IMPLEMENTATION OF ARTICLE 33 OF THE INTERNATIONAL CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Submitted by Kenya National Commission on Human Rights, October 2009

Introduction

  1. The Kenya National Commission on Human Rights (KNCHR) submits this note pursuant to a request of 9 July 2009 by the Office of the High Commissioner for Human Rights in terms of HRC Resolution 10/7.

The existence, structure and mandate of focal points within government appointed to handle matters related to the implementation of the International Convention on the Rights of Persons with Disabilities

Focal point

  1. The focal point on issues of persons with disabilities within the Government is the Ministry of Gender, Children and Social Services. This focal point was briefly in 2008 docketed in the Ministry of Home Affairs, before it was again returned to its traditional Ministry in 2009.
  1. This focal point is not specifically set up for purposes of implementing the Convention, but more generally to deal with disability issues. Among the objectives of the Department of Gender and Social Services relating to persons with disabilities (accessible at are: enhancement of the capacity of vocational rehabilitation centres to offer innovative and competitive training programmes for persons with disabilities and special needs; and provision of specifically organized services to vulnerable members of the society.
  1. The Department of Gender and Social Services includes the Social Welfare and Persons with Disabilities Division which deals with issues relating to persons with disabilities. The Division is mandated to “mobilize and build capacities of … persons with disabilities to actively participate in socio economic development” and generally to improve their quality of life as well as mainstreaming issues and concerns of persons with disabilities into the national development process.
  1. Stakeholders have raised the particular concern that disability issues are not profiled properly at the governmental level and that for example while the focal points for women and children are headed by Secretaries within the Ministry of Gender, Children and Social Services, disability is not.

Resources and programmes

  1. The Division has various programmes including a programme on persons with disabilities aimed at increasing public awareness on the plight of persons with disabilities as well as enhance rehabilitation programmes. The focal point receives budgetary support from the Government, although the level of such support was not clear since it includes funding for other activities.

Work plans and reporting obligations

  1. The Ministry of Gender, Children and Social Services, like all other ministries, operates based on an agreed strategic plan which includes a work plan and performance contracts, which form the basis upon which the Ministry receives funding from the government. Ministerial plans are drawn from the Kenya 2030 Vision which identified the economic, political and social pillars which should guide the country towards substantive development. Issues of disability (including performance indicators) are captured only briefly in the 2030 Vision.The Division is required to report to the Department which in turn reports to the Ministry. However it is unclear how often this reporting occurs, especially on disability issues.

Consultation with persons with disabilities

  1. The Ministry consults closely on matters of disability with the National Council for Persons with Disabilities (see para. 9 below). The Ministry also undertakes consultations with disabled persons organisations on an ad hoc basis.

The existence, structure and mandate of coordination mechanisms within the government to facilitate action related to the implementation of the Convention

Mandate

  1. The Persons with Disabilities Act of 2003 (accessible at establishes the National Council for Persons with Disabilities whose role is to enable implementation of the rights and services for persons with disabilities.
  1. The National Council is resourced by the Government; and in budget year 2008-2009 received 400,000$ to run its activities. This budget has been raised this budget period by 27,000$.
  1. The National Council’s membership is drawn from Government ministries and organisations for and of persons with disabilities. The Council’s membership may not exceed 27, including at least 20 persons with disabilities equally representative of the types of disabilities occurring in the country. Members are appointed by the Minister responsible for Social Services, and include: not more than eight persons nominated by organizations representing persons with various categories of disabilities; three members from organizations for persons with disabilities; eight members representing the Ministries responsible for culture and social services, local government, health, education, economic planning, housing, transport and labour; the Attorney General; and representatives of employers and workers.

National action plan for the implementation of the Convention

  1. Kenya ratified the Convention in May 2008; however it has since not put in place a national action plan for the implementation of the Convention.
  1. The National Council for Persons with Disabilities has put in place a strategic plan to enable implementation of the Persons with Disabilities Act. This Act includes some provisions which are in line with provisions of the Convention.
  1. As part of the African Decade for Persons with Disabilities, (this is an initiative of the African Union to empower disabled persons), a National Decade Secretariat has existed since 2006 which aims to coordinate implementation of Kenya’s Plan on Decade goals.

Reporting obligations

  1. The Council is mandated under section 10 of its constitutive act to report annually to the Minister as well as all other Government agencies involved in the work of the Council.

Mechanisms for involvement of and consultation with persons with disabilities

  1. No formal mechanisms are in place for the Council to consult with stakeholders. The Council calls for workshops or meetings on a case to case basis.

National frameworks tasked with promoting, protecting and monitoring implementation of the Convention with particular reference to the role and functions of national human rights institutions

Alternative frameworks and mandates

  1. Debate on the framework which should promote, protect and monitor implementation of the Convention is still ongoing. The Government has indicated that the National Council should perform that role. The National Council, however, may not play the monitoring role effectively in terms of Article 33 of the Convention since it includes a number of government implementing agencies in its membership.
  1. One viable alternative under consideration at least by some stakeholders is the use of the Kenya National Commission on Human Rights as the monitoring agency. The Commission is a National Human Rights Institution established by the Kenya National Commission on Human Rights Act of 2002 (accessible at in accordance with the provisions of the Paris Principles and accredited A rating by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights.
  1. The National Commission is mandated with the promotion and protection of the rights of all which includes persons with disabilities. It comprises nine commissioners nominated by the National Assembly and appointed by the President; and a secretariat headed by a Secretary to the Commission.
  1. Among other things, the National Commission is mandated to act as the Government’s chief agent to ensure compliance with obligations under international treaties and conventions on human rights. The Commission on this basis monitors implementation of all human rights instruments, including the Convention and the Persons with Disabilities Act. Towards this end, the Commission prepares regular assessments which it submits to the President, Parliament and other relevant authorities, as well as to Treaty Body Committees and Special Procedures.
  1. The National Commission most closely approximates the requirement in Article 33 of the Convention requiring an independent mechanism to protect, promote and monitor the rights of persons with disabilities. The National Commission has a track record of undertaking independent monitoring of government activities. The National Council on the other hand is set up more as a coordinator/implementer.

Resources

  1. No new resources have been provided to the National Commission for purposes of enabling protection and promotion of and undertaking monitoring under the Convention.

Engagements with the framework

  1. The National Commission was instrumental in the negotiations leading to the adoption of the International Convention of the Rights of Persons with disabilities and has continued to play a key role in monitoring the implementation of the Convention as well as the Persons with Disabilities Act, with the involvement of other governmental and non-governmental stakeholders. The Commission undertakes its activities subject to a strategic plan which includes operational plans. It reports annually on activities undertaken during each year.
  1. The Commission is mandated in section 16(g) of its constitutive act “to encourage the efforts of other institutions working in the field of human rights and cooperate with such other institutions for the purpose of promoting and protecting human rights in Kenya.” Based on this mandate the Commission has taken a lead role towards the establishment and coordination of stakeholder efforts (including the National Council and organizations for and of persons with disabilities to ensure effective domestication of the Convention.
  1. The Commission has undertaken research on issues affecting persons with disabilities including access to free primary education for children with disabilities and undertaken advocacy on this basis. Further it has also set within its operational plan for 2009 – 2010, an activity which involves offering technical support to non-governmental organizations towards the compilation of a shadow report to the state report.

The existence, structure and mandate of independent authorities tasked with monitoring facilities and programmes designed to serve persons with disabilities to prevent exploitation, violence and abuse

  1. The National Commission plays this role too.

Lawrence Mute

Commissioner - KNCHR

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