- Magdolna Birtha
- MA (Sociology) (ELTE University, Budapest)
- PhD Candidate, Centre for Disability Law and Policy, National University of Ireland, Galway
- (2013) 1 ADRY 115-138
- Download article in PDF
The study forms part of three years of research funded by the European Union under the DREAM (Disability Rights Expanding Accessible Market) FP7 Marie Curie project. The title of the research is: European and National Monitoring of the UN CRPD with a special focus on civil society involvement. Further information on the DREAM project can be found at http://www.nuigalway.ie/dream/(accessed 5 September 2013).
Special thanks go to Wamundila Waliuya and Milika Sakala, who have been extremely helpful and inspiring during the field trip in Zambia. Without their help this study could not have been written. I would like to thank to all interviewees working for various disability organisations in Zambia, who generously offered their time and shared their expertise. I am grateful to my supervisor, Professor Gerard Quinn, for all of his precious comments.
Article 33 of the UN CRPD is the most comprehensive provision referring to national level implementation and monitoring ever included in an international human rights treaty. It requires states parties to establish a triangular mechanism comprising of government, an independent element and civil society, in particular organisations of persons with disabilities (DPOs), to handle and monitor the implementation of the Convention. Bearing in mind that the human rights model introduced in the CRPD shall be applied to a historically marginalised group, the fulfilment of this obligation is essential but also challenging. Nevertheless our knowledge is very limited on the criteria of effective involvement. This chapter intends to explore and identify some of the key factors of active and effective civil society participation in policy-making through the example of Zambia. The paper also discusses the financial challenges of a developing country when implementing and monitoring the UN CRPD. In Zambia the disability movement took the leading role and initiated the establishment of the Independent Monitoring Unit (IMU). Since the Human Rights Commission of Zambia - as the Paris Principle compliant independent body - does not actively participate in the work of the monitoring body, the Zambian solution to implement article 33 of the CRPD cannot be considered as a good practice. However, it is certainly an interesting case study on the empowerment and involvement of the organisations for persons with disabilities. It is important to consider how far we can take the principle ‘Nothing about us without us!’ to ensure the participation of the disability movement but also achieve compliance with the CRPD.
The UN Convention on the Rights of Persons with Disabilities (CRPD or the Convention) seeks to ensure the full and equal enjoyment of human rights for the estimated 650 million persons with disabilities in the world facing multiple discrimination.1 Approximately 80 per cent of them are living in developing countries.2 Since the existing human rights conventions were theoretically inclusive of disability, but were insufficient in challenging national laws that excluded the rights of persons with disabilities, there was a strong need for the Convention addressing the human rights of persons with disabilities in particular. The Convention does not create any new rights, but intends to tailor general human rights to persons with disabilities under the overarching philosophy of non-discrimination. The CRPD merges civil and political and socio-economic rights within an international human rights treaty. Most importantly, the CRPD represents a paradigm shift from the ‘medical model’ of disability to the human rights model. The new approach no longer considers persons with disabilities simply as beneficiaries of charity or welfare, but as holders of the same rights as anyone else in society. As Lewis points out, the CRPD has the potential to become a transformative international legal instrument, which innovates by driving a new politics of disability.3
Article 33 of the CRPD is arguably the most comprehensive provision on national level implementation and monitoring ever included in an international human rights treaty.4 No other previous UN convention comprises such an explicit reference to domestic interpretation. The only partially comparable example to article 33 of the CRPD could be article 3 of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), which requires states parties to designate or maintain a ‘national preventive mechanism’.5 As the report of the Mental Disability Advocacy Centre (MDAC) highlights, article 33 of the CRPD articulates the general principle of participation that runs throughout the treaty to ensure states parties involve persons with disabilities in interpreting and implementing CRPD rights (article 3 of the CRPD).6 Persons with disabilities and their representative organisations have actively participated in drafting the Convention. This momentum was the beginning of a long process to enable the disability movement to speak on its own behalf and fight for the realisation of human rights as equally acknowledged and respected members of society.7 The empowerment of the disability movement is probably the key element in understanding the CRPD.
This paper focuses on the Zambian solution to designate an article 33 monitoring framework. There is a very strong disability movement in Zambia, which intends to fully participate in the implementation of the CRPD. Since the government did not take any steps to designate an article 33 framework, some representative organisations of persons with disabilities initiated the establishment of the IMU. They believe that persons with disabilities should play the leading role themselves, in line with the Convention, when implementing the CRPD. Yet, the well-known slogan from the drafting process of the Convention - ‘Nothing about us without us!’ - raises some unanswered questions. We can certainly consider it as a way to correct past exclusions, as it guarantees that the voice of civil society is heard during policy-making. The question is how far to take this principle to ensure participation of persons with disabilities, but avoid the situation of civil society becoming the sole owner of policy-making? The CRPD does not intend to give the role of policy-maker to civil society, but wishes to empower persons with disabilities and their representative organisations to participate in a meaningful way in all decision-making processes relating to their lives.
According to article 33(1) of the CRPD, states parties shall appoint one or more focal points within government for matters relating to the implementation of the Convention. Focal points are therefore an issue of internal public administration and have to be formally designated.8 Countries can choose, depending on the structure of the state to designate one focal point in the most relevant ministry for disability matters, or designate several focal points (sub-focal points) in different departments. Sub-focal points are often designated in federal states where responsibilities are shared between various layers of government.9 Gatjens provides a non-exhaustive list of requirements for the focal point.10 He highlights that, amongst other characteristics, the designated entity should be close to the central authority that issues policies and has an effect on the government departments. If the government has an in-depth understanding of the paradigm shift addressed in the CRPD neither the Ministry of Health nor the Ministry of Social Affairs would be appointed as article 33(1) bodies.11 It is very important that staff of the designated entity have a comprehensive knowledge about the social/human rights model of disability. Adequate resources and a stable budget are necessary for the focal point to effectively perform its duties around the CRPD implementation.
It is not an obligation but article 33(1) also mentions the establishment of a coordination mechanism, which aims to facilitate the co-operation between governmental bodies to avoid adopting isolated measures at different departments.
[M]aintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.
Article 33(2) of the CRPD makes a clear distinction between three dimensions (promotion, protection and monitoring), where tasks need to be carried out in regard to the implementation of the CRPD. These activities are listed in the thematic study of the United Nations High Commissioner for Human Rights.12 Promotion includes scrutiny of compliance of draft legislation to ensure consistency with the obligations under the Convention, scrutiny of existing legislation, regulations and practices, awareness raising, human rights education and research. Protection shall cover investigation and examination of individual and group complaints, litigation, conducting enquiries, issuing reports and filing amicus curiae briefs. Monitoring includes collecting data and information on human rights violations, developing indicators and benchmarks, assessing progress, visiting places where violations often occur and the contribution to State Reports to the UN Committee. The framework, established under article 33(2) of the CRPD shall include at least one independent mechanism that is compliant with the Paris Principles. As Waddington points out, unfortunately the High Commissioner’s report does not specify whether this independent mechanism must play a role in all three tasks of the framework.13
According to article 33(3) of the CRPD, civil society, in particular persons with disabilities and their representative organisations shall be involved and participate fully in the monitoring process of the Convention. The word ‘shall’ leaves no doubt on the binding nature of this provision. As it was mentioned earlier, the concept of ‘participation’ runs throughout the whole Convention as a general principle. Article 4(3) of the CRPD refers to the importance of involving persons with disabilities in all policy and decision-making processes concerning their lives. Paragraph (o) of the Preamble to the CRPD also emphasises that persons with disabilities should be actively involved in decision-making processes, policies and programmes, including those directly concerning them. These articles of the Convention clearly present a paradigm shift from the medical to the human rights model. There is a clear reference that persons with disabilities are not objects of charity, care or pity anymore but rights holders and active citizens who may wish to participate in monitoring the fulfilment of their human rights.
The well-known mantra ‘[n]othing about us without us!’ and the involvement of persons with disabilities should be considered as one of the key elements in the successful implementation of the CRPD. Considering the invisibility of persons with disabilities in the human rights system, this provision is an extremely important challenge in all states parties. However, the Convention does not give instructions on how to establish a partnership between the disability movement and the governing bodies. Considering the conceptual complexity of ‘participation’, it is necessary to take a comprehensive look and define the critical success factors. The guidelines of the Mental Disability Advocacy Centre on article 33 of the CRPD present a set of requirements to achieve meaningful participation.14 First and foremost involvement should happen in a structured manner and cannot be fully realised through ad hoc methods. Meaningful participation of the organisations of persons with disabilities should be guaranteed by capacity building and obtaining necessary knowledge. Accessibility, transparency and the availability of multiple forms of involvement are other important assets.
As Quinn points out, the triangulation articulated in article 33 requires a balance of power and functions between the government, the national human rights institution and civil society.15 The government is deemed to be responsible to ensure and promote the full realisation of human rights and fundamental freedoms for all persons with disabilities in line with article 4 of the CRPD. Therefore they must coordinate the implementation of the Convention across and within different departments. In order to ensure the accountability of the state and guarantee that international law provisions become a reality, a framework shall be designated including one or more independent elements. Independence is understood according to the Paris Principles. The United Nations Paris Principles provide the benchmark for national human rights institutions (NHRI) to be accredited and define at which level they may participate in the work of national human rights institutions.16 The NHRI is usually the human rights commission, the equality body or the office of the ombudsman. In addition to their fully independent status, they are expected to frame relevant domestic questions within the scope of international law and investigate in the field of equality and non-discrimination effectively. The third element of the triangulation makes article 33 truly innovative, by involving in the monitoring process the voice of civil society and in particular persons with disabilities. The independent body still has its function to perform but the activities are enriched with the duty of collaborating with civil society. The government also needs to consult with Disabled Persons Organisations (DPOs) when it comes to policy and decision making in line with article 4(3) of the CRPD. Presumably, this collaboration is a great challenge and requires some important structural and functional changes in the work of the NHRI and the governmental bodies. It is a fascinating time to explore the dynamic of these innovatory changes and the solutions countries choose to designate their article 33 mechanism.
Most states parties are still in the process of establishing their article 33(2) framework to ‘promote, protect and monitor’ the implementation of the CRPD. Therefore it is very important to ensure the participation of DPOs from the very first stage. Knowledge is still very limited on what kind of initiatives or good practices are taking place in states parties in order to provide realistic opportunities for active and effective involvement of persons with disabilities instead of the formal consultations that happened in the past.
It is essential to conceptualise the phenomenon ‘civil society’ before discussing civic participation of persons with disabilities in Zambia. Civil society is a theoretical concept and there is no universal definition in use.17 According to the general definition by Meidinger, civil society has been characterised as a sphere of social life that is public but excludes government activities.18 Bratton claims that there is a link between the democratisation process in Africa and the concept of civil society empowerment.19 This may explain why there is a strong disability movement in Zambia actively participating in the implementation of the CRPD. Nevertheless, Cohen and Arato describe the participatory model of democracy in which both the governing elite and the citizens play an active role in forming opinions and develop a conception of civic virtue through political experiences. 20
When discussing the key features of civil society, Charnovitz highlights the voluntary manner and the individual commitment.21 In his view, new political actors in particular non-governmental organisations could take a role in policy-making after globalisation has considerably weakened the power of ruling governments.22 Despite the involvement of non-governmental organisations (NGOs) being considered as a late-twentieth-century phenomenon, Charnovitz dates it back much earlier.23 Due to the long-term marginalisation of persons with disabilities, the participation of disability NGOs is still a relatively new concept. Although in other disciplines, such as environment protection, the UN co-operated with the non-governmental sector as partners in implementing programs, the collaboration with DPOs has started very recently after the conclusion of the CRPD. 24
The role of civil society in governance can be described in five key areas: information collection and dissemination; policy development consultation; policy implementation; assessment and monitoring; and advocacy for [environmental] justice.25 These categories may be great starting point to define how the organisations of persons with disabilities can participate in policy- and decision-making processes. Gemmill and Bamidele-Izu contend that existing structures do not enable civil society to perform the aforementioned roles effectively.26 Drafters of the CRPD intentionally incorporated a legal obligation on states parties to ensure the active and critical role of the disability movement in the governance system. Furthermore, provisions of article 33 integrate the disability movement into the structured space of civilian actors. In order to achieve meaningful involvement of persons with disabilities, significant changes in the structure of the governance are necessary.
It is important to make a distinction between DPOs and other types of NGOs in the context of disability. The term ‘non-governmental organisation’ was first used by the United Nations in 1945 to specify the role of consultants that were not representing national governments.27 NGOs can certainly work for the protection of the rights of persons with disabilities in several ways. They can focus on the rights of persons with disabilities in general or represent particular groups within the disability community for instance persons with Down Syndrome, or persons with visual impairment. They can also organise their work around thematic areas, such as employment or education. NGOs can offer services for persons with disabilities or do purely advocacy work. DPOs can be defined as a form of non-governmental organisation that is particular in terms of its composition and leadership: both the membership and the leaders are persons with disabilities themselves.
With regard to the roots of a civil society movement in Africa, voluntary associations were first constructed as a response to the disruptive effect of market economy during the colonial period.28 According to Bratton, those organisations shortly became explicitly political. Despite aspirations of the ruling elite to eliminate these groups around the time of independence, most of them successfully proved to be a strong alternative institutional framework. In Zambia, associational life mostly started with mineworkers’ unions which could provide a ground for formulating opposition, together with economic networks against post-colonial autocracy by the end of the 1980s. Responding to the popular protest of civic actors, African governments created political openings, which lead to a more favourable atmosphere for free expression and association.29 For instance, in Zambia a number of NGOs were created to monitor the government’s performance on human rights since the 1980s. These associations were essential to educate people about citizenship and democracy.
In South Africa, the Constitution provides a framework to guarantee public participation in the legislative process.30 As a consequence of the involvement of citizens in public life, the democratic system functions in a representative and participatory way at the same time.31 As Nyati points out, it is a government’s duty to facilitate meaningful participation of the public in the legislative process and guarantee that everyone’s opinion is considered.32 The aspiration behind this provision is to avoid the continuation of any exclusive policies that deprived fundamental rights of people in past regimes. The Constitutional Court decision in Doctors for Life International v Speaker of the National Assembly33 is a very important milestone in addressing the extent to which public participation in the legislative process is protected by the South African Constitution. The judgment set the standard of the constitutional obligation to facilitate public participation and to develop more accountable legislation.
In Kenya, the Endorois case is a very important source to illustrate the legal concept of people’s participation as a duty of the state.34 The African Commission on Human and Peoples’ rights stated that the lack of meaningful participation of the Endorois community was a violation of the right to development.35 As Kamga’s commentary explains, the right to development is binding in the African Charter on Human and People’s Rights (ACHPR) and was first tested through this case. The court’s decision highlights the state’s role as a duty bearer to guarantee people’s participation and clarifies the beneficiaries of the right to development. The right to development includes a number of elements, such as non-discrimination, participation, equity, accountability, and the threshold of people’s participation.36
As part of a preliminary study, interviews were conducted with members of the European disability movement to develop the conceptual frame of ‘involvement’ and ‘participation’ as both are required under article 33 of the CRPD.37 First of all, it is important to distinguish ‘involvement’ from ‘consultation’. Consultation means a somewhat passive role in which one can express his or her opinion without necessarily being considered in the whole decision-making process. The government often consults with civil society only at a later or the last stage of any negotiations, which does not ensure their participation from the very beginning and their contribution may remain tokenistic. If civil society has no other possibilities than commenting on drafts already put on the table by the government, they have very little influential input. Exclusion from meaningful participation is unacceptable, not only in the scope of the aforementioned South African case-law but in the scope of the CRPD as well.
One of the most important concepts developed for purposes of the study described here is the distinction made between ‘active’ and ‘effective’ participation. Active participation refers to the regular presence of disability organisations during high-level meetings and negotiations. Active involvement does not guarantee that any of the contributions offered by civil society will be considered by governing forces. Effective involvement occurs when the contribution of civil society - in this case most importantly, organisations of persons with disabilities - is reflected in laws and policies. Therefore, it is arguably important to examine if the participation of civil society through its various methods is not only active but also effective. As part of the intention to use inclusive research methods, interviewees in Zambia were asked for a feedback on whether they agreed or not with such a conceptual division between ‘active’ and ‘effective’ participation. Since their reaction was positive, these terms will be used throughout the chapter.
In the following section, the Zambian solution to implement article 33 of the CRPD will be analysed, as a promising practice for influential involvement of the disability movement. Nevertheless, it is important to take a look at the functioning of the whole article 33(2) mechanism and evaluate the participation of civil society accordingly. Some remarks will be made on possible ways to improve the sustainability of the CRPD in Zambia.
The former British colony of Northern Rhodesia, became independent from the United Kingdom and was named Zambia in 1964. According to the Global Competitiveness Report, Zambia is ranked as 102 out of 144 countries, which looks at factors that affect economic growth.38 The UN Human Development Index is a useful tool to get a glimpse of the social situation of certain countries. It represents a push for a broader definition of well-being and provides a composite measure of three basic dimensions of human development (health, education and income). According to the 2013 report, Zambia is ranked 163 out of 187 countries.39 Social indicators, such as life expectancy at birth (about 49.4 years) or the GNI per capita ($1358) are still very concerning.
Zambia signed the CRPD on 9 May 2008 and ratified the Convention on 1 February 2010. It has also signed but not yet ratified the Optional Protocol of the Convention on 29 September 2008. Article 35 of the CRPD requires governments to submit a report to the UN Committee on the Rights of Persons with Disabilities on their progress towards implementing the treaty. The first report should be submitted within two years of the Convention coming into force. Since the CRPD entered into force in Zambia in March 2010, the government was due to submit its State Report by March 2012. A number of DPOs participating in the implementation process have highlighted that no report was sent to the UN by this deadline. Civil society is still planning to make its own shadow report on the implementation of the Convention and hopes to present it in front of the UN in a few years. 40
This paper presents the findings of the interviews that were conducted with 12 disability organisations in 2012 in Lusaka as part of a field trip.41 It was agreed that anonymity be preserved for the interviewees before recording, therefore personal references to staff members who participated in the study will be avoided.
In this chapter, primarily the answers of representatives of the disability movement will be analysed when describing factors of effective involvement in policy and decision-making processes. A few interviewees are not self-advocates themselves, but working for an organisation that is involved in the work of the monitoring framework. The study is far from scientific in the sense that it comes from the ground-up, but it intends to offer a first glimpse at active and effective involvement of the disability sector in implementing the Convention. This chapter does not give a fully comprehensive picture on the key factors of effective participation, but wishes to define some important prerequisites.
Zambia initially chose to designate several focal persons in the relevant Ministries under article 33(1) of the CRPD to coordinate the implementation of the Convention. However, civil society representatives were not satisfied with the performance and level of collaboration of these bodies. The Zambian Federation of the Disabled (ZAFOD) called on the Permanent Secretary of the Ministry for Community Development, Mother and Child Health Care to designate a fully competent focal person.42 The government department made a clear statement in February 2012 indicating that they are in the process of re-appointing focal points in every Ministry who will be in charge of disability issues.43
Due to the lack of any state action to designate a CRPD compliant article 33(2) framework, ZAFOD initiated the establishment of the Independent Monitoring Unit (the IMU) to advance and monitor the implementation process of the CRPD. The purpose of the IMU is to assist in the ‘domestication’ of the CRPD into Zambian legislation. It is important to emphasise that despite the guidance of the Convention, the IMU was not formally acknowledged by government decision since its creation as an article 33(2) CRPD body. This is probably a direct consequence of the fact that the establishment was purely based on the advocacy work of civil society. It raises some concerns whether the state will recognise recommendations submitted by the IMU in the future.
The IMU is an 18 months project, thus there is no guarantee for its sustainability. Operation of the framework started in January 2011 after capacity building workshops had been carried out for staff members of the participating DPOs. Developing countries experience serious burdens when implementing international human rights treaties. The fact that the IMU project was founded by two major international donor organisations - the European Commission and Power International - draws attention to the obstacle that systematic monitoring activities, including data collection, requires sufficient resources from the state. 44 The question is to what extent a state party should use sources of international co-operation to implement the Convention if there are no internal sources available in line with article 4 of the CRPD?
According to the first progress report of the IMU, the project has the specific objective to encourage civil society to independently promote and monitor domestication of the CRPD in Zambia.45 The composition of the IMU is pluralistic including government departments and agencies,46 international human rights organisations,47 the National Human Rights Institution,48 and a number of umbrella DPOs.49
The disability movement in Zambia under the leadership of the ZAFOD interprets article 33 of the CRPD as a ‘way to form a framework for the government and civil society to [adequately] implement ... the Convention’.50 ZAFOD emphasised the necessity to collaborate with a broad range of stakeholders, including non-governmental organisations outside of the disability movement. However, they believe that the leading role should be played by DPOs who have first-hand experience.51 It was actually a common misunderstanding within the disability movement, that a platform including different stakeholders would fulfil the requirement of pluralism under the Paris Principle and therefore could serve as an independent body. The IMU is far from being independent in the current structure as its membership consists of governmental bodies.
The Zambia Agency for Persons with Disabilities (ZAPD) is also part of the IMU among other ministerial departments. The Agency carries out a number of activities such as promoting and administering services for all persons with disabilities, keeping statistical records, advising the Ministries on the economic situation of persons with disabilities and coordinating rehabilitation with government bodies. Several interviewees clarified that the role of ZAPD in the framework is to be the link between government and civil society by facilitating an exchange of information. As one interviewee pointed out, the Agency could act as the watchdog and transfer the message from stakeholders to the Ministries. In many countries there is a communicational gap between government and civil society, which eliminates any constructive dialogue or collaboration. It is an interesting initiative in Zambia to resolve this problem.
The Human Rights Commission, Zambia (HRC Zambia) is the National Human Rights Institution (NHRI) in the country. It is accredited by the International Coordinating Committee (ICC) as fully compliant with the Paris Principles. The HRC Zambia was established under article 125 of the Constitution of Zambia and mandated by the Human Rights Commission Act52 to inter alia investigate and remedy human rights violations, conduct human rights education, monitor the conditions under which persons are detained in prisons and elsewhere, and to monitor government’s fulfilment of international and regional human rights treaties and human rights obligations under national law. In order to achieve compliance with the CRPD, the HRC Zambia shall play a role as an independent element in the framework established under article 33(2) of the CRPD to promote, protect and monitor the implementation process. Surprisingly, the institution does not actively participate in the work of the IMU even though it is formally listed among the members.
The Zambian solution to implement article 33 is practically lacking the active contribution of the independent element, and therefore cannot be considered fully compliant with the CRPD. Drafters of the Convention logically incorporated the concept of independence into the framework to guarantee effectiveness and checks and balances of the mechanism. The NHRIs traditionally have experience in human rights monitoring but also play the role of the ‘watchdog’ to check that government decisions are in line with international human rights standards. Independence is essential to be able to effectively monitor human rights.
While looking for the reasons of the lack of collaboration between disability organisations and the HRC Zambia, the problem of miscommunication immediately became clear. The Commission claimed not to be invited to IMU meetings, however ZAFOD expressed their wish to collaborate with the HRC and thus guarantee sustainability and effectiveness for the monitoring framework.
In fact, the HRC Zambia has not yet been active in monitoring the rights of persons with disabilities, despite their aspirations articulated in the draft National Plan of Action for the period 2010-2020.53 According to this working plan they are willing to carry out advocacy for the enactment of effective legislation for the protection of persons with disabilities and advocate for their involvement in the labour market. They acknowledge the importance to collaborate with the organisations of persons with disabilities and plan to establish a better working relationship with civil society on the occasion of the forthcoming Universal Periodic Review (UPR) and the UN CRPD Committee hearing. All of this shows that the working relationship between the NHRI and the disability movement is yet to be developed to be able to carry out the tasks under article 33 together.
A number of laws and policies are currently under revision in Zambia. In 2011, the newly elected government promised in its electoral campaign to ‘change and benefit within 90 days’. Several interviewees reported that the government is really serious about law making, and keen on consulting with civil society to ensure a dynamic law-making process. It is a really important time for human rights advocates in Zambia to participate and incorporate provisions of the CRPD into disability related pieces of legislations being reviewed by parliament.
Presumably it varies significantly depending on the issue in question to what extent civil society wants to be involved in the policy-making process. If there is a debate on the situation of children with albinism in primary education, disability organisations may wish to turn the decision maker’s attention to the needs of children with disabilities in schools facing multiple discrimination but do not necessarily participate in the whole process. In contrast, if the government is revising mental health legislation, disability organisations most likely seek to participate from the very beginning to push the discussion in a CRPD compliant direction. Therefore the adequate level of participation could be defined briefly as the highest possible presence that satisfies disability organisations.
