Evolution and devolution of rights: Persons with disabilities (Amendment) Bill, 2022 in context

The Persons with Disabilities (Amendment) Bill, 2022 is primarily an amendment to the principle legislation, the Persons with Disabilities Act.[1] This is to say, it is a draft Bill containing proposed changes to the law dealing with the rights of persons with disabilities in Kenya.[2] The Principle Act represent the first attempt to codify disability-specific rights into one text after recommendations from a task force mandated to evaluate the laws relating to persons with disabilities.[3] The main objectives of this Act are therefore to inter alia provide for the rights and rehabilitation, to achieve equity and equality with regard to opportunities, and chiefly, to establish the National Council for Persons with Disabilities in Kenya (NCPWDs).[4] The Act has been in existence for close to two decades now and is ripe for review.[5]

This review and amendment of the law fundamentally seek to among other things, align the Act with the Constitution.[6]  The Bill further reviews the membership of the National Council for Persons with Disabilities (the Council) as well as responds to the evolving challenges faced by persons with disabilities in Kenya.[7]

  • Background to the Bill

The rights of persons with disabilities in Kenya have been a subject of concern and social debate since Kenya’s independence in 1963.[8] The earliest evidence of this is documented in a text describing the frustrations of a group of persons with disabilities who went to visit President Jomo Kenyatta to try and set the disability agenda.[9] One of the major proposals sought was the assistance of the government in the creation of an umbrella body for all persons with disabilities to promote and protect the needs and rights of persons with disabilities.[10] These efforts together with others over the years have led to the formation of the National Council for Persons with Disabilities through the Act in 2003. As desired, an umbrella body bringing together all the associations that deal with matters related to disability rights and disability advocacy.

The journey towards recognition of the rights of persons with disabilities through the law has been long and winding culminating in the enactment of the Persons with Disabilities Act of 2003; the promulgation of the post-independence Constitution and now a new Bill representing the evolution of the rights. This is perhaps a reflection of the social, cultural and political space of persons with disabilities (PWDs) in Kenya.

Historically, the Association of the Physically Disabled (APDK) is documented as the first association that was formed by the colonial Government in 1953.[11] This was followed by other associations such as the Kenya Union of the Blind (KUB) which was formed in 1959.[12] The Kenya National Association of the Deaf was formed in 1987[13] and the Kenya Society for the Physically Handicapped which was formed in 1986.[14] Several other organizations forged by persons living with disabilities also sprung to life. The Kenya Association of Intellectually Handicapped, Kenya Autism Society and the Kenya Society for Mentally Handicapped give a strong voice to those with intellectual disabilities.[15] In 1989; the organizations came together to form an umbrella body- United Disabled Persons of Kenya.[16]  This was a way of bringing persons with different disabilities together to speak in one voice hence the National Council for Persons with Disabilities. In addition to these, there is the Albinism Society of Kenya (ASK)- an organization that would act as a platform championing the rights and needs of persons with albinism in Kenya.[17]

The gradual movement towards the enactment of the principle was further energized by agitation from civil society as well as the private sector.[18] These efforts led to the drafting of a policy through the Ministry of Labour and Social Services and finally; an Act of parliament operationalized in 2004.[19]  The paradigm shift from a policy to an Act of Parliament was important as an Act once operationalized; has actionable rights and allows for subsidiary legislation or regulations through the relevant Ministry as opposed to a policy document.[20]

As much as having disability-specific laws was a great milestone, some issues have with time necessitated amendments to the law. As indicated, the Act came into force before the promulgation of the Constitution of Kenya 2010.[21]  This, therefore, necessitates amendments in compliance with the supreme law more so concerning the system of governance.

Disability-specific rights like other human rights have an international characteristic. As much as the Act is a municipal legislation that is drafted for domestic needs; disability is universal hence the principle of universality of rights applies.[22] This means that the Act ought to be a domestication of the international instrument.[23]  These international instruments include; the United Nations Convention on the Rights of Persons with disabilities, protocol to the African and people’s rights on the rights of persons with disabilities and the East African Community Persons with Disabilities Act, 2015. The Act also requires amendments to evolve with time. Laws are always as dynamic as societies hence the need for amendments.

