Section 2: Systemic Provisions to Protect, Promote and Fulfill the Human Rights of People with Disabilities in Kenya
International & Regional Framework
Kenya has ratified or acceded to six of the seven major international human rights instruments2 and the African (Banjul) Charter on Human and Peoples’ Rights. However, Kenya has not reported to the international treaty monitoring bodies in a timely manner. Many of the country’s reports are long overdue.
National Human Rights Framework
General Statutory and Policy Framework
Disability has been variously defined by reference to the nature of the particular disability being defined or the cause or the consequences of that disability. This approach was necessitated by the fact that disability takes various forms and degrees.
There is no Constitutional definition of disability in Kenyan law. However there exists a statutory definition under the P.D.A. which defines disability at Section 2 as follows:
A physical, sensory, mental, or other impairment including any visual, hearing, learning or physical incapacity which impacts adversely on social, economic or environmental participation.
The P.D.A.’s definition is wide enough to include persons who may not traditionally be regarded as disabled.
The Constitution of Kenya makes provisions guaranteeing human rights and liberties of citizens (Chapter 5), rights that apply to all citizens. Persons with disabilities are expected to enjoy these rights equally with the rest of the society.
The Constitution outlaws discrimination at Section 82 (1) on many grounds including race, tribe, place of origin, birth, political opinion, colour and sex but does not outlaw discrimination on the basis of disability.3 This silence in the Constitution is capable of two interpretations; positive and negative. On the positive side, the mischief intended to be cured is, that discrimination on basis of status or difference of individuals does not arise. So the mere fact that the word disability is not included should not be interpreted to mean that disability was not intended to be a prohibiting ground of discrimination. On the negative side, in the light of the fact prohibiting grounds for discrimination are expressly stated, it means therefore that discrimination on the basis of disability is not prohibited by the constitution.
Bearing in mind the central position that the Constitution occupies in the hierarchy of laws, it would be more prudent if the constitution were amended to expressly include disability as one of the basis of discrimination.
The Kenyan Constitution contains provisions that could be construed as discriminatory to persons with disabilities. These include:
- Section 12 which provides that a person who is incapacitated by reason of physical and mental infirmity while exercising the functions of office of the president should be removed from that office. Although this provision is reasonable, it can imply that those with intellectual or physical disabilities cannot hold the office of the president. This provision could have been more reasonable if it had been given judicial interpretation in Kenya.
Section 34 (c) provides that for a person to qualify as a member of national assembly, he or she must inter alia:
- Must be able to speak
- Unless incapacitated by blindness or other physical cause, to read the Swahili and English language
- To speak and read Swahili language well enough to take an active part in the proceedings of national assembly
This Section has been reiterated by the National Assemblies Act, which sets up a Language Board4, which tests prospective members of parliament on language proficiency. The Act, including all other legislation, has not given judicial interpretation to language and reading. We do not know whether sign language is also a ‘language’ within the meaning of the Constitution and the Act and whether reading in Braille is also ‘reading’ within the meaning of the said provisions.
A milestone in addressing the rights of persons with disabilities was found in the Proposed Draft Constitution5. The Draft Constitution could have been of great impact in protection of the rights of persons with disabilities, as it contained clear provisions specifically addressing the rights of persons with disabilities.6 Article 43 placed obligation upon the state to ensure that their rights are enjoyed. The draft Constitution was not, however, rejected during the Referendum.7 This was a great set back in realization of the rights of persons with disabilities.
The Persons with Disabilities Act, 2003 hereinafter referred to as P.D.A., (see Kenya Law Reports), prohibits all forms of discrimination against persons with disabilities which the only statute that outlaws discrimination against persons with disabilities. P.D.A., is a fairly new Act and it has not been subject to interpretation in any courts of law in Kenya.
The P.D.A. includes provisions to prohibit discrimination on the basis of disabilities in various sectors including education, employment, health, and provision of services in both the public and private sector among others. Section 15, prohibits discrimination in the employment sector, Section 17 in education, Section 20 in health, and Section 25 in accessing premises. Section 39, 40 and 41 provide for indirect discrimination against persons with disabilities in areas such as television programmes8 telephone services and postal charges.
