Preface, Acknowledgements and Executive Summary
Preface
This State of Disabled People’s Rights in Kenya (2007) Report emanates from two distinct but complementary project initiatives: 'Blind and partially Sighted persons Using Human Rights instruments as a Tool for Achieving Equality and Development in the Society', conceived by the African Union of the Blind (A.F.U.B.) and the Disability Rights Promotion International (D.R.P.I.) project.
The thrust of the A.F.U.B. project is to increase awareness and knowledge on national disability legislation and the International Convention on the Rights of Persons with Disabilities among national human rights commissions and national member organizations of blind and partially sighted persons in Africa in line with the World Blind Union (W.B.U.) human rights agenda- mission.
On the other hand, the aim of the D.R.P.I. project is to develop a comprehensive and sustainable global system for monitoring the human rights situation of people with disabilities using a cross-disability and holistic approach. The monitoring and training tools and methods used in the Kenya study are also being piloted by D.R.P.I. in several other countries around the world including Australia, Cameroon, Canada, Croatia, India and Sweden. The D.R.P.I. project was established as a direct consequence of the recommendations made by the international seminar on human rights and disability held in Almåsa, Sweden in 2000 at which representatives of all of the major international disability organizations, human rights experts and UN representatives participated.
It is hoped that in this report, disabled people through their organizations (D.P.O.’s) in Kenya will find scientific information that they need to enrich their advocacy capacity. It is also envisaged that this dossier will inform national policy development processes, generate meaningful debate and reflections on practices, methodologies and tools for promoting and protecting human dignity and rights.
Similarly, this State of Disabled People’s Rights in Kenya (2007) Report should form the basis for scaling further engagement between disability rights movement, allies and like minded development partners. The information and ideas presented in this document will continue to build on the growing collection of information resources.
Acknowledgements
A lot of work, energy, enthusiasm and time were expended by various individuals and institutions in making this groundbreaking study a reality.
African Union of the Blind (A.F.U.B.) and its local implementing partners: Kenya Union of the Blind (K.U.B.) and Center for Disability Rights Education and Advocacy (C.R.E.A.D.) would like to single out Disability Rights Promotion International (D.R.P.I.) for their technical expertise in shaping up the whole study. Professor Marcia Rioux, D.R.P.I. Co-Director, deserves special mention for heading the study. In the course of the study, she made numerous trips to Nairobi where she spent sleepless nights poring through heaps of documents to ensure that all the aspects of the study were in harmony.
Heartfelt gratitude goes to the Swedish Association of the Visually Impaired (S.R.F.) who together with the Swedish International Development Cooperation Agency (S.I.D.A.) provided the financial support for the study. The study greatly benefited from programmatic planning expertise of Erik Staff, S.R.F.’s International Programme’s coordinator. In the course of the Project, Erik ensured that he was available for consultation whenever the need arose and managed to fit these consultations in between flights in his busy schedule.
We are dearly indebted to Dr. Kithure Kindiki of the University of Nairobi, School of Law who sacrificed his time to analyze all the raw data from the field.
Much appreciation is extended to Dr. Elly Macha, A.F.U.B. Executive Director and Mr. Cornelius Ojangole, A.F.U.B. Disability and Human Rights project Coordinator, who worked hard to provide exceptional leadership during the study and ensured that all logistics and necessary materials and information were availed on time.
We are not oblivious of the exceptional work done by human rights monitors from both K.U.B. and C.R.E.A.D. This study would not have been successful without them.
Undergraduate students of law from both Universities of Nairobi and Moi were very helpful in this study. Their interest in understanding and identifying the intersection between disability, human rights and law was astounding.
There are many other people who played equally critical roles, either as members of the study’s management team, task force and network. Although we may not be able to mention them by name due to the limitation of space, we appreciate their every effort to make this work a success. To everyone that was involved in the study in any way we say Ahsante Sana.
Executive Summary
Conceptual framework and scope
The total number of people with disabilities in Kenya is not substantiated but there are estimates that it could well be 3, 280, 000 Kenyans which would reflect the global average of 10% of all countries’ populations. According to the World Bank, 20% of the world’s poor are disabled people with more than 60% of them living in the developing world. Notably, 56% of the Kenyan population lives below the poverty line. This definitely has a bearing on the living conditions of the disabled persons in the country. This study attempted to investigate the status of the rights of disabled people in Kenya at two levels: systemic and individual.
Sampling and study sites
The study was conducted in three main geographical regions: Rift Valley, Nairobi and Nyanza. The poverty level in the three provinces is 52.6 %. The three provinces also have a high concentration of disabled people as a result of being home to schools and vocational centers for persons with disabilities. One hundred (100) interviews were conducted across the study sites using the snowball sampling technique but 95 were used in the study.