Disability-specific laws are a hybrid of both socio-cultural-economic rights as well as civic and political rights. However, they generally attract a progressive realization approach hence the progressive expansion of legislation. The Act has gaps or areas that have not been implemented fully, amendment, therefore, provides a chance to examine them to find a better way to full implementation. The Building Bridges Initiative (BBI) Report discussed inclusivity and therefore persons living with Disabilities in Kenya as a big part of Kenya’s social fabric. A section of the Report titled ‘Kenyans are insensitive to Persons living with Disabilities’ discussed the plight of persons with disabilities in Kenya post-2010. These include social and cultural neglect and lack of implementation of the law.[24]

This article, therefore, discusses the proposed amendments in depth and breadth to contextualize them from the point of the challenges that persons living with disabilities go through. This article poses the following questions: will the amendments fill the gaps left by the parent legislation? Do they take in the system and the administrative structure introduced by the Constitution of Kenya, 2010? Do they align with international instruments and customary law? Will they, therefore, implement the laws easier?

  1.  Analysis of the proposed law

The Persons with Disabilities (Amendment.) Bill, 2021 is an improved draft proposal, work carried forward from the Persons with Disabilities (Amendment) Bill, 2019.[25] The Bill in its entirety is dedicated to aligning the Act with the governance architecture of the Constitution of Kenya, 2010; expanding the human rights regime and the administrative structures as well as filling gaps in the principle legislation.

  •  The preamble and interpretation of the Bill

As stated above, the Persons with Disabilities (Amendments) Bill, 2021 is a draft proposal that seeks to amend the Persons with Disabilities Act. The Bill provides for the function of the National Government and the County Government.[26] This in effect broadens the purpose of the Act. This contrasts with the purpose and function of the principle legislation crafted around matters of rights and rehabilitation of persons with disabilities, to achieve equalization and opportunities for persons with disabilities and to establish the National Council for Persons with Disabilities.[27] It is therefore quite clear from the preamble that the amendment aims to align the Act with the structure of the Constitution of Kenya, 2010.[28]

The Constitution of Kenya 2010 introduced a devolved system of governance as opposed to the independence Constitution that had a centralized power structure. Devolution is aimed at enhancing public participation and enabling citizens to determine how affairs are run in the country.  In this way; the devolved system of governance allows citizens to exercise sovereign power.[29]  Devolution, therefore, makes it easier for citizens to access services, aimed at enhancing equity and equality, especially for the marginalized such as persons living with disabilities.

The Constitution of Kenya, 2010 created two levels of Government with powers from the supreme law-the County and the National Governments.[30] The two levels of government ought to have institutions created under them that work independently and inter-dependently with respect to one another—hence promoting inclusivity.[31] The two government levels have separate mandates to provide services to the people as set in the Constitution of Kenya, 2010.[32] When it comes to the rights of persons with disabilities, however; it is important to state that just like other Kenyans, they not only need to exercise their sovereign powers but also access services provided by county governments.

The objects of devolution further emphasize that devolution is meant to foster national unity by recognizing diversity, giving power of self-governance to the people and protecting and promoting the rights of minorities. The objectives are in line with the protection and promotion of the rights of persons with disabilities.[33] The Bill in promoting and protecting the rights of persons with disabilities through a devolved structure proposes the need to have a County Executive Committee Member (CECM) responsible for matters related to the rights of persons with disabilities.

The idea of devolved rights is further fortified by rural-based organizations which are organised by persons living with disabilities in rural areas. This majorly promotes and protects the rights of persons living with disability while empowering them; thanks to devolution.

