PDF - Kenya Disability Portal

Report
E-ACCESSIBILITY FOR
PERSONS WITH
DISABILITY :
THE ICT POLICY AND
REGULATORY FRAMEWORK IN
KENYA
Mercy Wanjau
Principal Legal Officer
Communications Commission of Kenya
PRESENTATION OUTLINE

Introduction to Accessibility and the ICTs

The Role of the Policy and Regulatory Framework

The Role of the Regulator

Concluding remarks
INTRODUCTION TO ACCESSIBILITY AND
PWDS - CONSTITUTIONAL
Constitutional and legal bases for accessibility by
PWDs include:

Article 7 (3) (b) providing that: The State shall …promote the development and use of …other
communication formats and technologies accessible to
persons with disabilities.

Implementation of rights and fundamental freedoms
under Article 21 (3) in the Bill of Rights. All State
organs and all public officers have the duty to address
the needs of vulnerable groups within society, including
…persons with disabilities….
CONSTITUTIONAL

Article 27 (4) on equality and freedom from
discrimination which provides that: The State shall not
discriminate directly or indirectly against any person on
any ground, including …disability….

Article 54 (1) stating that: A person with any disability
is entitled–– (c) to reasonable access to all places, public
transport and information; (d) to use Sign language,
Braille or other appropriate means of communication;
and (e) to access materials and devices to overcome
constraints arising from the person’s disability.
CONSTITUTIONAL
•
Article 260 defining disability thus: “disability” includes
any physical, sensory, mental, psychological or other
impairment, condition or illness that has, or is perceived
by significant sectors of the community to have, a
substantial or long term effect on an individual’s ability
to carry out ordinary day-to-day activities;
APPLICABILITY OF INTERNATIONAL LAW
•
Articles 2 (5) and 2 (6) inviting the application of
international legal standards i.e the Convention on the
Rights of Persons with Disabilities (CRPD) operates to
further constitutionalize accessibility by PWDs.
•
Preamble (v) of CRPD recognizes the importance of
accessibility to the physical, social, economic and
cultural environment, to health and education and to
information and communication, in enabling
persons with disabilities to fully enjoy all human rights
and fundamental freedoms”.
CONT.

Article 18 para 4 of the African Charter on Human
and Peoples’ Rights provides that: “The aged and the
disabled shall also have the right to special measures of
protection in keeping with their physical or moral
needs.”
PERSONS WITH DISABILITY ACT

The Persons with Disabilities Act, No. 14 of 2003
generally domesticates the provisions of the CRPD in
Kenya.

Section 21 provides that “Persons with disabilities are
entitled to a barrier- free and disability-friendly
environment to enable them to have access to buildings,
roads and other social amenities, and assistive devices
and other equipment to promote their mobility.”
CONT.

S. 18 of the Act envisages categorization of disabilities
into
physical disabilities (generally incapability of the limbs),
 sensory disabilities (such as visual, hearing or any other
sensory),
 mental disabilities such as mental retardation


Section 11 of the Act provides that “The Government
shall take steps to achiev(e) the full realization of the
rights of persons with disabilities....”

Section 24 (1) (b) provides for adjustment orders on
“…any services or amenities ordinarily provided to
members of the public.”
DEFINING ACCESSIBILITY OF ICTS BY
PWDS
•
•
The Global Initiative for Inclusive ICTs (G3ict) defines
accessibility as “a measure of the extent to which a
product or service can be used by a person with a
disability as effectively as it can be used by a person
without that disability.”
This means accessibility of ICTs as derived from the
Constitution and as ought to be applied within the ICT
framework, comprises largely of PWDs
Perception of relevant ICTs;
- Understanding relevant ICTs; and
- Experience in the operation of ICTs.
-
HOW SHOULD ACCESS TO ICTS FOR
PWDS BE IMPLEMENTED?

The antidiscrimination or equality provisions approach

The universal access and service approach

The two approaches are generally coexistent in Kenya.

