An Act of Parliament to give effect to Article 54 of the Constitution; to restructure the National Council for Persons with Disabilities and to provide for its functions and powers and to provide for the institutional framework for protecting, promoting and monitoring the rights of persons with disabilities.
| PART I - PRELIMINARY | ||
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| PROPOSED PROVISION FOR AMENDMENT | PROPOSED AMENDMENT | OUR COMMENTS |
| Clause 2 Interpretation | "assistive devices" includes implements, tools, equipment, taped texts, audio, visual and pictorial recording, Braille equipment and materials, tactile equipment, orthopedic appliances, software and other devices and machines for persons with disabilities for their socio-cultural, economic, civil, political wellbeing of persons with disabilities. | Assistive devices empower persons with disabilities to perform their daily activities independently and reduce dependence on others. Secondly, assistive devices enable persons with disabilities to perform job tasks effectively. This contributes to greater inclusion in the workforce. |
"communication" includes languages, display of text, Braille, tactile communication, signs, large print, accessible multimedia and written, audio, plain-language, easy to read, pictorial, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology. | By encompassing a wide range of communication modes, this definition ensures accessibility for all persons with disabilities. This is particularly relevant for individuals with visual, auditory, cognitive or other impairments who may require alternative modes of communication. |
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"disability" means loss, limitations or restriction of capacity owing to physical, sensory, mental, psychological or other impairment, conditions or illness that has, or is perceived by significant sector of the community to have a substantial or long-term effect on an individual ability to carry out ordinary day to day activities and interactions. | The broad definition of this term recognizes the diversity of disabilities, encompassing a wide range of impairments and conditions. This inclusivity ensures that individuals with various types of disabilities are acknowledged and covered under the Bill. |
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"discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. | This definition seeks to align the Bill with international law as the same definition of the term has been included in article 2 of the Convention on the Rights of Persons with Disabilities. Further, this definition ensures that the principles of equality and non-discrimination in article 27 of the Constitution are adhered to. |
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"disability mainstreaming" means a strategy through which concerns, needs and experiences of persons with disabilities are made an integral part or dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and social spheres so that persons with disabilities benefit equally and inequality is not perpetuated. | Disability mainstreaming ensures that the concerns and needs of persons with disabilities are integrated into the design of policies and programs. This promotes the development of inclusive policies that consider the diversity of the population and address barriers faced by persons with disabilities. Secondly, by making the experiences of persons with disabilities an integral part of policy design and implementation, disability mainstreaming aims to ensure equal access to opportunities. This includes access to education, employment, healthcare and public services. |
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"inclusive education" means an approach where learners and trainees with disabilities are provided with appropriate educational interventions within regular institutions of learning with reasonable accommodations and support. | Inclusive education promotes equal opportunities for all learners, regardless of their disabilities. It ensures that persons with disabilities have access to the same education resources and curriculum as their peers who have no disabilities. |
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"organizations for persons with disabilities" means associations, groups, non-governmental organizations or societies formed for the purposes of rendering services to persons with disabilities. | Organizations for persons with disabilities provide a platform for community support and empowerment. They offer a sense of belonging, understanding and shared experiences which fosters a supportive community for persons with disabilities. Secondly, organizations for persons with disabilities play a crucial role in advocating for the rights and inclusion of persons with disabilities. They work to raise awareness, influence policies and promote a more inclusive and accessible society for persons with disabilities at local, national and international levels. |
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"organizations of persons with disabilities" means associations, societies or other membership groups led and controlled by persons with disabilities to represent the rights and interests of persons with disabilities. | We propose the deletion of this term as it has already been defined in this clause. |
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"persons with disabilities" includes persons with permanent physical, mental, intellectual, developmental or sensory impairments, including visual, hearing or albinism, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. | Recognizing a broad spectrum of disabilities ensures that individuals with diverse impairments have access to appropriate services and support. It facilitates the design of interventions, accommodations and assistive technologies that cater to a wide range of their needs. |
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The Cabinet Secretary for the time being responsible for the National Treasury may, on the recommendation of the Cabinet Secretary, provide, by notice in the Gazette, that: a. any income or class of income; or b. any person or category of persons, shall be exempt from the application of section 4 to the extent specified in the notice. | We propose that the criteria used by the Cabinet Secretary to determine if a person will be exempted from paying the Levy is included in this clause. This proposal enhances transparency as it creates a legal framework that the Cabinet Secretary will follow in determining whether a person can be exempted from paying the Levy. |
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"specific measures" means legislative, policies and practices, including outreach or support programmes, allocation or reallocation of resources; preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames; and quota systems designed, adopted and implemented in order to fulfill equal enjoyment of rights of persons with disabilities. | Specific measures help create a level playing field by ensuring that persons with disabilities have equal opportunities in various aspects of life, including education, employment and social participation. |
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"support services" includes support provided by persons, sign language interpreters, guide dogs, government or other institutional services and other personal supports specifically provided to enable people with disabilities to fully participate in society and community life and include specialized expert or any other service. | By recognizing a wide range of support services, this definition promotes enhanced accessibility for persons with disabilities. It ensures that their diverse needs are acknowledged and accommodated, contributing to a more inclusive and accessible society. Secondly, support services enable persons with disabilities to fully participate in society and community life. This inclusivity is vital for fostering a sense of belonging, social integration and active engagement in various aspects of life. |
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"universal design" means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design and it shall not exclude assistive devices for particular groups of persons with disabilities where this is needed. | Over time, universal design of products can be cost-effective as it reduces the need for adaptations to accommodate different user needs. It saves costs associated with making adjustments for specific groups later on. |
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Clause 3 Guiding values and principles | In promoting and protecting the rights of persons with disability under this Act or any other law, every state organ, state office, public officer and all persons including incorporated and unincorporated business associations, civil society and organizations of and for persons with disability shall be guided by the following principles: a. respect for inherent dignity and individual autonomy including the freedom to make one's own choices, and the independence of all persons in the conduct of their private affairs; b. equality and non-discrimination; c. full and effective participation and inclusion in society; d. respect for differences and acceptance of persons with disabilities as part of human diversity and humanity; e. equality of opportunity; f. accessibility; g. equality between men and women; and h. respect for the evolving capacities of children with disability and respect for the right of children with disability to preserve their identities. | Guiding principles provide clarity about the intent and purpose of the Bill. They help Parliament to articulate the fundamental values and goals the Bill aims to achieve, ensuring consistency in its interpretation and application over time. |
PART II — RIGHTS OF PERSONS WITH DISABILITIES | ||
Clause 10 Purpose of the Fund | The purpose of the Fund shall be to provide funds for the development of affordable housing and associated social and physical infrastructure. Without prejudice to the generality of subsection (1), the Fund shall: a. facilitate the provision of funds for affordable housing and affordable housing schemes in the promotion of home ownership; b. provide low interest loans for the acquisition of affordable housing units within the approved affordable housing schemes; c. facilitate the development of affordable housing schemes in all counties; d. develop long term finance solutions for the development and off-take of affordable housing; e. provide funds for maintenance of any land or building, estate or interest therein, for any of the purposes of the Fund; and f. fund any other activities incidental to the furtherance of the objects of the Fund. | The addition of paragraph (b) is a good addition. Firstly, providing low-interest loans for the acquisition of affordable housing units promotes home ownership and helps individuals and families achieve housing security and stability. For paragraph (c), the Fund aims to facilitate the development of affordable housing schemes in all counties. This contributes to balanced regional development and reduces disparities in housing availability between urban and rural areas. For paragraph (d), developing long-term finance solutions for the development and off-take of affordable housing promotes sustainable housing development practices and ensures ongoing availability of funds for affordable housing projects. |
Clause 11 Allocations out of the Fund | The Board shall allocate out of the Fund: a. thirty percent of the monies to the National Housing Corporation for the development, maintenance, rehabilitation and off-take of affordable housing programmes and projects; b. thirty percent of the monies to slum upgrading, maintenance, rehabilitation and offtake of affordable housing programmes and projects under the Public Finance Management (Kenya Slum Upgrading, Low-Cost Housing and Infrastructure Trust Fund) Regulations 2006; c. thirty six percent of the monies to the State Department responsible for matters relating to affordable housing for the development, maintenance, rehabilitation and offtake of institutional housing programmes and projects approved by Cabinet; d. up to two percent to the collector for the collection of the Levy as may be approved by the Cabinet Secretary forie the time being responsible for the National Treasury on the recommendation of the Cabinet Secretary; and e. up to two percent of the monies to the Board for the administration of the Fund as may be approved by the Cabinet Secretary for the time being responsible for the National Treasury on the recommendation of the Cabinet Secretary. | By allocating specific percentages of funds to different agencies, the Board ensures that resources are directed towards targeted areas of affordable housing development, including maintenance, rehabilitation and slum upgrading. This focused utilization enhances the impact and effectiveness of the Fund's activities in addressing housing affordability challenges. Secondly, the allocation percentages reflect a balanced approach to addressing various aspects of affordable housing, including the development of institutional housing, slum upgrading and maintenance. This ensures that resources are distributed equitably across different priority areas, promoting balanced and inclusive development. |
