Kenya


  • Elizabeth Kamundia
  • LLD Candidate and Disability Rights Project Coordinator, Centre for Human Rights, University of Pretoria
  • This email address is being protected from spambots. You need JavaScript enabled to view it.

1 Population indicators

1.1 What is the total population of Kenya?

According to the 2009 Population and Housing Census report,[1] Kenya has a total population of 38 610 097 people.

1.2 Describe the methodology used to obtain the statistical data on the prevalence of disability in Kenya. What criteria are used to determine who falls within the class of persons with disabilities in Kenya?

A national census is used to obtain data on the prevalence of disability in Kenya. The census questionnaire consists of a set of questions meant to solicit information about the household, including questions about disability.[2] Key areas assessed in the 2009 census were: visual, hearing, speech, physical, mental, self-care difficulties and other.[3] Kenya plans to hold the next census in 2019.[4] For purposes of the 2019 census, the Washington Group Short Set of Questions on Disability[5] will be used to obtain data on the prevalence of disability in Kenya.[6] In addition, the 2019 census will include a specific question to capture data on persons with albinism in Kenya.[7]

1.3 What is the total number and percentage of people with disabilities in Kenya?

According to the 2009 Census, 1 330 312 million (3,5 per cent of the Kenyan population) were reported to have a disability.[8]

1.4 What is the total number and percentage of women with disabilities in Kenya?

According to the 2009 Census, there are 682 623 women with disabilities in Kenya (3,5 per cent).

1.5 What is the total number and percentage of children with disabilities in Kenya?

Statistics on this issue are not available.

1.6 What are the most prevalent forms of disability and/or peculiarities to disability in Kenya?

According to the 2009 Census, the most prevalent form of disability is ‘physical/self care’.[9] The number of persons with disabilities disaggregated by types of disability and gender as per the 2009 Census:

  • Physical/Self Care – 215 627(female), 198 071(male)
  • Visual impairment – 177 811 (female), 153 783 (male)
  • Hearing impairment – 97 978 (female), 89 840(male)
  • Speech impairment – 75 020(female), 86 783(male)
  • Mental impairment – 60 954(female), 75 139(male)
  • Others – 55 233(female), 44 073(male)

2 State’s international obligation

2.1 What is the status of the United Nation’s Convention on the Rights of People with Disabilities (CRPD) in Kenya? Did Kenya sign and ratify the CRPD? Provide the dates.

Kenya signed and ratified the UN Convention on the Rights of Persons with Disabilities on 30 March 2007 and 19 May 2008 respectively.[10]

2.2 If Kenya has signed and ratified the CRPD, when was its country report due? Which government department is responsible for submission of the report? Did Kenya submit its report? If so, and if the report has been considered, indicate if there was a domestic effect of this reporting process. If not, what reasons does the relevant government department give for the delay?

Kenya’s country report was due in May 2010. The report was submitted by the (then) Ministry of Gender, Children and Social Development, and is marked as having been received by the UN Committee on the Rights of Persons with Disabilities (hereinafter CRPD Committee) on 3rd April 2012.[11] Kenya has since then held two elections (in 2013 and 2017) and government departments have been reorganised following the change of government. Currently, the Department of Social Development under the Ministry of Labour and Social Protection bears responsibility for disability.[12]

On 30th September 2015, Kenya received concluding observations on its country report.[13] Following these concluding observations, the (then) Ministry of East African Community, Labour and Social Protection held a stakeholders’ forum to share responsibility for implementing the various concluding observations among government ministries, departments, agencies and independent offices.[14] The outcome of this forum is the publication of a document entitled: ‘National Plan of Action on Implementation of Recommendations made by the Committee on the Rights of Persons with Disabilities in Relation to the Initial Report of the Republic of Kenya, September 2015-June 2022.’ The National Action Plan identifies recommendations as drawn from the concluding observations, objectives, activities, indicators/outputs, timelines and key actors.

2.3 While reporting under various other United Nation’s instruments, or under the African Charter on Human and People’s Rights, or the African Charter on the Rights and Welfare of the Child, did Kenya also report specifically on the rights of persons with disabilities in its most recent reports? If so, were relevant ‘concluding observations’ adopted? If relevant, were these observations given effect to? Was mention made of disability rights in your state’s UN Universal Periodic Review (UPR)? If so, what was the effect of these observations/recommendations?

UN Instruments[16]

The International Covenant on Economic, Social and Cultural Rights In September 2006, Kenya submitted its state report to the Economic and Social Council. On the rights of persons with disabilities, Kenya reported on the situation of expectant mothers with physical disabilities, stating that they were often unable to access healthcare due to inaccessible hospitals – in particular, hospital beds. Kenya also reported on education for children with disabilities.[17] In the concluding observations of the Committee, it recommended that Kenya:

  • take special measures to increase employment of persons with disabilities;
  • take measures to cater to the special needs of children with disabilities in education; and
  • take immediate steps to introduce a comprehensive compulsory health insurance scheme for everyone, including persons with disabilities.[18]

Most of these observations and recommendations have been given effect to, at least in law. To illustrate, article 54(2) of the Constitution and section 13 of the Persons with Disabilities Act 14 of 2003 promote the employment of persons with disabilities. However, there is limited data to show whether there has been an actual increase in their employment as a result of the law. With regard to education for learners with disabilities, in May 2018, a sector policy on education entitled: ‘Sector Policy for Learners and Trainees with Disabilities’ was adopted.[19] In terms of objectives, the policy aims to, inter alia develop a clear policy framework for the provision of inclusive education as well as address the existing policy and implementation gaps in the provision of education and 
training for learners and trainees with disabilities.[20] It is still too early to assess the impact of this policy on access to education by learners with disabilities.

In July 2013, Kenya submitted its combined second to fifth periodic report to the Economic and Social Council. On the rights of persons with disabilities, Kenya reported that it has taken action against discrimination on the ground of sex by: ‘[b]etter recognition of how discrimination intersects within the lives of women with disabilities in terms of the Convention on the Rights of Persons with Disabilities which Kenya ratified in 2008’.[21] The report, however, does not provide concrete information on the specific actions taken by the State in recognition of this inter-sectionality.

On the right to work, the State report noted that:

Enhancing opportunities to work for persons with disabilities has involved encouraging employers to hire at least five per cent employees with disabilities. The reality in this regard though is that extremely few persons with disabilities are hired by the public and private sectors, owing to a mix of factors including prejudice and discrimination and non-availability of qualified persons with disabilities.[22]

This means that despite the enabling provisions in law and policy, access to employment by persons with disabilities remains a challenge. This is unfortunate, given that the State report also recognises that: ‘[t’he section of the population hardest hit by poverty comprises women, unemployed youth, orphans and people with living disabilities’.[23]

On health care, the State report highlights that the ‘National Reproductive Health Policy, 2008 recognises that women with disabilities are also entitled to access reproductive health services’. [24] The State report, however, does not indicate the extent to which women with disabilities access reproductive health services in reality.

On the right to education, the State report notes that marginalised individuals, including persons with disabilities tend to have the least possibility of acquiring an education.[25] The report, however, documents efforts made by the State towards the education of learners with disabilities as follows:

With regard to children with disabilities, the Government has progressively established programmes in various institutions to cater for these learners. There are presently 1,882 primary and secondary schools in Kenya that provide education for learners with special needs. These schools have 50,744 enrolled learners with disabilities. 24,000 of these learners are in special schools while the rest are in regular schools. This increase has been realised as a result of the efforts made to include learners with disabilities in regular schools through FPE. There are also 15 special secondary schools and integrated programmes.[26]

From the above quotation, it is clear that the approach to education for learners with disabilities as at 2013 was largely based on special education. In the 2018 sector policy on education entitled: ‘Sector Policy for Learners and Trainees with Disabilities’, the emphasis is on inclusive education, although the Policy also leaves room for special education.

The Convention on the Rights of the Child

In March 2013, Kenya submitted its state report to the Committee on the Rights of the Child.[27] On the rights of children with disabilities, Kenya reported that it has adopted ‘Concluding Observations’ issued by the Committee on the Rights of the Child in 2007. In the 2007 concluding observations, the Committee specifically recommended that Kenya take fully into account General Comment No 9 on the rights of children with disabilities.[28] The actions that Kenya has taken in response to the Committee’s observations, as reported in Kenya’s 2013 report, include enacting a Constitution that protects the rights of persons with disabilities and setting up a Cash Transfer Programme in 2010 to assist households with severely disabled persons.[29]

The Convention on the Elimination of All Forms of Discrimination against Women

In March 2016, Kenya submitted its state report to the Committee on the Elimination of Discrimination Against Women. On the rights of women with disabilities, Kenya reported that provisions on non-discrimination against women with disabilities are entrenched in the Persons with Disabilities Act.[30] Secondly, the State reports on the 30% procurement affirmative action as follows:

The Government has introduced the 30% affirmative action policy for women, youth and persons with disabilities in public procurement. Under this provision, women, youth and persons with disability are given preference for 30% of public procurement tenders. According to the Public Procurement and Disposal Preference and Reservations Amendment Regulations, 2013, a procuring entity shall allocate at least 30 per cent of its procurement budget for the purpose of procuring goods, works and services for micro and small enterprises owned by women, youth and PWDs. This translates to a minimum of USD 2.4 billion per year worth of business from the government to women, youth and people with disability. The Government monitors the implementation of this policy through the various Ministries and agencies’ Performance Contracts. In addition, the government has introduced a Bill (Access to Government Procurement Opportunities (AGPO)) to entrench the practice into law for women youth and persons with disability. Once it is enacted into law it will be implemented at the national and devolved level. The development of the Bill is anchored on Article 227 of the Constitution.[31]

With regard to the foregoing quotation, unfortunately, the State does not give information on the extent to which women with disabilities have been able to access these procurement opportunities.

Thirdly, the State reports on the Cash Transfer Programme for persons with disabilities,[32] which is discussed in more details at section 6.1 above.

A network of organisations of women with disabilities named ‘Kenyan Network Advocating for the Rights of Women and Girls with Disabilities’ submitted a shadow report to the Committee on the Elimination of all Forms of Discrimination Against Women. [33] In the shadow report, the network identifies that discrimination against women with disabilities in Kenya is still rife. In addition, the Network identifies following as critical areas where the rights of women with disabilities are often violated: sexual and reproductive health and rights, access to education, access to employment, access to justice and representation and participation.[34]

The Convention against Torture and other Cruel, Inhumane and Degrading Treatment or Punishment

In September 2012, Kenya submitted its State report to the Committee against Torture. On issues of persons with disabilities, the report notes that in ensuring that access to justice by persons with disabilities is not hampered: ‘[u]nder the Persons with Disabilities Act, people with disabilities are not required to pay filing fees in certain matters’.[35] The State report, however, is silent on the fact that the regulations that were required to be developed to exempt persons with disabilities from paying filing fees have not been developed to date.

