By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
The United Nations Convention on the Rights of Persons with Disabilities (the convention) was passed to facilitate the realization of human rights for the special group of PWDs. It re-emphasizes the equality of all persons regardless of their physical status. The convention in its preamble also states that PWDs should have the opportunity to be actively involved in decision-making processes about policies and programmes. The purpose of the Convention as laid out under Article 1 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 Convention outlines some important principles for promotion of the rights of PWDs under Article 3 which are as follows: Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women; and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities. Noteworthy is the principle of full and effective participation and inclusion in society for PWDs. This principle together with that of equality of opportunity can only be effectively promoted where PWDs are armed with the relevant skills and knowledge to empower them economically, socially, culturally and to strengthen their role in the development agenda.
Article 4 of the Convention lays down the general obligations of the member states which include adopting all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention. Member states are also required to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities. PWDs are also entitled to protection and promotion of their human rights in all policies and programmes initiated by member states. The Convention seeks to alleviate the lives of PWDs through promoting research and development in the use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost.
Further, the Convention provides that with regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights. Article 4(3) provides for consultations between the state and the representative organisations in decision making processes. The foregoing obligations are meant to ensure that the member states do more than just put it down on paper that PWDs have recognizable rights. They must take practical steps to ensure that the same is promoted at all levels and by all persons in their territories.
Article 8 further provides for awareness raising by member states for PWDs in recognition of their special skills and abilities inter alia. In order to enable PWDs live independently and participate fully in all aspects of life, State Parties should take appropriate measures to ensure they are on an equal basis with others in matters physical environment, transportation, information and communications plus their respective systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. Other important provisions are to be found under Article 24 (1) which provides that States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties are to ensure an inclusive education system at all levels and lifelong learning directed to the full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity, the development by PWDs of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential and to enabling persons with disabilities to participate effectively in a free society.
Relating this Convention to the Kenyan scenario, the Constitution of Kenya, 2010 has specific provisions on the rights of PWDs as a group of persons recognised under it. It is to the effect that a person with any disability is entitled to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning, 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, to reasonable access to all places, public transport and information, to use Sign language, Braille or other appropriate means of communication, and to access materials and devices to overcome constraints arising from the person’s disability. Further, it places an obligation on the State to 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.
The former Constitution of Kenya did not have much to offer in terms of specific protection of persons with disabilities. However, Parliament had already taken initiative to promote equality and equity for all groups of persons without necessarily making it appear like a reactive measure resulting from international law pressure. For instance, The Persons with Disabilities Act was enacted in 2003 and was replaced by the Persons with Disabilities Act, No. 14 of 2013. The problem, however, has been full implementation of the law. There is need for ensuring that all stakeholders, especially in the education sector, take part in promoting and protecting the rights of PWDs. For instance, in South Africa, efforts to implement inclusive education started before the Convention on the Rights of Persons with Disabilities came into force. It is an obligation for every educational institution to ensure physical accessibility for PWDs. Kenya has to ensure that not only special institutions of learning conform to the international standards for protection of PWDs’ rights but all considering that some forms of disability do not necessarily require a person to join a special institution. As such, wherever they choose to be, they should find a conducive environment that enables them to achieve their life goals, as envisaged under the UN Convention on the Rights of Persons with Disabilities.
*This article is an extract from the Article Securing the Realisation of Environmental and Social Rights for Persons with Disabilities in Kenya, (2018) Journal of Conflict Management and Sustainable Development Volume 2(1), p. 45. by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Securing the Realization of Environmental and Social Rights for Persons with Disabilities in Kenya, (2018) Journal of Conflict Management and Sustainable Development Volume 2(1), p. 45.