INCLUSION OF PERSONS WITH DISABILITIES (PWDs) IN ELECTORAL PROCESSES IN KENYA
MEMORANDUM
UDPK-DCIC
8/19/2016
TO: H.E. UHURU M. KENYATTA, CGH LEADER, JUBILEE PRESIDENT AND COMMANDER-IN-CHIEF OF THE DEFENCE FORCES OF THE REPUBLIC OF KENYA THRO’ MR. JOSEPH KINYUA, CBS CHIEF OF STAFF AND HEAD OF PUBLIC SERVICE HARAMBEE HOUSE, HARAMBEE AVENUE NAIROBI
Your Excellency sir,
WE, members of the United Disabled Persons of Kenya (UDPK) and the Disability Caucus on Implementation of the Constitution (DCIC), seek your kind indulgence, by way of this Memorandum, to use your good offices to ensure securing holistic inclusion of Persons with Disabilities (PWDs) on an equal basis with others in Kenya’s electoral processes. We address this Memorandum to you in your dual capacities of President and Commander-in-Chief of the Republic of Kenya and Leader of Jubilee Coalition.
Summary submissions -
a) THAT PWDs be represented in the newly reconstituted IEBC at the level of Commissioners on the basis of two (2) members, being one (1) man and one (1) woman with disabilities.
b) THAT PWDs be represented in the membership of the Selection Panel for the Recruitment of Chairperson and Members of the Reconstituted IEBC on the basis of two (2) persons with disabilities, being one (1) person representing the National Council for Persons with Disabilities; and one (1) other person representing the United Disabled Persons of Kenya respectively. NCPWD and UDPK shall consult to ensure that not all the two representative are of the same gender; and
c) THAT Political Parties and IEBC shall ensure that persons nominated on the basis of the Affirmative Action Special Seats in Senate, National and County Assembly are bona fide PWDs registered by the National Council for Persons with Disabilities.
Introduction
1. In the first instance, allow us to register our unqualified and unreserved commendation for the stewardship you as Leader of Jubilee Coalition together with the Rt. Hon. Raila Odinga, Prime Minister Emeritus as Leader of CORD have provided in steering the country through the negotiations towards resolving issues around reforming our electoral system in general and IEBC in particular.
2. We also commend the Joint Parliamentary Select Committee on Electoral Reforms for demonstrating a great spirit of nationalism and sense of patriotism by putting the best interest of the people and country Kenya above partisan interests; and arriving at a mutual bi-partisan resolution to an otherwise emotive matter, which at one time threatened to go to the very core of the existence of Kenya as a stable democracy. We are further grateful that some of the core issues of concern to PWDs have been addressed by the Committee in its report and proposed Bills.
3. The United Disabled Persons of Kenya, UDPK is an umbrella organization of National and grassroots associations of persons with disabilities in Kenya. Currently, UDPK has eighty-six member associations drawn from all counties in the Country. DCIC is a coalition of organisations of and for persons with disabilities. The overarching of DCIC is to ensure implementation of the Constitution of Kenya (2010) generally and in particular provisions relating and relevant to persons with disabilities. In addition DCIC seeks to promote the interests of persons with disabilities under the Constitution and the law.
4. In pursuit of their mandates UDPK and DCIC have, since 2013 engaged in a number of studies and research to ensure that interests of persons with disabilities are promoted and protected in Electoral laws and the laws governing Political Parties registered and operating in Kenya. On these premises, the two organizations made joint substantive representations before the Select Committee.
Supporting instruments
This Memorandum is submitted on the premises –
5 THAT, the Constitution of Kenya 2010 recognizes and entrenches the rights and entitlements of PWDs in Article 54 specifically Clause (2) which provides that the State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities; Articles 27 (4) on equality and freedom from discrimination, 81(c) on fair representation of persons with disabilities, 177 (1) (c) on representation of special groups, including PWDs, in the County Assembly, 82 (2) (c)(i) on the need for voting at elections to take into account the needs of PWDs, 97 (1) (c) on nomination by political parties of Special Interest groups, including PWDs to the Senate, 98 (1) (d) on representation of PWDs at the Senate; Article 100 (b) on enactment by Parliament of legislation to promote representation of marginalised groups, including PWDs; and Article 232 (1) (i) (iii) on Values and Principles of Public Service.
6. THAT, Kenya is signatory and State Party to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD); which in Article 29 on ‘Participation in political and public life’ obligates State Parties to facilitate participation of PWDs in political and public life. Kenya is currently in advanced stages of finalizing its State Party response to the Concluding Observations of the UN CRPD Committee of Experts (CRPD/C/SR.206 and 207) to its Initial Report (CRPD/C/KEN/CO/1). The UN General Assembly meets in September 2016.
