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Persons With Disabilities Act

This is an Act of Parliament that was passed to

  1. Provide for the rights of persons with disabilities
  2. Provide for the rehabilitation of such persons
  3. To promote equalization of opportunities for persons with disabilities
  4. To establish the National Council for Persons with Disabilities
  5. For all other purposes connected to the above

Disability is, a physical, sensory, mental or other impairment including visual, hearing, learning or physical incapability that adversely affects a person’s social, economic or environmental participation.

  1. OBLIGATIONS OF THE GOVERNMENT (Section 11, 37,38 & 43)
    • The Government has an obligation to ensure that the rights of persons with disabilities set out in the Act are fully realized. Section 11.
    • All Government ministries are required to establish and maintain an inspectorate unit to ensure the implementation and compliance with the provisions of the Act. Section 43
    • The Cabinet Secretary responsible for matters relating to credit unions, co-operatives and other lending institutions has an obligation to encourage the extension by such institutions of credit to persons with disabilities. Section 37
    • The Attorney General has an obligation to make regulations providing for free legal services for persons with disabilities. This is especially with regard to violation of rights and deprivation of property, cases of capital punishment and such other matters he may prescribe. He is required to do this in consultation with the Council and the Law Society of Kenya. Section 38 (1)
  2. RIGHT TO EMPLOYMENT (Section 12, 13,14,15,&16)
    • Right to employment. No person is to deny a person with disability employment. Further they should have the same terms and conditions, compensation, privileges, benefits, fringe benefits, incentives or allowances as qualified able-bodied employees.  The income from their employment is however exempted from tax. Section 12
    • The National Council for Persons with Disabilities has the obligation of ensuring that 5% of all casual, emergency and contractual positions in employment in the public and private sectors are reserved for persons with disabilities. Section 13
    • Where the disability is not one that affects performance in a particular occupation, the person with disability is eligible for engagement as an apprentice or learner in that particular occupation. Section 14
    • Right not to be discriminated against by employers. This is particularly with regard to employment advertisements, recruitment, creation, classification or abolition of posts, payment, work benefits, promotion, training transfers and retrenchment, provision of facilities at work and such other matters related to employment. Section 15
    • It is also a right of a private employer who engages a person with a disability with the required skills or qualifications, to apply for a deduction from his taxable income equivalent to 25% of the total amount paid as salary and wages to such employee. This is however pegged on the condition that the employer provides proof certified by the Ministry responsible for labor that the persons with disabilities in respect of whom he claims the deduction are under his employ; and that the persons with disabilities so employed are accredited with the Council as to their disabilities, skills and qualifications. Section 16
    • The National Council for Persons with Disabilities is obligated to establish and maintain a record of persons with disabilities who are in possession of various levels of skills and training and to update these records regularly for the purposes of job placement. Section 17
    • Right not to be denied admission into any learning institution to study any course if the person with disability has the ability to acquire substantial learning in that course.  Learning institutions are required to consider the special needs of persons with disabilities especially with regard to entry requirements, pass marks, curriculum, examinations, auxiliary services, use of school facilities, class schedules, physical education requirements and other similar considerations. Section 18
    • The National Council for Persons with Disabilities and the Government are under an obligation to provide in all districts, an integrated system of special and non-formal education for persons with all forms of disabilities and the establishment where possible of Braille and recorded libraries for persons with visual disabilities. Section 19
  3. RIGHT TO ACCESS TO BUIDINGS AND SERVICES (Section 21, 25 & 28)
    • Right to a barrier free and a disability-friendly environment. This is especially with regard to access to buildings, roads and other social amenities. Section 21
    • The right not to be denied admission into any premises because of disability, particularly where members of the public usually access that building and services or amenities that members of the public are entitled to, are being offered in the premises. Section 25
    • Persons with disabilities also have a right to use recreational or sports facilities owned or operated by the Government free of charge during social, sporting and recreational activities. As an extension of this right, they also have a right to participate in all national and international events. Section 28 (1) and (2)
  4. RIGHT TO PARTICIPATE IN ELECTIONS (Section 29 & 30)
    • Persons with disabilities have a right to be assisted by a person of their own choosing in voting during presidential, parliamentary and civic elections. Section 29
    • Polling stations are to be made accessible to persons with disabilities during elections in addition to the provision of necessary devices to facilitate the exercise of their right to vote. Section 30
  5. TAX EXEMPTIONS AND WAIVERS (Section 35, 36)
    • A person with disability who receives income has the right to apply to the Cabinet Secretary responsible for finance seeking exemption from income tax and any other levies. Section 35
    • With regard to donors, all forms of donations made to Government agencies and organizations involved in the rehabilitation of persons with disabilities and registered with the council, shall be allowed as deductions from the donor’s gross income for the purpose of computing taxable income. This is however subject to the provisions of the Income Tax Act. Section 36
  6. OBLIGATION OF THE JUDICIARY (Section 38)
    • The Chief Justice has an obligation to make rules exempting persons with disabilities from the payment of fees for matters stated above and providing free sign language interpretation, Braille and physical guides to persons with disabilities who attend court. Section 38 (2)
    • With regard to accused persons with disabilities who are denied bail, they have a right to be held in custody in facilities modified as per regulations made by the Cabinet Secretary. Section 38 (3)
    • Any suit involving a person with disability is to be disposed of expeditiously having due regard to the particular disability and suffering of such persons.  Section 38 (4)
  7. EXEMPTION OF POSTAL CHARGES
    • Postal charge exemption exists with regard to printed and recorded literature, articles, equipment and other devices for the use of persons with disabilities which are sent by mail within and outside Kenya, and aids and orthopedic devices for persons with disabilities sent outside Kenya by mail for repair. This is however on condition that the items are for personal or institutional purposes and are recommended for this exemption by the Council, and that the person with a disability or the organization is registered with the Council. Section 41
  8. THE NATIONAL COUNCIL FOR PERSONS WITH DISABILITIES

