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The Kenya Constitution : Opportunities and Challenges for Persons with disabilities. By Charles Nyachae Chairperson Commission on the implementation of the Constitution(CIC)
The Constitution of Kenya Key Tenets • Preamble paragraphs clearly state the aspirations of Kenyans for government based on the essential values of human rights, equality, freedom , democracy, social justice and the rule of law • Sovereignty of the People: Art: 1(1) & (4), 94(1), & (4), 129 & 159 (2), 249(1) (a) (c) • Supremacy of the Constitution: Art 2 • Ratified International Treaties part of the laws of Kenya: Art 2 • National Values and Principles: Arts. 10, 73,
The ConstitutionKey Tenets • Bill of Rights: Chapter 4, includes social economic rights -Equality, Equity, non discrimination and affirmative action • Devolution of government • Commissions and Independent Offices
The Constitution & the Persons with Disability (PWD) • By virtue of Article 2 of the Constitution ,the UN Convention(CRPD) on the rights of persons with Disability is applicable as law in Kenya. -The purpose of the Convention is - 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
The Constitution & the Persons with Disability (PWD) • The Constitution recognizes sign language, Braille and other communication accessible to persons with disabilities (Art. 7) as part of the official languages
The Bill or rights and PWDs • Article 27(4) on non- discrimination prohibits direct or on indirect discrimination against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. • Article 28 promotes respect and protection for human dignity of every person.
The Bill or rights and PWDs. • Art. 21 of the Constitution bestows a fundamental duty on the state and every state organs to observe,respect , protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights. -It goes further to mandate all state organs to address the needs of vulnerable groups within society including persons with disabilities.
The Bill or rights and PWDs • Article 43 recognises economic and social rights including; - • Highest attainable standard of health • Housing • Sanitation • Freedom from hunger • Clean and safe water • Social security • Education • Emergency treatment • Appropriate social security
The Bill or rights and PWDs • In article 54 the Constitution recognizes and specifically details rights of persons with disabilities. The particular rights include – • The right to be treated with dignity • Equal access to educational facilities • Reasonable access to all places • Use of sign language , Braille or other communication
The Bill or rights and PWDs • Access materials and devices to overcome constraints arising from the person’s disabilities • Article 54 also entrenches the affirmative action principle to facilitate the progressive realization of at least 5 per cent of PWD in elective and appointive posts
Other gains for PWD • Articles 97(1)(c) requires the 12 nominees to the national Assembly to include PWDs • Article 98 (1)(d) requires 2 nominees to the Senate to be PWDs • Article 177 (1)(c)Specifically provide for nomination of PWD to County Assemblies
Implementation steps Its clear that all State organs in in one way or another have a Constitutional obligations to ensure that the rights of PWDs as entrenched in the Constitution and the CRPD are implemented. The CIC as the Institution with the mandate to monitor implementation has done the following:
Implementation steps • Is working with implementers in all arms of government to ensure that the letter and spirit of the Constitution is Implemented. • Issues a circular to implementers in the executive to ensure that all policies and laws are reviewed as follow:
Implementation steps • To ensure that Constitutional Values and Human Rights principles are integrated in all national, sectoral and county policies; • To ensure that Constitutional Values and Human Rights principles are integrated in all national, sectoral and county legislation; and • To ensure that Constitutional Values and Human Rights principles are integrated in all national, sectoral and county administrative procedures.
Implementation steps • The CIC work plan on the thematic area includes some activities that will guide implementation of the rights of PWDs. These include:- - the development of an Implementation guide for integration of Constitutional values and human rights for implementers in the public service developed. -the monitoring of laws that are being developed to mainstream issues of PWD. CIC has been inviting PWD representatives to its consultative forums on bills.
Implementation steps • The provision of guidance, as part of its facilitative mandate, in the mapping of the country and setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43of the Constitution which will mitigate a lot of the vulnerabilities facing PWDs
Implementation steps To effectively implement the rights of PWDs, the different Ministries will have to integrate concerns on disability in their policies laws and working tools to ensure accountability. For Example: ….
Implementation 1. The Ministry of Planning and the Kenya National Bureau of Statistic should include parameters that address needs of PWDs in the tools for data collection on the different development issues
Implementation Steps 2. The Ministry of Education should in its policy define access for populations with different disabilities(e. g visual, physical & mental) in order to plan for there needs(physical facilities, educational materials etc). 3. IEBC should design the electoral system is such away as to facilitate the exercise of the right to vote by PWDs on an equal basis with other Kenyans.
Implementation Steps Examples continued.. 4. The Judiciary should define in its policy on access to justice parameters for PWDs including those with mental disabilities. 5. The Ministry for Roads should in its policies and laws ensure integration of the Convention on person with disabilities on access for PWDs in the design of roads and other public works
Implementation steps While the foregoing are examples of what specific actors should do , it is incumbent upon each and every actor and implementer to recognize that they serve PWDs and take the responsibility to develop strategies to address their needs.
Safeguarding the gains All key implementers are called upon to ensure; • Constitutional provisions are implemented and respected • All laws in existence are reviewed to be in conformity with the Constitution – This includes the Persons with Disability act which should be reviewed for conformity with the Constitution
Safeguarding the gains • All policies and administrative procedures should be reviewed to be in line with the Constitution • All necessary measures should be taken by each one of us to ensure benefits and opportunities for persons with disabilities as embedded in the Constitution are utilized for persons with disabilities to realize their full potential