It is important to note that the report does not address issues of torture in health care settings. This omission is significant in the disability context, given the state of mental health institutions in Kenya, and in particular, the use of restraints and isolation on persons with psychosocial disabilities in mental health institutions.[36] According to the Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E Méndez, ‘there can be no therapeutic justification for the use of solitary confinement and prolonged restraint of persons with disabilities in psychiatric institutions; both prolonged seclusion and restraint may constitute torture and ill-treatment.’[37]

Regional Instruments

African Charter on Human and Peoples’ Rights

In its June 2006 report under the African Charter on Human and Peoples’ Rights, Kenya reports that it has taken legislative measures towards protecting the rights of persons with disabilities. The state identified major challenges affecting persons with disabilities to include culture, infrastructure and equipment, lack of reliable data on persons with disabilities, inadequate budgetary allocation on issues of persons with disabilities and poor implementation of the Persons with Disabilities Act.[38] In its concluding observations to Kenya, the African Commission on Human and Peoples’ Rights merely commended Kenya for establishing the National Council for Persons with Disabilities but did not make substantive ‘Concluding Observations’ on disability.[39]

Kenya submitted its combined 8th - 11th periodic report on the African Charter on Human and Peoples’ Rights in November 2014.[40] This report comprises significant provisions on issues of persons with disabilities across a broad range of rights aspects including prohibition of discrimination, freedom of information and expression, right to work, housing, health, education, and the right to take part in cultural life. In addition, the report has stand-alone sections on ‘children with special needs’ and ‘rights of persons with disabilities’.

On prohibition of discrimination, the report notes that the ‘retirement age for persons with disabilities in public service is pegged at 65 years while that for other public employees is 60 years as an affirmative action’ measure.[41] In addition, the report highlights that Kenya has developed a draft National Policy on Disability, which seeks to eliminate disparities in service provision and to ensure that services are available to all citizens with disabilities.[42] It is, however, important to note that the draft National Policy on Disability remains in draft form and is yet to be concluded. Finally, on non-discrimination, the report cites the Public Service Commission of Kenya- Code of Practice on Disability Mainstreaming. The Guidelines outline that institutions should advocate and facilitate the respect, equal opportunity, non-discrimination, accessibility, effective participation and inclusion of persons with disabilities in the work environment.[43] In addition, ‘all public organizations must include a measurable targets in their performance contract every year on actions they intend to take to mainstream persons with disabilities. Such targets are mandatory and no public body has an option of not contracting on it’.[44]

With regard to freedom of information and expression, the report notes that the Constitution of Kenya recognizes the rights of persons with disabilities to access information. Additionally, the report highlights that the Constitution recognizes Braille and other communication formats and technologies accessible to persons with disabilities as part of the languages of Kenya.[45]

On the right to work, the report cites the case of Paul Pkiach Anupa & Another v Attorney General & Another.[46] In this case, a police officer was retired ‘on medical grounds’ when he acquired a physical disability. The High Court ruled that the employer should have reassigned the petitioner and instituted reasonable accommodation measures to enable him continue working as a police officer.[47]

On children with special needs, the report notes as follows:

With regard to children with disabilities, the Government has progressively established programmes in various institutions to cater for these learners. There are presently 1,882 primary and secondary schools in Kenya that provide education for learners with special needs. These schools have 50,744 enrolled learners with disabilities. 24,000 of these learners are in special schools while the rest are in regular schools. This increase has been realized as a result of the efforts made to include learners with disabilities in regular schools through FPE. There are also 15 special secondary schools and integrated programmes.[48]

From the quotation above, it is clear that there is commitment on the part of the State to promote education for learners with disabilities. The information provided, however, does not identify criterion for transitioning the 24,000 students who are in special schools to inclusive schools in line with article 24 of the CRPD. The report also does not clarify the extent of support received by learners with disabilities in mainstream institutions. The section on the rights of persons with disabilities comprehensively addresses the legislative, policy and administrative measures that have been taken to redress and enhance the rights of persons with disabilities.[49] In discussing the Constitution of Kenya, 2010, the report notes that: ‘[t]he concept of reasonable accommodation for persons with disabilities is recognized under Article 54 of the Constitution, which provides for the rights of persons with disabilities’.[50] Article 54 of the Constitution does not explicitly mention reasonable accommodation. However, in the light of the fact that article 54, as read with article 27(4) of the Constitution lays a strong foundation for non-discrimination on the grounds of disability, and denial of reasonable accommodation constitutes discrimination on the basis of disability under international law, the Constitution of Kenya may be read as recognizing reasonable accommodation.

On legislation, the report identifies the Employment Act 11 of 2007, the Sexual Offences Act 3 of 2006 and the Witness Protection Act of 2008 as protecting the rights of persons with disabilities.[51] On administrative measures, the report notes that ‘Public Procurement (Preference & Reservations) (Amendment) Regulations was developed in 2013 to allow 30 per cent of public contracts to be given to the youth, women and persons with disability without competition from established firms’.[52] The report also highlights the National Development Fund for Persons with Disabilities and the Cash Transfer Programme for persons with disabilities.[53] The report, however, does not provide data on the number of persons with disabilities who have benefited from these measures.

UN Universal Periodic Review

Kenya was first reviewed by the Human Rights Council-Universal Periodic Review on 6 May 2010. The state reported that it has enacted some important legislation and adopted progressive policies to promote the rights of persons with disabilities. However, the state noted that there are still gaps in harmonisation of various policy interventions. Kenya was urged to reinforce protection of vulnerable groups, notably children with specific needs.[54]

In 2015, Kenya was reviewed under the second cycle of the Universal Periodic Review. Kenya’s report makes reference to disability as follows.[55] First, the report notes that the National Assembly inter alia comprises 12 nominated members representing special interest groups, including persons with disabilities. Additionally, Senate consists of two members who are persons with disabilities.[56] Secondly, the report identifies that Kenya has submitted its State report to the UN Committee on the Rights of Persons with Disabilities.[57] Thirdly, the report notes the reservation of 30% of all procurement opportunities for women, youth and persons with disabilities.[58] Fourthly, the report notes that on housing, ‘the Draft National Building and Maintenance Policy to ensure that all Kenyans and more so Persons with Disabilities have access to better housing facilities’.[59]

Finally, the report has a stand-alone section on persons with disabilities.[60] The section identifies progressive provisions on the employment of persons with disabilities under the Constitution of Kenya, 2010, the Employment Act and the Persons with Disabilities Act. The section also identifies programmes on employment of persons with disabilities, including that: ‘[t]he National Council of Persons with Disabilities undertakes placements for persons with disabilities in Government institutions and private organizations’.[61] The report, however, does not contain data on the numbers of persons with disabilities who have been employed as a result of these laws and programmes. This is a significant omission, given that the UN Committee on the Rights of Persons with Disabilities highlights that only about 1% of persons with disabilities in Kenya are in employment.[62]

Global Disability Summit

On 24 July 2018, the UK government, together with the Government of Kenya and the International Disability Alliance co-hosted the first ever Global Disability Summit.The summit took place at the Queen Elizabeth Olympic Park in London. More than 1000 delegates, drawn from governments, donors, private sector organisations, charities and organisations of persons with disabilities participated in the summit.[63] The following list comprises the summary of commitments made by the Government of Kenya at the Summit.

  1. Raise awareness on and enforce existing laws and policies promoting the rights of Persons with Disabilities.
  2. Revitalize CBR programs as a way of raising awareness with special focus on socio-economic activities such as livelihood, education & health.
  3. Build capacities of communities, first responders and service delivery professionals on inclusion of PWD in crisis risk reduction, preparedness and response.
  4. Implement awareness raising programs that will address violence against women and girls with disability and promote disability inclusive reproductive health
  5. Ratify the AU Protocol Charter on Human and People ‘rights of Persons with disabilities in Africa.
  6. Ring-fence & allocate funds for equipment, infrastructure and teacher training in inclusive education.
  7. Enhance capacity of the Educational Assessment and Resource Centers (EARCs) to identify, assess and place children with disabilities in appropriate learning institutions.
  8. Modernize vocational rehabilitation centers to enable them offer quality rehabilitation and training targeting persons with disabilities
  9. Institutionalize National Disability Inclusive Budgeting across all government departments both at national and county levels.
  10. Enforce the thirty Percent (30%) quota allocation in access to Government Procurement opportunities to Persons with disabilities at National and County government’s levels as well as in private sector.
  11. Review the targeting criteria for social assistance programme for people with disabilities, so as to include more vulnerability in the category.
  12. Actualize accessibility provisions in respect to build in environment and information as provided for in the existing legislations to enhance social and economic involvement of persons with disabilities
  13. Enhance capacity of Community Based Rehabilitation (CBR) programs to provide socio-economic activities that support sustainable livelihoods.
  14. Regularize and enforce standards on innovation for development and importation of assistive devices
  15. Set up assistive technology HUB amongst major stakeholders including universities, innovators, producers, users among others
  16. To reference the WHO guidelines on the 50 priority assistive devices in developing and implementing assistive devices programmes.
  17. Make us of the Washington Group Short Questions in the national Census 2019 and all other Surveys.
  18. Sign up to the Inclusive Data Charter and subsequent development of an Action Plan for its implementation.
  19. Institutionalize National Disability Inclusive budgeting across all government departments both at national and county levels.
  20. Enforcing existing laws and policies promoting the rights of PWD.
  21. Strengthening the role of institutions and enhance their capacity to effectively deliver on its supervisory and enforcement mandate to ensure that service implementation organs at County and central government levels  adhere to the government commitments.

2.4 Was there any domestic effect on Kenya’s legal system after ratifying the international or regional instruments in 2.3 above? Does the international or regional instrument that has been ratified require Kenya’s legislature to incorporate it into the legal system before the instrument can have force in Kenya’s domestic law? Have the courts of Kenya ever considered this question? If so, cite the case(s).

Prior to the Constitution of Kenya, 2010, Kenya was a dualist state. Section 2(6) of the Constitution of Kenya can be read as having turned Kenya into a monist state.[64] It provides that ‘any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution’.[65] The import of this article on the place of international law in Kenya’s legal system has been the subject of debate by scholars and courts.[66] As noted by Odunga J in the case of Njuguna Ndung’u v Ethic & Anti-Corruption Commission, (Njuguna Ndungu case):[67]

Whereas legal scholars are in agreement on the applicability of the rules on international law as automatically forming part of the law of Kenya, there is no such uniformity of agreement when it comes to treaties and conventions. While some scholars argue that once the treaties and conventions are ratified they automatically form part of the law of Kenya, others argue that the use of the phrase “under this Constitution” as read with the provisions of Article 94(5) of the Constitution which provides that “no person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation” means that even where ratified, the said treaties and conventions must still be domesticated in order for them to acquire the force of law in this country. Article 94(5) cements the nation as a dualist state. In other words, according to this school of thought, with respect to treaties and conventions we are still a dualist state.[68]

Post 2010, most decisions have been to the effect that Articles 2(5) and 2(6) of the Constitution of Kenya 2010 transformed Kenya into a monist state.[69] In the Court of Appeal case Karen Njeri Kandie v Alssane & another[70] (Karen Njeri Kandie case), Ouko, Kiage and M’Inoti LJJ interpreted the Constitution of Kenya 2010 as having transformed Kenya into a monist state. The Court stated that:

There can be no doubt therefore that by constitutional fiat, Kenya converted itself from a dualist country to a monist one with the effect that a treaty or convention once ratified is adopted or automatically incorporated into our laws without the necessity of a domesticating statute.[71]

Other cases that take this position include Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others,[72] R v Permanent Secretary Office of the President Ministry Of Internal Security & another Ex-Parte Nassir Mwandihi,[73] R v David Macharia[74] and Re Zipporah Wangui Mathara.[75]

In 2012, parliament passed the Treaty Making and Ratification Act to give effect to Article 2(6) of the Constitution and thereby provides the procedure for the making and ratification of treaties.

The Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child have been fully domesticated in Kenya through the enactment of the Children’s Act.[76] Various aspects of international instruments are given effect in different laws.[77] For example, article 43 of the Constitution of Kenya on economic and social rights gives effect to key provisions in the International Covenant on Economic, Social and Cultural Rights. Case law

Courts in Kenya have considered the question of international law vis-à-vis Kenya’s domestic legal system. On the one hand there is the view, espoused by the High Court in Re the Matter of Zipporah Wambui Mathara,[78] that international law supersedes conflicting local law. On the other hand, is the view that international law is not above any local statute as they are both law under the Constitution and hence equal in stature. This was the view of the High Court in Beatrice Wanjiku v The Attorney General.[79]

2.5 With reference to 2.4 above, has the United Nation’s CRPD or any other ratified international instrument been domesticated? Provide details.

The Persons with Disabilities Act of Kenya was passed in 2003 (prior to the CRPD) and is currently under review to align it with the CRPD in line with the concluding observations of the UN Committee on the Rights of Persons with Disabilities. The CRPD Committee recommended that Kenya:

Complete as a matter of priority and within a specific time frame the process to review the Persons with Disabilities Act 2003 and bring it into line with the provisions of the Convention and the human rights-based approach to disability.[80]

In July 2018, Cabinet approved the Persons with Disabilities Bill, 2017, and the bill has been forwarded to the Office of the Attorney General for a final review before publication. This Bill will then be tabled before the National Assembly for debate.

3. Constitution

3.1 Does the Constitution of Kenya contain provisions that directly address disability? If so, list the provision, and explain how each provision addresses disability.

Article 54 of the Constitution is a stand-alone article on disability:

‘54. (1) A person with any disability is entitled –

(a) to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;

(b) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;

(c) to reasonable access to all places, public transport and information;

(d) to use Sign language, Braille or other appropriate means of communication; and

(e) to access materials and devices to overcome constraints arising from the person’s disability.

(2) The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.’

Other articles that address disability directly are the following: 7(3)(b), 21(3), 27(4) and (5), 54, 81(c), 82(2)(c)(i), 83(1)(b), 97(1)(c), 98(1)(d), 99(2)e, 100(b), 120(1), 177(1)(c), 193(2)(d), 227(2)b, 232(1)(i)(iii) and 260.

3.2 Does the Constitution of Kenya contain provisions that indirectly address disability? If so, list the provisions and explain how each provision indirectly addresses disability.

The Constitution contains provisions that make reference to ‘marginalised persons’, ‘groups affected by past discrimination’ and ‘persons or groups previously disadvantaged by unfair competition or discrimination’ in articles 10(2)b, 27(6), 91(1)(e) and 227 (2)(b). Persons with disabilities fall under these classifications.

4. Legislation

4.1 Does Kenya have legislation that directly addresses issues relating to disability? If so, list the legislation and explain how the legislation addresses disability.

The Persons with Disabilities Act, 2003 directly addresses issues related to disability. Currently, the Act is under review.[81] Kenya has also enacted other legislation addresses disability.[82]

The Persons with Disabilities Act 14 of 2003[83]

The aims of the Persons with Disabilities Act are to provide for the rights and rehabilitation of persons with disabilities, to achieve equalisation of opportunities for persons with disabilities, and to establish the National Council for Persons with Disabilities (NCPWD). The Act also establishes the National Development Fund for Persons with Disabilities to provide monetary assistance to organisations and persons with disabilities.

The rights provided for in the Act include civil and political rights, equal rights of access to opportunities for suitable employment, to special and non-formal education, appropriate health care, participation in sporting and recreational activities and to a barrier free and disability friendly environment.[84]

Subsidiary legislation under the Act includes The Persons with Disabilities (Access to Employment, Services and Facilities) Regulations, 2009 and The Persons with Disabilities (Income Tax Deductions and Exemptions) Order, 2010.

Social Assistance Act 24 of 2013[85]

Section 23 of the Act provides that a person with a disability is eligible for social assistance under the Act if the person suffers from severe mental or physical disability, the person’s disability renders them incapable of catering for their basic needs and there is no known source of income or support for the person. The

Mental Health Act 10 of 1989[86]

The intent of the Act is to amend and consolidate the law relating to: the care of persons who are suffering from a mental disorder or mental subnormality with a mental disorder; the custody of their persons and the management of their estates; and the management and control of mental hospitals. Section 16 of the Act authorises non-consensual psychiatric treatment as well as detention. Section 26 of the Act provides that the court may make orders for the management of the estate of any person suffering from a mental disorder and for the guardianship of any person suffering from a mental disorder.

Matrimonial Causes Act 34 of 1941[87]

One of the grounds of divorce according to section 8 of the Matrimonial Causes Act is where a spouse is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition. Similarly, one of the grounds for nullifying a marriage under section 14(f) is where either party was at the time of marriage of unsound mind or subject to recurrent fits of insanity or epilepsy.

Criminal Procedure Code[88]

Sections 162, 163, 164 and 280 of the Criminal Procedure Code establish the procedure through which a court may determine that a person is of unsound mind and the subsequent consequences, including that once so declared a person may be consigned to a mental hospital or, in the wording of section 280, a ‘lunatic asylum’ until such time as the medical officer or the court or the Attorney General deem such person to be of sound mind.

Sexual Offences Act 3 of 2006[89]

The Act recognises persons with disabilities as ‘vulnerable witnesses’ under Section 31 and authorises the use of intermediaries to enable the ‘vulnerable witnesses’ engage with the judicial system. An intermediary is ‘a person authorized by a court, on account of his or her expertise or experience, to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counselor, guardian, children's officer or social worker.’ Section 31(10) provides that an accused shall not be convicted solely on the uncorroborated evidence of an intermediary.

The Basic Education Act 14 of 2013[90]

Part VI of the Basic Education Act focuses on promotion of special needs education. This part addresses, inter alia, the establishment and management of special institutions. Under the Act, children with special needs are identified as including ‘intellectually, mentally, physically, visually, emotionally challenged or hearing impaired learners, pupils with multiple disabilities and specially gifted and talented pupils’.[91] The Cabinet Secretary is required to ensure that every special school is provided with appropriate trained teachers and infrastructure for learners with disabilities.[92]

Penal Code[93]

According to Section 12 of the Penal Code, a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission. Section 146 prohibits ‘defilements of [idiots] or [imbeciles]’.

The Elections Act 24 of 2011[94]

The Act disqualifies a person of unsound mind from being registered as a voter or being nominated as a Member of Parliament, county assembly, governor, speaker and other public offices. Section 36 outlines the criteria for allocation of special seats by political parties which include a requirement that the list shall include eight candidates, four of whom shall be persons with disabilities.

The Employment Act 11 of 2007[95]

The Employment Act explicitly prohibits an employer from discriminating directly or indirectly against an employee or prospective employee on grounds of disability.

The Children’s Act 8 of 2001[96]

The Children’s Act explicitly prohibits discrimination against a child on the ground of disability under Section 5. Section 107(2) of the Act provides for the extension of guardianship when a child suffers from a mental or physical disability or illness rendering him or her incapable of maintaining himself or herself or managing his own affairs and property without a guardian’s assistance.

4.2 Does Kenya have legislation that indirectly addresses issues relating to disability? If so, list the main legislation and explain how the legislation relates to disability.

Other acts that mention or indirectly address issues relating to disability include the Trustee Act,[97] Civil Procedure Act and the Civil Procedure Rules, 2010,[98] Kenya Citizenship and Immigration Act,[99] HIV and AIDS Prevention and Control Act,[100] Sale of Goods Act,[101] National Social Security Fund Act,[102] Law of Succession Act,[103] Traffic Act,[104] Evidence Act,[105] Kenya National Commission on Human Rights Act[106] and the National Gender and Equality Commission Act.[107]

5. Decisions of courts and tribunals

5.1 Have the courts (or tribunals) in Kenya ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases with the facts, the decision(s) and the reasoning.

In Fredrick Gitau Kimani v The Attorney General[108] the Petitioner, a public officer, who was diagnosed with diabetes and whose left leg had been amputated, was relieved of his duties on medical grounds. He had been certified by the NCPWD as a person with a disability. According to the Persons with Disabilities Act, the retirement age for persons with disabilities is 60 years of age. However, the petitioner retired at 55. The Petitioner argued that the early retirement amounted to discrimination on the grounds of health, status, age as well as disability which was a direct violation of article 27(4) of the Constitution as read with section 15(6) of the Persons with Disabilities Act. The Court held that the Petitioner was discriminated against and awarded him damages.

Kenya Society for the Mentally Handicapped (KSMH) v The Attorney General[109] was brought by KSMH on its own behalf and in the public interest. KSMH accused the state of violating the rights of persons with mental and intellectual disabilities by discriminating against them in the provision of support and services contrary to articles 21(3), 28 and 27(1) of the Constitution. One of KSMH claims was that the state was slow to formulate and develop measures and implementing policies designed to achieve equal opportunities for persons with mental and intellectual disabilities to obtain education and employment and access to healthcare. The Court held that the petitioners failed to present facts and evidence to support their legal arguments and dismissed the petition.

In the case of In the matter of Leah Wachu Waiganjo (a person suffering from a mental disorder) and in the matter of an application by William Kibera Waiganjo to be appointed manager to the estate of and guardian to the said Leah Wachu Waiganjo[110]  an application was made by William Kibera Waiganjo (the applicant) to be appointed guardian ad litem and manager of the estate of Leah Wachu Waiganjo (the subject). The basis of the application was that Leah suffers from a mental disorder that rendered her incapable of managing her affairs. Medical evidence was produced to show that the she suffered from temporal lobe epilepsy and periodic depression. Based on the Court’s observations of Leah and the medical reports, the Court appointed the applicant to be Leah’s guardian ad litem, to manage her estate, including proper provision for her maintenance, and to take any appropriate legal action for her benefit and for the benefit of her estate.

