19 August 2015
The Committee on the Rights of Persons with Disabilities today concluded its consideration of the initial report of Kenya on its implementation of the Convention on the Rights of Persons with Disabilities.
Githu Muigai, Attorney-General of Kenya, said that Kenya had been one of the first States to ratify the Convention in May 2008 after having actively participated in its negotiations. Kenya was deeply committed to ensuring that the rights, needs and aspirations of persons with disabilities were recognized and respected. Progressive steps had been made and continued to be taken by the Government of Kenya to give full effect to the provisions of the United Nations Convention on the Rights of Persons with Disabilities. Indeed, the Convention found its fullest expression in the Constitution of Kenya, which espoused important national values, such as non-discrimination, inclusion, participation and dignity, which permeated every stage of developmental planning.
In the interactive discussion that followed, Committee Experts congratulated Kenya on being one of the first countries to ratify the Convention, but raised several issues which needed the attention of the Government. Among these were inequalities between men, and women and children with disabilities; persons with albinism; concrete cases in courts that had received legal remedies; accessibility both in public transport and in public and private facilities; refugees and migrant workers with disabilities; the inclusion of persons with disabilities in policy-making processes; multiple discrimination and inter-sectional disabilities; and other issues. Committee Members also urged Kenya to get rid of derogatory language defining persons with disabilities in the Constitution and other legislation, and to speed up the implementation of Article 33 with regards to the existing monitoring mechanism and the appointment of a focal point.
Mr. Muigai, in concluding remarks, said that Kenya remained fully committed to implementing the Convention and realizing the rights of persons with disabilities. It would promote non-discrimination, full and effective participation in mainstream development processes, and the full realization of a barrier free society.
Martin Babu Mwesigwa, Committee Member serving as the Country Rapporteur for Kenya, said that Kenya had undertaken many important steps, however he stressed the urgency of implementing Article 33 with regards to the existing monitoring mechanism and the appointment of a focal point. He encouraged the delegation to put a specific timeframe on this.
Shatika Chivusia, President of the National Commission on Human Rights of Kenya, stressed the importance of bringing all relevant legislation in line with the Convention, in an expeditious timeframe.
The large Kenyan delegation included 25 Members from Parliament, as well as representatives from the Attorney General’s Office, the Ministry of Labour, Social Security and Services, the Department of Justice, the Ministry of Health, the Ministry of Education, the National Council for People with Disabilities, the National Land Commission, the Ministry of Foreign Affairs, the National Gender Commission, and the Permanent Mission of Kenya to the United Nations Office at Geneva.
The Committee will next meet in public at 3 p.m. this afternoon, when it will begin its consideration of the initial report of Ukraine (CRPD/C/UKR/1).
The initial report of the Republic of Kenya can be read here: CRPD/C/KEN/1
Presentation of the Report
GITHU MUIGAI, Attorney General of the Republic of Kenya, said that Kenya had been one of the first States to ratify the Convention in May 2008 after having actively participated in its negotiations. Kenya was deeply committed to ensuring that the rights, needs and aspirations of persons with disabilities were recognized and respected. Progressive steps had been made and continued to be taken by the Government of Kenya to give full effect to the provisions of the Convention. Indeed, the Convention found its fullest expression in the Constitution of Kenya, which espoused important national values, such as non-discrimination, inclusion, participation and dignity, which permeated every stage of developmental planning.
Since the submission of Kenya’s initial report, the Government had worked hard to address barriers and constraints that faced persons with disabilities. Legislative, policy and administrative measures continued to be taken to ensure that the rights of persons with disabilities were realized and their needs were met. Of particular mention was the ongoing review to mainstream disability issues in all laws and policies. Notable legislation included the Persons with Disabilities Bill of 2015; the Law of Succession Bill; and the Evidence Bill of 2011. Progressive steps had also been taken towards mainstreaming disability concerns into Kenya’s national institutions and programmes. In 2010 an indicator had been introduced on disability mainstreaming in performance contracting in the public service. All ministries and autonomous government agencies in Kenya had developed annual targets to mainstream disability as a strategy for achieving the inclusion of persons with disabilities in development processes. These included putting measures to ensure that 5 per cent of all employment was reserved for persons with disabilities in the sectors.