In addition to these, the Bill is expanded and touches on a number of concepts.  A number of these concepts are not in the parent legislation. These concepts came in as a result of the growth of certain rights. The word ‘discrimination’ is interpreted to mean any distinction, restriction or exclusion based on disability with the effect of nullifying recognition.[34]  The Constitution of Kenya, 2010 frowns upon discrimination based on disability as reflected in the Bill.[35] Disability mainstreaming is another concept that is introduced in the Bill.[36] This is defined as a strategy through which the needs, concerns, and experiences of persons with disabilities are made as an integral part of policies and programmes to make their lives better and as a cure to the state of discrimination.[37] Public buildings are also defined by the Bill as a building, places of lodging, recreation, transportation or accommodation that are on display and are meant to offer services to the public. The Bill presupposes that it is not about ownership but rather, its position in society.[38]

Closer to this is the concept of reasonable accommodation which entails necessary and appropriate modifications and adjustments needed to ensure that persons with disabilities enjoy their rights. These provisions are important as persons with disabilities in Kenya still endure challenges with regard to access to public buildings and housing. The right to access goes down to the right to employment and the modifications that may be done to allow persons with disabilities to access employment and participate fully in the economy of the country.[39] The case of Wilson Macharia v Safaricom PLC[40] adequately ventilates the issue of reasonable accommodation for the visually impaired petitioner. The Constitutional Court states that it is the obligation of the employer to ensure that the employee is reasonably accommodated.

The exploitation of persons living with disability is defined as an act of taking unfair advantage of persons with disability while harmful practices, acts, attitudes or behaviours, mostly cultural negatively affect the rights of persons living with disabilities.[41] These two concepts are part of the challenge towards the full implementation of these specialized rights. The term ‘legal capacity’ gives one the right to enjoy certain rights as well as bestow certain duties. Legal capacity has been defined as the only way to live a worthy and dignified life.[42]

The Convention on the Rights of Persons with Disabilities (CRPD) committee states that legal capacity is inherent and is granted to all people by virtue of their humanity.[43]  As part of growing literature and jurisprudence, the legal capacity for persons with disabilities towards certain rights; the concept of supportive services is also defined in the Bill. They include help dogs, personal assistants, guides and interpreters. These supports help or enable persons with disabilities to participate fully in society.

Universal designs are also defined in the Bill designing products, programmes and environments to be usable to the greatest extent possible by persons with disabilities. Special measures on the other hand refer to affirmative action programmes such as administrative, regulatory, legislative and other regulatory instruments in order to promote the enjoyment of rights. Inclusive education which is a term referring to the education of students with special needs is also defined.[44] Inclusive education is another area that has come with a lot of challenges for persons living with disabilities. The Bill also differentiates between a medical doctor and a medical practitioner which is the mode of registration.

  • Guiding principles

The Persons with Disabilities (Amendment), Bill, 2020 introduces an amendment clause that gives guiding principles on how to apply the Act (Bill). These principles not only have the effect of giving insight into disability-specific rights, but they also help keep up with the universal trends and the best international practices. The guiding principles, therefore, have the effect of giving value to the provisions of the law hence those performing the functions under the law have to appreciate them. The Bill begins by acknowledging and referring to the values of the Constitution of Kenya, 2010.[45] This is to say; persons with disabilities also form the fabric of the people of Kenya and therefore, their aspirations to seek inclusion and full participation in society. The importance of these values is that they create a homogeneous way of handling human rights matters. The Bill, therefore, enumerates a number of principles which are adopted from the convention on the rights of persons with disabilities.[46] Respect for the inherent dignity and individual autonomy is the first principle set out in the Bill. [47]

Human dignity is the intrinsic value that is given to a human being by virtue of being human. It is from the desire to protect the dignity of people that human rights are espoused and therefore put on a higher pedestal. The Preamble of the Universal Declaration of Human Rights (UDHR) states that it is from the recognition of human inherent dignity that there can be a comprehension of freedom, justice and peace in the world.[48] When a person’s dignity is respected then they can have autonomy and their ability to make choices are therefore respected.

Disability rights are therefore written and implemented so that there is recognition of these persons and that their inherent dignity is respected. The international instrument was crafted with the purpose to inter alia protecting and promote the inherent dignity of persons with disabilities.[49] Continentally, there is the protocol to the African Charter on Human and Peoples’ Rights (ACHPR) on the rights of persons with disabilities that retains the principle of the inherent dignity and individual autonomy.[50] In general, persons with disabilities in Africa and in particular those living in Kenya undergo a lot of challenges due to the habitual and cultural nature of undignified treatment meted out to persons with disabilities hence propagated in the Bill.