The other legislation, which protects persons with disabilities, is the Penal Code that prescribes principles of criminal liability. It makes provision for the protection of 'idiots' and 'imbeciles'9. The language used by this Act (idiots and imbeciles) is highly derogatory and does not clearly identify persons it seeks to protect – persons with mental disabilities.
Secondly, the offence of engaging in sexual intercourse with 'idiots' and 'imbeciles' amounts only to defilement, but not rape, which therefore only results in lenient punishment, unlike rape, which attracts stiffer penalties. The implication of the penal code therefore has the effect as was in the case of Republic vs. Mahinda10 where a mentally retarded girl, who was intelligent enough to know the man who had carnal knowledge with her, was nevertheless treated as defilement case despite the fact that she was able to demonstrate and intelligently say what had happened to her. It is also worthy to note that, under the Evidence Act (Cap 70), a person with a mental disability is considered incompetent if she cannot understand the nature of oath.
Government bodies dealing with disabilities
National Council for Persons with Disabilities hereinafter referred to as the Council, is established under Section 3 of the P.D.A. Section 7 states the specific functions of the Council, while Sections 22 and 24 of the same Act provides for the timelines under which these provisions are to be complied with. The functions of the Council, among others11, are to issue adjustment orders under Section 24 of the Act; which provides that any premises to which members of the public are ordinarily admitted, whether on payment of a fee or otherwise and services or amenities are ordinarily provided to members of the public. The Council also has a mandate to order any person providing such services, or manning such premises to make the premises accessible to persons with disabilities12.
The Council in its mandate of ensuring that the rights and privileges accorded to persons with disabilities under the Persons With Disabilities Act, 2003, developed a Strategic Plan 2006-2009.13
To date, the Council is doing the following:
- Formulating policies and developing measures that will guide the operations of the council for the next three years and beyond.
- Mobilizing and generating adequate resources for the councils activities .The Council was allocated seven million (Kshs 7,000,000/=) from the budget for the year 2006/2007 by the government.
- Supporting research and providing accurate information on disability, to the public. This is done through public awareness.
- Developing mechanisms to facilitate the registration of individuals, groups and organizations; as well as places and institutions providing services to persons with disabilities.
- To strengthen capacity of persons with disabilities, institutions, and individuals Persons with disabilities to influence and monitor the implementation of service delivery.
Apart from the National Council for Persons with Disabilities, there are other bodies that have been established by the government through various Acts of Parliament.
The Kenya Society for the Blind was established long before independence in 1956 with broad objectives of promoting the welfare, education, training and employment of people who are blind. This body is established under the Kenya Society for the Blind Act.14 The Society sets up a regime in prevention and alleviation of blindness. Besides giving small grants to persons with visual impairments, the Society has not done much to improve the welfare of persons with visual impairments. The Society is under management of a council.
The Kenya Institute of Special Education (K.I.S.E.)15 was established in 1986. Its role has to date, been primarily administrative. The establishing Act16 has not gone any further to give special education a legislative status. It therefore remains an administrative body without legislative backing, which cannot authoritatively pursue the needs of persons with disabilities to a large extent.
The Kenya National Commission on Human Rights was established through an Act of parliament to monitor abuse of human rights in Kenya. This Commission has taken up disability as one of the human rights concern under its mandate.
Poverty and Disability
Although poverty is a sub-global problem affecting most sectors of population, persons with disabilities experience higher incidence of poverty than others. In response to poverty eradication generally, the Government has taken the following measures:
- Launched The Poverty Reduction Strategy Paper, which is a strategic plan by the government for eradicating poverty. Under clause 2.4 of the strategy paper the poor are clustered in certain socio-economic categories that include small farmers, pastoralists in Arid and Semi-Arid Land (A.S.A.L.) areas, agricultural labourers, casual labourers, unskilled and semiskilled workers, female-headed households, and people with physical disabilities. This classification does not take into account other categories of persons with disabilities. There is, however, no specific poverty reduction provision for people with disabilities as there is for the other classifications. The plan does provide for an immediate priority to improve governance by Implement[ing] policies to combat discrimination within the public service and introduce necessary legislation to support the rights of women and the disabled (Clause 4.8)
- The Constituencies Development Fund (C.D.F. Act, Number 9) 2003 was established on the 31st of December 2003 as one of the government strategies of devolving resources for eradicating poverty at the Constituency level.17 The Act is also aimed at distributing national resources equitably throughout Kenya. The Act does not specifically make provisions for persons with disabilities.