In the case of Duncan Waga v Attorney General,[111] the Claimant was a police officer who acquired a visual impairment during the course of his employment. The Claimant argued that he was not accorded reasonable accommodation under the law. The Industrial Court quoted the definition of ‘reasonable accommodation’ exactly as found in Article 2 CRPD. In this case, the CRPD prompted the court to reflect on ways the employer may have continued to keep the Claimant in employment, rather than recklessly waiting ‘for the opportune moment to damp (sic) the Claimant at the hour of need without any assistance’.[112] While the court did not expressly interpret the meaning of reasonable accommodation as raised by the Claimant in his claim, the decision reached by the court may be argued to have been informed significantly by the CRPD. In this case, the court relied substantially on Sections 11, 12(1) and 15(6) of the Persons with Disabilities Act.[113]

In Wilson Siringi v Republic[114] (Wilson Siringi case), the appellant had been convicted of rape and sentenced to serve fifteen years. In convicting the accused, the subordinate court had based its reasoning on the automatic presumption that, because the alleged victim was a person with intellectual/mental disabilities, she lacked capacity to consent to sexual activity.[115] This presumption is embedded in Section 43(4) e of the Sexual Offences Act which states that:

  1. (1) an act is intentional and unlawful if it is committed—
  2. c) In respect of a person who is incapable of appreciating the nature of an act which causes the offence.
  3. The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act—
  4. e) Mentally impaired;

The trial magistrate, in convicting the appellant, concluded that:

Even if the complaint was an adult she was legally incapable of consenting due to mental illness. I therefore disagree with the accused when he states that she was capable of making a sound decision. I find the apparent consent was vitiated by the complainant’s mental illness.[116]

Upon appeal to the High Court, the Appellate Judge invoked Article 12 of the CRPD to rule that such presumptions of incapacity are no longer valid:

In conclusion I would be remiss if I did not mention that the approach taken by the prosecution and the learned magistrate is that the complainant is an object of social protection rather than a subject capable of having rights including the right to make the decision whether to have sexual intercourse. This approach is inconsistent with the provisions of Article 12 of the Convention on the Rights of Persons with Disabilities which requires State parties to recognise persons with disabilities as individuals before the law, possessing legal capacity to act, on an equal basis with others. Kenya ratified this Convention in 2008 and by dint of Article 2(6) of the Constitution it forms part of the law of Kenya.[117] It is therefore improper and inconsistent with the Convention and an affront to the right of dignity of a person protected by Article 28 to label any person as mentally retarded and proceed on the basis that the person is incapable of making a free choice to engage in sexual intercourse.[118]

In Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers v Association for the Physically Disabled of Kenya,[119] the Industrial Court used the CRPD to reach the conclusion that the government had failed to enable the claimants to exercise their right to work and employment:

Kenya signed the United Nations Convention on the Rights of Persons with Disabilities on 30th March 2007, and ratified the Convention on 19th May 2008. The Convention is part of the laws of Kenya, under Article 2 [6] of the Constitution… The State Parties under the Convention recognize the right of Persons with Disabilities to work. State Parties have the obligation to safeguard and promote the realization of the right to work of Persons with Disabilities… Article 27 demands that the State shall promote employment opportunities and career advancement for Persons with Disabilities in the labour market, as well as assist Persons with Disabilities in finding, obtaining, maintaining and returning to employment… The State is required to achieve these objectives through legislation and other measures. The Convention is clear the State must promote job retention and return to work programs for Persons with Disabilities.[120]

The cases that follow address issues of criminal responsibility.

In Hassan Hussein Yusuf v Republic,[121]the appellant was charged with an offence of breaking into a building and committing a felony contrary to section 306(a) of the Penal Code. At the trial Court level, the appellant was tried and convicted to detention at the pleasure of the president, but at the time of sentencing, it dawned on the Court that he was of unsound mind. He appealed against the conviction and the order of detention at the pleasure of the president.

On appeal, the High Court at Meru stated that a sick person's place is at the hospital and not in prison. The Court noted that section 167 of the Criminal Procedure Code discriminates against people with mental illness by prescribing their detention to be in prison instead of a health facility and by prescribing their detention to be indeterminate. According to the Court, this therefore offends articles 25 and 29 (f) of the Constitution as keeping a ‘sick person’ for an indeterminate period in a prison is cruel, inhuman and degrading treatment. The Court stated that the order envisaged under section 167 (1) of the Criminal Procedure Code is a punishment, and any punishment that cannot be determined from the onset is cruel, inhuman and degrading. The Court therefore made a finding that this section is unconstitutional to the extent that it offends the said articles of the Constitution.

In Republic v S.O.M., [122] the accused was convicted for the murder of his grandmother, contrary to section 203 as read with section 204 of the Penal Code. The trial Court found that the accused committed the act that led to the death of the deceased. The Court made a special finding under section 166(1) of the Criminal Procedure Code (‘the CPC’) to the effect that the accused committed the act of killing but was insane at the time.

On appeal, the High Court in Kisumu stated that it is clear from section 166 of the CPC that the Court’s duty comes to an end when it enters the special verdict against the accused and directs the accused’s detention pending the President’s decision. According to the High Court, the imposition of a punishment in a criminal matter which includes the assessment of its severity is an integral part of the administration of justice and is therefore the exercise of judicial, not executive, power. The Court noted that the vesting of discretion on the President on how an accused is to be treated after conviction is inimical to the fundamental duty of the judiciary to determine the guilt of the accused and determine the terms upon which he or she serves the sentence. According to the High Court, the fact that the statute provides for a periodic review by the President upon advice of executive functionaries goes further to buttress this key point.

The Court went on to declare the provisions of section 166 of the Criminal Procedure Code unconstitutional to the extent that they take away the judicial function to determine the nature of the sentence or consequence of the special finding contrary to Article 160 of the Constitution by vesting the discretionary power to the President to determine the nature and extent of the sentence. Consequently, the court declared that in order to remedy the constitutional defect, the reference to ‘the President’ under section 166 of the Criminal Procedure Code shall be replaced by reference to ‘the Court’.

6. Policies and programmes

6.1 Does Kenya have policies or programmes that directly address disability? If so, list each policy and explain how the policy addresses disability

National Disability Policy of 2006

The key policy with regard to persons with disabilities is the National Disability Policy of 2006.[123] The Policy recognises disability as a ‘human rights and a development phenomenon that cuts across all aspects and spheres of society and which requires support from all sectors’.[124] The Policy echoes some of the rights of persons with disabilities that have been recognised in the CRPD including accessibility, education and employment. The policy aims to abolish all forms of discrimination against persons with disabilities and to provide equal opportunities to persons with disabilities. The Policy takes cognisance of the importance of awareness raising on disability and to this end states that the ‘Government shall seek to increase the levels of public awareness on the needs, aspirations and capacities of persons with disabilities so as to enhance their acceptance, participation and integration in society’. The Sessional Paper for the Policy is yet to be presented to Parliament for approval.[125]

The National Human Rights Policy and the Draft National Social Protection Policy[126] also address disability.

Sector Policy for Learners and Trainees with Disabilities

In May 2018, Kenya adopted a new ‘Sector policy for learners and trainees with disabilities’.[128] In line with article 24 of the CRPD, one of the policy objectives is to ‘promote and enhance the provision of inclusive education and training for learners and trainees with disabilities’. The policy, however, also maintains special education. The Policy asserts that there are learners and trainees who may require special institutions and home-based care, depending on the severity of disability and their individual interest. In particular, the Policy notes as follows:

This policy therefore calls for inclusive education for learners and trainees with disabilities to be considered as an overarching principle, recognizing the country’s need to move towards including learners and trainees with disabilities into regular learning and training institutions, while learning with their peers without disabilities and receiving reasonable accommodation. With appropriate support, resources and enforcement, inclusive education increases access to education of learners and trainees with disabilities, enhances learning outcomes for all, benefits all learners and trainees and is cost-effective. However, it must be noted that this shift to inclusive education recognizes the important role of other approaches such as special institutions of learning, special units in regular institutions of learning, and home-based education in providing education and training specifically for learners and trainees with severe disabilities and in vulnerable situations. In addition, Kenya recognizes the need to specifically maintain special schools while striving to transition towards inclusive education.[129]

The foregoing quotation discloses the risk, which is that of simply maintaining the status quo of segregated education. In addition, the Policy also seems to take an integration approach, providing for units/classes to be established in either regular or special institutions of learning to cater for the needs of learners and trainees with disabilities. These units, for the most part, only delay inclusive education for many learners.

On a positive note, the Policy sets up Educational Assessment and Resource Centres (EARCs) for ‘the educational assessment of children and their placement to appropriate education services’. It is, however not clear that these centres are to act as resource centres in terms of supporting students with disabilities in regular classes. The extent to which EARCs will support inclusive education remains to be seen.

Kenya Mental Health Policy

The Kenya Mental Health Policy 2015-2030 provides for a framework on interventions for establishing mental health systems reforms in Kenya. The Policy seeks to address four issues as follows. First is to align the mental health services with the Constitution of Kenya, and with the National and Global health agenda. Secondly, the Policy seeks to address the mental health systemic challenges, emerging trends and mitigate the burden of mental disorders. Thirdly, the Policy aims to integrate the mental health services within the Kenya Essential Package for Health (KEPH). Finally, the Policy aims to promote, respect and observe the rights of persons with mental disorders in accordance with national and international laws.[130]

The National Guidelines for HIV Testing and Counseling

The National Guidelines for HIV Testing and Counseling in Kenya recognise that provisions should be made for persons with disabilities to access HIV Testing and Counselling (HTC) services in a manner that meets their specific needs.[131]

Cash Transfer Programme

Kenya is running the ‘Persons with Severe Disability Cash Transfer Programme (PWSD-CT)’.[132] Under this Programme, the government defines personswith severe disabilities as referring to:

[T]hose who need permanent care including feeding, toiletry, protection from danger from themselves or other persons, and from the environment. They also need intensive support on a daily basis which therefore keeps their parents and guardians / caregivers at home or close to them throughout.[133]

The overall objective of the Programme is ‘to enhance the capacities of the caregivers through cash transfers thereby improving the livelihoods of persons with severe disabilities and mitigating the effect of the disability to the household’. The eligibility criteria are ‘[a] household with a person with severe disability and extremely poor households’.

[134]

6.2 Does Kenya have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.

The National Land Policy

Section 3.6.5, clause 194 of the National Land Policy makes provision for land rights of vulnerable groups who include persons with disabilities. Kenya Vision 2030, the country’s development blueprint, also touches on disability in its description of measures to be taken to enhance the lives of vulnerable groups.[135]

7. Disability bodies

7.1 Other than the ordinary courts and tribunals, does Kenya have any official body that specifically addresses violation of the rights of people with disabilities? If so, describe the body, its functions and its powers.

The National Council for Persons with Disabilities was set up by the Persons with Disabilities Act, 2003 to promote the right of persons with disabilities in Kenya and to mainstream disability issues in all aspects of national development.[136] While the Council does not specifically address violations of rights of individuals, it is charged under Section 7 of the Act to formulate and recommend to the government measures to promote the rights of persons with disabilities. The bodies that specifically address violations of rights of people with disabilities are courts and the bodies described in question 8 below.

7.2 Other than the ordinary courts or tribunals, does Kenya have any official body that though not established to specifically address violations of the rights of persons with disabilities, can nonetheless do so? If so, describe the body, its functions and its powers.