In order to economically empower persons with disabilities and to ensure inclusion and equality of opportunities, the Public Procurement legal framework had set aside 30 per cent of public contracts to be granted to persons with disabilities. With an annual budget of $ 1.2 billion, this would result in opportunities worth slightly over $ 300 million. The National Development Fund for Persons with Disabilities had to date been allocated 1.8 billion Kenyan shillings, and provided assistive devices and services that improved mobility and access, including wheelchairs, crutches, surgical shoes, and hearing aids. The Government had also created a special fund for persons with albinism, for which, to date, $ 3 million had been set aside.
Deliberate efforts had been put in place to address vulnerable groups, including women and children with disabilities. In this respect, Area Advisory Councils had been set up at the local level to address cases of exploitation and abuse of children. A free Child Help Line, rehabilitation centres, children homes and other statutory institutions that empowered and protected children with disabilities had been established in all counties. The Government had initiated a number of programmes to address the provision in the Convention on living independently and being included in the community. These and many other measures had been taken to promote and protect the rights of persons with disabilities. The Constitutional requirement that 5 per cent of members of the public in elective and appointive bodies be persons with disabilities had seen an increase in the number of persons with disabilities. Currently, the Senate had three persons with disabilities, the National Assembly had nine, the Constitutional Commissions had four, and County Assemblies had 79.
SHATIKHA CHIVUSIA, President of the National Commission on Human Rights of Kenya recommended that the Kenyan Government commit to specific timeframes regarding the implementation of the provisions of the Convention, especially with regards to derogatory and demeaning terms defining persons with disabilities. She also recommended that the Government of Kenya ratify the Optional Protocol. With regards to women, one of the issues of concern was the lack of sexual and reproductive health rights. During a 2011 inquiry by the National Commission, it was documented that women with disabilities had been taken for hysterectomies without their consent or knowledge. These cases were still being reported. The National Commission recommend that the State take steps to stem out these negative practices. In terms of infrastructure and accommodation, public and private buildings were inaccessible to persons with disabilities. Public transportation was also not accessible to persons with disabilities. There was also a lack of adequate data on the numbers of persons with disabilities, and in this respect, it was recommended that in the next census, disaggregated data be included.
Questions from Committee Experts
Martin Babu Mwesigwa, Committee Member serving as the Country Rapporteur for Kenya, said that Kenya had undertaken multiple positive developments with respect to the promotion of the rights of persons with disabilities, and congratulated Kenya for ratifying the Convention and enacting the Persons with Disabilities Act of 2003, which preceded the ratification of the Convention. Some of the positive developments were the introduction of the Social Protection Programme for the Persons with Disabilities; the participation of persons with disabilities in government structures; and the introduction of the performance contracting practice. However, problems remained.
Currently, there was no implementation and monitoring of the provisions of the Convention on the Rights of Persons with Disabilities although the Kenyan Gender and Equality Commission had been appointed to play this role. This was a government structure and could possibly result in a conflict of interest. In addition, disability should not be viewed as solely an equality matter, but as a cross cutting issue in the entire socio-economic and political spectrum. A second issue was that the meaningful and effective participation of persons with disabilities in the decision-making process at national and local levels was lacking. Third, even if persons with disabilities were represented in national and parliament structures, there were no adequate processes that promoted consultations and decision-making by those represented persons with disabilities to decide who should represent them. A fourth problem was the incorporation of the Convention on the Rights of Persons with Disabilities in the domestic legislation of Kenya. Most of the powers of policy implementation were in the hands of the local government. These in turn did not consider international legislation as their obligation. The Government had to ensure that local governments would align legislation to international and national legislation regarding persons with disabilities.
