Confronting Double Marginalization: A Brief for Women Living with Disabilities in Kenya

Confronting Double Marginalization

This is a case of strengthening the weak, speaking for the voiceless; lifting the down trodden. It is about seeking a better proportionate society. It is about the values of fairness, equity and equality. As I write to the Courts of public opinion, to policy makers, to Government and today’s intellectuals; I only hope to make a case for these over-burdened and yet forgotten Kenyan population. I must state that I am not seeking sympathy or charity, rather, I  seek to illuminate the subject so much so as to illicit responses from a people who have decided to sit on their conscience and a Government that sees no harm in dragging their feet on matters women living with disability. I therefore hope that by the time I put a full stop to this paper, I will have put forth a convincing argument and offered solutions on how to confront the burden of double marginalization facing women living with disability in Kenya. Through this brief, I therefore seek to define the concept of marginalization, discuss the philosophical angle of the concept and finally look at marginalization through different subjects in the Kenyan society today.

Marginalization is defined as the treatment of a person or a group of people as insignificant or peripheral. Women living with disability are marginalized for reasons of being the “weaker sex” and for being “disabled”. There are a number of reasons advanced for this however, cultural and political reasons stand out. It has been asserted that nature and nurture breed’s power which in turn creates the majority and minority. The political solution for resolving the resultant conflict is affirmative action which unfortunately is seen as a favour rather than a right. There are other theories such as the economic theory of Neoliberalism that attribute marginalization to free market. Women with disabilities are disadvantaged due to inter-alia access and economic capacity. The theory of inclusion also recognizes the differences in the society and the cultural constrains as a result of marginalization.

International law through Article 6 of the Convention on the Rights of Persons with disabilities recognizes that girls and women with disabilities face multiple and intersecting forms of discrimination. The preamble focuses on particular susceptibility that these women have to contend with. They include; violence, abuse, negligence and maltreatment.

The Constitution of Kenya (2010) is based on the values of equity and non-discrimination.

This is a significant improvement from Kenya’s previous Constitution under which a person could not get justice for discrimination on the basis of being a woman, person living with disability or both. The preamble of the Kenyan Constitution (2010) therefore highlights equity as a value of both governance as well as society in Kenya. The same principle is found in Article 10 (b). The Constitution of Kenya (2010) is further particular in Article 20(4) (a) on promotion and protection on the values of equity and equality. This is a qualification of Article 19(3) which gives the rights within the Constitution to individuals rather than the State. The Bill of Rights also recognizes vulnerable groups, therein women with disabilities in Article 21(3) and creates an obligation for the State to protect them.

Another departure from the colonial document is Article 27 that deals with issues of discrimination. It however further goes to specifically admonish discrimination on grounds of gender and disability in Article 27 (4). Affirmative action is a right and obligation of the State as provided for under Article 27 (6). It is meant to ensure that these marginalized groups such as women living with disabilities participate in matters of governance, education, get health services amongst others. Article 56 creates an extra safety net as it classifies minority groups while Articles 27 (4) and (5) demonizes both direct and indirect discrimination. The Parent Act of parliament is also against discrimination and protection of women with disabilities in different aspects of life.

As much as the Constitution of Kenya (2010) is very expansive on disability rights, essential issues such as decent and accessible accommodations are absent. The law is however pretty good. My argument therefore still remains that with regards to women living with disability, these laws have largely remained beautiful words on paper. The next part of this paper is to look through different aspects of their lives which include: civic and political life and participation, education, employment, health and reproductive health services and offences against women living with disabilities in Kenya (physical vulnerability).

Participation of Women with Disabilities in Civic and Political life in Kenya

Participation of women living with disability in civic and political life in Kenya has two main components thus; voting and representation. Article 38 of the Constitution of Kenya (2010) gives these people the right to vote as well as participate in politics.

The electoral management body is therefore under obligation to ensure that women with disabilities, who are Kenyan citizens and of sound minds are facilitated. Although the IEBC has always made an attempt to facilitate this, there is still a lot that needs to be done.

As a commission; the IEBC always tends to ignore women who especially have mobility challenges. It is strange that when conducting census or immunization programs, the concerned institutions are wise enough to be mobile but it is so hard when it comes to the registration of voters and voting itself. This is besides the fact that some of the polling stations are inaccessible.

The Constitution of Kenya (2010) in Article 91 demands of political parties to reflect the face of Kenya. This means that all political parties ought to embrace these women and articulate their issues. As much as most political parties have a population of PwD’s, my concern is with their cosmetic nature. Which of these political parties does disability advocacy? Which political party has presented a policy paper or an implementation framework on disability rights? Which of these political parties keeps disability institutions in check? The answer to all these questions is most likely –none; hence the need for this paper.