Systemic focus findings
The systemic focus of the study was aimed at analyzing national and regional legislation on disability, government of Kenya programmes and policy on disability and case law on disability. The study findings show that Kenya is a party to most of the major international human rights instruments and has signed but not yet ratified the international Convention on the Rights of Persons with Disabilities. At the national level, the government of Kenya has enacted the Persons with Disabilities Act (P.D.A.) 2003 which creates the National Council of Persons with Disabilities as a statutory organ to oversee the welfare of disabled persons.
There is no constitutional definition of disability in Kenyan law. However, there exists a statutory definition under the PDA, which defines disability in Section 2 as: 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 study also found out that the Constitution of Kenya has provisions guaranteeing the human rights and liberties of citizens (Chapter 5). Since these are rights that apply to all citizens, persons with disabilities are expected to enjoy these rights equally with the rest of the society. Though the Constitution of Kenya outlaws discrimination on various grounds such as race, tribe and colour, it does not refer to discrimination on the basis of disability. To date, in cases where disability discrimination has occurred, anti-discrimination laws have not been enforced. This may be because the P.D.A. is a new act and has not yet been subject to interpretation in any courts of law in Kenya.
The study also found that the law itself is discriminatory to persons with disabilities in certain cases. For example, when prescribing principles of criminal liability, the Penal Code provides for the protection of 'idiots' and 'imbeciles'. This language is highly derogatory and does not even clearly identify the persons it seeks to protect, that is, persons with mental disabilities.
In addition to the National Council for Persons with Disabilities, there are other bodies with a disability rights mandate that have been established by the Kenyan government through various Acts of Parliament. One of these, the Kenya National Commission on Human Rights, monitors abuses of human rights in Kenya. The study’s findings indicate that the Commission has taken up disability as one of the human rights concerns under its mandate.
The study also found that Kenya does not have a welfare system to support sectors of the population who are less advantaged such as those who are unemployed, aged or have disabilities. However, the study found out that the Kenyan government has several programmes to cater for the welfare of disabled persons. For instance, in 1990, the Ministry of Health implemented Community Based Rehabilitation (C.B.R.) programmes at the district level. The aim of the programmes is to create awareness to prevent disabilities, promote good health as well as engaging in curative care and rehabilitation activities. In addition, the Ministry of Education has adopted an integration policy, which provides that children with physical and mental disabilities be placed in normal schools.
Individual focus findings
The individual focus of the study was aimed at investigating the human rights situation of persons with disabilities living in the three monitoring sites in the last five years. Thus, the study investigated how the barriers and obstacles faced by people with disabilities affected their rights, by examining in particular four key human rights principles: dignity (perceptions of self-worth), autonomy (ability to make choices and decisions on issues that affect one’s own life), equality (having disability differences respected and disadvantages addressed and being able to participate fully on equal terms), and inclusion (being recognized and valued as equal participants and having needs understood as integral to the social and economic order and not identified as special needs).
Approximately 74% of people with disabilities in this study reported they were denied the right to make decisions on issues affecting their own lives.
Results also indicated that more than 86% of the respondents reported being treated unequally by people who do not have disabilities. In some cases, they claimed that their own family members had exploited them. Furthermore, 80% claimed having experienced segregation, isolation and lack of support for their needs on the grounds of disability.
Approximately 54% of the respondents recounted that, in one circumstance or another; they had been given a negative nickname based on their disability. Labeling of people with disabilities seemed to be a very common experience for people with disabilities in Kenya. In about 72% of the interviews, abuse and discrimination seemed to emerge from broad social factors and contexts. That is, the discrimination that many people with disabilities faced appeared to have social roots, and originated in the deep, entrenched stereotypes prevailing in Kenyan society that portray people with disabilities as burdens, useless, good for nothing, and curses. However, the study found that about 32% of persons with disabilities showed remarkable resilience and strength, resisting oppression and struggling for their rights in spite of adversity and hostility.
Notably, data from this study indicates that in terms of barriers experienced, people with physical impairments and blindness are the most exposed to discriminatory attitudes, abuse and violence, and deaf as well as blind people are more likely to experience barriers in terms of access – results that are statistically significant and therefore are possible to generalize to the whole population. Similarly, differences found between disabled men and women in the sample regarding access to the human rights’ principle of dignity – with disabled women less likely to experience a sense of self-dignity than men – seem to reflect population-wide inequalities.
Conclusions and Recommendation
Based on the findings of the study, there is need to promote equal enjoyment of human rights for disabled persons and to respond to their economic, socio-cultural and political needs through various mechanisms. These include the mainstreaming of disabled people rights concerns in public programmes, promoting the equal participation of disabled people and development of national legislation and policy, legal support and arbitration, and advocacy.
Dr. Elly Macha,
Executive Director
A.F.U.B.
Martin Kieti
Executive Officer
K.U.B.
Mike Ngunyi
Executive Director
C.R.E.A.D.