Inclusive Public Space Project
1. Who this Guide is for
This guide is primarily for pedestrians with disabilities who have been affected by a problem when walking or wheeling in city streets. We hope it will also be helpful for older people and parents or carers who have had similar problems.
Examples of relevant types of problem are:
- Uneven surfaces, potholes etc;
- Lack of designated and accessible pedestrian space;
- Inadequate separation of pedestrians from motorbikes, cyclists and other vehicles;
- Crowds and congestion;
- Obstacles on walkways, such as hawkers and market stalls;
- Lack of controlled crossings with audio or tactile signals;
- Driver behaviour, including at crossings;
- Poor lighting;
- Poor drainage and open sewage channels.
If you have come across a problem like this and want to do something about it, this guide aims to inform your thinking about what possible actions you could take and how you could go about it. It also includes contact details for people or organisations who might be able to help you and links to sources of further information.
Please note – this guide is not legal advice. If you are thinking about suing somebody, it is important that you seek professional advice first.
2. The Problem and What you Want to Get Out of Follow-Up Action
2.1 Identifying the Cause of the Problem
When streets are difficult to use, we often assume this is because of something about us – our inability to see, hear, think or move in the same way as other pedestrians. This might be because we are a person with a disability or an older person, or because we are walking or wheeling with a young child, a pushchair or even a heavy bag. In other words, we internalise the problem. Believing the problem is caused by something about us that we can’t change makes us feel we can’t do much about it, except stay inside or perhaps try to go by tuk tuk, car or with somebody else next time. This can trigger feelings of helplessness, dependence and isolation.
Instead of internalising the problem though, we can think about whether there is an external cause. In other words, it is helpful to consider whether the problem has been caused by something to do with how the street has been designed, managed, maintained or used – something which could be changed or improved.
This approach is in line with the ‘social model of disability’. The social model has often been called the ‘big idea’ of the disabled people’s movement because of its influence over disability politics. It challenges an ‘individual model’ of disability, which locates the source of disablement within individuals who have (or who are thought to have) an ‘impairment’. An impairment is a level of functioning less than those which have become regarded as ‘normal’ – for example, limited sight, hearing, mobility, memory or cognition. The social model instead locates the source of disablement in societal factors outside the individual. So, on this view, ‘disability’ means the disadvantage or oppression that is created by society, and which can therefore be challenged and changed.
2.2 Getting and Keeping Evidence to Prove the Problem Exists
Having a detailed record of the problem will be helpful to most types of follow-up action. So, it is important to make a note of exactly where the problem is. An address will usually be enough. If the problem is physically small, like a pothole, it can also be useful describe what’s around it – e.g. by using an app like ‘What Three Words’ to get a more precise location.
It is also a good idea to take a photo or video of the problem. And, if somebody has seen you fall or injure yourself because of the problem, it might be helpful to ask if they would be willing to be a witness and tell others what they saw. If they are, remember to ask for their name and phone number.
2.3 Getting and Keeping Evidence of the Impact of the Problem
It is also useful to make a note of how the problem has affected you. Things to think about and note are:
- The nature of any injury you suffered because of the problem. If you had to see a doctor, ask them for a note documenting the injury.
- How any injury you suffered has affected you. For example, has it stopped you working, doing something else, or getting to where you wanted to be?
- Even if you weren’t injured, did the problem affect you in some way? For example, did it make you late for something important to you, stop you going somewhere you wanted to go, or force you to go a different and longer way around?
- How did the problem make you feel? For example, did it make you feel frightened, stressed or nervous about leaving the house and getting about on your own?
- What was the date when you ran into the problem? Have some of the effects of the problem on you been longer-term? If so, note when they started and when they finished or if they are still ongoing.
Keeping this sort of record is important if you decide to bring a case against somebody. It is also helpful if you decide on other types of follow-up action, such as reporting the problem to the county government, or campaigning for problems like this to be removed.
2.4 Identifying Who is Responsible for Causing the Problem
If somebody is ‘legally responsible’ for a harm, it means they can either be sued for it in a civil case or prosecuted for it in a criminal case. There are strict rules for deciding whether somebody is legally responsible. At this stage, it is helpful to think about responsibility more broadly than strict ‘legal responsibility’. This is because you may want to take follow-up actions that do not involve going to court.
Reflect on who could have done something that would have stopped the problem happening or made it less likely? And who could do something about it now?
More than one person or organisation will often have some responsibility for the problem. For example, if a car parked on the walkway is blocking your way, the driver of that car has some responsibility. If it was against the law to park there, the county government or police might also have some responsibility – for example, for not doing enough to let people know about the relevant law, or for not enforcing it strongly enough. If it wasn’t illegal to park there, then perhaps questions could be asked about whether the central or county government could have done more to make it illegal.
