examines domestic laws protecting the rights of persons with albinism in Kenya and concludes the study.
Violent attacks are the leading cause of mortality among people with albinism in Africa. In order to protect the rights of people with albinism, the UN has diligently adopted several treaties and declarations, that promote and encourage respect for human rights and fundamental freedoms;which every individual is entitled to. Efforts to strengthen the protection of people with albinism against violent attacks has resulted in the adoption of resolutions, explicitly condemning inhumane attacks and discrimination against individuals with albinism. This section examines international instruments relevant for the protection of people with albinism. An examination of state responsibility in preserving and protecting the right to life of people with albinism will be provided and lastly examine state reporting obligations under international law.
2.2 TREATY LAW PROTECTING THE RIGHT TO LIFE OF PEOPLE WITH ALBINISM
Life is tantamount to an individual's existence. And the most significant of all human rights. Yet people born with albinism in Africa, are routinely subjected to violent attacks that deprives them life.26 Albinism is recognised as a disability.27 Therefore, their fundamental freedoms and human rights are protected under the CRPD.’28 Nonetheless, the CRPD offers a platform that enables people with albinism to secure their rights;enabling them to enjoy the rights and privileges of a citizen within a modern society.29
Due to myths and misconceptions surrounding their condition, albinos are violently attacked for their body parts;which are used in rituals to bring success in life.30 The CRPD outlaws harmful traditional and cultural practices that violate human rights and fundamental freedoms of individuals with albinism.31 And further mandates State parties, to translate the Conventions’ principles into both policy and practice.32 This provision, confers responsibilities to States parties to design practical measures, that combat harmful practices that stereotype and harm people with albinism.33
Regrettably, reports indicate 600 attacks have been perpetrated against persons living with albinism across 26 countries.34 So far thirteen attacks have been reported in Kenya.35 Killing of person with albinism is a violation of the right to life, proclaimed in Article 10 of the CRPD.36 This Provision, declares to State parties the need to take appropriate measures, and structure policies; that preserve the life of each and every individual in their jurisdiction, despite of their disability.37
The CRPD protects life from conception and generally acknowledges that, the termination of a pregnancy, jeopardises an unborn child right to life.38 In addition to that, the Committee on the Rights of Persons with disability, explicitly prohibits abortion on the ground of disability, and further points out that abortion violates fundamental human rights enshrined in the CRPD.39 This principle applies to all unborn children with albinism.
Right to life is also recognised in the Universal Declaration of Human rights(UDHR)40 and its subsequent treaties, the International Convention on Civil and Political Rights(ICCPR)41 and the International Convention on Economic, Social and Cultural Rights(ICESCR).42 The ICESCR, does not explicitly refer to the enjoyment of the right to life or enjoyment of fundamental human rights by disabled people.43 However, the Committee on ICESCR; the body responsible for monitoring compliance of the ICESCR, in its general comment wrote that States parties should ‘ensure the full enjoyment of the relevant rights by persons with disabilities.’44 Alum et al. states this comment imposes human rights obligations on states to realise the rights of people with albinism.45
Rights of unborn child with albinism, have also been affirmed by the Universal Declaration of Human Rights(UDHR).46 The Declaration recognises the rights of an unborn child, having been adopted by a resolution of the General Assembly.47 In its Preamble the UDHR affirms ‘recognition of the inherent dignity, equal and inalienable rights of all members of the human family.’48 Joseph argues the concept ‘inalienable rights of all members of the human family’ in the UDHR, affirms the right to protect and preserve life ‘before as well as after birth.’49 This provision asserts the position that abortion of a disabled child violates their fundamental human rights.50
The Declaration further emphasis the need to preserve and protect life under Article 3,a cornerstone of the Declaration, which proclaims the ‘right to life, liberty and security of a person: rights which are essential to the enjoyment of other rights.’51 After consultations with the original drafters of the UDHR, Verdoot demonstrated that Article 3 of the UDHR conferred, ‘Every individual with the right to physical existence.’52 This demonstrates that violence against people with albinism is inconsistent with the ‘right to physical existence.’53
1 UN Report Of The Independent Expert On The Enjoyment Of Human Rights By Persons With Albinism: A Preliminary Survey On The Root Causes Of Attacks And Discrimination Against Persons With Albinism (2010).
