Occupation Health & Safety as a Disability Right: Is there a Lacuna in the Law?
Advocacy Statements / ArticlesNovember 7, 20190 CommentsKituo Cha Sheria
Occupation and safety health laws refers to collection of constitutional, statutory and customary standards and obligations meant to ensure safety in the work place. This is a traditional and pivotal part of employee welfare program. It is engrained in the principles of labour relations. The idea that for employees to optimally be productive, there is need to make the working environment safe and accessible. Legally, international instruments such as Article 7 of the Convention on Social Culture and Economic Rights provides that employees inter alia are entitled to safe and healthy working conditions. The ILO has also come up with over fifty instrument all dealing with different aspect of safety at work.
These statutes distinctively deal with safety to prevent deaths, accidents and therefore work related disabilities. The Constitution of Kenya 2010 is silent when it comes to occupational safety and health in general. However, the Occupational Health and Safety Act, 2007 breaks down the issues that constitute occupational health and safety law. These include: rights and duties with regards to occupational health and safety, creation of an administration office to implement the Act, health safety, chemical safety, amongst others.
This paper is however concerned with three issues;
- Are occupational health and safety laws part of disability rights?
- How are occupational health and safety laws fused into disability laws and what’s the jurisprudence thereof
- What is the way forward and best practice?
Occupation Health and Safety as a Disability Rights
Disability Rights may be defined as those distinct rights elaborating sufficient standards of protection for civil, cultural, social and economic rights for persons living with disabilities on the basis of inclusion, equality and non-discrimination. These Rights were born out of the realization that persons with disabilities though are a part of the general population and social fabric; face unique challenges and situation that require legislative interventions.
Therefore, are occupational health and safety laws disability laws? The answer to this is in the affirmative. Persons living with disabilities form part of the workforce and therefore need specific needs with regards to occupational safety and health. There is need to make a distinction that while the general laws are meant to prevent and protect against disabilities- occupational safety and health as a disability is after the welfare and safety for persons with disabilities. It ideally asks the employees to ensure that their places of work are not only disability friendly but safe.
Occupation Health and Safety within Disability Law
Disability laws in the Kenyan context consist of the Constitution of Kenya 2010, Convention on the Rights of Persons with Disabilities and Persons with Disabilities Act No. 14 of 2003. Having established that occupational health and safety is an integral part of disability rights. It is important to interrogate if this is covered in the disability laws. Disability Rights are given a spotlight in Article 54 of the Constitution of Kenya 2010. While the supreme law does not directly speak of occupational health and safety, the law requires employment of 5% of persons with disabilities to every appointive and elective position.
The Constitution of Kenya 2010 also reiterates the obligation to treat persons with disabilities with dignity. This in no uncertain terms means inclusivity and therefore boils down to access and safety at the work place. In addition to this, access and free movement for persons with disability is also a key element of Article 54.
The Convention on the Rights of Persons with disabilities which is part of the laws of Kenya pursuant to article 2 of the Constitution 2010, gives member states an obligation to ensure that persons with disabilities have access in the work place; are appreciated for their skills in the labour market and work in a safe environment. The Parent Act- the Persons with Disabilities Act, just like the Constitution of Kenya; while it touches on related provision on work, access and the standards of public building; it is silent on matters of safety at work with regards to persons with disabilities.
What about Jurisprudence from the Courts?
A lot of matters regarding disability rights and mainstreaming have been canvased within the legal system since the promulgation of the Constitution of Kenya in 2010. There is however very little jurisprudence on the matter of occupation health and safety for persons with disability. The prevailing attitude is one looking at these provisions as preventive of disability but not rights for persons with disabilities. Is there a lacuna in the law?
Which Way Forward?
The Convention on the rights of persons with disability promotes integration and disability mainstreaming. This means having an inclusive look in every aspect of life for a person with disability. While prevention is key, disability laws majorly focus on those with disabilities. Occupational health and safety laws would therefore ensure that these persons are safe at work and are able to be productive in spite of disability.
I therefore propose the following interventions: –
- There is need to change the attitude on disability. Kenya has to start looking at persons with disabilities as an integral part of the society. I therefore propose an integral and inclusive way of looking at the law and resultant jurisprudence.
- Legislative interventions- there’s need to amend the parent disability statute to include matters of welfare, health and safety in the workplace for PWDs.
- There is also need to have awareness in this subject. Create rules and regulation- subsidiary legislation that touches on specific hazards are meant to protect the vulnerable such as PWD’s in case of emergencies at the place of work.
Ouma Kizito Ajuong’
Advocate of the High Court of Kenya