REVIEW OF 2010 CONSTITUTION

Katiba at 10: Hits and misses for persons with disabilities

There is dire need to protect the gains already made towards the inclusion of persons with disabilities into mainstream society

In Summary

• Article 54 is wholly dedicated to the rights of persons with disabilities with regards to dignity

• Access to public transport remains a big challenge to those with mobility difficulties

Retired President Mwai Kibaki shows off the new constitution with a national seals during the promulgation of the new constitution at Uhuru Park on August 27, 2010.
Retired President Mwai Kibaki shows off the new constitution with a national seals during the promulgation of the new constitution at Uhuru Park on August 27, 2010.
Image: FILE

It’s been 10 years since the 2010 constitution was promulgated on August 27, 2010 at a colourful ceremony at Uhuru Park.

The event was attended by many dignitaries, including presidents from Africa. I remember this day vividly as we sat with fellow Kenyans at some restaurant in Walmer, a suburb in Port Elizabeth, South Africa.

My friends and I couldn’t help but re-imagine Kenya and the opportunities the new Constitution promised. Earlier on, I was privileged to be among six Kenyans who were presented with the first draft of the constitution at the inaugural presentation of the draft at KICC to President Mwai Kibaki and Raila Odinga on November 17, 2009.

Interestingly, only the previous day had I launched a book titled Human Rights, Disability and Development in Kenya: A Discourse. The book aimed at documenting the journey of persons with disabilities to the constitutional moment. It’s, therefore, critical to assess how far we have come in this journey of inclusion or lack of it 10 years later.

Generally, there has been greater inclusion of persons with disabilities into government and mainstream society, courtesy of the provisions of the new Constitution. To begin with, Article 7 (3) (b) provides that the state shall promote the development of Kenyan Sign Language, Braille and other communications formats and technologies accessible to persons with disabilities. What this has translated to is the use of KSL as a medium of communication to the Deaf especially on TV and in public functions.

KSL as a language has also been equated to Kiswahili and English in terms of education, examination, qualifications and other areas of equivalence through an amendment that I pushed for in the National Assembly. This has improved access to information for them. However, Braille is slowly being replaced by new technologies that are more accessible, although such formats remain prohibitive due to the high cost of the gadgets.

Article 10 (2) provides that our national principals ensure that in the application of public policy, human dignity and protection of the marginalised form the core of our pathos and ethos. This is further provided for in Article 27 (4) that the state cannot discriminate any Kenyan on the basis of disability. This is a novelty that wasn’t there in the old constitution.

PUBLIC AMENITIES AND OFFICES

Article 54 is wholly dedicated to the rights of persons with disabilities with regards to dignity and reference, accessibility to public amenities, use of respectful language and that five per cent of members of the public in elective and appointive institutions are persons with disabilities. Unfortunately, most of these provisions are yet to be fully realised.

Access to public transport remains a big challenge to those with mobility difficulties, while the progressive manner in which the Constitution provides for implementation of the five per cnet principle is unfortunately counterproductive as there are no thresholds to measure progress. Many Ministries, Departments and Agencies (MDAs) have failed to comply with this, and PWDs continue to be denied opportunity to be elected or appointed to public office.

My office has been engaging the public service commission on a regular basis to supply qualified candidates with disabilities for advertised positions. This requires continuous follow ups and a dedicated effort to achieve the same. I have, however, tabled a constitutional amendment to remove the term ‘progressive’ in the article in order to ensure compliance.

Article 81 (c ) provides for fair representation of persons with disabilities as a general principle for electoral systems. The practical manner in which this is to be achieved is provided for in Article 90 on allocation of party lists as provided for in articles 97, 98 and 177 with regards to the National Assembly, the Senate and county assemblies.

While the 11th Parliament and the first county assemblies saw an unprecedented increase in the representation of PWDs at all these levels with 13, 3 and 83 members of the National Assembly, the Senate and MCAs respectively under the Agenda 101 campaign, this has since been reduced to 7, 2, and 32.

There is, therefore, a sense in which the gains made in 2010 and effected in 2013 are being lost considerably. We had targeted to have at least one Cabinet Secretary but ended up with one Principal Secretary. We have also managed to have representation in several constitutional commissions such as the NLC, TSC, CAJ, and NGEC. However, ethnicity has been a barrier to appointment at times, since regional balance is also a requirement for public offices under the constitution.

In summary, there is dire need to protect the gains already made towards the inclusion of persons with disabilities into mainstream society. New technology, much as it’s an enabler also has great potential to cause or exacerbate impairments and there is therefore need to be careful about this going forward.

While some counties has effected legislation and budgets for PWDs, many don’t have MCAs with disabilities in their assemblies.

The Constitution is good; the implementation is not yet at par. We should keep going on our road to Damascus!!