Clause 4 Right to equality and non-discrimination | Every person with disability is: a. equal before the law in the social, cultural, economic, political, or any other field of life and is guaranteed to protection, benefit of the law and to effective legal proteaior against discrimination on all grounds; and b. entitled to the full and equal enjoyment of the goods, services, facilities or accommodations on an equal basis with others. Pursuant to subsection (1), specific measures, including support services which are necessary to accelerate or achieve equality and eliminate discrimination against persons with disabilities shall not be considered discrimination. | This clause seeks to align the Bill with the principles of equality and non-discrimination in article 27 of the Constitution. Secondly, ensuring equality and non-discrimination promotes the creation of an inclusive society where persons with disabilities are fully integrated into all aspects of community life. This fosters a sense of belonging and equal participation for everyone. |
Clause 5 Right to legal capacity | Persons with disabilities have the right to recognition everywhere as persons before the law, and to enjoy legal capacity on an equal basis with others in all aspects of life. Persons with disabilities are entitled to such support services as they may require in exercising their right to legal capacity. Persons with disabilities have equal right to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit. | For sub-clause (2), support services enable persons with disabilities to fully participate in society and community life. This inclusivity is vital for fostering a sense of belonging, social integration and active engagement in various aspects of life. |
Clause 6 Right to marry and form a family | Every person with a disability who is of marriageable age has the right to marry and form a family on the basis of free and full consent. Every person with a disability has the right to control his or her sexuality and reproductive health. No person with a disability shall be separated from his or her child on the ground of disability. Every person with a disability shall at marriage, during marriage and at the dissolution of marriage be entitled to protection of his or her property acquired at marriage, during marriage and dissolution of marriage. | This is a good proposal as it ensures the Bill is consistent with the provisions of articles 45 and 43 of the Constitution. Secondly, recognizing the right to marry and form a family upholds the principle of individual autonomy. Persons with disabilities are afforded the same rights as others to make personal choices regarding their relationships and family life. Thirdly, guaranteeing the right to marry promotes inclusivity and equality. It acknowledges that persons with disabilities should not be excluded from the fundamental institution of marriage and family formation based on their disabilities. |
Clause 7 Right to privacy | Every person with a disability has a right to privacy and shall not be subjected to arbitrary interference and intrusion with his or her privacy, family, home or correspondence or other types of communication. Every public or private institution shall protect confidential information relating to personal health and rehabilitation services for persons with disabilities with dignity and such information shall not be shared without express authority of the person with disability concerned. | This is a good proposal as it ensures the Bill is consistent with article 31 of the Constitution. Secondly, respecting the right to privacy upholds the inherent dignity of persons with disabilities. It recognizes their autonomy and right to live their lives without unwarranted interference. Thirdly, persons with disabilities often have interactions with healthcare professionals. The right to privacy safeguards medical confidentiality, ensuring that their personal health information is kept confidential and disclosed only with proper consent. |
Clause 8 Women with disabilities | Every woman with a disability has the right to enjoyment of her human rights and fundamental freedoms without discrimination on an equal basis with others, including the right to: a. participate in social, economic and political decision-making and other related activities; b. protection from sexual and gender-based violence; c. be provided with habilitation, rehabilitation and psychosocial support against sexual and gender-based violence; d. sexual and reproductive health services; e. retain and control her fertility; f. keep her child and not be deprived of her child on grounds of disability; and g. full development, advancement and empowerment. | Ensuring equal treatment for women with disabilities promotes fairness and ensures compliance with article 27 of the Constitution. It recognizes that all individuals, regardless of their gender and disability status, should have equal access to rights and opportunities. |
Clause 9 Children with disabilities | Every child with disability has the right and freedom on an equal basis with other children in respect to: a. a name and registration immediately after birth; b. evolving capacities, identities and to enjoy a full and decent life, in conditions which promote and ensure dignity, self-reliance, and independence; c. freedom to express his or her views on all matters affecting him or her; and d. age-appropriate assistance to realize his or her rights. | Providing equal rights and freedoms ensures that children with disabilities have the same opportunities as their peers. This promotes a level playing field which allows them to pursue education, recreation and personal goals without discrimination. |
Clause 10 Youth with disabilities | Every young person with disability is entitled to enjoyment of human rights and fundamental freedoms on an equal basis with other youth. The Council in consultation with National and County Governments and other state agencies shall take policy, legislative, administrative and other measures to ensure that the rights of youth with disabilities are fully respected, including by: i. promoting full, inclusive and accessible education, training and employment and programmes for youth with disabilities; ii. promoting the inclusion of youth with disabilities in mainstream youth organizations and programmes; iii. removing barriers that hinder or discriminate against the participation of youth with disabilities in society; iv. promoting training and access to Information, Communication and Technology especially for youth with disabilities in rural areas; v. developing programmes to overcome social and economic isolation, and removing systemic barriers in the labour market for youth with disabilities; vi. ensuring access to credit facilities for youth with disabilities; vii. developing and implementing specific measures to facilitate full and equal participation of youth with disabilities in training, sports, culture, science and technology; and viii. ensuring that youth with disabilities have access to appropriate sexual and reproductive health education on an equal basis with others. | This is a good proposal as it ensures the Bill is consistent with the provisions of articles 54 and 55 of the Constitution. |
Clause 11 Older members of society with disabilities | Older members of society who have disabilities have the right to enjoyment of human rights and fundamental freedoms on an equal basis with others, including the right to: a. access social protection programmes; b. exercise their legal capacity and that appropriate measures and safeguards are put in place to provide them with the support they may require to exercise their legal capacity; and c. access inclusive services. | This is a good proposal as it ensures the Bill is consistent with the provisions of articles 54 and 57 of the Constitution. |
Clause 12 Right to documents of registration or identification | Every person with disability has a right to be issued with a certificate of birth, national identification card, passport, and any other document of registration or identification. No person with disability shall be deprived, on the basis of disability, of his or her ability to obtain, possess and utilize documentation of his or her nationality or other documentation of identification, or to utilize relevant processes, that may be needed to facilitate exercise of other rights. | Official documents enable persons with disabilities to access a range of services (For example, education and healthcare services). They serve as proof of identity and are often required to receive public services. Identification documents, especially national identification cards, are essential for exercising the right to vote. Ensuring that persons with disabilities have these documents promotes their participation in the democratic process. Thirdly, identification documents are often required in employment. Ensuring that persons with disabilities have the necessary documents facilitates their access to job opportunities and economic participation. |
Clause 13 Right to physical and mental integrity | Every person with a disability has a right to respect for his or her physical and mental integrity and the right to security of the person including his or her survival, liberty, protection and development. | Recognizing the right to liberty allows persons with disabilities to make choices about their lives which fosters autonomy and self-determination. Secondly, ensuring security protects persons with disabilities from harm, abuse, exploitation and neglect. Consequently, this creates a safe environment for persons with disabilities. |
Clause 14 Right to human dignity | Every person with disability has a right to human dignity and the right for that dignity to be respected and protected and in particular not to be referred to by demeaning, embarrassing, derogatory and any other term that may be considered as lowering his or her human dignity. | This is a good proposal as it ensures the Bill is consistent with the provisions of article 28 of the Constitution. Secondly, respecting and protecting human dignity contributes to the enhanced self-esteem of persons with disabilities as it reinforces their positive self-image and fosters a sense of self-worth. |
Clause 15 Protection from abuse, exploitation and violence | Every person with disability has the right to be protected against all forms of abuse, neglect, exploitation and physical, mental, sexual, or emotional violence on their person in all settings at all places including, home, care-houses, educational institutions, hospitals, workplaces and any other place which resides, cohabits, employs or in other manner inhabits any person with disability whether temporarily or permanently. Any person or organization working with a person with disability, or any person, who has reason to believe that an act of exploitation, neglect, violence or abuse has been, or is being, or is likely to be committed against any person with disability, shall give information about it to law enforcement agencies in whose jurisdiction such incident occurs or is likely to occur, and such agencies shall take immediate steps on the receipt of such information to stop it and have the persons responsible for it arrested, or, if it has not occurred, to prevent its occurrence. Any person who fails to comply with the provisions on subsection (2) commits an offence and is liable on conviction to a fine not exceeding fifty thousand shillings or to imprisonment to a term not exceeding one year or both. | This clause has the following benefits: a. protection from abuse, exploitation and violence upholds the inherent dignity of persons with disabilities; and b. protection from abuse, exploitation and violence ensures that persons with disabilities are not subjected to discrimination. This ensures that they are treated with the same respect and consideration as others. |