Kenya does not generally have a welfare system to support other sectors of population who are less advantaged such as those who are unemployed, aged or have disabilities. The Persons with Disabilities Act does not make provisions for the establishment of any social welfare system. However, it makes the following provisions for the support of persons with disabilities. The Persons with Disabilities Act, 2003 (Section 32) establishes a fund known as the National Development Fund, which will be managed by a board of trustees once it comes into effect for the benefit of persons with disabilities. The fund may also be used for persons with disabilities who are poor. The fund contributes to the expenses, including capital expenses, of organizations of or for persons with disabilities and includes expenses of institutions that train persons in the care of persons with disabilities.
Without limiting the generality of Section 32 (2), the Board of Trustees may, out of the fund, pay allowances to persons with disabilities falling in the following categories and who have no other source of income:
- Persons with severe disabilities and therefore not trainable in any skills;
- Aged persons with disabilities; and
- Single parents with children with disabilities and who cannot therefore seek employment; and
- Make payments or contributions for such purposes as may be described by the Council.
Persons with disabilities can apply for tax exemptions to the Minister responsible for Finance. Under P.D.A.Section 35 (1)
Vocational Training Programmes for Persons with Disabilities
The Vocational Rehabilitation Division of the Department of Social Services under the Ministry of Gender, Sports, Culture and Social Services is responsible for 12 rural rehabilitation centers throughout the country and Nairobi’s industrial rehabilitation center, which trains persons with disabilities for jobs. In those centers, skills training courses, are offered in the following areas-carpentry, metal work, leatherwork, tailoring, traditional craft, printing, jewelry, textile manufacturing, agriculture, commercial studies, telephone operations and computer courses. The National Rehabilitation Committee of the Department of Social Services also provides for vocational rehabilitation services. It is decentralized into 49 district rehabilitation centers.
All of these activities are part of the National Rehabilitation Programme, which was established to provide persons with disabilities with the opportunity to acquire employable skills.18
The National Development Plan (2002- 2008) also has provisions that focus on strengthening vocational rehabilitation centers for people with mental and physical disabilities and affirmative action in areas of employment, vocational training and education.
The Employment Act (Cap 226, Laws of Kenya) is the overall Act of parliament that makes provisions on matters relating to employment. In so far as the employment of persons with disabilities is concerned, the Act can be interpreted as contributing to the economic marginalization of persons with disabilities by not treating the employment of persons with disabilities a subjects requiring special concern. There is no recognition in the Act that persons with disabilities face discrimination when they seek employment and that they have limited opportunities compared to those without disabilities. The Act has no provision to impose obligations on employers to employ persons with disabilities leaving them consequently to the liberalized job market, which is heavily biased against them.
Under Section 12 of the Person with Disabilities Act (2003), persons with disabilities are given the right to equal opportunities, compensation, privileges, benefits, fringe benefits, incentives or allowances depending on their qualifications. Employees are also entitled to tax exemptions on all income accruing from his/her employment.
The Council for Persons with Disabilities has an obligation under Section 13 to secure 5 % of all casual, emergency and contractual positions in employment in private and public sectors for persons with disabilities. If this is achieved it will make a substantial contribution to reducing the current marginalization of people with disabilities in the employment sector.
Section 15 of the Act outlaws discrimination by employers in employment through taking such action as not discrimination against persons with disabilities in advertising of jobs, recruitment, determination of wage levels, and provision of facilities. This Section is aimed at ensuring that persons with disabilities are given an equal footing in employment like other persons without disabilities.
Since the job market in Kenya is liberalized, Section 16 provides incentives to employers who engage the services of persons with disabilities. These employers are entitled to apply for deductions from their total table income equivalent to 25% of the total amount paid as salary and wages to employees with disability.
