APRM • SECOND COUNTRY REVIEW REPORT OF THE REPUBLIC OF KENYA 249. Right to fair representation: The Constitution enjoins the State to progressively implement the principle that at least five percent of the members of the public in elective and appointive bodies are PWDs. The figures below indicate that the affirmative action principle has yielded the required figures in terms of representation by PWDs. Table 3: Representation of PWD at County and National Assemblies Representation of PWD at County and National Assemblies Category County Assemblies National Assembly Number by Gender M F M F M F Nominated by political parties 31 30 1 1 2 1 Elected persons 10 0 1 0 5 1 Senate Source: NGEC database, 2013 250. Some of the reasons for low participation relate to failure of political parties to ensure an inclusive list for purposes of primary elections as per the Constitutional requirements. Low awareness of opportunities and processes among PWDs also arose out of inadequate voter education due to physical and language barriers that PWDs face. The long distances to polling stations; the lack of inclusive communicative formats and; inaccessible buildings continues to disenfranchise voters with disabilities, although the IEB commendably ensured that polling stations were accessible to PWDs. 251. There have not been enough efforts made to ensure that PWDs participate meaningfully in public life based on affirmative action measures. For example, a petition was lodged by a disabled people’s organisation in the High Court at Garissa (Constitutional petition no. 4 of 2013) protesting the appointment of the Garissa County Executive Committee in disregard of the constitutional requirement that at least 5% of the Committee are PWDs. An important point made by the judiciary in this case related to the duty by government to take proactive measures to ensure the participation of the marginalised and vulnerable groups. The court pointed out that ‘for the five percent principle to be realized, appointing authorities ought to do more when advertising for certain statutory appointments to ensure the minorities, marginalized and special groups apply’. It further stated that ‘Care needs to be taken to ensure the appointing authorities do not take the short cuts in making appointments but that advertisements where these apply, or sensitization where applicable, is aimed at the marginalized and special groups to ensure they are aware of their rights to apply for such positions”. This is an important standard of care and responsibility that if implemented will cater for inclusive participation in public life by PWDs. 252. Representation to appointed bodies by PWDs is also low. According to NGEC statistics, by 2013 only 1 out of the 26 Principal Secretaries was a PWDs, as well as 2 Judges and 5 Commissioners. The Employment Act 2007 does not allow an employer to discriminate or harass directly or indirectly, against an employee or prospective employee on ground of disability or mental status. Nonetheless, PWDs are underemployed in the private and public sector. In an exemplary move, the NGEC engaged the Kenya Revenue Authority and other institutions over the Persons with Disabilities Income Tax Exemption Order 2010 leading to 4,448 persons with disabilities to benefit from tax exemption certificates. | 124 |