DISABILITY AND THE LAW

March 2014

Disability and the Law : Assessing the Rights of Persons with Disabilities to Employment in Kenya. By John Gichuhi*

1. Introduction. Every person is equal before the law and has the right to equal protection and equal benefit of the law, including persons with disabilities.1 Persons with disabilities are oftenly excluded from many sectors. Exclusion from the labour market means primarily an inability to earn the means of independent living. Inclusion in the market, though not a panacea, is foundational to meaningful participation in all spheres of life.2 Equal and effective access to the market leads to productive lives, independent living and helps ensure the maintenance and elevation of selfesteem and human dignity. One arbitrary obstacle is continuing prejudice in the minds of potential employers against the abilities of persons with disabilities. They are prejudiced on the basis of their disabilities and not rationally on the basis of their abilities. 3 Attitudinal problems and stereotypes hugely impact negatively on the progress of persons with disabilities. The challenge is to see disability as a normal characteristic that only complicates but does not ruin human existence.4 With development of modernity, persons with disabilities came to be viewed as economic non-participants in the capitalist economies and as objects of pity and charity rather than as individuals capable of active participation in society.5

Improving accessibility of persons with disabilities to education and training institutions, transport facilities, public buildings e.t.c. has a positive effect on the labour market. The markets are social artefacts that must be managed fairly. The problem of exclusion requires adoption of anti-discrimination laws and affirmative action measures and their strategic implementation and planning. The judiciary plays a key role in enforcement of the rights of persons with disabilities.

* 1

The Writer is a Law Student in Moi University, Kenya. You can reach him via academicresearch647@gmail.com. Constitution of Kenya, Art. 27(1). 2 Gerald Quinn et al, Disability Discrimination Law in the United States, Australia and Canada (1993), pp. 1-2. 3 Ibid, p. 3. 4 Ibid, p. 5. 5 Nicholas Bamforth et al, Discrimination Law, Theory and Context (2008), p. 975.

Besides constitutional protection of the rights of persons with disabilities, various laws have been enacted in Kenya over the years. These laws are meant to help afford legal protection of persons with disabilities and put them, to the extent possible, at par with others without disabilities. Despite the availability of many such provisions in these laws, persons with disabilities have not fully realised the guaranteed rights. This paper looks at the extent to which Kenyan laws protect the rights of persons with disabilities to be employed in both the public and private sectors.

1.1 Defining disability Disability has been variously defined by reference to the nature of the particular disability being defined or its cause or its consequences. Disability takes various forms and degrees.6 The Constitution defines disability as, any physical, sensory, mental, 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 individuals ability to carry out ordinary day-today activities7

The UN Convention on Persons with Disabilities provides that persons with disabilities include those who 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.8 Under the Persons with Disabilities Act, 2003, disability means physical, sensory, mental or other impairments, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic or environmental participation.9 The Employment Act defines disability as, a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on a persons social and economic participation.10

Jim Fitzgerald, The Road to Equality? The Right to Equality in Kenyas New Constitution (2010) 5 The Equal Rights Review 18. 7 Supra n 1, Art. 260. 8 United Nations Convention on the Rights of Persons with Disabilities, Art. 1 9 Persons With Disabilities Act, s 2 10 Employment Act, s 2

The range of impairments which are classified by the Constitution as forms of disability compares favourably to that presented in the UN Convention on the Rights of Persons with Disabilities, though the reference to ability to conduct ordinary activities arguably results in a narrower definition than that provided by the Convention, which refers to full and effective participation on an equal basis with others11

1.2 Constitutional Protection of the Rights of Persons with Disabilities to Employment Art. 27(3) of the Constitution guarantees equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Art. 27(4) and (5) prohibits discrimination by the state and/or any person, directly or indirectly, against any person on any ground, inter alia disability. This includes discrimination in employment and labour relations. Art. 27(6) requires the State to take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. Persons with disabilities have historically been marginalized and addressing their plight, including economic empowerment, is vital.

The previous Constitution did not recognise disability as a ground of discrimination. It contained some provisions that could be construed as discriminatory to persons with disabilities e.g. Section 12 provided 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. Section 34 (c) provided that for a person to qualify as a member of national assembly, he or she must inter alia, be able to speak and unless incapacitated by blindness or other physical cause, to read the Swahili and English language.