A fifth problem was that there was a lack of adequate data, and there were no plans on behalf of the Government to collect disaggregated data. Sixth, in terms of universal primary education for all school citizens, efforts of the Government were commendable, but did not equally promote the ability for persons with disabilities to go through the entire education system. On the use of sign language, most academic institutions did not use or even develop it, and no efforts had been undertaken to consult with the National Deaf Association of Kenya in the promotion and development of sign language as enshrined in the Constitution. Furthermore, costs needed to be borne by the State and not by the users of the service. Finally, accessibility was a big issue in Kenya, and although provisions existed in legislative and policy frameworks, there was absence of necessary guidelines to ensure implementation. Most construction programmes did not take into account the needs of persons with disabilities.
Other Committee Members were concerned about the inequalities between men and women, and the barriers that women and children faced on the basis of discrimination. To what extent were measures planned to deal with this. What happened when children were interned in schools.
The Children’s Act made reference to children with disabilities but no reference on how to make their views count. Were there guidelines for the participation of children with disabilities in the “children’s cabinets”?
The Committee Members were also concerned about aggression and the threat to the lives of persons with albinism. What measures were provided to prevent and protect persons with albinism?
Were there concrete cases in courts in which persons with disabilities had received effective legal remedies? What was the Office of the Attorney General doing to help persons with disabilities achieve their equalities?
How were accessibility standards being promoted? Was there any specific training for architects? And how was this implemented? What support services were available to assist a person with a disability to get out of the airplane, be assisted in the airport and taken to a hotel? How many hotels were accessible to persons with disabilities? And were government buildings equipped for persons with disabilities?
Was there a plan for access to transport?
Were refugees and migrant workers with disabilities considered to be equal in legislation and implementation to persons with disabilities who were citizens? Did they receive the same benefits and opportunities as persons with disabilities who were citizens? Did persons with disabilities in refugee camps have access to education, health, sanitary facilities, employment and other activities?
There was concern that Kenya’s Mental Health Act, as well as other laws, used derogatory terms to describe persons with disabilities and outdated language. These needed to be reviewed and awareness-raising programmes were needed throughout the country in this respect. Despite awareness-raising, there was discrimination. Did the Government intend to step up actions to counter myths surrounding disabilities?
What efforts were being made to include persons with disabilities in the policy-making process? And what was the diversity of persons with disabilities in this respect? Were deaf persons, persons with disabilities from rural areas, and persons with intellectual and social disabilities included?
What measures were undertaken to reform the 2003 Disabilities Act to take into account the key principles of the Convention?
What measures were undertaken for persons facing multiple discrimination and for people with inter-sectional disabilities such as women, elderly, pastoralists, people with psycho-social disabilities, and people who were HIV positive? Were there plans to translate the Convention in Kiswahili?
How many sign language interpreters were there in Kenya? And how many translated in a correct manner?
A Committee Expert wanted to know about the public procurement policy of Kenya with regards to persons with disability.
How were all Convention articles implemented and how did Kenya rank itself in this respect on a scale of 1 to 10?
What efforts were being made to strengthen the National Human Rights Commission in terms of disability representation and wide representation.
The delegation was commended on the ratification of a law forbidding female genital mutilation. However there was information that this practice continued to take place, including on women with disabilities. What was being done to counter this practice?
Responses from the Delegation
GITHU MUIGAI, Attorney General of Kenya, thanked the Committee Members for their questions, and reiterated Kenya’s dedication to the promotion of the rights of persons with disabilities.
Regarding the National Human Rights Commission President’s question on why there was currently no domestic statute that reflected everything that was in the Convention, Mr. Muigai replied that the actualization of the provisions of the treaty was a priority, and there was a historic commitment by Kenya in this respect. Regarding the Optional Protocol, this was a matter of a national dialogue. During this period, Kenya had been negotiating the new law, which was before Parliament and which was being used as a platform to sensitize Parliament with respect to the obligations to the Protocol. Mr. Muigai assured the Committee that there was no intention to have “derogatory language” in the Constitution and the laws, however when these terms were translated in English, they had a different nuance than that which had been intended. The Kenyan Constitution, concluded in 2010, was one of the most futuristic, not just in Africa but in the world. It had a non-discrimination provision that was very wide. It was difficult to open the Constitution to amendment, however Kenya was in the middle of broader discussions and when the appropriate time would come, and when a consensus would be built regarding what could and could not be changed in the Constitution, the Government would look into using language that would not be considered derogatory.
