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The legal issues that arise in relation to disabled people at their work places in Kenya

Meaning of disability- section 2 of the Employment Act

A physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on a person’s social and economic participation.

Assistive devices

Means implements, tools and specialized services (including the services of qualified interpreters for the deaf and qualified teachers for the blind) provided to persons with disabilities to assist them in education, employment or other activities.

Law and policies protecting disabled people in Kenya

1.    Constitution of Kenya, 2010 :

• Prohibits discrimination on the grounds of health safety and disability unlike the 1969 Constitution of Kenya.

2.    The Persons With Disabilities Act, 2003:

• A comprehensive law covering rights, rehabilitation and equal opportunities for people with disabilities. It creates the National Council of People with Disabilities as a statutory organ to oversee the welfare of persons with disabilities. The law also requires that both public and private sector employers reserve 5 per cent of jobs for disabled persons.

3.    National Social Security Fund Act,1965 (no.5 of 1997):

• Amended in 2001.
• Contains a provision which states that physical and mental disabilities shall not be considered as leading to work incapacity.

4.    Workmen’s Compensation Act- Chapter 236, Laws of Kenya:

• The Act recognizes disability but only where it has been acquired during and in the course of work.

5.    Vision 2030:

• A long-term project that aims at reducing the poverty level in Kenya thus covering the rights of disabled persons and ensuring their protection so as to attain the vision 2030.

Article 27 of the Constitution of Kenya, 2010 provides for equality and freedom from discrimination. Article 27(1) outlines that every person is equal before the law and has the right to equal protection and equal benefit of the law. Section 27(4) & (5) protects all persons from discrimination either directly or indirectly by the state or any person on any ground and that includes even persons with disabilities.

Under article 54(1) of the Constitution of Kenya, 2010 a person with any disability is entitled to:

1. Be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning.
2. Reasonable access to all places, public transport and information.
3. Use sign language, Braille or other appropriate means of communication.
4. Access materials and devices to overcome constraints arising from the person’s disability.

54(2) - The state shall ensure the progressive implementation of the principle that at least 5% of the members of public in elective and appointive bodies are persons with disabilities.

As provided for in article 41 every person has the right to enjoy fair labour practices. The disabled people too have a right to enjoy every other right that workers are entitled to at their work places. This is supported by section 5 of the Employment Act which ensures that there is no discrimination in employment.

Persons with Disabilities Act, 2003

In regard to section 12 of the act, no person shall deny a person with a disability to access to opportunities for suitable employment. A qualified employee with a disability shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as qualified able-bodied employees.

An employee with a disability shall be entitled to exemption from tax on all income accruing from his employment. Section 21 of the act, gives that persons with disabilities are entitled to a barrier-free and disability-friendly environment to enable them to have access to buildings, roads and other social amenities and assistive devices and other equipment to promote their mobility. A proprietor of a public building shall adapt it to suit persons with disabilities in such manner as specified by the National Council for Persons with Disability.

Physical access for People with Disabilities means access to buildings, public spaces, and any other place a person might need to go for work, play, business, services, etc. Physical access includes things like accessible routes, curb ramps, parking and passenger loading zones, elevators, signage, entrances and restroom accommodations.

Discrimination in hiring on the basis of disability is illegal in the United States and many other countries as long as the disability doesn’t interfere with a candidate’s ability to perform the tasks of the job in question. Many countries have either passed specific laws concerning the rights of people with disabilities, or have enshrined those rights in their constitutions. People with Disabilities have the same rights as other able-bodied persons, including the right to fully participate in community life. Many people with disabilities are competent at important jobs, and some do remarkable work. Thus, denying these people access to employment wastes human resources and makes the community poorer.

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