Art. 10 (1)(b) of the Constitution requires State organs, State officers, public officers and all person to promote human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized. This includes protection of the rights of persons with disabilities especially those working or would wish to work in the public sector. Under Article 232 of the Constitution, the values and principles of public service include affording adequate and equal opportunities for appointment, training and advancement, at all
11

Supra n 6

levels of public service of persons with disabilities, among others. Art. 54 of the Constitution recognizes the concept of reasonable accommodation by providing that a person with any disability is entitled to inter alia; access educational institutions and facilities for persons with disabilities to be integrated into society to the extent compatible with the interests of the person and to reasonable access to all places, public transport and information. This is important for persons with disabilities to be integrated into society, including in employment relations.

The text of the Constitution is couched in specific terms designed to minimize barriers to equalization of opportunities in all aspects of social-cultural, economic and political life. Article 54 provides inter alia that a person with disabilities is entitled to be treated with dignity and respect. The Constitution gives opportunity to persons with disabilities to work in the political sphere by requiring their representation in The National Assembly and the Senate. 12 Art. 54(2) requires the state to ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities. Art. 100(b) requires Parliament to enact legislation to promote the representation in Parliament. Article 41(1) of the Constitution guarantees workers, including those with disabilities, various rights e.g. fair labour practices and remuneration, reasonable working conditions etc.

On infringement of these rights, the Constitution guarantees the right to access to justice for all persons, including persons with disabilities under Article 48. Article 159 requires justice to be done to all, irrespective of status, that justice shall not to be delayed and that justice should be administered without undue regard to procedural technicalities. Article 22(1) of the Constitution recognizes the right of every person, including persons with disabilities, to institute court proceedings claiming that a right or fundamental freedom has been denied, violated or infringed, or is threatened. It further allows Court proceedings to be instituted by a person acting as a member of, or in the interest of, a group or class of persons, including persons with disabilities. Art. 20(4) (a) requires Courts to promote the values that underlie an open and democratic society based on human dignity which includes, among others, the principle of equality. Further, Article 21(3) obligates all state organs and all public officers to address the needs of vulnerable groups
12Supra

n 1, Art. 97(1)(c) and Art. 98(1)(d) respectively.

within society, including persons with disabilities. Article 50 of the Constitution guarantees the right to a fair trial and public hearing for all persons, including persons with disabilities. Article 50(m) guarantees the right to an interpreter without payment. This is in line with Article 54 which guarantees a person with disabilities the right to use any appropriate means of communication; and to access materials and devices to overcome constraints arising from the persons disability.

1.3 Legislation (a) Persons with Disabilities Act, No. 14 of 2003 The main objectives of the Act include provision for the rights and rehabilitation of persons with disabilities; to achieve equalization of opportunities for persons with disabilities. Sec. 15 prohibits discrimination by employers against persons with disabilities. Sec. 38 requires the Attorney General to make regulations for the provision of free legal services for persons with disabilities. Sec. 44 also requires the relevant Minister to make regulations specifying and describing the nature of acts of discrimination.

Reasonable accommodation of persons with disabilities is addressed under Section 15(5) which provides that an employer shall provide such facilities and effect such modifications reasonably required to accommodate persons with disabilities. Section 16(2) provides incentives to a private employer who improves or modifies his physical facilities or avails special services in order to provide reasonable accommodation for employees with disabilities. Sec. 21 provides for the rights of persons with disability to accessibility and mobility and provides that persons with disabilities are entitled to a barrier-free and disability-friendly environment to enable them to have access to buildings, roads and other social amenities, and assistive devices and other equipment to promote their mobility. Sec. 22(1) requires proprietors of buildings to modify and adapt their buildings. Sec. 24 mandates the NCPWD to serve Adjustment Order upon the owner of the premises or the provider of the services, or amenities concerned an adjustment order if it considers that any premises, services or amenities are inaccessible to persons with disabilities. Sec. 13 of the Act creates a 5% reservation of all casual, emergency and contractual positions in employment in the public and private sectors for persons with disabilities.

