Tightening Affirmative Action on Employment for Persons with Disabilities

Tightening Affirmative Action on Employment for Persons with Disabilities

The world marked the 27th International World Day for Persons with Disabilities on 3rd December 2018. However, since the day is yet to receive the deserved recognition across the country, it passed with mild awareness campaigns.

According to statistics from the 2009 census, about 3.5 per cent of Kenya’s population have some form of disability of which only 14 per cent worked for pay by 2009. The main forms of disability were physical disability (25.3%), visual (24.9%), hearing (14.1%), speech (14%) and mental (10%). Kenya Integrated Budget Survey (2015/16), which involved over 90,000 people indicates that only 2.95 per cent of the population were living with disability, comprising mainly of physical (34%), visual (31%), hearing (14%), mental (13%) and speech (4%). The Kenya National Bureau Statistics population census scheduled for 2019 is expected to give a comprehensive picture on the status of Persons Living with Disabilities (PWDs).

This theme of this year’s commemoration was “Empowering persons with disabilities and ensuring inclusiveness and equality”. There are many ways of empowering PWDs with one of the main ones being through the affirmative platform on work and employment.

The United Nations Convention for Persons with Disabilities (UNPWDs), under Article 27, sub-articles (e, f, g and h) lays a strong foundation for affirmative action on work and employment for PWDs. State parties are required to promote employment opportunities and career advancement for PWDs in the labour market in both public and private sectors through appropriate policies and measures, and specifically to assist them to find and maintain employment and promote opportunities for entrepreneurship.

Kenya has put in place measures to promote work and employment for PWDs. For instance, the Government has developed a national plan of action on the rights of persons with disabilities (2015-2022), which has 33 articles touching on various areas of interest where the PWDs are likely to be vulnerable, marginalized and need promotion or protection, including work and employment. Each of this has key recommendations, objectives, activities, indicators, timelines and key actors. However, it is difficult to ascertain the progress of implementation of the commitments and plans in the absence of annual status report.

Nevertheless, government institutions are expected to implement various policies towards empowerment, equality and inclusion of PWDs. The progress of implementation or compliance is filed by Ministries, Departments and Agencies with National Council for Persons with Disability (NCPWD), but there is need for the NCPWD to analyze the quarterly reports and provide a status report. Such a report would serve to highlight the progress in employment and access to procurement opportunities among other initiatives that safeguard the rights of PWDs. It would also point out any pace-setting interventions and emerging policy concerns.

Under Article 5 on the right to work and employment, the national plan of action on the rights of persons with disability recommends that the public and the private sectors should adopt measures to foster compliance with the positive measure of quotas for PWDs in employment. It further emphasizes that institutions should design work and employment programmes in the open labour market specifically aimed at PWDs. This is affirmative action. The Government has established a policy requiring that five per cent of employment in public institutions are PWDs, but there is unnecessary lag in applying affirmative action to achieve this. The PWDs are also exempted from paying tax.

The Employment Act of 2007 under chapter 5, sub-article 3(a), protects accounting officers acting on affirmative action as long as the process is open and transparent for all persons eligible for that affirmative action. The act states that, “It is not discrimination to (a) take affirmative action measurers consistent with the promotion of equality or the elimination of discrimination in the workplace”. Secondly, there are opportunities in assigning PWDs advantage in the evaluation criteria at both application and interview levels, based on equity, which is a national value. This should not be construed to mean that PWDs are less of achievers to deserve special treatment, but rather that the environment they have been competing in has been skewed against them thus it is only logical to compensate for them. Affirmative action is not treatment of indignity but rather an action on not leaving anyone behind.

The other dimension of empowering PWDs is through business opportunities. The plan of action on the rights of persons with disability recommends that the country shall “support entrepreneurship among PWDs, including by providing training on accessing markets”. Towards this end, the country has a policy on 30 per cent of procurement opportunities in public entities being reserved for special categories, including youth, women and PWDs, of which 2 per cent must be reserved for PWDs. Besides having a prequalification list, some organizations have entered into collaboration with financing institutions to provide opportunities like LPO financing for PWDs. Most of the public entities conduct training for PWDs on Access to Government Procurement Opportunities (AGPO), which basically creates awareness on tendering process. Despite the effort, the uptake is still low, and many entities do not meet this target, thus are noncompliant.

The missing link is entrepreneurial competencies among the PWDs, which need to be addressed. Entrepreneurial programmes for registered PWDs will reverse the trend of low uptake of business opportunities. Mentorship programmes through apprenticeship can be introduced by encouraging tendering through consortium where PWDs co-tender with persons without disabilities.

Another challenge the public entities report is a lean prequalification list of PWDs, which can be expanded by consulting the list of PWD registered with AGPO, which is freely available on the AGPO website. The procurement entities can initiate a process that can regularize the AGPO list into their prequalification list. A proactive way of getting the prequalification list to grow is to directly invite all the PWDs registered in your area for training and providing them with forms to register for opportunities in the institution.

The private sector is yet to fully embrace the agenda of empowering PWDs. The Government has given incentive for the private sector to an extent that a “private employer who engages a person with a disability with the required skills or qualifications either as a regular employee, apprentice or learner shall be entitled to apply for a deduction from his taxable income equivalent to 25 per cent of the total amount paid as salary and wages to such employee” according to the Persons with Disabilities Act 2003. The uptake of this offer is not documented.

To lead the in the implementation of the affirmative action, public institutions should take urgent measures to employ PWDs and provide business opportunities. The President may consider directing that all entities reserve positions in their structures for PWDs to meet the five per cent policy.

The NCPWD, on the other hand, should provide an annual status report on the implementation of the government policies on PWDs by analyzing and compiling the quarterly reports provided by public institutions or by conducting a national survey. NCPWD should provide a national database of registered PWDs the same way AGPO provides a list under various special categories. There is also need to develop an online data and information platform for institutions to report the progress done in key indicators. This will enhance effective and efficient data and information management, analysis and report development.

The NCPWD may consider conducting entrepreneurial training among the registered PWDs to build their capacity to tap available procurement opportunities. The private sector associations may rally their members to employ PWDs and to provide them with business opportunities.

If every institution complies with the Government’s policy of at least five per cent of the employees and two per cent of business opportunities reserved for PWD, the country shall be a benchmark on social and economic equity.

By Vitor Mose, Policy Analyst, Infrastructure and Economic Services Department

Photo: Courtesy of the Kenya Broadcasting Corporation

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