The Conference of States Parties to the Convention on the Rights of Persons with
Disabilities (CRDP) held its 11th session from 12th to 14th June 2018 at the
United Nations Headquarters in New York. The sessions were convened under the overarching theme: “Leaving no one behind through the full implementation of the Convention on the Rights of Persons with Disabilities”.
The Conference had three round tables:
- Roundtable One: National fiscal space, public-private partnerships and international cooperation for strengthening the implementation of the CRPD. Read here
- Roundtable Two: Women and girls with disabilities. Read here
- Roundtable Three: Political participation and equal recognition before the law. Read here
I had the opportunity to participate in this conference by attending the various side events where themes covered diverse topics including: the UK Global Disability Summit; sexual and reproductive health and rights; the rights of migrants and refugees with disabilities, and persons with disabilities in conflict; and living independently and being included in the community. You can find the full list of side events on the IDA website.
The Civil Society forum was held on the 11th June 2018 where there were general discussions on Articles 4(3) and 33(3). Watch the morning session of the Civil Society CRPD Forum Watch the afternoon sessions of the Civil Society CRPD Forum. Finally I was privileged to participate as a Panel Speaker in Roundtable Three: Political participation and equal recognition before the law. Watch round table three.
Important to note is that since the entry into force of the Convention on the Rights of Persons with Disabilities (CRPD), persons with disabilities and their representative organizations are involved and consulted in the planning and in the formal proceedings of the Conference of States Parties (COSP) to the CRPD. Persons with disabilities were engaged as panelist and co-chairs on all round tables as well as key speakers in the opening and closing sessions.
United Disabled persons of Kenya is the umbrella federation of organizations of persons with disabilities in Kenya. It is a civil society organization and has, since 1989 worked to enhance full participation and inclusion of persons with disabilities in all spheres of life including political, social and economic aspects. Such interventions have aimed at ensuring inclusive policy formulation and implementation as well as monitoring the implementation of UNCRPD. Currently, UDPK and partners Light for the World (LFTW) and the Federation of Women Lawyers in Kenya (FIDA) are implementing a project that aims at enhancing mainstreaming issues of women and girls with disabilities in development at national and county levels and that women with disabilities participate meaningfully in the various governance processes.
Historically and contemporary, persons with disabilities have been excluded from exercising a variety of their human rights, including the right to political participation. The Convention on the Rights of Persons with Disabilities (CRPD) in its Article 29 addresses the design and implementation of an electoral process that is non-discriminatory.
Therein, States are required to provide voters with disability-related accommodations and other facilitative measures to enable their equal right to vote. However, to date, in many countries in the developing world, there has been little attention paid to the voting rights of persons with disabilities.
In Kenya for instance, key barriers include an inaccessible inbuilt environment including polling stations; negative societal attitudes towards persons with disabilities, communication related barriers, little description and recognition of reasonable accommodation and legal capacity, lack of accountability, impunity and blatant refusal to adhere to set laws that govern participation in electoral processes.
Why do we need to participate?
Kenya, just like many other countries, politics is about power which in turn influences allocation of resources and services at both national and county/local level. Kenya has a decentralized system of government with national and 47 county governments with outlined functions and mandate. One of the key reasons why the country chose this form of governance is that marginalized communities (including persons with disabilities) felt that they continued to be excluded under the system of the central government.
With decentralized governance, allocation of resources and provision of services occurs at the national and county (local) level -providing great opportunities for inclusion of persons with disabilities in these two levels. Both levels have legislative and executive arms of government.
The Kenyan constitution envisioned representation of persons with disabilities in all these levels of governance processes so that they can exercise their right to representation.
Existence of legal frameworks to promote participation
Article 54 of the Kenya Constitution states that persons with disabilities must be treated with dignity (though we witness immense stereotyping and demeaning of persons with disabilities within the community, amongst decision and policy makers).
The constitution further provides that persons with disabilities must have reasonable access to all places including public transport and information, use of sign language, braille and other forms of accessible communication (our public transport is inaccessible, many public buildings including schools which become polling stations during elections are also not accessible, and there are no tactile balloting procedures for persons with visual impairments).