Sec. 7(1) lists the functions of the Council to include; to formulating and developing measures and policies designed to achieve equal opportunities for persons with disabilities by ensuring to the maximum extent possible that they obtain education and employment; putting into operation schemes and projects for self-employment or regular or sheltered employment for the generation of income by persons with disabilities; and encourage and secure the establishment of vocational rehabilitation centres and other institutions and other services for the welfare, rehabilitation and employment of persons with disabilities.

Sec. 12 provides that no person shall deny a person with a disability access to opportunities for suitable employment. A qualified employee with a disability shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as qualified able-bodied employees. An employee with a disability shall be entitled to exemption from tax on all income accruing from his employment. Sec. 17 requires the Council to establish and maintain a record of persons with disabilities who are in possession of various levels of skills and training and shall update such records regularly for the purposes of job placement.

1.3.1 Limitations of the Act. The Persons with Disabilities Act does not make provisions for the establishment of any social welfare system. It is unfortunate that 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.13 However, under Section 32 it establishes the National Development Fund for the benefit of persons with disabilities.

There seems to be a very high cost associated with the implementation of the Act. It has serious fiscal implications both for the government and for the private sector.14 The equilibrium desired by the Act on appointment of NCPWD members is not met but has instead rekindled factional distrust among the members of the disabilities movement in Kenya.15 The Act is too apt in

giving discretionary powers where mandatory powers seemed the only viable alternative. The
13 14

African Union of the Blind (AFUB)et al, State of Disabled Peoples Rights in Kenya(2007) Report, p. 38 Ibid, p. 38 15 Ibid

use of such phrases as to the maximum of its resources or suitable creates room for a lot of discretion on whoever is bent on abusing the Act. These are detrimental to the entire Act and the users.16 Enforcement of some of the provisions is extremely complex and time

consuming. Sections 11 to 17 provide for rights which encompass the social, economic and political wellbeing of citizens. Since these rights are designed to be realized progressively, it will be a long time before we start to savour their benefits.17

The biggest gap facing the implementation of the Act is lack of a clear machinery to ensure enforcement. Lack of awareness by the disabled makes it very difficult for them to understand their rights and seek support at the right time. Lack of adequate special education facilities relevant to the disabled to equip them with skills to enable them access gainful employment is a challenge. Stigma amongst the parents of the young disabled and among persons with disabilities make them end up hiding them instead of taking them to school to acquire necessary skills some resign from jobs because of this problem. There is lack of proper awareness to the general public, employers, business fraternity on the provisions of the Act. There has been no clear way of monitoring progress.18 This Act has made minimal impact over the years.

(b) Employment Act, No. 11 of 2007 The Act prohibits discrimination on grounds of disability.19 Section 5(3) provides that no employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee on among other grounds, disability. Sections 5(1) and (2) of the Act imposes a duty on the Minister, labour officers, and Industrial Court to promote and guarantee equality of opportunity in employment. Section 46(g) provides that disability does not constitute a fair reason for dismissal or for the imposition of a disciplinary penalty on an employee.

However, 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 subject requiring
Ibid Ibid 18 Federation of Kenya Employers, Towards Implementing The Persons with Disabilities Act 2003: Access to Employment, 2012, pp.11-15, < www.fke-kenya.org.> at 15 November 2013. 19Supra n 10, s 5.
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special concern. It fails to recognize that that they face discrimination when they seek employment and that they have limited opportunities compared to those without disabilities. It 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. 20 Besides these provisions in the Act nothing much has been undertaken in Kenya to deal with employment of persons with disabilities.

(c) Work Injury Benefits Act Under Sec. 28(1), an employee who suffers temporary total disablement is entitled to receive a periodic payment equivalent to his/her earnings and under Sec. 29(1) such right expires upon termination of the disablement or if the employer resumes work or is awarded compensation for permanent disability. Under Sec 32, an employee who receives permanent disablement while being trained on a trade, profession or occupation is entitled to compensation. Sec 30 provides for compensation for permanent disablement. These provisions are further guarantees the protection of persons with disabilities as a result of work-related injuries.