As one of the interviewees pointed out, the main priority for the IMU was the review of the Persons with Disabilities Act54 to ensure the new law is compliant with the CRPD. The Bill was enacted in September 2012.55 The IMU submitted comments during the review process, which were included in the draft text. Representatives of DPOs were satisfied that their voice was being heard. As one of them pointed out:
It takes a longer while for government to actually implement an international human rights treaty, but the IMU and civil society could provide them with sufficient guidance on how to do it right.56
The priority areas the IMU focused on in its submission were education, employment, accessibility, mental health and legal capacity. Although the previous Act from 1996 contains a few solid provisions regarding anti-discrimination, education and accessibility, in general it refers to the old medical model by looking at persons with disabilities in a pitiful way, seeking only medical care and focusing exclusively on rehabilitation and the prevention of disability. DPOs working in the IMU agree that different pieces of legislation shall be CRPD compliant, and the new Disability Act must cover all civil and political rights and social, economic and cultural rights guaranteed in the Convention. Paragraph (b) of the Objectives of the new Persons with Disabilities Act includes a provision to ‘promote the participation of persons with disabilities with equal opportunities in the civil, political, economic, social and cultural spheres’.57 Nevertheless Part V of the Act deals with specific areas in details, such as education, employment and social protection, health care, rehabilitation, accessibility and political and public life. 58
At the time of writing, Zambia is in the process of negotiating a new Constitution under the lead of a Technical Committee of Experts, appointed by the government. The Technical Committee started drafting the new Constitution on 1 December 2011. The review is a response to demands for a more democratic political system in the country. The state intends to promote transparency, accountability and the participation of people in governance by developing viable institutions.59 According to Ndulo, the draft Constitution of Zambia retains dictatorial presidential powers as contained in the 1996 Constitution instead of moving towards a more democratic state. He argues that the draft even expands dictatorial powers by allowing the president to unilaterally divide and create provinces or districts or by appointing all the important posts without consultation. 60
The constitutional review process, at least formally aims to be consultative and to reach a broad range of social groups.61 The government shows its willingness to involve public opinion in a meaningful way and promises that contributions will be taken into account in a systematic manner. This openness during the drafting procedure may create a favourable atmosphere for the disability movement to effectively advocate in a number of issues relating to the CRPD. Given the important momentum when the government put the concept of participation and democratisation on their political agenda, a highly marginalised group may find effective ways to advocate for a real change. Presumably the democratisation process in general facilitates the empowerment of civil society by stipulating the creation of a strong grass-root movement. ZAFOD and the Human Rights Commission have both submitted comments to the Technical Committee in regard to the new Constitution.62 ZAFOD was lobbying for including the provision of the equal recognition before law of persons with disabilities in line with article 12 of the CRPD.
One is the Town and Country Planning Act,63 which is expected to include accessibility provisions in line with the CRPD.64 The Human Rights Commission reported in 2010 that chapter 283 of the Act is lacking adequate regulation on accessible environments.65 Thus, they suggested the government revise the instruments of area planning. The report also emphasises the importance of involving persons with disabilities from the very first stage in drafting the development plan and in prioritising which currently available financial resources can be spent on improving accessibility.
In addition, there is a review of the out-dated Mental Health Disorders Act 1951,66 which fails to promote the dignity and autonomy of persons with psychosocial disabilities.67 The Mental Health Users Network of Zambia (MHUNZA) and ZAFOD have been actively involved in drafting the new Mental Health Act since July 2012 by collecting data, generating evidence and developing mental health policies in collaboration with international experts on mental health law. The main capacity builder in the region, Opportunities Zambia (OZ) emphasised that decision makers should meet with advocates to avoid drafting legislation influenced by the medical approach to disability.68 It is important to educate government officials on the principles and obligations of the CRPD.
The following section discusses the experiences of the Zambian disability movement on how to achieve effective participation when implementing and monitoring the CRPD. Representatives of the IMU member organisations gave a clear idea about what they believe the key elements of effective involvement are. Some of the answers certainly overlap each other. It is important to note that the opinions presented here do not necessarily reflect the views of the disability sector as such.
Generally speaking, the range of critical success factors seems to be broad and sweeps beyond the common argument that the state party is lacking money to invest in disability rights. Rather, it includes elements such as the on-going democratisation process or the willingness of government to build up a collegiate relation and use the expertise of civil society.
It was agreed amongst the interviewees in Zambia that civil society needs to be included from the very beginning in any policy-making process to ensure their voice is being heard. In the view of Opportunity Zambia, transparency is an absolute prerequisite for facilitating engagement and effective involvement. The Zambia National Association of the Deaf highlighted the necessity of capacity building and empowerment of the disability movement. This can happen through professional training sessions to teach the disability organisations writing submissions and planning advocacy work. There is already interest expressed by the Zambia National Library and Cultural Centre for the Blind to attend more training on contributing to law reform processes.
A great challenge for an advocacy platform is to ensure the participation of a broad range of people coming from the grass-roots level. In Zambia, ZAFOD has already established close working relations with a number of DPOs and intends to find consensus before sending joint submissions to the government. International human rights NGOs, service providers, family organisations and researchers are important allies of the disability movement, however no considerable collaboration has happened with organisations outside of the IMU so far in regard to CRPD monitoring.
The IMU often works in smaller working groups to provide a better atmosphere for discussions. Interviewees found ‘it is a good way to make in-depth recommendations and improve effectiveness’. Members of the IMU went to villages to raise awareness on the CRPD by bringing hard copies of the Convention in large print, Braille and easy-to-read versions. They wanted to educate members of the local disability communities on the provisions of the Convention and asked for input on the submissions the IMU was planning to prepare. This is certainly an important initiative to reach the local people and ensure their opinions are considered when promoting the rights of persons with disabilities at a higher level.
Several interviewees emphasised that the work of the monitoring body also has to be monitored on a regular basis. The designated IMU should report back on any on-going issues to their local members in order to prevent arbitrary decision making practices in the platform.
A simple but straightforward definition was given by Sight Savers Zambia on how to measure the impact of civil society participation: ‘We can talk about effectiveness when our opinions are included in the final text of the law or policy document’. This is a great example to see the difference between active and effective involvement as mentioned above in the methodological section. Most interviewees expressed their disappointment when their involvement was tokenistic by being invited to meetings and not considered as partners in the policy-making process. They recognised when their involvement was only active not effective. Therefore disability organisations try to make sure that their contribution gets in the final version of the new Acts. However, the definition of Sight Savers symbolises the far end, when all opinions are considered. This definition does not solve the problem of measuring effectiveness if civil society contributions were only partly considered by the governing bodies. No other interviewees came up with a more precise definition.
Collecting representative data across the country and providing evidence-based information seems to be the area that requires most financial resources within monitoring activities. In this regard, challenges were reported due to the limited resources in disseminating results of research carried out by disability organisations.
First and foremost, the greatest strength of the IMU lies in the commitment of members of the Zambian disability movement. They allocate their time and limited resources to review pieces of legislations, even if they have to do it on a voluntary basis. Their monitoring activities currently aim to incorporate the CRPD provisions into domestic law.
Although the intensity of the members’ contribution within the IMU varies significantly, all of the interviewees were aware of the current national legislative changes, such as the review of the Constitution or the Persons with Disabilities Act. They also contributed to the submissions prepared by the IMU in one way or another. Representatives of DPOs seemed to be familiar with the provisions and national level implications of the Convention and used a very CRPD compliant language. Being able to apply appropriate concepts of the CRPD, such as accessibility, reasonable accommodation, or supported decision making certainly facilitates a stronger position of civil society during negotiations with the government bodies.
A number of the IMU member organisations emphasised the importance of engaging in strategic advocacy work by planning and lobbying in a structured manner. Pro-activity and initiating meetings with the previously identified stakeholders is another asset, which promotes sustainability of participation. As mentioned above, the IMU raises awareness on the CRPD and involves the voice of the community through maintaining connections with the grass-roots level. This facilitates better representation. There is no available data on the frequency of such meetings, but the initiative can be certainly considered a great example and may be followed by other countries.
Another important achievement of the established IMU is that it could help to bring together the fragmented disability movement for a common purpose, namely to address disability rights to the government effectively. A representative of a big organisation emphasised that it is a success of the IMU that the government now recognises the state obligations under CRPD and shows willingness to implement the Convention in different legislations and policies.
In the following section, there is a brief overview of some of the challenges the IMU is currently facing and a number of recommendations will be made on the necessary changes to improve the sustainability of the platform.
Since the funding of the IMU comes to an end in January 2013 the project will probably face some serious challenges in the near future. The informational webpage of the IMU has already been de-activated due to budget matters. After the evaluation of the progress report, the platform still expects 25 per cent of the EU fund to come to the IMU. In the meantime they have received some funding from the Open Society Initiative of South Africa (OSISA) to cover activities for the next two years focusing on mental health issues and the Persons with Disabilities Act, which has now been enacted. 69 The sustainability of the Monitoring Unit is still uncertain and a guaranteed fund would be necessary to enable them to strategically plan future activities.
Despite the fact that article 33(2) of the CRPD imposes a duty on the state to maintain, strengthen, designate or establish a framework that promotes, protects and monitors the implementation of the Convention, the Zambian government has not acknowledged the IMU as the monitoring body. Moreover, the state has not provided any funding for the IMU since it was established by civil society. This raises serious concerns on the effective operations of the IMU in the future and clearly questions its financial viability.
The fact that ZAFOD as the umbrella organisation of DPOs in Zambia, takes the leading and coordinating role in the work of the IMU is understandable, although slightly concerning how much ZAFOD dominates the whole framework. Although ZAFOD represents 12 organisations, it does not represent every person with disabilities in the country. The IMU and ZAFOD are not distinguished in the notion of some IMU member organisations. Some of them consider the IMU as a business of ZAFOD rather than a common project. It may affect their willingness to share the tasks occurring in the monitoring process. The reason for the dominance of ZAFOD could be that they provide the secretariat for the IMU and organise the capacity building training for other DPOs. It might have a positive impact on the work of IMU if participants had a clearer understanding of the mutual contribution they are supposed to make.
Those members representing government entities did not feel actively involved in the work of the IMU. For instance, the Zambia Law Development Commission, which is tasked with ‘review[ing] and consider[ing] proposals for law reform referred to the Commission by the Minister or the members of the public’ has not interacted with the IMU on a regular basis.70 The Commission was unable to review the Disability Act, due to the short deadline provided and certain procedural burdens. However, they refer to their limited mandate and capacity to act only upon a government request; the legislation which established the Law Development Commission does not include such a limitation.
The Mental Health Users Network in Zambia has made a remark that the Anti-Gender-Based Violence Act 2011 reviewed by ZLDC still includes a discriminatory section regarding persons with mental health disabilities. According to the law, persons with mental health disabilities could only apply to a court for a protection order in case they are assisted by a third party, and not on their own behalf.71 Disability advocates expressed disappointment that a non-CRPD compliant Act could be passed without any consultation between them and the Law Development Commission. Considering the current focuses of the IMU, the Law Development Commission could be a key strategic partner in reviewing draft legislations.
It is very challenging to ensure that the voice of the whole disability movement is being represented in submissions of the IMU. As many of the interviewees emphasised, one of the key elements of effective participation is to find a common direction that all relevant civilian actors agree on. It facilitates better lobbying by having broader co-operation. In contrast, Gemmill and Bamidele-Izu argue that it may be a mistake to seek ‘consensus’ as it could result in prolonged discussions and watered-down conclusions.72 In Zambia some of the umbrella DPOs, do not have a nation-wide membership, however, they claim to be a national organisation and legitimate enough to represent a large number of people. This is the reason why the Norwegian Disability Consortium seeks to provide smaller grant schemes available for capacity building of fragmented parts of the disability movement in Zambia.73
As mentioned earlier, it is essential to involve the HRC Zambia in the work of the IMU, as it would ensure independence and compliance with the Paris Principles. In Zambia, the disability movement has taken the leading role in establishing the monitoring mechanism, but at the same time missed out on the opportunity to facilitate an active collaboration with the independent Human Rights Commission. In the drafters’ vision, the three core elements of the article 33 framework (government, NHRI and civil society) are conscious about the need for collaboration when sharing tasks among each other around the CRPD implementation. A lack of trust or bad experiences during previous collaboration between the NHRI and NGOs could be the reason for such isolation. Considering that the HRC Zambia has not done extensive work on disability matters before the CRPD entered into force, it is a learning process for the Commission as well. Presumably, the working method of the NHRI was neither accessible nor transparent towards civil society in the past. This can be seen as the reason why civil society does not consider closer collaboration with the NHRI. It is certainly necessary to tackle isolation and establish the basis of a more inclusive and balanced relationship between the entities involved in the article 33(2) framework.
There is a very strong, well-organised disability movement in Zambia actively involved in implementing the CRPD through a grass-roots initiative, the IMU. The government has neither formally designated the IMU as an article 33(2) monitoring framework, nor provided funding for its operation. Therefore, the Zambian solution cannot be considered as a promising practise for article 33 implementation. Yet, the disability movement raises awareness of the Convention, actively participate in law-review processes and strategically plan their advocacy work. In their view, the leading role in advocacy should be played by persons with disabilities from the very first stage.
According to article 33 of the CRPD, an independent element, preferably, the Paris Principle compliant National Human Rights Institution shall be involved in the framework to promote, protect and monitor the implementation of the CRPD. In Zambia, despite of the fact that the Human Rights Commission is currently not participating in the monitoring activities, civil society seems to be satisfied with the functioning of the framework and finds its own involvement active and effective. It may be time-consuming but it is definitely necessary to establish good relations between the Human Rights Commission and the disability movement based on mutual trust and acknowledgement. This would stipulate important structural changes and engagement when implementing the Convention.
Since the current focus of the IMU is around law-review processes, some other tasks relating to protection or monitoring CRPD implementation under article 33(2) may be neglected. They work closely with the government who shows willingness to provide a supportive atmosphere for civilian participation and consider seriously the submissions and professional advices of the DPOs. Facilitating the strong involvement of the disability movement in monitoring the CRPD could enrich the democratisation process in Zambia.
After creating a CRPD compliant legal base in national legislation, at a next stage, the IMU aims to monitor the implementation of those acts and the CRPD countrywide. Even if the IMU is facing financial challenges, members of the disability organisations make an enormous effort to be able to keep on the monitoring activity and make a real change in line with the UN CRPD.
3. O Lewis ‘The expressive, educational and proactive roles of human rights: An analysis of the United Nations Convention on the Rights of Persons with Disabilities’ in B McSherry & P Weller (eds) Rethinking rights-based mental health laws (2010) 97-128.
8. A Hoefmans & G de Beco ‘The UN Convention on the Rights of Persons with Disabilities: An integral and integrated approach to the implementation of disability rights’ Study commissioned by the Belgian Federal Public Service Social Security (2011).
9. ‘Final report of the work forum on the implementation of article 33 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD)’ Organised by the Belgian Presidency of the Council of the European Union and the European Commission, Brussels (2010).
11. The Ministry of Health is not a good choice to be designated as focal point as it represents the old medical model by treating persons with disabilities as patients. The Ministry of Social Welfare tends to consider persons with disabilities as objects in the government welfare system and that often maintains their dependency instead of having a holistic approach towards disability rights.
13. L Waddington ‘Reflections on the establishment of a framework to promote, protect and monitor implementation of the UN Convention on the Rights of Persons with Disabilities (article 33(2) CRPD) by the European Union’ Maastricht Faculty of Law Working Paper, 2011 6 http://dx.doi.org/10.2139/ssrn.1746866 (accessed 30 June 2013).
15. New Zealand Parliament, presentation by G Quinn, 19 February 2009 http://www.nuigalway.ie/cdlp/documents/publications/GQ-190209.pdf (accessed 4 January 2013).
16. The International Coordinating Committee currently uses three levels of accreditation: ‘A’ status institutions demonstrate compliance with the Paris Principles. They can participate fully in the international and regional work and meetings of national institutions, as voting members. ‘B’ status institutions do not fully comply with the Paris Principles, therefore they can only participate as observers in the work of the national human rights institutions. ‘C’ status institutions do not comply with the Paris Principles, thus they do not have any rights of privileges with the ICC.
25. B Gemmill & A Bamidele-Izu ‘The role of NGOs and civil society in global environmental governance’ in DC Esty &MH Ivanova (eds) (2002) Global Environmental Governance: Options & Opportunities Yale School of Forestry & Environmental Studies 77.
35. Communication 276/2003, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, See African Commission, 27th Activity Report, 2009.
38. ‘The Global Competitiveness Report’ http://www.weforum.org/reports (accessed 31 January 2013).
40. It is important to note that the UN CRPD Committee is facing some delays in evaluating the state reports. Since many countries have ratified the Convention right after it was open for ratification, a big number of reports were submitted around the same time.
41. The list of organisations who participated in the empirical research are: Zambia Federation of the Disabled (ZAFOD), Zambia Agency for Persons with Disabilities (ZAPD); Zambia Law & Development Commission (ZLDC); Sight Savers International (SSI); Opportunity Zambia (OZ); Zambia National Library and Cultural Centre for the Blind (ZNLCCB); Zambia National Federation of the Blind (ZANFOB); Mental Health Users Network of Zambia (MHUNZA); Zambia Association of Parents of Children with Disabilities (ZAPCD); Zambian National Association of the Deaf (ZNAD); a free-lance disability rights consultant.
45. Zambia Federation of Disability Organisations (ZAFOD), Independent Monitoring Unit of the implementation of the domestication of the UN CRPD (IMU) Periodic report to the government by the IMU (December 2011).
46. Ministry of Community Development, Mother and Child Health Care; Zambia Agency for Persons with Disabilities (ZAPD); relevant domestic government ministries (eg Health, Education Justice); Zambia Law Development Commission (ZLDC).
53. Human Rights Commission Zambia, Annual Report 2009 http://www.hrc.org.zm/media/annual_report_2009.pdf (accessed 4 July 2013).
61. http://zambianconstitution.org/ (accessed 4 July 2013).
62. Submission of the HRC Zambia is available here: http://www.hrc.org.zm/media/hrc_submission_to_technical_committee_on_drafting_zambian_constitution.pdf (accessed 4 July 2013); submission of disability organisations is available here: http://zm.sightsavers.org/in_depth/advocacy/14215_Submissions%20by%20a%20consortiu m%20of%20persons%20with%20disabilities%20organisations%20on%20the%20draft%20constitution.doc (accessed 4 July 2013).
64. For further information on the Town and Country Planning Act: http://faolex.fao.org/cgi-bin/faolex.exe?rec_id=038789&database=faolex&search_type=link&table=result& lang=eng&format_name=@ERALL (accessed 17 January 2013).
66. The Mental Health Disorders Act represents the old medical model and allowed detention of anyone who was suspected to be a person with a psychosocial disability. The law further went on to address people with psychosocial disabilities as idiots, imbeciles or morons.
69. More information on the Open Society Initiative in Southern Africa is available at http://www.osisa.org/ (accessed 22 January 2013).
- Likando Kalaluka
- LLM in International and Comparative Disability Law and Policy, National University of Ireland, Galway (2012); LLB (2001), University of Zambia
- Legal Practitioner and Partner at Ellis & Co, Lusaka, Zambia
- (2013) 1 ADRY 165-189
- Download article in PDF
This article seeks to come up with effective strategies for litigating disability rights in Zambia. In doing so, it outlines the international and national legal frameworks that govern the rights of persons with disabilities. It also highlights the legal and attitudinal challenges that affect disability rights litigation in Zambia and other African countries, within the realities of poverty and general under-development associated with most African countries. Thereafter, the article uses the best practices, both in terms of court or tribunal decisions and constitutional or statutory provisions, from a selected number of African countries to come up with a broader litigation strategy for disability rights. The article also draws inspiration from the provisions of the Convention on the Rights of Persons with Disabilities and the African Charter on Human and Peoples’ Rights.
This article examines how the Convention on the Rights of Persons with Disabilities1 (CRPD) together with regional and national laws in Africa may shape litigation strategies for disability rights in Zambia. The adoption of the CRPD has triggered legislative reforms2 in various countries. Increasingly, persons with disabilities are approaching courts at
national, regional and international levels to secure the recognition and protection of their human rights.3 The peculiar circumstances existing in Zambia and across Africa bring to the fore a number of challenges which impact on disability rights litigation, including poverty, culture, stigma and the existing legal framework.
The CRPD recognises that the majority of persons with disabilities live in conditions of poverty.4 As such, they do not have the means to meet the legal and other attendant costs of litigation. Further, the lack of physical infrastructure such as accessible roads and buildings in Africa discourages persons with disabilities from moving from their homes and going to court for hearings.5
In Zambia, as in most African countries, persons with disabilities often suffer social exclusion and marginalisation arising from cultural prejudices and stigma that attach to their disabilities.6 Consequently, they are often denied the basic human rights that are available to non-disabled persons. In most African countries, the courts are generally viewed as institutions that favour those who can afford the cost of litigation and the protracted nature of court proceedings.7 Persons with disabilities consider the usually protracted litigation proceedings as merely exposing them to ridicule and scorn from members of their society. The technical nature of court proceedings discourages persons with disabilities from instituting court proceedings. In one Kenyan case,8 the High Court dismissed a claim for discrimination on the ground of disability because the non-discrimination clause of the Kenyan Bill of Rights9 did not expressly include disability as a prohibited ground. The court’s reasoning was that while the statutory law10 prohibited discrimination on the basis of disability, the prohibition could not be constitutionally enforced as disability was not expressly listed in the Bill of Rights.
This article appraises the Zambian legal framework with a view to developing an effective litigation strategy for protecting disability rights. In order to capture the best practices, it draws from the experiences of selected African countries.11 While the selected countries have diverse historical, cultural and legal backgrounds, nonetheless, they serve as jurisdictions from which comparative lessons can be drawn.
This article has six sections, including section one, the Introduction. Section two discusses the concept of disability rights litigation and the purposes it serves. The third section sets out the background of disability law in Zambia. It highlights the norms and values that influence how disability is perceived in Zambia. The section also explores the nature and extent of Zambia’s obligations under regional and global treaties.
Section four discusses the challenges faced by persons with disabilities when seeking to litigate disability rights. Section five seeks to develop an effective litigation strategy for disability rights in Zambia drawing from the experiences of other countries. Section six is the conclusion.
This section will not attempt to come up with a universally accepted definition of disability rights litigation as the concept incorporates the term ‘disability’ which is evolving and culture-dependent.12 However, for the purposes of this chapter, a working definition of ‘disability rights litigation’ will be given. The term ‘disability rights litigation’ refers to the entire process of prosecuting the rights of persons with disabilities before national or international courts or tribunals. This includes obtaining instructions to litigate, preparing briefs for trials, conducting trials and enforcing court decisions. Disability rights litigation emanates from society’s failure to take appropriate measures to ensure that persons with disabilities are able to participate fully in society and to enjoy their fundamental human rights on an equal basis with others. Morris illustrates society’s shortcomings which may actually lead to disability rights litigation as follows:
My impairment is the fact that I can’t walk; my disability is the fact that the bus company only purchased inaccessible buses. Or, that my impairment is the fact that I can’t speak; my disability is the fact that you won’t take time and trouble to learn how to communicate with me.13
Disability rights litigation also encompasses seeking to enforce the duty of reasonable accommodation14 by requiring the adoption of appropriate modifications and adjustments to ensure persons with disabilities enjoy or exercise all their human rights by persons with disabilities on an equal basis with others. The idea in disability rights litigation is not to ensure that persons with disabilities are treated equally with their non-disabled counterparts, but that necessary and appropriate measures and modifications should be undertaken so as to equalise opportunities for persons with disabilities to fully participate in society and to enjoy their rights.15 Therefore, disability rights litigation seeks to realise equality and non-discrimination in a way that achieves substantive equality as opposed to mere formal equality. The CRPD provides that specific measures taken to accelerate or achieve de facto equality shall not be deemed to be discriminatory.16
The CRPD therefore, requires both public and private individuals and entities to adopt positive measures so as to ensure the full participation in society and enjoyment of the fundamental rights on an equal basis with others. Disability rights litigation is intended to enforce such a requirement.
Access to justice is both the ‘means’ and an ‘end’ of disability rights litigation.17 It is a ‘means’ in that it is the vehicle which gives persons with disabilities an opportunity to enforce the protection of their fundamental human rights before an impartial and independent tribunal or court. On the other hand, access to justice is an ‘end’ where it is sought to avail individuals with the relevant procedures, institutions and processes that recognise, protect and enforce fundamental human rights.
The CRPD acknowledges the importance of access to justice by providing that state parties must ensure the effective access to justice for persons with disabilities on an equal basis with non-disabled persons.18 It further provides that there is a need for procedural and age-appropriate accommodation before, during and after court proceedings so as to facilitate the effective participation of persons with disabilities in the justice system.19 For there to be meaningful access to justice in Zambia, there is a need for measures to be put in place to ensure that persons with disabilities are not hindered either by physical infrastructure or by a lack of accommodative procedures or devices, from participating in the justice system.
