I would like to begin this paper by stating a few irrefutable facts. Firstly, persons living with disabilities (herein PWDs) form a small but significant segment of Kenya’s population. While the numbers 1.3 million; 3.5% of Kenya’s population; (Census 2009) explain the “smallness’’, their significance springs from values of human dignity, legal trends today and best international practices. Secondly, contrary to popular conceptions, disability is for everyone.
As much as policy makers and legislative drafters like to think of disability laws as “special laws” for a few people, they always forget the obvious nature of disability. It never comes by invitation. Disability does not knock or choose. Lastly, it is important to say that as much as tax relief is a privilege, it is not a favor from the State, it is a constitutional right. Those who write tax relief regulations or policy should therefore not behave as if they are doing charity work. It doesn’t make sense that something meant to make life easier for PWDs, has made things even harder.
I am not in any way suggesting that tax relief for PWDs should be done without regulations; I am of course in support of protection of the intergrity and sanctity of the programme, however, regulations that primae facie exhibit stupidity, ignorance and meant to strain already strained people do not in any way enforce the aforesaid values. It is premitivity and lack of wisdom that makes one to write regulations that requires PWDs to move back and forth from their employers to the council of persons with disabilities, to the Ministry of Health while ignoring mobility challenges in an era of Huduma Centers. It is preposterous that these regulations require PWDs to go for medical assessment every time they need to renew tax relief certificate as it ignores PWDs with permanent disabilities. This is to say that PWDs with albinism will grow melanin or that amputees will grow limbs within five years of tax relief? The long time it takes (about 4 months) to process tax exemption certificates adds to the illogical and disturbing culture of peripheral treatment of PWDs as aided by these regulations.
My focus however is to demonstrate how these regulations offend the letter and the spirit of the Constitution of Kenya (2010). It is important to note that one of the pillars of the Constitution of Kenya (2010) is elevation, protection and respect of human rights. It has even gone further to incorporate international norms and instruments in this regards.
The Rights of PWDs are therefore not just given prominence through Article 54 of the Constitution of Kenya (2010) but domestication of UN International Convention on the Rights of PWDs and its protocols and interpretation of Articles 2(5) and 2(6) of the Constitution of Kenya 2010.
Before I get to the unconstitutionality of tax relief regulations, I would like to define disability from the lenses of the Constitution of Kenya 2010. Article 260 defines disability to include, any physical, sensory, mental, or psychological impairment, condition or illness that has or is perceived by a significant sector of the community to have a long term effect on an individual’s ability to carry out day to day activity. Affirmative Action on the other hand means, any measure designed to overcome or ameliorate an inequality in the system, denial or infringement of a right or fundamental freedom. This therefore means that PWDs are disadvantaged and affirmative action comes in to try and mitigate the situation hence tax relief. How are these regulations unconstitutional?
Economic Rights Perspective
The preamble of the Constitution of Kenya 2010 makes a promise of nurturing the well-being of individuals. Well-being from PWDs point of view is that they should be able to get basic needs and economic empowerment. The difficulties and unique challenges that PWDs go through in school or at work places should not be lost on anyone. It is out of these that they are entitled to tax exemption. These regulations negate, as oppose to acting as a hand-maiden for this programme. When PWDs are made to go through a winding process between the doctors to the tax man to their employers and a cosmetic disability council, it results to denial of economic rights. It does not make sense that getting a tax exemption certificate takes up to four months. The saddest part of this is that as they struggle to get the certificates or renew them; employers are always happy to tax PWDs. If I did not know any better, I would call that a conspiracy to commit theft by the State.
Right to Human Dignity
The Constitution of Kenya (2010) requires that human worth be respected and protected. Article 28 of the supreme law states that the right to dignity is inherent. As much as the definition of human dignity is amorphous, it boils down to the sense of “humanness.”
PWDs in Kenya have to deal with issues of dignity and self-worth in an environment that is disability unfriendly.
Asking PWDs who are visually impaired or have mobility challenges to submit their documents and follow up on them; in disability unfriendly buildings like the one that houses the Ministry of Health is not a breach of this right but a disgrace. I am also concerned about the back and forth movements from the employers to the tax man to the Ministry of Health keeping in mind Kenya’s chaotic public transport system. I look at this as very slow thinking from the persons concerned and a disregard of a constitutional principle.
Right from Discrimination
The Constitution of Kenya frowns upon any form of discrimination. Article 27 (4) states that it is against the aspirations of Kenyans to discriminate against anyone – directly or indirectly. Do the tax relief regulations discriminate against PWDs? The simple answer is yes and I will explain. I go with the legal maxim that whoever alleges must prove, but how many times should they be made to prove their disability. A regulation that requires all PWDs to go for medical assessment every time they want to renew their tax relief certificate is discriminatory at best. Making the process too complicated also amounts to putting PWDs on the spot which is discriminatory. I see this as inadequate use of common sense and an attempt to resist creativity from the State.
Rights to Affirmative Action
The Constitution of Kenya (2010) through Articles 27 (5) and (6) recognizes affirmative action- tax relief for PWDs is one such action. The law puts only one condition- it has to be on genuine need. This means that any legislative or regulatory body has the duty to promote the programme and not kill it. When regulations are so stringent to the point that they make other PWDs give up on the process, they breach these provisions.
As I have stated before, as a lawyer I was taught that the rules of procedure are made to be hand maidens. This means that they need to help substantive provisions. Tax relief regulations for PWDs as presently constituted and enforced are but a mockery to this.
There is need to urgently change this situation and I have a few recommendations:-
There is need for legislative interventions. I am calling for an amendment of the Persons Living with Disability Act. The Act needs to give parameters to the regulations in line with the challenges and realities of PWDs in Kenya today.
There is need to mainstream the process so that it is faster and easier fop ;PWDs. One stop shop like Huduma center where PWDs can get everything done may be one quick solution.
Even as Kenya prepares for a census in 2019; there may be need to invest in a data base with information for PWDs. Those with permanent disabilities may be registered once to avoid redundancies and bad jokes currently encountered.
Ouma Kizito Ajuong