(d) Occupational Safety And Health Act , No. 15 of 2007 It provides for the safety, health and welfare of workers and all persons lawfully present at workplace. The Act is important because if it is fully implemented, development of disability case from the workplace could be minimal. Safety precautions and inspection of workplaces is important in reduction of work-related injuries.

(e) Income Tax Act Sec 46 prescribes how the rate of income tax should be calculated but does not give preferential treatment for persons with disabilities hence the possibility of them being taxed at the same rate with other income earners. However, Sec. 32 recognises that an income tax relief should be extended to income taxpayers who have children with physical and mental disabilities. The only limitation to this is that it defines a child as any person below the age of 18 years. Disability

20

Supra n 13, p. 23.

renders someone incapable of earning livelihood and it does not matter whether one is below or above 18 years. (f) National Social Security Fund Act21 Under Sec. 22, a member of the Fund is entitled to invalidity benefit if either he is subject to such physical or mental disability as to be suffering from permanent total incapacity or partial incapacity of permanent nature, and has either attained the age of fifty years or is unable by reason of such disability to earn a reasonable livelihood. This provision is important for provision of relief to former employees and /or contributors to the Fund who are rendered incapable of continuing working by their disabilities or has retired.

(g) Kenya Society for the Blind Act Sec. 4 provides for one of the objects of the Society as promotion of the welfare, education, training and employment of the blind.

(h) The Persons with Disabilities (Access to Employment, Services and Facilities) Regulations, 2009 The regulations seek to promote accessibility to among others, education and employment. 22 Regulation 14 requires that facilities in public buildings should provide for suitable ramps.

1.4 Case Law There has been almost negligible case law on anti-discrimination emanating from specific antidiscrimination law and as such the courts have not established clear standards for the determination of such cases.23 In one case, the High Court established that it is a breach of the employment right to compel a person with disability to retire at the age of 55 years.24 There is need for increased strategic litigation and judicial activism to enhance antidiscrimination case law in Kenya. Anti-discrimination provisions laws provide a pedestal upon

21 22

Cap 258 Laws of Kenya. Regulations 9, 10 and 11. 23 Kenya Human Rights Commission, Towards Equality and Anti-Discrimination: An Overview of International and Domestic Law on Anti-Discrimination in Kenya, 25th January 2010, P.14. 24 Fredrick Gitau v AG & 2 Others, Nairobi High Court Petition No. 127 of 2011(Unreported).

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which precedents may be laid and within which clear standards and burden of proof can be developed.25

1.5 Programmes, Policies and other Measures. The National Disability Policy facilitates the development and implementation of legislation on equity in employment to protect job seekers and workers with disabilities against discrimination.26 In 2009, Government Ministries were required to formulate Disability Mainstreaming Policies as part of their performance contracts.27 The NCPWD undertakes job placements for persons with disabilities.28 Private sector institutions that have employed persons with disabilities include Safaricom and Synovate Research while K-Rep Bank provides loans to groups of person with disabilities. The retirement age for persons with disabilities in public service was pegged at 60 years while that for other public employees was 55 years. 29 The Government has established 12 Vocational Rehabilitation Centers that offer vocational training to empower persons with disabilities to enable them enter into formal, informal or self employment.30 The Government introduced compulsory National Health Insurance Fund cover that is a must for all the persons with disability in employment. 31 The Government has provided further incentives for all persons with disabilities in formal employment by providing tax exemptions to those earning below KES 150,000.32

Training on disability mainstreaming has taken place in some organizations e.g. Kenya Airways, Bamburi Cement etc. A few organizations have put in place an affirmative action to help absorb persons with disabilities into jobs. Some organizations now emphasize consideration for persons with disability in their advertisement should they meet minimum requirements.33

25

Supra n 23, p. 15 National Report, Kenyas Initial Report Submitted Under Article 35(1) of The United Nations Convention on the Rights of Persons with Disabilities, 31st August 2011, p. 20. 27 Ibid p. 21 28 Ibid p. 27 29 Ibid 30Ibid p. 28 31 Ibid 32 This was provided for under the Kenya Subsidiary Legislation, 2010 through the Kenya Gazette Supplement No.16 Legislative Supplement No. 11 of 26 th March 2010 which exempts them from paying income tax. 33 Supra n 18, pp. 10-12.
26

