The Republic of Mauritius has a population of about 1.3 million, with 1 255 020 inhabitants on the Island of Mauritius; 38 240 on the Island of Rodrigues and 289 in Agalega.2
Statistical data concerning the prevalence of disability in Mauritius is obtained from the 2011 Population Census conducted by Statistics Mauritius found under the aegis of the Ministry of Finance and Economic Development, which is the ‘official organisation responsible for collection, compilation, analysis and dissemination of the official statistical data relating to the economic and social activities of the country’.3
For purposes of data collection, disability is primarily defined as ‘any limitation to perform a daily life activity in a manner considered normal for persons of their age’.4 The different criteria to determine whether a person falls within the class of persons with disabilities are as follows:5
According to the 2011 Population Census, there are approximately 59 200 persons with disabilities in Mauritius, representing 4,8 per cent of the population.6
About 30 900 women live with disabilities in Mauritius and this accounts for 51,6 per cent of the population of persons living with disabilities.7
Physical disabilities are the most prevalent form of disability in Mauritius, these account for 42 per cent of the population living with a disability.8 This is followed by persons with visual impairments, amounting to 24 per cent.9 Persons who have difficulty remembering, concentrating or acquiring education and learning account for 20 per cent of the population of persons living with disabilities.10
Mauritius signed the United Nation Convention on the Rights of Persons with Disabilities (CRPD) on 25 September 2007 and ratified the document on 8 January 2010.11 However, Mauritius has placed reservations on articles 11,12 9(2)(d)13 and 24(2)(b)14 of the CRPD.
Mauritius acceded to the International Covenant on Civil and Political Rights (ICCPR) on 12 December 1973.18 The last state report that Mauritius submitted was on 27 May 2004, the due date of which was 4 November 1993.19 Paragraphs 110 to 113 of the report highlight the measures that have been adopted by Mauritius to prevent discrimination against PWDs.20 Concluding observations on the report were adopted on 27 April 2005 but there were no recommendations concerning the rights of PWDs.21
Mauritius acceded to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on 9 July 1984.22 The latest state report which was considered by the CEDAW on 12 August 2010 made no specific reference to the rights of PWDs.23 However, the Concluding Observation of the Committee on the Elimination of Discrimination against Women,24 highlighted the lacunas concerning the rights of women who are living with a disability in the following paragraphs:
The Committee notes that Mauritius’ state report lacked information and statistics about disadvantaged groups of women, including rural women, elderly women and women with disabilities, who often suffer from multiple forms of discrimination.
The Committee invites Mauritius to provide, in its next state report, a comprehensive picture of the de facto situation of disadvantaged groups of women, including rural women, older women and women with disabilities, in all areas covered by the Convention.
The above Covenant was acceded to by Mauritius on 12 December 1973. Mauritius submitted its most recent report on 3 March 2008, which was due on 30 June 1995. Although Mauritius was reporting under the ICESCR, the report also made reference to the provisions of the CRPD and emphasised how the government is taking measures to protect the rights of PWDs.25 The following areas were reported on: training and employment of PWDs;26 inclusivity;27 pensions and allowances;28 assistive devices;29 education;30 accessibility;31 sports culture and leisure;32 basic benefits;33 and mental health care.34 The Committee on Economic, Social and Cultural Rights, made the following recommendations with regard to PWDs in its concluding observations:35
Mauritius ratified the African Charter on Human and Peoples’ Rights on 19 June 1992.39 The 2nd, 3rd, 4th and 5th combined state report submitted on 1 January 2008 under the African Charter on Human and Peoples’ Rights made reference to the steps taken by the government to ensure a better protection of the rights of
Mauritius’ first Universal Periodic Review (UPR) was conducted on 10 February 2009 and numerous countries raised concerns about Mauritius not having ratified the CRPD at that time.43 The last Universal Periodic Review for Mauritius was conducted on 23 October 2013 during the seventeenth session of the Working Group on the Universal Periodic Review.44 The following recommendations were adopted:
The ratification of international and regional human rights instruments led to the adoption of many laws aimed at the protection of human rights. Some of the laws pertaining to the rights of PWDs are as follows:
The 1968 Constitution of the Republic Mauritius (Constitution of Mauritius) and other legislation make no reference as to whether there is a need to incorporate an international instrument into Mauritius’ legal system for it to have any force of law. Since the practice of dualism is more popular in Commonwealth African Countries,55 it has been the practice of Mauritius to adopt a law in the Parliament for it to be binding.