Additionally, the constitution sets a quota system envisioning 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. Laws to actualize this have never been set. There are no parameters to measure the progression nor is there a baseline set. The article has had little impact in enhancing inclusion of persons with disabilities. In local and national assemblies, the law further sets aside nominative positions for representation of persons with disabilities as an affirmative measure.
The law has obviously played to increase representation of persons with disabilities but a gap still exist between legal provisions and actual practice.
The existing quota system has led to an overrepresentation of only persons with certain types of disabilities whereas others like persons with psychosocial and intellectual disabilities, deaf people, and persons with deafblindness are not represented. These groups continue to be left behind and there is evidence that the gap continues to widen.
Unfortunately, legal provisions are not adhered to by various players including political parties e.g. there was a drop of 48% in representation of persons with disabilities in the county/local assemblies in 2017 general elections compared to the 2013 elections. Seventeen out of the 47 counties have no nominees who are persons with disabilities as provided by law where at least two should be persons with disabilities.
Additionally, there exists a conflict in the law. Certain laws deny the recognition and exercise of legal capacity on an equal basis with others. For instance, Article 83. (1) of the Kenya Constitution states that “A person qualifies for registration as a voter at elections or referenda if the person—(b) is not declared to be of unsound mind.”
This raises the question: What is the interface between mental illness, intellectual disability and being of unsound mind? Should persons with mental illness or intellectual disability be disenfranchised? Indeed, in the last election, we have reported cases where a polling officer, on the day of election, prevented persons with disabilities from voting alleging that they are of “unsound mind”.
The work by the Elections Management Bodies to design accessible Voter Education materials and in using accessible modes of communication through partnerships with DPOs representing the diversities in disability – women, youth, type of disability, literacy levels etc.
There also was an increase in provision of aspects of reasonable accommodation like sign language interpretations in TV communications, during public rallies, ramps and booths accessible to wheelchairs users, E-media adverts have sign language interpretation inserts or legible subtitles. Regulations were also developed that promote new concepts of inclusion such as assisted voting for persons with intellectual and psycho-social disabilities.
There were deliberate measures to portray persons with disabilities as active participants in electioneering processes by for example ensuring materials with displays (e.g. drawings, pictures) reflected positively on persons with disabilities.
Again, for the first time we had an increased number (over 20) of persons with disabilities running for competitive political positions. In some conservative communities we had someone who is blind elected, another person with albinism and a woman who is a wheelchair user and another using crutches were elected for various positions. This is a clear measure of change of attitude in the community.
There are also pilot projects being implemented by organizations of persons with intellectual disabilities and psychosocial disabilities on the implementation of Article 12 within the African context while at the same time providing a body of evidence on supported decision making which is critical towards supporting the law reform process on recognition of legal capacity for persons with disabilities on an equal basis with others.
We also witnessed work by women led DPOs to influence policy to promote the participations of women with disabilities in electoral processes and in addition the United Disabled Persons of Kenya is a member of the main domestic observer mission whereby in 2017 persons with different kinds of disabilities formed part of the teams conducting elections observations.
There is need to repeal laws that are discriminatory and that continue to deny the right to legal capacity and recognize that when one is denied reasonable accommodation, then, that is a form of discrimination. There is also need to formulate guidelines and create public awareness on supported decision-making mechanisms for persons with intellectual and psychosocial disabilities.
Stringent measures need also to be put in place to curb politically instigated violence which has contributed to lack of interest in politics by persons with disabilities.
Importantly also there is need to disaggregate data on the implementation of the quota system to ascertain the number of persons with disabilities, women or men and different types of impairment groups who are benefitting from these policy frameworks.
Further, there is need to provide the necessary funding to organizations of persons with psychosocial disabilities and other relevant partners to implement the paradigm shift on supported decision making in addition to creating awareness on the right to legal capacity for persons with psychosocial disabilities and intellectual disabilities.
Presentation by Mr. Anderson Gitonga, Executive Director United Disabled Persons of Kenya during the Conference of State Parties in New York, 12th-14th June 2018