The Persons with Disabilities Act 2003 in Kenya is currently undergoing review. The new Persons with Disabilities Bill 2015 seeks to repeal and replace the Act. The review is essential in order to take into account the provisions of the Constitution of Kenya 2010 and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
The PWDs Act 2003 had substantial focus and emphasis on physical accessibility and employment of persons with disabilities. The Act may have been fairly effective in enhancement of structures that provide services to persons with disabilities, but the realization of rights in practice remains shortcoming. The Act puts a lot of emphasis on physical accessibility, and entrusts the National Council for Persons with Disabilities (NCPWD) with the mandate to give adjustment orders and issue penalties. However, accessibility in practice remains the biggest challenge that persons with physical disability face. The provisions remain unrealistic and untenable given the capacity of the Council. To enforce compliance, the NCPWD largely depends on information and advocacy, but ultimately it depends on organizations and institutions on whether they do implement recommendations.
The review of the Persons with Disabilities Act 2003 comes against the backdrop of a myriad of increased opportunities and rights as enshrined in the Constitution of Kenya 2010. The Constitution under the Bill of Rights recognizes in Article 54 that persons with disabilities are entitled to be treated with dignity and respect and not to be referred to in a manner that is demeaning, to access educational institutions and facilities, to reasonable access to all places, public transport and information, to use sign language, Braille or other appropriate means of communication and to access materials and devices. The same article also provides that the State shall ensure the progressive implementation of a quote system where at least five percent of the members of the public in elective and appointive bodies are persons with disabilities. Article 55 the Constitution of Kenya 2010 requires that the State to take measures, including affirmative action programmes, to ensure that youth, persons with disabilities, minorities and marginalized groups have access to relevant education and training, opportunities to associate, be represented and participate in political, social, economic and other spheres of life; access employment; and to be protected from harmful cultural practices and exploitation. The Constitution is also clear on non-discrimination and representation of persons with disabilities in elective positions.
Some of the key areas that are included in the proposed bill include:
Expansion of affirmative action measures
The recognition that although all persons with disabilities deserve affirmative action measures, there are still specific groups that suffer double marginalization. Various groups have been identified for affirmative action measures including girls and women, children, youth, minorities and elderly persons with disability.
Rights of persons with disabilities and citizenship
Many persons with disabilities continue to suffered overt and covert discrimination on the basis of their disability. Many parents with children with disabilities, for example have not even registered their child, once they realized that he/she has a disability. Additionally there are many adults with disability who have not been registered to obtain identity cards. The proposed changes require that children and persons with disability are pushed to apply for relevant documentation to support their nationality, including the right to a name (at birth), and legal identification documents for immigration and liberty of movement purposes.
The right to legal capacity
The Bill introduces the enjoyment of legal capacity as a right. There has been a long debate on the issue of legal capacity in Kenya for over a decade. It proposes equality before the law, and equal protection and benefit of the law. Some of the enjoyments expected from this is the right to inherit, control of a persons’ financial affairs, and having equal access to financial services including loans and credit facilities. It also cushions against arbitrary deprivation of ownership of property by persons with disabilities.
Participation in public and political life
The proposed law has a whole section that promotes participation in public, civil and political life. It promotes for the nurturing of an environment that allows persons with disabilities to participate in public life. Many barriers impede the participation of persons with disabilities, ranging from the physical environment, access to education as well as cultural attitudes. The proposals give meaning to provisions in Articles 90 and 97 of the Constitution of Kenya 2010, which require non –discrimination on the basis of disability. Among other things, the Bill proposes accessibility of polling stations, inclusion in political parties as well as inclusion in the electoral system and other public bodies and associations.
Expansion of economic and social rights
The proposed Bill has numerous provisions relating to economic and social rights. These include the right to education, to health, formal employment, accessibility, mobility, information as well as sports and recreation. Access to education, health and employment, remain a key challenge for many persons with disabilities in Kenya.
Access to justice
The proposed Bill is progressive in realizing that persons with disabilities need access to fair justice system and that changes are required to the criminal justice system. In this respect, the Bill requires the provision of disability and age-appropriate accommodations within the criminal justice system. This is to enhance the role of persons with disabilities as direct or indirect participants in the legal system.
This Bill provides a legal framework for the decentralization of the Council of Persons with Disabilities. There are attempts to decentralize the Council, but this is based on the efforts and goodwill of the office holders and till now has not been a requirement. The Council is also expected to conduct research and provide relevant data and information on the rehabilitation and training offered to persons with disabilities, alongside registration of persons with disabilities, advising government on matters of disability as well as supporting persons with disability to acquire assistive devices. The bill also proposes a reduction in the number of members of the Council from about 30 persons to about 10. The representation of many line ministries and organizations of persons with disabilities as mandated in the PWD Act 2003 unfortunately led to the establishment of a bloated board so the new Bill re-defines the membership and caps it at about 10 for greater efficiency.