Regarding political representation, Mr. Muigai suggested that there were two types of responsibilities that had to be distinguished. One was responsibilities by the Government and the other was responsibilities by the other political parties, which existed in democratic societies. Regarding the equality between men and women, the Government could urge the participation of women with disabilities in representation, however it could not force this upon other parties due to the flexibility of political choice.
Inclusiveness of persons with disabilities was ensured in Parliament. Two positions were reserved in the National Assembly for persons with disabilities, one of which was for a woman and one for a man.
The law focused on access to health care for persons with disabilities. Nurses were initiated sign language. Children under five years were entitled to free care. Vaccination was also free.
Regarding the interpretation into Kiswahili of the Convention, the Parliament introduced a Bill in the Parliament, to ensure the interpretation into not only Kiswahili but also in other languages, as well as Braille.
The quota system of employment ensured that women with disabilities were taken into account.
Regarding the question on accessibility, a member of the delegation stated that there was a National Action Plan on Accessibility, which was a concrete document identifying 13 strategic objectives in view of accessibility. Among other things, it specified the provision of assistance devices, including wheelchairs, hearing aids, and so forth. The National Council for Persons with Disabilities ensured that sign language was available on all television stations so that all persons with hearing impairments had access to news. A quota of five per cent was reserved for persons with disabilities in positions of responsibility. There was a permanent secretary in top government management, to ensure that all policies represented concerns of persons with disabilities. On 30 April 2015, the National Council for Persons with Disabilities published a public order to all providers of public services and amenities to ensure that all had compliance with the Convention in terms of accessibility. Wherever the order was not complied with, legal remedies would be sought and institutions would be charged. In addition, 32 health workers were being trained in sign language at the University of Kenya.
Regarding children’s rights, national legislation provided for the participation of all children, including those with disabilities. There were 47 County Children Assemblies, allowing them to meet twice a year at the county level and once at the national level, in order to give them an opportunity to talk. Children with disabilities elected a representative.
Regarding the question on public procurement, and how government procurement was facilitating disabilities facilities, there was no legal provision. However, companies were encouraged, when being given tenders, to give incentive to take into account persons with disabilities. The country still had much to learn in this area.
The delegation denied that sterilization of persons with disabilities was conducted with the approval of the authorities. Where cases were brought to their attention, complaints were then filed by the prosecution.
Kenya rated itself 7 out of 10, in term of the promotion and protection of rights of persons with disabilities. Kenya was one of the pioneering nations in this area. For example, the work done on female genital mutilation was phenomenal. Even if it was not eradicated, a lot had been done, in spite of the deeply historically rooted culture.
The Government had promoted protection measures on persons with albinism.
Follow Up Questions by the Experts
More information was needed on Government obligations with regard to legislation policies. The State had a duty to prevent violations or crimes and persecute the perpetrators of such crimes.
Experts asked for more information on the number of persons with disabilities who were institutionalized against their will. What mechanisms existed to monitor the situation of persons with disabilities who were institutionalized? Acts which could be defined as cruel and degrading treatment or torture had been documented in institutions. Information had also been received about lack of access to justice by persons with disabilities, particularly children and women. Their testimonies were not given credit. What was the State party doing to enhance protection and improve access of women and children with disabilities to legal remedies?
Was training on disability standards being done systematically?
Was there any training for security forces for protecting civilians, and in particular, did they know that among these civilians there would be persons with disabilities? For example, were the forces aware that persons with hearing impairments could not hear an announcement regarding a terrorist attack.
