A Need to go beyond Legislation

Access to Justice / Advocacy Statements / ArticlesFebruary 2, 20161 CommentsKituo Cha Sheria


“Our lives begin to end the moment we begin to stay silent about things that matter” – Martin  Luther King Jnr.

If you were asked, what is the most desirable Chapter in the Constitution of Kenya 2010? What would you say? I know there may be no easy answer to this question but I would pick Chapter Four on the Bill of Rights. Arguably, the Bill of Rights is the fulcrum of this Constitution. It is a point of convergence for the leaders and the citizens of Kenya.

Moreover, the Bill of Rights signifies a big departure from the past. Unlike the previous document, the Constitution of Kenya 2010 inter alia embraces principles of inclusivity. The law has deliberately recognized women, the youth, marginalized groups and persons with disabilities and bestowed upon them a myriad of rights which include social, political and economic rights.  But if I may ask, where are these rights?

As a person with physical disability I can’t help but ask these questions? Where are the rights for persons with disabilities? Were they just written to make the supreme law attractive? Was it just about the referendum?  Or is it a matter of appeasing our conscience that at least we have persons with disabilities recognized by the law? Please walk with me through this paper and perhaps you will see the genesis of my frustrations.

Firstly, the Constitution of Kenya 2010 provides for access to justice. An interpretation of this article is that citizens of Kenya have a right to justice. Legal scholars are quick to look at this provision from the technical point of view, that is, the right to approach the court through pleading, have a hearing and get justice. What of the literal meaning? My experience- while undertaking judicial attachment about four years ago- is that most of our courts in the magistracy level have no ramps. Their entrances are poorly designed and have no allowance for a wheelchair user. I wouldn’t want to talk about other facilities such as the washroom but I guess you get the picture. So, what justice can I get if the courts have not taken initiative to put infrastructure in place? What justice does Article 48 promise if I can’t get into a court room using my wheelchair? I have always asked myself whether the Chief Justice or even the Registrar of the High Court is aware of this.  How many resources would it take to build a ramp at the entrance of a court building?  Other government offices are no different especially at the county level, yet we pride ourselves with the provisions of Article 54 of the Constitution of Kenya 2010.

Secondly, there is a right to access to educational institution for persons with disabilities. How many primary and secondary schools have facilities for persons with disabilities? How many public Universities are ‘disabilities friendly’?

Thirdly, the Persons with Disabilities Act Cap 133 of the laws of Kenya establish a National Council for Persons with Disabilities. A brilliant idea you would say; Section 7 of the Act outlines a number of functions given to the council. (1) They have a role to ensure that there are equal opportunities in education and employment. Unfortunately that is only on paper. So far we have deliberated over a lack of facilities for persons with disabilities in schools and offices. How are they to ensure equal opportunity in education and employment yet they do not take steps to sensitize the public and making sure that educators and employers have a disability friendly environment? I can’t help but wonder how much money and resources it would take between the ministries in charge of education, labour relations and the council of persons with disabilities to make this a reality. (2) The National council has a role to register persons with disabilities in Kenya. This is with the aim of helping the government plan for the welfare of these people. How do they do this? If you were in Nairobi, you have to go to the council offices in Westlands; they will send you to Mbagathi Hospital, where you go through medical assessment (which you have to pay for) then go back to the Council with your details and passport size photos. They will tell you to go back home and come after three months to pick your identity card. Interestingly, they most times loose the photos and tell you to bring others.

This is a normal process. It makes sense to a man in an omnibus, until you tell them that the subject (this person moving from Mbagathi, to Westlands and to Mountain View) is on a wheelchair and is using public transport in this city of Nairobi! Granted, it may be cumbersome to walk from house to house registering persons with disabilities but I bet it wouldn’t kill us to centralize the process. Put the whole process in one particular place. Statistics which they have should tell them that about half of Persons with disabilities are physically handicapped, translating to mobility problems. Why are the council offices opposite ABC Place in Westlands, with such traffic?  How much will it take the Council to automate everything? I feel that the process is not just cumbersome but inhumane. (3) The other roles given to the Council is to provide assistive devices, helping the government develop curriculum, helping with the establishment of rehabilitation centers. These are very good laws but the reality is mind- boggling.

Fourthly, there is a provision for civil rights for persons with disabilities. This goes ahead through the Constitution and provides for representation of persons with disabilities in both national and county level legislation houses. The rationale perhaps is that they have a role to ensure that there is disability mainstreaming in the country. Four years down the line and I still see a helpless boy on a wheelchair in Buru Buru for example begging for coins on the streets. Four years down the line, I still know of persons with disabilities in Universities who call-off due to lack of fees. Don’t we still have helpless children hidden away in houses in the villages?

What is the need of having disability representatives in parliament while their constituents are going through all these? I am yet to see a single piece of legislation brought to the house by a disabled member of parliament. I am also yet to see any legislation streamlined to fit within the needs of persons with disabilities.

Lastly, I will focus on the freedom of information. The Persons with Disabilities Act provides for sign language interpretation in news broadcast and important national events.  This is in recognition that there are many citizens in this country with speech and hearing impairment.  Does this happen? I know that there are still media houses that do not incorporate sign language in their news bulletins for example.  If other media houses have done this, why is it so hard for others? How much money does it take to set up this system and employ a sign language interpreter?

Clearly, there is a need to go beyond the law. There is need to implement the law. There is need to create disability awareness. There is need to demand for the concerned sectors to do their jobs properly. It is time for persons with disabilities to demand for their rights. It is time to move from pen and paper to actual realization of our aspirations. I don’t think it is fair that persons with disabilities are fed bread crumbs while we hide behind the veil of legislation.

I therefore, urge everyone with or without disability to look at these issues. Seek the truth and help in moving beyond legislation.


Ouma Kizito Ajuong’

Kituo cha Sheria.



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