Introduction

The last two decades have witnessed furious attempts at defining the rights of persons with disabilities and linking these rights to human rights treaties. These attempts culminated in the passage of the convention on the rights and dignity of persons with disabilities, which brings the major principles and core values of the treaties as they relate to disability under one instrument.

Nevertheless, the convention will not in itself address all the difficulties experienced so far until States and society elevate the status of persons with disabilities. It is generally accepted that the greatest obstacle to attainment of dignity and the enjoyment of human rights by persons with disabilities is invisibility — absence from everyday consideration. Invisibility undermines the dignity and self worth of persons with disabilities and must be addressed if persons with disabilities are to be enabled to live and express their humanity. This paper discusses the major concepts around the right of persons with disabilities to work, with a view to clarifying and contributing to the debate about this right.

Right to work

In order to enjoy the right to work, persons with disabilities must be able to access the workplace and the work. G. Quinn G. and T. Degener convincingly argue: "work provides the material means for a life of independence. Access to work in the mainstream employment sector is therefore of crucial importance to people with disabilities as are the associated rights to just and favorable conditions of work and freedom of association" (2002: 99).

But what is work? To paraphrase Macha E. (2006, unpublished), work may be defined as any purposeful mental or physical activity that produces something of value. It does not necessarily involve financial remuneration. Work is thus a rewarding activity, an expression of a person's humanity and an indicator of a person's worth and esteem. Oudheusden comments that, though work does not make life perfect, being without is bound to make life imperfect (1995: 172; quoted in Macha 2002). There is no doubt that work creates a feeling of usefulness and self-fulfillment; it gives satisfaction, builds up personal dignity, brings a rhythm in our daily life, and offers opportunities for interpersonal contacts that provide the sunshine and the rain required for any growth and maturation.

In contrast, "employment" can be defined as work for cash income. Again, there is a distinction between self-employment and being an employee (employed by a firm or another individual). In the former, the income is received from the sale of one's own personal enterprise or from services rendered. On the other hand, when one is an employee income is received as a reward for producing for the owner of a firm or industry, called the employer (Macha 2006, unpublished). Generally, however, literature uses the two terms interchangeably, although to most people a discussion on "work" is really a discussion on "employment." Thus the International Labour Organization (ILO) convention 159 concentrates on defining disability and setting obligation minima for States parties in respect to persons with disabilities in terms that reflect an understanding of these concepts in the context of employment. Employment activities are carried out in the workplace which Quinn and Degener argue "must often be adjusted so that they reasonably accommodate workers with disabilities in order to ensure equal effective access to the right to work" (2002: 99).

The bottom line in the desire to improve employment opportunities for persons with disabilities lies in affordability. It must constantly be asked whether the action needed to recruit and retain a person with a disability gives value for money. This economic consideration lies at the heart of the matter. Employers hire workers for a specific purpose, namely to generate well-being for the employer. In industry this translates to high productivity leading to maximum profitability. In service organizations this translates to productivity, leading to better services for the greater number, which in turn leads to acceptance of the organization by the community it serves. In all these situations, the employer makes a choice and wants the best. It is not in the employer's interest to be charitable if being so undermines the level of returns to his investment.

Situating persons with disabilities

Persons with disabilities are a national asset whose productive potential cannot be ignored. They must be thought of as part of the general population, entitled to the same rights, privileges, services, and consideration as others and equally having the same responsibilities and obligations to themselves, their families, and the Nation.

The ILO Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. C 159) defines "a disabled person" as "an individual whose prospects of securing, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognised physical or mental impairment." Kenya's Persons with Disabilities Act (2003) does not define Persons with Disabilities for purposes of vocational rehabilitation and employment. Consequently the benefits envisaged in sec 12, 13, and15 of the Act will be difficult to ascertain in a court of law. The Act therefore gives poor policy guidance to the development of vocational rehabilitation training and employment programmes in Kenya.

The principle of equal treatment is enshrined in ILO recommendation No. 99 (1955) paragraph 29 (a), which states that, persons with disabilities "should be afforded an equal opportunity with the non-disabled to perform work for which they are qualified," and ILO recommendation 168 (1983), paragraph 8, which stresses gender equality in the employment of persons with disabilities.

Achieving the right to work

Data suggest that unemployment of persons with disabilities is prevalent in both rich and poor countries. It is generally accepted that persons with disabilities are much less likely to be employed than the rest of the population because of lack of education, vocational skills, and stereotypical attitudes which seriously undermine their employability, particularly in wage employment.

Inevitably the achievement of equitable and equal employment opportunities for persons with disabilities depends on the quality of rehabilitation services, especially early socialization and attitudinal development of:

1. persons with disabilities,
2. employers in the public and private sectors,
3. consumers and potential users of services and goods produced by persons with disabilities.

In the first instance, Vocational Rehabilitation offers the necessary skills (generic, technical, and daily living) to persons with disabilities to make them employable. In the second instance, Vocational Rehabilitation seeks to restore employability of persons who acquire disability while already employed.

Persons with disabilities must therefore be enabled to exploit vocational rehabilitation training and employment in such a manner as to achieve the optimum benefits for themselves, the rest of humanity, and the preservation of the environment and the resources therein. This is the essence of the philosophy of rights and obligations.

Obstacles to achieving the right to work

Work forms an essential part of every human being's requirement for living satisfying lives. With either wage employment or self-employment, particular skills are necessary for raising productivity. In wage employment, the selection of employees is based on suitability and acceptability. Quoting Vernon (1998), Macha explains that suitability, on the one hand, is functionally specific, relating to individual skills and qualifications required for a successful carrying out of the job in question (Macha 2002). On the other hand, acceptability is functionally nonspecific and centers around highly subjective judgments, such as: Will the recruit fit in? Is he or she dependable, reliable, and hard working? (Ibid.)