Was there systematic training of the judiciary and civil servants on the national legislation regarding persons with disabilities?
On access to justice – to what extent did the Government support the legal practice by persons with disabilities, such as lawyers, judges, and other persons. Had they been given enough support so that they could increase access to justice by persons with disabilities?
Could the delegation please respond to the previous question regarding inter-sectoral discrimination?
What support policies were planned for internally displaced disabled persons in case of a humanitarian emergency?
Regarding mental disabilities, did the delegation refer to persons with intellectual disabilities or psycho-social disabilities?
Did the Government plan to review the Mental Health Act? Most decisions were still being made without the consent of persons with disabilities, and in particular, persons with intellectual and psycho-social disabilities. What measures were being taken to counter involuntary sterilization of such persons?
More information was needed regarding personal mobility for deaf-blind people.
The Committee had received information that registration of children with disabilities was not being systematically done. What was being done to ensure that all children with disabilities were being registered at birth as citizens of Kenya? The same question was posed regarding children born in refugee camp. What kinds of consequences did these children face if they were not registered?
More information was needed regarding the living arrangements that isolate persons with disabilities from mainstream society.
In criminal proceedings why was it stated that evidence provided by witnesses or victims with disabilities was not substantiated?
Responses by the Delegation
On the questions regarding persons with disabilities that were intellectually challenged, the delegation responded that the intention of the provision was to avoid criminal punishment for a person that was found to be mentally incapacitated. It was intended to allow the individual to receive treatment in a mental facility during the incarceration period, and to be released without proper punishment following this.
There were no cases of involuntary incarceration of persons with disabilities. In the case that there were, this was on the basis of permission of the person in charge and up to a maximum of six months. This was for the purpose for establishing the causes for violation. The next course of action would be to take care of the individual.
Regarding the steps taken to train public civil servants to sensitize them on the needs, the laws and policies surrounding the protection of persons with disabilities, a lot of training was provided annually by the National Council for Persons with Disabilities together with the Judicial Institute. There was a lot of support for judges, advocates and magistrates. Disability law was one of subjects studied in the university and in law schools. Continuous legal training was conducted every year and was mandatory for all lawyers. The National Council for Law Reporting was reporting in accessible format, including in Braille, and software was included to ensure that. There were several judges who were with disabilities, as well as lawyers and magistrates.
On the question of women with disabilities all evidence had to be substantiated, whether or not by a person with disabilities. On the criminal proceedings, the procedures recognized the right to a fair trial. There was fair trial for persons with disabilities. Most cases that came from the national council of persons with disabilities had been successful in court.
On the question of how many cases from persons with disabilities had been vindicated, most cases were mediated or reconciled. Thus many did not reach the court and therefore it was not easy to say how many cases there were from 2010.
On the question of special protection of women and children with disabilities in judicial process, many steps had been taken, such as the provision of Kenyan language in Braille, and guides in chambers. Access to the physical environment was also provided, including mobile courts and a programme of decentralization of judicial services to 47 counties. These were free or subsidized. There was a simplified mechanism of petitioning the court in cases of violation. There was ongoing training of police officers in Kenyan Braille. With the Persons with Disabilities Act there was a free legal aid for persons with disabilities. The programme also allowed for legal aid through self-representation.
Regarding the elderly, HIV-infected, and other vulnerable groups, the Constitution prohibited discrimination on any grounds and Kenya had made efforts to protect the rights of this category. The 2015 Persons with Disabilities Bill had specific provisions for the elderly with disability.
The Persons with Disabilities Act of 2015 was under total overhaul, and undergoing review by all stakeholders.
Regarding the public procurement processes, Kenya was in the process of moving to procurement in the public service and assistive technology for the visually impaired. The Public Prosecutor in collaboration with the National Council for Persons with Disabilities carried out training across the country so that publicly procured goods and services were accessible. The National Council for Persons with Disabilities had an annual budget to assistive devices and software for persons with disabilities. There was a planned consultative process organized by one of main mobile providers to consult persons with disabilities on technological needs. This was a collaborative efforts between development partners, disabled organizations and the Government of Kenya.