Similarly, if there is an open drainage channel because the covering has been stolen, the person who stole the cover has some responsibility. The authority responsible for looking after the road and keeping it safe also has some responsibility, if it is its obligation to repair the damage or prevent it happening. Police and witnesses may also be in a position to do something to reduce the risk of this kind of thing happening.
2.5 Deciding How Much You Want to Put in and What you Want to Get Out of Taking Action
Take some time to think about what you want to achieve. For example, do you want financial compensation for an injury or some other harm? Do you want the particular problem to be removed so you won’t come across it again? Do you want to stop that kind of problem happening anywhere else, so you and other people won’t run into it anywhere else in your town or perhaps in other towns too?
Your thoughts about what you want to get out of taking action are likely to be influenced by how much you would need to put in to making things happen. So extra questions to think about are:
- How much time do you want to put in?
- Do you want to work on your own or would you prefer to work with other people?
- Would you like to meet and work with other people who have been affected by the same sort of problem?
- Are you willing to spend some money or take the risk of losing some money? These questions are important to think about before deciding to sue somebody, and one of the reasons why it is important to get legal advice before going to court.
3. Types of Follow-Up Action
3.1 Reporting the Problem to Somebody who can Remove it or Stop it Happening Again
If the problem is caused by somebody who lives or works in your neighbourhood, consider letting them know about the problem and its impact on you. If you do not know them well, and are worried about how they might react, it is sensible to ask a friend, neighbour or other person to come with you. They might help explain the problem and advocate for you, or just be there to support you and give you confidence. Or, depending on the situation, you might prefer to ask them to speak to the person causing the problem without you being identified or present.
If the problem is in a public space (eg a walkway), it is always worth raising the issue with your county government. You can identify your county government using this link:
https://infohub.co.ke/2016/04/all-kenya-county-governments-contacts.html
3.2 Working with Others to Take Collective Action
Is the problem something you want to work with others to change? If so, consider contacting and joining one or more organisations working to address problems of the relevant type. Different types of organisations are likely to be working on the issue – at national or local level. Examples are:
- Road safety organisations;
- Human rights organisations;
- Disabled People’s Organisations;
- Older people’s organisations;
- Parents’ organisations;
- Pedestrian or walking organisations;
- Local community or neighbourhood groups.
3.3 Raising Public Awareness
Mainstream Media:
- Local newspapers
- Local radio
- Local television
Social Media:
- Blue Sky
- Facebook Groups
3.4 Seeking the Help of People Elected to Public Office
You can also take action by seeking help from somebody whose role it is to represent you in their elected office.
At the local level, you can write to your member of county assembly. Details of how to find out who they are and how to contact them in Nairobi County and Mombasa County are at:
https://nairobiassembly.go.ke/
https://www.mombasaassembly.go.ke
At the national level, you can contact your Member of the National Assembly or Senate. Online information on them are at:
http://www.parliament.go.ke/the-national-assembly/mps
3.5 Letting the Police Know About the Problem
If you think the problem in question amounts to a crime, you can contact the police to report it. Unless there is a real emergency, you should not dial 999. The Kenya Police Service website provides more information on what to report and how to report it:
3.6 Bringing a Case for Disability Discrimination
If you think you might have a case for disability discrimination under Article 27 of the Constitution, it is worth seeking legal advice. Bringing a case, particularly without a lawyer, can be very demanding. It can also be expensive, although it doesn’t have to be.
Working out where to go for legal advice can be daunting. Kituo cha Sheria is a good source of free advice. You can find information on their services at:
The National Council for Persons with Disabilities provides legal advisory services for persons with disabilities, their families and carers on various issues including disability discrimination. You can find information on their services at:
The National Gender and Equality Commission has the mandate to promote and ensure gender equality, principles of equality and non-discrimination for all persons in Kenya (with a focus on Special Interest Groups, including persons with disability, older members of society, minority and marginalised groups) as provided for in the Constitution of Kenya 2010. You can find information about the Commission at:
The Article 48 Initiative is a women-led organization by and for persons with disabilities. They provide legal aid, legal support and training on disability law and policy. You can find information about the Article 48 Initiative at:
https://article48initiative.org
The Kenya National Commission on Human Rights has a broad mandate to promote and protect human rights in Kenya. The Commission provides some legal services to the public through the receipt and processing of complaints and offers complainants legal advice. You can find information about the Commission at:
3.7 Bringing a Case for Negligence or a Related Type of Legal Wrong
If you have been injured or suffered some kind of economic loss because of somebody’s lack of care, you might consider bringing an action for what is called ‘negligence’. To find out whether this is a possibility, you should seek legal advice. The sources of legal advice mentioned at the beginning of Section 3.6 above are good starting points for this type of claim, as well as for discrimination claims.