The Kenya Constitution :
Opportunities and Challenges for
Persons with disabilities.
By
Charles Nyachae
Chairperson
Commission on the implementation of the
Constitution(CIC)
The Constitution of Kenya
Key Tenets
 Preamble paragraphs clearly state the aspirations of Kenyans for
government based on the essential values of human rights,
equality, freedom , democracy, social justice and the rule of law
 Sovereignty of the People: Art: 1(1) & (4), 94(1), & (4), 129 & 159
(2), 249(1) (a) (c)
 Supremacy of the Constitution: Art 2
 Ratified International Treaties part of the laws of Kenya: Art 2
 National Values and Principles: Arts. 10, 73,
The Constitution
Key Tenets
 Bill of Rights: Chapter 4, includes social
economic rights
-Equality, Equity, non discrimination and
affirmative action
 Devolution of government
 Commissions and Independent Offices
The Constitution & the Persons
with Disability (PWD)
By virtue of Article 2 of the Constitution ,the
UN Convention(CRPD) on the rights of persons
with Disability is applicable as law in Kenya.
-The purpose of the Convention is - To
promote, protect and ensure the full and
equal enjoyment of all human rights and
fundamental freedoms by all persons with
disabilities, and to promote respect for their
inherent dignity
The Constitution & the Persons
with Disability (PWD)
• The Constitution recognizes sign language,
Braille and other communication accessible to
persons with disabilities (Art. 7) as part of the
official languages
The Bill or rights and PWDs
- Article 27(4) on non- discrimination prohibits direct
or on indirect discrimination against any person on
any ground including race, sex, pregnancy, marital
status, health status, ethnic or social origin, colour,
age, disability, religion, conscience, belief, culture,
dress, language or birth.
- Article 28 promotes respect and protection for
human dignity of every person.
The Bill or rights and PWDs.
 Art. 21 of the Constitution bestows a
fundamental duty on the state and every state
organs to observe, respect , protect, promote
and fulfill the rights and fundamental
freedoms in the Bill of Rights.
-It goes further to mandate all state organs to
address the needs of vulnerable groups within
society including persons with disabilities.
The Bill or rights and PWDs
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Article 43 recognises economic and social rights including; Highest attainable standard of health
Housing
Sanitation
Freedom from hunger
Clean and safe water
Social security
Education
Emergency treatment
Appropriate social security
The Bill or rights and PWDs
• In article 54 the Constitution recognizes and
specifically details rights of persons with
disabilities. The particular rights include –
• The right to be treated with dignity
• Equal access to educational facilities
• Reasonable access to all places
• Use of sign language , Braille or other
communication
The Bill or rights and PWDs
• Access materials and devices to overcome
constraints arising from the person’s disabilities
• Article 54 also entrenches the affirmative action
principle to facilitate the progressive realization of at
least 5 per cent of PWD in elective and appointive
posts
Other gains for PWD
• Articles 97(1)(c) requires the 12 nominees to
the national Assembly to include PWDs
• Article 98 (1)(d) requires 2 nominees to the
Senate to be PWDs
• Article 177 (1)(c)Specifically provide for
nomination of PWD to County Assemblies
Implementation steps
Its clear that all State organs in in one way or
another have a Constitutional obligations to
ensure that the rights of PWDs as entrenched
in the Constitution and the CRPD are
implemented.
The CIC as the Institution with the mandate to
monitor implementation has done the
following:
Implementation steps
• Is working with implementers in all arms of
government to ensure that the letter and
spirit of the Constitution is Implemented.
• Issues a circular to implementers in the
executive to ensure that all policies and laws
are reviewed as follow:
Implementation steps
a) To ensure that Constitutional Values and Human
Rights principles are integrated in all national,
sectoral and county policies;
b) To ensure that Constitutional Values and
Human Rights principles are integrated in all
national, sectoral and county legislation; and
c) To ensure that Constitutional Values and Human
Rights principles are integrated in all national,
sectoral and county administrative procedures.
Implementation steps
• The CIC work plan on the thematic area includes some
activities that will guide implementation of the rights
of PWDs. These include:- the development of an Implementation guide for
integration of Constitutional values and human rights
for implementers in the public service developed.
-the monitoring of laws that are being developed to
mainstream issues of PWD. CIC has been inviting PWD
representatives to its consultative forums on bills.
Implementation steps
• The provision of guidance, as part of its
facilitative mandate, in the mapping of the
country and setting of standards, to achieve the
progressive realization of the rights guaranteed
under Article 43 of the Constitution which will
mitigate a lot of the vulnerabilities facing PWDs
Implementation steps
To effectively implement the rights of PWDs,
the different Ministries will have to integrate
concerns on disability in their policies laws
and working tools to ensure accountability.
For Example: ….
Implementation
1. The Ministry of Planning and the Kenya
National Bureau of Statistic should include
parameters that address needs of PWDs in the
tools for data collection on the different
development issues
Implementation Steps
2. The Ministry of Education should in its policy
define access for populations with different
disabilities(e. g visual, physical & mental) in
order to plan for there needs(physical
facilities, educational materials etc).
3. IEBC should design the electoral system is
such away as to facilitate the exercise of the
right to vote by PWDs on an equal basis with
other Kenyans.
Implementation Steps
Examples continued..
4. The Judiciary should define in its policy on
access to justice parameters for PWDs
including those with mental disabilities.
5. The Ministry for Roads should in its policies
and laws ensure integration of the Convention
on person with disabilities on access for PWDs
in the design of roads and other public works
Implementation steps
While the foregoing are examples of what
specific actors should do , it is incumbent upon
each and every actor and implementer to
recognize that they serve PWDs and take the
responsibility to develop strategies to address
their needs.
Safeguarding the gains
All key implementers are called upon to ensure;
 Constitutional provisions are implemented and
respected
 All laws in existence are reviewed to be in
conformity with the Constitution – This includes
the Persons with Disability act which should be
reviewed for conformity with the Constitution
Safeguarding the gains
All policies and administrative procedures
should be reviewed to be in line with the
Constitution
All necessary measures should be taken by
each one of us to ensure benefits and
opportunities for persons with disabilities as
embedded in the Constitution are utilized for
persons with disabilities to realize their full
potential
Thank You