2 Albinism causes physical health problems such as visual impairment and skin cancer. UN Report Of The Independent Expert On The Enjoyment Of Human Rights By Persons With Albinism: A Preliminary Survey On The Root Causes Of Attacks And Discrimination Against Persons With Albinism (2010)
3 Charlotte Baker And Patricia Lund ‘The Role Of African Fiction In Educating About Albinism And Human Rights’(2017),11(3)Journal Of Literary & Cultural Disability Studies 11.3.
4 Derick Luvega,’Gang attacks albino for body organs’,Daily Nation News(Kenya,September 13, 2015) https://www.nation.co.ke/news/Gang-attacks-albino-for-organs/1056-2869110-3ud61jz/index.html,accessed 24 December 2017.
5 ‘Kenyan Jailed For Trying To Sell Albino’,BBC News(Africa,18th August 2010) http://www.bbc.co.uk/news/world-africa-11013927,accessed 24 December 2017.
6 Under the Same Sun,’Kenyans with Albinism and Racial Discrimination’(April 2017) http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/KEN/INT_CERD_NGO_KEN_27123_E.pdfaccessed 24 December 2017.
7 Under the Same Sun(n 6).
8 Sabbath M.Uromi, ‘Violence Against Persons With Albinism And Older Women: Tackling Witchcraft Accusations In Tanzania,’(2014),2(6)International Journal of Education and Research. http://www.ijern.com/journal/June-2014/25.pdf accessed on 6 April 2018.
9 Imafidon Elvis,’Dealing With The Other Between The Ethical And The Moral: Albinism On The African Continent’ (2017),38(2) Theoretical Medicine And Bioethics,163-177.
10 Robyn Dixon, ‘In Parts Of Africa, People With Albinism Are Hunted For Their Body Parts. The Latest Victim: A 9-year-old Boy’,Los Angeles Times(Johannesburg,15 June 2017). http://www.latimes.com/world/africa/la-fg-malawi-albinos-hunted-2017-story.html,accessed 6 April 2018.
11 Fahy Bryceson, Deborah Jesper Bosso Jonsson & Richard Sherrington, ‘Miners’ Magic: Artisanal Mining, The Albino Fetish And Murder In Tanzania’(2010),48(3) The Journal Of Modern African Studies,15.
12 Lindsey Bever,’Where albino body parts fetch big money, albinos still get butchered’,the Washington Post(Washington,13 March 2015). https://www.washingtonpost.com/news/morning-mix/wp/2015/03/13/how-tanzanias-upcoming-election-could-put-albinos-at-risk-for-attack/?utm_term=.cfc530c07040 accessed 31December 2017.
14 Chu Christopher & Dao Harry, ‘Past and contemporary myths and misconceptions of oculocutaneous albinism in Africa’(2015),72(5)Journal of the American,Academy of Dermatology,27.
15 Under The Same Sun,’A Report On Tanzania With Parallel References To Other Parts Of Sub-saharan Africa,Children With Albinism In Africa: Murder Mutilation And Violence’(2012) https://www.underthesamesun.com/sites/default/files/UTSS%20report%20to%20UN%20-%20REPORT.pdf. accessed on 6 April 2018.
16 Aislinn laing,’Kenya's Albinos Moved Away From Tanzania Border Amid Witch Doctor Threat’,the Telegraph( Johannesburg,3 April 2018) https://www.telegraph.co.uk/news/worldnews/africaandindianocean/kenya/11885641/Kenyans-albinos-moved-away-from-Tanzania-border-amid-witchdoctor-threat.html,12 April 2018.
17 Under the Same Sun(n 6).
18 Ward of CourtILRM 401.
19 S v Makwanyane and Another ZACC 3.
20 Ward of CourtILRM 401.
21 OHCR,’Not ghosts but human beings:UN rights office launches website on albinism’(OHCR,5 May 2015) <https://news.un.org/en/story/2015/05/497862-not-ghosts-human-beings-un-rights-office-launches-website-albinism>accessed 20 March 2018.
22 Universal Declaration of Human Rights(UDHR) 1948.
23 Definition is based on the social model of disability found in the Convention on the Rights of Persons with Disabilities(CRPD)2006.