Clause 17 Specific measures for persons with disabilities | Every person with disability is entitled to specific measures to accelerate the equal participation in the social, cultural, economic, civil, political, or any other field. Every public and private institution shall take effective measures and, where appropriate, specific measures to ensure continuing improvement of economic and social conditions of persons with disabilities. | Specific measures aim to eliminate barriers and provide equal opportunities to persons with disabilities which allows them to participate on an equal basis with others. Secondly, specific measures enhance the economic participation of persons with disabilities by providing them with equal access to employment opportunities and promoting workplace inclusivity. |
Clause 18 Right to education | Every person with a disability has a right to admission to any institution of learning and access to an inclusive, quality and free primary and secondary education on an equal basis with others. No person shall be excluded from the education system on the basis of disability. The National government shall facilitate participation of persons with disabilities in accessible and adaptable continuing adult education programmes on an equal basis. The National and County Governments shall ensure that persons with disabilities have access to inclusive education, without discrimination and on an equal basis at all levels. Every child with disability has the right to free and compulsory education. Children with disabilities shall not be excluded from free and compulsory early childhood, primary or secondary education on the basis of disability. Every child with a disability has a right to equal access to play, recreation and leisure and sporting activities, including those activities in the school system. The Council in consultation with relevant Government establishments shall ensure that: a. learning institutions take into account the needs of persons with disabilities with respect to the set entry requirements, pass marks, curriculum, examinations, auxiliary services, use of school facilities, class schedules, physical education requirements and other similar considerations; b. learning institutions provide individualized support measures, appropriate equipment, assistive devices, adoptive technologies and other supportive services in environments that maximize academic and social development, consistent with the goal of full inclusion of students with disabilities; c. the Ministry responsible for education formulates strategies to implement inclusive education through: i. enforcement of recruitment and retention of special education teachers in all schools and institutions; ii. development of a least restrictive environment by adaptation and structural adjustments of all educational institutions to the needs of persons with disabilities; iii. establishment of specialized institutions that undertake research and development in education for learners with disabilities; iv. establishment of at least one assessment center in each county to support educational institutions within the county, by way of teacher trainers, educational aids, equipment and materials; v. promotion of the use of appropriate augmentative and alternative modes, means and formats of communication, adoptive technologies, including Braille and Kenya Sign Language; and vi. introduction of Kenya sign language interpretation courses in all training institutions. The Cabinet Secretary in charge of education shall develop an adaptable examination framework and award a certificate to children with intellectual disabilities after completion of their education. Any person who denies a person with disability admission on the basis of disability commits an offence and is liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years or both. In addition to subsection (10) the court may order unconditional admission of the person with disability. The Cabinet Secretary responsible for education shall: a. facilitate through policies and legislation, the development of persons with disabilities through their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential; b. in collaboration with the relevant line ministries, provide training facilities for speech therapy, occupational therapy, physiotherapy, guidance and counseling, audio-logical assessments, habilitation, and aural and oral rehabilitation for children with disabilities; and c. together with the County Education Committees in charge of education make policy, legislation and sustainable financial frameworks in each financial year to achieve full realization of the right to education for persons with disabilities. Every person with disabilities is entitled to receive the support services required, within the general education system, to facilitate his or her effective inclusive education. The Council shall work in consultation with relevant agencies of National and County Governments to make provisions for an integrated system of special and non-formal schools and institutions, especially for the deaf, the blind, the deaf blind and those with developmental disabilities to cater for skills development and self-reliance, and establishment of braille and recorded libraries for persons with visual disabilities. | This is a good proposal as it ensures the Bill is consistent with the provisions of article 43(1)(f) of the Constitution. Secondly, ensuring equal access to education creates an inclusive environment which provides persons with disabilities with the same educational opportunities as their peers. Thirdly, quality education equips persons with disabilities with the skills and knowledge needed for meaningful employment. This enhances their chances in the job market. Fourthly, we propose the deletion of sub-clause (10). Article 23(3) of the Constitution outlines the remedies issued when a right or fundamental freedom of a person has been infringed. They include: a. a declaration of rights; b. an injunction; c. a conservatory order; d. an order of compensation; e. an order for judicial review; or f. a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24. |
Clause 19 Right to work and employment for persons with disabilities | No employer shall discriminate against a qualified person with disability in job application procedures, hiring, advancement and other terms, conditions, and privileges of employment. Every employer shall: a. reserve at least five per cent direct employment opportunities for persons with disabilities to secure employment; b. formulate policies and programmes to promote basic human rights, improve working conditions, and enhance employment opportunities for persons with disabilities; c. when recruiting, not to discriminate solely on account of disability; d. not conduct any test or examination to establish whether an applicant is a person with a disability or as to the nature or severity of the person's disability; and e. be required to carry out appropriate modifications in their work premises to accommodate the employment of persons with disabilities. Every employer shall submit an annual report on the status of employment of persons with disabilities within their establishments to the Council in a format as may be prescribed by the Council. Every employer shall apply specific measures to employees with disabilities in promotions, training and other related matters arising in the course of, or through the length of employment. Without limiting the generality of subsection (2) (c), the following may constitute acts of discrimination: a. limiting, segregating or classifying a job applicant with disabilities in a manner which adversely affects his or her work opportunities; b. using qualification standards, employment tests or other selection criteria that screen out or tend to screen out or prohibit career progression of persons with disabilities; c. utilizing standards, criteria or methods of administration showing the effect of discrimination on the basis of disability or perpetuating the discrimination of others who are subject to common administrative control; d. providing less payment, remuneration or fringe benefits, to a qualified employee with disability, than the amount paid to others performing the same work; e. favouring an employee without disability over a qualified employee with disability with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latter's disability; f. re-assigning or transferring a qualified employee with disability from a task or position the employee is able to perform to one which he or she cannot perform because of his or her disability; g. failing to select or administer in the most effective manner, employment tests which accurately reflect the skills, and aptitude of an applicant or employee with disability, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and h. excluding persons with disabilities from membership in trade and labour unions or similar organizations. For the purposes of subsection (5), the age of retirement for persons with disabilities shall be five years above the mandatory age of retirement set by the Government. For purposes of subsection (5): a. "reasonable accommodation" for purposes of employment includes: i. making existing facilities used by employees readily accessible to and usable by persons with disabilities; and ii. job restructuring, part time or modified work schedules, reassignment to a vacant or suitable position, acquisition or modification of equipment or devices, appropriate adjustments or modifications of examinations, training materials or policies, the provisions of qualified readers or interpreters, and other similar accommodations for persons with disabilities. b. "employer" means an employer in the public and private sector; c. "discrimination" includes: i. limiting or classifying a job applicant or employee in an adverse way; ii. denying employment opportunities to qualified persons; iii. not making reasonable accommodation for the known physical or mental limitations of an employee with disabilities; iv. not advancing employees with disabilities in employment; and v. not providing necessary accommodations in training materials or policies and the provision of qualified readers or interpreters. | Prohibiting discrimination ensures that qualified persons with disabilities have equal opportunities to access employment. This promotes a level playing field in the job market. Secondly, we propose the deletion of sub-clause (6). This sub-clause is discriminatory as it allows persons with disabilities to work beyond the retirement age for a person without disability. Further, this contradicts article 27 of the Constitution. |
Clause 20 No dismissal for employee with disability | No person with disability shall be dismissed or suffer any reduction in rank solely on the grounds of disability, acquiring any disability or any consequences thereof: Provided that: a. if any employee with a disability is placed under undue stress or disadvantage in the usual course of employment as a result of the disability, such employee shall be eligible for a position at the same rank with adequate support; and b. such an employee may, if required by the nature of disability, be deployed to another post with the same pay scale and service and if it is not possible to adjust the employee against any post, the employee may be kept on a supernumerary post until a suitable post is available or he attains the age of retirement, whichever is earlier. | This is a good proposal as it provides job security to persons with disabilities which safeguards against arbitrary dismissal solely based on disability. |
Clause 21 Incentive for private employer | A private employer who engages a person with a disability with the required skills or qualifications either as a regular employee, apprentice or learner shall be entitled to apply for a deduction from its taxable income equivalent to twenty-five percent of the total amount paid as salary and wages to such employee: Provided that such an employer shall present proof certified by the Council of the person in respect of whom it claims the deduction and the person with disabilities so employed is accredited with the Council as to disabilities, skills and qualifications. A private employer who improves or modifies its physical facilities or avails special services in order to provide reasonable accommodation for employees with disabilities shall be entitled to apply for additional deductions from its net taxable income equivalent to fifty percent of the direct costs of the improvements, modifications or special services. | Employers benefit from a tax deduction which acts as a financial incentive for hiring persons with disabilities. This can offset some of the costs associated with accommodations or accessibility enhancements that may be required to support the employment of persons with disabilities. |
