Section 3: Overview of the Disability Rights Movement in Kenya
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Background
Both experiential and documentary evidence indicate that the Disability Movement in Kenya is still in an early transition from medical rehabilitation to the human rights model.
Charity
As the rest of the world, the earliest efforts in addressing the issues of people with disabilities were structured within the charity model in form of homes or centers for the people with disabilities. The relics of this model can be found in various district of the country, where homes for people with disabilities still exist.
Kenya’s earliest recorded initiative for organized care and provision of Salvation Army Church established a programme to rehabilitate blinded men during the Second World War. The programme later became the country’s first school for the blind marking the commencement of provision of formal education for blind children in Kenya and East Africa. In 1960 the church opened a rehabilitation centre for children with physical disabilities in Thika about 50 kilometers from Nairobi. The centre later transformed into the first school for the physically handicapped in the country. The mainstream churches; Catholic, Presbyterian, Anglican and Methodist followed this example by establishing schools and institutions for children with visual, hearing and physical disabilities in various parts of the country where they had their missions.
Rehabilitation
With the gradual departure of missionaries, the Government started providing teachers and financial grants to these service providers eventually taking over the management of the various institutions which they had initiated.
Through acts of parliament, the government established various institutions to give specialized services to people with disabilities. The first institution to be created was the Association for the Physically Disabled of Kenya in 1953 by colonial Legislative Council (Legco). Others that were created by the government through a legislative framework include Kenya Society for the Blind, and the Kenya Society for Deaf Children.
Apart from the government created institutions, a number of non-governmental organizations have been offering rehabilitation and specialized medical services to people with disabilities. The oldest N.G.O. in rehabilitation services in Kenya is Christenblindenmission (C.B.M.) which provides rehabilitation services to the blind and partially sighted. Others are sight savers, Sense International, Leornard Chesire Foundation, Handicap International.
People with disabilities and Parents organizations (D.P.O.s)
Although Kenya Union of the Blind is the oldest D.P.O., the real involvement of people with disabilities in the fight for inclusion in the society can be traced to 1964. In that year a group of people with disabilities spent a whole night camping outside state house in Nairobi, the now official residence of the president. The group was seeking audience with the audience with the first prime minister who later that year the first president of Kenya, Mzee Jomo Kenyatta.
The group of people with disabilities wanted Kenyatta to intervene in their circumstances of extreme exclusion from the society. In answer to the disabled community, that same year Kenyatta created the Ominde Commission to look into the situation of people with disabilities and advice him and the government appropriately.
Over the next two decades, disability activism went into a lull up to the late 1980s when a number of national and community based D.P.O.s began advocacy work. Incidentally, the major spurt of disability activism was in tandem with the global phenomenon where national people with disabilities organizations were forming to promote independent living.
These D.P.O.s formed and managed by persons with disabilities to advocate and to pressurize for services and participation in national development. They create awareness; act as representatives of persons with disabilities and press for service provisions.
The oldest D.P.O. is K.U.B. established in 1959. Others who have been in operation for sometimes include: The Kenya National Association of the Deaf (K.N.A.D.) (1987) and the Kenya Society of the Physically Handicapped (K.S.P.H.) (1986).
Over time parent’s organization have also developed as a strong advocacy voice especially on the rights of people with intellectual disabilities. The oldest of parent’s organizations is the Kenya Association for Intellectually Handicapped. Other organizations of parents include the Autism Society of Kenya and the Kenya Society for the Mentally Handicapped.
In 1989, the National organization and one hundred and thirty community based D.P.O.s came together to form United Disabled Persons of Kenya (U.D.P.K.).
U.D.P.K. became an umbrella body with a strong voice and negotiation capacity to champion disability advocacy work. In its sixteen years of existence, U.D.P.K. has worked very closely with the Government in policy review, planning and evaluation. It has also been critical for awareness rising for self advocacy among people with disabilities. With its wide network, the organization mobilizes people with disabilities and other stakeholders for events such as the UN International Day for persons with disabilities. U.D.P.K. was responsible for the nomination of Hon Josephine Sinyo a blind woman, into parliament in 1999. its through the work of U.D.P.K. that the government in 1990 appointed a task force to review all laws relating to people with disabilities. The People with Disabilities Act that was enacted in 2003 is the product of this recommendation of this task force.