See question 8 below.

8. National human rights institutions (Human Rights Commission or Ombudsman or Public Protector)

8.1 Does Kenya have a Human Rights Commission or an Ombudsman or Public Protector? If so, does its remit include the promotion and protection of the rights of people with disabilities? If your answer is yes, also indicate whether the Human Rights Commission or the Ombudsman or Public Protector of Kenya has ever addressed issues relating to the rights of persons with disabilities.

Kenya has a National Gender and Equality Commission, Kenya National Commission on Human Rights and a Commission on Administrative Justice (The Office of the Ombudsman) all established pursuant to article 59 of the Constitution, the National Gender and Equality Commission Act, the Kenya National Commission on Human Rights Act and the Commission on Administrative Justice Act respectively.

The Kenya National Commission on Human Rights (KNCHR)[137] monitors compliance with the CRPD, having been designated as the monitoring body under article 33(2) of the Constitution in 2010 by the Attorney General of Kenya. The Commission has a ‘Disability Focal Point’ that ensures that the rights of persons with disabilities are secured in various legislation and policies.[138]

The Commission was first designated as the monitoring agency of the Convention in February 2011.  The monitoring mandate was then vested in the National Gender and Equality Commission in 2014. On 9th June 2017, the Attorney General re-designated the Commission as the monitoring agency under the Convention on the Rights of Persons with Disabilities (CRPD).[139] The designation of KNCHR as the monitoring agency under Article 33 of the Convention has been made pursuant to the Concluding Observations of the Committee on the Rights of Persons with Disabilities upon Kenya’s review on its initial report in 2015. The Committee in expressing its concern that the Kenya National Commission on Human Rights did not form part of the national mechanism for monitoring the Convention, specifically recommended that ‘…the state party establish a national mechanism to monitor the implementation of the Convention with the participation of the Commission as an institution in compliance with the Paris Principles.’[140]

The National Gender and Equality Commission (NGEC)[141] has a department on ‘Disability and Elderly’, whose mandate is to ‘effectively promote mainstreaming of issues of disabilities and elderly into all aspects of socio-cultural, economic and political development and monitor implementation of the right of persons with disabilities and the elderly’.[142] The NGEC has been conducting county visits to monitor the Cash Transfer Programme for Persons with Severe Disabilities.[143]

In response to the concluding observation on amending the Persons with Disabilities Act 2003,[144] the Kenya National Commission on Human Rights (KNCHR), the National Gender and Equality Commission (NGEC) and the Caucus on Disability Rights Advocacy (a network of organizations representing persons with disabilities) have jointly reviewed the Persons with Disabilities Bill, 2017. KNCHR, NGEC, and the Caucus on Disability Rights Advocacy developed an advisory on how to align provisions of the Bill with the Constitution and the human rights based approach to disability as per the Convention on the Rights of Persons with Disabilities.  The advisory has been shared with the Parliamentary Committee on Labour and Social Protection ahead of the Bill being tabled before the National Assembly. The Commission on Administrative Justice (CAJ)[145] has a complementary mandate on human rights, but the core bodies on human rights and equality matters are KNCHR and NGEC.

9. Disabled peoples’ organisations (DPOs) and other civil society organisations

9.1 Does Kenya have organisations that represent and advocate for the rights and welfare of persons with disabilities? If so, list each organisation and describe its activities.

Kenya does have organisations that represent and advocate for the rights and welfare of persons with disabilities.[146] These include:

  • Action Network for the Disabled

A national Disabled Persons Organisation founded by and for children and youth with disabilities in Kenya.

  • Association of the Physically Disabled in Kenya

Its focus is the rehabilitation of people with physical disabilities, cerebral palsy and multi-handicapped children.

  • Albinism Society of Kenya

A National not-for-profit Civil Society Organization (CSO) established to bring together and assist people with albinism to live dignified lives through awareness-raising to enhance their confidence and self-esteem and advocacy among others.

  • Autism Society of Kenya

Set up by parents to cater for children with Autistic Spectrum Disorder in Kenya.

  • Brian Resource Centre

Set up to maximize the full potential of the Deaf blind person and their families.

  • Cheshire Disability Services Kenya

Provides a range of care and support services in response to the growing needs and preferences of persons with disabilities.

  • Christoffel Blinden Mission

Helps people in need in developing countries, specifically those who are blind or otherwise disabled.

  • Ecumenical Disability Advocates Network

Set up to support the work of individuals, churches and non-church organisations concerned with the issues affecting persons with disabilities globally.

  • Federation of Deaf Women Empowerment Network Kenya

Advocates for the rights of Deaf women in Kenya.

  • Humanity & Inclusion

In Kenya, Humanity & Inclusion works to improve the living conditions of people with disabilities and advance their rights with a special focus on refugee-related issues.

  • Kenya Albino Association

Set up to provide sunscreen lotions to persons with albinism to prevent skin cancer and for economic empowerment.

  • Kenya Association for the Intellectually Handicapped

Set up to empower parents of children with intellectual disabilities in order to create opportunities for them to participate more meaningfully in their children’s lives.

  • Kenya National Association of the Deaf

Set up to represent and advocate for the rights of the Deaf community in Kenya.

  • Kenya Society for the Blind

Set up to promote the welfare, education, training and employment of the blind and assist in the prevention and alleviation of blindness.

  • Kenya Paraplegic Organisation

Formed to undertake initiatives as they pertain to persons with paraplegia and matters affecting them in Kenya.

  • Liverpool VCT Care and Treatment

Provides high quality VCT, Care and Treatment services to the Deaf community and to inform HIV/AIDS policy formulation in Kenya and beyond.

  • Northern Nomadic Disabled Persons Organisation (NONDO)

A Public Benefit Organization (PBO) that advocates for the rights, inclusion and participation of persons with disability in Kenya. NONDO's thematic areas include Education, Health and Rehabilitation, Governance, Social and Economic Empowerment.

  • Sense International (East Africa)

Works in partnership with others in the region to strengthen their capacity to provide services for persons who are deaf-blind.

  • Short Stature Society of Kenya

Works towards a society that respects and promotes the rights of all its members (including those with short stature), and ensures equity of access to participate in the varied dimensions of community life.

  • Spina Bifida and Hydrocephalus Association of Kenya

A platform to speak to the society at large on issues concerning awareness, advocacy and sensitization on persons with Spina Bifida and Hydrocephalus in Kenya.

  • United Disabled Persons of Kenya

A federation of organizations for persons with disabilities in Kenya whose mandate is to advocate for the rights of persons with disabilities in all spheres of life.

  • Users and Survivors of Psychiatry Kenya (USP-Kenya)

A membership organisation whose major objective is to promote and advocate for the rights of persons with psychosocial disabilities in Kenya (mental health conditions).

  • Women Challenged to Challenge

Formed to advocate for the rights of women with disabilities.

9.2 In the countries in Kenya’s region (East Africa) are DPOs organised/coordinated at national and/or regional level?

United Disabled Persons of Kenya (UDPK) is an umbrella organisation, which brings together organisations of Persons with Disabilities with the aim of giving a collective voice on matters touching on disability. The Caucus on Disability Rights Advocacy (CDRA, formerly Disability Caucus on Implementation of the Constitution) is a coalition of organisations of and for persons with disabilities in Kenya formed pursuant to the promulgation of the Constitution in 2010 with the aim of ensuring that the rights of persons with disabilities were taken into account in the implementation of the Constitution. UDPK and CDRA work closely with the KNCHR to promote the interests of persons with disabilities in the new constitutional dispensation. [147]

9.3 If Kenya has ratified the CRPD, how has it ensured the involvement of DPOs in the implementation process?

There are several government bodies that work on the rights of persons with disabilities. The main government department that is responsible for promoting the rights of persons with disabilities and coordinating disability issues within government in line with article 33(1) of the CRPD is the Department of Social Services.[148] This responsibility is shared with the National Council for Persons with Disabilities (NCPWD).[149] KNCHR and NGEC also play a role as identified under question 8 above. Each of these government bodies involves DPOs in the implementation process in different ways. The (then) Ministry of Gender, Children and Social Development wrote Kenya’s state report under Article 35 of the CRPD. In the state report, the Ministry makes it clear that the report was the result of a consultative process involving DPOs amongst other actors. The Department of Social Services and the NCPWD are currently involving DPOs in the implementation of the concluding observations of the UN Committee on the Rights of Persons with Disabilities. With regard to monitoring the Convention, KNCHR’s monitoring strategy involves engaging with DPOs. So far, KNCHR has conducted monitoring surveys in 12 counties and involved a representative from DPOs in the monitoring teams conducting the monitoring visits.[151] The selection of the representative from DPOs is done on a rotational basis amongst DPOs who are members of United Disabled Persons of Kenya (UDPK).[152]

9.4 What types of actions have DPOs themselves taken to ensure that they are fully embedded in the process of implementation?

In Kenya, the constitution making process served to unite DPOs under a common agenda. Once the Constitution was promulgated, there was need to ensure that the hard won gains would not be lost, and hence the Disability Caucus for the Implementation of the Constitution (DCIC) (now the Caucus on Disability Rights Advocacy) was formed. This unity, as well as having an umbrella body of DPOs (UDPK), enables DPOs to participate in legislative processes.[153]   The most recent example is the collaboration between DPOs, Kenya National Commission on Human Rights and the National Gender and Equality Commission in reviewing the Persons with Disabilities Bill. DPOs under the (DCIC) (now the Caucus on Disability Rights Advocacy)  have been proactive in engaging with government in implementation of the CRPD. Advocacy by (the then) DCIC and the Kenya Association of the Intellectually Handicapped prior to the August 2010 constitutional referendum resulted in the government registering and assisting some adults with intellectual disabilities in exercising their right to vote.[154] Prior to the elections of 4 March 2013, the DCIC engaged with the Independent Electoral and Boundaries Commission on political participation by persons with disabilities. DCIC lobbied for dissemination of information in accessible formats, the result of which was that for the first time, sign language interpretation was provided during the announcements of national election results.[155]

9.5 What, if any, are the barriers DPOs have faced in engaging with implementation?

The following barriers were identified: [156]

  • lack of awareness amongst policy makers on the CRPD;
  • lack of resources and technical capacity by DPOs to conduct research that can inform the implementation of the CRPD;
  • lack of a unified voice by DPOs (DPOs tend to organise by disability type and each DPO lobbies for issues which are more relevant to it); and
  • tokenistic involvement in policy processes.

9.6 Are there specific instances that provide ‘best-practice models’ for ensuring proper involvement of DPOs?

Kenya has a fairly strong disability movement which has made it easier for independent constitutional commissions such as KNCHR to involve DPOs in implementation of the CRPD. A ‘best practice model’ would be the deliberate targeting of DPOs by quasi-government agencies to ensure the engagement of DPOs in policy processes. For example, in its human rights audit on access to sexual and reproductive healthcare, ‘Realising Sexual and Reproductive Health Rights in Kenya: A Myth or Reality?’, KNCHR specifically targeted DPOs to ensure that the disability angle to reproductive health issues was captured.[157]

9.7 Are there any specific outcomes regarding successful implementation and/or improved recognition of the rights of persons with disabilities that resulted from the engagement of DPOs in the implementation process?

