The Constitutional and Human Rights Division of the High Court of Kenya (the Court) recently delivered a judgment upholding the right to employment of persons with disabilities enshrined in article 27 of the Convention on the Rights of Persons with Disabilities (CRPD). In Wilson Macharia v Safaricom PLC, the Court upheld the rights to human dignity, fair administrative action and reasonable accommodation during the recruitment and employment of persons with disabilities in Kenya.
The brief facts of the case are that in 2016, the Petitioner, Mr Wilson Macharia applied for a customer Experience Executive position at Safaricom PLC. The company had indicated that it is committed to creating a diverse environment, is proud to be an equal opportunity employer, and that all qualified applicants would receive consideration for employment without regard to race, colour, religion, gender, tribal origin, disability or age. Despite this express commitment, the company failed to integrate its customer service platform with the requisite software to enable Mr Macharia who is visually impaired to take up the position. Consequently, Mr Macharia sought for declarations to the effect that the company denied him employment based on his visual disability which amounts to discrimination; and that his right to be treated with dignity had been violated.
In his submissions, Mr Macharia relied on the Convention on the Rights of Persons with Disabilities (CRPD), which entered in to force in 2008, and forms part of the laws of Kenya by virtue of article 2(6) of the Constitution of Kenya 2010. Article two of the CRPD defines reasonable accommodation as ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’. Moreover, it defines Discrimination on the basis of disability to include the denial of reasonable accommodation. He further relied on article 5(3), as read in tandem with article 27(i) of the CRPD which implores state parties to take all appropriate steps to ensure that reasonable accommodation is provided in order to promote equality and eliminate discrimination in the work environment.
The Court found that the company had failed to demonstrate that it was impossible to employ the Petitioner based on his visual disability, as one needs not have sight to use, operate and work using a computer in the modern society. It also found the Company in breach of fair administrative action as it failed to act expeditiously, efficiently, lawfully, reasonably and fairly from the time it invited Mr Macharia for interviews, during the recruitment process, and in informing and inviting him to sign a contract, only to inform him that the job offer was erroneously made. This, in the Court’s view subjected Mr Macharia to great humiliation from fellow candidates, family members and friends, consequently violating his right to human dignity as enshrined under articles 28 and 54(1) of the Kenyan Constitution. The Court awarded Mr Macharia a compensation of Kshs.6,000,000/=.
The judgement is important as it reiterates the rights of all people, including persons with disabilities, to human dignity and fair administrative action. It also provides an opportunity for further strategic litigation and conversations on the subject of reasonable accommodation at the work place. Most importantly, it forms part of other disability rights related cases which confirm that the Courts provide a suitable avenue to reinforce the human rights of persons with disabilities.
The Centre for Human Rights welcomes and celebrates this decision. Mr Macharia is now a Doctoral Candidate at the Centre for Human Rights, Faculty of Law, University of Pretoria. He also works as a tutor and a researcher in the Disability Rights Unit at the Centre for Human Rights.
The full judgment of the case is available here.
For more information, please contact:
Tel: +27 12 420 3810
Fax: +27 (0) 86 580 5743
Wilson.Macharia@up.ac.za