Regarding the training of security agents, architects and engineers on the awareness of the needs of persons with disabilities, as well as on the needs of internally displaced persons with disabilities, in the universities, there was a curriculum that dealt with issues of disability in engineering and architecture. There was an ISO standard on disabilities that monitored accessibility. Kenyan sign language was now official and taught in primary and secondary schools. The 2015 Bill on Persons with Disabilities would ensure that all media houses would allocate at least 1 hour per month for persons with disabilities. This year, 30 million Kenyan shillings had been set aside for persons with albinism awareness. Kenyan sign langue was now official in some media houses, including KTN and KBC. On the issue of risk and emergencies, the 2015 Bill provided details for rescue during situations of risk and placed responsibility on Kenyan police to give priority to persons with disabilities.
On the issue of internally displaced persons, priority in distribution of food and supplements was given to persons with disabilities.
The number of sign language interpreters in the country was not known, but the Government had trained more than 100 on sign language last year, 32 police officers, and another 100 civilians. Most universities, especially government-owned institutions trained around 100 students in sign language per year.
On the treatment of children who were refugees, the constitution of Kenya provided that every child had a right to a name and nationality from birth, and this included registration. Therefore it was a criminal offence not to register a child. To deter parents from not registering their children, there were children advisory councils which created awareness on registration. Kenya had a Law on Refugees which covered children with disabilities. On the question related to migrant refugee workers, the law required that all workers have relevant documentation as provided by law.
Regarding abandonment of children, this was a criminal offence. With the introduction of cash transfer programmes for poor households with persons with severe disabilities, parents and guardians were assisted by the Government to raise their children.
Regarding statistical data on persons with disabilities, the Government was committed to collecting data in order to inform policy and programming. The first date collected in 2007 indicated that 4.6 per cent of the population had some kind of disability. The Government felt that these figures were conservative and ensured that data collection would continue.
On the right to legal capacity, the Government was deeply aware that the Convention called for a shift from supported decision making and came up with measures namely in the 2015 Bill which recognized legal capacities of all categories of disabled persons on an equal basis. Training and awareness raising was provided for this among judges, lawyers, bank personnel and family members. The Kenyan National Committee developed a briefing paper on how to implement Article 12 on legal capacity.
The Mental Health Act, was undergoing review.
On the question of sterilization the Government did not sanction it without formalized consent. While the law was not specific on the subject, the Penal Code provided that any person who did grievance on another was guilty of penalty. This made sterilization prohibited.
Female genital mutilation was considered a criminal offence.
On the issue of independent living, a policy and legislative framework existed to support it and the Children’s Department had the primary responsibility for monitoring. The use of institutions was limited to extreme situations. On the question of deaf-blind children, services were rather limited in Kenya, and the Government would ask the Committee to assist with best practices.
Regarding the provision of assistive devices at a reasonable cost, these were given for free, and to date, over 40,000 had been given. The Government subsidized devices which cost more than 100,000 Kenyan shillings and provided tax exemption for all assistive devices. It partnered with international organizations to provide these free of charge, and transport them to those in rural areas. There were duty free vehicles for persons and 900 persons had benefited from this.
On albinism, the Constitution of 2010 said abduction of persons with albinism was a criminal offence. On June 13 2015, the country observed for the first time the International Day on Albinism.
On accessibility in airports hotels and transportation, the National Council for Persons with Disabilities had given a 45 day notice to all of these to make them compliant with persons with disabilities act of 2003.
Regarding the county governments in Kenya and the perception that they did not respect international conventions, this was not a true reflection. Kenya was not a federal state, but had a devolved government. Therefore, all international laws and conventions were the responsibility of the entire government at all levels.