See questions 9.4 and 9.6 above.

9.8 Has your research shown areas for capacity building and support (particularly in relation to research) for DPOs with respect to their engagement with the implementation process?

The research has shown areas for capacity building and support in relation to research – see question 9.5.

9.9 Are there recommendations that come out of your research as to how DPOs might be more comprehensively empowered to take a leading role in the implementation processes of international or regional instruments?

Yes:

  • proactive targeting of DPOs by state agencies throughout implementation initiatives;
  • capacity building of DPOs on the CRPD;
  • broad collaboration amongst DPOs and between DPOs and other ‘mainstream’ human rights institutions; and
  • resourcing DPOs to conduct research that can provide evidence based information.

9.10 Are there specific research institutes in the region where Kenya is situated (East Africa) that work on the rights of persons with disabilities and that have facilitated the involvement of DPOs in the process, including in research?

Yes. The University of Nairobi, School of Law is part of the Disability Rights and Law Schools Project in Africa. The project, which aims at promoting disability rights awareness, education and scholarship, involves nine law schools within Africa. In 2016, the project led the publication of a special issue on disability rights of the East African Law Journal.

African Institute for Children’s Studies

AICS is a knowledge management and capacity building organization on childhood and child development. In 2018, AICS published a study on mental health and the criminal justice system, entitled: ‘Decolonizing mental health laws: Situational analysis on presidential pleasure and its impact on the criminal justice system of Kenya’.

10. Government departments

10.1 Does Kenya have a government department or departments that is/are specifically responsible for promoting and protecting the rights and welfare of persons with disabilities? If so, describe the activities of the department(s).

See question 9.3 above.

11. Main human rights concerns for people with disabilities in Kenya

11.1 Contemporary challenges of persons with disabilities in Kenya (for example, in some parts of Africa ritual killing of certain classes of PWDs, such as people with albinism occurs).

Most Kenyans still hold negative cultural beliefs such as the belief that persons with disabilities are cursed. The belief that psychosocial disability is caused by demons is prevalent and people with psychosocial disabilities are often subjected to attempted faith healing procedures which sometimes include beating people on the head in the name of exorcising demons or placing hot objects on the person’s body.[158]

11.2 Describe the contemporary challenges of persons with disabilities, and the legal responses thereto, and assess the adequacy of these responses to:

  • Access and accommodation

Article 43(1)(b) of the Constitution provides for the right to housing: ‘every person has the right to accessible and adequate housing…’ In reality, many people with disabilities are unable to obtain accessible housing.[159] The state identifies disabled people as vulnerable and disadvantaged with regard to housing in its state report to the Economic and Social Council.[160]

  • Access to social security

Article 43(1)(e) of the Constitution provides that every person has the right to social security. The government has established various funds including the National Development Fund for Persons with Disabilities (established under Part 5 of the Persons with Disabilities Act) as well as the Cash Transfer Programme for Persons with Severe Disabilities (see question 6.1 above). The National Women’s Enterprise Fund has an allocation of 10 per cent in every constituency for women with disabilities. Despite these measures, most persons with disabilities depend on their families for social and financial support.[161]

  • Access to public buildings

Section 22(1) of the PWD Act, 2003, provides that ‘A proprietor of a public building shall adapt it to suit persons with disabilities’. Section 24 of the PWD Act, 2003 mandates the NCPWD to serve an Adjustment Order upon the owner of a premises or the provider of services, or amenities which the Council considers to be inaccessible to persons with disabilities. This provision became operational on 1 January 2010, which means that proprietors of premises had until 2015 to comply with the provisions. The NCPWD is undertaking an audit of buildings and institutions that have complied with the requirement on accessibility.[162] Information is not readily available as to whether the Council has served any adjustment orders on any proprietors and what the outcome of such order, if any, has been.

  • Access to public transport

Section 23 of the Persons with Disabilities Act provides that ‘[a]n operator of a public service vehicle shall adapt it to suit persons with disabilities in such manner as may be specified by the Council’. In its state report to the UN Committee on the rights of Persons with Disabilities, the state admits that with regard to access to transportation for persons with disabilities in Kenya, ‘a lot needs to be done in order to make it more disability friendly’.

  • Access to education

The Constitution, the Children’s Act and the Education Act 2013 guarantee the right to education for learners with disabilities. Kenya introduced free and compulsory primary education for all children in 2003. However, education is not free for learners with disabilities because learners with disabilities largely access education from primary school level onwards in boarding schools[163] where they are required to pay boarding fees. According to the state report to the CRPD Committee, 75 per cent of persons with disabilities have attained at least primary level education, while only 2 per cent have reached university level.[164]

With regard to reasonable accommodation and affirmative action measures taken to advance the right to education for learners with disabilities, the Kenya National Examination Council allows learners with disabilities slightly more time when sitting for examinations and the Joint Admissions Board has put in place affirmative action programmes on university admission where learners with disabilities secure admission with one point less than that of other candidates. The Sector Policy for Learners and Trainees with Disabilities, which was passed in May 2018, provides additional guidance on the implementation of inclusive education in Kenya. It is, however, noteworthy that the Sector Policy envisages continuing special education in the country as discussed under section 2.3 above.

  • Access to vocational training

The Government of Kenya has established 12 Vocational Rehabilitation Centres in various parts of the country. These centres offer vocational training in different kinds of trades including courses in welding and fabrication and hairdressing. These courses are not highly marketable anymore partly due to technological advancements, and new curriculum needs to be adopted.[165] Currently, vocational centres also admit learners without disabilities.

  • Access to employment

The Council for Persons with Disabilities has an obligation under section 13 of the Persons with Disabilities Act to secure 5 per cent of all casual, emergency and contractual positions in employment for persons with disabilities. Persons with disabilities in formal employment who earn less than KES 150000 are exempted from paying tax.[166] However, Kenya has high unemployment rates generally; which rates are significantly higher amongst persons with disabilities.[167]

  • Access to recreation and sport

The Persons with Disabilities Act provides in section 28(1) that all persons with disabilities shall be entitled, free of charge, to the use of recreational or sport facilities owned or operated by the government during social, sporting or recreational activities. However, some of these places of recreation are not accessible to persons with disabilities which the state attributes to lack of awareness and inadequate resources.[168] In addition, sports persons with disabilities in Kenya have complained of unequal treatment by the State as compared with their non-disabled counterparts. In this regard, on 9th November 2018, the Daily Nation ran a story entitled ‘No welcome for national amputee team’. The Daily Nation reported that the Kenya National Amputee Football team participated at the Amputee Football World Cup in Mexico and emerged the second top ranked team from Africa. The team attempted to present their participation trophy but were locked out of the Sports Ministry. In addition, the team members were reportedly not compensated for reasonable expenses.[169]

  • Access to justice

The Constitution guarantees the right to access to justice for all persons, including persons with disabilities under article 48. Article 50 of the Constitution guarantees the right to a fair trial and public hearing for all persons, including persons with disabilities. Article 50(m) guarantees the right to an interpreter without payment. Under Section 38 of the Persons with Disabilities Act, 2003, the Attorney General in consultation with the NCPWD is required to make regulations on free legal services for persons with disabilities in particular cases.[170] Unfortunately, these regulations have not been developed to date. Kenya has a National Legal Aid awareness programme that runs pilot projects on legal aid in several courts around the country.[171]

With regard to sexual offences, please see question 4.1 above on the Sexual Offences Act.

United Disabled Persons of Kenya carried out a baseline assessment on access to criminal justice system by persons with disabilities. The report identified that there are ongoing reforms in Kenya’s judiciary and that new courts are fairly accessible as compared to the courts that are housed in older buildings. However, police stations and prison facilities are largely inaccessible to persons with disabilities. Further, police and prison staff are not well trained on the rights of persons with disabilities.[172]

The Kenya Association for Persons with Intellectual Disabilities and Users and Survivors of Psychiatry – Kenya, in collaboration with the Kenya National Commission on Human Rights are running a project on access to justice for persons with intellectual and psychosocial disabilities in Kenya. The project has already trained over a hundred magistrates on procedural accommodations that are required by these groups of people in order to access justice on an equal basis with others.

11.3 Do people with disabilities have a right to participation in political life (political representation and leadership) in your country?

With regard to political participation and on a positive note, articles 81(c), 82 (2)(c)(i), 97(1)(c), 98(1)(d), 100(b) and 177(1)(c) of the Constitution provide for fair representation of persons with disabilities in politics. With regard to the senate, the Constitution provides that the senate shall have two members representing persons with disabilities. Part IV of the Persons with Disabilities Act accords persons with disabilities civic rights.

Articles 83(1)(b), 99(2) (e) and 193(2)d prohibit persons of ‘unsound mind’ from political participation. However, in practice, if a person lives in the community (not in a psychiatric facility during voters’ registration or Election Day) the person is able to exercise their political rights.[173]

11.4 Are people with disabilities’ socio-economic rights, including right to health, education and other social services protected and realised in your country?

With regard to education and other social services, see question 11.2 above.

On health, the Constitution provides that every person has the right to the highest attainable standard of health under article 43(1)(a). The National Reproductive Health Policy, 2008 (currently under review) identifies the need to improve the sexual and reproductive health of youth with disabilities. The policy also recognises that women with disabilities are also entitled to access reproductive health services. In practice, women with disabilities encounter numerous barriers to accessing quality reproductive health care services.[174]

With regard to mental health care in Kenya, formalised support mainly comes in the form of institutionalisation in psychiatric hospitals. Community-based mental health-care services in Kenya are limited[175] and lack adequate funding to reach a wider proportion of the population affected. Kenya has limited budgetary provision for mental health; the government has traditionally only spent approximately 0.01 per cent of its health budget on mental healthcare.[176]

11.5 Specific categories experiencing particular issues/ vulnerability:

  • Women with disabilities

Women in Kenya remain largely marginalised. They have limited access to and control of resources and other socio-economic opportunities; they have lower literacy levels compared to men; they have poor access to quality healthcare; and are more vulnerable to gender-based violence.[177] This situation is worse for women with disabilities. The government has put in place several legislative, policy and programmatic measures to address the challenges that face women (most of which are discussed under questions 3, 4 and 6); but a lot more still needs to be done to address the inequality.

  • Children with disabilities

The Government has put in place several legislative, policy and administrative measures to protect the rights and welfare children of children with disabilities. The Children’s Act establishes the National Council for Children’s Services (NCCS). However, children with disabilities still remain vulnerable to human rights violations, a situation that the state attributes to inadequate human and financial resources.[178]

  • Other (for example, indigenous peoples)

Persons with Disabilities are particularly vulnerability to HIV infection, yet HIV and AIDS interventions are not fully responsive to the needs of persons with disabilities.[179]

12 Future perspective

12.1 Are there any specific measures with regard to persons with disabilities being debated or considered in your country at the moment?