In the same vein, the African Charter on Human and Peoples’ Rights20 (ACHPR) recognises the importance of access to justice by providing that all persons have the right to have their causes or claims heard by a court of competent jurisdiction.21
The prevalence of stigma and the prejudicial perceptions of disability in Zambia cause persons with disabilities to grow up accepting marginalisation and exclusion from society as a necessary consequence of their disabilities.22 Exclusion from mainstream society means that the majority of persons with disabilities develop low self-esteem. As a result, persons with disabilities who suffer human rights abuses may not consider themselves as deserving the dignity and respect afforded to others. Ultimately, they fail to appreciate the need to have their fundamental human rights and freedoms fully recognised and respected.
Instituting disability rights litigation has the potential to bring to the open the many challenges persons with disabilities face. When judicial precedents are set, persons with disabilities become aware of their rights.23 Further, when courts issue appropriate orders condemning discrimination, marginalisation and inaccessible buildings or roads, it encourages society to embrace persons with disabilities as persons with rights equal to others. In the process, stigma and prejudicial perceptions will gradually be replaced with societal norms and values that accept disability as human diversity, leading to the full recognition and inclusion of persons with disabilities in all sectors of society.
Securing legal precedents which are binding on lower courts is an important strategy. According to Waliuya, the Zambia Federation of Disability Organisations24 (ZAFOD) came up with the Advancing Disability Equality Project25 (ADEPt) with the primary aim of setting legal precedents in matters involving violations of the rights of persons with disabilities. To achieve this objective, ZAFOD has retained a local law firm to provide legal advice and engage in litigation on behalf of indigent persons with disabilities who experience disability rights abuses. The legal fees for all such cases are paid by ZAFOD on behalf of persons with disabilities who are actual parties to the court proceedings. ZAFOD identifies common cases where disability rights are frequently abused and then forwards such cases to local law firms so that court proceedings may be instituted with a view of setting up precedents.
In Sela Brotherton (suing as National Secretary of Zambia Federation of Disability Organisations) v Attorney-General & 16 Others26 court proceedings were instituted against several defendants seeking an order to compel adjustments to public and private buildings so as to make them accessible to persons with disabilities. Before the matter could proceed to trial, one of the defendants applied to dismiss the court proceedings on a point of law on the ground that the court proceedings were statute barred. It was also argued that the court proceedings were based on the previous Persons with Disabilities Act27 which was enacted in 1996, while most of the defendants’ buildings were constructed long before 1996 and as such, the law enacted in 1996 could not have retrospective effect and criminalise or render unlawful that which was lawful at the time of construction.
In opposing the application, it was argued that the plaintiff organisation only came into existence in 2009, which is barely a year before court proceedings were commenced and as such, could not be statute barred.28 The plaintiff also argued that in any event the cause of action only arose in 2008 when the plaintiff carried out access audit exercises which exposed the inaccessible buildings of the defendants. Furthermore, the plaintiff contended that the provisions of the Act were enacted taking into account the need for the inclusion, and protection of the rights of persons with disabilities. The High Court of Zambia held that the provisions of the Act did not have retrospective effect. It cannot apply to buildings constructed long before it came into operation.
The court also found that the action was statute barred in that it was commenced over 14 years after the Act came into operation. It is submitted that the proceedings were not correctly decided. The court failed to take in to account the paradigm shift requiring the focus for change to move from persons with disabilities to the attitudinal and physical infrastructure. Furthermore, the court misdirected itself when it held that action premised under any statute can only be properly commenced if it is brought within 12 years of that statute coming into operation. It is noteworthy that the court proceedings set up a precedent that do not advance the rights of persons with disabilities. ZAFOD has since appealed29 against the court’s ruling but the appeal is still pending determination.
If a person alleges that any provision of the Bill of Rights in the Zambian Constitution30 has been or is likely to be contravened in relation to him or her, he or she may apply to the High Court for appropriate remedies to protect the rights in issue.31 Under the Zambian Constitution, the High Court has a wide discretion to issue such directives and make such orders as are necessary to prevent the infringement of human rights. An individual does not necessarily have to wait until his or her rights are actually infringed upon, before commencing court proceedings for protection.
A person whose rights have been infringed may also institute court proceedings seeking damages and other appropriate remedies. This is illustrated by the South African case of Lettie Hazel Oortman v St Thomas Aquinas Private School & Bernard Langton,32 in which court proceedings were commenced on behalf of a child with a physical disability against a private school alleging that most of the school facilities were not fully accessible to her. In response, the private school submitted that it had taken steps to accommodate the child with disabilities but that the school buildings were too old to adequately accommodate her. The Equality Court held that the school unfairly discriminated against the child and ordered that the school undertake appropriate remedial adjustments.
Disability rights litigation is also important in bringing about changes in social policy. This is illustrated by the South Africa case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa & Another,33 which was brought against the state for failure to provide direct funding for children with severe and profound intellectual disabilities. It was further argued by the applicant that while the state provided minimal funding for children with moderate to mild intellectual disabilities enrolled in special schools, it neglected children with severe and profound disabilities not enrolled in special schools. It was argued, on behalf of the respondent, that due to the severity of the affected children’s intellectual disabilities, no amount of education would be beneficial to them and that if the little funding that the state apportions towards the education of persons with such severe intellectual disabilities is considered in the light of social economic history of the country, it will be apparent that in fact the affected children’s rights to education are not being infringed. It was also argued that the state was following government policy34 which was aimed at achieving inclusive education by systematically moving away from segregation on the basis of the severity or otherwise of a child’s intellectual disability.
The case was determined by the court’s finding that the government policy was discriminatory as it actually singles out children with severe and profound intellectual disabilities for less favourable treatment. The court went further to order a ‘structural interdict’ setting out actual steps the state was to undertake to remedy the inequalities of the policy in issue.
Oppressive national laws may also be challenged through disability rights litigation before national, regional and international courts. Purohit & Moore v Gambia35 illustrates the challenge of domestic law under a regional treaty. In that communication, the applicants challenged the provisions of the Lunatics Detention Act36 which provided for the compulsory detention of persons with mental and or intellectual disabilities into special institutions under Gambia’s domestic law. The African Commission on Human and People’s Rights (African Commission)37 ruled that the said provisions of the Act were discriminatory and urged the Government of the Gambia to repeal the said Lunatics Detention Act. However, it is noteworthy that the impugned Lunatics Detention Act has not yet been repealed or amended38 following the communication in the Purohit case.
Zambia ratified the CRPD on 1 February 2010 to signify its acceptance to be bound by the terms and principles that make the CRPD the most progressive disability rights treaty.39 While ratification of the CRPD does not allow for individual complaints alleging that rights under the CRPD have been violated, it nonetheless allows for a peer review mechanism whereby Zambia is required to submit periodic reports to the CRPD Committee for discussion by both the CRPD Committee and other state parties on how the disability rights are being implemented.40 In order for the CRPD Committee to have the competence to hear individual complaints of disability rights violations, the state party in issue has to ratify the CRPD Optional Protocol.41 Since Zambia is yet to ratify the CRPD Optional Protocol, the CRPD Committee has no competence to hear individual complaints of disability violations allegedly committed in Zambia.
At the African regional level, Zambia ratified42 the ACHPR on 20 July 1987 and as such Zambia is bound to uphold and protect the rights enshrined in the ACHPR. The ACHPR provides for the recognition and protection of various human and people’s rights43 and with respect to disability rights, expressly provides that persons with disabilities have the right to special measures of protection in keeping up with their physical or moral needs.44 While there are no detailed provisions as to the content and exact nature of the special measures of protection persons with disabilities have the right to, the fact that the ACHPR provides that in considering communications, the African Commission45 shall draw inspiration and be guided by the various human rights instruments adopted under the auspices of the United Nations.46 This means that the provisions of the CRPD may be called upon by the African Commission to establish the nature of special members persons with disabilities are entitled to in keeping up with the physical and moral needs.
Further, Zambia has signed but not yet ratified the African Charter on the Rights and Welfare of the Child (ACRWC)47 which provides that:
Every child who is mentally or physically disabled shall have the right to special measures of protection in keeping with his [or her] physical and moral needs so as to ensure his [or her] dignity, promote his [or her] self-reliance and active participation in society.48
The ACRWC further obliges state parties to provide necessary and appropriate assistance and supports to the disabled children and to ensure that they have access to training and preparation for employment and recreation opportunities so as to ensure their fullest possible social integration and personal growth.49
Another regional initiative of relevance to Zambia is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol).50 Zambia ratified the Maputo Protocol and as such she is bound by its provisions.51 The Maputo Protocol explicitly provides for the rights of women with disabilities to dignity and freedom from discrimination52 and requires state parties amongst others, to protect the rights of women with disabilities and to take legislative and administrative steps to prevent the exploitation and abuse of women with disabilities.
The legal effect of signing or ratifying these international or regional instruments in terms of everyday litigation before national courts received judicial pronouncement in the case of Attorney-General v Roy Clark53 where the Supreme Court of Zambia held:
[I]n applying and construing our statutes, we can take into account international instruments to which Zambia is a signatory. However, these international instruments are only of persuasive value unless they are domesticated in the laws.
Therefore, the provisions of the international and regional instruments do not have the binding effect of the law before national courts in Zambia, but may be relied on to persuade the courts to determine matters before them in accordance with the spirit and text of such international or regional instruments. The influence of international instruments was also in issue in the Botswana case of Attorney-General v Dow54 where it was held that even though the provisions of an international convention are not domesticated to form part of national law, such provisions may still be useful in interpreting the national law so as to give effect to the human rights standards as contained in the convention, the provisions of which Botswana has agreed to be bound.
Therefore, even though international instruments are not domesticated, they form part of the international legal framework that shapes or influences disability rights litigation. The nature and effect of domestication will be discussed in more detail in the following sub-section.
Zambia’s national legal framework for the promotion and protection of disability rights is mostly governed by the laws passed by Parliament55 and legal precedents set by national courts. The legal framework of disability rights in Zambia is primarily anchored on the Constitution, which though not having express provisions as to the promotion and protection of disability rights in its Bill of Rights, remains the premise for disability rights protection. In Brotherton NO v Electoral Commission of Zambia,56 the court found that persons with disabilities were discriminated against even though the Bill of Rights did not list disability as one of the prohibited grounds of discrimination. This decision contrasts with that of the Kenyan High Court in Waga57 where on account of Kenya’s previous Constitution not expressly listing the disability as a prohibited ground of discrimination, a case for discrimination was held not to have been established.
Besides the Constitution, there are two main statutes that govern disability rights in Zambia.58 These are the Persons with Disabilities Act59 and the Mental Disorders Act.60 The Persons with Disabilities Act provides for the various rights of persons with disabilities and also seeks to promote their participation in civil, political, economic, social and cultural spheres on equal basis with others. This Act domesticates61 some, though
not all, rights protected under the CRPD.62 According to Ndhlovu-Chanda,63 while the non-express domestication of some rights may have a chilling effect on the full rights of persons with disabilities, it is hoped that this may not adversely affect their protection and recognition as the core rights to equality and non-discrimination and equal recognition before the law, have been domesticated.
The Mental Disorders Act provides for the care and support of persons it describes as suffering from ‘mental disorders or defects’ and also for the custody of the persons and for the administration of their estates. This Act does not do much to enhance the rights of persons with disabilities as it firstly refers to persons with mental disabilities in derogatory terms such as ‘idiots’ and ‘imbeciles’.64 Additionally the Act does not recognise the legal capacity of persons with intellectual or psychosocial disabilities and considers them incapable of managing their own affairs; instead, it provides for the administration of their estates and for their institutionalisation.65 According to Waliuya,66 the Mental Disorders Act is scheduled to be repealed by the enactment into law of the Mental Health Bill.67 Prior to repeal, the Mental Disorders Act remains the law in Zambia. However, to the extent that it is inconsistent with the Persons with Disabilities Act, the provisions of the latter enactment will prevail.68
Additionally, by interpreting provisions of the Constitution and statutes, courts also shape the national legal framework for disability rights in Zambia. In Brotherton69 the High Court of Zambia found that the Electoral Commission failed to provide reasonable accommodation and support services as required under the law thereby effectively shaping the requirements of a good electoral law.70
According to Dube,71 the greatest obstacle to disability rights litigation in Africa is the existence of constitutional provisions which usually classify disability rights under non-justiciable clauses. Such clauses usually fall within the Directive Principles of State Policy and as such they are not binding on the state and cannot be enforced. The Zambian Constitution provides72 that provisions of the Directive Principles of State Policy are not justiciable and that they shall not, despite being referred to as rights, be legally enforceable in any court, tribunal or administrative institution or entity. Article 112(f), which is under the Directive Principles of State Policy, provides:
[T]he State shall endeavour to provide to persons with disabilities, the aged and other disadvantaged persons such social benefits and amenities as are suitable to their needs and are just and equitable.
Apart from the foregoing provision, the Zambian Constitution does not have any express provision relating to disability rights. This leaves the recognition and protection of disability rights at the broad discretion and interpretation of the general non-discrimination constitutional provisions73 to the courts. The Zambian High Court in Brotherton74 adopted a broad approach to the interpretation of the Constitution when it was called upon to consider whether the Electoral Commission of Zambia’s failure to adhere to the rights falling under the Directive Principles of State Policy such as those relating to social and physical amenities suitable for needs of persons with disabilities to participate in national elections, amounted to discrimination against persons with disabilities’ right to vote. The court held that discrimination was proved notwithstanding that the rights relating to the provision of accommodative supports for voters with disabilities fall within the non-justiciable provisions of the Constitution.
In that case, the court did not make any distinction between the right to vote as a civil and political right, and the right to be availed the appropriate amenities, infrastructure and resources which fall within the Directive Principles of State Policy. The court’s approach not to distinguish between the two sets of rights advances disability rights litigation and is commendable. However, the mere classification of disability-related rights as non-justiciable rights has a chilling effect on disability rights litigation as it stifles persons with disabilities’ rights to access to justice.
The Zambian Constitution75 does not list disability as one of the prohibited grounds of discrimination. A question therefore arises as to whether courts in Zambia may entertain a claim for discrimination on the ground of disability in view of disability not being one of the grounds upon which discrimination is prohibited. In Brotherton, the High Court found that disability discrimination is still prohibited notwithstanding the non- express provision in the Constitution. In this case the petitioner claimed that the respondent had unlawfully discriminated against the persons with disabilities contrary to article 23 of the Constitution as read together with section 19 of the previous Persons with Disabilities Act. The court held:
The first allegation made is that the Respondent has discriminated against the organisation’s members and persons with disabilities in general contrary to Article 23 of the Constitution as read with Section 19 of The Persons with Disabilities Act. The Article basically provides that a person shall not be discriminated in any manner by any person acting by virtue of any written law or performance of a function of any public office.76
In finding a case for discrimination, the court further reasoned that the respondent in carrying out its public functions is bound not to treat those seeking its services in a discriminatory manner notwithstanding the non-listing of disability as one of the prohibited grounds of discrimination in the Constitution. The position taken by the Zambian court is in line with the European Court of Human Rights77 in Glor v Switzerland78 where disability was not listed as a prohibited ground of discrimination in the European Convention on Human Rights (ECHR). In this case it was held that the list of grounds upon which discrimination is prohibited under article 14 of the ECHR is not exhaustive and that disability is to be included as a prohibited ground of discrimination.
However, Waga79 provides an interesting perspective with respect to rights which are provided for in national legislation but not expressly provided for in the Bill of Rights. In the latter case, the Kenyan High Court held that there could be no constitutional protection under section 22(1) of the Constitution because the right not to be discriminated against on the basis of disability is not expressly provided for in the Bill of Rights.80 The court’s refusal to find for the applicant was notwithstanding that the Persons with Disabilities Act prohibited discrimination on the basis of disability.81 In arriving at its decision, the court relied on the Supreme Court’s position in the case of RM (suing through next friend JK) v Attorney-General82 where it was held:
In interpreting our Constitution we consider ourselves bound by its provisions in the matter before us namely s 82 and its limitations. Perhaps it is important to point out at the outset, that following the great momentum of gender equity in the 80’s and 90’s, s 82 of the Constitution was amended in 1997 and the prohibited category expanded to include “sex” ... At the moment one can only conclude that the exclusion was deliberate and we do not consider it the function of the Court to fill the gaps.83
The court consequently found that construing section 82 to include the ground of disability would be usurping constituent power of the people enshrined in the Constitution. This is also in contrast with the communication of the African Commission in Purohit84 where a finding for discrimination was made even though the ACHPR85 does not expressly list disability as a prohibited ground of discrimination. In its communication, the African Commission observed:
Articles 2 and 3 of the African Charter basically form the anti-discrimination and equal protection provisions of the African Charter. Article 2 lays down a principle that is essential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises, while Article 3 is important because it guarantees fair and just treatment of individuals within a legal system of a given country. These provisions are non-derogable and therefore must be respected in all circumstances in order for anyone to enjoy all the other rights provided for under the African Charter.86
It follows that while the general jurisprudence appears to favour the position that the expressly listed grounds of prohibited discrimination are not exhaustive, the non-listing of disability as a prohibited ground of discrimination is not desirable as it leaves to the subjective discretion of the court or tribunal, which discretion may not always be exercised judiciously.
The high poverty incidence levels in Africa also play a role in discouraging disability rights litigation. Zambia falls under the low and middle income countries87 bracket which are characterised by poverty, general unemployment and poor physical infrastructure. According to Daniel Mont,88 disability and poverty are so intricately interlinked that the problem of disability cannot be adequately addressed without dealing with the problem of poverty. The World Bank presents the linkage as follows:
Poverty causes disability through malnutrition, poor health care, and dangerous living conditions. Disability can cause poverty by preventing the full participation of disabled people in the economic and social life of their communities, especially if the proper supports and accommodations are not available. In fact, the qualitative eviden[ce] suggests that disabled people are significantly poor in developing countries, and more so than [their] non-disabled counterpart[s].89
It follows therefore that poverty affects disability rights litigation as persons with disabilities living in poverty are least likely able to afford legal practitioners or to pay requisite court fees. Consequently, they are less inclined to institute disability rights litigation.
Further, professional lawyers are usually concentrated in urban areas.90 Persons with disabilities living in rural areas have to travel long distances to access professional legal advice, the police or indeed a court. According to a Radio Netherlands Worldwide report,91 a South African girl who uses a wheel chair had this to say:
Where I live, many pavements are in bad shape and there are not a lot of off-rumps. It’s also dangerous so I can’t go places on my own.92
It follows that even if persons with disabilities know their rights, there are other barriers that they need to navigate such as long distances and inaccessible roads and buildings that militate against persons with disabilities instituting court proceedings.
The stigma and prejudicial attitudes which society often harbours towards persons with disabilities serves to deter them from instituting disability rights litigation. This is because persons with disabilities are often perceived as second class citizens not entitled to enjoy human rights on an equal basis with others. One woman with a physical disability, when interviewed by the Human Rights Watch93 in Uganda, had this to say:
At a community meeting, they didn’t allow me to talk. It happens to all persons with disabilities. It is as if we weren’t human ... On occasions when food is being given, sometimes persons with disabilities are given what others leave behind on their plates.94
Persons with disabilities who grow up in conditions of perpetual marginalisation are least likely to consider disability rights litigation as they feel they will not be allowed to articulate their claims in court and, or, are just intimidated to speak out.95 It is noteworthy that in the South Africa case of Hoffmann v South Africa Airways,96 the Constitutional Court of South Africa did make some positive observations when it considered how the courts ought to view stigma and prejudice in relation to the protection of fundamental rights. It held:
The constitutional right of the appellant not to be unfairly discriminated against cannot be determined by ill-informed public perception of persons with HIV. Nor can it be dictated by the policies of others ... not subject to our Constitution.97
While the court in Hoffmann was referring to society’s prejudicial views targeted at persons with HIV, it is hereby submitted that the court’s reasoning should equally apply to matters involving persons with disabilities. In Zambia, the position is worsened by the Mental Disorders Act which refers to persons with mental and intellectual disabilities in derogatory terms such as ‘idiots’ and ‘imbeciles’.
So far the chapter has discussed the challenges facing disability rights litigation in Zambia and the discussion has shown how the existing legal framework, poverty, cultural values and attitudinal perceptions may discourage persons with disabilities from instituting disability rights litigation. The following section will now conjoin the best practises discussed throughout this chapter with a view of devising effective disability rights litigation strategies.
The reason why persons with disabilities have little success before courts is partly to do with the lack of a strategic approach.98 A court will entertain a case depending not only on its merits but also on the manner in which the claims are articulated and the strategies employed by the litigants. In order to achieve the objects of litigation, there is need to plan who will be the parties, nature of claims, choice of forum, procedure to be adopted and the applicable law. It is in this regard that this section will seek to devise effective litigation strategies for disability rights.
The CRPD99 obliges all state parties to adopt appropriate legislative, administrative and other measures to promote the full realisation of disability rights. Since Zambia adopts the dualist approach to domestication of international instruments, the CRPD and its Optional Protocol need to be domesticated to become part of national law. Domestication in this regard, involves the enactment of laws that incorporate the provisions and principles of the CRPD.100 This is necessary to ensure that disability rights legislation is tailored to address the specific challenges that persons with disabilities face in each country. The need for domestication is further amplified by the fact that even a country that adopts a monist approach such as Madagascar, has enacted national legislation for the protection of the rights of persons with disabilities.101
Furthermore, it is imperative that dissatisfied litigants have the option of invoking international human rights instruments to seek redress after exhausting local remedies. Ratification of the CRPD’s Optional Protocol102 provides such an alternative avenue by allowing individuals to lodge communications of disability rights abuses to the Committee established under the CRPD.103 Zambia should ratify and domesticate both the CRPD and its Optional Protocol in order to pave the way for the provisions of international instruments to become part of the national law.
It is important for CSOs and society in general to raise disability rights awareness in the local communities through public meetings. This will contribute towards enabling persons with disabilities and members of society generally to acquire basic understanding of disability rights and also to dispel the stigma and attitudinal barriers that exclude persons with disabilities from participating fully in society.
Gloppen104 recognises the importance of CSOs’ involvement in the following terms:
It also seems clear that litigation efforts that are part of a broader mobilisation strategy are more likely to result in positive judgments and judgments that are implemented and cause changes in policy. Sometimes a single case may have a significant effect on jurisprudence and cause a change in public policy, but a systemic effect on social policy is more likely where there is an overall strategy, a set of cases building up jurisprudence in the field, and an organisational apparatus that is able to capitalise on the momentum caused by the legal process and sustain political pressure through mobilisation and debate.105
The foregoing observation presents a holistic approach to strategic litigation. It epitomises the broad mobilisation of human and other resources to facilitate not only the effective litigation in courts but also appropriate legal reform and enhances human rights awareness in society generally. According to Robb106 there is an urgent need for concerted efforts by CSOs and society in general to ensure that stigma is stamped out to enable persons with disabilities to enjoy their human rights and to participate in society on an equal basis with others.
Furthermore, CSOs and society at large need to mobilise to speak out against wrongs committed against persons with disabilities and to condemn any acts which undermine the disability rights movements. In Mozambique, a journalist107 was convicted of libel for reporting on a matter in which a disabled girl child was dismissed from a private school for complaining about the failure to construct an access ramp at the school
as required by law.108 Mobilisation of CSOs and society generally to condemn the said expulsion would not only enhance disability rights but would also spur on disability rights litigation.
It is recommended that in order to assist indigent persons with disabilities with meritorious cases suitable for disability rights litigation, CSOs should mobilise and raise money to meet the legal fees and other costs associated with litigation. CSOs should further advocate for the establishment of effective national legal aid systems, and also facilitate and initiate public interest litigation aimed at enhancing disability rights.
In Zambia, the NHRI is known as the Human Rights Commission (HRC). It was established by article 125 of the Constitution109 which provides that the functions, powers, composition and administrative procedures shall be prescribed by an Act of Parliament.110 According to the Human Rights Commission Act,111 the HRC has the authority to investigate any human rights violations and to issue summons or orders requiring the attendance of any authority before the HRC and the production of any document or record relevant to any investigation being carried out by the HRC.112 According Ndhlovu-Chanda,113 the power to investigate human rights violations includes the power to investigate disability rights violations.
