To Do or Not Do: A Critical Look into the Welfare of Persons with Disabilities in the Legal Profession
Access to JusticeJuly 31, 20210 CommentsKituo Cha Sheria
According to the 2019 census, 2.2% of the Kenyans live with some form of disability. This translates to 0.9 million people which is a significant number of the population. While getting accurate data on disability is challenging due to inter alia the lack of universally accepted standards of counting persons with disabilities and challenges of stigma, the 2019 census conservatively recorded a prevalent rate of 3.5%. These numbers highlight two issues; Firstly, that the number of persons living with disabilities is rising and anyone can be affected. Secondly, PWDs do not only form an important fabric of the population in Kenya, but are distributed in every sector, area, and profession including the legal profession.
This article therefore, focuses on the dignity and welfare of persons living with disabilities in the legal profession. It argues that there is need for the legal profession to step up and take care of their members with disabilities. It posits that the legal profession and fraternity have a duty to not only promote and protect the rights of persons with disabilities in Kenya, but also to advocate for and safeguard the gains within the Constitution of Kenya, 2010. This article further discusses the challenges that members with disabilities go through within the profession. It suggests that while there is often a distinction between the legal education and the legal profession, it is but the egg and the chick philosophy. It therefore challenges the legal fraternity ‘to do’ and put in place welfare programs for members with disabilities.
DISABILITY AND THE LEGAL EDUCATION IN KENYA
As stated in the preamble, legal education is a big component of the legal profession. It is the gate-pass to the legal profession. It is important to acknowledge that legal education in Kenya is governed by the Legal Education Act, while the Law Society of Kenya Act (LSK Act) applies to matters involving Advocates hence the distinction. This does not however mean that members of the legal fraternity cannot intervene. Section 4 of the LSK Act gives power to the society to not only advise the Government on legal issues and related matters, but to also improve the standards of learning and knowledge acquisition of advocates.
For persons with disabilities, acquiring legal education comes with a number of challenges. The curriculum used in the Universities and Kenya School of Law (KSL) is not accommodative to learners with disabilities. Learners with hearing impairments or visual impairments are usually the most affected as learning materials are hardly in braille. It is accurate to state that only the Constitution is the only legal instrument that is done in braille. These students have therefore to openly struggle not only to catch up but to get quality in their education. The other challenge is getting placement for the pupillage program. A lot of firms and institutions that offer pupillage are not situated in friendly environments for learners with disabilities. This refers to availability of ramps and perhaps an open office space for wheelchair users to navigate. Additionally, learners with disabilities are often exposed to mobility challenges, especially those with physical disabilities. The reality is public transport is simply a nightmare and many times humiliating for any lawyer with physical disability starting out in his career putting in mind that at this time the ‘cab option’ is perhaps too expensive. Accommodation challenges especially where they have to look for houses are also part of the deal. The cost of acquiring legal education is also a huge barrier to learners with disabilities as a lot of them usually come from poor backgrounds with very little access to loans and grants
DISABILITY AND THE LEGAL PROFESSION IN KENYA
A lot of advocates living with disabilities in Kenya face a myriad of challenges upon admission to the bar. Employment of advocates with disabilities is a challenge. As much as the Constitution of Kenya, 2010, article 54 (2), stipulates that at least 5% of appointive and elective positions are slotted for persons with disabilities, there is no private or Government institution that has reached that threshold. A number of reasons are given for the challenges of employment of professionals with disabilities such as lack of skills. When it comes to the legal profession however, the barrier to employment is law firms and institutions that are not disability friendly and these include the courts.
The challenge of mobility and housing is a reality for any advocate with physical disabilities. Think of an advocate on a wheelchair and files in hand and the set-up of the city of Nairobi with its horrible transport system and perhaps the point will hit the mark. Housing is also another vital area. It is strange that even though housing is part of the big four agenda, few remember that the disabled are disadvantaged when it comes to finding disability friendly houses.
The other challenge that persons with disabilities in the legal fraternity experience is getting documentation such as Income Tax Exemption Certificates or Duty Exemption Certificates for vehicle importation. As much as these are rights in the law, supported by statute and the constitution, the red tape and bureaucracy from KRA and other Government institutions is but a nightmare.
WHAT LSK CAN DO
The LSK can has the mandate and power to change a few things. Working together with the Council for Legal education, they can work on a curriculum that is all inclusive and advice the Government and advocate for disability friendly courts and institutions of higher learning. It does not make sense that a lot of courts in Kenya do not have ramps and lifts yet they are public places.
The LSK may also work with and advice the Government on regulations to make the public transport disability friendly for PWDs. The LSK may also help in working with institutions such as KRA, NCPWDs and the parent Ministry to remove the red tape when it comes to tax exemptions for persons with disabilities.
LSK has to have data on the members with disabilities. This is important in understanding the challenges and designing appropriate welfare programs. The society may engage the membership so as to create a placement program for advocates with disabilities. Furthermore, young advocates with disabilities may be exempted from taking out practicing certificates as an affirmative program. This can also apply to continuous legal education.
This article concludes by challenging the law society of Kenya to recognize and work towards tangible welfare programs to make the legal fraternity inclusive.
By Ouma Kizito Ajuong – Advocate of the High Court of Kenya
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