Representation of women with disabilities is the other side of the coin. As much as the definition of representation is amorphous, political representation always means three things, advocacy on issues, legislation and implementation. The fight for affirmative action in Kenya by women can be traced back to 1961.  This is when a few women nominated to the Legislative Assembly began the fight for greater women representation. The momentum did not really pick up till the 1990’s; then known as the great awakening. This propelled the international fora such as the Beijing conference in 1995. Through the years issues of gender equality and affirmative actions have been canvassed, however, women with disabilities have always been in the periphery. The Constitution of Kenya, 2010 is concerned about women living with disability in leadership hence reserved seats through nomination as provide for in Articles 97 (1) (c); 98, (1), (a), (b), (c) and 177 (b) (c). This is perhaps an affirmation to the statistics that no woman living with disability has ever been elected to political office. This is attributed to factors like lack of finances, violence and cultural stigma.

The bigger question is whether political representation for women living with disabilities as it is, is working. How many pieces of legislations have been sponsored by these women who have the privilege to represent the others? I am not aware of any woman with disability who is an active advocate of matters like education, health, reproductive health or sexual and gender based violence. There is a big concern that as much as these women are living with disabilities, they may not be in touch with their constituency. I appreciate patience but as Kenya lets systems grow organically, perhaps it’s time to give women living with disability a chance to elect their own leaders as opposed to nominations from political parties.

Barriers to Education for Girls and Women Living with Disability in Kenya 

Women and girls with disabilities in Kenya face a myriad of challenges which result in low numbers of the educated. Statistically, only 41% of girls with disabilities complete primary school, compared to 50% of boys and men with disabilities. The percentages get lower with regards to secondary school and higher education.

Internationally, the UN Convention on the Social, Cultural and Economic Rights recognizes the Right to Education in Article 13. Article 13 (2) prescribes primary, secondary, higher education and fundamental education for all. The convention is further elaborate on development of schools which is fit for women with disabilities. Article 24 of the UN Convention on Person with Disabilities is elaborate on the right to basic education.

This is a means to ensure dignity and a progressive life for PWDs. The State has obligation to ensure that educational institutions are accessible. The law contemplates adjustment of curriculum so as to fit PwDs. The same rights are stated in the Constitution of Kenya 2010. Article 54 (1) (b) gives the right to access educational institutions and facilities that may foster compatibility. The Basic Education Act provides for free and compulsory education in Section 24. It goes further in Section 44 to regulate special needs education which applies to girls and women with disabilities. Section 18 and 19 of the Persons with Disabilities Act also gives the right to education and free education to persons with disabilities.

In spite of these progressive laws, the path towards free compulsory education is still a work in progress. This is because of a number of reasons besides slow implementation of the laws. Women and girls living with disabilities face higher level of poverty. Researchers in this area attribute this to structural inequality in resource distribution. The few of these women who manage to get to higher education have asserted that the grants and loans by Government are still not enough for them to study comfortably. Risk of sexual abuse and violence is another challenge for women and girls with disabilities. This is because they are physically vulnerable. Women and girls living with disabilities are ‘easy prey’. Discrimination is the other challenge. Women with disabilities are discriminated against and stigmatised. There is always a feeling that PwDs and more so women are not capable of grasping academic content or leadership.  A good example is in Kenyatta University where a special seat is created because PwDs are seen as incapable of leadership.

Cultural issues also come to play. There are many who still believe that persons with disabilities are either an embarrassment or a bad omen. This coupled with the patriarchal attitude that a woman has no place in school gives women with disabilities very few chances. Physical access, accommodation and transport are the other challenges. These refer to halls of residence which are inaccessible with no washrooms, classes and hostels with no ramps or elevators, and lack of transport to and from classes. These make education a hard task for these people. Lastly, there is the challenge of lack of equipment. This mostly affects visually impaired persons in the name of braille materials.

The jury is still out on whether to integrate schools or to have specials schools. The pros and cons however keep the debate going; women with disabilities need to be educated. There are children still on the streets and women who are ambitious but have no way to get an education and get ahead in life.

Decent work, Employment and Social Protection for Women with Disabilities in Kenya

According to the Kenya National Survey for Persons with Disabilities the number of persons with disabilities stands at 1.7 million. The rate of disability in Kenya is 4.6% and women take up 19% of this population. This is relatively the number of Kenyans who are not just discriminated against but denied employment and a chance to make a living as women with disabilities have an employment rate of 29% compared to 50% for their male counterparts.

The Constitution of Kenya 2010 in Article 54 (2) provides for affirmative action when dealing with matters employment. The Government has an obligation to ensure that at least 5% of every elective and nominated positions are filled by PWDs. Article 41 is further elaborate on labour rights which also apply to these women. The International Convention on Social Cultural and Economic Rights discusses work and employment as a right which should be granted to citizens without discrimination as stated in Articles 3 and 6. Work and employment for PwDs are also covered under Article 25 of the UN Convention on the Rights of Persons with Disabilities. This instrument enumerates the rights to work to include: inter- alia, prohibition of discrimination, safety and healthy working conditions, just and favourable working conditions, reasonable accommodation and access to labour unions and industrial action.