    • Section 49 gives the National Council for Persons with Disabilities the authority to request the Attorney General to take appropriate legal action where it believes that a person or group of persons discriminates persons with disabilities. The discrimination alleged should be of a significant nature, involve substantial infringement of rights of persons with disabilities and be one that raises issues of public interest.

  9. MEASURES REQUIRED OF PUBLIC AND GOVERNMENT AGENCIES

    • Proprietors of public buildings are required to ensure that such buildings are adapted to cater for the needs of persons with disabilities as may be specified by the Council. This is an order that was required to be complied with within 5 years after the coming into operation of the Act. (Meaning by 17th June 2009) Section 22
    • Operators of public vehicles are also required to adapt it to suit such persons in accordance with the guidance provided by the National Council for Persons with Disabilities. This was to be complied with within two years of the commencement of the Act. (Meaning by 17th June 2006) section 23
    • All television stations are required to provide sign language inset, insert subtitles in all newscasts and educational programs, and in all programs that are of national significance. Section 39
    • Such exemption or deducted be recommended by the National Council for Persons with Disabilities and approved by the appropriate Government authority.
      • Compliance with conditions the Cabinet Secretary may include in the regulations
      • Provision for it should be included in the allocation of public resources
      •  
      • With regard to persons providing public telephone services, they are required to install and maintain telephone devices for persons with hearing disabilities and tactile marks on telephone sets to enable persons with visual disabilities to communicate through the telephone system. Section 40
      • General requirements with regard to exemptions in sections, 12, 16, 35, 36(1) and 40. Section 42
        •  
        • Such exemption or deducted be recommended by the National Council for Persons with Disabilities and approved by the appropriate Government authority.
    • Compliance with conditions the Cabinet Secretary may include in the regulations
    • Provision for it should be included in the allocation of public resources
  1. The National Council for Persons with Disabilities  can request the Attorney General to take appropriate legal action if it believes that a person or group is engaged in discriminatory acts. Any person who is aggrieved by such discrimination may therefore report to the Council.
  2. A person with disability that is aggrieved may institute legal proceedings in any relevant court depending on the issue at hand. 
  3. The High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened Article 165 (3) (b) of the Constitution. Such persons may therefore seek redress in the High Court if the right violated is included in the Bill of Rights.

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