By Karen Koech

International human rights instruments for a long time ignored the rights of persons with disabilities. The non-discrimination clauses of the international bill of rights made no mention of disability, except the United Nations Convention on the Rights of the Child that recognized the rights of disabled children since its ratification. This explains the late inception of the United Nations Convention on the Rights of People with Disabilities (CRPD) in 2007/2008, decades after treaties of other special interest groups had been in operation. As expected, this was the same for Kenya. Mainstream legal recognition of the rights of persons with disabilities was delayed as the ones currently in place have been in operation for less than twenty years. This article discusses the progression of the legal and policy framework for the persons with disabilities in Kenya in view of the tenth anniversary of the Constitution of Kenya, 2010. Has this law positively impacted the protection of rights and lives of people living with disability in Kenya?

The CRPD avoids an express definition of ‘persons with disabilities’ but implies one in its preamble by stating that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society in an equal basis with others. The social model of disability is imputed by this point of view on disability as opposed to the medical model. The social model of disability identifies the problems found by disabled people as a consequence of external factors. On the other hand, the medical model looks at a person’s impairment as the cause of disabled people being unable to access goods and services or being able to participate fully in society. The CRPD further provides that persons with disabilities include; those that have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

The former Kenyan constitutional dispensation made no mention of persons with disabilities. The 1963 Constitution outlawed discrimination on various grounds such as race, tribe, colour but omitted discrimination on the basis of disability. This evidences the manner in which the previous legal system overlooked the rights of persons with disabilities. However, other sectors made efforts in championing for these rights. For instance, 1980 was declared by the government as the National Year for People with Disabilities to promote the awareness and sensitization of their rights and needs to the wider society. In addition, in 1984, the then Ministry of Education introduced Educational Assessments and Resource Centres to improve the educational service for special education students. These efforts culminated into the appointment of a task force in 1993 by the then Attorney General to review laws related to persons with disabilities and to collect views form the public. Consequently, in 2003, the Persons with Disabilities Act was passed by Parliament, establishing the National Council for Persons with Disabilities whose mandate is to implement the rights, privileges and protection of persons with disabilities in Kenya. Soon afterwards, as aforementioned, the CRPD was signed into law in 2007 and ratified in 2008.

Evidently, legal and institutional steps towards the recognition and protection of the rights of persons living with disability in pre-2010 Kenya had been taken. With the statute and the statutory body in place, the rights of these category of persons in Kenya were actively being advocated for. Hence, the promulgation of the new Constitution of Kenya in 2010 saw the extension of rights protection and recognition of disability rights in Kenya. The Constitution describes disability to include any physical, sensory, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial, or long-term effect on an individual’s ability to carry out ordinary day-to-day activities.  The Bill of Rights constitutes the fourth chapter of the Constitution. It covers a wide variety of right such as the right to life, dignity, expression, religion, information among others. People with disabilities enjoy these rights in addition to all other rights and privileges that all other Kenyan citizens are entitled to. Additionally, given the special status of persons with disabilities, the Constitution contains special provisions to accommodate their special status. It recognizes the vulnerability of disabled persons in Kenya, mandating all state organs and public offices to address their needs in that regard. The law also acknowledges the needs of persons with disability in obligating the state to promote the use of sign language, braille and other communication formats and technologies accessible to persons with disabilities. Further, unlike the former Constitution which left out persons with disabilities in its anti-discrimination clause, this law includes disability as one of the grounds of discrimination. This clause prohibits both direct and indirect discrimination on the grounds of disability.

Besides the general provisions the Constitution has stipulations that specifically touch on persons with disabilities. Article 54 distinctively sets out the rights of persons with disability. It stipulates that that persons with disability are entitled to dignified and respectable treatment, to access to education and institutional facilities, to reasonable access to all places, to public transport and information, to all appropriate means of communication such as braille and sign language and access to materials and devices to overcome constraints arising from the personal disability. Furthermore, the Article sets out the principle that at least five percent of the members of the public in elective and appointive bodies should be persons with disabilities. Similarly, the Constitution ensures the representation of persons with disability on various public offices by reserving positions for them. Chapter seven on representation of the people includes the fair representation of people with disabilities as one of the general principles for the electoral system. In addition, it requires that any legislation on elections should take into account the special needs of persons with disabilities. Further, special seats are required to be reserved for persons with disabilities in the National Assembly, Senate and County Assemblies. Besides, one of the values and principles of public service outlined in the Constitution is affording adequate and equal opportunities for appointment, training and advancement of persons with disabilities at all levels of public service.

The provisions in the statute and the constitution has occasioned the development of various policies and programmes aimed at executing these laws and furthering the interests of people with disabilities in Kenya. The motivation to ensure conformity with the Constitution has also led to the institution of the same. These include the National Special Needs Education Policy Framework (2010) the National Action Plan on Accessibility and Disability Rights (2013), the Disability Policy and Guidelines for the Public Service (2018), et al. Further, various legislations including the Persons with Disability Act itself, have been revised to align them with the Constitutional provisions on disability rights. For instance, the Employment Act introduced a non-discrimination clause that prohibits disability as a ground for discrimination or reason for termination or discipline by employers. Others include the Public Officers’ Ethics Act and the Public Service (Values and Principles) Act.

Additionally, further implementation efforts by the government and other stakeholders have been taken for the benefit of people living with disabilities. The Kenya National Education Council has ensured appropriate measures to cater for the needs of different disability groups when setting and administering examinations. Also, as a policy, government agencies bear the costs of personal assistants to people with disabilities in their employment. In addition, the Social Protection Policy which identifies people with disabilities as a priority group for social protection has been developed among others. Further, certain affirmative action programmes have been set up to facilitate persons living with disabilities in Kenya. For example, all public institutions are required to develop an internal Disability Policy and implement the National Action Plan on Disability and Accessibility and the setting up of the National Development Fund for Persons with Disabilities which is aimed at promoting business entrepreneurship for people with disabilities. Additionally, the National Fund for the Disabled has been established for funding empowerment and development programmes for persons with disabilities in Kenya.

All in all, it is clear that the legal provisions catering for the persons with disabilities in Kenya were developed late but have gradually developed and the 2010 Constitution has acted as a catalyst in strengthening these provisions. The CRPD principles have also played a major role in the advancement of the protection of the rights of disabled persons. The implementation process, given the law has been in operation for ten years, is undeniably slow. For example, the Persons with Disabilities Bill of 2019, that sets out to incorporate the provisions of the Constitution has yet to be enacted. Further, certain provisions of the CRPD, such as the revision of all demeaning words such as ‘unsound mind’ and ‘mental incapacity’ in laws and policies has not been executed. The steps taken for execution are definitely in the right direction so far but more needs to be done to better the lives of persons with disabilities in the next decade of the Constitution.

Karen is a research and Development Associate at The Youth Cafe

The Youth Café is passionate about inclusivity and equality in the public sphere. (See The Youth Manifesto). Pursuant to this, many of our project beneficiaries are persons with disabilities and as an internal policy, we reserve a certain quota of our staff positions for persons with disabilities.

Reach out to us for any suggestions and collaborations with a view to champion for the rights and protection of persons with disabilities in our society.