The judiciary have, in several instances, emphasised that Mauritius is not bound by international instruments that had not been incorporated in the domestic legislation. In the case of Matadeen v Pointu56 the court held that ‘ ... a State Party is not obliged to incorporate the provisions of the Covenant into its domestic law ... [f]urthermore, interpretation of the Covenant allows a “margin of appreciation” to the State Party in deciding what amounts to the equal protection of the law and there is no reason why that margin of appreciation should be engrossed by the judicial branch of government rather than the legislature or executive’.
In Jordan v Jordan57 it was highlighted that ‘ ... whilst our Constitution proclaims that Mauritius shall be a sovereign democratic State, it also establishes the principle of separation of powers; that each of the three arms of Government has a distinct role to play and each should confine itself to its specific domain; that there was a need for the Legislature to pass the necessary legislation to incorporate a Convention (which is usually acceded to by the Executive) into our municipal law before the Judiciary can take cognizance of it and apply it as its own domestic law’. In Pulluck v Ramphul58 it was concluded that ‘[t]he provisions contained in international instruments can therefore hardly be of help to respondents when there is no evidence of their incorporation into our domestic law’.
Finally, Ex Parte Hurnam Devendranath, a Barrister-at-Law59 clearly established that ‘[i]t is a well-settled principle that unratified and unincorporated treaties are of no direct effect in our courts’.
Although there is no specific domestic piece of legislation that directly concern the rights of PWDs, the acts listed in 2.4 above each ensures that the rights of PWDs are protected in all spheres of life. The new Government Programme 2012-2015 presented by the then Acting President of Mauritius on 16 April 2012 stipulates that the government intends to introduce a Disability Bill which will give directly give effects to the provisions of the CRPD.60
Section 16(3) of the Constitution provides for an exhaustive list of factors on which people cannot be discriminated against. Disability does not form part of this exhaustive list.61
The TEDP establishes a Board, known as the Training and Employment of Disabled Persons Board, which has to fulfil the following functions:62
It further provides for the establishment of a register for PWDs and imposes an obligation on employers to provide for suitable employment63 for PWDs64 without any discrimination on the grounds listed in section 16 of the TEDP.
[T]o aid, train and educate all deaf persons in Mauritius; to assist them in obtaining medical treatment and suitable employment; to grant them any material relief of which they may be in need; to erect, open and manage such training centres, schools and hostels as may be deemed necessary.
The LLTFA establishes a Lois Lagesse Trust Fund,69 which has as its objective the facilitation of persons with visual impairments in the mainstream. The aims of the Lois Lagesse Trust Fund are as follows:70
The EOA prohibits direct or indirect discrimination pursuant to section 5 and section 6 of the Act. In both sections, discrimination based on the ‘status’ of the aggrieved person is prohibited. The interpretation section (section 2) of the EOA includes impairment in the definition of ‘status’. It implies that discrimination on the grounds of disability is illegal under the EOA.
The NSF Act can be indirectly interpreted as being of financial assistance to persons with disabilities. For instance, Section 4 of the Act provides that citizens in need of financial assistance to undergo medical treatment in foreign institutions can financially benefit from this fund.
The NPA caters for disabilities arising out of accidents in employment and financial assistance required in the form of pensions. Section 8 provides for invalid basic pensions71 whereas section 26 caters for disablement pensions and allowances. There is equally monetary aid provided to former employees who fell victim to industry injuries.
The SAA provides for social assistance to not only a person with disability, but the aid also extends to others who may be dependent on the persons with the disability. Section 3 qualifies a person and the dependants as a beneficiary of social aid if, as a result of any physical or mental disability, one is temporarily or permanently incapable of earning adequately his livelihood, and has insufficient means to support oneself.
