A Review Of The Law Relating To Political Participation Of Persons With Disabilities In Kenya

Abstract

Discussions on the human rights have been on the increase globally since the end of World War II. The main focus of discussions has been on the protection of human rights and prohibiting the discrimination against persons with disabilities (PWDs). International treaties and laws such as Universal Declaration of Human Rights (UDHR), United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and International Covenant on Economic, Social and Cultural Rights (ICESCR) have been ratified and included in various Constitutions of many countries including Kenya which adopted international law in her constitutional provisions. Despite the provisions in Constitution, laws and regulations respect of human rights and protection of the PWDs in regard to political participation has not been achieved in Kenya. This study sought to examine political participation of PWDs in Kenya based on the objectives to establish the extent of political participation of PWDs in Kenya, analyze the legal framework of political participation of PWDs in Kenya, identify the challenges faced by PWDs in relation to political participation in Kenya and to recommend measures necessary for improved political participation of PWDs in Kenya. Theory of justice and human rights based theory were applied to guide the study. Research methodology used included desk research design to examine the laws concerning political participation of PWDs in Kenya. Research variables were: independent variables which were relevant laws governing practice while dependent variables were aspects of political participation by PWDs. The target population in the study was the Kenyan PWDs. Law library was accessed for purposes of obtaining both primary and secondary data. The researcher collected data by methods including data mining from available documents, journal papers, books, periodicals, text books, law books, journals and internet sources, laws, case laws, theses and various government and institutional publications, among others. Reliability and validity analysis for the research was done to ensure consistency, accuracy and predictability and quality of the research. Validity analysis ensured that the analysis techniques were free from error and that research analyzed what it was intended to analyze. Data analysis was done using qualitative approaches such as qualitative legal analysis methods used were as per standards of legal arguments and best practices of doctrinal and analytical research. Research findings revealed that PWDs suffer political, economic and social segregation and are not in a position to participate in politics like other citizens. It was also found that there exist discriminatory processes within the government limit or badly label PWDs. Requirements of membership with the disability organization as a pre-condition for certification of PWD was found to be discriminatory against their political participation of PWDs. Also, requirements for tax exemption for PWDs were found as another barrier. It was found out that though Constitution provides for political participation of PWDs in Kenya various parts of the Constitution have been found to limit political participation of PWDs. Findings further show that weaknesses of Persons with Disabilities Act 2003 in that it does not give protection against unnecessary limitations that come in the name of court interpretations of legal capacity. The research found out that the additional requirements for PWDs in Elections (Party Primaries and Party Lists) regulations, 2017 are discriminative. Findings showed that it was difficult to determine legal capacity of PWDs. There has been over-reliance on health approach to determination of legal capacity of PWDs by the courts. It is recommended that in order to encourage full participation of PWDs in political and public life the following measures should be taken to amend law, encourage implementation of Constitutional quarter of the 5% of jobs, public appointments and to create free environment to encourage political participation of PWDs.