7. THAT, to give effect to the entitlements of PWDs in the electoral process, the Persons with Disabilities’ Act Cap.133 of 2003 has been enacted and spells out Human Rights entitlements of PWDs in Sections 11 on realization of rights of PWDs, 29 on Assisted Voting and 30 on Accessibility of Polling Stations for PWDs.
Issues raised with the Select Committee
8. The following substantive issues were placed before the Committee: -
8.1 Representation of PWDs in –
8.1.1 The IEBC at the level of Commissioners and Secretariat staff
8.1.2 Political Parties’ high level policy organs
8.2 Nomination of the 12 Special Seats of National Assembly under Article 97(c) of the Constitution which provides three categories for these seats. The proposed Bills by the Select Committee to make provision that within the three categories four (4) seats shall be reserved for persons with disabilities on the basis of two (2) men and two (2) women.
8.3 Interpretation of Article 177(1)(c) of the Constitution operationalised through Section 7(6) of the County Governments Act to specify that two persons with disabilities (a man and a woman) should be nominated to the County Assembly.
8.4 The re-location of the Political Parties Dispute Tribunal (PPDT) at the Registrar of Parties to ensure timely complaint mechanism.
8.5 Making the electoral process accessible to persons with disabilities especially in regards to:
8.5.1 Physical access to polling stations and polling booths
8.5.2 Balloting materials
8.5.3 Access to civic and voter education
8.5.4 Use of Assisted Voting for persons with visual impairments and intellectually impaired.
8.6 The need for the National Council for Persons with Disabilities to confirm registration of PWDs to be nominated by Political Parties for the Special Seats in National Assembly, Senate and County Assembly before gazettement by IEBC.
Issues taken on board by the Committee
9. We are appreciative that the Committee has adequately addressed the following:
9.1 Voter Education where the Committee recommends that IEBC partners with other agencies and non-state actors in the provision of voter education; and ensures the inclusion of people living with disabilities when carrying out voter education.
9.2 Publicity and Media where the Committee recommends that IEBC liaises with the Media Council in developing and implementing Regulations on media coverage and conduct during campaigns as well as electoral polls and mainstreams the needs of persons with disabilities in the publications of the Commission on election matters.
9.3 Voting where the Committee recommends that IEBC puts in place adequate arrangements to facilitate voting by persons with disabilities; and
9.4 Allocation of Special Seats where the Committee recommends that in order to ensure transparency in the allocation of special seats, regulation 54(8) of the elections regulations, 2012 be amended to require that the independent and electoral and boundaries commission publish the party lists submitted by political parties under Article 90 of the Constitution the same day as that for the publication of candidates nominated to contest in the elections by the respective parties.
Prayers for enhancement of Committee’s Report on inclusion of PWDs in the electoral process
10. THAT PWDs be represented in the newly reconstituted IEBC at the level of Commissioners on the basis of two (2) members, being one (1) man and one (1) woman with disabilities.
11. THAT PWDs be represented in the membership of the Selection Panel for the Recruitment of Chairperson and Members of the Reconstituted IEBC on the basis of two (2) persons with disabilities, being one (1) person representing the National Council for Persons with Disabilities; and one (1) other person representing the United Disabled Persons of Kenya respectively. NCPWD and UDPK shall consult to ensure that not all the two representative are of the same gender.
12. THAT Political Parties and IEBC shall ensure that persons nominated on the basis of the Affirmative Action Special Seats in Senate, National and County Assembly are bona fide PWDs registered by the National Council for Persons with Disabilities.
Conclusion
13. Your Excellency Sir, this Memorandum has been submitted to you and the Rt. Hon. Raila Odinga, Prime Minister Emeritus in the best of faith and solely for purposes of securing holistic inclusion of PWDs in Kenya’s political and electoral processes. That you will use your good offices as Leader of Jubilee Party and President of the Republic of Kenya, especially at the levels of our Public Petition to Senate and National Assembly and assenting to Bills arising from the report and recommendations of the Joint Select Committee.
WE remain Your Excellency Sir,
1. Anderson Gitonga
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Chief Executive Officer
United Disabled Persons of Kenya,
(Secretary-Disability Caucus on the Implementation of the Constitution)
2. Paddy O. Onyango
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Member, Technical Committee, DCIC
FOR AND ON BEHALF OF
UNITED DISABLED PERSONS OF KENYA (UDPK)
DISABILITY CAUCUS ON IMPLEMENTATION OF THE CONSTITUTION (DCIC)