DISABILITY AND THE LAW

March 2014

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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 self-esteem 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

* The Writer is a Law Student in Moi University, Kenya. You can reach him viaacademicresearch647@gmail.com.1 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.

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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.

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

3 Ibid, p. 3.4 Ibid, p. 5.5 Nicholas Bamforth et al, Discrimination Law, Theory and Context (2008), p. 975.

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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 individual’s

ability to carry out ordinary day-to-day activities”7

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 any6 Jim Fitzgerald, ‘The Road to Equality? The Right to Equality in Kenya’s NewConstitution’ (2010) 5 The Equal Rights Review 18.7Supra n 1, Art. 260.8 United Nations Convention on the Rights of Persons with Disabilities, Art. 1

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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

person’s social and economic participation.”10

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 others”11

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

9 Persons With Disabilities Act, s 210 Employment Act, s 211 Supra n 6

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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

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advancement, at all 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

12Supra n 1, Art. 97(1)(c) and Art. 98(1)(d) respectively.

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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 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

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appropriate means of communication; and to access materials and

devices to overcome constraints arising from the person’s

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

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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

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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

13 African Union of the Blind (AFUB)et al, State of Disabled Peoples Rights in Kenya(2007) Report, p. 3814 Ibid, p. 38

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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 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

15 Ibid16 Ibid17 Ibid

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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 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

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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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.

20 Supra n 13, p. 23.

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(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 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

21 Cap 258 Laws of Kenya.

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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 anti-discrimination 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 anti-discrimination case law in Kenya. Anti-

discrimination provisions laws provide a pedestal upon which

precedents may be laid and within which clear standards and

burden of proof can be developed.25

22 Regulations 9, 10 and 11.23Kenya 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 of2011(Unreported).25 Supra n 23, p. 15

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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

26 National Report, Kenya’s 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. 2128 Ibid p. 2729 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 26th March

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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

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

2010 which exempts them from paying income tax.33 Supra n 18, pp. 10-12.34 UN Doc CRPD/C/2/3 (2009).35 Supra n 8, Art. 3 (b).36 Ibid, Art. 4(1).37 Ibid, Art. 4(1)(b).

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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 need to be reviewed in

38 Ibid, Art. 12.39 John Kabutha Mugo et al, Testing youth transitions in kenya: are young people with disabilitiesfalling through the Cracks?, working paper no. 34(2010), p. 1.

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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

40 Ibid41 Supra n 26, p. 18.42 Supra n 39, p. 9.

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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 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 the43 Supra n 13, p. 89.44 Ibid, p. 3845 Ibid, p. 9046 Ibid

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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.

47Supra n 18, p. 1748 Ibid p. 16

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