In the late 1990’s the disability activism took a new dimension with the birth of coalitions by D.P.O.s to lobby for specific issues. The new dimension was especially important because it gave D.P.O.s an opportunity to work together without necessary having to disappear under an umbrella. Such coalitions have been bringing together, organizations of and for people with disabilities, civil society organizations and religious organizations pursuing a specific issue in disability work.
It is such coalitions that made presentation on the constitutional requirements of disabled community in the people driven constitution making process that began in 2000. During the national delegate’s conference (also known as Bomas Conference) on the constitution, the disabled community coalesced under the Disability Caucus to push the disability agenda in the drafting of the constitution. The caucus included among others, U.D.P.K., organizations representing various disabilities groups, civil society organizations, church organizations and organizations that provide service to people with disabilities.
Other organizations have developed to promote the rights of other disability groups including albinos and the people with cerebral palsy.
Post Independence Initiatives
The first post independence education and manpower-training enquiry, the Ominde Commission of 1964, recognized the need for education and training in the disability sector. It recommended measures to address the Government’s role in the coordination and improvement of service quality and delivery strategies and transition from school to employment world. The recommendations resulted in the Parliamentary Sessional Paper number 5 of 1968 which set the pace for Government leadership in provision and coordination of services for persons with disabilities. It also established the Vocational Rehabilitation Division in the Department of Social services. The first initiative from this effort was the establishment of the Industrial Rehabilitation Centre in Nairobi in 1971. Ten rural vocational rehabilitation centers were subsequently established countrywide to offer artisan courses such as carpentry, dress making and leatherwork.
In 1975, the special education section was set up within the Ministry of Education to coordinate education for children with special needs. Independent sections with specialized staff responsible for every disability category were later established within the inspectorate and curriculum development arms of the Ministry of Education.
The Government declared 1980 the National Year for Persons with Disabilities ahead of the 1981 United Nations International Year of Disabled Persons. Aggressive awareness campaigns on disability and on the need for collaborative efforts were launched during that year. These efforts continued during the U.N. International Year, 1981. This is when the National Fund for the Disabled was also set up as a Trust. By according direct assistance to both individuals and institutions, the Fund continues to supplement efforts by the Government and other service providers.
A Community based rehabilitation (C.B.R.) strategy was introduced during this period. It was considered a suitable approach to actively involve communities in the change of attitudes and acceptance of persons with disabilities. The existing institutionalized rehabilitation services were inadequate in meeting the growing needs and C.B.R. proved a solution to the expansion of service provision. Early initiatives for this strategy were through the Ministry of Health, but the idea was taken up by other service providers and remains an important feature of service delivery to persons with disabilities.
In 1984, the Ministry of Education introduced the Educational Assessment and Resource Services (E.A.R.S.) which has greatly improved the growth and quality of educational services for children with special educational needs. E.A.R.S. centers were initially opened in 22 districts and were closely linked to District Education Offices. E.A.R.S. embraced a multi-sectoral approach by different professionals such as teachers, social workers and medical workers. It involved the community in the early identification, assessment, intervention and placement in educational services. E.A.R.S. have enhanced the inclusive education delivery strategy which promotes placing of children with disabilities in integrated programmes. This has increased educational placements for children with special needs beyond the capacity of residential schools and opened the special educational residential schools to learners with difficulties or those with multiple disabilities.
In the early days, training of special needs teachers was conducted on-the-job within respective institutions for people who were either blind or deaf. The first specialized training was that of people who were deaf at Kamwenja Teachers Training College in the early 1970’s. Teachers for blind and intellectually disabled children were later trained in Highridge Teachers College in early 1980’s. In 1987, all special education teachers training were consolidated at the Kenya Institute of Special Education (K.I.S.E.). In addition to the three special areas of visual disability, hearing disability and intellectual disability, the education for people with physical disabilities was introduced. The Kenya Institute of Special Education provides specialized training at Diploma level to teachers already trained to teach ordinary schools but with interest in special education. It also introduced short-term certificate courses for teachers in special schools, units and integrated programmes. It has recently introduced Distant-learning programmes with a current enrolment of more than seven thousand. Special education is also now offered in two public universities; Kenyatta University and Moi University.
Another remarkable advance in addressing disability concerns came in 1993 when the Attorney General appointed a Task Force to review laws relating to persons with disabilities. The Task Force went around the country collecting views from the public and persons with disabilities. It completed its assignment within three years, and presented a report and a draft Bill to the Attorney General in 1997. The draft Bill was signed into law in December 2003.