Clause 22 Right to health | Persons with disabilities have the right to the enjoyment of the highest attainable standard of health, including health-related and rehabilitation services, without discrimination on the basis of disability. Persons with disabilities have the right to the enjoyment of sexual and reproductive health rights on an equal basis with other persons. Persons with disabilities have the right to information to enable them to make responsible and informed choices about their sexual and reproductive health. Persons with disabilities have a right to be treated with respect, privacy and dignity while seeking health related services. Persons with disabilities shall be entitled to free medical care and treatment in public health institutions. Medical assessment reports for persons with disabilities, including for purposes of registration under the Act, shall be done free of charge in public health institutions. Every national or referral health institution shall employ at least two Kenya Sign Language interpreters with gender consideration in their institutional structure. No person shall subject a person with disability to any medical procedure which leads to or could lead to infertility without that person's express consent: Provided that where the person with a disability is a minor such procedure may in cases of medical necessity confirmed by a medical practitioner, be performed with the parent or guardian's consent. | Recognizing this right contributes to the dignity and respect of persons with disabilities. It affirms their inherent worth and emphasizes that they are entitled to the same quality of healthcare as everyone else. Secondly, the addition of sub-clause (7) is a good proposal. Having Kenya Sign Language interpreters ensures that communication is accessible for deaf patients. This is crucial for effective doctor-patient communication, understanding medical instructions and expressing health concerns. |
Clause 23 Council to participate in health programmes | The Council shall be represented in the implementation of the National and County Health Programs under the Cabinet Secretary and County executive committee responsible for health for the purpose of: a. early identification of disability; b. early rehabilitation of persons with disabilities; c. enabling persons with disabilities to receive free habilitation and rehabilitation and medical services in public and privately owned health institutions; d. availing health services and field medical personnel to persons with disabilities at an affordable cost; and e. prompt attendance by medical personnel to persons with disabilities. Every person with a disability has the right to information, communications technologies and systems which includes talking software, Braille materials, hearing aids and other communication devices. | Early rehabilitation interventions contribute to better outcomes for persons with disabilities. This may include physical therapy, occupational therapy and other supportive measures that enhance functionality and independence. Early rehabilitation can improve the chances of individuals adapting to their conditions successfully. Secondly, ensuring free habilitation and rehabilitation services for persons with disabilities promotes equity in access to healthcare. This reduces financial barriers and allows persons with disabilities to receive necessary services without the burden of high costs. Thirdly, availing health services to persons with disabilities at an affordable cost ensures that financial constraints do not hinder access to essential healthcare. This contributes to improved overall health and well-being for individuals with disabilities. |
Clause 24 Access to information and communication technology services | Every person with disability has the right to access information, communication and other services including the right to freedom of expression and opinion, the freedom to seek, receive and impart information and ideas, electronic and emergency services open or provided to the public on an equal basis with others in a timely manner and without additional cost and through all forms of communication of his or her choice. It shall be the obligation of public institutions to provide information intended for the general public, including through the internet, to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities. Public institutions shall accept and facilitate the use of Kenyan sign language, Braille, augmentative and alternative communication, and all other accessible means and usable formats of communication to accommodate the needs of persons with disabilities. All public television and radio stations and telephone service providers shall provide information and services in accessible formats and technologies appropriate to different kinds of persons with disabilities. All telecommunications entities in Kenya shall take steps to ensure functionally equivalent services for consumers with disabilities to effectively access services, products and programs offered by them. All television stations shall provide a Kenyan sign language inset, subtitles in newscasts, and educational programs, and in all programs covering events of national and international significance. All public institutions of higher learning shall have a common course in Kenyan Sign Language. Any public institution which fails to comply with the provisions of this section shall have its license suspended and shall not be reinstated until it complies. | The addition of sub-clause (3) is a good proposal as it ensures the Bill is consistent with the provisions of article 7(3)(b) of the Constitution. Article 7(3)(b) mandates the state to promote the development and use of Kenyan Sign language, Braille and other communication formats and technologies that can be used by persons with disabilities. Secondly, the addition of sub-clause (4) is a good proposal as persons with disabilities gain equal access to information disseminated through public television, radio and telephone services. This promotes a more inclusive society by ensuring that everyone, regardless of their disabilities stays informed and engaged. |
Clause 25 Access to justice | Every person with disability has a right to effective access to justice on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, at investigative and other preliminary stages. The Attorney-General, in consultation with the Council and the Law Society of Kenya, shall make regulations providing for free legal services for persons with disabilities with respect to the following: a. matters affecting the violation of the rights of persons with disabilities or the deprivation of their property: b. cases involving capital punishment of persons with disabilities; and c. such matters and cases as maybe prescribed in the regulations made by the Attorney General. The Chief Justice shall make rules providing for: a. the exemption of persons with disabilities from the payment of court fees in relation to matters or cases described in subsection (2); and b. the provision, to persons with disabilities who attend court, of free Kenya Sign Language interpreters, Braille services, other communication formats and technologies accessible to persons with disabilities, physical guide assistance and intermediaries. Accused persons with disabilities who are denied bail shall be entitled to be held in custody in facilities modified in accordance with regulations made in accordance with standards prescribed under this Act. The Chief Justice shall endeavor to ensure that all suits involving persons with disabilities are disposed of expeditiously having due regard to the particular disability and the convenience of such persons. Law enforcement agencies and institutions shall take into consideration the disability of a person on arrest, at detention, investigation, trial or confinement. | For sub-clause (1), this provision ensures that persons with disabilities can actively participate in legal proceedings on an equal basis with others. This promotes a more inclusive justice system where individuals are not excluded based on their disabilities. For sub-clause (2), free legal services eliminate financial barriers as it ensures that persons with disabilities have equal access to justice. This promotes fairness, equity and the ability to seek legal remedies when their rights and fundamental freedoms have been violated. |
Clause 26 Sports, recreation, leisure and culture | Every person with disability has a right to take part on an equal basis with others in sports, recreation, leisure and cultural activities at national, regional and international levels. The Cabinet Secretaries responsible for sports, recreation, leisure and cultural activities, in consultation with the Council, shall take appropriate measures to enable persons with disability to have the opportunity to develop and utilize their creative, artistic and intellectual potential. A person with disability shall be entitled, on an equal basis with others, to recognition and support of his or her specific cultural and linguistic identity, including Kenyan Sign language and Deaf culture. Every public and private institution with sporting, recreation, leisure and cultural activities for their employees shall ensure that such sporting, recreational, leisure and cultural activities are sensitive to the needs of persons with disabilities. Government agencies and institutions responsible for curriculum development shall restructure courses and programmes to ensure access, inclusion and participation of persons with disabilities in all sporting activities. Every person with disability shall be entitled to the use, without discrimination, and on the same basis with other persons, of recreational and tourism venues or sports facilities owned or operated by the Government during social, sporting or recreational activities. The National and County governments shall provide persons with disabilities with the necessary suitable environment, including appropriate instruction, training, resources and medical personnel, architectural infrastructure, apparatus, equipment and transportation facilities for the participants. | This provision promotes inclusivity by ensuring that persons with disabilities have the same opportunities as others to participate in sports, recreation, leisure and cultural activities. This fosters a more diverse and integrated society. |
Clause 27 Accessibility | Persons with disabilities are entitled to a barrier-free and disability-friendly environment to enable them to have access to buildings, roads and other social amenities, and assistive devices and other equipment to promote their mobility. Every person with disability has a right to accessibility as an essential pre-condition to enable him or her to live independently and participate fully in all aspects of life and shall have the right to be provided with such accessibility to the physical environment, transportation, information and communications, including appropriate technologies and systems, and other facilities and services including emergency services open or provided to the public. Public and private institutions shall implement minimum standards and guidelines for the accessibility of facilities and services open or provided to the public to accommodate all aspects of accessibility for persons with disabilities. Every person with disability has the right to free movement with his or her assistive devices and services including guide animals and no person with disability shall be denied access to any public place because of the nature of his or her assistive devices and services. The relevant government agencies when approving building plans shall ensure that such plans are compliant to the accessibility standards and regulations promulgated. The Council shall work with relevant government agencies and the private sector in the development and promulgation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public. The standards and guidelines promulgated under sub-section (6) shall ensure that they are age and gender appropriate and are applicable to: a. all buildings and facilities used by the public; b. permanent, temporary or emergency conditions; c. road and rail based transport; d. aviation; e. maritime transport and ports; f. pedestrian infrastructure including zebra crossings and sidewalks; g. public transport system; h. any other mode of transport; in order to enable persons with disability to travel with safety and comfort. No individual, organization or establishment shall be issued a certificate of completion or allowed to take occupation of a building if it has failed to comply with the standards and regulations. All new construction, modification or alterations on built environment immediately after the effective date of this Act shall fully comply with the standards set out in the Second Schedule on accessibility of the built environment for persons with disabilities. The Cabinet Secretary responsible for matters relating to building standards shall prescribe standards to ensure a barrier free environment for persons with disabilities. | Creating a disability-friendly environment enhances the independence and autonomy of persons with disabilities. Accessible buildings and roads, along with assistive devices, enable persons with disabilities to navigate their surroundings with greater ease. |