NHRIs are guided by the Paris Principles.114 The Paris Principles provide the guidance and competences for institutions to effectively promote and protect human rights. They specifically require NHRIs to have a broad mandate for the protection of human rights and to be independent from the state. They require adequate funding from the state to enable NHRIs to carry out their mandate. Since NHRIs have the mandate to monitor the implementation of human rights laws,115 they are an ideal strategic partner to both persons with disabilities and CSOs advancing disability rights. NHRIs are better placed to access public records and government institutions such as schools and hospitals. Usually, public records which would make vital evidence in disability rights litigation would not be readily available to litigants. However, NHRIs have the right to access to public records or buildings so as to fulfil their mandate to protect and promote human rights. A close working relationship with NHRIs would therefore facilitate access to public records and institutions to collate evidence needed for disability rights litigation.
The CRPD requires116 state parties to designate one or more focal points within government and in accordance with their legal and administrative systems, to maintain and establish a frame work, including one or more independent mechanisms to promote, protect and monitor the implementation of the CRPD.
In designating one nor more focal points within government, it is imperative that the terms of reference for such focal points are clearly spelt out. Waliuya117 expressed concern over the fact that while the Zambian government has designated focal point officers in all government ministries, most of the focal points officers are not aware of their terms of reference or conversant with disability rights.
There is therefore a need to have focal point officers in all government ministries and departments who are conversant with their terms of reference and with basic knowledge of disability rights so that they can contribute positively to the development of disability rights policies and where necessary highlight policies that are not CRPD compliant. This will assist in implementation and coordination.
The extent to which the judicial system responds to social change, coupled with the activism of judicial officers, has a strong bearing on the extent to which disability rights may be effectively litigated upon. While it is difficult to come up with a universally accepted definition of judicial activism, it generally refers to the philosophy whereby judges interpret the law not necessarily according to the confines of already set precedents but in such a manner to reflect the contemporary conditions and values.118 In this regard, owing to the novelty of the disability rights movement,119 courts are required to be responsive to the social change by interpreting the law in accordance with current social trends. A good example of a court or tribunal which responds to social change or a paradigm shift in the area of disability rights, is the African Commission’s bold interpretation of the ACHPR120 in Purohit, as regards the requirement to exhaust local remedies before lodging a complaint. The brief facts of Purohit were that the applicants initiated communication to the African Commission on behalf of persons with psychosocial disabilities complaining that the Lunatics Detention Act discriminates against persons with psychosocial and intellectual disabilities. The Lunatics Detention Act provided for the involuntary detention of persons with psychosocial and intellectual disabilities and it was the applicants’ contention that it infringed the rights of such persons to enjoy the best attainable state of mental health and their rights to special measures of protection in keeping with their physical and moral needs.
On the question of admissibility121 of the complaint, the African Commission decided that since the affected persons were indigent and also, due to the non-effective legal aid system in Gambia, the affected persons cannot realistically be expected to avail themselves of the legal procedures of challenging their involuntary admission into mental health institutions. Had the African Commission interpreted the ACHPR narrowly, the communication would not have been admitted as the applicants had not exhausted any local remedies in that they did not challenge the impugned legislation before national courts in the Gambia.
It is therefore crucial that courts in Zambia are bold enough to respond to changing social and legal dynamics of society, in order to set the ground work for successful litigation of disability rights. In Zambia and Botswana, the courts exhibited boldness and high levels of judicial activism when it was held that even though the provisions of international instruments have not been domesticated to form part of national law, national law must be interpreted in a manner that embraces the purpose and provisions of international instruments to which Botswana and Zambia respectively, have agreed to be bound.122
Closely related to the responsiveness of the courts, is the need to have competent lawyers who specialise in disability rights cases or have the experience of working with discrimination and equality-related cases. The disability perspective to human rights presents a shift away from the traditional equality of treating all human beings equally.123 Instead focus is now on substantial equality and dictates that society takes appropriate and necessary steps to equalise opportunities124 for persons with disabilities. A lawyer when presented with the relevant facts of a case will be required to give competent advice as to the appropriate remedies to seek, the right forum to commence proceedings, and the rightful process with which to institute proceedings.125 Wrong advice with respect to any of the foregoing areas may result in court proceedings being dismissed either at the preliminary stage or in the judgment. Disability rights law is therefore a specialised area of law which requires competent lawyers to handle.
Waliuya126 observed that the non-availability of lawyers specialised in disability rights has led to the failure of disability rights litigation in Zambian courts.127 He stressed that most persons with disabilities have as a result lost confidence in the judicial system owing to the lack of competent lawyers specialised in disability rights litigation. He maintained that it is in this regard that ZAFOD has engaged in the capacity building exercise of involving lawyers seized with the conduct of disability rights abuse cases, in a number of workshops, conferences and negotiations for legal reforms.
Where competent and specialised disability rights lawyers128 are available, persons with disabilities are faced with the prospects of high legal fees should they seek to commence court proceedings. As mentioned earlier, persons with disabilities are usually amongst the poorest and most marginalised people in their communities and as such they cannot afford legal fees and other costs of litigation. It is essential to provide legal aid services to indigent persons with disabilities to facilitate disability rights litigation.
To overcome the cost of litigation, CSOs should mobilise funds to meet the legal fees of persons with disabilities as they seek to enforce their rights. This would ensure that indigent persons with disabilities do not have to worry about raising funds to meet legal fees while ZAFOD’s objective of obtaining court orders to set up precedents on disability rights is also achieved. Further, disability law should be part of all law schools’ curriculum in universities and colleges in Zambia so that student lawyers receive the necessary training while lawyers already in practice should have disability law training as part of their continuous professional development. This will sensitise more lawyers in disability law.
Physical access to court premises, including the road infrastructure, is a very crucial component of the litigation strategy of disability rights in Africa. Indeed the CRPD provides that in order for persons with disabilities to live independently and to participate fully in their societies, state parties are required to take appropriate measures to ensure that persons with disabilities have access to the physical environment, transportation, information and communication technologies, and other facilities available to non-disabled persons.129 In most Africa countries, there are poor road infrastructures, characterised by potholes and generally ungraded roads, whereby persons on wheel chairs have restricted movements outside their homes. The inaccessible roads and building infrastructures discourage persons with disabilities from undertaking the uncomfortable and often dehumanising journey to the court premises.
In Kenya, a High Court judge was taken round the court building by a litigant in a wheelchair demonstrating how difficult it was for persons with disabilities to access the court building without ramps.130 This was in the case of Paul Pkiach Anupa v Attorney-General & Others131 where the inaccessible court premises were challenged for denying the petitioner access to justice. Among the relief sought, is an order that the court buildings be made accessible. The Court held:
It is no doubt that mobility or accessibility of public buildings including court houses is one such effort in aiding access to justice for all Kenyans ... The current physical structure of the ... law courts is such that it is a hindrance to justice seekers owing to the physical barriers that make it a herculean task for persons with disabilities to access the courts.132
Lawyers with physical disabilities face the same difficulties. In the South African case of Esthé Muller v the Department of Justice & Another133 an attorney with quadriplegia brought a case with respect to difficulties in accessing the court buildings. In her statement, she alluded to how sometimes she had to be carried up the stairs due to the inaccessible court rooms and stated: ‘It’s embarrassing for my client to have his lawyer carried into court. It’s also embarrassing for me’.
The foregoing matter was resolved by way of a settlement agreement after the respondents agreed that their failure to make the court buildings accessible was a form of discrimination against the applicant. The Zambian Government should therefore take appropriate steps to modify and adjust all court rooms and buildings, and other physical infrastructure such as roads, to make them accessible to persons with disabilities. This should include making available all necessary support and services such as sign language interpreters, social workers and accommodative procedures aimed at ensuring that persons with disabilities have effective access to justice.
Devising an effective national litigation strategy requires harmonising a range of activities that constitute, and result in, access to justice. These activities include constitutional and legal reforms, judicial activism and disability rights awareness drives among persons with disabilities and society at large. Perhaps the most significant of these activities, is the need to change the attitudinal and prejudicial perceptions the Zambian society often harbours against persons with disabilities. In terms of priority, the need to eradicate the deep entrenchment of prejudice and stigma against persons with disabilities outweighs the need for constitutional and other strategies for effective disability rights litigation. As long as society continues to view persons with disabilities with prejudice and stigma, constitutional and legal reforms will not effectively advance the cause of disability rights litigation and neither will judicial activism achieve its intended purpose. The implementation of all the good practices and laws in Zambia will not achieve much if disability rights are weighed-down by prejudice and stigma.
Indeed, the leitmotif of the CRPD is to achieve a shift in the manner people view persons with disabilities and also how they relate with disability issues that arise from human impairments. This is to be achieved by recognising that the primary problem with regard to the marginalisation and exclusion of persons with disabilities is not the human impairments. Rather, it is societal norms and values acting in concert with inaccessible physical infrastructure which, by design, exclude persons with disabilities from fully participating in society. Zambia will also need to adopt positive affirmation measures such as the provision of necessary support services so as to equalise opportunities to enable persons with disabilities to participate fully in society. Such positive affirmative measures include constitutional and legal reforms so as to enforce or compel compliance with the change envisioned by the CRPD.
2. T Degener & G Quinn ‘A Survey of international, comparative and regional disability law reform’ International Disability Law Symposium, Disability Right Education Defense Fund, California, USA http://dredf.org/international/degener_quinn.html (accessed 17 September 2013).
5. M Mannak ‘South Africa: The plight of South Africa’s disabled youths’ Radio Netherlands Worldwide 26 July 2012 http://allafrica.com/stories/201207270270.html (accessed 27 July 2012).
7. S Gloppen ‘Public interest litigation, social rights and social policy’ Arusha Conference, ‘New frontiers of social policy’, 12-15 December 2005. See also R Bowd ‘Access to justice in Africa: Comparisons between Sierra Leone, Tanzania and Zambia’ Institute for Security studies (Policy Brief no 13, October 2009).
12. R Traustadóttir ‘Disability studies, the social model and legal developments’ in O M Arnardóttir and G Quinn (eds) The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives (2009) 4.
17. JE Lord et al ‘Human rights. Yes! Action and advocacy on the rights of persons without disabilities’ Human Rights Education Series, Topic Book 6, University of Minnesota Human Rights Resource Centre, 2007.
32. Equality Court Case 1/2010, 3 December 2010 http://www.sahrc.org.za/home/21/files/MPL%20Judgement.pdf (accessed on 16 July 2013).
38. Mental Health ‘The Gambia, situational analysis’ World Health Organisation (2013) http://www.who.int/mental_health/policy/country/thegambia/en/ (accessed 16 July 2013).
39. United Nations Enable Development and human rights for all: Convention and Optional Protocol signatures and ratifications http://www.un.org/disabilities/countries.asp?id=166 (accessed 22 July 2013).
40. United Nations Human Rights: Office of the High Commissioner for Human Rights Committee on the Rights of Persons with Disabilities http://www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDIndex.aspx (accessed 26 June 2013).
45. ACHPR. In terms of art 56, admission criteria for communications include the requirement that the complaints of human and people’s rights violations are brought within a reasonable time after exhausting local remedies if any, unless the local remedies involve protracted procedures.
47. Eastern and Southern Africa ‘The African Charter on the Rights and Welfare of the Child’ (Unicef) http://www.unicef.org/esaro/children_youth_5930.html (accessed 30 June 2013). See Organisation of African Unity, Document CAB/LEG/24.9/49 (1990).
51. The Maputo Protocol: A clear and present danger ‘The countries that have ratified it’ (2011) http://www.maputoprotocol.com/the-countries-that-have-ratified-it (accessed 16 July 2013).
55. Constitution of Zambia, art 62. Article 80 of the Zambia Constitution also bestows on Parliament the authority to confer the power, on any person or authority, to create statutory instruments which also have the force of law.
61. Secs 2, 4, 5, 6, 7, 8, 9 and 10 of the Persons with Disabilities Act domesticates arts 1, 2, 4, 5, 12 and 23 of the CRPD. Also provisions relating to the right to education, health and rehabilitation, employment and accessibility are domesticated by the Act.
62. The Persons with Disabilities Act does not expressly domesticate the provisions of the CRPD relating to the rights of women and children with disabilities, the right to nationality, independent living and being included in the community, privacy and freedom of expression and opinion.
67. Zambia UK Health Workforce Alliance & Zambia Ministry of Health Conference ‘Current Health Bills/Acts & restructuring of the Zambian health service within ministries’ Maynard Theatre, The Kings Fund, 11 - 13 Cavendish Square, London, 8 May 2013 16 http://www.zuhwa.com/wp-content/uploads/2013/05/Dr.-Simoongas-Presentation-.pdf (accessed 6 July 2013). This Bill was first presented in Parliament for enactment in 2006 but has not been enacted into law yet. It seeks to provide for the respect, autonomy and self-determination of persons with mental disabilities.
71. BA Dube ‘Forced evictions and disability rights in Africa’ (September 2008) http://www.nyulawglobal.org/Globalex/Forced_Evictions_Disability_Rights_Africa.htm (accessed 28 July 2012).
87. The World Bank How We Classify Countries (2012) http://data.worldbank.org/about/country-classifications (accessed 17 July 2012).
88. D Mont ‘Measuring disability prevalence’ (March 2007) (SP Discussion Paper No 0706) 1 http://siteresources.worldbank.org/DISABILITY/Resources/Data/MontPre valence.pdf (accessed 18 July 2013).
89. The World Bank Data and statistics on disability http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTSOCIALPROTECTION/EXTDISABILITY/0,,content MDK:21249181~menuPK:282717~pagePK:148956~piPK:216618~theSitePK:282699,00.html (accessed 29 June 2012).
100. L Gerntholtz et al ‘Disability rights, HIV/AIDS in Eastern and Southern Africa: A review of international, regional and national commitments on disability rights in the context of HIV/AIDS in Eastern and Southern Africa’ Final Report (August 2010) 17.
106. Interview with Annie Robb, Programme Manager, Ubuntu South Africa (Cape Town, Republic of South Africa, 26 June 2012). Annie Robb is also the Administrator of the Pan African Network of People with Psychosocial Disabilities.
107. Committee to Protect Journalists ‘Mozambican journalist sentenced in criminal libel case’ (2 August 2012) http://cpj.org/africa/mozambique/ (accessed 6 August 2012).
118. EK Quansah & CM Fombad ‘Judicial activism in Africa: Possible defence against authoritarian resurgence’ 3 http://www.ancl-radc.org.za/sites/default/files/Judicial %20Activism%20in%20Africa.pdf (accessed 15 July 2013).
- Janet Lord
- Senior Research Associate, Harvard Law School Project on Disability; Adjunct Professor of Law, University of Maryland Francis King Carey School of Law
- Michael Ashley Stein
- Executive Director, Harvard Law School Project on Disability; Visiting Professor, Harvard Law School; Cabell Professor, William & Mary Law School
- (2013) 1 ADRY 97-113
- Download article in PDF
The authors wish to sincerely thank Kathleen Imbriglia for the research assistance that she rendered in the preparation of this article and the two anonymous referees for their constructive comments of an earlier draft of this article.
African states strongly embraced the adoption of the CRPD, along with its Optional Protocol. The Working Group that developed the foundational text of the treaty included delegations from seven African nations. Likewise, the lone seat allocated within the Working Group to represent national human rights institutions was held by a South African Human Rights Commissioner. Sixteen African countries signed the CRPD on the first day it opened for signature, and 34 have ratified it, contributing to a rapid entry into force. In addition, 18 African states are party to the Optional Protocol to the CRPD, thereby assenting to its complaint procedure and procedure of inquiry. The Committee on the Rights of Persons with Disabilities has included experts from the continent, and the current Special Rapporteur on Disability is South African. Also significant is the declaration by the African Union of 1999-2009 and 2010-2019 as African Decades for Persons with Disabilities. The CRPD has therefore been enthusiastically embraced on the African continent, but so too have prior human rights treaties, with uneven subsequent progress. By the same token, the CRPD challenges Africa’s states parties - as it does states parties from all regions of the world - to ensure treaty implementation in a manner that responds to broad obligations while being duly consonant to domestic social and legal norms. To foster dialogue around progressive and culturally appropriate CRPD implementation, this article begins with a brief overview of the treaty. Next, it identifies a number of CRPD provisions with particular salience for Africans with disabilities, and showcases innovative approaches, often led by disability rights advocates rather than by the obligated states, that are advancing domestic implementation of those rights on the continent. The article concludes with some thoughts regarding entry points for future CRPD advocacy that can advance implementation regionally across Africa.
The adoption of the Convention on the Rights of Persons with Disabilities (CRPD)1 along with its Optional Protocol2 by general consensus on 13 December 20063 was an initiative strongly embraced by African states.4 The Working Group that developed the foundational text of the CRPD negotiations included delegations from seven African nations - Cameroon, Comoros, Mali, Morocco, Sierra Leone, South Africa, and Uganda.5 Likewise, the lone seat allocated within the Working Group to represent national human rights institutions was held by a commissioner from the South African Human Rights Commission.6
Sixteen African countries signed the CRPD on 30 March 2007, the first day it opened for signature,7 and 34 have ratified the treaty,8 contributing to its rapid entry into force. In addition, 18 African states are party to the Optional Protocol to the CRPD, thereby assenting to its complaint procedure and procedure of inquiry. The CRPD has included experts from Algeria, Kenya, and Tunisia,9 and the current Special Rapporteur on Disability is South African disability rights advocate, Mr Chalklen.10 Also significant is the declaration by the African Union of 1999-2009 as the African Decade for Persons with Disabilities, an
observance extended for a second decade, 2010-2019.11 A new continental plan of action (CPOA) was adopted by the African Union Executive Council in January 2013.12 The CPOA mirrors most of the provisions of the CRPD, while also referencing governing African bodies and specifically African contexts. And in 2009, the African Commission expanded the mandate of the focal point on the rights of older persons in Africa to include the rights of disabled persons. 13
The CRPD has therefore been enthusiastically embraced on the African continent, but so too have prior human rights treaties, with uneven subsequent progress. By the same token, the CRPD challenges Africa’s states parties - as it does states parties from all regions of the world - to ensure treaty implementation in a manner that responds to broad obligations while being duly consonant to domestic social and legal norms.14 Ncube put it well when observing that ‘substantive rights will often get their complexion from the local cultural environment within which they have to be given concrete, practical meaning’.15 Thus, the recurring question that must be raised is whether the CRPD is being appropriately adopted, implemented, and understood within an African context.
To foster dialogue around progressive and culturally appropriate CRPD implementation, this article begins with a brief overview of the treaty. Next, this article identifies a number of CRPD provisions with particular salience for Africans with disabilities, and showcases innovative approaches, often led by disability rights advocates rather than by the obligated states, that are advancing domestic implementation of those rights on the continent. This article concludes with some thoughts regarding entry points for future CRPD advocacy that can advance implementation regionally across Africa.
Persons with disabilities share a common history of stigma, discrimination and segregation the world over. As a result, disabled persons often find themselves denied basic human rights and fundamental freedoms, including the right to pursue an education, engage in meaningful work that pays a living wage, reside where they choose, move about freely, and generally participate in the lives of their communities.16 Legislation, policy and programming - as well as responsive advocacy campaigns - must therefore be attuned to the manifestations of harm particular to disabled persons and the types of settings in which they occur, including the home, within the family, at school, in social care facilities, and in refugee camps. 17
Accordingly, while the denial of human rights is an unfortunate and common experience amongst persons with disabilities globally - including Africa’s 55 nations - socio-legal norms about disability take on varied and local manifestations that are contextually relevant when considering CRPD implementation.18 African scholar Kisanji, for instance, reports that in various communities specific disabling conditions are regarded as a curse or a bad omen attributable to witchcraft or sorcery.19 Thus, to combat negative attitudes towards persons with disabilities and to raise awareness about the need for inclusion, the Swaziland Ministry of Education introduced a scheme wherein children composed songs and performed plays in schools and local communities; they also built ramps, made toilets accessible, and designed accessible playgrounds. 20
The CRPD’s 25 preambular paragraphs and 50 articles provide a framework within which disability rights may be addressed in African country contexts. The aim of the drafters was not to create ‘new’ or ‘special’ rights for persons with disabilities, but instead to articulate how existing human rights obligations apply specifically to persons with disabilities. 21
The CRPD structure consists of an introductory set of provisions that outline its purpose (article 1) and key definitions (article 2), along with articles of general or cross-cutting application (articles 3-9). Among the obligations adumbrated in the instrument, states parties must (i) adopt legislative, administrative and other measures to implement enumerated rights; (ii) abolish or amend existing laws, regulations, customs and practices that discriminate against persons with disabilities; and (iii) adopt an inclusive approach to protect and promote the rights of persons with disabilities in all policies and programmes. In relation to economic, social and cultural rights, states parties must take measures to realise these rights progressively to the maximum extent of available resources.
The CRPD sets forth specific substantive rights covering civil, political, economic, social and cultural rights (articles 10-30). African government delegations and disability rights advocates pressed for a treaty that was comprehensive in its approach; encompassing civil, political, economic, social and cultural rights. They likewise insisted that the entrenched interrelationship between disability and poverty be reflected in the text, thus contributing references to disability-inclusive poverty reduction programs and making explicit the right to an adequate standard of living.
The CRPD further establishes a system of monitoring and implementation (articles 31-40) and includes final provisions that govern the treaty’s operation (articles 41-50). Of considerable significance, and attributable in part to African lobbying, is that certain obstacles that inhibit disability rights implementation in the African context are anticipated and accounted for in the text. For instance, the need to ensure that international cooperation programming is inclusive of persons with disabilities made its way into article 32 as an implementation measure. Likewise, insistence by African state representatives that guidance was needed to delineate the population of persons with disabilities for whom the treaty was drafted helped ensure the establishment of a definitional baseline in article 1.
The framework for national level monitoring (article 33) was facilitated by African national human rights institution participation in the CRPD negotiations -in particular the South African Human Rights Commission - along with several disability-specific African commissions. The Committee on the Rights of Persons with Disabilities is tasked with monitoring implementation by states parties through its oversight of the mandatory state reporting requirement and through the issuance of recommendations. An Optional Protocol to the CRPD, comprised of 18 articles, gives the Committee competence to examine individual complaints and initiate inquiries with regard to alleged violations of the
Convention by states parties to the Protocol.22 Finally, it bears noting that the CRPD drafters consciously desired and enumerated the active participation of disabled peoples organisations (DPOs) in the conception, implementation, and monitoring of every facet of the treaty.23
Building on domestic African experiences, the sections that follow help identify particular challenges for persons with disabilities on the continent relating to: physical and mental integrity; living in the community; situations of risk; health; and legal recognition.24 When doing so, we underscore successful CRPD-based responses that have facilitated domestic-level human rights implementation.25 These themes are resonant with the call by the Secretariat of the African Decade of Persons with Disabilities to ‘promote equal provision of services especially in the areas of health, education, employment, skills training and development, and access to justice for all persons with disabilities who suffer and are victims of exclusion and human rights violation.’26
Violations of the physical and mental integrity of adults and children with disabilities take many forms. Disability is a major ‘risk factor’ when accounting globally for vulnerability to torture, cruel, inhuman or degrading treatment or other abuse. 27
Stigmatisation and discrimination associated with disability in many communities increase vulnerability to violence and abuse. For example, the forced ingestion of substances harmful to human health is regarded in some African communities as an antidote to mental disability.28 Remedies thought to ‘cure’ disability proliferate around the world, are peddled via the internet or, in rural communities with limited access to the internet, are discovered through word of mouth, while elsewhere, as in Ghana, religious quackery subjects Ghanaians with psychosocial disabilities to abuse in prayer camps where they are chained to trees for hours, denied food, and exposed to the sun in a bogus ‘healing’ process.29 According to Sierra Leone disability rights advocate Bangura, persons with epilepsy are ‘subjected to traditional treatments that are “tantamount to torture” - cuts, burning, inhaling or drinking potions’.30 Some a ccounts tell of autistic persons being thrown into the bush and left to die in West African communities on the ground that they are ‘possessed’ and their behaviour ‘demonic’.31 Equally disconcerting are numerous accounts from Tanzania of people with albinism being killed due to the ‘superstitious belief’ that utilising their bodily parts ‘will lead to great wealth’ and reports from Kenya regarding mistreatment and abuse in the Mathari Psychiatric Hospital.32
To combat this often deadly stigma, African DPOs have: organised the reporting of these types of human rights abuses;33 raised awareness regarding the equal dignity and worth of persons with disabilities;34 and repealed retrogressive ‘mental health’ laws which permit involuntary confinement and forced medical treatment.35 The South African Human Rights Commission concurrently has engaged in local training exercises and advocacy activities, and released public statements regarding disability equality.36
Disability rights advocates around the world are campaigning vigorously for the elimination of living arrangements that segregate and isolate persons with disabilities, often in state-sponsored institutions. In Africa, institutions are not as prominent as in many parts of the ‘developed’ world 37 and in consequence isolation is more likely to take place within the community. For example, human rights organisations and journalists have documented ‘leper colonies’ and amputee camps in parts of West Africa.38 Bangura reports that in Sierra Leone persons with epilepsy ‘are often driven from schools, jobs, homes.’39 Kisanji similarly notes the practice of hiding away disabled children is common in some communities across the continent, although he attributes this practice to paternalistic impulse rather than disability animus.40
At the same time, orphanages and social care homes are problematically on the rise in Africa, particularly in sub-Saharan African countries greatly impacted by HIV/AIDS.41 Children who have lost their parents due to AIDS may themselves have disabling illnesses, but are also at a high risk of acquiring newly disabling conditions when they are housed in congregate settings with sub-standard care and limited stimulation.42 Moreover, instances of abuse against persons with disabilities in institutional settings - and particularly individuals with mental and intellectual disabilities - are increasingly coming to light. For example, in Purohit & Moore v The Gambia43 the African Commission on Human and Peoples’ Rights found numerous human rights violations perpetrated against persons with mental disabilities housed in a psychiatric hospital in the Gambia.