Should the implementation adopt a phased approach or
a “one off” comprehensive implementation?
HOW DO OTHER JURISDICTIONS ADDRESS EACCESSIBILITY FOR PWDS?
Examined : UK, Singapore and Mauritius among others, and
enhancing e-accessibility by PWDs is:
 Often implemented as part of Universal Service
Obligations (USO)
 Sometimes other approaches, such as equality /antidiscrimination legislation

Therefore, Kenya’s approach is consistent with these
jurisdictional practices.
THE ROLE OF THE ICT POLICY AND
REGULATORY FRAMEWORK
General Purpose
•
ICT Policy - Government aspirations
•
Regulatory Framework - legal and institutional
mechanisms for implementing public policy.



Kenya Information and Communications Act (Cap. 411A),
Kenya Information and Communications Regulations
Persons With Disabilities Act
THE SPECIFIC APPLICATIONS OF THE ICT
POLICY
Public Policy Statement
 To improve the livelihoods of Kenyans by ensuring the
availability of accessible, efficient, reliable and
affordable ICT services.
 Universal Access and Service
Policy objectives
Geared to ensuring that all citizens have access to ICT
services;
POLICY STATEMENT ON SECTOR SPECIFIC
STRATEGIES
Broadcasting Services
 Availability of free-to air public service TV and universal
availability radio channels to all parts of the country;
Telecommunication Services
 Basic telecommunications services are made available at
affordable prices;
 free emergency calls, access to operator assistance and
affordable directory enquiry services;
Postal Services
 Provision of universal postal services nationwide.
THE SPECIFIC ROLE OF THE REGULATORY
FRAMEWORK
Kenya Information and Communications Act:
Part VIB, ss. 84J – 84P establishing the Universal Service
Fund administered under Regulation 3 of the Universal
Access and Service Regulations, 2010
How far can we tap into the Fund for PWDs? Is USF the
ultimate solution?


“universal access” means access of one hundred
percent by a designated population that can obtain, at
the minimum, public access to quality and affordable
communication systems and services;
THE SPECIFIC ROLE OF THE REGULATORY
FRAMEWORK…CONT
Kenya Information & Communications (Consumer
Protection) Regulations, 2010
 Regulation 2 defines disability in terms similar to the
Constitution.
 Regulation 8 (1) A licensee shall ensure that persons
with disabilities can easily access its complaint handling
processes.
(2) A licensee shall provide reasonable assistance to a
customer who specifically requests for assistance when
lodging complaints.
8 (1) and (2) are fundamental to enhancing the
main elements of accessibility.
THE FRAMEWORK
(3) A licensee shall take such measures as may be
prescribed by the Commission to ensure that the
requirements and interests of disabled customers are
fully addressed.
(4) A licensee shall fulfill any specific obligations that
relate to special services or special arrangements for
customers with disabilities that the Commission may
from time to time impose.
WHAT THIS MEANS
…
Screen readers for the blind to enable them to access
websites and documents
 Closed captioning for broadcasting for the deaf
 Video description for broadcasting for the blind
 Text to speech devices for those with speech
impairments to allow for two way communication for
inclusive education and work


8 (3) and (4) give the Commission the authority to
impose obligations in relation to PWDs under relevant
licenses. Does the solution lie here?
THE ROLE OF THE REGULATOR IN PROMOTING
E-ACCESSIBILITY FOR PWDS

Facilitate the establishment of industry codes to
accommodate PWDs’ access to ICTs through assistive
technologies

Raise consumer and service provider awareness through
education and training on accessible ICTs

Administering part of the universal service funds for
projects on e-accessibility by PWDs

Undertaking type approval if necessary to ensure
accessible ICTs
CONT.

Ensure access in times of emergencies for PWDs’
assistance

For its decisions affecting access by PWDs, the regulator
(CCK) institutionalizes its terms of engagement with
PWDs in line with the Article 54 (2) of the Constitution.

Commence a formal adjustment for compliance by
licensees as a platform for monitoring, evaluation and
enforcement

Encourage partnerships in the value chain
CONCLUDING REMARKS

It takes more than the regulator to make it happen –
state and non-state actors
Government – policy gaps, tax incentives, registers for PWDs
 Service providers – integrate the delivery of services
 Civil society - advocacy

What is the ideal framework that will promote sustained
efforts towards the goals?
 What is the cost for compliance?

*****
‘Sometimes the questions are many
And complicated
But
The answers are simple’
~~ Dr. Seuss
*****
Thank you

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