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 E-ACCESSIBILITY 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 /anti-discrimination 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 objectivesGeared to ensuring that all citizens have

access to ICT services;

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.

POLICY STATEMENT ON SECTOR SPECIFIC STRATEGIES

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 manyAnd complicated

ButThe answers are simple’

~~ Dr. Seuss

*****

Thank you