Equality and non-discrimination are another set of principles that persons interacting with this Act need to adhere to.[51] The right to equality and non-discrimination has developed over time through international instruments and international customs. It is a principle that is both established in civic and political rights as well as social cultural and economic rights with its origins in the Universal Declaration on Human Rights.[52] With regards to persons with disabilities; the protocol to the African Charter on the Human and Peoples’ Rights on the rights of persons with disabilities in Africa retains the same principles emphasizing the need for equality and non-discrimination based on disability.[53] The Constitution of Kenya, 2010 also frowns upon discrimination based on disability hence the relevance of the principle in the Bill.[54]

Participation and inclusion in society is another key principle in the Bill.[55] This principle stipulates that because persons with disabilities are part of Kenyan society; there is a need for them to be part of the nation-building process. The same principle is maintained in the Convention on the Rights of Persons with Disabilities and by the protocol to the African Charter on Human and Peoples’ Rights on the rights of persons with disabilities in Africa.[56] It is from these principles that rights such as the right to inclusive education, the right to vote, the right to marry and have a family and the right to gainful employment are crafted hence the principle in the Bill.

Further, there is the acceptance of persons with disabilities as part of human diversity and humanity.[57] This principle presupposes that over and above the laws and administrative actions to recognize persons with disabilities; there is a need to accept them as different and that the said ‘difference’ is socially and politically accepted. The principle is also retained by the protocol to the African Charter on Human and Peoples’ Rights on the rights of persons with disabilities in Africa.[58] One of the aspirations of the people of Kenya is that they are proud and determined to accept diversity and live in harmony.[59] The Persons with Disabilities (Amendment) Bill, 2020, therefore, harmonizes this thought.

Equality of opportunity suggests that persons with disabilities need to be considered when opportunities arise such as employment.[60] This principle is also reflected in the protocol to the African Charter on Human and Peoples’ Rights on the rights of persons with Disabilities in Africa.[61] The principle of accessibility brings to focus the act of taking away all the barriers that occur due to disability in Kenya. These barriers may be physical as discussed earlier but they may also be occasioned by the social-cultural environment.[62]  The African Draft Charter on the Rights of Persons with Disabilities retains the principle of accessibility as elevated by the Bill.[63]

Respect for evolving capacities of children with disabilities is another principle espoused by the Bill.[64] The concept of evolving capacities denotes that children grow and mature differently depending on the environment. This factor affects children with disabilities more so given the challenges that they go through. A lot of children with disabilities attend school when they are much older because they have to grapple with challenges as a result of their disabilities. The African Charter is a bit more expansive on this principle as it attaches the best interest of the child principle to it.[65] The Bill, therefore, seeks to introduce the principle so as to guide a new view of children with disabilities from a legal standpoint.

  • Amendments related to the devolved governance structure

As stated above; the Bill departs from the principle Act by devolving functions with regard to the rights of persons with disabilities to functions of the National Government and functions of the County Governments. In addition to these; the principal Act is amended to co-opt a member of the Council of Governors into the National Council of Persons with Disabilities. The effect of this is to enable the devolution of these rights as well as coordination between the national and county governments.  The Act is therefore amended to give effect to the inclusion of county governments.

  1. Obligations of the national government

National government functions are outlined as follows; the national government is to develop policy and promote the welfare of persons with disabilities. The development of policies is encouraged by international statutes.[66] Policies are therefore a function of the parent ministry currently the Ministry of Labour and Social Protection. The State Department for Social Protection is charged with the mandate to protect, and advocate for the needs of persons with disabilities and coordinate national mainstreaming with the NCPWD.[67]

Some of the policy initiatives include The National Disability Policy (2006), the National Special Needs Framework (2006), Social Assistance Policy and the Public Service National Disability Mainstreaming Code.[68] The national government has the role of undertaking research, surveys, and investigations into the causes and nature of disabilities.[69] The national government also has the role of putting in place measures to detect disability and rehabilitate disabilities.  These may involve training and empowering hospitals and medical facilities towards this venture. The national government further ensures the integration of children with disabilities in school. Integration in schools means that children with disabilities ought to be included in every aspect of education. [70]

In Kenya, challenges to inclusive and integration of education remain and there is a need for professional personnel and resources for the curriculum.[71] The national government has a role to ensure the inclusion of persons with disabilities in public service.[72] This is intended to achieve the 5% constitutional threshold.[73]  The Bill further proposes that to achieve the right to transport and mobility, the national government has a role in developing guidelines for public transportation. The Bill also provides that the national government has a role in providing affirmative action procedures with respect to procurement procedures in Government.

