The Disabled Must Be Visible Law

By Lawrence Murugu Mute
Published February 2nd 2003 in The East African Standard


As we travelled back to Nairobi on the day that Mwai Kibaki was inaugurated the third President of Kenya, my fellow travellers thought it incredibly hilarious when I quipped that Kenya's electorate had, albeit by default, voted for a president who had a disability.

The disabled, I said, would take advantage of that by lobbying for immediate passage of the Persons With Disabilities Bill, 2002, while the President was still using a wheel-chair.

These few weeks later, and now that the National Rainbow Coalition (Narc's) accession to power is complete, two matters are becoming starkly obvious. First, despite Narc's welcome victory, the new governors have overlooked in total the necessity for people with disabilities to be specifically represented in Parliament.

The President being removed from his car onto a wheelchair. This was a first-hand experience of what being physically challenged feels like.

The rather obvious way in which a savvy political party would have harnessed the synergies of all Kenyans to greatest effect would have been by including in Parliament the whole variety of Kenyan interests and sectors - from women and men, Africans and non-Africans, ethnic minorities and persons with disabilities. In the case of Narc and the country generally, this would have served both a legal as well as a political interest.

Section 33 of the Constitution requires the President to appoint 12 nominated Members of Parliament to represent special interests (sub-section 1). In doing this, the President exercises a mere formalisation role since each parliamentary party nominates candidates for appointment by the President on the basis of the proportion of such party's seats in the National Assembly. While making their nominations, parties are required to take account of the principle of gender equality (sub-section 3).

It is very commendable that in nominating its MPs, Narc became a trail blazer by choosing women to fill five of the seven seats apportioned to it. Significant as this is, however, Narc's nominations still fail the litmus test of representation of special interests.

Clearly, considering the mind-boggling lobbying which accompanied the nominations process, it is even arguable that apart from introducing the gender factor into the nominations equation, Narc's process was fraught with patronage and payback time mentality, and that merit and broadest representation were not particularly high on the agenda.

In this regard, it is telling that a broad-based coalition of parties and interests like Narc couldn't care enough to find a selection of candidates to cover the broad mosaic of race, gender, ethnicity and minorities that constitutes contemporary Kenya.

It is expected, and indeed it is the demand of the Kenyans who voted Narc into office, that its policies be based on sound thinking. In that case, Narc must realise that the logic which enabled them to allocate over half their nominated seats to women is the same logic which should have spurred them to allot some seats to people with disabilities and other interest groups.

As things stand now, the Persons with Disabilities Bill, 2002, will very likely still be passed since anyway successful legislation requires cross-sectoral and cross-party lobbying and support. But the subjective realities of disability are best understood by people with disabilities themselves - only a physically disabled pedestrian can understand how harrowing using a bus or matatu in Kenya is; only a hard-of-hearing student can appreciate the difficulty of following a lecture in a class without sign lan1guage facilities; only a visually impaired person can articulate the feeling of hurt and anger which envelopes her when her male colleagues determine that she cannot be a wife and mother!

When Narc cares to research these matters, it will realise that Tony Blair's redoubtable Minister for Home Affairs, David Blanket, is blind; that Professor Stephen Hawkins, a physicist at the top of the tree, is physically disabled; and that brilliant academics, great lawyers, and even originators of champagne were and are disabled. So, I still wonder whether I have to wait for the next motor accident in order to inform my sighted colleagues that Kenya has a parliamentarian who is disabled.

This leads me to the second matter vis-a-vis persons with disabilities which has become patently clear owing to the 2002 General Election. If the party primaries held prior to the campaigns taught Kenyans anything, it is that hard work and dedication by a potential candidate could on the nomination days amount to little.

Invariably, Narc, Kanu and Ford-People used ununiform criteria to "pick" candidates to stand at the General Elections. Calibre, quality and hard work played second fiddle to considerations such as profile, influence (including brute force) and money. In that kind of situation, many candidates with disabilities were shunted out of the possibility of gaining elective offices as parliamentarians or civic leaders. Indeed, on a related point, only Narc's incredible election machine ensured that Mwai Kibaki's mo1tor accident did not undermine his endeavour to become president of Kenya.

This scenario confirms that the Draft Constitution which was unveiled prior to the 2002 General Election does not make adequate provisions to facilitate the proper and effective representation of persons with disabilities.

Sub-article 5 of article 76 of the Draft Constitution establishes the principle that elections will ensure the fair representation of women, people with disabilities and minorities. The Draft Constitution then provides the basis for actualising this principle, in the case of women, by establishing a mechanism for their representation.

Under sub-article 2 of article 77, political parties are required to ensure that at least one third of its candidates for direct elections are women, and that at least 50 percent of its candidates for proportional representation at public elections are women. In a provision which is pretty garbled, this sub-article proceeds to provide that the remaining 50 percent of candidates in elections involving proportional representation shall be constituted by persons with disabilities, the youth, ethnic minorities1 and other interest groups.

Apart from the inexplicable nature of that provision, (it is not clear whether or not the intention is to park elective bodies with women, the disabled, the youth and minorities) no peremptory instruction that political parties must include specified numbers of people with disabilities as candidates for elective positions is made.

The Draft Constitution sets an unfortunate precedent which the Narc government seems to be following. It makes elaborate provisions respecting women's representation while making no substantive provisions regarding the representation of other communities with special interests.

Consequently, article 104 provides that of 100 members of the National Council (the second house of Parliament), 30 shall be women candidates specifically chosen by electors in multi-member province-based constituencies. The mixed electoral system proposed in the Draft Constitution is commendable.

Yet, Article 107 merely requires that the party lists of candidates standing for elective positions should alternate between male and female candidates. No specific requirement is set out respecting other special interests, the requirement merely being that political parties "take into account the need for representation of the disabled, youth and minorities".

Even where a political party feels obliged to include non-Africans or people with disabilities on its list, it could simply rank them so far-back that the likelihood of these candidates winning seats would be low.

By opting not to make specific provisions for elective seats of persons with disabilities, the Draft Constitution leaves candidates and electors who are disabled in the hands of party operatives such as the current crop of Narc, Kanu and Ford-People cadres.

That is hardly good enough! A far more detailed framework for the representation of special interest groups must be thrashed out at the National Constitutional Conference. And in the meantime if, or is it when, delegations begin to troop to State House, the simple request of the President by the delegation of persons with disabilities will be that he should keep using the wheel-chair or crutch so that we may remain visible.

Perhaps that way, the Minister of Justice and Constitutional Affairs will meet lesser resistance when he eventually tables the Persons with Disabilities Bill for approval by Cabinet and passage by Parliament. I should think that the President will sign it into law!

The writer, a Nairobi-based lawyer working for Clarion, is visually impaired.