The Persons Living with Disabilities Act is also very elaborate on employment. It is a domestication of the international instrument. The Act via Section 12 through to 17 touches on aspects of employment for PWD’s. The Employment Act, Occupational Safety Act and the Industrial Relation Act are in consonance with the idea of work and employment of women with disabilities.

Work and employment for women with disability has had an interesting history. For a long time, PwDs have only been known for vocational jobs. As much as the attitude is gradually changing, there are a number of challenges. Accessibility is one of the major challenges that women with disabilities face. As it is with educational institutions, work places are not accessible hence a big problem for employment of these women. The other challenge is the cultural attitude that women living with disability cannot perform certain duties. Studies show that employers are always very delicate with PwDs and avoid giving them tasks that are assumed to be difficult. The other challenge is lack of equipments which mostly affect those with visual impairment. These can be changed through implementation of the law and working progressively.

Health and Reproductive Health for Women with Disabilities in Kenya  

While health may refer to a state of no illness or injury, reproductive health refers to a state of complete mental, physical, emotional and social well-being in relation to maternal condition, sexuality and reproduction. Reproductive health is broad to include; new born babies health, family planning and STIs. Women with disabilities, particularly in developing regions suffer from HIV/AIDS and maternal conditions. Those who are of a reproductive age are at a higher risk of adverse pregnancies compared to women without disabilities.

Women with disabilities are also susceptible to negative health indicators such as obesity, mental distress and asthma. Health and reproductive health are both progressive rights within the law. As the saying goes health is wealth-the Constitution of Kenya, 2010 advocates for the highest attainable standards of health in Article 43 (1) (a). The framers of the constitution were aware of the GDP of Kenya; however, there is need to always be progressive.

The International Convention on Social, Cultural and Economic Rights through Article 12 (2) (a) advocates on reduction of still births. The State has obligation to ensure that both the new borns or mothers are protected and deaths are reduced.

The UN Convention on the Rights of Persons with Disabilities does not directly discuss reproductive health however; Article 25 is broadly dedicated to health which ought to be free and accessible to PWDs. The legal instrument also touches on the right to privacy under Article 22. Health is also a crucial component of the Persons with Disabilities Act as indicated by Section 20 of the Act.

In spite of the law, there are a number of challenges that face women with disabilities in Kenya.  There is a sense of “shame” that comes with women with disabilities.

Many people like to assume that women with disabilities do not engage in sexual intercourse and therefore do not want to engage in these conversations. There is also a bigger challenge when it comes to those women with visual impairment or hearing impairment. This is because most hospitals are not equipped or have personnel who have skills to communicate or understand these people.

These issues are therefore always ignored and swept under the carpet. There is a lot of work that is needed if Kenya was to achieve providing reproductive health rights for women with disability.

Violence against Women and Girls Living with Disabilities in Kenya

Global statistics indicate that women are generally exposed to violence as opposed to the men. Women living with disability carry a bigger burden due to stigmatization and vulnerability due to their disability. The kinds of violence that these women face include; isolation, rape, defilement and forced medical procedures. This is against the subject matter of the Convention on the Elimination of all forms of Violence and Discrimination Against Women (CEDAW). CEDAW may not generally talk about women with disabilities however; there is a general obligation to protect women. The same goes with the other international instrument such as the Convention for the Rights of Persons with Disabilities (CRPD); the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).

The Constitution of Kenya, 2010 and the Sexual Offences Act are also not particular on women living with disability; however, the spirit is to protect women from violence and sexual exploitation.

Conclusion and Recommendations

Through this paper, I have gone through the idea of marginalization of women living with disability. I have delved into the philosophy, the laws and challenges that come with confronting marginalization. I may not be conclusive however, it touches on the main areas of concern and the following are my recommendations:-

  • The concept of mainstreaming the law- women with disabilities touch on different aspects of life hence the need to make sure that there are always specific laws to protect them. The Sexual Offences Act, the Health Act, may be amended to narrow down to sexual violence against women with disabilities and of course impose a bigger penalty.
  • The Constitution of Kenya, (2010) and the Disability Act need to be implemented. The Government through relevant institutions need to develop a plan and statistics.
  • There is also need to do advocacy awareness and advocacy on matters affecting women living with disability in Kenya. This comes from the space that there is always room to improvement.
  • County Governments also ought to take an active role in demanding for these Rights. They are responsible for taking services to the people and hence push the agenda of women living with disability in Kenya.
  • The functions and budgetary allocation of the NationalCouncil for Persons with Disabilities should also be increased to enable decentralization and work. Part of the complaint has always been that the funds are not enough to work on matters women with disabilities.
  • Political parties and international players may also be brought to the fold to ensure that these matters are not just for persons with disabilities but institutionalized.
  • Learning from the best experiences is also another recommendation that may help in advancing the disability agenda. Kenya should be ready to learn from other jurisdictions such as India .

By:

Ouma Kizito Ajuong’

Advocate

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Published by

Kituo Cha Sheria

Legal Advice Center

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