Clause 29 Civic and political rights for persons with disabilities | Every person with disability has a right to participate in political and public life and the opportunity to enjoy them on an equal basis with others, and to vote for and be voted directly or through freely chosen representatives in any public or political office. It shall be the responsibility of the body conducting elections to facilitate persons with disabilities in the exercise of their civic and political rights by: a. providing voting procedures, facilities and materials which are appropriate, accessible and easy to understand and use; b. protecting the rights of persons with disabilities to vote by secret ballot in elections without intimidation and to offer themselves for elections; and c. allowing assistance in voting by a person of their own choice, on request and facilitating the use of assistive and appropriate technologies. A person who undertakes to render assistance under subsection (3)(c) shall do so strictly in accordance with the instructions of the voter. A person described in subsection (2) shall bind himself or herself, in the prescribed form, to comply with that subsection. | Ensuring the right of persons with disabilities to participate in political and public life promotes the fundamental principles of democracy. It allows for equal representation and involvement of all citizens in the decision-making processes of their countries. Secondly, political participation empowers persons with disabilities to advocate for their rights and contribute to shaping policies that address their unique needs. It promotes a sense of active engagement in the democratic process. |
Clause 30 Right to independent living | Every person with disability has a right to independent living and access to a range of in-home, residential and other support services, including personal assistance, necessary to support living and inclusion in society on an equal basis with others. Subject to subsection (1), an employer may provide hardship allowance to or for a family of a person with disability. | We propose the deletion of sub-clause (2). Hardship allowance is a form of additional compensation paid to employees who work in adverse or challenging conditions and not on grounds of having a disability. |
Clause 31 Enforcement of rights | Subject to subsection (2), if any person alleges that any of the provisions of this Act has been, is being or is likely to be contravened in relation to a person with disability, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress. The High Court shall hear and determine an application made by a person in pursuance of subsection (1) and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of this Act. | We propose the deletion of this clause as it contradicts article 22(1) of the Constitution. Article 22(1) states that a person may institute court proceedings if his rights or fundamental freedoms have been infringed or violated. |
Clause 32 Registration of persons with disabilities, organizations and institutions | In order to facilitate access by persons with disabilities to the services set out under this Part, the Council shall register on a continuous basis: a. persons with disabilities, to whom it shall issue disability identification cards in such form as it may determine; b. institutions, entities owned by persons with disabilities, associations and organizations, including those controlled and managed by the Government, which promote the rights of and provide services to persons with disabilities and issue certificates of registration thereof; c. existing organizations of or for persons with disabilities may apply in the prescribed manner to the Council for registration; d. organizations of or for Persons with Disabilities and any integrated organization with at least seventy per cent persons with disabilities may within 12 months of formation, apply to the Council, in the prescribed manner, for registration. The Council shall not deny a person with disability who is not registered from accessing any of the services set out under this part. The disability identification card or certificate of identification issued by the Council under subsection (1) shall be conclusive evidence that : a. the holder is a person with disability, or b. the institution, integrated enterprise or organization holding it is registered with the Council. | We propose the addition of timelines in sub-clause (1). This proposal ensures that registrations are conducted within a reasonable period without delays. For sub-clause (1), we propose that a template of the registration form is included in the Schedule of this Bill. A template provides a standard format that is easy to understand and use. Further, the use of a template enhances uniformity |
PART III — ESTABLISHMENT, POWERS AND FUNCTIONS OF THE NATIONAL COUNCIL FOR PERSONS WITH DISABILITIES | ||
Clause 33 Establishment of the Council | There is hereby established a council to be known as the National Council for Persons with Disabilities. The Council shall be a body corporate with perpetual succession and have a common seal and shall be capable, in its corporate name of: a. suing and being sued; b. taking, purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; c. borrowing; and d. doing or performing all such other things or acts for the proper discharge of its functions under the Constitution, this Act or any written law, as may be lawfully done or performed by a body corporate. | The purpose of this clause is to give the Council legal capacity to act in its own name. |
Clause 34 Headquarters and other offices of the Council | The headquarters of the Council shall be in Nairobi. The Council shall establish its offices and decentralize its services to such other parts of the country as it considers necessary in accordance with Article 6(3) of the Constitution. The Council shall be the successor in title to the National Council for Persons with Disabilities existing immediately before the commencement of this Act and upon such commencement, the transitional provisions set out in section 81 shall apply. | The addition of sub-clause (1) is a good proposal as it allows the public to know the Council’s base of operations. For sub-clause (2), decentralization ensures that services are more accessible to a broader population. By establishing service points in various locations, the Council can reach people who might otherwise face barriers in accessing services due to geographical distance. |
Clause 35 Functions of the Council | The functions of the Council shall be to work with other relevant Government agencies and the private sector to: a. advise and enforce accessibility, reasonable accommodation, non-discrimination for persons with disabilities and with regard to information, goods, services and the built environment and their participation in society on an equal basis with others; b. advise on formulation and development of policy and legal framework, administrative actions, measures, guidelines, standards, strategies and mobilize resources designed to: i. ensure persons with disabilities have access to facilities and services which ensure effective enjoyment of the right to life; ii. facilitate the achievement of equal opportunities for persons with disabilities by ensuring that they obtain education and employment and participate fully in sporting, recreational and cultural activities and are accorded full access to community and social services; iii. advise the Government during the national census to ensure that accurate figures of persons with disabilities are obtained in the country for purposes of planning; iv. advise the Cabinet Secretary on the provisions of any national, regional or international agreements and treaties relating to issues affecting persons with disabilities and their benefits to the country; v. provide assistive devices, appliances and other equipment to persons with disabilities registered with the Council; vi. make provision for assistance to students with disabilities registered with the Council in the form of scholarships, loan programmes, fee subsidies, assistive devices and related technologies and other similar forms of assistance in both public and private institutions; vii. advise on and oversee inclusion and mainstreaming of disability in execution of development at the national and county level, and provide technical support to public and private sectors; viii. ensure information and communication, transportation, built environment, utilities and services are accessible to persons with disabilities; ix. actualize healthcare needs of persons with disabilities and ensure persons with disabilities are knowledgeable of their own health conditions, health-care personnel support and protect the rights and dignity of persons with disabilities; x. consult with the Government in the provision of suitable and affordable housing for persons with disabilities; xi. prevent discrimination against persons with disabilities; xii. operationalize programmes for selfemployment or regular employment for the generation of income by persons with disabilities; xiii. in collaboration with the health service providers secure habilitation and rehabilitation of persons with disabilities within their own communities and social environment; xiv. ensure continuous improvement on accessibility and usability of physical environment, roads, transportation, information and communications, indoor and outdoor facilities, including schools, housing, medical facilities and workplace and other facilities and services open or provided to the public to meet the needs of persons with disabilities; and xv. ensure that private entities offering facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities; c. facilitate systematic collection, analysis and use of national statistics and disaggregated data on issues relating to persons with disabilities; d. provide: i. information and technical assistance to institutions, associations and organizations concerned with the rights, habilitation and rehabilitation of persons with disabilities, and ii. advise on the relative priorities to be given to the implementation of national and international human rights instruments on persons with disabilities. e. conduct intensive public awareness and education on the rights of persons with disabilities; f. carry out and publicize research on any matter relating to human rights of persons with disabilities; g. establish and maintain linkages and networking with local and international organizations, including organizations of and for persons with disabilities; h. promote the establishment of self-help organization and the setting up of specific projects for the benefits of persons with disabilities, and i. perform such other functions as may be assigned to the Council under this or any other law. | The functions are clearly stated to prevent the Council from performing tasks that are ultra vires. |
Clause 37 Council may establish Committees | For the better performance of its functions under this Act, the Council may: a. constitute committees consisting of its members; and b. co-opt experts, where appropriate, to serve on such committees for a renewable period of one year and may assign to any committee such functions of the Council as it may determine. | Co-opting allows the Council to bring in individuals with specialized expertise, knowledge or experience that will assist it in performing its functions. This can be valuable when the existing council members lack the required skills or expertise. |