24 Universal Declaration Of Human Rights(UDHR) 1948,Art3.International Convention On Civil And Political Rights(ICCPR)1966,Art.6.
25 UN Sustainable Development Goals [Agenda 2030]:Regional Action Plan On Albinism In Africa - 2017 To 2021:5-year Plan To Address Attacks And Related Violations Against Persons With Albinism In Sub Saharan Africa https://www.hrfn.org/wp-content/.../10/RegionalAction_Plan_on_albinism_EN.pdf accessed 20 March 2018.
26 Brocco Giorgio,’Albinism,Stigma,Subjectivity and Global-Local Discourses in Tanzania’(2016),23(2)Anthropology & Medicine,229–243.
27 Under the Same Sun,’Classifying Albinism: Transforming Perceptions & Ushering In Protection With The Help of International Human Rights Law’(2014) Under The Same Sun. https://www.underthesamesun.com/sites/default/files/Albinism-A%20Definition%20for%20A%20Change.pdfaccessed 5th April 2018.
28 Peter Bartlett,’The United Nations Convention On The Rights Of Persons With Disabilities And Mental Health Law’(2012),75 The Modern Law Review,752–778.Traustadottir Rannveig, ‘Disability Studies, The Social Model And Legal Developments’ (2009),100 in The UN Convention on the Rights of Persons with Disabilities,1-16.
29 Raymond Lang,’The Development and Critique of the Social Model of Disability’(2001) http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.502.9898&rep=rep1&type=pdf(last accessed on 5th April 2018).
30 United Nations Report of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism,A/HRC/31/63(2009).
31 Convention on the Rights of Persons with Disabilities(CRPD)2006, Art.8.1. https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html accessed on 5th April 2018.
32 Peter Mittler,’The UN Convention on the Rights of Persons with Disabilities: Implementing a Paradigm Shift’(2015),2 Journal of Policy & Practice in Intellectual Disabilities,79-89.
33 United Nations Report of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism,A/HRC/31/63(2009).
34 Report of The Independent Expert On The Enjoyment Of Human Rights By Persons With Albinism(Human Rights Council Thirty-fourth Session, 27 February-24 March 2017).
35 Under the Same Sun(n 6).
36 Convention on the Rights of Persons with Disabilities(CRPD)2006, Art.10. https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html accessed on 5th April 2018.
37 Convention on the Rights of Persons with Disabilities(CRPD)2006, Art.10. https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html accessed on 5th April 2018.
38 The International Covenant on Civil and Political Rights(ICCPR)1976,General Comment on Art.6.
39 Convention on the Rights of Persons with Disabilities(CRPD)2006,Art,4,5,8. and The International Covenant on Civil and Political Rights(ICCPR)1976,General Comment on Art.6.
40 The International Covenant on Civil and Political Rights(ICCPR)1976,General Comment on Art.6.The Universal Declaration of Human Rights(UDHR)1948,Art.3.
41 The International Covenant on Civil and Political Rights(ICCPR)1976, Art.6
42 The International Covenant on Economic, Social and Cultural Rights (ICESCR) 1976.
44 UN Committee on Economic, Social and Cultural Rights (CESCR) 1994 General Comment No. 5: Persons with Disabilities. available at: http://www.refworld.org/docid/4538838f0.html (accessed 1 April 2018)
45 A Alum Et Al, ‘hocus Pocus, Witchcraft, And Murder: The Plight Of Tanzanian Albinos’ (2009)
46 Universal Declaration of Human Rights(UDHR)1948.
47 United Nations General Assembly Resolution 217A(III) (1948)
48 Universal Declaration of Human Rights(UDHR)1948,The Preamble.
49 Rita Joseph Human Rights And The Unborn Child (Leiden Martinus:Nijhoff 2014)
50 Rita Joseph (n 53)
51 Universal Declaration of Human Rights(UDHR)1948.Art.3
52 Albert Verdoodt,’Naissance et Signification de la Déclaration Universelle des Droits de l’Homme’,(1965) 47 Revue internationale De La Croix-Rouge,411.Rita Joseph Human Rights And The Unborn Child (Leiden Martinus:Nijhoff 2014)
53 Albert Verdoodt (n 56)