The Kenya National Commission on Human Rights (together with DPOs, especially DPOs of persons with intellectual disabilities and persons with psychosocial disabilities) is leading reform to guarantee the right to legal capacity for persons with disabilities. Initiatives to reform legal capacity laws have brought together a wide cross section of government officials including judges, officials in independent commissions and senior civil servants amongst others.

12.2 What legal reforms are being raised? Which legal reforms would you like to see in your country? Why?

See question 12.1 for the legal reforms currently being raised in Kenya. Other than ensuring the right to legal capacity for persons with disabilities, the other legal reform that I would like to see in Kenya is the reform of the Basic Education Act 2013 to bring it more in line with Article 24 of the CRPD and ensure for children with disabilities the right to education.

Currently, Cabinet has approved the Persons with Disabilities Bill, which is to be tabled before the National Assembly in the course of 2019. The Bill aims to domesticate the Convention on the Rights of Persons with Disabilities (CRPD). As such, it contains provisions on a broad range of issues, including legal capacity and the right to live independently in the community. I would like to see this progressive Bill become law.

In addition, the Mental Health Act of 1989 is outdated, and contravenes articles 12 (equal recognition before the law), 14 (liberty and security of the person) and 25 (health) of the CRPD. I would like to see a new Mental Health Act in place that upholds rights of persons with psychosocial disabilities in line with the CRPD.

 

[1]               Kenya National Bureau of Statistics http://www.knbs.or.ke/index.php?option=com_phocadownload&view=category&id=2:2009-census-documents&Itemid=637 (accessed 5 May 2014).

[2]              Kenya National Bureau of Statistics http://www.knbs.or.ke/index.php?option=com_content&view=article&id=150&Itemid=636  (accessed 5 May 2014).