Questions from Committee Experts
Committee Experts, in a second round of questions, wondered whether women and children of psycho-social disability who had been victims of violence were heard in front of courts. Was there any timeline for children in special schools to move to mainstream education and to move to a life in community as in accordance with Article 19 of the Convention? There was concern on the situation of poverty in which persons with disabilities found them including those from minorities and those living in rural areas. It appeared that support was not distributed on a regular basis. Was there a plan to redefine these programmes? Could the delegation explain the role by the National Human Rights Commission and the Commission on Gender and Equality? Was there tax exemption for software programs or computers, or printing materials in Braille? How accessible were tourist sites in Kenya to persons with disabilities? And did tourism industry staff get training to receive persons with disabilities? Could the delegation clarify how it planned to improve physical access to polling places?
How did the Government interpret and apply the inclusive concept of education for persons with disabilities, given that both mainstreaming and special schools existed. To what extent did the Government make an effort to reform existing special education schools? How many children were in normal schools, how many were in special schools and how many children were not receiving education?
What was the legal status of Braille in Kenya? Did teachers have other opportunities to continue their learning in sign language after their three-month long courses?
The Committee had received information that in spite of the quota the nomination of persons with disabilities in Parliament was done through the political party and not disability communities, making them less likely to be responsive to the needs of persons .
Did the Government plan to ratify and implement the Marrakesh Treaty?
When would Kenya ratify the Optional Protocol?
How many children had access to hearing aids and other assistive technologies in primary and secondary education?
What steps were taken to ensure early recognition and development of infants with disabilities and what services were available for parents?
Members were concerned about the unemployment rate among persons with disabilities and wanted to know what percentage were eligible for income tax exemption.
How were cash transfers provided, and were they provided to all persons with disabilities, including those under age?
On the recent 2014 Marriage Act, which consolidated existing marriage law, there was still a provision that stipulated that consent was not given freely if the person had a mental health condition. Was this law in line with the Paris Principles?
On poverty reduction and employment, did the State party have effective measures to ensure and encourage persons with disabilities in economic development not only as beneficiaries but also as contributors?
Were there measures to develop the artistic and performing potential of persons with disabilities to ensure their participation in society on an equal basis with others?
Information had been given to the Committee Members that many children with disabilities were sent to residential schools, often very far from their families. What was being done to develop both community based services as well as implement inclusive education to ensure that children with disabilities enjoyed the right to family life? Did families have access to information?
There were no programmes for persons with disabilities concerning sexual and reproductive health. Was there a move to implement the Millennium Development Goals regarding person with disabilities?
Many Committee Members thanked the delegation for their precise answers, but all of them expressed concern regarding the implementation of Article 33 on the independent monitoring mechanism and the focal point. Had the position been changed and did the Government respect that the institution had to be strengthened and the policy implemented? What was the timeline for this?
Committee Members also urged the delegation to act speedily on the finalization of the Disability Action Plan for Accessibility, which the Government had been working on since 2012.
Follow-up Questions from Committee Experts
A Committee Member asked whether during a criminal procedure, when a person with a psycho-social disability was deemed not to be charged, what safeguard measures were applied.
How long did it take to regularize the situation of migrants or refugees, particularly those with disabilities? Did the status and rights and guarantees for persons with disabilities apply to migrants with disabilities who did not have the necessary documentation?
Responses from the Delegation
On the question of testimonies of women and children in court, the head of the delegation said that the Committee had been misinformed that women and children were treated in a separate way. All testimonies were a subject matter of the Evidence Act, which was applied without discrimination. There was a special consideration given to the testimony of children, as they could be potentially influenced, but this had nothing to do with disabilities. Precisely because a child or a woman had a disability, the court was extra sensitive and extra protective of the witness.