  1. The obligation of the county government

The Bill devolves responsibility to county governments. They have the role of implementing policies that are drafted by the national government. Further, county governments have the role of ensuring that resources are disbursed towards disability activities. County governments have a role to ensure inclusive pre-primary education as well as access to social amenities for children with disabilities. County governments are expected to adhere to the minimum standards for public transport vehicles, communication services and infrastructure. County governments are also expected to provide coordination services to both government and non-government entities.

County governments are further required to promote affirmative action in procurement services as well as the county service boards. The requirement is the employment of at least 5% of the county government workforce to be made up of persons living with disabilities.[74] County governments through the County Executive Committee Member responsible advises the county government on the intervention measures to promote and protect the rights of persons with disabilities; develop mechanisms for identifying persons with disabilities and create a database.

Other functions include- monitoring and evaluating of implementation of disability rights, formulating and implementing programmes aimed at promoting disability rights, coordination of programmes by the Council and publication of relevant materials.

  1.  Obligations of the national government and the county government

The national and county governments have a role to ensure the full realization of the rights of persons with disabilities. In order to achieve this, the following steps are suggested thus; take all the necessary steps to ensure effective enjoyment of the right to life. This propagates a dignified life. They are also to take all measures to prevent discrimination against women and girls living with disabilities. The two levels of government are also expected to take feasible measures to protect persons with disabilities in situations of risk.

The other obligations include; equal protection before the law for persons with disabilities, taking all necessary measures to protect persons with disabilities from torture, cruel and inhuman or degrading treatment or punishment, protecting persons with disabilities from medical experimentation without their consent, taking all measures to ensure psychological, cognitive and physical recovery habitation, rehabilitation and social reintegration, protect the privacy of the persons with disabilities, establish appropriate habitation and rehabilitation programmes and facilitate full participation in civic and political life.

  • Institutional changes

The other important amendment is the powers of the Council. These are in addition to the functions of the Council. The Council has the power to enforce the Act, issue adjustment orders, proving accessibility audits, control and manage assets of the Council, levy such fees and charges for its services, they may also invest subject to the laws of public finance, issue summons or some orders to such persons that may aid in the realization of the objectives of the Act, control supervise and manage the assets of the Council and do all things in the performance and function of this Act.

A point of contradiction however is in the role of county governments in contra-distinction to the National Disability Council already in the counties. The other area is the value of county legislation already in force.

  • Rights of persons with disabilities

Another area of amendment concerns the rights of persons with disabilities. The county government is given a specific obligation to ensure the realization of these rights in addition to the national government. The right to non-discrimination is expanded to include equality before the law, equal enjoyment of goods and services and special measures to support reasonable accommodation. Legal capacity is other amendments within the rights. The evolution of the law has placed legal capacity at the centre, hence necessitating the amendment.

This breathes life into the right to marry and the right to privacy. In the case of Lacey v Lacey (Case of Public Trustee),[75] it is stated that marriage is a simple contract that does not require high intelligence just like a will.  The Bill further provides for the rights of women with disabilities, youth, children and elderly members of society. The right to registration and documents of registration including a passport is another novel right that is a positive shot in the arm to persons with disabilities.

The other amendments on the rights are the right to human dignity and the right to protection from exploitation and abuse. The Bill further provides for the right to education.[76] This right is elaborately discussed to ensure that no child is denied education on basis of disability. The Bill gives the county, national government and the Council responsibility to ensure this right is implemented.

The Bill also provides for the right to access justice that gives obligations to the entire justice system to consider persons with disabilities especially the Office of the Attorney General and the Chief Justice. The right to health has also been broadly provided to include, medical assessments, information on health, and sexual and reproductive healthcare. The Bill further gives a proposal that all government medical facilities ought to give free medical treatment to persons with disabilities, especially with regard to illnesses that are related to their disabilities including medical assessment procedures. In providing medical care; the Bill states the need for hospitals to not only have translators but also protect the dignity and privacy of persons living with disabilities.

