Why buildings owners could pay hefty damages for discrimination

People living with disabilities continue to have restricted access to buildings countrywide against explicit provisions in the Constitution. 

The Constitution, in Article 54 (1:b), makes it a right for people living with disabilities to access buildings and facilities that are integrated into society.

In addition, the Persons with Disabilities Act, enacted in 2003, demands that all proprietors of public buildings adapt it to suit persons with disabilities and criminalises any withholding of right to admission into premises that members of the public are ordinarily admitted.

This demand is yet to be taken seriously in the building sector, where universal accessibility is at a bare minimum.

A person with disability denied admission into any premises or the provision of any service or amenity under the Act is deemed to have suffered an injury and shall have the right to recover damages in court.

“A person who is convicted of those discriminating tendencies is liable to a fine not exceeding Sh20,000 or to imprisonment for a term not exceeding one year or to both such fine and imprisonment,” says the Act.

The National Council for Persons with Disabilities was given authority under the Act to issue compliance notices to any developer - public and private - and if that developer fails to heed, it shall be deemed a discrimination against the disabled.

Nothing concrete has been done to enforce the requirements, with even the council appearing unable to pursue compliance sector. Developers have been given leeway to comply or ignore the legal provisions.

As a result, the housing sector has largely continued to discriminate against people with disabilities, the major culprit being the government itself. Most public offices are not compliant to the law.

Amid this, Kenya ratified the United Nations’ convention on rights of persons with disabilities in May 2018.

About 1.63 million Kenyans are captured by latest data to be living with disabilities but only 340,900 are officially registered.

The Council of Governors (CoG) now admits that the national and county governments have not played their respective roles on compliance as regards the disabled and their inalienable right to access all buildings and other facilities.

“There is no national policy that has been issued so that it can be enforced. We know there is that Act, but we have no instruments for its implementation,” CoG Deputy Chair Mwangi wa Iria told Home & Away last week in Murang’a.

“The National Construction Authority (NCA) does not factor in disability compliance as a prerequisite for buildings’ approval.”

He said the matter has now been left to individual county governments to devise ways of enforcing the Act by exercising their powers as custodians of the building code.

“That is why I have issued a directive in my county that all commercial building plans submitted for approval must show evidence that their designs will factor in accessibility by people with disabilities,” said Wa Iria.

He said his government has issued the bare minimum for compliance.

“The basic amenities like toilets, lifts, lobbies, conference rooms, dining rooms… In these areas we will be scrutinising the plans to ensure that all new buildings do not discriminate against people with disabilities.”

Nakuru Governor Lee Kinyanjui, who is the CoG Chairman on Land, Planning and Urban Development, says the issue cropped up in their January 2018 National Urban Forum in Nairobi.

“It was noted that 99 per cent of our housing sector discriminates against the disabled. But how to mitigate the damage was left to the national government to issue a national policy guideline on how to circumvent the issue through the National Construction Authority,” he told Home & Away during CoG elections on January 20.

In the absence of that commitment, he said, the counties that have been empowered by devolution to be the final authority in approving building plans must include people with disabilities in the urbanisation agenda.

“As we pursue ways and means to actualise adequate, affordable... and well-located housing, we must at all times remain cognizant of the fact that we have the disabled population to bring on board,” said Mr Kinyanjui.

For the drive to be realised, he said, there must be harmonious approach to enforcement by the two levels of government where the county governments make it mandatory while approving housing plans and the national government ensures proper inspection through NCA.

Wa Iria said Kenya must remain aware that 70 million people worldwide were recorded as living with disability in 2017, and that 90 per cent of the children living with disability in developing countries do not go to school for lack of user-friendly facilities.

“I’m also challenging the Housing ministry, while pursuing the national agenda for adequate shelter, to ensure the disabled are not left out. Go and have a look at the already finished units in the first phase and, sadly, you will notice the designs are very silent on access for persons with disabilities,” he said.

Former director of communications in the then Lands, Housing and Urban Development ministry Joseph Kamuto, blames parliament for lack of a legally enforceable action plan to address the problem.

“We held several brainstorming sessions in an attempt to come up with a national action plan. The arguments were so diverse and distorted to
a point that no headway was struck,” he told Home & Away.   

homeandaway@standardmedia.co.ke