Clause 38 Composition of the Council | The Council shall consist of the following: a. the Chairperson, who shall be drawn from organizations of persons with disabilities and who shall be appointed by the President; b. the Principal Secretary in the Ministry responsible for matters relating to disabilities or a representative duly appointed in writing; c. the Principal Secretary in the Ministry responsible for finance or a representative duly appointed in writing; d. the following appointed by the Cabinet Secretary: I. four persons representing different categories of disabilities, nominated by organizations of persons with disabilities; II. two persons nominated by organizations for persons with disabilities, one of whom shall be from organizations of parents of persons with mental disabilities; a. the Executive Director of the Council who shall be the Secretary to the Council. The appointing authority, in making appointments under this section, shall ensure that: a. there is equitable representation of different categories of persons with disabilities and that not more than two-thirds of the members are of the same gender; b. at least one of the members of the Council shall be from a rural-based organization; c. persons appointed have knowledge or experience of the requirement of persons with disabilities; and d. the requirement of a mix of skills across all functionalities of the Council is observed. Persons appointed under subsection (1)(d) shall be from organizations that have been in existence for at least three years. | For sub-clause (1)(a), we propose that the Chairperson is appointed through a fair, transparent and competitive process. This has the following benefits: a. a fair, transparent and competitive appointment process ensures that candidates are evaluated based on their qualifications, skills and experience. This helps to attract and select the most suitable individual, contributing to the overall effectiveness and efficiency of the organization; and b. this proposal ensures that appointments are done in a fair and transparent manner in accordance with the values and principles set out in the Constitution. For sub-clause (1) (d) (ii), we propose that the number of members is increased from four to five. Currently, the Council has ten members. When there’s an even number of members who can vote, there’s a greater risk of deadlocks. This makes it difficult for the Council to make decisions, resolve conflicts or move forward with its agenda. An odd number ensures that there will always be a majority decision. |
Clause 39 Qualifications for appointment of chairperson and members | A person shall be qualified for appointment as the chairperson of the Council if the person: a. is a Kenyan citizen; b. holds at least a first degree from a university recognized in Kenya; c. has knowledge and at least ten years' working experience, of which five years shall be on matters relating to disabilities, human rights or social development; and d. meets requirements of Chapter Six of the Constitution. A person shall be qualified for appointment as a member of the Council if the person: a. is a Kenyan citizen; b. holds at least Kenya Certificate of Secondary Education qualification or its equivalent; c. has knowledge and at least five years working experience of which three years shall be on matters relating to disabilities; and d. meets the requirements of Chapter Six of the Constitution. A person shall not be qualified for appointment as the chairperson or a member of the Council if such person: a. has been removed from office for contravening the provisions of the Constitution or any other law; b. is a public officer; c. is a member of a governing body of a political party; d. is a member of Parliament or a county assembly; e. has been convicted of a felony and sentenced to a term of imprisonment; f. has been convicted of an offence under this Act; g. has been compelled to resign or been removed from office, on account of abuse of office; h. is adjudged bankrupt or has entered into a composition scheme or arrangement with the creditors; or i. is disqualified under the provisions of any other written law from appointment as such. | The addition of sub-clauses (1) (d) and (2) (d) is a good proposal. Leadership and integrity principles ensure that persons appointed to government positions possess a strong commitment to ethical conduct. Secondly, specifying qualifications in the Bill provides clear and standardized criteria for eligibility in a particular position. This clarity helps both applicants and decision makers understand the minimum requirements for the role. |
Clause 40 Election of the vice chairperson | The members of the Council shall, at their first meeting elect one among their number to be a vice chairperson. The person elected under subsection (1) shall be of opposite gender and of a different category of disability from the Chairperson. | Having a vice-chairperson of the opposite gender to that of the chairperson helps achieve gender balance in the leadership team. This demonstrates to the public of the Council’s commitment to diversity and inclusivity. Secondly, having the vice chairperson represent a different category of disability to that of the Chairperson ensures a broader diversity of perspectives within the Council. This diversity allows for a more comprehensive understanding of the challenges faced by individuals with various types of disabilities. |
| Clause 41 Tenure of office of members of the Council | The Chairperson and members of the Council shall hold office for a term of three years and shall be eligible for re-appointment for one further term. A member may: a. at any time resign from office by notice in writing to the Cabinet Secretary, or in the case of the Chairperson, to the President; or b. be removed from office by the Cabinet Secretary if the member: i. has been absent from three consecutive meetings of the Council without the permission of the chairperson, or in the case of the chairperson, without the permission of the Cabinet Secretary; ii. is adjudged bankrupt or enters into a composition scheme or arrangement with the creditors; iii. is convicted of an offence involving fraud or dishonesty; iv. is convicted of a criminal offence and sentenced to a term of imprisonment; v. is found to have acted in a manner prejudicial to the aims and objectives of this Act; vi. fails to comply with the provisions of this Act relating to disclosure of interest as provided under the First Schedule to this Act; or vii. is otherwise unable or unfit to discharge his or her functions as a member of the Council. The First Schedule shall apply with respect to the conduct of the business and affairs of the Council. | A fixed tenure provides stability to an organization by ensuring continuity in leadership and decision-making. It prevents frequent turnover and the associated disruptions that can occur with frequent changes in personnel. Secondly, individuals with a fixed tenure are accountable for their performance during that period. This accountability can lead to increased focus and commitment to achieve the goals and objectives of the Council. Thirdly, knowing when a position will become vacant allows the Council to engage in effective succession planning. It provides an opportunity to identify and groom potential successors. This ensures there’s a smooth transition when the incumbents’ tenure concludes. For sub-clause (2)(b)(iv), we propose that a member of the Council may be removed from office if he has been convicted of a felony. This proposal will be consistent with clause 39(3)(e) of the Bill. |
Clause 42 Procedure for appointment | Whenever a vacancy occurs in the office of the Chairperson or a member, the Executive Director shall forthwith notify the Public Service Commission accordingly. The Public Service Commission shall, within a period of fourteen days from the date of the occurrence of the vacancy, by notice in two daily newspapers of national circulation and its official website and the website of the Ministry responsible for matters relating to disability, declare the vacancy and invite applications from persons qualified under this Act within a period specified in the notice. The Commission shall consider all applications submitted under subsection (2) and, within a period of fourteen days from the expiry of the period specified in the notice issued under that subsection, forward names of persons nominated for appointment to: a. the President, in the case of the Chairperson, or b. the Cabinet Secretary in the case of a Member. The appointment under this section shall be by notice in the Gazette. | We propose the addition of timelines in sub-clause (1). This proposal ensures that the Public Service Commission is informed of the vacancy within a prescribed period without delays. |
Clause 43 Executive Director of the Council | The Council shall appoint an Executive Director through an open, transparent and competitive recruitment process. The Executive Director shall be the secretary to the Council. A person shall be qualified for appointment as the Executive Director of the Council if the person: a. is a citizen of Kenya; b. possesses at least a degree from a recognized university; c. has at least ten years of proven work experience three years being at senior management level in a public or private institution; d. possesses at least three years' experience on matters of disabilities; and e. meets the requirements of Chapter Six of the Constitution. The Executive Director shall hold office for a term of three years' renewable once. The Executive Director shall be the accounting officer of the Council and be responsible to the Council for the day-to-day management of the affairs of the Council and shall perform such other functions as may be so conferred by this Act or by any other written law. | For sub-clause (1), a fair, transparent, and competitive appointment process ensures that candidates are evaluated based on their qualifications, skills and experience. This helps to attract and select the most suitable individual, contributing to the overall effectiveness and efficiency of the organization. Secondly, this proposal ensures that appointments are done in a fair and transparent manner in accordance with the values and principles set out in the Constitution. |
Clause 45 Remuneration of Chairperson and members | The Chairperson and Members of the Council shall be paid such allowances as may be approved by the Cabinet Secretary with the advice of the Salaries and Remuneration Commission. | This proposal will be in line with Article 230 (4) (a) of the Constitution which gives the Salaries and Remuneration Commission power to set and review the remuneration and benefits of all public officers. |
Clause 46 Staff of the Council | The Council may appoint such staff as may be necessary for the proper discharge of its functions under this Act, and upon such terms as the Council in consultation with the Salaries and Remuneration Commission may determine. The staff appointed under subsection (1) shall serve on such terms and conditions as the Council may determine. The National and County Governments may, upon request by the Council second to the Council such number of public officers as may be necessary for the proper performance of the functions of the Council. A public officer seconded to the Council shall, during the period of secondment, be deemed to be an officer of the Council and shall be subject only to the direction and control of the Council. The Council may establish a superannuation scheme for its employees and make such payments towards insurance as may be required under the relevant laws. | For sub-clause (1), this proposal is in line with Article 230 (4) (a) of the Constitution which gives the Salaries and Remuneration Commission power to set and review the remuneration and benefits of all public officers. For sub-clause (5), a superannuation scheme has the following benefits: a. it provides staff with a means of saving for retirement. By contributing to this scheme, the Council helps ensure that its staff have financial security and stability during their retirement years; and b. it enhances the Council’s ability to attract and retain its employees, as individuals often consider retirement benefits and insurance coverage as essential components of their compensation package. |
Clause 47 Delegation by the Council | The Council may delegate to any of its committees, members, the Executive Director or agencies either generally or otherwise as provided by the instrument of delegation, any of its powers other than: a. duties to make decision under the Act; b. power of delegation itself; and c. the powers to revoke or vary delegation. A delegated power shall be exercised in accordance with the instrument of delegation. A delegation may, at any time, be revoked or varied by the Council. | Delegation optimizes resource allocation. It ensures that tasks are assigned to the most suitable individual, maximizing the use of available skills and expertise. |
Clause 48 Inquiry by the Council | The Council may conduct an inquiry or a sectoral investigation: a. where it considers it necessary or desirable for the purpose of carrying out its functions; and b. upon receiving a direction by the Cabinet Secretary in writing, requiring it to conduct an inquiry or a sectoral investigation into a matter specified in the direction. A direction by the Cabinet Secretary under subsection (1)(b) shall specify the period within which the Council shall submit its report to the Cabinet Secretary. At the request of a regulatory body, the Council may conduct an inquiry into any matter affecting persons with disabilities and provide a report within a reasonable period. | The Council can proactively identify problems, challenges, or emerging issues by conducting inquiries. This proactive approach helps in addressing issues before they escalate and contributes to the development of preventive strategies. Secondly, inquiries provide the Council with detailed information and insights into specific matters. This information, gathered through the inquiry process, supports informed decision-making, enabling the Council to make well-founded and effective decisions. |