There are some models of advocacy that tackle disability stigma and attendant segregation with the specific aim of facilitating community inclusion. DPOs in Sierra Leone, for instance, are working to counter the extreme prejudice associated with epilepsy t hrough education and awareness raising campaigns as well as by ensuring access to inexpensive and often highly effective anti-seizure medications that are inaccessible to many persons living in poverty.44
African delegations to the CRPD negotiations strongly supported the inclusion of language addressing the protection of persons with disabilities in various situations of risk, whether natural disaster, armed conflict, or other emergency and humanitarian situations. The provision capturing this issue is article 11 of the CRPD.
In the African context, there are various manifestations of risk for persons with disabilities, and DPOs are beginning to highlight their experience in humanitarian crises. Situations of risk can disable people and exacerbate or create secondary impairments for persons with existing disabilities. These circumstances also impact persons with disabilities through the break-up of support networks of family and community; their displacement or abandonment; and the general destruction of health, rehabilitation, and transportation infrastructure. Similarly, situations of risk - and in particular, armed conflict - can have a devastating effect on the mental and psycho-social well-being of the effected population.45
Sexual violence is a prevalent problem for displaced women and girls with disabilities generally, but the experience of such abuse is exacerbated when they are subject to conflict or displacement in Africa.46 A Human Rights Watch report on Northern Uganda, for example, documented instances of physical and sexual violence against women and girl refugees with disabilities who were unable to flee rebel forces.47
Child soldiering is another predominant marker of conflict and human rights abridgement in Africa. Mezmur’s analysis reveals that African regional mechanisms and international law and programming equally fail to accommodate the experiences of girl soldiers.48 The same critique must be applied to child soldiers with disabilities either created or aggravated by their military experience. The 2003 Accra Peace Agreement on Liberia,49 to note one example, is silent on child soldiers with disabilities. The CRPD could usefully inform the development of peace agreements and post-conflict transitions as could the work of the Peace and Security Council of the African Union,50 and the African Committee of Experts on the Rights and Welfare of the Child51 to better address the specific needs of child soldiers with disabilities.
Finally, a situation of acute risk for Africans with disabilities is displacement, either as a consequence of armed conflict or natural disasters. The World Health Organisation estimates that as many as 3.3 million of the world’s forcibly displaced persons live with disabilities, one third of them are children.52 Across the African continent, refugees and internally displaced persons with disabilities face particular challenges, for example refugee camp settings, yet examples of successful disability accommodations abound.53 One humanitarian assistance organisation detailed their experience in West Africa improving accessibility to sanitation facilities for persons with disabilities with simple and low cost
solutions.54 Other practices include collaboration between the United Nations High Commissioner for Refugees and the World Food Programme which prioritised food distribution to refugees with disabilities and their families.55 Another successful approach established mobile units for food distribution for those who are unable to wait in line or access transport to reach food distribution centres.56
In all regions of the world, health care is often unavailable to persons with disabilities on an equal basis with others on account of inaccessible health care facilities; in more egregious circumstances, treatment is denied altogether on the basis of disability.57 While African states do not bear responsibility for ensuring good health, they are accountable for guaranteeing persons with disabilities the right to the ‘highest attainable standard of health’ on an equal basis with others, in accordance with the obligations in the CRPD as well as general human rights law and regional African treaties.58
There are many different implications of the right to health for persons with disabilities on the African continent, ranging from child mortality to river blindness to basic vaccines. One prominent example - because of its prevalence in sub-Saharan Africa - is the need to ensure that HIV/AIDS pandemic programming is accessible to persons with disabilities.59 Research conducted on HIV/AIDS and disability in several African countries discloses that persons with disabilities are often absent from HIV/AIDS programming including screening.60 This exclusion is attributable to patently false assumptions of sexual inactivity and equally wrong ideas about low risk for sexual abuse or drug usage among disabled populations.61 Yet it remains the case that public sexual and reproductive health programs continue to disregard disabled populations when combating HIV/AIDS, with particularly deleterious consequences for women and adolescent girls with disabilities.62
DPOs in many AIDS-affected African countries are actively engaged in HIV/AIDS advocacy and working to ensure disability-inclusive programming. In Zambia, a DPO coalition combined a general objective to learn more about the CRPD with a specific desire to make public health services, including HIV/AIDS education, disability-inclusive. The project increased the human rights capacity of disabled persons and enabled them to achieve equal access to health care.63 Similarly, national disability and HIV organisations in Tanzania and Mozambique worked in collaboration with Rehabilitation International to develop educational materials as a component of HIV/AIDS education and outreach.64 We note that some African states, for example Mozambique, South Africa, Uganda, Zambia and Zimbabwe, have demonstrated good practices in collaborating with DPOs,65 but underscore that combating HIV/AIDs remains a state obligation and on where greater efforts are urgently needed.
Persons with disabilities are routinely subjected to laws and practices that deprive them of their legal capacity and, consequently, of their freedom to make basic choices, including how, with whom, and where to live. This is as true in African states as it is for countries around the world, and is reflected in national legislation, much of which was established during colonisation but nonetheless continues to impede the full enjoyment of basic human rights amongst persons with disabilities. Article 12 of the CRPD is serving as a global impetus for reforming these laws.
Failure to respect the autonomy and dignity of persons with disabilities with respect to medical decision-making is a graphic manifestation of infringement on legal capacity, as evidenced by practices of forced treatment, especially in the case of persons with mental and intellectual disabilities. The African Commission on Human and Peoples’ Rights pointed to retrogressive Gambian legislation tellingly entitled the ‘Lunatics Detention Act’ which effectively stripped persons with disabilities of their decision-making capacity.66 In other instances, legislation in a specific autonomy realm restricts decision-making capacity on the basis of disability. Numerous examples exist across the continent of electoral codes that summarily remove the right to vote for persons with mental, intellectual, and on occasion physical disabilities.67
Some significant processes are underway to develop legislative and policy responses that ensure the equal recognition by the law of persons with disabilities. Among states parties, South Africa has proposed legislation for establishing a framework for supported decision-making for persons with disabilities.68 This example, however, is a notable exception; otherwise, the closest that African states have come to engaging this crucial issue has been consideration or promulgation of general equality clauses within statutes or constitutions. Amongst DPOs, the advocacy efforts of the Zambian Federation of Disabled Persons stands out in this regard for undertaking a careful review of the revised constitution, focusing in particular on the various provisions that pertained to legal capacity and decision-making making numerous suggestions to bring the text into compliance with the CRPD.69 Equally significant are the efforts of regional and domestic DPOs to repeal mental health laws that permit involuntary detention and treatment, as noted above.70
Much in the same vein, access to justice by persons with disabilities raises multidimensional barriers from physical access to courthouses, to ensuring that people with various disabilities are accommodated by materials in alternative formats, making court websites accessible for persons who use assistive technology, and installing listening systems in courtrooms. Equal access must include all roles in the judicial process, from parties and witnesses to judges, jurors, prosecutors and attorneys.
Courts housed in old structures across Africa present numerous barriers for persons with mobility impairments such as stairs, narrow doorways, and inaccessible rest-rooms. Equally problematic are new structures financed by international development aid that take no account of accessibility at the design phase and thus introduce barriers and create future redevelopment costs for beneficiary countries. Note, for example, the reconstructed Ministry of Foreign Affairs in Monrovia financed by the Chinese government that took no account whatsoever of physical access, notwithstanding the fact that Liberians who used wheelchairs and had various mobility impairments worked there.71
The first case to come before the South African Equality Court was brought by a wheelchair-using trial lawyer because she could not access the court house buildings. South Africa conceded that the failure to provide proper access was a form of unfair discrimination and committed to rendering court buildings accessible.72 In Zambia, a DPO coalition protested detention of a Deaf youth accused of murdering his mother who was not provided an interpreter or access to legal representation. After several months, he was given assistance and exonerated from what was deemed a false accusation.73 More generally, the Zambian Federation of Disabled Persons designed and implemented an access to justice project funded by Irish Aid to address systemic barriers that persons with disabilities faced in seeking justice in the Zambian court system.74
Africa has been at the forefront of embracing the CRPD, as evidenced by rapid State ratification and attendant surges in disability law and policy development and reform. African countries, like those on every continent, face significant challenges in making the treaty’s mandates real in culturally appropriate ways that comport with their respective and varied domestic contexts. In many instances African states parties have been inventive and resourceful in responding to implementation challenges. As is the case across the globe, some of the most creative disability rights initiatives arise at the behest of, and/or in collaboration with local DPOs.75
Africa has also demonstrated leadership in implementing disability rights through various institutional arrangements at the regional level. The African Commission on Human and Peoples’ Rights for example, contributed to the progressive development of human rights law in its first disability case Purohit, which underscored the duty of African states to take concrete steps towards full implementation of human rights obligations even in the face of resource constraints. Of considerable significance in that case was overt recognition that persons with mental disabilities have political rights when, in so many parts of the world, such rights are summarily stripped away without any consideration of state obligations to facilitate legal capacity through supportive decision making frameworks or other accommodations.
Other regional mechanisms that can be harnessed to forward progressive approaches to CRPD implementation in Africa include the African Committee of Experts on the Rights and Welfare of the Child,76 the African Union,77 the New Partnership for Africa’s Development,78 the
African Peer Review Mechanism,79 and the Network of African National Human Rights Institutions.80 That said, the chief obstacle for utilising such mechanisms to advance disability law and policy is the lack of awareness and understanding of disability rights and the particular barriers that so often impede access of persons with disabilities to basic needs in society. Until political will is harnessed around disability issues at the national and regional levels, disability issues will remain marginal and without prioritisation.
Of particular interest and concern is the move to draft an African Union protocol on the rights of persons with disabilities.81 While there is much to commend this effort, such work should be undertaken in the same spirit of drafting that animated the CRPD process and which ought to direct the treaty’s domestic implementation. Only a process in which African disability advocates across the continent are engaged through careful discernment of what issues merit capture in a treaty instrument and whether and how it would help to advance the rights specifically of Africans with disabilities should be undertaken. Significant steps have been taken in this direction since the initial drafting, which did not include persons with disabilities or DPOs. 82
The progressive developments recorded in this article constitute a viable and altogether hopeful set of interventions that can be built upon in order to further advance an emerging and uniquely African disability rights narrative. Ratification of the CRPD across the continent and the impetus that it has created for domestic law and policy change offers Africans with disabilities and their allies the promise of rights realisation. These developments present a challenge for civil society and for national human rights institutions to engage in effective monitoring required to hold African governments accountable for treaty compliance. Moreover, they represent a challenge at the regional level, particularly for the AU as a policy formulation body with little disability expertise and limited implementation capacity. This is of special concern if a regional protocol is to be developed, or the CPOA is to have effect, without the parallel political and resource commitments necessary to engender change through a regional treaty. For disability rights scholars and practitioners alike, the approaches developed across the region warrant further study and attention to inform disability rights work in the African context and beyond.
3. The negotiation history of the CRPD, as well as updates on state parties, can be found on a website maintained by the UN Department of Economic and Social Affairs (DESA); See UN Enable ‘Promoting the rights of persons with disabilities: Full participation and equality in social life and development’ (2006) http://www.un.org/esa/socdev/enable/rights/ (accessed 8 January 2013).
4. See MA Stein & JE Lord ‘Human rights and humanitarian assistance for refugees and internally displaced persons with disabilities’ in I Grobbelaar-du Plessis & TH Van Reenan (eds) Aspects of disability law in Africa (2011) 31.
7. Algeria, Cape Verde, Republic of the Congo, Ethiopia, Gabon, Ghana, Kenya, Liberia, Morocco, Mozambique, Niger, Nigeria, Sierra Leone, South Africa, Sudan, Tunisia, Uganda and Tanzania; UN Enable (n 3 above).
8. Algeria, Benin, Burkina Faso, Cape Verde, Djibouti, Egypt, Ethiopia, Gabon, Ghana, Guinea, Kenya, Lesotho, Liberia, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Niger, Nigeria, Rwanda, Senegal, Seychelles, Sierra Leone, South Africa, Sudan, Swaziland, Togo, Tunisia, Uganda, Tanzania and Zambia; UN Enable (n 3 above).
9. UNHR ‘Elected members of the Committee on the Rights of Persons with Disabilities’ http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Membership.aspx (accessed 8 January 2013).
11. Press Release by the Secretariat of the African Decade of Persons with Disabilities (SADPD), ‘African Decade of Persons with Disabilities Extended to 2019’ We Can Do 2 November 2008 http://wecando.wordpress.com/2008/11/02/news-african-decade-of-persons-with-disabilities-extended-to-2019/ (accessed 17 January 2013). An excellent overview of the African regional system and its response to disability rights issues may be found in J Biegeon ‘The promotion and protection of disability rights in the African human rights system’ in Grobbelaar-du Plessis & Van Reenan (n 4 above) 53.
14. See JE Lord & MA Stein ‘The domestic incorporation of human rights law and the United Nations Convention on the Rights of Persons with Disabilities’ (2008) 83 University of Washington Law Review 449.
17. See MA Stein & JE Lord ‘Forging effective international agreements: Lessons from the UN Convention on the Rights of Persons with Disabilities’ in J Heymann & A Cassola (eds) Making equal rights real: Taking effective action to overcome global challenges (2012) 27.
18. See DW Anderson ‘Human rights and persons with disabilities in developing nations of Africa’ Paper presented at the Fourth Annual Lilly Fellows Program National Research Conference, 13 November 2004 http://www4.samford.edu/lillyhumanrights/papers/Anderson_Human.pdf (accessed 7 January 2013).
21. For a comprehensive overview of the CRPD, see MA Stein & JE Lord, ‘Future prospects for the United Nations Convention on the Rights of Persons with Disabilities’ in OM Arnardóttir & G Quinn (eds) The UN Convention on the Rights of Person with Disabilities: European and Scandinavian perspectives (2009).
22. The history, powers, and transformative potential of the CRPD Committee is examined in MA Stein & JE Lord ‘Monitoring the committee on the rights of persons with disabilities: Innovations, lost opportunities, and future potential’ (2010) 31 Human Rights Quarterly 689.
23. See MA Stein & JE Lord ‘The United Nations Convention on the Rights of Persons with Disabilities: Process, substance, and prospects’ in F Gomez Isa & K de Feyter (eds) International human rights law in a global context (2009) 495
24. We stress - as we have throughout our work - that the CRPD must be understood and implemented holistically, across articles, and that highlighting particular rights does not infer their precedence.
27. Report of the Office of the High Commissioner for Human Rights ‘Expert seminar on freedom from torture and ill-treatment and persons with disabilities’ (11 December 2007) http://www2.ohchr.org/english/issues/disability/docs/torture/seminartorture reportfinal.doc (accessed 6 January 2013).
28. JE Lord ‘Shared understanding or consensus-masked disagreement? The anti-torture framework in the Convention on the Rights of Persons with Disabilities’ (2010) 33 Loyola of Los Angeles International & Comparative Law Review 78, n 285, reviewing customary practices, including the forced ingestion of harmful substances to ‘heal’ persons with psycho-social disabilities, a practice observed during field work in Ethiopia.
29. See generally R Whitaker Mad in America: Bad science, bad medicine, and the enduring mistreatment of the mentally ill (2001); World Health Organisation & Mental Health and Poverty Project Mental health and development: Targeting people with mental health conditions as a vulnerable group (2010) 9 (WHO/MH) http://whqlibdoc.who.int/publications/2010/9789241563949_eng.pdf (accessed 8 January 2013); Human Rights Watch ‘Ghana: People with Mental Disabilities Face Serious Abuse’ 2 October 2012 http://www.hrw.org/news/2012/10/02/ghana-people-mental-disabilities-face-serious-abuse (accessed 17 January 2013).
30. ‘Stigma is toughest foe in an epilepsy fight’ New York Times 29 August 2011 http://www.nytimes.com/2011/08/30/health/30epilepsy.html?pagewanted=all (accessed 6 January 2013). Bangura also reported that one of the association’s members survived drinking two liters of kerosene. Girls and young women are subjected to sexual assault as a purported ‘cure’, says Bangura.
32. See Albinism Foundation of East Africa, Petition (13 December 2008) http://www.albinismfoundationea.com/index.php?option=com_content&task=view&id=6& Itemid=2 (accessed 8 January 2013); ‘Rights groups accuse Kenya of patient abuse’ CNN 2 March 2011 http://articles.cnn.com/2011-03-02/world/kenya.health _1_human-rights-rights-groups-solitary-confinement?_s=PM:WORLD (accessed 17 January 2013).
34. For example, the Cape Town Declaration by the Pan African Network of People with Psychosocial Disabilities http://www.panusp.org/about-us/ (accessed 7 January 2013).
35. Efforts are underway in Ghana, Kenya, South Africa, Tanzania, and Uganda, to name a few African countries. See Movement for Global Mental Health http://www.globalmentalhealth.org/home (accessed 8 January 2013).
36. See South African Human Rights Commission ‘SAHRC statement to observe World Mental Health Day’ 9 October 2011 http://www.sahrc.org.za/home/index.php?ipkArticleID=80 (accessed 8 January 2013). Much of the SAHRC’s disability-related work has been conducted in conjunction with the Harvard Law School Project on Disability which both raises the prospects for academic support of CRPD implementation as well as the continuing challenge to the adequacy of state-based efforts.
37. Disability Rights International, formerly Mental Disability Rights International, has documented egregious disability rights violations against persons with disabilities in institutional settings, for example in orphanages, social care homes, and psychiatric hospitals. These reports are available on their website, Disability Rights International http://www.disabilityrightsintl.org/ (accessed 8 January 2013).
42. The exclusion of children with disabilities from social interaction has been shown to stifle both mental and physical well-being. See D Hutchinson & C Tennyson Transition to adulthood: A curriculum framework for students with severe physical disability (1986).
43. See Communication No 241/2001, Purohit & Moore v The Gambia ACHPR (2003) http://www1.umn.edu/humanrts/africa/comcases/241-2001.html (accessed 7 January 2013).
44. See New York Times (n 30 above); see also ‘ The isolation of epilepsy sufferers ’ Inter Press Service News Agency 22 December 2011 http://ipsnews.net/news.asp?idnews=106293 (accessed 8 January 2013).
47. Human Rights Watch ‘As if we weren’t human: Discrimination and violence against women with disabilities in Northern Uganda’ 26 August 2010 http:// www.hrw.org/en/reports/2010/08/26/if-we-weren-t-human (accessed 8 January 2013).
49. Comprehensive Peace Agreement between the Government of Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties, Accra, 18 August 2003 http://www.usip.org/files/file/resources/collections/peace_agreements/liberia_08182003.pdf (accessed 8 January 2013).
50. For the webpage of the African Union, Peace and Security Council, see The Organs of the AU, the Peace and security council http:// www.africa-union.org/root/au/organs/The_Peace_%20and_Security_Council_en.htm (accessed 8 January 2013).
52. See UNHCR, The UN Refugee Agency ‘People with disabilities: Largely invisible or forgotten’ http://www.unhcr.org/pages/4a0c310c6.html (accessed 8 January 2013).
54. JE Lord & MA Stein ‘Enabling refugee and IDP law and policy: Implications of the UN Convention on the Rights of Persons with Disabilities’ (2011) 28 Arizona Journal of International and Comparative Law 401; See WaterAid (Mal)i ‘All people, one goal, all access: Water and sanitation access for people with disabilities’ Briefing note (2007) http:// www.wateraid.org/documents/plugin_documents/all_people_one_goal_all_ac cess.pdf (accessed 8 January 2013); WaterAid (Ethiopia) ‘Equal access for all-2: Water and sanitation access for people with motor disabilities’ Briefing note 9 (December 2006) http:// www.wateraid.org/documents/plugin_documents/briefing_ note_disability.pdf (accessed 8 January 2013).
58. CRPD (n 1 above) art 25; See also African [Banjul] Charter on Human and Peoples' Rights, adopted 27 June 1981, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982), entered into force 21 October 1986, art 16(1); African Charter on the Rights and Welfare of the Child, OAU Doc CAB/LEG/24.9/49 (1990), entered into force 29 November 1999, arts 11(h), 14 & 20; Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, 11 July 2003, arts 2, 5 & 14.
59. See generally JE Lord & A deFranco ‘HIV/AIDS, disability and discrimination: A thematic guide on inclusive law, policy and programming’ (2012) http://www.one-billion-strong.org/Portals/_Appleseed/images/default/Documents/HIV%20Aids%20 Disability%20and%20Discrimination.pdf (accessed 19 April 2013); S Nduta et al A handbook on best practices regarding HIV and AIDS for disability http://www.vsointernational.org/Images/hiv-aids-and-disabilities-handbook_tcm76-25401. pdf (accessed 17 January 2013).
60. NE Groce ‘HIV/AIDS and disability: Capturing hidden voices’ Report of the World Bank and Yale University Global survey on HIV/AIDS and Disability (April 2004); NE Groce ‘HIV/AIDS and people with disability’ (2003) 361 The Lancet 1401.
62. K Fleming et al ‘Vulnerability for households with persons with disabilities and HIV/AIDS in Chongwe, Zambia’ American Institutes for Research (2010) 6-7 http://www.air.org/files/Vulnerability_for_Households_w_Disability_and_HIV_in_Chongw e_Zambia_Final.pdf (accessed 17 January 2013).
64. Rehabilitation International et al HIV AIDS Awareness and Disability Rights Training Manual (December 2007) http://www.aidslex.org/site_documents/DB-0045E.pdf (accessed 8 January 2013). Combating AIDS-related stigma and violence against women and girls with disabilities was the life work and legacy of disability rights advocate G Charowa, founder of the Disabled Women Support Organisation of Zimbabwe, ‘NEWS: Disability advocate, Gladys Charowa, dies’ We Can Do 21 April 2008 http://wecando.wordpress.com/2008/04/21/news-disability-advocate-gladys-charowa-dies/ (accessed 8 January 2013).
65. The World Bank ‘HIV/AIDS & Disability: Three Country Studies - South Africa, Uganda, and Zambia’ The International Bank for Reconstruction and Development World Bank: ACTafrica - AIDS Campaign Team for Africa (July 2010) 5-16 http://siteresources.worldbank.org/EXTAFRREGTOPHIVAIDS/Resources/Conference-Ed ition-HIV-AIDS-Disability.pdf.
67. Exclusions based on disability, usually mental and/or intellectual disability, are widespread across the continent and in all regions. See for example the Electoral Law of Burundi (2005, amended 2009) art 5; the Constitution of Seychelles (1993, amended 2000) art 114; the Liberia New Election Law (1986) sec 3.1 & 2.33; & the Namibia Election Act (1992, amended 2003) sec 13(2).
72. Esthé Muller v DoJCD & Department of Public Works (Equality Court, Germiston Magistrates’ Court 01/03); ‘Equality Court victory for people with disabilities’ South African Human Rights Commission 24 February 2004 http://www.info.gov.za/speeches/2004/04022415461001.htm (accessed 8 January 2013); ‘Government sets date for all courts to be accessible’ Inclusion Daily Express 15 September 2004 http://www.inclusiondaily.com/archives/04/09/15/091504sacourtaccess.htm (accessed 8 January 2013). The authors note that although the courthouses nearest to the plaintiff’s home were made accessible, the same has yet to be true for other courthouses named in the settlement as well as for courthouses more generally.
73. Email communications with Zambian advocates (on file with authors). For the website of the Zambian Federation of the Disabled, see ZAFOD ‘Zambia federation of the disable was registered in 1990 under Cap 551 of the laws of Zambia’ http://www.safod.org/about%20safod/Countries/zambia_web.htm (accessed 8 January 2013).
74. Zambia Federation of Disability Organisations ‘Advocacy and influence’ http://www.zafod.org/index.php?option=com_content&view=article&id=55&Itemid=61 (accessed 8 January 2013).