The right to employment is also amended to include; the reservation of 5% of employment positions for persons with disabilities and modification of work environments.[77] In addition to these, the Bill provides incentives for employers who provide opportunities for persons with disabilities as well as prohibiting dismissal or lesser pay purely on account of disability.  The Case of George Mukwenywa Kisaka v National Council for Persons with Disabilities[78]exemplifies this principle as the petitioner who was a person with a disability was paid less in his contract of employment. The Court held in favour of the petitioner by declaring the pay to amount to discrimination.

The right to physical and mental integrity is also introduced in the Bill along with the right to dignity and privacy. The Bill further provides for the protection of persons with disabilities in times of emergencies. This applies in times of war and during pandemics as part of humanitarian law.

The amendment on the exception from postal charges for materials in and out of Kenya is aligned with the Constitution of Kenya, 2010.[79] The materials include assistive devices, braille printed materials for persons with disabilities or parents for the use of their children with disabilities or organizations dealing with issues of persons with disabilities.

The Cabinet Secretary responsible is mandated to make regulations to facilitate this right.

The right to accessibility is not only defined in the Bill but county governments and the national government have the obligation to ensure accessibility—accessibility ensures the right to movement for persons with disabilities. Private entities also have a responsibility to make regulations and policies to ensure accessibility for persons with disabilities. These rights go hand in hand with the adjustment order regulation. The power to give adjustment orders applies to both private and public entities. Adjustment orders are to be given in a prescribed form and for a specific period. Access to information communication and technology rights in the Bill elaborate the need for access to information and effective communication.

On the right to expression, the Bill further elaborates that public and private institutions need to put in systems to ensure persons with disabilities can communicate and express themselves. The right to sports culture and recreation is also elaborated in the Bill.  The Bill also widely covers the right to movement and regulations with regards to public transportation for persons with disabilities.

  • Offences and penalties

The Bill has further amended the area of offences and prescribed penalties. These include an offence of discrimination against persons with disability contrary to the Constitution.[80]  The  Bill goes further to enumerate acts and omissions that are regarded as discriminatory. The other offences include the offence of exploitation of persons with disabilities, denial of food, torture and cruel treatment, harmful practices and concealment of persons with disabilities. As much as punitive measures and deterrence may help with enforcement; some of the offences are always done in jest and therefore perhaps promoting awareness may be more practical.

  • Implementation of the Act and enforcement of rights

The Bill in contrast to the principle Act has given greater and extensive attention to the rights of persons with disabilities. The role of full implementation of the Bill can therefore be found in several strands. State officers interacting with these rights have a role to ensure they take the necessary steps to ensure full implementation of these rights.[81] Institutions such as the Council are also furnished with the power and the mandate to carry out functions that enable the full implementation of these rights. The other relevant institution is the Office of the Director of Public Prosecutions which has the power to prosecute in line with the offences under the Bill.

In addition, the two levels of government are allocated distinct as well as joint roles to ensure full and devolved implementation of disability rights under these proposals. The Judiciary through the High Court also has a role to play especially where persons with disabilities are denied their rights.[82]

  1. Gaps and areas of concern in the Bill

As much as the Bill is extensive with regards to the rights and challenges faced by persons with disabilities in Kenya, an analysis of the Bill presents a few gaps and areas of concern. The retirement age for employees with disabilities is not covered by the Bill and remains a matter of government policy. The Bill provides for free medical assessments for persons with disabilities which is a relief; however, the issue of timelines which is a major problem with these processes is left in abeyance.

The Bill like the principle Act still seems to imply the progressive realization of these rights. This has the potential of dragging devolution and implementation of these rights. It is important to note that both the national government and county governments have a lot of legislative work to do to actualize these rights if this Bill becomes law.