Clause 49 Funds of the Council | The funds of the Council shall consist of the following: a. funds voted by the National Assembly for purposes of the Council; b. such moneys, as may accrue to or vest in the Council in the course of the exercise of its powers or the performance of its functions; and c. any grants, testamentary gifts, donations or other endowments given to the Council. | This clause indicates the methods in which the Council uses to raise funds for conducting its activities. |
Clause 51 Accounts and audit | The Council shall cause to be kept proper books and records of its income, expenditure, assets and liabilities. The Council shall within a period of not less than three months before the commencement of each financial year, cause to be prepared estimates of its revenue and expenditure, differentiating the recurrent, development and expenditure of the Council for that financial year. Within a period of three months after the end of each financial year, the Council shall submit to the Auditor General the accounts of the Council in respect to that year together with: a. a statement of the income and expenditure of the Council during that financial year; b. a balance sheet of the Council as at the last day of that financial year; c. a statement of the assets and liabilities of the Council as at the last day of that financial year; and d. any other records of account required under the Public Audit Act, 2015. The audited accounts of the Council shall be in accordance with the Public Audit Act 2015 and the Public Finance Management Act 2012. | This clause ensures that monies spent and raised by the Council can be tracked and easily accounted for. |
| PART IV — RELIEFS AND INCENTIVES | ||
Clause 53 Exemptions | A person with a disability who is in employment may apply to the Cabinet Secretary responsible for finance for exemption from income tax on employment income. The Cabinet Secretary responsible for finance shall, in consultation with the Council, assess all applications received under subsection (1) and may exempt the applicant wholly or partially. Materials, articles and equipment, including motor vehicles specially designed for use by persons with disabilities, shall be exempt from import duty and value added tax to the extent provided under the tax laws. All goods, items, materials, machinery, tools, articles, implements or equipment donated to institutions and organizations of or for persons with disabilities shall be exempt from import duties and value added tax to the extent provided under the tax laws. The purchase, importation, transfer or gift of health materials or equipment relating to persons with disability shall be exempted from import duty and value added tax to the extent provided under the tax laws. The Cabinet Secretary for the time being responsible for matters relating to finance shall in consultation with the Council make regulations to give effect to this section. | For sub-clause (1), we propose that a template of the application form is included in the Schedule of the Bill. A template provides a standard format that is easy to understand and use. Further, the use of a template enhances uniformity. For sub-clause (1), the exemption from income tax offers financial relief to persons with disabilities. With a reduced tax burden, persons with disabilities have more resources available for savings and investments. Secondly, we propose the addition of timelines in sub-clause (2). This proposal ensures that the application form is reviewed by the Cabinet Secretary within a prescribed period without delays. The addition of sub-clause (3) is a good proposal. Exempting these items from import duty and value added tax makes them more affordable to persons with disabilities. |
Clause 55 Access to credit | The Cabinet Secretary responsible for matters relating to credit unions, co-operatives and other lending institutions may on the advice of the Council, from time to time, ensure access to credit by persons with disabilities. | Access to credit allows persons with disabilities to fund their business ventures, education or other personal needs. This financial autonomy enhances their independence and reduces dependence on external support. Secondly, access to credit facilitates income-generating activities. Persons with disabilities can invest in projects or initiatives that generate income which improves their financial stability and contributes to poverty alleviation. Thirdly, credit can be used to finance education and skill development programs which empower persons with disabilities with the knowledge and skills needed for employment or entrepreneurial ventures. |
Clause 56 Exemption from taxable income of employers of persons with disability | Any person who employs a person with disability and who incurs reasonable expenses on account of: a. reasonable accommodation of the employee with disability; b. modification of any part of the work place designed to meet the special needs of the employee with disability; or c. mobility aids, assistive devices, adaptive technology or other devices or equipment, including computer software and computerized systems designed to meet the requirements of the employee with disability, shall be entitled to deductions of the expenditure incurred in the computation of their taxable income. | Providing tax deductions incentivizes employers to hire persons with disabilities. This leads to greater diversity in the workplace and the inclusion of talented persons with disabilities who might otherwise face barriers to employment. |
Clause 57 Exemption from postal charges | Pursuant to article 54(1)(e) of the Constitution, the following materials and devices shall be exempted from postal charges: a. braille, printed or recorded literature, including any materials in tactile format, sent or received by postal mail from within or outside Kenya; b. hearing aids, mobility aids and orthopedic devices designed for the use by persons with disabilities and sent within or outside Kenya for the purpose of repair or delivery to: i. persons with disabilities; or ii. a parent or guardian of a child with disability; iii. duly registered organizations of or for persons with disabilities. c. all types of assistive devices and adaptive technology equipment sent by or delivered to the persons specified in paragraph (b). The exemptions under subsection (1) shall apply to items for personal or institutional purposes only where the person or institution is registered with the Council. The Cabinet Secretary for the time being responsible for matters relating to communication shall, in consultation with the Council, make regulations to give effect to this section. | Exempting persons with disabilities from postal charges provides financial relief. Many persons with disabilities may face additional expenses related to healthcare, assistive devices and accessibility. An exemption from postal charges alleviates some of the financial burden. |
PART V — RELATIONSHIP BETWEEN THE NATIONAL GOVERNMENT AND COUNTY GOVERNMENTS ON MATTERS OF DISABILITY | ||
Clause 58 Relation with county government | Each county may establish policy or enact county legislation to establish an institutional framework for ensuring inclusive and effective initiation and implementation of the county's functions, pursuant to article 186 of the Constitution, in relation to persons with disabilities resident in the county. Council offices at county level shall implement the functions of the Council as directed by the Council and shall for that purpose, where applicable: a. liaise with other relevant county offices of the national government; and b. liaise with any relevant county institutional framework established pursuant to sub-clause (1) of this section. Without prejudice to the generality of the foregoing, policies or legislation referred to in sub-section (1) shall: a. ensure the full inclusion and participation of persons with disabilities and their representative organisations in decision-making processes at the county level; b. take account of the functions of county governments as set out under the Fourth Schedule to the Constitution; c. ensure that any standards set are not less advantageous to persons with disabilities than standards set by national legislation; and d. consider the areas of overlap in the functions of the Council and those of the county government and establish necessary frameworks for partnership and collaboration between relevant county and national agencies. | County-level policies allow for a localized and context-specific approach to address the needs of persons with disabilities. This flexibility enables tailored solutions that are responsive to the unique circumstances and demographics of each county. |
PART VI — OFFENCES AND PENALTIES | ||
Clause 59 Discrimination contrary to article 27 of the Constitution | Any person who willfully and without any lawful justification treats a person with a disability in any manner resulting in the contravention of article 27(4) and (5) of the constitution is guilty of an offence and shall upon conviction, be liable to a fine not exceeding two million shillings or imprisonment not exceeding two years or both. The following acts or omissions constitute discrimination within the meaning of subsection (1) if the act or omission complained of results in denial to any person by reason only of his or her credibility of any of the following: a. public services or entry to public premises generally accessible to members of the public; b. the right of inheritance in accordance with the law of succession; c. health services including reproductive health services generally accessible to members of the public in accordance with the law relating to health; d. educational or other training services, generally accessible to the public; e. employment or indentured learner-ship; f. the rights guaranteed under article 53 of the Constitution; g. the rights guaranteed under article 55 of the Constitution; h. the rights of older persons guaranteed under article 57 of the Constitution; i. the right to obtain, possess and utilize documents of registration or identification, including a certificate of birth, national identity card and passport; and j. the right to respect for personal dignity as guaranteed under article 28 of the constitution. Nothing in this section limits the right of action of a person with disability for compensation or other appropriate remedies in civil proceedings. | We propose the deletion of this clause. Article 23(3) of the Constitution lists the remedies issued when a right or fundamental freedom has been infringed. They are as follows: a. a declaration of rights; b. an injunction; c. a conservatory order; d. an order of compensation; e. an order for judicial review; and f. a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under article 24. |
Clause 60 Prohibition of abuse, exploitation or violence | Any person who treats persons with disabilities or does any of the acts specified in subsection (2) by reason only of such persons' disability is guilty of an offence and shall, upon conviction, be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding two years. The acts referred to in subsection (1) include: a. physical violence occasioning actual bodily harm or any form of physical or psychological torture; b. wrongful concealment, confinement or detention whether in residential premises or in an institution resulting in denying of a person with disability the opportunities and services available under this Act or any other law; c. harmful cultural practices and exploitation; or d. any other form of cruel, inhuman and degrading treatment. | We propose the deletion of this clause. Article 29 of the Constitution provides that no person shall be treated in a cruel, inhuman or disregarding manner. The remedies for violation of a right or fundamental freedom in the Constitution are outlined in article 23 (3) of the Constitution. Fines and imprisonment are not listed as remedies in article 23(3) of the Constitution. |