At the onset of disability, a person's right to work is interfered with, due to societal attitudes, economic considerations, and technological limitations. Employers fear costs resulting from absenteeism, transport problems, higher insurance premium, etc., which are associated with disabled employees. At the moment there exist very few support services to assist either the employers or employees with disabilities in such areas as needs assessment, work adaptation, counseling, or defrayment of costs of modification or adaptation of equipment or the workplace, especially in developing countries. This constitutes a denial of opportunity to persons with disability to exercise their right to work and self-fulfillment.

In addition, these barriers pose serious development issues. When a person with a disability is unable to work for whatever reasons, he/she becomes a dependant on those who are able to work and therefore cause a strain on their productivity. Also, persons with disabilities become a liability to themselves, as they tend to accept and purposefully demand that everything be done for them, hence encroaching on the time available to other members of the family and the community to do productive work.

The employer carries to his/her work place and to his/her choices the social attitudes acquired throughout life. These attitudes cover all aspects of life, including disability. Basically, the attitudes consist of:

1. Fear or uncertainty associated with society's inability to understand why disability occurs. This leads to rationalization through religious or metaphysical forces, e.g. curses, displeasure of the gods, sins of forefathers, etc. This attitude elicits either pity and sympathy or a sense of duty to assist the person with a disability:
2. Resentment leading to abandonment as a result of a belief that the occurrence of disability is unfair punishment to the family and society;
3. Indifference resulting from acceptance of disability as inevitable in life. This leads to acceptance of persons with disabilities for what they are, even if this acceptance is steeped in skepticism or doubt.

In turn, persons with disabilities present themselves to employers with a bagful of attitudes, predominant among them being either: Suspicion and hostility towards society; or Resignation, acceptance of society's view that they are incapable of doing anything for themselves.

A disabled worker with a set of attitudes characterized by hostility and suspicion will tend to be aggressive and at times difficult to handle. A disabled worker whose attitudes are characterized by resignation to fate is likely to prove meek, submissive, and lacking in forcefulness. Each of these groups of workers require specific work situations and work support, the provision of which may or may not encourage potential employers to offer employment opportunities to them.

These attitudes mutually reinforce one another and lead to stereotyping of persons with disabilities by society. Stereotypes play a significant role in determining whether a worker is deemed acceptable or not, and stereotypes regarding each group are widespread. Persons with disabilities are frequently stereotyped as dependent, helpless or "unfit" and, therefore, as less productive. Furthermore, women suffer additional stereotype of being regarded as "weak" and "emotional."

The extent to which legislative and administrative action facilitate enjoyment of the right to work

At the international level, certain administrative and legislative actions were taken to enshrine the rights of persons with disabilities in various spheres of life, including employment. Notable actions include ILO conventions and recommendations, The World Programme of Action, The Standard Rules on Equalization of Opportunities for Persons with Disabilities, and The Convention on the Rights and Dignity of Persons with Disabilities.

All these efforts declare that persons with disabilities are entitled to all the rights envisaged in the human rights treaties and imply that the human rights treaty bodies should therefore require compliance by States parties to the standards and reporting requirements. Quinn and Degener (2002) extensively examine the degree to which States parties have complied and conclude that, generally, States parties report on disability rights minimally, if at all. Thus the extent to which these administrative and legislative efforts facilitate the enjoyment of the right to work is negligible. Even dedicated instruments such as the ILO conventions and recommendations and the standard rules have either not been ratified (ILO convention 159) or are not binding on States parties (e.g. ILO recommendation 168, various UN disability declarations, and the standard rules) or are in the process of coming into force (Convention on the Rights and Dignity of Persons with Disability).

By and large, this ethos is replicated at the national level where administrative and legislative action is half hearted. At the formal employment level, the rights of persons with disabilities to employment is couched in passive language and the benefits envisaged for persons with disabilities are almost discretionary, since the language used is extremely vague. For instance, sec. 13 of the Kenya Persons with Disabilities Act 2003 provides that 5% of all employment opportunities are reserved for persons with disabilities but this provision is not backed either by incentives or compulsion. The effect is that employers can ignore these provisions without much punishment.

The same fate befalls self-employment. The Act envisages a development fund to enable persons with disabilities engage in self-employment, such as business, but this fund has not been operationalised because of lack of resources and political will (sec. 32 and 33). The overall effect is that persons with disabilities have to wait a little longer before their right to work can be supported by strong enforceable laws and politically backed administrative action.

Conclusions

Once an employer has made a choice to employ a person with a disability, he will be faced with the need to adapt either the work to suit the disabled worker or the disabled worker to fit the work. The more it costs to adapt, the less will the employer be willing to accept responsibility.

It is necessary for governments and non-governmental organizations to assist employers both financially and technically in work adaptation if employment opportunities for persons with disabilities are to improve to any degree. Employers will be expected to contribute to these costs but their contribution should be as near the cost of giving welfare to the non-disabled worker as possible. In turn, persons with disability must be equipped with the necessary skills required in the performance of tasks before them if they are to compete favorably with non-disabled workers in an already saturated labor market.

Economic considerations should not, however, be emphasized at the expense of humanitarian considerations, even though the best intentions depend to a large extent on availability of resources to make them. Barriers caused by societal attitudes or resource constraints must be identified and, as far as possible, be removed. This requires the concerted effort of a multiplicity of social agencies, not least persons with disabilities and their organizations.

It is imperative that both the employer and the disabled employee be assisted to acquire positive attitudes towards each other and to accept the challenges that arise once a worker-employer relationship is entered into.