77. http://www.au.int/en/ (accessed 8 January 2013).
78. http://www.nepad.org/ (accessed 8 January 2013).
79. http://www.nepad.org/economicandcorporategovernance/african-peer-review-mecha nism/about (accessed 8 January 2013).
80. http://www.nepad.org/economicandcorporategovernance/african-peer-review-mecha nism/about (accessed 8 January 2013).
- Charles Ngwena
- LLB, LLM (Wales), LLD (Free State),
- Barrister-at-Law, Professor, Centre for Human Rights, University of Pretoria
- (2013) 1 ADRY 139-164
- Download article in PDF
I am grateful to Daniel Mekonnen for his insightful comments on an earlier draft of this article.
Using South Africa as the main case study, this article critically explores domestic commitment towards fulfilling the obligations imposed on the state by article 24 of the Convention on the Rights of Persons with Disabilities. Article 24 guarantees a right to inclusive education. The article uses the decision of the Western Cape High Court in the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa & Another (2011) as the main pivot for discussion. It is argued that despite having an enabling constitutional environment, South Africa has been ambivalent about fulfilling its obligations under the Convention. On the one hand, South Africa has made significant strides in establishing an enabling legal and policy environment for the attainment of inclusive education. Mainly as part of post-apartheid transformation, it has made significant strides in developing equality jurisprudence that comports not just with the notion of inclusive education, but inclusive citizenship generally. On the other hand, the policy background to the Western Cape Forum for Intellectual Disability case demonstrates poignantly contradictions in the implementation of inclusive education by the state. The facts reveal a contradiction in state policy that outwardly embraces inclusive education but is inwardly exclusionary.
The adoption of the Convention on the Rights of Persons with Disabilities (CPRD) has the potential to bring about a paradigm shift in the treatment of disabled people at a domestic level, including in the education field.1 An
increasing number of countries have signed and ratified the CRPD.2 This is a hopeful sign but not a sufficient barometer for measuring commitment to comply with state obligations to fulfil rights in the CRPD. It is trite that states may sign or ratify an international treaty not because of an altruistic desire to internalise an international law norm but for a variety of other reasons, including narrow political self-interest, that have little to do with benefiting citizenry.3 Article 26 of the Vienna Convention on the Law of Treaties requires states to perform their treaty obligations in good faith.4 Whether one can find, at the domestic level, laws, policies, and more crucially, programmes that have been implemented in a manner that resonates with the main objectives of the CRPD is a more dependable indicator of domestic commitment towards compliance with treaty obligations.5 Ultimately, treaty obligations must be ‘translated into reality’ so that rights-holders at the grassroots level can derive tangible benefits.6
Using South Africa as the main case study, this article critically explores domestic commitment towards fulfilling the obligations imposed on the state by article 24 of the CRPD which guarantees individuals a right to inclusive education. More specifically, the article uses the decision of the Western Cape High Court in Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa & Another7 as the main pivot for discussion. South Africa has signed and ratified the CRPD as well as the Optional Protocol to the CRPD.8 The thrust of the arguments in this article is that the facts that led to litigation in Western Cape Forum for Intellectual Disability show that, like many other jurisdictions, South Africa has been ambivalent about fulfilling its obligations under the CRPD. On the one hand, South Africa has made significant strides in establishing an enabling legal and policy environment for the attainment of inclusive education. Mainly as part of post-apartheid transformation, it has made significant strides in developing equality jurisprudence that comports not just with the notion of inclusive education but inclusive citizenship generally. On the other hand, the factual background to Western Cape Forum for Intellectual Disability demonstrates poignantly contradictions in the implementation of inclusive education by the state. The facts reveal a contradiction in state policy that outwardly embraces inclusive education but is inwardly exclusionary.
More generally, the article highlights the persistent dangers of an embedded double discourse of inclusive education at the domestic level. Inclusive education is an idea that has been globalised. The trend among national authorities has been to concede the imperative of reforming the education system to render it inclusive but without substantially overhauling its discriminatory content.9 Commitment towards an education system that accommodates the learning needs of diverse learners, including disabled learners is often juxtaposed with state policy and administrative practices that simultaneously promote the exclusion of disabled learners, especially, intellectually disabled learners.10 The education policy that was challenged in Western Cape Forum for Intellectual Disability supports this claim.
This article has five sections. The first section - the present section - is the introduction. The second section provides an overview of inclusive education, especially its normative values. The third section is a summary of the decision of the Cape High Court in Western Cape Forum for Intellectual Disability. The fourth section is an appraisal of Western Cape Forum for Intellectual Disability. The fifth section is the conclusion.
2 Normative and transformative equality values animating article 24 of the CRPD on the right to inclusive education
The normative impetus behind the CRPD is inclusive equality. It is the imperative of securing equality and human dignity for disabled people in all socio-economic sectors. Article 24 of the CRPD specifically responds to the legacy of exclusion and marginalisation of disabled learners in the education sector. It guarantees disabled learners a right to equality and non-discrimination in state provision of education. More significantly, article 24 breaks new ground by recognising ‘inclusive education’ as a discrete human right.11 The recognition of inclusive education as a human right is largely a culmination of global advocacy for an education system that is inclusive as to accommodate diverse learning needs and capacities. Article 24 constitutes not just a consolidation of the global consensus on Education for All12 but also the construction of a transformative paradigm for protecting and fulfilling the right to education.
At a more general level, article 24 is part of the larger transformative paradigm of the CRPD. As one of its fundamental premises, the CRPD implicitly embraces the notion of human rights as indivisible, interdependent and interrelated.13 More than any other existing United Nations human rights treaty in recent times,14 the CRPD dissolves the dichotomy between civil and political rights and socio-economic rights. It builds on the Covenant on Economic, Social and Cultural Rights15 in decisively moving away from a neoliberal philosophy that conceives human rights as negative freedoms only. Article 24 is as much an obligation of restraint that requires the state to desist from invidious discrimination based on disability as it is a positive obligation which requires the state to take certain steps to fulfil the right to education of disabled learners.16 The state is not only enjoined to ensure that disabled persons are not excluded from the ‘general education system’,17 it is also required to take positive steps to provide disabled learners with individualised materials and other support so as to facilitate effective education and maximise academic and social development in a way that is consistent with the goal of ‘full inclusion’.18
Philosophically, the notion of ‘full inclusion’ in the CRPD ultimately appeals to egalitarian distribution. It calls for transcending notions of equality that are overly built around politics of identity which locate the locus of injustice for disabled people in demeaning representations but overlooking structural inequality.19 In responding to both social exclusion and material exclusion, article 24 seeks to achieve the objects of what Nancy Fraser, in her critical theory of social justice, has called ‘status recognition’ for historically ‘misrecognised’ social groups that suffer from ‘status subordination’.20 For Fraser, the concept of misrecognition is more holistic. It is not just about having one’s self-image being distorted by others who do not see the other as an equal such that, in a Hegelian sense, there is no mutual recognition.21 It is much more. Fraser explains misrecognition in this way:
Misrecognition, accordingly, does not mean the depreciation and deformation of group identity, but social subordination - in the sense of being prevented from participating as a peer in social life. To redress this injustice still requires a politics of recognition, but in the ‘status model’ this is no longer reduced to a question of identity: rather, it means a politics aimed at overcoming subordination by establishing the misrecognised party as a full member of society, capable of participating on a par with the rest. 22
Fraser’s point is that to be misrecognised is not simply to be frowned upon or devalued by the attitudes, beliefs or misrepresentations of others. In a more holistic sense, misrecognition is when someone is denied the status of a full partner in socio-economic interactions as a result of institutionalised patterns that stem from social, economic and cultural values. Therefore, repairing the historical exclusion and marginalisation of a social group such as disabled people is not merely a case of responding to a free-standing cultural harm for the reason that such exclusion and marginalisation implicate a larger socio-economic framework.23 Rather, it also requires eradicating patterns of ‘status subordination’ of disabled people that arise from ‘parity-impeding’ structural inequality.24 Ultimately, the achievement of social justice requires redistribution of resources, so as to enable an erstwhile disabled social group. Thus, over and above seeking to achieve ‘cultural recognition’ of disabled people, a responsive theory of equality should also seek to achieve socio-economic recognition.25 In a juridical sense, Fraser can be understood as appealing to a notion of positive rights which is built around rights as capabilities and enablement. It is a notion that ultimately coalesces around the imperative of justiciable socio-economic rights.
As part of achieving economic recognition, article 24 transcends the equal treatment or formal equality model so as to embrace substantive equality. Responsiveness to material deprivation through redistributive justice serves to recognise the vicious circle between poverty and disability.26 Redistribution through substantive equality addresses systemic inequality which would otherwise be left untouched by mere prohibition of invidious discrimination. Redistribution through socio-economic rights is an affirmation of the link between equality and human dignity.27 Ultimately, article 24 seeks to repair, more holistically, the historical marginalisation and exclusion of disabled learners from not just the education system but also other socio-economic systems that have been constructed on the assumption of able-bodiedness.28 It does so by putting the primary economic cost of accommodation on society rather than on disabled learners and their families or carers.
The accent in the CRPD, including in article 24, on the duty of the state to accommodate human diversity by, inter alia, providing individualised support, is the Convention’s greatest transformative potential. The duty to accommodate difference underscores a paradigm shift from an historically dominant understanding of disability as a bio-statistical aberration that resides primarily in the individual.29 According to this approach, which has been described as the ‘medical model’ or the ‘individual impairment model’, physical or mental impairment is the reason why the affected individual cannot participate equally in society.30 Individualising disability as intrinsic pathology in this way serves to entrench the status quo. It gives normative and ontological validity to binary categories in which one part of humanity is normal but the other is abnormal. In this way, the state is absolved from adjusting existing socio-economic arrangements to accommodate disabled people. Disabled people, including disabled learners, are required to first fit into existing socio-economic arrangements before they can claim equality.
The normative construction of disability under the CRPD is different. It is a ringing rejection of conceiving disability as individual impairment and equality as formal equality. Though in its partial definitional construction of disability,31 the CRPD acknowledges the link between bodily impairment and disability, at the same time, it signals a departure from the reductionist lens of the ‘medical model’ or the ‘individual impairment model’ of disability that conflates functional impairment with intrinsic limitations.32 Instead, it sees disability through the lens of a ‘human rights model’ of disability whose ultimate focus is not on identifying intrinsic bodily impairment but on the interaction between impairment and the environment and overcoming systemic barriers in order to accommodate diverse (dis)abilities.33 The CRPD’s focus is on understanding disability as a social phenomenon of restricted or denied socio-economic participation that has an explanation beyond intrinsic bodily impairment. The larger explanation is that disability is the outcome of the manner in which the prevailing socio-economic environment intersects with the body. In this sense, the CRPD subscribes to the ‘social model’ of disability.34 It has ushered into mainstream human rights discourse a transformative epistemology of disability that is built around inclusive equality that is aimed at overcoming status subordination.
Article 24 gives concrete expression to the recognition of human diversity by enjoining the state to provide, at all levels, an ‘inclusive education’ system that is aimed at achieving the ‘full development of human potential and sense of dignity and self-worth’.35 Inclusive education must be directed at ‘strengthening of respect for human rights, fundamental freedoms and human diversity’.36 It seeks to facilitate disabled persons in the development ‘of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential’.37 Inclusive education should also be directed at enabling disabled people to participate equally and effectively in society.38 If it is to achieve social justice, it should have the potential to yield an education system in which there is ‘open access, participatory parity and socio-economic equality’ for all learners.39
The duty to accommodate disability that is articulated in article 24 makes it abundantly clear that the CRPD departs from a ‘one size fits all’ school structure and architectural environment, curriculum, and pedagogical theory and practice. To fulfil the right to inclusive education, states must provide disabled learners the support they need to attain ‘effective education’ but through the ‘general education system’.40 The provision of additional human, financial, and physical resources is crucial to discharging the duty to provide accommodation and ensuring parity in participation among diverse learners in settings, such as the African region, where hitherto disabled learners have largely been marginalised.41 The goal should be the provision of education on an equal basis with others.42 Under the Convention, inclusive education includes learning about ‘life and social development skills’.43 Facilitating learning through Braille, sign language, augmentative learning and other alternative modes of learning are part of designing and implementing a curriculum that incorporates a universal design for learning to address a wide range of learning needs.44 Inclusive education, under the Convention, requires the design and implementation of a curriculum which takes difference into account within a pedagogy which goes beyond imparting scholastic knowledge as to also embrace non-scholastic knowledge and skills, depending on the needs and capacities of the individual learner.
The purpose of this section and the next, as alluded to in the introduction of this article, is to appraise whether the South African education system is in compliance with its states obligations under article 24 of the CRPD. Using the decision of the Western Cape High Court in Western Cape Forum for Intellectual Disability, the focus of sections three and four is on examining the extent to which the learning needs of learners who have intellectual disabilities are accommodated. Section three outlines the facts and the decision while section 4 focuses on analysis.
Section 29(1) of the South African Constitution45 guarantees everyone a right ‘to a basic education, including adult basic education’. Purporting to discharge its constitutional duty under section 29(1) of the Constitution, the state, through the South African Department of Education, established ‘full-service or mainstream schools’ to cater for the needs of children who were not classified as having intellectual disabilities. It also established ‘special schools’ to cater for the learning needs of disabled children who were classified as having ‘moderate to mild intellectual disabilities’. These were children with an intelligent quotient (IQ) of 30-70. However, the state did not establish any schools for children with ‘severe and profound intellectual disabilities’. These were children with an IQ of 20-25 and below 20, respectively. Western Cape Forum for Intellectual Disability (the Forum), a non-governmental organisation which provided care for children with intellectual disabilities in the Western Cape, one of South Africa’s nine provinces, brought an application before the Western Cape High Court challenging the constitutionality of state education policy in respect of the non-provision of schools as well as unfavourable financial support for children who were classified as having ‘severe or profound intellectual disabilities’.
To determine which of the children with intellectual disabilities would be admitted to special schools, the Department of Education had developed and implemented a screening instrument called the ‘National Strategy on Screening, Identification, Assessment and Support’ (the NSIAS Strategy).46 Under the NSIAS Strategy, children who were assessed as eligible for admission comprised children who fell within ‘Levels 4 and 5’ learning needs. They were considered as in need of moderate to high levels of support. However, children who fell outside Levels 4 and 5 were excluded. These were children with severe or profound intellectual disabilities.47
The Department of Education’s view was that no amount of education was beneficial for children with severe or profound intellectual disabilities.48 Such children would have to principally depend on their parents for acquiring life skills but not the education system.49 The most that the Department could say about the provision of schools for children with severe and profound intellectual disabilities was that ‘they may be able to access support’ at special schools at some point in the future but without indicating the form that such support might take, the extent of the support, where the support would be rendered or when precisely it would be rendered.50
Through the Department of Education, the state directly funded the education of children admitted to mainstream schools and specials schools, with children in special schools receiving a higher amount per head. However, there was no direct funding made for the education of children with severe or profound disabilities. For these children, the state only made indirect funding of an amount less than the funding for children in mainstream schools and special schools. Also, this indirect funding, which the state described as a ‘subsidy’, was not made through the Department of Education, as was the case with the other children, but through the Department of Health. The subsidy went to organisations such as the Forum which had voluntarily established ‘Special Care Centres’. But even the Special Care Centres could not meet the demand for places. In the Western Cape, the Forum could only cater for 1 000 children, leaving 500 children with severe or profound intellectual disabilities without access to a ‘special care’ facility.51
Against this backdrop, the Forum argued that the state was in breach of its constitutional obligations towards children with severe or profound disabilities because it had not provided them with schools. Furthermore, it argued that state financial support for children with severe or profound intellectual disabilities was not only inadequate, but also compared unfavourably with support given to their counterparts. Over and above relying on section 29 of the Constitution, which, inter alia, guarantees the right to basic education, the Forum relied on the following fundamental rights that are guaranteed by the Constitution: the right to equality and non-discrimination on the ground of disability (section 9); the right to human dignity (section 10); and the right of children to be protected from neglect and degradation (section 28).
The state argued that it had taken reasonable measures to fulfil the constitutional rights to equality and basic education of disabled learners. It highlighted that its efforts had to be assessed in the light of the legacy of gross inequality in the apartheid system of education, the limited resources at its disposal, and competing socio-economic needs. It argued that it was impracticable for the state to meet vast education needs of disabled children all at once. Instead, it could only address the legacy of underdevelopment and inequitable access to education resources incrementally. To show its commitment towards fulfilling its constitutional obligation, the state explained that it was in the process of implementing White Paper 6.52 White Paper 6 was developed in 2001 as the national Department of Education’s flagship policy on inclusive education.
During apartheid, the education system had not only been discriminatory on the ground of race. The education system had also been discriminatory on the grounds of disability, socio-economic class and geographical location, with learners who were black, poor and rural-based faring the worst.53 Only 20 per cent of disabled learners had access to special schools.54 The policy articulated in White Paper 6 sought to transform this unenviable legacy by accommodating the full and diverse learning needs of disabled learners, including learners with severe disabilities so that such learners ‘could develop and extend their potential and participate as equal members of society’.55 To reconcile with scarcity of resources, White Paper 6 proposed a 20-year time-frame that was divided into short-term, medium-term and long-term goals as the mechanism for progressively implementing inclusive education. Education would be provided through the medium of ‘full-service’ and ‘special schools’.56 Full-service schools would be ‘mainstream’ schools catering for a wider range of learning needs, including the needs of learners with ‘mild to moderate’ disabilities who require ‘low intensive support’.57 Learners with severe and profound disabilities who require ‘intense levels of support’ would be catered for in special schools. 58
The court found that the state had not taken reasonable measures to meet the learning needs of severely and profoundly intellectually disabled children. More specifically, it found that the state policy in question treated children with severe or profound intellectual disabilities differently in the provision of schools and in the funding of education as to constitute unfair discrimination contrary to section 9(3) as well as a breach of the right to basic education contrary to section 29(1) of the Constitution. The court also found that the policy, necessarily, violated the children’s right to human dignity contrary to section 10 of the Constitution as the state education policy had the effect of impairing the dignity of such children as well as stigmatising them.59 Furthermore, the court held that, contrary to section 28 of the Constitution which guarantees children’s rights, the state had neglected the children through failure to provide an education that imparts knowledge and skills. 60
While the court concluded that all the four constitutional rights relied upon by the applicant, namely, the right to equality, the right to human dignity, the right of children to be protected from neglect and degradation, and the right to education had been violated, it reached its decision principally by applying the right to equality and the right to basic education. To repair the constitutional violations, the court ordered the state to provide basic education of an adequate quality to children with severe and profound intellectual disabilities through making adequate funds and facilities available, including training and hiring of educators and provision of transport to educational facilities. The order was framed as a structural interdict so as to be responsive to individual violations as well as systemic constitutional violations.61 The state was ordered to report to the court within a year, detailing the steps it had taken to implement the order. In this way, the order sought to ensure a level of supervision by the court in respect of state compliance with the remedy.
In determining the equality and non-discrimination issue under section 9 of the Constitution, the court invoked the test for determining discrimination that had been developed by the South African Constitutional Court in Harksen v Lane NO & Others.62 In accordance with this test, the court asked the question whether the differentiation between children with severe and profound intellectual disabilities and those without such disabilities had a rational connection to a government purpose and ultimately whether it constituted unfair discrimination.63 It concluded that there was no rational connection, and for this reason, state policy constituted unfair discrimination.64 The court’s reasoning was that imposing the burden of the scarcity of financial resources only on children with severe and profound intellectual disabilities could not be said to be rational.65 But even if there was a rational connection, the court concluded that the policy was neither reasonable nor justifiable and could not, therefore, be saved by section 36 - the general limitation clause of the Constitution.66
Drawing mainly from the leading decision of the South African Constitutional Court on the interpretation and application of socio-economic rights - Government of the Republic of South Africa & Others v Grootboom & Others67 - the court was of the view that it could not be said that state education policy which had failed to respond to the needs of learners who were the most vulnerable and had the greatest need, was reasonable, not least because the state had not provided evidence that meeting their needs was unaffordable. The cost of providing education to the small number of children affected was, according to the court: ‘small in relation to the overall budget’.68 The state had failed to justify why the budgetary shortfall that ought to be shared by all learners should fall only on children with severe or profound intellectual disabilities. 69
In reaching its conclusion, the court also took into cognisance that the right to education of disabled children was more than just a fundamental right under domestic law. It was also an international human right which is recognised under United Nations and regional treaties, including under the CRPD that South Africa has ratified.70 While conceding that the right to education of disabled children could not be fulfilled all at once, the court could not agree with state policy that excluded children from admission to schools or gave them a lesser priority when allocating financial resources on the ground that children with severe or profound intellectual disabilities were ineducable, not least because such a policy detracted from South Africa’s international obligations.71
The court also drew support for its conclusion from persuasive foreign jurisprudence.72 It accepted the applicant’s argument that when determining whether the state has complied with its obligation to provide education for intellectually disabled children, education should be conceived in more holistic terms.73 The court agreed with the human rights proposition that education for disabled learners should be conceived in terms which are broader than merely achieving scholastic objectives.74 Education for intellectually disabled learners should also be aimed at developing, to the fullest extent, human potential, human personality, and a sense of dignity and self-worth of individual learners. 75
On the one hand, Western Cape Forum for Intellectual Disability shows a jurisdiction which, mainly as a result of overarching post-apartheid transformation, has developed an admirable stock of equality jurisprudence and policies that are well placed to promote inclusive education and complement article 24 of the CRPD at a domestic level. On the other hand, the facts that gave rise to the case show a jurisdiction that, at an implementation level, has paradoxically succeeded in perpetuating the apartheidisation of inclusive education. Western Cape Forum for Intellectual Disability demonstrates the juxtaposition of equality jurisprudence that is enabling with disabling discourses of inclusive education.
The conclusion by the Western Cape High Court that the state had violated the fundamental rights of children with severe and profound disabilities was inevitable. The conduct of the state in denying these children admission to school as well as equitable funding for education was incompatible with the imperatives of the equality and socio-economic rights jurisprudence that South Africa has developed since 1994. The South African Constitution can be understood through a metaphor of a bridge.76 The Constitution serves as a conduit facilitating passage from a past where the state played a lasting role in spawning and sustaining grossly unequal citizenship to a future where the goal is the achievement of inclusive citizenship. Equality is the Constitution’s key transformative value and right in the attainment of inclusive citizenship.77
Equality is a pervasive value and right under the Constitution. It finds its most direct articulation in section 9. The normative content of the right to equality under section 9 and the extent to which it complements the human right to inclusive education under article 24 of the Convention can be gleaned implicitly from the South African Constitutional Court’s equality jurisprudence. The Constitutional Court has underlined in several cases that section 9 contemplates substantive equality and not merely
formal equality.78 The Court’s exacting approach to the determination of unfair discrimination is particularly instructive of the Constitutional Court’s approach to substantive equality. Sections 9(3) and (4) outlaw unfair discrimination. Section 9 takes cognisance of the historical exclusion of disabled people by listing ‘disability’ as one of the grounds protected against unfair discrimination. Though it has borrowed from other jurisdictions, the Constitutional Court has developed its own practical test for determining discrimination. In a series of cases but most notably in Harksen,79 the Court enunciated the test for unfair discrimination.
The Harksen v Lane test preceded the CRPD and was prompted by South Africa’s own historical circumstances. Notwithstanding, it is responsive to disability-related discrimination in a manner that resonates with the CRPD’s cardinal purpose of ensuring the full and equal enjoyment of all human rights by disabled persons and promoting respect for their inherent dignity.80 The Harksen v Lane test demonstrates a remarkable convergence between the vision of equality of the South African Constitution and that of the CRPD.
The Harksen v Lane test entails asking three main questions. These are: (1) whether there is a rational and legitimate reason for the policy, law or practice that differentiates between people or groups of people such as the differentiation that was in issue in the policy adopted by the state in Western Cape Forum for Intellectual Disability; (2) whether the differentiation amounts to unfair discrimination; and (3) if the discrimination amounts to unfair discrimination, whether it can be justified under section 36 of the Constitution - the limitation clause.