The Persons with Disabilities Act of 2003 was brought into effect in June 2004 (see next section of the report). Its principle objective was the establishment of a National Council for Persons with Disability whose mandate is to implement the rest of the Act on the rights, privileges and protection of persons with disabilities. The Minister responsible has appointed the Council, which coordinates provision of services and advises the Minister accordingly.
United Nations Interventions
Advocacy by concerned stakeholders necessarily caused the United Nations to take interest in disability as a human rights issue. The entry of the United Nations further revitalized the movement and culminated in the attraction of more players in the disability discourse. Although the human rights charter promulgated in 1948 and its subsequent versions and protocols clearly stipulate that its provisions were to extend to all human beings, the unique circumstances of persons with disabilities have in the last thirty years called for special focus. Numerous important U.N. instruments have been developed to reflect the growing understanding of these special circumstances. The first was the 1971 U.N. Declaration of the Rights of the Mentally impaired which called for the recognition of people with mental impairment as human beings. It calls upon the world community to consider them for all the entitlements of other human beings. It specifies concerns unique to the mentally impaired and gives guidelines on how to address them. The Declaration acted as a pace-setter for more activities at the U.N. in respect to other forms of disabilities.
The 1975 U.N. Declaration on the Rights of Persons with disabilities greatly broadened the scope for persons with disabilities. It borrowed heavily from the Bill of rights requiring that persons with disabilities be accorded respect, opportunity for rehabilitation, education, employment, human dignity and enjoyment of life within a family set up.
The global awareness created during the 1981 International Year for Disabled Persons (I.Y.D.P.) immensely improved social participation and equality for disabled persons followed by the 1982/1992 U.N. Decade for Persons with Disabilities. To ensure the decade had desired impact, a comprehensive Document entitled World Programme of Action Concerning Disabled Persons was developed and adopted through a U.N. resolution in 1982. The document provided guidelines on effective measures for the realization of full participation of persons with disabilities in social life, development and equality. U.N. agencies were encouraged to globally implement the document in accordance with their areas of specialization.
The International Labour Organization (I.L.O.) promulgated the first ever enforceable international instrument on the labour rights of persons with disabilities. The Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983, ensures that appropriate vocational rehabilitation measures are made available to all categories of disabled persons. It also promotes the employment of disabled persons in the open labour market.
A World Programme of Action panel of experts revealed that the decade programme was not yielding the desired responses. Something more binding or convincing was necessary. Persons with disabilities were thus involved in the development a new document known as the U.N. Standard Rules on Equalization of Opportunities for Persons with Disabilities.
This document, with twenty-two rules on the behaviour of states, was the most comprehensive ever. The Rules were divided into four categories. The first category included four rules, which address preconditions for equalization of opportunities. These include; awareness raising, medical care, rehabilitation and support services. The second and most important covered Rules 5 to 12 on target areas of equalization of opportunities. These are accessibility, education, employment, income maintenance and social security, family life and personal integrity, culture, recreation and sports and, religion. The last ten rules were on measures of implementation and mechanism for monitoring. The document was presented to the U.N. Assembly and adopted in December 1993.
Although these Rules were mere guidelines that were not binding on Governments, the level of awareness built around them had greater influence than the World Programme of Action. The early years of their adoption witnessed the establishment of numerous organizations of and for persons with disabilities in many parts of the World. This led to an increased amount of disability legislation and policy being put in place in many countries.
Seven years later, it became clear that good will was not enough to change the lives of persons with disabilities. Efforts to increase cooperation, integration and awareness on disability issues by governments and relevant organizations remained insufficient in promoting full and effective participation and equal opportunities for persons with disabilities in economics, social, cultural and political life. There remained a need for a more comprehensive and binding instrument to promote and protect the rights and dignity of persons with disabilities. The idea of a U.N. Convention was once again floated and through intense lobbying an ad hoc committee made of governments, non-governmental and organizations of Persons with Disabilities was set up in 2003 to work on a draft convention.
Issues of Critical Concern to the Disability Movement in Kenya
The level of services for Persons with Disabilities in Kenya today raises certain concerns which the Government considers require policy action.
Policy Dimensions
There is no accurate data on the number of persons with disabilities in Kenya. Although a disability module was included in the 1989 National Population and Housing Census, little information was collected on disability due to poor targeting. The information obtained was inadequate for policy formulation or national planning.
It is not possible therefore to indicate with certainty the level of prevalence of disability in Kenya. The Government is however, in the process of carrying out a national survey to establish the actual number of persons with disabilities, types of disabilities, their prevalence, geographical coverage and age distribution.
