BETTY NKIROTE: How new Persons with Disabilities Act promotes social inclusion

The signing into law of the Persons with Disabilities Act on May 8 by President William Ruto represents a new dawn for all Kenyans with disabilities. It marks a significant stride towards greater inclusion through establishing systems for protecting, promoting and monitoring the rights of persons with disabilities. The new Act completely aligns with the United Nations Convention on the Rights of Persons with Disabilities.

Disability rights

Part III of this transformative legislation comprehensively sets out the rights of persons with disability. It elaborates on the Bill of Rights of the Constitution and particularly makes operational Article 54. Unlike the constitution, which does not expressly provide the right to legal capacity of persons with disability, the new Act recognises this important right in line with the CRPD. Other rights provided for in the new Act include: equality and freedom from discrimination, the right to marry and form a family, the right to privacy, the right to physical and mental integrity, the right to human dignity and the right to education, among others.

The new Act is far more detailed on rights than the 2003 Act, repealed by the 2025 Act. It is interesting to look at the main highlights of the Act, emphasising its differences from the earlier Act.

Equality and non-discrimination

Persons with disabilities in Kenya have faced, and continue to face, both systemic and direct discrimination. This often leads to limited access to opportunities, which in turn results in a low quality of life due to socioeconomic poverty. The new Act is a breath of fresh air as it expressly guarantees every person with disability equal protection in law, equal benefit of the law and adequate legal protection against discrimination on all grounds. It recognises the equality of every person with disability before the law in the political, economic, social, cultural and all fields of life.

Right to legal capacity

Historically it was common for persons with disabilities to be denied rights to make independent decisions and to freely participate in legal processes, based on some assumption that a person with some disability had no abilities. Some financial institutions have even turned away customers with visual disability and asked them to use a representative to access banking services. The new Act addresses this problem by entitling every person with disability to recognition as a person before the law. It guarantees every person with disability the right to own and inherit property, a right that is constantly violated due to disregard for the personal autonomy of persons with disability. It guarantees every person with disability the right to control their own financial affairs, and to have access to savings and loan facilities, mortgages and other forms of financial credit on an equal basis with members of the society without disability. This provision opens a pathway for persons with mental disabilities to control and make decisions on their finances, as this right to legal capacity is not clearly recognised by the Mental Health Act.

Women with disability

The new Act gives special protection to women with disability by safeguarding their rights that previously have been subject to gross violation. As a woman with visual disability, I have experienced stigma while seeking sexual and reproductive health services. Healthcare providers often question the need for a woman with disability to access sexual and reproductive health services.

There are reports of pregnant women with disability being abused by health providers and receiving sympathy for simply being pregnant. The new Act elaborates the right to sexual and reproductive health services protected in the constitution in relation to women with disability. It affirms the right of women with disability to access sexual and reproductive health services and the right of every woman with disability to retain and control their fertility. The new law strictly prohibits the discriminatory practice of depriving a woman with disability of their child on the grounds of disability.

Right to education

As a person with disability, both my primary and secondary school education was acquired through special schools. This was where, as learners with disabilities, we were separated from those without disability. This practice promotes stereotyping and discrimination. Separation of learners results in reduced capacity of persons with disabilities to effectively participate in community life. The new Act breathes life into Article 54(1)(b) of the Constitution (about integrated education) through setting out measures needed to achieve the right to inclusive education. It calls upon all learning institutions to offer individualised support measures, assistive devices, appropriate equipment, adoptive technology and other support services in environments that maximise academic and social development to enhance full inclusion.

The Act requires the ministry in charge of education to develop strategies to implement inclusive education through recruitment of special education teachers in all schools, introduction of sign language in all learning and training institutions, establishment of research centres to undertake research in education for students with disabilities, etc.

Right to employment

Lack of reasonable adjustments, coupled with discrimination and stigma associated with disability, are among the barriers limiting access to employment by persons with disabilities.

The new Act strictly prohibits employers from discriminating against a person with disability in any respect. It requires employers with at least 20 employees to reserve five per cent direct employment opportunities for persons with disability.

The new Act requires employers to make reasonable adjustment for employees with disability including through making existing facilities usable and accessible, job restructuring, modified work schedules, payment of assistive allowances to employees with disability.

Private employers who engage persons with disability, and those who modify their physical facilities or incur other expenditure to provide reasonable accommodation for such employees are entitled to apply for partial reductions from their net taxable income as compensation.

However, despite these tax benefits having been in the repealed Act, they have not motivated private employers sufficiently to hire persons with disabilities. This stems from the extent of the additional costs involved in modifying the work environment, from inadequate enforcement and lack of awareness. Will this change?

Other tax relief

As in the repealed Act, persons with disabilities may, on application, be partially or wholly exempted from paying income tax or other levies (presumably including housing and health levies) on employment income. If granted to persons with permanent disability, the new Act provides that the exemption is permanent, a new provision that will be a huge relief for those benefiting. Articles, materials and equipment, including motor vehicles, for use by persons with disabilities continue to enjoy exemption from import duty and value added tax.

Unlike the old Act, the new Act provides for exemption for income tax for parents and guardians of persons with disabilities. However, this benefit is only available to a parent or guardian of a person certified with severe disability and incapable of catering for their basic needs. A poor parent or guardian who assumes custody and care of a person certified with severe disability may apply for a long-term monthly cash transfer from the government in accordance with the Social Assistance Act.

Conclusion

The National Council for Persons with Disabilities, having reviewed the Act, said it “is anticipated to usher in a new paradigm shift for persons with disabilities nationwide”.

The Act addresses the needs of persons with disabilities and establishes measures to eliminate systemic barriers that in the past have resulted in social exclusion and discrimination. The new law sets out enforcement mechanisms to ensure accountability. If fully implemented, this Act will enhance inclusion and totally improve the lives of persons with disabilities in Kenya.

Time will tell whether the government will be able, and willing, to put in the necessary finance and effort.

Nkirote is Clooney Foundation for Justice fellow, under the Waging Justice for Women programme, at the Katiba Institute