Clause 61 Concealment of persons with disabilities | A parent, guardian, next of kin or a person in charge of institution of persons with disabilities shall not knowingly conceal such person in such a manner as to deny any such a person the opportunities and services available under this Act or any other law. Any person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings or to a term of imprisonment not exceeding one year or to both. | This clause reinforces the principles of equality and non-discrimination in article 27 of the Constitution. |
Clause 62 Denial of food and fluids | Any person who knowingly denies food or fluids to a person with disability who is under his or her care or responsibility or aids or abets in such denial commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings or to a term of imprisonment not exceeding one year or to both. | Articles 43(1) (c) and (d) provide for the right to adequate food of acceptable quality and clean and safe water respectively. The remedies for violation of a right or fundamental freedom in the Constitution are outlined in article 23 (3) of the Constitution. Fines and imprisonment are not listed as remedies in article 23(3) of the Constitution. |
Clause 63 Degrading treatment of a person with disability | Any person who voluntarily or knowingly commits or abets the degrading treatment of a person with disability by words, either spoken or written, or by signs or by visible representations or otherwise, commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings or to a term of imprisonment not exceeding one year or to both. | We propose the deletion of this clause. Article 29(f) of the Constitution indicates that no person shall be treated in a degrading manner. The remedies for violation of a right or fundamental freedom in the Constitution are outlined in article 23 (3) of the Constitution. Fines and imprisonment are not listed as remedies in article 23(3) of the Constitution. |
Clause 65 Offensive publications | No person shall publish, circulate or display, or cause or permit to be published, circulated or displayed, any publication that lowers or demeans the dignity of a person with disability or which amounts to discrimination. For the purposes of subsection (1), "advertisement" includes all forms of publicity: a. in newspapers, internet, television or radio; b. by displaying notices, signs, labels, shows cards or goods; c. by the circulation of samples, catalogues pricelists, leaflets, handbills or any other form of circular; d. by exhibition of pictures, models, photographs, films or any other form of exhibition. Any person who contravenes subsection (1) commits an offence and shall on conviction be sentenced to imprisonment for a term not exceeding six months or to a fine not exceeding one million shillings or to both a fine and imprisonment. | The provision safeguards the human dignity of persons with disabilities. It emphasizes the right of such individuals to be treated with respect and ensures that publications do not contribute to the degradation of people based on their disability. |
Clause 66 Giving false information for purposes of registration | Any person who: a. knowingly gives false information to the Council for the purpose of being registered or for the purpose of acquiring any right or privilege due to persons so registered; or b. fraudulently avails or attempts to avail or confers or attempts to confer any benefit meant for persons with disabilities on a person not entitled to such benefit; commits an offence and shall be liable on conviction to imprisonment for a term not exceeding six months, or to both and any monetary benefits wrongly obtained under this section shall be returned to the Council with interest at commercial rates. | This clause acts as a deterrence as it ensures that the provisions of the Bill are complied with. |
PART VII — MISCELLANEOUS | ||
Clause 68 Protection of road users with disabilities | It shall be the duty of the national and county governments to make public roads and highways under their respective mandates accessible to persons with disabilities by inter alia: a. equipping pedestrian crossings with traffic control signals controlled by a pedestrian push-button system; and b. providing pedestrian traffic lights with clearly audible signals. | Accessible roads facilitate increased mobility for persons with disabilities. This allows them to travel independently and access essential services, employment, education and recreational activities. |
Clause 69 Public service vehicles and transport | A registered owner of a public transport vehicle shall adjust the vehicle to suit persons with disabilities in such manner as maybe specified by the Council in consultation with the relevant government agencies. A registered owner of public transport vehicle who improves or modifies it to make it accessible for persons with disabilities shall be entitled to apply to the Cabinet Secretary responsible for finance for twenty-five percent of the direct cost of the improvements and modifications. A registered owner of a public transport vehicle referred in subsection (2) shall present with the application under that subsection proof of modifications certified by the Council. For the purposes of this section "paratransit services" means special transportation services for persons with disabilities. | Vehicle adjustments ensure that persons with disabilities have equal access to public transportation. This promotes inclusivity and eliminates barriers that may prevent them from using public transport services. For sub-clause (2), we propose increasing the contributions of the government from 25% to 50%. Such a financial incentive encourages owners of public transport vehicles to actively work towards making their vehicles more accessible to persons with disabilities. This, in turn, contributes to a more inclusive and accommodating transport system. Further, this proposal seeks to reduce the amount of money spent by owners in modifying their public transport vehicles to meet the needs of persons with disabilities. Alternatively, the Government can sell the required modifications to owners of public service vehicles at a subsidized cost. |
Clause 70 Denial of admission into premises | No person shall, on the ground of disability alone, deny a person with disability: a. admission into any premises to which members of the public are ordinarily admitted; or b. the provision of any services or amenities to which members of the public are entitled. The proprietor of premises referred to in subsection (1) (a) shall not have the right, on the ground of a person's disability alone, to reserve the right of admission to his or her premises against such a person. A person with a disability who is denied admission into any premises or the provision of any service or amenity contrary to subsection (1) shall be deemed to have suffered an injury and shall have the right to recover damages in any court of competent jurisdiction. Without prejudice to subsection (3), damages awarded under that subsection shall be recoverable summarily as a civil debt. The standards set out in the Second Schedule shall apply with regard to accessibility for purposes of this Act. | Prohibiting the denial of entry on grounds of disability ensures that persons with disabilities have equal access to public spaces, facilities and services. This promotes a more inclusive and equitable society. Secondly, upholding the right of persons with disabilities to enter premises without discrimination is consistent with article 27 of the Constitution as it recognizes their inherent dignity and ensures equal treatment under the law. |
Clause 72 Apprenticeship, technical vocational training, rehabilitation and self-employment | Every person with disability shall, subject to the provisions of the Employment Act 2007 be eligible for engagement as an apprentice or learner in their particular occupation for the period for which he or she is hired. | Engaging persons with disabilities as apprentices provides them with the opportunity to acquire and develop specific skills related to their chosen occupation. This contributes to their personal and professional growth. Secondly, apprenticeships offer real-world experience which allows persons with disabilities to apply theoretical knowledge in practical settings. This experiential learning is essential for building confidence and competence in a given occupation. |
Clause 73 Inspectorate units and inspectors | All government ministries, departments and agencies shall establish a disability mainstreaming unit for the purpose of: a. mainstreaming disability issues; b. carrying out regular inspections to ensure implementation and compliance with the provisions of this Act; and c. liaising with the Council on disability matters. Each respective Ministry shall appoint an officer to head the Disability Mainstreaming Unit established under subsection (1). The officer appointed under subsection (2) shall submit annual reports to the Council outlining progress and compliance with this Act and any challenges faced. The Council shall appoint an inspector who shall be empowered to investigate and recommend prosecution or other remedy against infringement of this Act. The inspector appointed under subsection (4) shall report to the Council or the relevant committee of the Council, any person or persons whose conduct is in violation of this Act or any regulations made under the Act. | Disability mainstreaming units contribute to the development of inclusive policies within government departments. This ensures that disability issues are considered and integrated into the overall decision-making and planning processes. Secondly, disability mainstreaming units can work towards promoting inclusive hiring practices within government departments. This contributes to the creation of a more diverse and representative workforce that includes persons with disabilities. Through regular inspections, disability mainstreaming units identify areas for improvement in service delivery to persons with disabilities. This leads to more responsive and effective government services tailored to diverse needs. |
Clause 74 Housing | Every Government agency putting up residential and commercial buildings shall reserve at least five percent of the said residential and commercial buildings for acquisition by persons with disabilities and the terms and conditions at such acquisition to persons with disabilities shall include interest free and longer periods of repayment. | By allocating a percentage of residential buildings for persons with disabilities, the government promotes equal opportunities for home ownership. This helps address barriers that persons with disabilities may face in the private housing market. |
Clause 75 Markets | The National and county governments when constructing markets shall reserve five percent of the stores to persons with disabilities. | This reservation policy empowers persons with disabilities to become entrepreneurs and business owners. It provides them with the chance to engage in commercial activities which fosters economic independence. Secondly, reserving markets ensures that persons with disabilities have equal access to economic opportunities within markets. It promotes inclusivity in business ownership and participation in the marketplace. |
Clause 76 Awareness raising | All media houses with television and radio shall dedicate at least one-hour free airtime every month to educate the public on issues of disability. The Council shall co-ordinate the production of at least one column in the print media every month for purposes of subsection (1). | This proposal enhances public awareness as it educates the public about the challenges faced by persons with disabilities, their capabilities and the importance of inclusivity. Secondly, the allocated airtime will help challenge and reduce societal stigmas and stereotypes associated with persons with disabilities as it promotes a more accurate and positive perception of persons with disabilities within the community. |
Clause 78 General penalty | Any person found guilty of an offence under this Act for which no penalty is expressly provided shall be liable to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding two years, or both. Nothing in this Act shall be construed to preclude an aggrieved person from seeking other civil remedies. | This clause acts as a deterrence in ensuring that the provisions of this Bill are complied with. |
Clause 80 Repeal of the Persons with Disabilities Act No.14 of 2003 | The Persons with Disabilities Act 2003 is hereby repealed. | The Star newspaper dated 28th September 2023, indicated that an analysis by the Global Labor Program concluded that the Persons with Disabilities Act 2003 does not effectively prohibit discrimination of persons with disabilities in the workplace. The Bill seeks to remedy this by including measures and policies that ensure that persons with disabilities are not discriminated against in the workplace. |