The CPA provides for the child mentoring scheme which takes care of child victims of neglect, suffering from mild behavioural problems, are in distress or having problems of social adaptations. These problems are often seen in children with disabilities. Under this scheme, they can be properly mentored and looked after. Sexual offences on children with disability, ill treatment or abandonment or forcing a child with a disability to beg would also amount to a criminal offence under the CPA.
The OCA ensures that the rights, needs and interests of children including children with disabilities, are given full consideration by public bodies, private authorities, individuals and associations of individuals. It also helps to promote the best interests of the child and promote compliance with the CRPD.
Persons with disabilities whose contract is being terminated can receive compensation under the ERA. The ERA also provides for a workfare programme. The workfare programme consists of the payment of a transition unemployment benefit to a worker whose agreement has been terminated.
Under the UHRA, a person with a disability who is not working may get monetary assistance from the state. According to section 3, any person below the age of 60 with a wife or a child or who has a disability shall be qualified to claim hardship relief.
To ensure that persons with impaired mobility and communication have access to buildings in a comfortable manner, section 3 of the BCA provides for accessibility as one essential building requirement.
Section 3 of the HAA explicitly states that HIV or AIDS are not to be considered as a disability. One’s HIV status cannot be used as a ground to discriminate against that person. The Act further mentions that HIV or AIDS cannot be regarded as a disability or incapacity in any other act of Parliament also.
The NPP, which has the title ‘Valuing people with disabilities’, recognises that ‘without a commitment from Government, civil society and Disabled People Organisations, (DPOs), the rights of persons with disabilities can never triumph over prejudice and discrimination’.73 Chapter 4 of the document expands on the guiding principles, policy objectives and goals. Chapter 5 lays down the National Plan of Action and the recommendations to be followed to ensure a better protection of the rights of PWDs.
The SEN recognises that children with disabilities should attend school and that it is important for the government to have a strategic plan for inclusion and special educational needs. SEN provides for recommendations for a sustainable special education needs strategy.
Children with a disability registered at the Disability Unit, which is under the aegis of the Ministry of Social Security, National Solidarity and Reform Institutions, have the privilege of regularly participating in leisure activities organised by the Ministry of Social Welfare.
The Equal Opportunities Tribunal established in terms of Part VII of the EOA is an additional platform where issues pertaining to violations of rights of people with disabilities may be addressed. The above Tribunal has jurisdiction in matters referred to it by the Equal Opportunities Division. Section 41 of the EOA provides for appeal to the Supreme Court from the decision of the Equal Opportunities Tribunal if one is not satisfied with the proceedings before it.
Apart from the organisations in 4.1 above, there are about 62 non-governmental organisations, which represent and advocate for the rights and welfare of PWDs in Mauritius.80 Some of these organisations are as follows:
The CEDEM was founded in 1984 and its main objective is to ensure that all vulnerable children have a better quality of life. It has schools which host children with disabilities and slow learners and also concentrates on family counselling.
One of the projects of the Century Welfare Association is the Century Special Education Needs School for children with disabilities between the age of 5 and 15. According to the school’s website the objectives are ‘to provide access to proper attention and care’, ‘to enhance self-esteem and confidence building’, and ‘to provide appropriate education and promote self-development’.83
The Southern Handicapped Association was registered with the Registrar of the Association in 1986 and was affiliated with the Ministry of Social Security in 1987. It runs a day care centre for children and adolescents with disabilities. Its current project is the creation of a pre-primary unit for children with mental disabilities aged from 3 to 5 years old.
The APEIM is ‘responsible for the care, support, development and well-being of children and adults with developmental disabilities, moderate to severe mental handicap, in some cases with other related disorders’.
The APDA provides for special education, training, sports and cultural activities for children with hearing impairment. It also runs courses on sign language and an adult education programme for deaf persons.
‘Liziedan la main’ was set up in 1981. It engages in the rehabilitation of visually impaired persons. Its services cover eye care, education, training the organisation of recreational/leisure activities such as music and sports.