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1.6 International Perspective. The Convention on the Rights of People with Disabilities34 provides under Art. 1 the purpose of the Convention as to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Non-discrimination constitutes one of the general principles of the convention.35

State parties

should ensure the full realization of all human rights and freedoms for all persons with disabilities without discrimination on the basis of disability36 and to modify or abolish existing law, regulations, customs and practices that constitute discrimination.37 They should recognise the right to be equal before the law and to equal protection of the law for all individuals.38

Art. 27 requires States Parties to recognize the right of persons with disabilities to work, on an equal basis with others. This includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible. Art. 8(2)(iii) require states to promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market.

Many countries have adopted policies promoting the rights of people with disabilities to full and equal participation in society. This has often been in response to the ILO Convention No. 159 concerning Vocational Rehabilitation and Employment of Disabled Persons (1983). Policy on employment opportunities for people with disabilities is frequently supported by legislation and implementation strategies as essential tools to promote integration and social inclusion.39 Some countries in Africa have made progress in introducing disability-related legislation, but many of these laws have not yet been implemented. In other African countries, existing national laws

34 35

UN Doc CRPD/C/2/3 (2009). Supra n 8, Art. 3 (b). 36 Ibid, Art. 4(1). 37 Ibid, Art. 4(1)(b). 38 Ibid, Art. 12. 39 John Kabutha Mugo et al, Testing youth transitions in kenya: are young people with disabilities falling through the Cracks?, working paper no. 34(2010), p. 1.

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need to be reviewed in order to achieve equalization of opportunities for persons with disabilities.40

1.7 Conclusion There has been a slow but noticeable improvement in public perception towards and treatment of persons with disabilities even in employment, as persons with disabilities are increasingly holding more positions of responsibility in society. However, a lot still needs to be done to ensure that all Kenyans recognize and uphold the rights of persons with disabilities and develop initiatives to address disability issues through mainstreaming.41 Due to lack of awareness on the rights of persons with disabilities amongst the public, employers, and persons with disabilities themselves, their plight has not been adequately addressed. Proper implementation strategies are lacking which raises great concern. The effectiveness of laws in improving employment opportunities for disabled persons whether they are vocational rehabilitation laws, quota legislation or anti-discrimination legislation is central, not only in terms of the economic rights of persons with disabilities, but also their broader social and political rights, which are closely linked to economic empowerment.42 1.8 Recommendations 1. The government should develop and implement a disability training curriculum for civil servants to ensure that government agencies and employers respond to disability issues promptly and intelligently and in ways that respects the rights and dignity of persons with disabilities.43 2. The Persons with Disabilities Act needs to be amended so that it is no longer anchored on the Standard Rules of Equalisation of Opportunities for Persons with Disabilities but on current international and regional human rights conventions. The penalties in the Act should be more severe in order to prevent disability discrimination.44 3. Persons with disabilities should have access to the court process in order to challenge discrimination. This could be done through a disability legal aid system with a national network of disability paralegals to provide legal advice and to act as arbitrators. In cases
Ibid Supra n 26, p. 18. 42 Supra n 39, p. 9. 43 Supra n 13, p. 89. 44 Ibid, p. 38
40 41

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where abuse has occurred it is important that referral mechanisms be developed to direct people to support services and recovery centres in order to receive counselling for post violation trauma.45 4. All law and policy should reflect the principles of disability as a human rights issue.46 5. There should be clear and independent structures to monitor implementation and enforce non- implementation. Creation of strategic partnerships and networks can add value to the implementation process. Implementation of the laws should be factored in the performance management of all organizations with clear responsibilities and resource allocation as well as clear targets.47 6. Clear strategies on awareness creation by all relevant parties should be put in place to create the required level of awareness.48 7. Affirmative action measures should be adopted by all institutions of learning and training to enable persons with disabilities gain relevant knowledge and skills for gainful employment. 8. Architectural design of public buildings should be in a way that allows access to persons with disabilities. This will enable them access work places, interviews, training e.t.c.

45 46

Ibid, p. 90 Ibid 47 Supra n 18, p. 17 48 Ibid p. 16

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