1. Patrick O. Onyango - Paddy | REFLECTIONS ON THE PERSONS WITH DISABILITIES BILL, 2012 1
Patrick O. Onyango - Paddy
REFLECTIONS ON THE PERSONS WITH DISABILITIES BILL, 2012
Senate Public Hearings
Thursday 7th
May 2015
Simba Hall, KICC
NAIROBI
{DELIVERED VIA EMAIL TO THE CLERK OF SENATE & NATIONAL ASSEMBLY}
1. Introduction
I am a person with physical disability arising from poliomyelitis at the age of two and half years. In spite
of being enabled differently in this manner, I continue to contribute to the transformation of Kenya in a
number of ways, including in public life as member of Kenyan Civil Society. I have interacted with the
development of the disability law in Kenya for over two decades predating the enactment of the Persons
With Disabilities Act (N0. 14) of 2003 and which is the subject for repeal and re-enactment by the ‘The
Persons with Disabilities Bill, 2012’. Further, in the cause of my engagements in the reform struggle, I
was subjected to two months of Torture, Cruel, Inhuman and Degrading Treatment at the infamous
Nyayo House Torture Chambers and thereafter Detained without Trial for close to three years. This is
testimony to the reality that Kenyans across the board who are enabled differently are equal members
of society and occasionally suffer human rights violations on equal basis with others. It is this reality
which inspired the need for specific provision for Article 54 in the Constitution.
The aforesaid contribution transcends the period of agitation for comprehensive people-driven
constitutional reforms and the promulgation of the Constitution of Kenya 2010 on 27th
August 2010. I
was a delegate at the 2002 -2004 National Constitutional Conference at the Bomas of Kenya which
resulted in the ‘BOMAS DRAFT’. Together with others, we had a strong Disability Lobby Caucus during
the Bomas process. I have previously served as a member of the National Council for Persons with
Disabilities from 2009 to 2011. I have had the opportunity to serve as a member of the Task Force on
Devolved Government (TFDG) from 2010 – 2012; which was established by the Government of Kenya to
advice on operationalization of Devolution as prescribed by the Constitution. I am currently a member
of the Disability Caucus on Implementation of the Constitution (DCIC). I am rendering this reflection on
the Bill both as citizen who is enabled differently and as member of DCIC.
During my tour of duty at the Council, I was a member of the Legal and Registration Committee.
Immediately upon promulgation of the Constitution, the Legal Committee of the Council embarked on a
consultative process of reviewing the PWDA 2003 to align it with the Constitution of Kenya 2010,
regional and international treaties and conventions including the United Nations Convention on the
Rights of Persons with Disabilities (UNCRPD). In all aspects, the Bill captures the journey of its review
since 2010, when I was a member of the Legal Committee of the Council. There are however some
general and specific concerns as indicated.

2. Patrick O. Onyango - Paddy | REFLECTIONS ON THE PERSONS WITH DISABILITIES BILL, 2012 2
1. General Observations
Policy interfacing
1.1 The Bill as published does not appear to have been sufficiently informed by the National Policy
on Persons with Disability 2006 as reviewed as well as the Sessional Paper on Persons with
Disabilities 2006. There will be conflict between policy intentions and statutory provisions
during implementation. The Bill should be weighed against the policy options before final
enactment. The Senate therefore needs to satisfy itself that there is congruence between the
policies and contents of the Bill.
Drafting and coherence
1.2 The drafting and language are rather clumsy although the intent is there. In Kenya’s legislative
drafting tradition we do not have ‘Table of Contents’ but rather ‘Arrangement of Sections’. We
use ‘Clauses’ where ‘Articles’ are the main provisions usually in a superior law such as the
Constitution or in regional and international treaties such as the Convention on the Rights of
Persons with Disabilities. We use ‘Sections’ and ‘Sub-sections’ in ordinary statutes.
Nomenclature
1.3 Although the Constitution and UNCRPD has the terminology ‘Persons with Disability’ there is
emerging universal acceptance that in itself the term re-enforces stigmatization and exclusion.
The term that is emerging is ‘Differently Enabled’ This has not been codified and perhaps Kenya
should be a trend setter in this regard.
1.4 The Bill uses ‘Access’ and ‘Reasonable Accommodation’ interchangeably. There is an emerging
trend for the use of ‘Accommodation’ as an all inclusive term. In addition the holistic principle
of ‘INCLUSION’ appear not have informed drafting of the Bill.
2. Specific Observations
2.1 Section 1: Short Title. The commencement date should not be left to the discretionary whims of
the Cabinet Secretary. It will be recalled that the initial law was enacted in 2003, but the
disability movement had to fight for its operationalization for three years until 2006! My view is
that all sections of the amended Act should be implemented forthwith. The language used in
setting parameters appear to have been influenced by those opposed to enforcement of
adjustment orders which lapsed three years ago under the current Act. The commencement
should be time-bound. The Cabinet Secretary should operationalize the Act in its entirety within
14 days of enactment. This will leave no room for mischief in compliance.
2.2 Section 2: Interpretation. The term ‘Public Vehicle’ should also include ‘Air Travel’ the
embarrassment occasioned Differently Enabled travelers is well document. The recent travails of
Hon. Bishop Kosgey come to mind.

