Of the new disability law and Kenya’s new dawn

On the continent and abroad, Kenya continues to punch above its weight on disability inclusion. This is why the first disability law – the Persons with Disabilities Act, 2003, signed by President Mwai Kibaki was not meant to be the last.

 Instead, it was the first legislative cornerstone for millions of persons with disabilities to build their hopes and push for a more inclusive Kenya. At the time, I was not a person with disability, so I could not understand what it meant for many Kenyans with disabilities from towns to villages.

The newly assented law aligns with Article 54 of the Constitution and the United Nations Convention on the Rights of Persons with Disabilities, which Kenya ratified in 2008, effectively granting a broader scope of rights to persons with disabilities.

These rights span a wide range, from the right to equality and non-discrimination and the right to legal capacity, to rights to documentation of identification, education, work and employment, civil and political rights, protection from abuse and exploitation, and access to justice, among others.

Acquiring birth certificates

The Act provides solutions that touch the lives of many persons with disabilities and their families. To the parents and guardians who, over the years, encountered hardships acquiring birth certificates and national identification cards for their children with disabilities, sometimes being discouraged that it was ‘unnecessary’, the new law accords them the right to be issued with birth certificates, national IDs, passports, disability registration and other forms of registration free of charge.

 To those who could not afford the costs of undergoing a disability medical assessment for registration as persons with disabilities, the new law states that these assessments shall be done at no cost in public health facilities.

To those who have been seeking decent work that has been elusive for so long, the new law mandates every public and private employer with at least 20 employees to reserve five per cent of job slots for candidates with disabilities. To those who aspire to become homeowners, the new law directs the government entities building residential and commercial premises to reserve at least five per cent of the residences for persons with disabilities, including privileges such as financial aid offered at interest-free and longer periods of repayment.

To the needy parents and guardians of children with disabilities who have had to make huge sacrifices to provide round-the-clock care for their children with disabilities, the new law prescribes an income tax exemption to ease their financial burden. And for those who always wondered why they would be subjected to fresh income tax exemption vetting exercises every five years despite having permanent disabilities, the new law exempts them from future vetting processes.

A great disservice of the previous disability law was that it had been passed way before the promulgation of the 2010 Constitution, hence didn’t envision devolution and the role of county governments in promoting disability inclusion.

Proper planning

Gladly, the new law stipulates obligations of the counties in promoting disability mainstreaming, which includes allocating adequate resources to disability-related programmes, ensuring inclusion in county programmes, and developing structures for identification of persons with disabilities residing in the counties for proper planning.

At the national level, counties are also represented in the Board of the National Council for Persons with Disabilities through a representative nominated by the Council of Governors.

The signing of the new disability legislation has also brought with it new energy to harness, and the Government has taken its rightful position in pushing for changes. In March this year, the Cabinet approved Kenya’s first Persons with Disabilities National Policy, a long journey that began way back in 2006.

Also, President Ruto, during the assenting ceremony of the new law at State House, Nairobi, directed that the disability mainstreaming performance indicator, which had been removed from the Government’s Performance Contracting framework in 2023, be reinstated so as to hold institutions accountable for their disability inclusion efforts.

Last month, the Chief of Staff and Head of Public Service Felix Koskei directed all government institutions to establish disability mainstreaming units to coordinate disability mainstreaming, set aside five percent of employment opportunities for persons with disabilities, ensure reasonable accommodation to staff with disabilities, implement disability affirmative action measures in Access to Government Procurement Opportunities (AGPO), as well as submitting compliance reports to the NCPWD. The Council is also expected to appoint inspectors who shall be tasked with investigating any violations and recommending legal or other remedial actions.

The new disability Act has come at a very crucial time. Disability is on the rise due to factors such as road accidents, lifestyle diseases, a silently growing ageing population (2019 census had 2.7 million Kenyans age 60 and above –highest since 1969), among others.

There are various efforts that could be taken up going forward. First, all entities, public and private, including constitutional commissions and independent offices, should embrace sensitisation forums to be informed of the new law and what is expected of them for integration into their strategic and institutional plans.

Second, persons with disabilities themselves and their organisations should endeavour to fully understand the new law and the opportunities and rights accorded through it. Indeed, even the Good Books emphasise knowledge acquisition as a duty and a key to liberation and true freedom. The new law will be truly realised if persons with disabilities and Kenyans in general have the zeal to understand it as they do with the Constitution.

Operationalise the Act

Third, relevant stakeholders should begin in earnest the review and development of new regulations which will operationalise the Act, especially in the areas of registration, accessibility in the built environment and technologies, inclusive employment and tax reliefs as stipulated in the legislation. Fourth, we still do not have reliable disability statistics. The United Nations Partnership on the Rights of Persons with Disabilities (UNPRPD) in its 2023 Situational Analysis of the Rights of Persons with Disabilities noted that concerns had been raised on the reliability of the 2019 census numbers on disability, due to ‘limited training of enumerators and exclusion of children with disabilities below five years.’

 The Kenya National Bureau of Statistics, in consultation with stakeholders in the disability sector, should therefore conduct the much-awaited national disability survey to provide conclusive insights on the socio-economic status of Kenyans with disabilities – an outcome very useful in informing budgetary and policy interventions.

As a country, much has already been achieved with the repealed 2003 Act, with a high standard already set. We cannot afford to move backwards. To the disability movement, the new law, which is an achievement, is not an end in itself. Instead, it is the opportunity we have to change the destiny of many for the better. Let’s not waste this chance.

Mr Hassan serves as a commissioner of the Public Service Commission, and is an author. He writes in his personal capacity ([email protected]).