Conservative U.N. estimates indicate that persons with disabilities represent between six and 10 percent of the population of any country with varying proportions within segments of the population as well as between countries.
The World Health Organization (W.H.O.) and the Kenya Demographic and Health Survey (K.D.H.S.), estimate that about 10% of the country’s total population have a form of disability. With a population estimated at 32.2 million in 2003 (Economic Survey, 2003), approximately 3.2 million persons in Kenya have a disability. The statistics vary from District to District due to the diverse socio-economic status.
It is therefore imperative to confirm the actual number of the population with disabilities and to determine the extent of each disability for purposes of planning and service provision. The Government is committed to a national survey to identify the members through the national census exercises.
It is noted that Persons with Disabilities are not a homogeneous group but are varied in terms of the nature of their disability and their mental, physical and social needs. Despite the absence of accurate data, the Government and other stakeholders have continued to offer a wide range of services to Persons with Disabilities.
The Government, however, acknowledges that these services have reached only a small percentage of Persons with Disabilities and are unequally distributed between and among various disabilities.
The Social-Economic Dimensions of Disability
Disability impacts on all aspects of society and national development. The Government recognizes the challenges posed by:
- The combined effect of disability and HIV/AIDS.
- Challenges to economic development.
- Limitation in attainment of education for all goals.
- Omission of disability concerns in the millennium development goals.
Although the extent to which HIV/AIDS has infected or affected persons with disabilities has not been determined yet, they suffer same level of prevalence as the rest of the population. The combined effects of HIV/AIDS and disability on a person or group of persons, present the Government with a situation of extreme need.
Different types of persons with disabilities must be assisted to achieve skills that would enable them participate in gainful employment. Otherwise persons with disabilities will be a drain on family and national resources. Unemployed persons with disabilities are unable to contribute to family income and welfare and may strain limited resources as their families attempt to provide special care.
Education is the most important tool for participation of persons with disabilities in the socio-economic life. It helps develop positive attitudes towards the importance of work and self-reliance while sharpening skills necessary for integration into social and national affairs. It is imperative that access to education of Persons with Disabilities is given due attention.
Notwithstanding that the U.N. Millennium Development Goals (M.D.G.s) do not specifically address disability concerns, the government is fully committed to deliberately integrating disability issues in its M.D.G. implementation programme.
Current position on the Persons with Disabilities Act
The enactment of the Persons with Disabilities Act, No. 14 of 2003 can easily pass as the most significant achievement of the current government. This unfortunately happens to be one of those unsung milestones of our age. Even before the promulgation of the Act, the disability movement had already scored significantly through the direct representation of their affairs in the National Assembly by the nomination of Hon. Josephine Sinyo and the appointment of Mr. Lawrence Mute as a Commissioner in the Kenya National Commission on Human Rights, both of whom are persons with disabilities.
Notable Impediments to Full Utilization
It is now emerging that the Persons with Disabilities Act is apparently plagued with inherent operational and legal impediments to its utilization. In fact, one may reach a primer facie conclusion that the Act that has already been in existence for more than a year was not meant to be enforced in the short term.
There are a few factors which render the Act immediately not able to be implemented. Firstly, the commencement of the Act is designed to take place in piecemeal. As of now, the Minister of Gender Sports Culture and Social Services has already gazetted commencement of the said Act with the exclusion of section 24, 25, 35(1) (2), 39, 40 and 41.
This means that the Act is to be implemented in more than one phase. Yet, some of the excluded sections are at the core of the progressive rights guaranteed to all persons with disabilities under the Act. On the other hand, a number of persons with disabilities have already been thrown in to mental anguish by this state of affairs as they are unsure how to interpret the Act in respect to their retirement. Some persons with disabilities attained retirement age during the commencement of the Act, while others are still attaining the same months after. Not even the Council is aware as how to deal with this crisis.
Secondly, there seems to be a very high cost associated with the implementation of the Act. The excluded sections have serious fiscal implications both for the government and for the private sector. The Council has yet to formulate any guidelines with respect as to their application.
Thirdly, from the very onset of the Act, experts determine that the Act is incapable of enforcement without first amending portions of the same. The Act abounds with legal and philosophical inconsistencies, which may affect the operation of the Act. The most classic example is the requirement by the Act all aggrieved parties ought to file their cahiers with Industrial court instead of the High Court. This position, adapted by the Act, could open counterproductive legal arguments when subjected to a test of law. In addition, the Act is too liberal with its discretional provisions and thereby predestines the Act to a future of uncertainties.