Though all the three stages of the Harksen v Lane test serve important juridical purposes, nonetheless, it is the second stage that is crucial. It is at this stage that a convergence between the South African approach to equality and that of the CPRD is most apparent. The approach that the Constitutional Court has developed to interrogate the second stage has the achievement substantive equality and human dignity as its ultimate goal. At this stage, the court focuses primarily on eliciting the ‘impact’ of the discrimination on the complainant and the social group(s) to which the complainant belongs. In determining impact, the factors taken into account include: (a) the position of the complainant in society and whether the complainant belongs to a group that has suffered from patterns of disadvantage in the past; (b) the nature of the provision or power and the purpose it seeks to achieve, including considering whether the provision or power is intended to achieve a worthy and important social goal; and (c) the extent to which the provision or power had affected the rights or interests of the complainant and whether it has caused an impairment of the fundamental human dignity of the complainant in a comparably serious manner.81 It must be stressed that these factors serve as judicial guidance but without constituting a closed list.82 Furthermore, no factor is determinative on its own. Rather, it is the cumulative effect of the factors that steers the court towards a particular determination. 83
The focus on impact requires the judicial inquiry to depart from the abstracted universalism of formal equality and instead to focus on the concretised universalism of substantive equality.84 In this way, the Harksen v Lane approach aspires towards overcoming ‘status subordination’ in the way espoused by Fraser.85 It is a situation-sensitive juridical approach that focuses on lives as lived and injuries as experienced by different groups in our society.86 The approach necessarily entails integrating the standpoint and experience of those at the receiving end of exclusion and marginalisation.87 Focusing on impact requires judicial sensitivity to social group difference which is tied to social hierarchies that exclude and disadvantage the complainant or members of the social group to which the complainant belongs. It signals a constitutional commitment to remedying systemic subordination and disadvantage in order to achieve a type of substantive equality which integrates human dignity. In focusing on eliciting the impact of the act or norm in question in a larger social context as the crucial factor in determining unfair discrimination, the South African Constitutional Court has followed the approach of the Supreme Court of Canada. 88
In President of the Republic of South Africa v Hugo,89 the Constitutional Court cast the objects of the equality clause not only in terms of eradicating unfair discrimination but also realising human dignity. It said:
The prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.90
The Constitutional Court has reiterated the centrality of human dignity in equality adjudication in several other cases.91 In the context of equality adjudication, human dignity has a distinct orientation and role. Though in other contexts, human dignity can serve multifarious purposes, including the Kantian injunction of treating a person as a person and not as a means to an end,92 in the South African equality context it has come to play a central and integrated role in the determination of unfair discrimination. Respect for human dignity serves equality by protecting social groups and individuals belonging to protected social groups from being treated as members of a lower caste.93 It puts an end to notions of hierarchical citizenship or premiere citizenship for some groups that were assiduously and zealously cultivated under colonialism and apartheid.94
Human dignity is non-hierarchical. In the South African context, as, indeed, under the CRPD, human dignity cannot depend on functional capacities. Achieving, as a prerequisite, a certain prescribed baseline of functional capacity cannot be what entitles a disabled person to have an equal claim on resources but the fact of being human alone.95 In this respect, human dignity brings to substantive equality an intrinsically egalitarian human essence which is absent in other transformative discourses such as the genus of ‘capabilities approach’ that has been developed by Martha Nussbaum, for example. 96
Nussbaum’s capabilities approach has a transformative trajectory which has many parallels with substantive equality. Like substantive equality, it is an alternative philosophical approach and standard for thinking about inequality and eradicating disadvantage and marginalisation so as to create conditions that are conducive to parity in socio-economic participation and, ultimately, freedom and full realisation of human rights. The capabilities approach and substantive equality both give rise to normative duties and corresponding rights. Both formulate claims by implicating the state as having a primary responsibility to eradicate systemic inequalities and level the playing field through constructing new notions of entitlement among disadvantaged groups and individuals and socio-economic redistribution. In these respects, Nussbaum’s capabilities approach and substantive equality can be said to be equally committed to human freedom and emancipation as to both find confluence in a social model of disability.97 However, the one important difference the two emancipatory philosophies have is that Nussbaum’s ‘capabilities approach’, unlike its substantive equality counterpart, admits hierarchical human essences that are based on ‘essential’ functional capabilities.98
The main misgiving regarding Nussbaum’s notion essential capabilities is that is not immediately open to holistic inclusiveness and participatory democracy.99 It raises profound questions, including questions about: who does the listing; what goes into the list of essential capabilities and what is left out; and whether the inclusionary criteria do not marginalise groups which have been historically culturally misrecognised such as persons with impairments that impact of cognitive ability and practical reasoning.100 Ultimately, the discomfiture with Nussbaum central capabilities is about whether they do not inadvertently resurrect the notion of ‘normal’ bodily capabilities and thus discriminate against disabled people. 101
Michael Stein has argued that Nussbaum’s capabilities approach is under-inclusive in that it is ultimately tethered to notions of ‘normal’ bodily capacities such that it excludes, for example, those who have mental disabilities that prevent them from achieving ‘normal’ mental ‘functionings’.102 Nussbaum’s conceptual framework of beginning with a prescribed list of ‘central capabilities’ sits uneasily with the heterogeneous public sphere of substantive equality in which capabilities have no organic centre. Though Nussbaum’s approach is useful in providing a philosophical basis of constitutional principles that ought to guide the state in discharging its responsibilities towards vulnerable groups and individuals, in the end, it is an incomplete guide, precisely because it is under-inclusive. Indeed, Nussbaum’s approach is vulnerable to criticism that it is reductionist and insufficiently sensitive to human difference and freedom.103
The duty to accommodate a social group or individual that is excluded or marginalised by prevailing socio-economic arrangements should be understood as part of how South African equality jurisprudence constructs inclusive citizenship. Under the CRPD, the duty to take all appropriate steps to ensure that reasonable accommodation is provided is a general equality and non-discrimination principle.104 Furthermore, it is also a principle that applies specifically to each of the socio-economic spheres that are addressed by the CPRD, including education.105 Though not expressly articulated in the Harksen v Lane test, reasonable accommodation is, nonetheless, a principle which is implied.106 The duty to provide reasonable accommodation is integral to the determination of whether there has been unfair discrimination and whether such discrimination can be justified. It is a principle for giving effect to substantive equality by recognising that in order to treat people equally, it may be necessary to treat them differently by accommodating difference. As a non-discrimination principle, the duty to accommodate under the Constitution obtains for all protected grounds and not just disability.
In MEC for Education: KwaZulu-Natal & Others v Pillay107 the Constitutional Court posited the duty to provide reasonable accommodation as part of the achievement of substantive equality under the Constitution. It said that interpreting equality requires equal concern and equal respect which includes treating people differently, if need be, in order to achieve equality rather than identical treatment.108 Chief Justice Langa, who delivered the leading judgment in Pillay, said that at the core of the principle of reasonable accommodation is ‘the notion that sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally’.109 According to the Court, reasonable accommodation ensures that ‘we do not relegate people to the margins of society because they do not or cannot conform to certain social norms’.110
A society which values dignity, equality, and freedom, as does the society envisaged by the South African Constitution, must, therefore, require people to act positively to accommodate diversity.111 Against this backdrop it is easy to see that the state was apt to fail in Western Cape Forum for Intellectual Disability. It is easy to appreciate why the education policy that was in issue was bound to offend the constitutional guarantee on both equality and human dignity. The policy to exclude children from admission to schools as well as to allocate them the least financial resources on the ground that they did not have the same capacity, or even the need, to learn as their counterparts, amounted to treating them as second-class citizens in a political order in which, like in apartheid times, there is legitimised hierarchical social ranking that serves the interests of a dominant group. It had the effect of perpetuating disadvantage and the scarring of a sense of dignity and self-worth that is associated with membership of a particular social group.
Use of the NSIAS Strategy to determine who was included in, or excluded from, school rather than to identify the learning needs, meant that state policy was insisting on identical treatment and, thus, detracting from substantive equality. Children with severe or profound intellectual disabilities were set to fail the criteria laid down by the NSIAS Strategy. In President of the Republic of South Africa v Hugo the Constitutional Court highlighted the importance of transcending a sameness approach when it said:
We need, therefore, to develop a concept of unfair discrimination which recognises that although a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances before that goal is achieved. Each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not be necessarily unfair in a different context.112
In Western Cape Forum for Intellectual Disability, state policy did not meet the requirements of substantive equality because it insisted on identical treatment rather than a learner-centred approach. The determination of substantive equality is not an abstract consideration but rather a concrete consideration of the lived experience of the individual and the protected group(s) to which the individual belongs.113 A blind commitment to sameness of persons, as would be required by formal equality, serves to hide rather than reveal structures of privilege and oppression and their relationship with specific social groups. Social groups do not come to the substantive equality table amorphous, behind a veil of ignorance and stripped of the particularities of their social identities and histories of oppression and marginalisation. Instead they come with their historical disadvantages and vulnerabilities.
The NSIAS Strategy served to universalise the learning capacities of certain groups by treating as an aberration the learning capacities of other groups. In order to be admitted to school or have equal claim on educational resources, children with severe and profound intellectual disabilities were in practice being asked to first become like their counterparts. This is something that was impossible for them to achieve. Put differently, state education policy was trapped, in part, in formal equality. The policy did not have the capacity to treat children with severe and profound intellectual disabilities with equal concern and equal respect. Rather than remedy structural inequality, state education policy in Western Cape Forum for Intellectual Disability had the effect of freezing the status quo of the historical exclusion of disabled people from the education system. It had the effect of accentuating rather than ameliorating marginalisation and disadvantage.
Like the CRPD, the South African Constitution recognises socio-economic rights as justiciable rights. Section 29 of the Constitution, which guarantees the right to basic education, requires the state to, inter alia, expend resources within its available resources in fulfilment of the right it guarantees.114 It is part of a regime of other socio-economic rights that are designed to remedy material disadvantage which would otherwise undermine the realisation of substantive equality and human dignity.
In Khosa & Others v Minister of Social Development & Others,115 the Constitutional Court explicitly drew a link between the socio-economic rights, equality and human dignity. The Court highlighted that when vindicating the rights of protected social groups under the Constitution, the determination of entitlement to a socio-economic right and the entitlements to equality and human dignity reinforce each other.116 The exclusion of a vulnerable protected group from access to a socio-economic right on the basis of a constitutionally protected associational characteristic such as disability has the capacity to found violations of socio-economic rights as well as equality and human dignity. Excluding a vulnerable group, such as children with severe and profound intellectual disabilities, from access to a socio-economic right is not only materially impoverishing but it also negates equal participation in education and has a ‘strong stigmatising effect’. 117
In post-apartheid South Africa, the rationale for socio-economic rights is set against a legacy of gross material deprivation of certain social groups. It will be recalled that one of the important findings in White Paper 6 is that the provision of education to disabled learners was highly discriminatory leaving a sizeable proportion of learners without any access to schools.118 If the state were to omit meeting the needs of those that do not have the means to achieve a certain minimum level of survival or human development, the omission would serve to freeze the status quo and perpetuate structural inequality. It would render the promises of a Constitution merely vacuous, especially for historically marginalised and disadvantaged groups such as disabled people. Disabled people are over-represented in the indices of socio-economic exclusion, including exclusion from education, employment, and healthcare.119 Particularly in a country with an abiding legacy of racial and gender oppression, disability accentuates old inequalities and the vulnerability to poverty of historically marginalised groups. 120
In the leading case on the interpretation of socio-economic rights - Grootboom121 - the Constitutional Court emphasised that while the courts are not there to make budgetary decisions and allocate resources, as these are prerogatives of the executive, nonetheless, courts have a duty to inquire into the ‘reasonableness’ of policies and programmes that are aimed at discharging state obligations to fulfil socio-economic rights. Regardless of scarcity of resources, policies and programmes that are intended to fulfil socio-economic rights must be reasonable not only in their conception but also in their implementation. In Grootboom, the Court emphasised that even a well intentioned programme will not pass constitutional muster if it lacks reasonableness.
According to the reasoning of the Constitutional Court in Grootboom, for a policy or programme to pass constitutional muster, it must, inter alia, cater for those in desperate need but within the ambit of available resources.122 It must not leave out a significant section of the community that is in need.123 The state is not at liberty to ignore the needs of those who are in a crisis and in desperate need merely in order to make room for longer-term strategies. In Western Cape Forum for Intellectual Disability, it was not unreasonable to devise a twenty-year plan to meet the education needs of children with disabilities. This is because the education needs, especially need for schools, could not be met all at once. However, it was unreasonable to exclude children with severe and profound intellectual disabilities from school provision. It was also unreasonable to commit the least state resources to the education of such children. These were children, who ironically, had the greatest education needs. For these children, the best the state could muster was a vague promise that their education needs might be met at some point in the future.
White Paper 6 is trapped in a contradictory philosophy of inclusive education. On the one hand, it reflects commitment towards a social rather than an individual impairment model of disability.124 It does not assume that barriers to learning primarily reside in the learner. The accent is not on ‘mainstreaming’ or ‘integrating’ disabled learners into a pre-existing education system.125 Rather, the core of the policy is on accommodating disabilities in all the facets of the education system, including the curriculum and the built environment. The emphasis is on identifying and removing barriers to learning by designing the education system and environment with a view to fitting the needs of the learner, including training educators and providing assistive devices. Inclusion of disabled learners is conceived in terms of recognising and respecting diverse learning needs, recognising that all learners have learning needs, and providing support to enable maximum learning and participation in environments that do not segregate disabled learners from their counterparts. The distinction between ‘full-service’ and ‘special schools’ seems to be prompted primarily by an understanding that some learners may require more intensive support than others and that organisational arrangements may require separate facilities in order to facilitate the development of maximal learning.126 The policy’s intention is to maximise the realisation of the potential of disabled children rather than to segregate.
At the same time, White Paper 6 shows a remarkable failure to discard old master dichotomies. While it professes to accept and recognise difference, it still reads the disabled body against an implicit normative ideal.127 There is no evidence that White Paper 6 has engaged at a deep level with the ontological integrity of intellectually disabled children so as to eschew frameworks that stereotype and marginalise them in the education sector. There is no evidence that the power of naming and normatively scripting difference has been interrogated and democratised with a view to constructing an education system that gives central importance to diversity and participatory democracy as to include disabled people and disabled learners socially, intellectually and culturally in the naming and scripting.128 On closer analysis, implementation of White Paper 6 confirms a failure to overcome exclusionary practices and oppressive relations of old.
Use of the NSIAS Strategy to regulate admission to special schools and exclude children with severe or profound intellectual disabilities is a clear indication of state thinking that is still trapped in an apartheidising discourse, and so is its use of funding policy to deny adequate assistance to such children. It shows the resilience of notions of ‘special education’ that coalesce around intellectual disability as defectiveness.129 The NSIAS Strategy was organised around IQ tests as the ‘objective’ classificatory criteria. IQ tests come with a history and archaeology of being used as instruments for stigmatisation and social exclusion.130 Historically, IQ tests have been used by governments that succumb to eugenic thinking.131 Though purporting to be an objective scientific calculus for measuring and classifying, ultimately, they cannot disguise the locus of the normative power of who is doing the classifying, under which norms, and for what purposes.132 In particular, when IQ tests are used as labelling instruments to facilitate excluding learners from the education system rather than identifying need, they serve no less a nefarious purpose as they have served eugenicists.
Worldwide, state education authorities have tended to reduce inclusive education to a banality. They have shielded behind a ‘benign commonality’ of the vocabulary of inclusive education to give a veneer of inclusiveness.133 However, on closer analysis, many national education systems continue to relate to inclusive education as ‘special education’ rather than education within the ‘general system of education’ as required by the CRPD. They continue to create spatial domains of learning and learners that distinguish between the mainstream and the periphery. Education systems professing to be inclusive have remained protective of the status quo of an education system that excludes rather than includes learners who are different from the mainstream. The CRPD does not require assimilation of disabled learners into the mainstream as that would merely serve to create ‘islands in the mainstream’.134 Rather, it requires treating disabled learners as part of the fabric of the mainstream through a school structure, pedagogy and curriculum that is responsive to the learning needs of all learners.135
The achievement of inclusive equality in access to education requires unconditional recognition of previously excluded learners and not equivocal or token notions of inclusion that belie so many triumphant proclamations of inclusive education by national authorities, including South African education authorities.136 Though the explanation for the continued apartheidisation of the education system even under the rubric of inclusive education can be explicated on failure to follow through policy or to commit resources, the more intractable reason is ideological. It is a result of lack of commonly shared normative and ontological epistemologies of the status of disabled learners. Some types of inclusive education draw impetus from educational philosophies that countenance status subordination. They continue to categorise learners through a binary system that affirms one set of learners as normal but invalidates another set as abnormal. Clearly, the inclusive values that underpin the CRPD are incompatible with the recognition of hierarchical difference. Article 24 refutes rather than affirms the place of binary hierarchies and master dichotomies in inclusive education. The inclusive education policy that was in issue in Western Cape Forum for Intellectual Disability failed both the domestic constitutional equality promise as well as that of the CRPD by inscribing hierarchical difference and entitlement among learners.
2. As of July 2013, the CRPD had been signed by 156 countries and ratified by 133 countries. Available at: http://www.un.org/disabilities/convention/convention full.shtml (accessed 30 August 2013).
6. United Nations High Commissioner for Human Rights In larger freedom: towards development, security and human rights for all, Report of the Secretary-General, Annex, Plan of Action Submitted by the United Nations High Commissioner for Human Rights, UN Doc A/59/2005/Add.3 (2005) para 22; I Boerefijn ‘International human rights in national law’ in C Krause & M Scheinin (eds) International protection of human rights: a textbook (2012) 631.
8. South Africa signed the Convention and the Optional Protocol to the Convention on 30 March 2007 and ratified the same on 30 November 2007: Convention and Optional Protocol Signatures and Ratifications, available at http//: www.un.org/disabilities/countries.asp?id=166 (accessed 9 October 2012).
9. S Miles & N Singal ‘The education for all and inclusive education debate: conflict, contradiction or opportunity?’(2010) 14 International Journal of Inclusive Education 1 9; R Slee & J Allan ‘Excluding the included: A reconsideration of inclusive education’ (2001) 11 International Studies in Sociology of Education 173 174; R Slee ‘Driven to the margins: Disabled students, inclusive education and the politics of possibility’ (2001) 31 Cambridge Journal of Education 385 388; LJ Graham ‘Caught in the net: A Foucaultian interrogation of the incidental effects of limited notions of inclusion’ (2006) 10 International Journal of Inclusive Education 3 11-12.
12. Global consensus and guidelines on the imperative of an education system that is inclusive of historically marginalised and excluded social groups, including disabled people, and is captured by the slogan Education for All, are contained in many documents that preceded the CRPD, including the following documents: United Nations Educational, Scientific and Cultural Organization World Declaration on Education for All and Framework for Action to Meet Basic Learning Needs (1990); World Conference on Special Needs Education: Access and Quality The Salamanca Statement and Framework for Action on Special Needs Education Salamanca, Spain, 7-10 June 1994; United Nations General Assembly, Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, GA Resolution 48/96 (1996), Rule 6; World Education Forum The Dakar Framework for Action, Education for All: Meeting Our Collective Commitments Dakar, Senegal, 26-28 April 2000; Committee on the Rights of the Child General Comment No 1: The Aims of Education CRC/GC/2001/1 (2001); United Nations Educational, Scientific and Cultural Organization Guidelines for Inclusion: Ensuring Access to Education for All (2005); Committee on the Rights of the Child General Comment No 9: The Rights of Children with Disabilities, CRC/C/GC/9 2007 (2006) paras 62-69.
13. Preamble to the CRPD, para (c); Art 13 of the Proclamation of Tehran 1968, Final Act of the International Conference on Human Rights, Tehran, 22 April to 13 May 1968, UN Doc A/CONF 32/41; Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, 25 June 1993, UN doc A/CONF 157/24 para 5, Part I.
14. For a discussion on partial fusion of civil and political rights and socio-economic rights, see: C Scott ‘The interdependence and permeability of human rights norms: Towards a partial fusion of the international covenants on human rights’ (1989) 27 Osgoode Hall Law Journal 769.
21. The basic premise in the Hegelian model of identity is that identity is constructed dialogically through interaction with others. Where each subject sees the other as an equal but also separate from the other, there is mutual recognition. However, where one is not seen as an equal by the other, such as where one is seen as inferior there is ‘misrecognition’. With misrecognition, the effects are that the relationship of the parties to each other is distorted and the identity of the party labelled inferior is injured: Fraser (n 19 above) 109-110; GWF Hegel Phenomenology of Spirit (1977) 104-109.
26. Preamble to CRPD, para (t); E Stone ‘A complicated struggle: Disability, survival and social change in the majority world’ in M Priestley (ed) Disability and the life course: Global perspectives (2001) 50 52.
31. Art 1 of the CRPD provides an inclusive rather than exhaustive definition of disability. It says: ‘Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.
34. On the ‘social model’ and on critique of the ‘medical model’ or the ‘individual impairment model’, see generally: V Finkelstein Attitudes and disabled people: Issues for discussion (1980); M Oliver The politics of disablement (1990); Oliver (n 30 above); S Linton Claiming disability: Knowledge and identity (1998).
41. T Chataika et al ‘Access to education in Africa: Responding to the United Nations Convention on the Rights of Persons with Disabilities’ (2012) 27 Disability and Society 385 393; African Child Policy Forum The lives of children with disabilities in Africa: A glimpse into a hidden world (2011).
44. CRPD, art 24(3)(a); EM Dalton et al ‘The implementation of inclusive education in South Africa: Reflections arising from a workshop for teachers and therapists to introduce Universal Design for Learning’ (2012) 1 African Journal of Disability, available at: http://doi.org/10.4102/ajod.v1i1.13 (accessed 25 March 2013).
61. As above, paras 50-52; C Mbazira ‘From ambivalence to certainty: Norms and principles for the structural Interdict in socio-economic rights litigation in South Africa’ (2008) 24 South African Journal on Human Rights 1.
74. Implicitly acknowledging the holistic nature of the learning needs of children with intellectual disabilities, the court referred to, paras 20-23: Art 23 of the Convention on the Rights of the Child; Arts 11(1), 11(2)(a) and 13 of the African Charter on the Rights and Welfare of the Child; Art 15 of the Revised European Social Charter; the Preamble to, and art 24 of CRPD.
77. C Albertyn & B Goldblatt ‘Facing the challenge of transformation: Difficulties in the development of an indigenous jurisprudence of equality’ (1998) 14 South African Journal on Human Rights 248 249-250; D Moseneke ‘The fourth Bram Fischer memorial lecture: Transformative adjudication’ (2002) 18 South African Journal on Human Rights 309 315; M Pieterse ‘What do we mean when we talk about transformative constitutionalism?’ (2005) 20 South African Public Law 155 162.
78. Eg President of the Republic of South Africa & Another v Hugo 1997 (6) BCLR 708 (CC) para 41; National Coalitionfor Gay and Lesbian Equality & Another v Minister of Justice & Others 1998 (12) BCLR 1517 (CC) at 1565H-1566A; City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC) para 46; National Coalition for Gay and Lesbian Equality& Others v Minister of Home Affairs & Others 2000 (1) BCLR 39 (CC) para 62; and Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) para 26.
79. Harksen (n 62 above). The other cases in which the Constitutional Court has developed its test for determining unfair discrimination include: Brink v Kitshoff NO 1996 (6) BCLR 752 (CC); Prinsloo v Van der Linde & Another 1997 (6) BCLR 759 (CC); President of the Republic of South Africa and Another v Hugo (n 78 above); Larbi-Odam & Others v MEC for Education (North-West Province) & Another 1997 (12) BCLR 1655 (CC); Pretoria City Council v Walker (n 78 above).
88. A leading Canadian decision in this regard is Andrews v Law Society of British Columbia  1 SCR 143; C Albertyn ‘Substantive equality and transformation in South Africa’ (2007) 23 South African Journal on Human Rights 253 259; C Sheppard Inclusive equality: The relational dimensions of systematic discrimination in Canada (2010) 38.
91. See for example: Prinsloo (n 79 above) paras 31-33; Harksen (note 62 above) para 50; Pretoria City Council (n 78 above) para 81; National Coalition for Gay & Lesbian Equality (n 78 above) paras 120-129; Minister of Finance (n 78 above) para 116.
96. MC Nussbaum Women and human development: The capabilities approach (2001). Nussbaum’s capabilities approach can be contrasted with that of Amartya Sen that is not organised around hierarchical human essences: A Sen Development as Freedom (1999) 74-110.
99. The list that Nussbaum has advanced can be summarised as comprising 10 central human capabilities, namely: (1) life; (2) bodily health; (3) bodily integrity; (4) senses, imagination and thought; (5) emotions; (6) practical reason; (7) affiliation; (8) concern for other species; (9) play; and (10) control over one’s environment. It is fair to point out that Nussbaum does not regard the list as exhaustive or incontestable. In Nussbaum’s own words, the list is not a ‘complete theory of justice’. Rather, it is intended as a basis for determining a decent social minimum which is open to debate: Nussbaum (n 96 above) 74-80.
103. K van Marle ‘“The capabilities approach”, “The imaginary domain” and “Asymmetrical reciprocity”’: Feminist perspectives on equality and justice’ (2003) 11 Feminist Legal Studies 255 272-273; S Liebenberg ‘The value of human dignity in interpreting socio-economic rights’ (2005) 21 South African Journal on Human Rights 1 8.