To ensure that persons with disabilities are well placed in all spheres of employment, Section 17 of the Act places an obligation on the Council to maintain a record of persons with disabilities who are in possession of various skills and training. Such records are to be updated regularly for the purpose of job placement.
There are both financial penalties and potential imprisonment (s. 26) provided for in the case that these provisions are not met. However to date, there are no reported cases brought before the Courts of Law under this Act.
The 2005 Draft National Policy on Persons with Disabilities indicates that The Persons with Disabilities Act,(2003) provides a legislative framework through which issues of access will be addressed. Clause 11 of the Draft National Policy provides that it is of equal importance to recognize what constitute issues of access. In Section 2.3 of the Draft (2005), titled Barriers, highlights barriers preventing persons with disabilities from attaining acceptable quality of life which includes
- Environmental (for example, buildings/ construction pose difficulties in physically accessing public buildings.
- Communication (for example, electronic or print media are generally inaccessible to people with visual, hearing, or intellectual disabilities).
Social (for example, attitudes and practices embedded in cultural beliefs, taboos, rites of passage, and religion create near insurmountable obstacles to the participation of persons with disabilities in social and
- Economic (for example, barriers preventing persons with disabilities from fully participating in employment, commerce, and credit; many persons with disabilities are living in extreme poverty).
The legislative framework of the P.D.A., sets out a number of conditions that affect issues of access for persons with disabilities in Kenya which include the following:
Under Part 3 (Section 11-28) of P.D.A., – Rights and Privileges of Persons with Disabilities, addresses issues of disability in a number of Sections. However, to most effectively carry out the legislative efforts of the P.D.A. at addressing issues of access, the provisions made should have outlined alongside their Section notation, structures on how the provisions were to be implemented.
P.D.A. Section 15 (1) provides that no employer shall discriminate against a person with disabilities in relation to the provision of facilities related to or connected with employment.
Section 21 dealing with accessibility and mobility, states that persons with disabilities are entitled to have a barrier- free environment to enable them to have access to buildings, road and other social amenities, and assistive devices and other equipment to promote their mobility and under Section 22 (1) public buildings, proprietors shall adapt them to suit persons with disabilities in such a manner as may be specified by the Council. Once the Council gives such specification, proprietors of such buildings shall be required to comply with the above provision within 5 years.19
Further, Section 23 imposes an obligation upon public service vehicles providers to adopt them to suit persons with disabilities in such manner as may be specified by the Council. A two-year time frame is provided for compliance with this Section20.
The enforcement of these Sections is effected through the Council. The council issues adjustment orders under Section 24, which provides that if the Council considers that any premises, services or amenities are inaccessible to persons with disabilities by reason of any structural, physical, administrative or other impediments to such access it may serve upon the owner of the premises or the provider of the services concerned an adjustment order.
Persons with disabilities have been facing communication barriers in terms of the amount of information they can gain access to and communicating with other persons without disabilities.
Under Section 19 of P.D.A., the Council is under obligation to work in consultation with the relevant agencies of government to make provisions in all districts for an integrated system of special and none-formal education for persons with all forms of disabilities and the establishment where possible of Braille and recorded libraries for persons with visual disabilities.
Further, under Section 39 P.D.A. provides that all television stations shall provide a sign language inset or subtitles in all newscast and educational programmes and in all programmes covering event of national significance. The P.D.A. does not clearly or expressly provide incentives to media actors or institutions to encourage them to ensure that the information they provide is accessible to people with disabilities. Despite the mandatory language of the Section, there is no penalty for non-compliance neither is there any incentives to encourage media actors to comply21.
In addition to that, Section, 40 of P.D.A., Provide that all persons providing public telephone services shall as far as possible install and maintain telephone devices or units for persons with hearing disabilities and tactile marks on telephone sets to enable persons with visual disabilities to communicate through the telephone system.
Due to societal attitudes and stigma attached to persons with disabilities, persons with disabilities have been subjected to societal discrimination This however is hoped to be rectified under Section 21, of P.D.A. dealing with accessibility and mobility provides that ;…persons with disabilities are entitled to have a barrier- free environment to enable them to have access to buildings, roads and other social amenities, and assistive devices and other equipment to promote their mobility.