  1. Conclusion

The Persons with Disabilities (Amendment) Bill, 2020 is a major improvement to the principle Act that should be assented into law and be implemented fully.It reflects the structure and architecture of the constitution as well as international law which is a massive step toward full implementation and realization of disability rights in Kenya. As much as there are still gaps that may be filled in this body of rights, disability rights can only be achieved progressively and this proposed piece of legislation is indeed progress. The challenge is therefore to implement the laws as much as we can.

The author is a lawyer, Advocate of the High Court of Kenya and senior Parliamentary Counsel at the office of the Attorney General. Kizito has a law degree from Kenyatta and a postgraduate diploma from Kenya school of law. As a lawyer and a person living with disability, he has written widely on matters of disability rights touching on a wide range of matters.

[1] Act No. 14 of 2003, Laws of Kenya

[2] The Bill was published on 13th August, 2020. The Kenya Gazette Supplementary No.148 (Senate Bill No. 15)

[3] Joshua Mbinda Ngulu, ’The Kenya ‘s Persons with Disabilities Act, No. 14 0f 2003: A Case of Compliance of the Act with Constitution of Kenya, 2010 and International Law, A Thesis Submitted in Partial fulfilment of the Requirement of the Award of Masters of Laws (L.L.M.) Degree. December,2012, Nairobi. Kenya. Available at.  https://www.erepository.uonbi.ac.ke/bitstream/ handle (accessed on 15th July, 2021)

[4] Preamble of the Persons with Disabilities Act, No. 14 of 2003

[5]  Helen Mudora, ‘Review of Kenya’s Persons with Disabilities Act Overdue’ (2016) Global Watch Website, https://www.globaldisability.org/2016/04/01/review-kenya-persons-disabilities-act-2003-overdue. (Accessed 13 July 2021).

[6] Article 54 of the Constitution of Kenya, 2010

[7] The Memorandum of Objects and Reasons, Persons with disabilities (Amendment) Bill, 2020.

[8] Kizito Ouma, Rights of Persons with Disabilities in Kenya, Quality Thoughts Publishers,2020 at P.7

[9]  Ngari Gichuki and Isaac Meso, ‘Underlying Struggles for Disabled People in Kenya’ Standard Newspaper (Nairobi 4th September, 2013) 18. https://www.standardmedia.co.ke (Accessed 10th May 2021).

[10] Ibid 7

[11] History of APDK available at https://www.apdk.org/our-journey also https://www.apdk.org/wp-content/uploads/2020/07/HISTORY-OF-APDK (Accessed on 23rd June 2021.

[12] Fikru Negash Gebrekidan, Disability Rights Activism in Kenya,1953-1964: History from Below, Cambridge University Press, 2013. Africa Studies Review, volume 55, Issue 3, December 2012, pp 103-122.

[13] Ibid 6

[14] Ibid 6

[15] Ibid 6

[16] Ibid 6

[17] https://www.albinismsocietyofkenya.org ( Accessed 2nd May, 2021).

[18] ibid

[19] Came into force in June 2004, via a Gazette Notice No.64 of 2004

[20] These include, the Persons with Disabilities (Registration) Regulation 2009, the persons with Disabilities (Income Tax Deductions and Exemptions) Order2010, the persons with Disabilities (National Development Fund for Persons with Disabilities (Conduct of Business and Affairs of the Board of Trustees) Regulations 2009, the persons with Disabilities (Cost Care support and Maintenance,) Regulation, 2009,

[21] https://www.youtube.com/watch?v=BcKR7yuTQqU (Accessed 20th May, 2021)

[22] https://www.hdr.undp.org/en/content-universality-and-priorities (Accessed 20th May, 2021)

[23] Convention on the Rights of Persons with Disabilities and Optional Protocols-https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf

[24] The Final Version Building Bridges Initiative. Available at: https://www.kenyalaw.org/kl/fileadmin/pfdowns/BBIFinalVersion.pdf (Accessed on 13th July, 2021)

[25] Kenya Gazette Supplement No.5 (Senate Bill No. 1. Published on 6th February 2019, Printed and Published by the Government Printers.