Fourthly, the constitution and the subsequent inauguration of the Council have not necessarily guaranteed the persons with disabilities of exponential enforcement of the Act. In the first place, the council is to be composed of 27 members whose representation is specified in the Act. The equilibrium desired by the Act is not met by these appointments but has instead rekindled factional distrust among the members of the disabilities movement in Kenya.
Further the criteria used to appoint council members is known only to the minister, neither does anyone have the capacity to verify whether the appointees were people of high integrity as required by the Act. One would have expected the minister to demand of them a declaration of wealth before assuming such an important office. We also note that the secretariat has not been established and without it the council is perpetually trapped in its own indolence.
Finally, another factor that renders the Act unenforceable is the fact that the Act is too apt in giving discretionary powers where mandatory powers seemed the only viable alternative. The 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. This misgiving runs consistently throughout the Act and needs a legal expert to detect and cure. It is being in the Act is detrimental to the entire Act and the users.
Utilizable Provisions of the Act
The foregoing should not be construed to mean that the Act is famished of any benefit to persons with disabilities. Indeed, the mere enactment, assenting and the commencement of the Act is in itself a formal recognition of the afflictions of the persons with disabilities, though belated. The recent appointment and inauguration of the Council for Persons with Disabilities is the first step in giving effect and life to the Act. Obviously, the existence of the Council is crucial to the realization of the Act as it is the organ mandated to enforce much of the Act. The Council faces an uphill task in fulfilling section 7 of the Act, as the Act comprises extremely complex provisions the enforcement of which is time consuming. Sections 11 to 17 make wide-ranging provisions on the rights of Persons with Disabilities. Many of these rights are now commonly referred to as progressive rights. These are second and third generation rights which encompass the social, economic and political well being of citizens. Since these rights are designed to be realized progressively, it will be a long time before we start to savour their benefits. The Draft Bomas Constitution embodies these rights in its Bill of Rights thereby providing a firm legal basis for the rights spelled out in the sections cited above.
These rights include the right to education, health, equal opportunities, affirmative action exemption from certain taxes etc. However, provisions of sections 12,15,18,25,28,29 and 41 are immediately utilizable by persons with Disabilities. Nothing in the Act or any other law should prevent anyone from filing a suit at the High Court because it still enjoys original and unlimited jurisdiction.
The Act requires that one do so at the Industrial Court. This requirement has several implications at law, for example, matters of rights are not industrial in nature and the Industrial Court may not be suited to adjudicate on such matters. Additionally, the Disabilities fraternity lacks any union to press for such an action. Similarly, matters arising from these sections may also be proceeded with by way of filing a Constitutional reference to minimize time wastage, characteristic of the stipulated process.
One may seek relief under section 45 and 46, which deal with criminal offences against persons with disabilities.
The case for amendments of the Act is gathering momentum and attracting ever more interested parties than at any time of its brief existence. The National Council for Persons with Disabilities convened a stakeholders workshop in Mombasa on this issue. The workshop made some proposals, which are extremely crucial to the broader legislative review of the Persons with Disabilities Act. The review of the Act and the intended amendments are not a uni-track venture. The Kenya Law Reform Commission has assumed the de jure leadership of the initiative to review the Act and is actively engaged with the Council, U.D.P.K., the Kenya National Commission on Human Rights and other key stakeholders to hasten the process.
The Kenya law Reform Commission has appointed a consultant to reduce the recommendations of the various stakeholders, gathered in several forums, in to a bill for the amendment of the Act and also to develop the relevant rules and regulations alluded to throughout the Act.
Obviously then, it may be concluded that the struggle for the realization of the human rights of the persons with disabilities did not end with the passing of the Act, but instead, rekindled the desire by those affected to remind the government of their various commitments under national and international laws to promote and protect the rights of persons with disabilities.
The civil society organizations are particularly alive to the fact that, in the absence of a proper policy and legal framework to ensure the inculcation of the human rights of persons with disabilities in our national psyche and legal system the government may not act with sufficient speed to fulfill its part of the bargain. There is evidently a lot of activity in the sideline by the said societies to ensure that the government is kept under constant pressure so as to bring Kenya in tandem with best practice globally.
Having regard to all circumstances, the race for the promotion and the protection of the human rights of the persons with disabilities is still on and Kenya is not so far behind.