In Mauritius, DPOs are regulated by different boards. Some of them are the National Council for the Rehabilitation of Disabled Persons, the Training and Employment of Disabled Persons Board, the Lois Lagesse Trust Fund, the Society for the Welfare of the Deaf and the NGO Trust Fund.
To gain recognition as a DPO, an association must apply for registration under section 6 of the Registration of Associations Act 1978.86
DPOs are generally involved in workshops and conferences that are organised by relevant ministries. Their participation, as mandated by the CRPD, is ensured by their presence and in some cases by the possibility of submitting reports.87 However, it is important to highlight that due to the absence of the rights of PWDs and public interest litigation or class action in the Constitution, it becomes quite complex for DPOs and NGOs to ensure a better protection of the rights of PWDs through constitutional litigation.
The Universal Periodic Review (UPR) for Mauritius was conducted in 2013 and about 20 DPOs came together to present a report on that occasion. They pointed out the main issues and provided for recommendations to be considered.
There is no proper legal or normative framework concerning DPOs. The nature and the understanding of the role and functions of NGOs or DPOs, by themselves, are questionable. DPOs tend to work in a vacuum where only a single relationship is defined, the one between themselves and the state or financial partners. Information about their activities is most of the time not disseminated and they do not seek assistance from third parties. For instance, academics, the university and research tanks are never involved in what they do. There are few efforts to develop a partnership and working relations between various stakeholders. This is a huge barrier impeding the proper functioning of DPOs.
Training and education in the field of disability is essential. It is often observed that officers of DPOs are not necessarily qualified to handle issues on disabilities. There is a lack of training of persons who engage in DPOs. In addition, fostering links with other regional DPOs is equally important but this is not currently present in the Mauritian context. This actually impacts on their financial capacity and they fail to be part of important associations of DPOs that benefit from donor aids.
As highlighted in 9.5, there is a need for proper legislative framework within which DPOs can operate. The government should therefore strive towards setting up a legal framework, which will facilitate the operation of DPOs in Mauritius. Apart from the Registration of Associations Act, DPOs do not get legal support and structure from any other legislation. Their functioning, the modes of operation and their financing are not harmonised and well publicised.
The Ministry of Social Security, National Solidarity and Reform Institutions has the Disability Unit which is responsible for promoting and protecting the rights and welfare of PWDs. The activities of the Disability Unit are as follows:88
The Mauritian society still looks down on PWDs.89 The reservation that Mauritius has on article 9.2(d) of the CRPD acts as a barrier for accessibility for PWDs. There are no public transportation means that accommodate PWDs in Mauritius. This therefore prevents PWDs from moving around independently. Furthermore, there is a lack of ‘accommodations for PWDs’ during elections.90
The Building Control Act 2012 makes provision for PWDs to access buildings. However, the reservation purporting to article 9.2(d) of the CRPD is a challenge for PWDs since the government of Mauritius does not feel obliged to make sure that all buildings accommodate PWDs.
The Ministry of Social Security, National Solidarity and Reform Institutions provides for a number of social security measures for registered PWDs such as a carer’s allowance, constant attendance allowance, special allowance and child allowance.
The reservation to article 24.2(b) of the CRPD acts as a barrier for Mauritius to provide free inclusive education to children with disabilities. They have to either go to specialised schools or face the challenges of being in the mainstream education without any accommodation for them.
Section 33 of the Mauritian Constitution provides for the qualification for membership of the Parliament and it makes no reference to PWDs. However, section 34 states that a person is disqualified from membership if he ‘is a person adjudged to be of unsound mind ...’.91 Nevertheless, no disqualification is made regarding a person with a physical disability. It is noteworthy that in 2009, a person with visual impairments was elected as a Mayor in one of the towns.
Socio-economic rights are not generally protected by the Constitution. However, the Ministry of Health and Quality of Life ensures that everyone has access to healthcare systems in the public hospitals. Moreover, there is a Mental Health Care Act of 1998, which ensures that persons with mental disabilities have access to health.