[26]  The Preamble of the Persons with Disabilities (Amendment) Bill, 2020

[27] The Preamble of the Persons with Disabilities Act No, 14 of 2003

[28]  Chapter 11 of the Constitution of Kenya, 2010

[29] Devolution Handbook 2014, Transparency International. Available at. https://www.tikenya.org/wp-content/uploads/2017/06/a-handbook-on-devolution-and-devolution-implemented-laws-in-kenya.pdf (Accessed 15th June, 2021)

[30] Article 6(1) of the First Schedule of the Constitution of Kenya, 2010

[31] Article 6(2) of the Constitution of Kenya, 2010

[32] Fourth Schedules of the Constitution of Kenya, 2010

[33] Article 174 of the Constitution of Kenya, 2010

[34]  Principle legislation persons with Disabilities Act, No. 14 of 2003, interprets the word discriminate.

[35] Article 27 (4) of the Constitution of Kenya, 2010.

[36] Africa Disability Alliance, Advocacy Toolkit for Disability Mainstreaming (2015).  South Africa.

[37] ibid

[38] Article 9 of the Convention on the Rights of Persons with Disabilities (CRPD)

[39] International Labour Organization. Disability Inclusion Strategy and Action Plan 2014-2017: A twin track approach of mainstreaming and Disability Specific action. Geneva. International Labour Organization. 2015. In Access to Employment in Kenya: The voices of Persons with Disabilities, International Journal on Disability and Human Development.2016

[40] Wilson Macharia v Safaricom PLC Constitution Petition No. 434 of 2019. Available at https://www.kenyalaw.org/caselaw/cases/view/215671

[41] Barton, L.’ The Struggle for Citizenship: The Case of Disabled People’’ Disability Handicap and Society,8(3), 1993, 235-248

[42] Luciano Thuo, implementation of Political Participation Standards for Persons with Intellectual disabilities in Kenya. Strathmore Law Journal, Volume 2, Number 1, 2016. Strathmore Press.

[43] CRPD General Comment No. 1, Article 12: Equal Recognition before the law, 11 April 2014, para 8

[44] Report from the Kenya National Commission on Human Rights, From the Norm to Practice a Status Report on the Implementation of the Rights of Persons with Disabilities in Kenya, 2014 pp. 11.

[45] Article 10,174 and 232 of the Constitution of Kenya, 2010

[46] ibid

[47]  Ibid Article 3a

[48] Article 1of the Universal Declaration of Human Rights (UDHR)

[49] Ibid Article 1

[50] Article 3 (a) of the Protocol to the African Charter on Human and Peoples Rights on the Rights of persons with Disabilities.

[51] Ibid Article 3 (b)

[52] Ibid Article 2

[53] Ibid Article 3 (b), Article 3 (e)and Article 3 (h)

[54] Ibid Article 27 (4)

[55] Ibid Article 3 (b)

[56] Ibid Article 3 (c)

[57]  Ibid Article 3 (d)

[58] Ibid Article 3 (d)

[59] Preamble of the Constitution of Kenya, 2010

[60] Ibid article 3 (e)

[61] Ibid article 3 (e)

[62] Ibid article 3 (f)

[63] Ibid article 3 (f)

[64] Ibid article 3 (h)

[65] Ibid article 3 (i) and (j)

[66] Article 4 (1) (c) of the CRPD and Article 4 (b) of the African Protocol.

[67] Ibid 39

[68] Ibid 39

[69] Article 32 of the African Protocol Draft

[70] Article 24 (1), (2) and (3)

[71] Ibid 39

[72] Ibid 63

[73] Article 54 (2) of the Constitution of Kenya, 2010

[74] Ibid 68

[75] Lacey v Lacey (Public Trustee of) (1983) B.C.J No. 1016

[76] William Aseka and Arlene S Kanter ‘ The Basic Education Act 2013: Why it is one Step forward and One Step  backwards for Children with Disabilities in Kenya (Chapter 2) [2014] ADRY 2, The African Disability Year Book

[77] Article 54 (2) of the Constitution of Kenya 2010

[78]  George Mukwenywa Kisaka v National Council for Persons with Disabilities, Cause No.528 of 2015 [2017] e KLR

[79] Article 54 (e) of the Constitution of Kenya 2010

[80] Ibid 52

[81] Article 22 of the Constitution of Kenya 2010

[82] Ibid 75

Guest author The Platform Magazine