P.D.A. Section 22(1) makes provisions with regard to public buildings a proprietor of public buildings shall adapt it to suit persons with disabilities in such manner as may be specified by the Council. At sub paragraph (2) it is provided that the enforcement of this section should come into force after the expiry of 5 years of the coming into effect of the section.
No person shall, on the ground of disability alone, deny a person with disability Admission into any premises to which member of the public are ordinarily admitted; or The provision of any services or amenities to which member of the public are entitled Unless such denial is motivated by a genuine concern for the safety of such a person. This is provided for in section 25(1) of the P.D.A.
The P.D.A. provides at section 28 (1) that all persons with disabilities shall be entitled, free of charge, to the use of recreational or sport facilities owned or operated by the Government during social, sporting or recreational activities.
P.D.A. Section 12 (1) provides that no person shall deny a person with a disability access to opportunities for suitable employment while Section 32 (1) establishes the National Development fund for persons with Disabilities as a permanent fund wherefrom income shall be derived for the benefit of persons with disabilities in Kenya.
Persons with disabilities who are in receipt of income are entitled to tax exemptions under section 35 (1) on such income upon application to the minister responsible for finance.
An obligation is placed upon the Electoral Commission under Section 30 to provide polling stations with necessary devices and assistive devices and services, which shall be made accessible to persons with disabilities during elections.
Incentives under the P.D.A.
The P.D.A. provides incentives to persons with disabilities and others who provide service to persons with disabilities in various Sections.
Section 35(3) provides that any material, articles and equipment, including motor vehicles that are modified or designed for the use of persons with disabilities shall be exempt from income duty, value added tax, demurrage charges, port charges and any other government levy which would in any way increase their cost to the disadvantage of person with disabilities. Therefore any facility owner who modifies any article, material including modifying motor vehicle shall be entitled to tax exemptions on the material, article or motor vehicle modified. Section 35 (1) and (2) which provides for tax exemption is still not in operation.22
In addition, Section 36 (2) provides that the Minister responsible for finance shall endeavor to provide incentives to local manufacturers of technical aids and appliances used by persons with disabilities including additional deductions for labour expenses, tax and duty exemptions on imported capital equipment, tax credits on domestic capital equipments, simplified custom procedure, exemptions from taxes and duties on raw materials and access to bonded manufacturing systems23.
In relation to credit unions, co-operative and other lending institutions Section 37 P.D.A., provides that it shall be the duty of the Minister responsible to encourage the extension by such institutions of credit to persons with disabilities. This section however does not clearly state how the minister will fulfill this duty.
Further, under Section 16 (2) P.D.A., a private employer who improves or modifies his physical facilities or avails special services in order to provide reasonable accommodation for employees with disabilities shall be entitled to apply for additional deductions from his net taxable income equivalent to fifty percent of the direct costs of the improvements, modifications or special services.
Penalties under the P.D.A.
The P.D.A. provides for penalties to those who do not comply under a number of Sections. For example, Section 26 for penalties for owners who do not offer their services to people with disabilities and Section 45 for concealment of persons with disabilities. These range from minor fines to jail sentences.
However, under the P.D.A., some Sections provide for prohibitions or impose duty without clearly stating the penalties, which would follow in case of contravention with those Sections. These Sections include Section 21, Section 22, Section 39,and Section 40 which deals with accessibility and mobility, public buildings, access to media, and access to telephone respectively. Note that Section 39 and 40 have not yet come into operation.24
Through the Ministry of Health, the government, in 1990, implemented the Community Based Rehabilitation programmes, which is based at the district level. The aim of the project is to create awareness to prevent disabilities, promote good health as well as engaging in curative care and rehabilitation activities. The Ministry of Health has a rehabilitation department, which implements this programme.25
In addition, the government of Kenya, through the Council for Persons with Disabilities, is implementing the National Disability Action Plan and activities around the African Decade of Disabled Persons (2000-2009). The Action plan includes policy guidelines on awareness raising, preventing and early intervention, physical accessibility standards and employment. Africa Rehabilitation Institute (A.R.I.) spearheads disability issues in Africa in conjunction with other regional organizations like African Union for the Blind (A.F.U.B.).