The Concept of a one-stop shop as the principal provider of social services to persons with disabilities is being envisaged by the Government. However, the actions of the Government towards realisation of this project has been very slow with seven years down the line without much progress.
It is proposed that first there must be a proper domestication of the CRPD to provide for the proper legal structure and to hold the government accountable. Consequently, based on those obligations, it would then be possible to pressurise the government whenever such 'statements' are made without appropriate actions.
There equally needs to be a proper educational campaign on disability rights in Mauritius. As it is, the social and compassionate aspect in relation to persons with disabilities are not at all lacking. Mauritians help and contribute socially when it comes to Persons with Disabilities. However, what is equally important is that they work towards the empowerment of those people by acknowledging their rights and start pushing through a legal agenda for them by lobbying various stakeholders.
2. Statistics Mauritius ‘Population and vital statistics: Republic of Mauritius, year 2012’ (2012) 2, available at http://statsmauritius.gov.mu/English/StatsbySubj/Documents/ei1018/Amen ded%20FINAL%20_ESI%202012.pdf (accessed 5 March 2014).
3. Official site of Statistics Mauritius, available at http://statsmauritius.gov.mu/English/Pages/default.aspx (accessed on 5 March 2014).
4. Statistics Mauritius ‘2011 Population Census - Main Results’ (2011) 19, available at http://stats mauritius.gov.mu/English/CensusandSurveys/Documents/ESI/pop2011.pdf (accessed 5 March 2014).
7. Statistics Mauritius ‘Gender statistics, 2012’ (2012) 10, available at http://statsmauritius.gov.mu/English/StatsbySubj/Documents/ei1052/gender.pdf (accessed 5 March 2014).
11. UN Website, available at http://www.un.org/disabilities/countries.asp?navid=17&pid=166 (accessed 12 March 2014).
12. Article 11 of the CRPD: ‘States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.’
13. Article 9.2(d) of the CRPD: ‘States Parties shall also take appropriate measures to ... provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms.’
14. Article 24.2(b) of the CRPD: ‘In realizing this right, States Parties shall ensure that ... persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live.’
15. Article 33(1) of the CRPD provides for a focal point within governments in the following terms: ‘States Parties, in accordance with their system of organization, shall designate one or more focal points within government for matters relating to the implementation of the present Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels.’
16. Website of the government of Mauritius, available at http://www.gov.mu/portal/sites/disability/index.htm (accessed 13 March 2014).
17. A copy of the report is available on the website of the Office of the High Commissioner for Human Rights at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbol no=CRPD%2fC%2fMUS%2f1&Lang=en (accessed 13 March 2014).
18. United Nations Treaty Collection Database, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (accessed 13 March 2014).
20. HRC ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Fourth Periodic Report, Mauritius’ CCPR/C/MUS/2004/4 28 June 2004, available at file:///C:/Users/User.CREATEK2012/Downloads/G0442345.pdf (accessed 13 March 2014).
21. HRC ‘Consideration of reports submitted by States Parties under article 40 of the Covenant-Concluding Observations of the Human Rights Committee-Mauritius’ CCPR/CO/83/MUS adopted on the 83rd session on 27 April 2005, available at file:///C:/Users/User.CREATEK2012/Downloads/G0541376%20(3).pdf (accessed 13 March 2014).
22. Office of the High Commissioner for Human Rights ‘Ratification status for CEDAW’, available at http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?Treaty=CEDAW&Lang=en (accessed 13 March 2014).
23. Office of the High Commissioner for Human Rights ‘CEDAW/C/MUS/CO/6-7’. French version available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno= CEDAW%2fC%2fMUS%2f6-7&Lang=en (accessed 16 May 2014).
24. ‘Concluding Observations of the Committee on the Elimination of Discrimination Against Women’, 8 November 2011, adopted on the fiftieth session CEDAW/C/MUS/CO/6-7, available at file:///C:/Users/User.CREATEK2012/Downloads/G1146814.pdf (accessed 13 March 2014).
