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The East African Standard
February 2,
2003
Summary:
Editorial advocating more specific standards for
people with disabilities to be represented in the Kenyan Parliament.
The Disabled Must Be Visible By
Law
By Lawrence Murugu Mute
February 2, 2003
Nairobi 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. |