[3]               Kenya National Bureau of Statistics http://www.knbs.or.ke/index.php?option=com_content&view=article&id=155:number-of-persons-with-disability&catid=112&Itemid=638 (accessed 5 May 2014). [4]               Kenya National Bureau of Statistics https://www.knbs.or.ke/ (accessed 13 December 2018). [5]               Washington Group on Disability Statistics http://www.washingtongroup-disability.com/washington-group-question-sets/short-set-of-disability-questions/ (accessed 13 December 2018). [6]               R Buluma, ‘Kenya National Bureau of Statistics on Disability’ (Government of Kenya High Level Meeting with the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism held at the Ministry of Foreign Affairs, Nairobi, 10 September 2018). [7]               R Buluma, ‘Kenya National Bureau of Statistics on Disability’ (Government of Kenya High Level Meeting with the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism held at the Ministry of Foreign Affairs, Nairobi, 10 September 2018). [8]               Kenya National Bureau of Statistics http://www.knbs.or.ke/index.php?option=com_content&view=article&id=155:number-of-persons-with-disability&catid=112&Itemid=638 (accessed 5 May 2014). [9]               Office of the High Commissioner for Human Rights ‘Initial Reports of States Parties due in 2010: Kenya’ https://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeID=29 (accessed 13 December 2018). [10]             Office of the High Commissioner for Human Rights ‘Ratification status for CRPD’ http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?Treaty=CRPD&Lang=en (accessed 23 April 2014). [11]             Committee on the Rights of Persons with Disabilities, Initial report of Kenya submitted in accordance to article 35 of the CRPD, UN Doc CRPD/C/KEN/1 (28 July 2014). [12]             Social Protection http://www.socialprotection.go.ke/social-development/ (accessed 13 December 2018). [13]             Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Kenya, (2015) UN Doc CRPD/C/KEN/CO/1 (30 September 2015). [14]             Ministry of East African Community, Labour and Social Protection ‘National Plan of Action on Implementation of Recommendations made by the Committee on the Rights of Persons with Disabilities in Relation to the Initial Report of the Republic of Kenya September 2015-June 2022’ (May 2016). [16]             Office of the High Commissioner for Human Rights ‘Ratification status for Kenya’ http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=90&Lang=en (accessed 23 April 2014). [17]             Office of the High Commissioner for Human Rights ‘Reporting status for Kenya’ http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=KEN&Lang=EN (accessed 27 April 2014). [18]             As above. [19]             Ministry of Education ‘Sector Policy for Learners and Trainees with Disabilities’ (May 2018). [20]             Ministry of Education ‘Sector Policy for Learners and Trainees with Disabilities’ (May 2018) xiii. [21]             Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/KEN/2-5 (26 February 2014) para 58. [22]             Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/KEN/2-5 (26 February 2014) para 71. [23]             Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/KEN/2-5 (26 February 2014) para 111. [24]             Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/KEN/2-5 (26 February 2014) para 177. [25]             Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/KEN/2-5 (26 February 2014) para 188. [26]             Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/KEN/2-5 (26 February 2014) para 204. [27]             As above. [28]             For the full contents of the General Comment No 9 (CRC/C/GC/9), see http://tb.ohchr.org/default.aspx?Symbol=CRC/C/GC/9 (accessed 5 May 2014). [29]             Office of the High Commissioner for Human Rights ‘Reporting status for Kenya’ (n 9 above). [30]             Committee on the Elimination of Discrimination Against Women, Consideration of Reports Submitted by States Parties under Article 18 of the Convention, UN Doc CEDAW/C/KEN/8 (7 March 2016) para 27. [31]             Committee on the Elimination of Discrimination Against Women, Consideration of Reports Submitted by States Parties under Article 18 of the Convention, UN Doc CEDAW/C/KEN/8 (7 March 2016) para 45. [32]             Committee on the Elimination of Discrimination Against Women, Consideration of Reports Submitted by States Parties under Article 18 of the Convention, UN Doc CEDAW/C/KEN/8 (7 March 2016) para 169. [33]             Submission for list of issues for Kenya by Kenyan Network Advocating for the Rights of Women and Girls with Disabilities https://tbinternet.ohchr.org/.../CEDAW/.../INT_CEDAW_NGO_KEN_26368_E.doc (accessed 8 January 2018). [34]             Submission for list of issues for Kenya by Kenyan Network Advocating for the Rights of Women and Girls with Disabilities https://tbinternet.ohchr.org/.../CEDAW/.../INT_CEDAW_NGO_KEN_26368_E.doc (accessed 8 January 2018). [35]             Committee against Torture, Submission of Reports Submitted by States Parties under Article 19 of the Convention, UN Doc CAT/C/KEN/2 (30 November 2012) para 37(d). [36]             Kenya National Commission on Human Rights Silenced Minds: The Systemic Neglect of the Mental Health System in Kenya (2011) 1. [37]             Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, (2013) A/HRC/22/53 para 63. [38]             African Commission on Human and Peoples’ Rights ‘Kenya: Initial report, 1992-2006’ http://www.achpr.org/states/kenya/reports/1st-1992-2006/ (accessed 27 April 2014). [39]             Centre for Human Rights ‘Concluding observations of the African Commission on Human and Peoples’ Rights on the Initial Report of the Republic of Kenya adopted at its 41st Ordinary Session held at Accra, Ghana from 16-30 May 2007’ http://www1.chr.up.ac.za/images/files/documents/ahrdd/kenya/kenya_concluding_observations_2007.pdf (accessed 27 April 2014). [40]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014). [41]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) para 25. [42]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) para 22. [43]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) para 25. [44]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) para 26. [45]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) para 74. [46]             (2012) eKLR http://kenyalaw.org/caselaw/cases/view/85079 (accessed 8 January 2018). [47]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) para 128. [48]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) para 212. [49]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) paras 260-271. [50]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) para 261. [51]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) paras 263 -265. [52]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) para 268. [53]             African Commission on Human and Peoples’ Rights, Combined 8th – 11th Periodic Report on the African Charter on Human and Peoples’ Rights (November 2014) paras 269-270. [54]             Office of the High Commissioner for Human Rights ‘Human Rights Council – Universal Periodic Review’ http://www.ohchr.org/EN/HRBodies/UPR/Pages/Highlights6May2010am.aspx (accessed 27 April 2014). [55]             Human Rights Council, National Report Submitted in accordance with paragraph 5 of the annex to Human Rights Council Resolution 16/21, UN Doc A/HRC/WG.6/21/KEN/1 (6 November 2014). [56]             Human Rights Council, National Report Submitted in accordance with paragraph 5 of the annex to Human Rights Council Resolution 16/21, UN Doc A/HRC/WG.6/21/KEN/1 (6 November 2014) para 6. [57]             Human Rights Council, National Report Submitted in accordance with paragraph 5 of the annex to Human Rights Council Resolution 16/21, UN Doc A/HRC/WG.6/21/KEN/1 (6 November 2014) para 13. [58]             Human Rights Council, National Report Submitted in accordance with paragraph 5 of the annex to Human Rights Council Resolution 16/21, UN Doc A/HRC/WG.6/21/KEN/1 (6 November 2014) para 29(a). [59]             Human Rights Council, National Report Submitted in accordance with paragraph 5 of the annex to Human Rights Council Resolution 16/21, UN Doc A/HRC/WG.6/21/KEN/1 (6 November 2014) para 68. [60]             Human Rights Council, National Report Submitted in accordance with paragraph 5 of the annex to Human Rights Council Resolution 16/21, UN Doc A/HRC/WG.6/21/KEN/1 (6 November 2014) paras 48-50. [61]             Human Rights Council, National Report Submitted in accordance with paragraph 5 of the annex to Human Rights Council Resolution 16/21, UN Doc A/HRC/WG.6/21/KEN/1 (6 November 2014) para 49. [62]             Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Kenya, (2015) UN Doc CRPD/C/KEN/CO/1 (30 September 2015) para 47. [63]             Gov.UK ‘Global Disability Summit 2018’ https://www.gov.uk/government/topical-events/global-disability-summit-2018 (accessed 13 January 2019). [64]             For the argument that art 94(5) of the Constitution creates the possibility that Parliament still has a role in the domestication process, see M Oduor ‘The current status of international law in Kenya’ (2013) Social Science Research Network http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2326135 (accessed 5 May 2014). [65]             Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above). [66] Kamundia, E ‘Kenya’ in Waddington, L & Lawson, A (eds) The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts (Oxford University Press 2018). [67]             (2015) eKLR http://kenyalaw.org/caselaw/cases/view/106481 (accessed 8 January 2019). [68]             Njuguna Ndung’u v Ethic & Anti-Corruption Commission 2015] eKLR 10 http://kenyalaw.org/caselaw/cases/view/106481 (accessed 8 January 2019). [69]             Kamundia, E ‘Kenya’ in Waddington, L & Lawson, A (eds) The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts (Oxford University Press 2018). [70]             (2015) eKLR http://kenyalaw.org/caselaw/cases/view/107722 (accessed 8 January 2019). [71]             Karen Njeri Kandie v Alssane & another [[2015] eKLR 8 http://kenyalaw.org/caselaw/cases/view/107722 (accessed 8 January 2019). [72]             (2014) eKLR http://kenyalaw.org/caselaw/cases/view/101491/ (accessed 8 January 2019). [73]             (2014) eKLR http://kenyalaw.org/caselaw/cases/view/96395/ (accessed 8 January 2018). [74]             (2011) eKLR http://kenyalaw.org/Downloads_FreeCases/81236.pdf (accessed 8 January 2018); in this case, the Court stated that Kenya’s dualist position ‘may have changed after the coming into force of our new Constitution’. [75]             (2010) eKLR http://kenyalaw.org/caselaw/cases/view/71032/  (accessed 8 January 2018). [76]             Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above). [77]             As above. [78]             (2010) eKLR http://kenyalaw.org/caselaw/cases/view/71032/ (accessed 27 April 2014). [79]             (2011) eKLR http://kenyalaw.org/caselaw/cases/view/81477/ (accessed 27 April 2014). [80]             Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Kenya, (2015) UN Doc CRPD/C/KEN/CO/1 (30 September 2015) para 6(a). [81]             Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above). [82]             For a comprehensive review of legislation that touches on the right to legal capacity for persons with disabilities, see: Kenya National Commission on Human Rights Briefing paper: How to implement Article 12 of Convention on the Rights of Persons with Disabilities regarding legal capacity in Kenya’ http://www.knchr.org/ReportsPublications/ThematicReports/GroupRights.aspx (accessed 27 April 2014). [83]             Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20133 (accessed 25 May 2014). [84]             E Kamundia ‘Choice, support and inclusion: Implementing article 19 of the Convention on the Rights of Persons with Disabilities in Kenya’ (2013) 1 ADRY  65. [85]             Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=NO.%2024%20OF%202013  (accessed 25 May 2014). [86]             Kenya Law  http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20248 (accessed 25 May 2014). [87]             Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20152 (accessed 25 May 2014). [88]             Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%2075 (accessed 25 May 2014). [89]             Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%2062A (accessed 25 May 2014). [90]             Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=NO.%2014%20OF%202013 (accessed 25 May 2014). [91]             Section 44(3) of the Basic Education Act. [92]             Section 44(4) of the Basic Education Act. [93]             Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%2063 (accessed 25 May 2014). [94]             Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%207 (accessed 25 May 2014). [95]             Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20226 (accessed 25 May 2014). [96]             Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20141 (accessed 25 May 2014). [97]             Section 31 Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20167 (accessed 25 May 2014). [98]             Section 93 and Rule 15, Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%2021 (accessed 25 May 2014). [99]             Sections 13 & 27,  Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20172 (accessed 25 May 2014). [100]            Section 22, Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20246A (accessed 25 May 2014). [101]            Section 4, Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%2031 (accessed 25 May 2014). [102]            Sections 38 & 44,  Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%2045%20of%202013 (accessed 25 May 2014). [103]            Section 5, Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20160 (accessed 25 May 2014). [104]            Section 31, Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20403 (accessed 25 May 2014). [105]            Sections 125, 126 & 136, Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%2080 (accessed 25 May 2014). [106]            Section 11, Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%205B (accessed 25 May 2014). [107]            Sections 2, 8 & 11, Kenya Law http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%205C (accessed 25 May 2014). [108]            (2012) eKLR http://kenyalaw.org/caselaw/cases/view/81883 (accessed 28 April 2014). [109]            (2012) eKLR http://kenyalaw.org/caselaw/cases/view/86061 (accessed 28 April 2014). [110]            (2012) eKLR http://kenyalaw.org/caselaw/cases/view/80879 (accessed 28 April 2014). [111]            (2014) eKLR http://kenyalaw.org/caselaw/cases/view/97123 (accessed 8 January 2019). [112]            Duncan Waga v Attorney General [[2014] eKLR 5 http://kenyalaw.org/caselaw/cases/view/97123 (accessed 8 January 2019). [113]            These sections prohibit discrimination by employers. [114]            (2014) eKLR http://kenyalaw.org/caselaw/cases/view/101502/ (accessed 8 January 2019). [115]            Kamundia, E ‘Kenya’ in Waddington, L & Lawson, A (eds) The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts (Oxford University Press 2018) 308. [116]            Wilson Siringi vs. Republic [2014] eKLR http://kenyalaw.org/caselaw/cases/view/101502/ (accessed 8 January 2019) para 11. [117]            Wilson Siringi v Republic [2014] eKLR http://kenyalaw.org/caselaw/cases/view/101502/ (accessed 8 January 2019) para 15. [118]            Wilson Siringi v Republic [2014] eKLR http://kenyalaw.org/caselaw/cases/view/101502/ (accessed 8 January 2019) para 16. [119]            (2015) eKLR http://kenyalaw.org/caselaw/cases/view/107143/ (accessed 8 January 2019). [120]            Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers v Association for the Physically Disabled of Kenya [2015] e KLR paras 28, 29, 30, 32. [121]            (2016) eKLR http://kenyalaw.org/caselaw/cases/view/121892/ (accessed 7 January 2019). [122] (         2018) eKLR http://kenyalaw.org/caselaw/cases/view/152606/ (accessed 7 January 2019). [123]            Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above). [124]            As above. [125]            As above. [126]            As above. [128]            Ministry of Education ‘Sector Policy for Learners and Trainees with Disabilities’ (May 2018). [129]            Ministry of Education ‘Sector Policy for Learners and Trainees with Disabilities’ (May 2018) 11. [130]            Ministry of Health ‘The Kenya Mental Health Policy 2015-2030: Towards Attaining the Highest Standard of Health’ Nairobi (2015) section 1.4. [131]            Kenya National Commission on Human Rights (n 24 above). [132]            Ministry of Labour, Social Security and Services http://www.labour.go.ke/index.php/2013-11-19-06-15-24/department-of-social-services (accessed 28 April 2014). [133]            Ministry of Gender, Children and Social Development Guidelines for identifying persons with disabilities for cash transfer (2011). [134]            As above. [135]            Kenya Vision 2030 http://www.vision2030.go.ke/ (accessed 5 May 2014). [136]            National Council for Persons with Disabilities http://ncpwd.go.ke/ (accessed 5 May 2014). [137]            Kenya National Commission on Human Rights http://www.knchr.org/Home.aspx (accessed 29 April 2014). [138]            Kenya National Commission on Human Rights http://www.knchr.org/Departments/ResearchCompliance.aspx (accessed 29 April 2014). [139]            Kenya National Commission on Human Rights http://www.knchr.org/Our-Work/Research-and-Compliance/Disability (accessed 8 January 2019). [140]            Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Kenya, (2015) UN Doc CRPD/C/KEN/CO/1 (30 September 2015) paras 59-60. [141]            National Gender and Equality Commission http://www.ngeckenya.org/ (accessed 29 April 2014). [142]            National Gender and Equality Commission ‘Disability and elderly’ http://www.ngeckenya.org/program/22/disability-marginalized-elderly (accessed 29 April 2014). [143]            National Gender and Equality Commission http://www.ngeckenya.org/news/1040/ngec-decries-neglect-of-children-with-severe-disabilities- (accessed 29 April 2014). [144]            Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Kenya, (2015) UN Doc CRPD/C/KEN/CO/1 (30 September 2015) para 6(a). [145]            Commission on Administrative Justice http://www.ombudsman.go.ke/ (accessed 29 April 2014). [146]            For a more comprehensive list of organisations of and for persons with disabilities in Kenya, see  Kenya disability directory: 2009-2010 edition http://www.afri-can.org/directory/Kenya%20Disability%20Directory%20-%202010.pdf (accessed 30 April 2014) and Kenya Disability Directory http://www.kenyadisabilitydirectory.com/index.php?option=com_content&view=featured&Itemid=101 (accessed 30 April 2014). [147]            Kenya National Commission on Human Rights ‘Submission to Harvard University on development of Guidance Note on National Human Rights Institution and the Convention on Rights of Persons with Disabilities’ (4 September 2013). [148]            Department of Social Services http://www.labour.go.ke/index.php/2013-11-19-06-15-24/department-of-social-services (accessed 1 May 2014). [149]            National Council for Persons with Disabilities http://ncpwd.go.ke/ (accessed 5 May 2014). [151]            Kenya National Commission on Human Rights (n 70 above). [152]            Email from M Njenga on 24 April 2014. USP Kenya has been involved in monitoring the CRPD with KNCHR, see USPKenya ‘Legislation and policy participation’ http://www.uspkenya.com/index.php/programs/what-we-do/legislation-and-policy-participation (accessed 30 April 2014). [153]            As above. [154]            Kenya National Commission on Human Rights (n 24 above). [155]            Kenya National Commission on Human Rights (n 70 above). [156]            Email from M Njenga on 24 April 2014 (n 75 above). [157]            Kenya National Commission on Human Rights http://www.knchr.org/Portals/0/Reports/Reproductive_health_report.pdf (accessed 1 May 2014). [158]            ‘Kenya’s traditional healers can help with mental health’ BBC News 7 July 2013 http://www.bbc.com/news/health-23189069 (accessed 1 May 2014). [159]            E Kamundia ‘Independent living for people with disabilities in Kenya: Charting the way forward’ in P Kenna (ed) Contemporary housing issues in a globalized world (2014). [160]            Office of the High Commissioner for Human Rights ‘Reporting status for Kenya’ (n 9 above) [161]            Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above). [162]            As above. [163]            Kamundia (n 26 above). [164]            Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above)http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=800&Lang=en (accessed 23 April 2014). [165]            As above. [166]            Approximately 1 650 dollars. [167]            Disability Rights Promotion International ‘State of disabled peoples rights in Kenya (2007) report’ http://drpi.research.yorku.ca/sites/default/files/files/KenyaReport07.pdf (accessed 5 May 2014). [168]            Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above). [169]            Daily Nation ‘No Welcome for National Amputee Football Team’ (9 November 2018) <https://www.nation.co.ke/news/No-welcome-for-national-amputee-team/1056-4843498-8i2tdo/index.html?fbclid=IwAR1jI_ySPibuXWziaOYqvQvVCOmUzo7cwf9fADykDdwdw11m7T7L10RHaro> (accessed 7 January 2019). [170]            Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above). [171]            The Government of Kenya ‘National Legal Awareness Programme’ http://justice.go.ke/index.php/programs-commissions/national-legal-awareness-program-naleap (accessed 2 May 2014). [172]            United Disabled Persons of Kenya & Disability Caucus on the Implementation of the Constitution ‘Baseline assessment on access to criminal justice system by persons with disabilities’ (2012). [173]            Medical Disability Advocacy Centre ‘The right to legal capacity in Kenya’ http://mdac.info/sites/mdac.info/files/mdac_kenya_legal_capacity_2apr2014.pdf (accessed 2 May 2014). [174]            Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above). [175]            Kamundia (n  82 above). [176]            Mind Freedom Kenya ‘Report on Mental Health in Kenya’ (Nairobi, Kenya, October 2008). [177]            Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above). [178]            Office of the High Commissioner for Human Rights ‘CRPD future sessions’ (n 5 above). [179]            As above. The documentary ‘The voice of 650 million times one’ also addressed this issue http://www.thevoiceof650million.com/ (accessed 5 May 2014).