25. Report submitted to the Economic and Social Council-implementation of the International Covenant on Economic, Social and Cultural Rights-fourth periodic report submitted by States Parties under articles 16 and 17 of the Covenant-Mauritius 3 March 2008 E/C.12/MUS/4.
35. Concluding observations of the Committee on Economic, Social and Cultural Rights-consideration of reports submitted by states parties under articles 16 and 17 of the Covenant-forty fourth session-8 June 2010.
39. African Commission’s website ‘Ratification table: African Charter on Human and Peoples’ Rights’, available at http://www.achpr.org/instruments/achpr/ratification/ (accessed 14 March 2014).
40. The report is available at http://www.achpr.org/files/sessions/45th/state-reports/2nd-5th-2008/staterep2345_mauritius_2008_eng.pdf (accessed 14 March 2014).
41. African Commission on Human and Peoples’ Rights-consideration of reports submitted by states parties under article 62 of the African Charter on Human and Peoples’ Rights-concluding observation on the 2nd, 3rd, 4th and 5th Periodic Reports of the Republic of Mauritius forty-fifth ordinary session, 13-27 May 2009.
43. The report of the Working Group is available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/116/86/PDF/G0911686.pdf?OpenElement (accessed 14 March 2014).
55. JO Ambani ‘Navigating past the “dualist doctrine”: The case for progressive jurisprudence on the application of international human rights norms in Kenya’ in M Killander (ed) International law and domestic human rights litigation in Africa (2010) 27.
60. Para 52 of the Government Programme 2012-2015, available at http://primeminister.gov.mu/English/Documents/Govt_Prog2012-15.pdf (accessed 16 May 2014).
61. Sec 16(3) of the Constitution of Mauritius: ‘In this section, 'discriminatory' means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description.’
71. Section 8(1) of the NPA: ‘Subject to section 10, a person shall be qualified to receive an invalid's basic pension where -(a) he is disabled and is likely to be so disabled for a period of at least 12 months; and (b) he has reached the age of 15 and is under the age of 60.’
72. Ministry of Social Security, National Solidarity and Senior Citizens Welfare and reform Institutions ‘National Policy Paper and Action Plan on Disability - “Valuing People with disabilities”’ (2008) available at http://www.gov.mu/portal/sites/disability/policypaper.pdf (accessed 18 March 2014).
74. Ministry of Education and Human Resources ‘Special Needs and Inclusive Education in Mauritius - The Policy and Strategy Document’ (2006), available at http://ministry-education.gov.mu/English/educationsector/Documents/sen.pdf (accessed 18 March 2014).
75. ‘Government Programme 2012-2015: Moving the Nation Forward’ (2012), available at http://www.labourparty.mu/programme/Govt-Address-2012.pdf (accessed 18 March 2014).
80. A list of organisations of PWDs in Mauritius is available at http://www.gov.mu/portal/sites/disability/list.pdf (accessed 18 March 2014).
81. CEDEM’s website: http://www.lecedem.org/services.htm (accessed 19 March 2014).
82. Cypres Handicapped Association’s Website, available at http://cypreshandicappedasso.intnet.mu/ (accessed 19 March 2014).
83. Website of the Century Welfare Association, available at http://www.centuryassociation.org/services/special-needs-school (accessed 19 March 2014).
84. Website available at http://www.apeim.org/index.php?langue=eng (accessed 19 March 2014).
85. Liziedan la main’s website is available at http://www.ldlm.intnet.mu/ (accessed 19 March 2014).
(4) Where the Registrar is of opinion that the association does not comply with this Act or, as the case may be, with the Sports Act 2001, he shall give written notice to the secretary of the failure to comply and afford the association a reasonable time in which to comply with this Act or as the case may be, with the Sports Act 2013.
88. Website of the disability unit is available at http://www.gov.mu/portal/sites/disability/index.htm (accessed 19 March 2014).
90. US Department of State Affairs ‘Mauritius-Executive summary’ (2011) 8, available at http://www.state.gov/documents/organization/186432.pdf (accessed 19 March 2014).