3. Patrick O. Onyango - Paddy | REFLECTIONS ON THE PERSONS WITH DISABILITIES BILL, 2012 3
2.3 Section 4: Powers of the Council. The Council should have quasi-executive authority. Issuing of
Adjustment Orders should therefore be reflected here as a power in terms of inserting a new
sub-section (a) with the following words “to issue and enforce adjustment orders in respect of
any matter relating to accommodation of persons with disabilities” How the Council ensures
enforcement should be elaborated in the Regulations on Adjustment Orders.
2.4 The Council should be given power ‘to establish such departments and units for service delivery
as may from time to time become necessary’ The Bill subsumes the day –to- day organizational
infrastructure of the Council in the Committees of the Council and the Office of Executive
Director without giving the Director the mandate of establishing functional unit and/or
Departments.
2.5 Section 5: Functions of the Council. There should be an express provision for a function “to
Accredit Kenya Sign Language Interpreters and/or service providers” Currently there is no
recognized certification mechanism for Kenya Sign Language Interpreters, although there is a
programme by the University of Nairobi on the same. This Accreditation will ensure uniform
standards and norms for Signers. We are all aware of the embarrassment that South Africa had
during the funeral service for Nelson Mandela. This could also be extended to teachers for the
Deaf and the visually challenged. Although the teachers are certified by the Ministry of
Education and TSC, the Council should have an additional role in accrediting the certified
teachers.
2.6 Section 15: County Disability Councils. Article 185 (2) of the Constitution of Kenya 2010
provides that “A county assembly may make any laws that are necessary for, or incidental to,
the effective performance of the functions and exercise of the powers of the county
government under the Fourth Schedule.” Article 186 provides as follows: “(1) Except as
otherwise provided by this Constitution, the functions and powers of the national government
and the county governments, respectively, are as set out in the Fourth Schedule.(2) A function
or power that is conferred on more than one level of government is a function or power within
the concurrent jurisdiction of each of those levels of government. (3) A function or power not
assigned by this Constitution or national legislation to a county is a function or power of the
national government.” On the basis of these provisos, the National Council is a shared
institution. It is therefore important not leave establishment County Disability Councils to the
discretion of the National Government as currently framed in the Bill. It is imperative that the
letter and spirit contemplated in Article 6 (2) and Article 189 of the Constitution. In this regard,
in establishing the County Disability Councils, the County Government MUST be consulted. I
propose that the County Assembly ‘domesticates’ this Section of the Bill by through enacting an
enabling County legislation for its establishment and composition. Such a County Assembly law
would for example require that members of the County Disability Council are appointed in the
same manner as the National Council but with the approval of the County Assembly. This route
will avoid conflict of laws anticipated in Article 191 of the Constitution.

4. Patrick O. Onyango - Paddy | REFLECTIONS ON THE PERSONS WITH DISABILITIES BILL, 2012 4
2.7 44. Political party list to include Persons with Disabilities. The Bill does not speak expressively
to the benefits accruing to PWDs from Article 82 (c), Article 83 (3) and Article 100. On the
Political Party listing, the Bill should be express in either the main body of the text or in the
Regulations a requirement that the Council issues Certification as to the disability of a candidate
for nomination. This could be one of the powers of the Council. The IEBC, the Elections and the
Political Parties, Act should be likewise amended to reflect this requirement. In Nyandarua
County there is a nominated MCA who is NOT a PWD within the definition of the Act.
2.8 PART V- THE NATIONAL COUNCIL FOR PERSONS WITH DISABILITIES DEVELOPMENT FUND
Establishment of the Fund. The Fund should be empowered under this Part to establish or enter
into partnerships with recognized and reputable institutions to establish an ‘Endowment
Entreprise’ or funds similar to Women’s and Youth Enterprise entities for the economic
development and/or empowerment of PWDs.
It is my view that these observations will be taken on record to inform further improvements to the Bill
so that the collective interests of Differently Enabled Kenyans are better served by statute.
PATRICK O. ONYANGO – PADDY
Cell: +254 720 784 952