The Council for Persons with Disabilities is mandated to create public awareness. Although its strategic plan is still in its formative stages, it is hoped that it would be engaged in aggressive public awareness activities26 in the near future. The government has however not taken any actions to increase awareness of disability issues within private sector.
The government through the Ministry of Home Affairs has been trying to persuade members of the public to recognize that persons with disabilities have rights. The Minister in charge, who is also the Vice President of Kenya has been outspoken in this area where he has been urging parents to take children with disabilities to school; and also to seek medical attention for such children. But generally there are no clear strategies by the government to address this issue of awareness systematically.
Under the Persons with Disabilities Act, Section 18 prohibits discrimination in the admission of students with disabilities and mandates learning institutions to accommodate the needs of those students. Section 19 mandates the Council to work “in consultation with the relevant agencies of government to make provisions in all districts for an integrated system of special and no-formal education for persons with all forms of disabilities and the establishment where possible of Braille and recorded libraries for persons with disabilities”.
There is a provision under section 18 (3) for the establishment of special schools and institutions for the deaf, the blind and the 'mentally retarded'.
The Kenya Institute of Special Education (K.I.S.E.) - a government institution, which was established in 1986 through legal notice No. 7 of 1986 vide the provisions of section 4 of the Education Act, caters for the educational needs of disabled children and adults. Its main functions include the training of teachers and other personnel to work in the field of special education; conducting of research on special education; provision, production, and repair of special education materials and equipments; production and dissemination of information on disabilities to personnel involved in special education and the general public; and provision of educational and physiological assessment for children with disabilities27. The status of special education in the country is further enhanced by the implementation of degree courses in special education at Kenyatta University, Maseno University and Moi University.28
In January 2003, the government of Kenya declared free primary education with the intention of removing all levies that previously prevented children especially those from poor economic backgrounds from accessing education. This means that no child may be excluded from obtaining education because of his/her inability to pay the required fees. This has resulted in a large increase of the number of children accessing primary education. The government has extended this scheme to special education and schools for children with disabilities, which are currently receiving a slightly higher amount of money than other schools.29
In 2005, Special education was placed under the responsibility of a Division in the Ministry of Education resulting in more staff and resources. The Division offers the following services:
- Educational Assessment and Resource Services
- Coordination and administration of special schools and units as well as integrated programmes.
- Allocation and disbursement of funds to special institutions
- Creation of awareness.
The Ministry of Education has adopted an integration policy, which provides that children with physical and mental disabilities be placed in normal schools. Currently there are 103 integrated units in regular primary schools, in addition to a number of special schools including three high schools for persons with physical disabilities, two high schools for persons with hearing disabilities and one high school for persons with visual disabilities. There are also vocational training schools, integrated units in secondary schools and agricultural technical trade schools30. Inclusion for children with physical disabilities is being promoted. The Ministry of Education has recently agreed to give all mainstream schools Kshs.10, 000 to make their school more accessible.31
The Council is represented in the implementation of the national health programme for the express purposes of addressing the prevention of disabilities, early identification of disability; early rehabilitation of persons with disabilities; enabling persons with disabilities to receive free rehabilitation and medical services in public and privately owned health institutions; availing essential health services to persons with disabilities at affordable cost;, availing field medical personnel to local health institutions for the benefit of persons with disabilities; and prompt attendance by medical personnel to person with disabilities.
In addition the Ministry of Health has other departments that deal with persons with disabilities, which include department of occupational therapy; orthopedic technology and physiotherapy.
Persons with disabilities are entitled, under Section 29 of the P.D.A. to be assisted by persons of their choice in voting in presidential, parliamentary and civic elections. Section 30 makes polling stations accessible to persons with disabilities.
Persons with mental disabilities are presumed to lack the requisite mental capacity under the law to make legally binding decisions. For example they cannot enter into contracts, or sign legal documents to create, confer or alter any legal rights. They are not entitled in a court of law to give evidence.
The law of Succession recognizes the informed consent of persons with visual impairment when executing a will and provides for the way they would sign.