The Government was gradually walking towards inclusive education. Ten years ago, only 20 per cent of the learners were in mainstream schools. Today 75 per cent of students were in mainstream schools and only 25 per cent remained in special schools. The Kenya Institute of Special Education trained more than 11,000 teachers on inclusive education. This year, 95 million Kenyan shillings had been allocated to enhance their capacity. Their placement was not only for special but also mainstream schools. The curriculum reform process had just started. There was special representation of someone to represent the interest of learners with disabilities in advising how their needs would be taken care of, so that when the curriculum was completed, there would be full participation. An additional 850 million Kenyan shillings had been provided for learning materials for auxiliary services in the difference schools. The Government aimed to modify learning approaches, materials resources, and physical environment. However this would take time, and that was why there was the two-track approach of having special schooling and also mainstream schools. There was no certainty on the number of children with disabilities that were not enrolled in school, and a recent study had mentioned that almost 40 per cent to 50 per cent were out of school. Once this report was published, interventions would be devised. On the artistic and creative talent that could be developed for leaners with disabilities, the country promoted a four track education system.
The Ministry of Labour, Social Security and Services had the overall responsibility of coordination and implementation of the Convention and served as the focal point. The National Council of Persons with Disabilities had been implementing advisory responsibility and the National Agenda played a monitoring role. It was the discretion of the Government of Kenya to choose which institution would be appointed as a focal point.
With regard to assistance to vulnerable persons with disabilities, there were cash transfer programmes, including for women and children. Now these covered persons with severe disabilities only, but the plans for the future were to cover all persons with disabilities. Severe disability was defined as those who depended on caregivers, almost on a 24-hour basis.
On the nomination by political parties of persons with disabilities into political office, the provision on the nomination of persons to parliament and also to the country assembly was enshrined in the Constitution.
Regarding accessibility to polling stations, ensured by Article 81 of the Constitution, polling stations were usually held in rooms of schools on the ground floor and wheelchair friendly, and blind voters were given braille ballots. The Office of the Attorney General was currently facilitating the review of the electoral and political processes with the idea to have more inclusivity.
On the question of assistance devices, these included not just wheelchairs, but all devices.
On the question of accessibility in touristic sites, the Government recognized the need and was working on making them all accessible.
Some 300,000 persons had been registered and issued identity cards.
The Kenyan sign language was not only in parliamentary proceedings but in all news in two channels KTN and KBC.
The Cabinet had approved ratification of the Marrakesh Treaty.
Regarding the ratification of the Optional Protocol, Kenya was in the process in reviewing several Optional Protocols to several Conventions. The Government hoped to be able to make a decision on this in the next year or so.
On the Law on Marriage, it was not the intention to introduce a discriminatory provision. However the concern was child marriages, which the Government was committed to eradicate.
In concluding remarks, GITHU MUIGAI, Attorney General of the Republic of Kenya said that he found the engagement with the Committee Members very useful and appreciated their valuable contributions. Kenya remained fully committed to implementing the Convention and realizing the rights of persons with disabilities. It would promote non-discrimination, full and effective participation in mainstream development processes, and full realization of a barrier free society.
SHATIKHA CHIVUSIA, President of the National Commission on Human Rights of Kenya stressed that several laws, including the marriage act, the laws which included the issue of the definition of persons with disabilities, the persons with disabilities act, the mental health act and others should be brought in compliance with the Convention, and the Commission looked forward to an expeditious timeframe. On Article 12 and the legal capacity, the Commission had issued a briefing paper and hoped its recommendations would be followed through by the Government.
Martin Babu Mwesigwa, Committee Member serving as the Country Rapporteur for Kenya, congratulated the delegation for their interest and answers and stated that he had no doubts regarding the commitment of the Government. However, a fundamental shift from commitment into serious practice was needed. A review of the Article 33 of the Convention had to be taken as a matter of priority by the Government. It was indeed the prerogative of the Government to choose the institution that would monitor the institution, however Article 33.2 had to be taken into account. He also drew attention to Article 4, reminding that it was the responsibility of the State to ensure that all actors in the country abided by the Convention. He asked that the Disability Act of 2003 be given priority and asked for a copy of the Convention in the Swahili language.
MARIA SOLEDAD CISTERNAS REYES, President of the Committee, underlined that the honesty of the delegation had facilitated the dialogue and thanked civil society representatives for the important role they had played in informing the Committee.
For use of the information media; not an official record