119. T Emmett ‘Disability, poverty, gender and race’ in B Watermeyer et al (eds) Disability and social change: A South African agenda (2006) 207 221; J Andrews et al ‘Issues in disability assessment’ in Watermeyer et al (eds) as above 245 247.
124. White Paper 6 (n 52 above) 24; JE Bickenbach et al ‘Models of disablement, universalism and the international classification of impairments, disabilities and handicaps’ (1999) 48 Social Science & Medicine 1173.
134. S Cook & R Slee ‘Struggling with the fabric of disablement: Picking up the threads of the law and education’ in M Jones & LA Basser Marks (eds) Disability, divers-ability and legal change (international studies in human rights) (1999) 327 328.
- Esau Mandipa
- LLB (Hons) University of Zimbabwe, LLM (Human Rights and Democratisation in Africa) University of Pretoria, South Africa
- Disability Rights Lecturer, Faculty of Law, Midlands State University, Zimbabwe. A registered legal practitioner with the High Court of Zimbabwe
- (2013) 1 ADRY 73-96
- Download article in PDF
This work builds on the author’s LLM thesis, ‘A critical appraisal of the right to education of children with disabilities in Malawi’, submitted in partial fulfilment of the requirements of the LLM (Human Rights and Democratisation) Degree, (University of Pretoria) and also on the author’s current doctoral research.
Zimbabwe still has a long way to go with regard to full and effective realisation of the rights of persons with disabilities (PWDs) who have endured marginalisation for a long time. This article examines Zimbabwe’s legal and institutional frameworks for the realisation of the rights of PWDs. It is an appraisal of Zimbabwe’s laws and institutions for protecting disability rights in the light of the provisions of the United Nations Convention on the Rights of Persons with Disabilities (the CRPD). With the exception of the Constitution, laws that address disability in Zimbabwe predate the CRPD and are framed along the outdated medical model. State institutions tasked with the promotion and protection of PWDs’ rights take disability issues as charity issues. The institutions have also not fared well in the past years with regard to the obligation to address marginalisation of PWDs. The time is opportune for Zimbabwe to embrace a human rights-based approach to disability. Equally, it is also an opportune time for Zimbabwe to assume the obligations towards PWDs under the CRPD by becoming a party thereto.
Developments at an international level which culminated in the adoption of the United Nations Convention on the Rights of Persons with Disabilities (the CRPD)1 have led to the confirmation of persons with
disabilities (PWDs) as rights-bearers and valued members of society.2 Indeed, the CRPD has been hailed as a great landmark in the struggle to reframe the needs and concerns of PWDs in terms of human rights.3 It embodies a paradigm shift away from a social welfare response to disability to a human rights-based approach. However, it is regrettable to note that Zimbabwe is not yet a party to the CRPD.
PWDs have been portrayed as a historically disadvantaged group4 and continue to endure massive human rights violations in many countries. In the Zimbabwean context, PWDs are treated negatively and dehumanised. To start with, the birth of a child with a disability is normally associated with witchcraft, promiscuity by the mother during pregnancy, or punishment by ancestral spirits.5 Children born with disabilities are sometimes strangled to death after birth.6 Furthermore, there are also widespread reports of children with disabilities being hidden away by their parents when visitors arrive.7
It is a common misconception within the Zimbabwean society that PWDs are passive and economically unproductive, and therefore are a burden on the country.8 Given the fact that Zimbabwe is a country experiencing severe political and economic crisis and also faces unprecedented developmental challenges, PWDs tend to suffer more human rights violations compared to their non-disabled counterparts.9 Not surprisingly, many PWDs beg for alms in towns and cities. No wonder, PWDs in Zimbabwe have been described as ‘the forgotten tribe’.10
Women and children with disabilities in Zimbabwe suffer more human rights violations as they have other vulnerabilities.11 Women with disabilities suffer double discrimination, firstly as women, and secondly as
persons with disabilities.12 Cultural beliefs and practices weigh too heavily against the realisation of the rights of women with disabilities. Poverty, misery, illiteracy, joblessness and social exclusion are some of the common plights that women with disabilities face in Zimbabwe. Similarly, children with disabilities are normally not sent to school, compared to their non-disabled counterparts.13 Without the requisite knowledge and skills, it is very difficult if not impossible for the children to secure any form of employment when they grow up. In the end, a vicious cycle of poverty and disability is created. Yet both the Zimbabwean legal and institutional frameworks for the realisation of the rights of PWDs appear not to adequately address their plight.
The Disabled Persons Act of Zimbabwe (the DPA),14 which is the primary law dealing exclusively with disability matters, falls short of adequately addressing the human rights of PWDs. The major drawback of this Act is that it follows an outdated medical model of disability which locates disability within the person and views PWDs not as rights holders but as objects for clinical intervention.15 Furthermore, the government has not developed necessary administrative infrastructures for the effective implementation of the DPA.16
Other laws that address the issue of disability include the Constitution,17 the Children’s Act,18 the Mental Health Act,19 the Social Welfare Assistance Act,20 the State Service (Disability Benefits) Act,21 the War Victims Compensation Act22 and the Criminal Law (Codification and Reform) Act.23 As will be shown, these laws have some shortcomings when it comes to the realisation of the rights of PWDs. Government has done little to ensure the effective implementation of the laws. It is a cause for concern that these laws predate the CRPD.
Apart from laws, a number of institutions have specific responsibilities towards the promotion and protection of the rights and welfare of PWDs. In the main, the institutions include the Ministry of Labour and Social Services, the National Disability Board, the Child Welfare Council, the courts and the recently appointed Special Advisor on Disability and Rehabilitation to the President and Cabinet (the Special Advisor). However, these institutions have also not fared well in addressing the marginalisation of PWDs in Zimbabwe.
Given this background, this article is an appraisal of Zimbabwe’s legal and institutional frameworks for the realisation of the rights of PWDs. It is has four sections starting with the introduction. The second section is a critical analysis of the legal framework for the realisation of the rights of PWDs in Zimbabwe. This section highlights the need for Zimbabwe to shift from the medical approach of disability to a human rights-based approach. Section three is a critical appraisal of the institutions that are legally or constitutionally tasked with the protection, promotion and fulfilment of the rights of PWDs. The final section is the conclusion. It proffers specific as well as general recommendations on how to achieve a more effective realisation of the rights of PWDs. The CRPD will be used as an analytical tool and yardstick for conducting the appraisal, notwithstanding that Zimbabwe is not a ratifying party.
Prior to 2005, the non-discrimination clause in the Constitution of Zimbabwe did not include disability as one of the prohibited grounds. Following widespread campaigns by the National Disability Board and local Non-Governmental Organisations which deal with disability,24 section 23 of the Constitution was amended in 2005 to include physical disability as a prohibited ground.25 While the amendment was applauded for extending protection to disability,26 questions were asked about its inclusiveness. Mental, intellectual, sensory and other types of disabilities, which are protected under the CRPD,27 were implicitly placed outside the scope of constitutional protection. Quinn and Degener have observed that equality norms in constitutions and legislation often fail to cater adequately for the diversity of disabilities.28
In April 2013, Zimbabwe adopted a new Constitution29 which came into force on 22 August 2013. The Constitution contains some improvements with regard to the realisation of the rights of PWDs. As a starting point, the Constitution recognises the inherent dignity and equal worth of each human being under the provision on founding values and principles. The recognition of the inherent dignity of all human beings is important especially for persons with mental disabilities who are normally treated without dignity.30 More importantly, the Constitution also recognises the rights of PWDs among the founding values and principles.31 It can be submitted that there is at least recognition of disability rights and an appreciation of the equal worth of all human beings in Zimbabwe as opposed to the previous Constitution which did not expressly provide for the rights of PWDs in any section. In addition, the clause providing for the recognition of inherent dignity and equal worth of all human beings in the Constitution mirrors some of the general principles underlying the CRPD in article 3 namely, the respect for the inherent dignity and the acceptance of PWDs as part of human diversity and humanity.32
Similarly, section 22 of the Constitution provides that all institutions and agencies of the government at every level must recognise the rights of persons with physical or mental disabilities, particularly their right to be treated with respect and dignity.33 This is commendable in that the provision reinforces the equal worth of all human beings, hence the need to treat PWDs with dignity and respect. Unlike the previous position where the realisation of the rights of PWDs was restricted to the Department of Social Welfare, the Constitution mandates all governmental departments and their agencies to assist persons with physical and mental disabilities to achieve their full potential and to minimise disadvantages suffered by them.34 The provision is commendable, given the fact that disability is an evolving, at times contentious, cross-cutting concept35 that cannot be addressed by a single governmental department.
Furthermore, section 22 mandates all government institutions and agencies at every level to develop programmes for the welfare of persons with physical or mental disabilities especially work programmes consistent with their capabilities and acceptable to them or their representatives.36 Government institutions and agencies are also mandated to consider the specific requirements of persons with all forms of disabilities as one of the priorities in developmental plans.37 This appears to be a step forward in attempting to alleviate poverty among PWDs in Zimbabwe and to ensure inclusion and participation in society by PWDs. It can be submitted that the Constitution gives a mandate on the government and its agencies to protect and promote the rights of PWDs in its developmental policies and programmes and is in line with the general obligations of states under the CRPD.38 In addition, the provision requires mainstreaming of disability rights in Zimbabwe and is in line with the CRPD which emphasises the importance of mainstreaming disability issues as a paramount part of the strategies of sustainable development.39
With regard to official languages, the Constitution advances disability rights by making sign language one of the official languages of Zimbabwe.40 In addition, the Constitution mandates the development of communication suitable for persons with physical or mental disabilities.41 It specifically mandates the state to take appropriate measures to ensure that buildings and amenities that are open to the public are accessible to PWDs.42 By providing a constitutional mandate on the state to ensure accessibility of buildings and amenities by PWDs, the Constitution is in line with article 9 the CRPD which provides for equal access to the physical environment, transportation, information and communications and other facilities so as to enable PWDs to live independently and participate fully in all aspects of life.43
The State must take appropriate measures, within the limits of the resources available to it, to ensure that persons with disabilities realize their full mental and physical potential, including measures:
(e) To provide State-funded education and training where they need it.44
Section 83 shows a constitutional commitment to address some of the major barriers to the equality of PWDs such as access to education and health facilities, exploitation and abuse, and the right to live with their own families. The state has an obligation to ensure that PWDs realise their full mental and physical capabilities. Provisions of section 83 confirm that Zimbabwe has begun to embrace a human rights approach to disability. In many respects, they complement a number of provisions of the CRPD, including: article 16 which provides for freedom from exploitation, violence and abuse; article 23 on the home and family;45 article 24 providing for the right to education; and article 25 on the right to health.
However, while section 83 of Constitution makes the realisation of the economic, social and cultural rights of PWDs contingent upon resources that are available to the state, it does not underscore that the state has a duty to ensure the progressive realisation of such rights. This is a weakness that needs to be addressed. The position would have been better if the Constitution had conferred an obligation on the government similar to article 4 of the CRPD. Article 4 of the CRPD requires states parties to take measures to the extent of available resources with a view to achieve progressive realisation of economic, social and cultural rights.46
Notwithstanding that Zimbabwe is moving towards a human rights-based approach, some of the Constitutional provisions are still aligned to the medical model of disability. The constitutional provision obliging the state to develop welfare programmes for persons with physical or mental disabilities appears to be aligned to an outdated approach which views disability as a welfare issue.47 Also, it is not clear whether the concept of persons with ‘physical and mental’ disabilities in section 83 includes persons with intellectual and sensory disabilities. A holistic concept of disability should include intellectual and sensory disabilities and disfigurement.48 Furthermore, like the previous Constitution, the new Constitution does not address the plight of women and children with disabilities who suffer double discrimination. This is in contrast to articles 6 and 7 of the CRPD which make provision for these social groups. Also, the Constitution does not do enough to move away from a ‘special schools approach’ so as to clearly embrace inclusive education. Unlike article 24 of the CRPD which recognises a right to inclusive education, section 83 appears to reinforce the notion of separate education by its reference to ‘special facilities’.49
As indicated above, the DPA50 is the major law that addresses disability in Zimbabwe. However, the DPA is not a human rights document in that it does not confer any rights to PWDs or confer any obligations on the state. The DPA also follows the outdated medical model of disability in all its provisions. For these reasons, the DPA should be repealed and substituted by an entirely new Act that is in line with the provisions of the CRPD.
Terminology matters when one is dealing with disability issues. According to Nyirinkindi, terms and labels become significant in colouring perceptions and determining what rights may be attached to PWDs.51 Although the term ‘disabled person’ is used by many disability activists and scholars, the manner in which it is used in the Act is pejorative and reflects a medical and diagnostic approach to disability which ignores the imperfections and deficiencies of the surrounding society. However, unlike the DPA, the Constitution makes use of the term ‘persons with disabilities’. It is therefore submitted that the DPA has to be in line with the Constitution.
[A] person with a physical, mental or sensory disability, including a visual, hearing or speech functional disability, which gives rise to physical, cultural or social barriers inhibiting him from participating at an equal level with other members of society in activities, undertakings or fields of employment that are open to other members of society.52
This definition follows the outdated medical model of disability as it fails to appreciate that disability is not only limited to individual impairments but also to barriers caused by both attitudinal and environmental factors. Kayess and French have observed that the medical model has been the most powerful influence in the conceptualisation of disability in modern history.53
It is suggested that the name ‘Disabled Persons Act’ should be discarded in favour of the internationally preferred terms like ‘Persons with disabilities’.54 It does not clarify the fact that disability results from the interaction between persons with impairments and their surrounding societies. Hence, the name ‘Persons with Disabilities Act’ should replace ‘Disabled Persons Act’.
The definition of disability under the DPA does not appreciate that disability is an evolving concept which changes over time. The Act should adopt a similar provision like article 1 of the CRPD which does not explicitly define PWDs but is rather indicative and inclusive. The CRPD states that:
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.55
The DPA establishes the National Disability Board (NDB)56 which is empowered to issue and serve adjustment orders to ensure access to mainstream public services by all PWDs. The Act states that where the NDB considers that any premises to which members of the public are ordinarily admitted or any premises in which services or amenities are ordinarily provided to members of the public are inaccessible to PWDs, it may serve an adjustment order requiring the owner of the premises or the provider of the service to undertake action at his/her own expense to secure reasonable access by PWDs.57 Due to the nature of many impairments, the inhospitable physical infrastructure, particularly in rural areas, profoundly hampers PWDs from accessing mainstream public services like health, education and justice. Adjustment orders have the capacity to assist PWDs in the realisation of the right to access mainstream public services and enable them to live independently and to participate fully in all aspects of life.
As part of the implementation measures of adjustment orders, section 7(8) of the DPA makes it a criminal offence to fail to comply with an adjustment order. It is also a criminal offence to deny PWDs admission into any premises to which members of the public are ordinarily admitted or to deny provision of any public service or amenity.58 All these are positive steps to ensure the right of access to essential services by PWDs.
However, it appears that the crimilisation of failure to comply with adjustment orders under section 7(8) of the DPA is only a paper provision. There is no single prosecution to date that was based on the DPA.59 Ultimately, the Act lacks a clear enforcement mechanism. Furthermore, the fact that the NDB cannot issue adjustment orders to state hospitals, clinics, nursing homes, schools or educational training centres without the consent of the relevant Minister of the institution concerned is a weakness.60 Requiring ministerial consent effectively renders adjustment dependant on the political willingness of the government. Many government workplaces, magistrates offices and state recreational facilities are not accessible to PWDs.61 As an example, it is very difficult if not impossible for PWDs to access government offices at the Government Complex in Gweru.62 The complex has no guiding rails, the elevators have no recorded voices for persons with visual impairments and are too narrow to accommodate wheelchairs, and the toilet cubicles are too high for persons with physical disabilities.63 As part of augmenting the effectiveness of the DPA, the NDB should be given power to issue adjustment orders against government institutions without ministerial consent. This will assist in increasing accessibility to state premises and services by PWDs.64
Another weakness is that the DPA only makes provision for adjustment orders relating to already constructed buildings. It does not apply to new buildings under construction or to those to be constructed. Many new public buildings are inaccessible to PWDs. This has resulted in extreme difficulties to PWDs when it comes to access to public services. Furthermore, the Act does not cover private entities that offer facilities and services to members of the public.
A revised Act should therefore make provisions for prohibiting the construction of inaccessible public buildings or private entities in which services are ordinarily offered to members of the public or in which members of the public are ordinarily admitted. It means that all the architects, construction engineers and others who are professionally involved in the design of buildings should have the necessary knowledge on disability issues.65 Building standards regulations should also encompass disability as opposed to the current regulations which are silent on standards for promoting accessibility.
A new Act should address not just inaccessible buildings but also roads and other transportation systems, information, communications and other pertinent services to render them accessible to PWDs. Article 9 of the CRPD, which provides for appropriate measures to be taken to ensure that PWDs have access on an equal basis with others to the physical environment, transportation, information, communication technologies and other services are accessible to the public, contains standards for guiding Zimbabwe in ways that are human rights-compliant.66
Apart from the problem of inaccessible buildings and modes of communication, the DPA does not address the right to employment for PWDs. Apart from merely prohibiting discrimination against PWDs in employment,67 the Act does not require the state to safeguard and promote the realisation a right to work as is the case under article 27 of the CRPD.68 Moreover, the DPA does not provide clear guidance on how equality and non-discrimination in the workplace is to be achieved. Article 27 of the CRPD, which articulates the scope of the duty to provide reasonable accommodation for job applicants and employees with disabilities, is a source of human rights standards for domestic states to emulate.69
The DPA is silent on education. It has been reported that one in three children with disabilities is out of school and that 75 per cent of children with disabilities never complete primary school in Zimbabwe.70 Although
inclusive education71 has been actively considered since 1994, there is still a lot of scepticism about and ambivalence towards its implementation within the education sector.72 It appears that inclusive education is not part of the training component for teachers in most of the teachers’ colleges in Zimbabwe. As a result, teachers graduate from the training colleges without the requisite skills and competences to teach inclusive classes.73 A new Act should ensure that inclusive education is made an integral part of the education system. Guidance can be taken from the CRPD which advocates an inclusive education system at all levels.74 The CRPD also provides for the realisation of the right to education without discrimination and on the basis of equal opportunities for PWDs.75 A provision similar to that in the Ugandan Constitution which specifically provides for the right to education of all may be appropriate for Zimbabwe.76
The proposed new Act should also address the issue of expensive and inadequate supply of aides and appliances like mobility aides, devices and prosthetics.77 For persons with albinism, the major barrier is that of very expensive and inaccessible sunscreen products including skin lotions.78 The reality in Zimbabwe is that there are high unemployment rates.79 For the few who are employed, the situation is worsened by poor salaries. This means that the majority cannot afford aides and appliances for PWDs. The Act should include a state obligation to subsidise the purchase of aides and appliances which are in short supply and are very expensive. Such a move will assist to ease the suffering of PWDs and give them self-determination. This will also go a long way in increasing the level of independence in the daily lives of PWDs and the exercise of their further rights.80
Another gap in the DPA is that it does not expressly provide for wide participation of PWDs and their organisations in decision-making or implementation of disability-related policies.81 This is in contrast to article 4 of the CRPD which calls for the involvement of PWDs and their representative organisations in implementation of disability-related legislation and policies.82 The failure to provide for the participation of PWDs in disability issues defeats the clarion call of the disability movement, namely, ‘nothing without us about us’.83
This Act84 provides for the consolidation and amendment of the law relating to the care, detention and after-care of persons who are ‘mentally disordered’ or ‘intellectually handicapped’, whether for the purposes of treatment or otherwise.85 It also provides for the establishment of various Boards including the Mental Hospital Board and the Special Boards. The Mental Hospital Board is tasked with the treatment, rehabilitation and general welfare of ‘mental patients’ amongst other functions,86 whilst the Special Boards make reports in relation to ‘mental patients’ detained in various institutions.87 In addition, the Act establishes the Mental Health Review Tribunal which primarily presides over applications and appeals made by or on behalf of ‘mental patients’ detained in institutions concerning their treatment or general welfare or for release from detention.88
The care, detention and after-care of persons who are ‘mentally disordered’ or ‘intellectually handicapped’ as advocated for by this Act89 assists persons with mental disabilities in the realisation of the right to the highest attainable standard of health. Similarly, rehabilitation as advocated for by the Act90 is in order to enable persons with mental disabilities to attain and maintain maximum independence, and social and vocational ability.91 However, the Act also has shortcomings. The Act provides for involuntary treatment of persons with mental and intellectual disabilities in that it does not contain provisions for consent to treatment. By making provisions for the detention of persons with mental disabilities in special institutions separated from the mainstream healthcare facilities, the Act has a discriminatory orientation in which there is a parallel healthcare system that secludes persons with mental and intellectual disabilities. Discrimination against persons with mental or intellectual disabilities is prohibited under the CRPD. Article 25 of the CRPD provides for the enjoyment of the right to the highest attainable standard of health without discrimination on the basis of disability.92 Similarly, seclusion and involuntary treatment of persons with psychosocial disabilities has been found by United Nations treaty monitoring bodies to constitute torture and ill-treatment.93
Like the DPA, terminology used by the Mental Health Act is at variance with the best practices at the international level. Terms such as ‘mentally disordered,’ ‘intellectually handicapped,’ or ‘mental patients,’ demean, degrade, belittle, stigmatise and devalue persons with mental and intellectual disabilities. Pejorative terms disempower rather that empower PWDs. Terms like ‘persons with a mental disability’ or ‘persons with an intellectual disability’ should substitute the ‘mentally disordered’, ‘intellectually handicapped’ or ‘mental patients’.
Section 30 of the Mental Health Act provides for the indefinite detention of prisoners found to be ‘mentally disordered’ or ‘intellectually handicapped’ in special institutions. This is a clear violation of the right to liberty, amongst other rights. The CRPD provides that the existence of a disability must not justify deprivation of liberty in any circumstance.94 The Mental Health Act should, therefore, be amended so as to be in line with the CRPD.
The Social Welfare Assistance Act95 provides for the granting of social welfare assistance to ‘destitutes’ or ‘indigent persons’96 and their dependents. Social welfare may be provided in the form of cash, food, clothing, rehabilitation, occupational training or the provision of orthopaedic and orthoptic appliances.97 The Act classifies ‘physically and mentally handicapped’ persons as ‘destitutes’ or ‘indigent persons’ who are therefore eligible to receive social welfare assistance from the Department of Social Welfare.98 It is very clear that the Act was drafted alongside a misconception that disability is always associated with indigence. Disability may be associated with poverty but it is not always the case. In any event, the Department of Social Welfare, which is tasked with the provision of social welfare assistance, ‘is probably the most impoverished
and demoralised of all government departments’.99 It lacks adequate resources,100 such that the capacity of the Department to alleviate poverty and protect, promote and fulfil the rights of PWDs is highly questionable.
The Act follows the outdated medical model of disability which depicts PWDs not as subjects with legal rights but as objects of welfare.101 It fails to reorient the focus from needs to rights. As long as PWDs are portrayed as incapable of supporting themselves and are always made objects of charity or welfare, it becomes very difficult to talk of their human rights. This disempowering approach is in direct contrast to the principles underlying the CRPD like respect for independence of PWDs, individual autonomy, inherent dignity, and full and effective participation and inclusion in society.102 By way of illustration, the rights to live independently and to be fully included in the community which are guaranteed under the CRPD103 cannot be realised if PWDs are assumed to be objects of social welfare or charity.
Requiring the Act to treat PWDs as rights-holders rather than indigents who are the objects of charity is not to deny the link between disability and poverty. PWDs are amongst the World’s ‘poorest of the poor’104 and this is equally true in the Zimbabwean context in which PWDs are highly vulnerable to poverty.105 By making provision for social welfare assistance in the form of cash, supply of food and other assistance to PWDs, 106 the Act makes a positive contribution towards the adoption of measures that have the capacity to reduce poverty as advocated for at the international level.107
This Act108 provides for payment of monetary compensation on the death or disablement of members or former members of the Defence Force, the Police Force and the Prison Services. It also provides for monetary compensation on the death or disablement of any person whilst assisting
the mentioned forces and services.109 The Act provides for vocational training and a temporary allowance for such training to the permanently disabled members of the mentioned forces.110 Vocational training includes any form of education or training which permits a disabled person to support himself or herself, and his/her dependants or will increase his/her capacity to do so.111 The provision of vocational training as advocated for by the Act has the capacity to assist PWDs to attain and maintain maximum independence and full inclusion and participation in all aspects of life as to complement best practices at the international level.112
Furthermore, the Act also provides for a clothing allowance.113 In the event that the condition of a disabled person who is eligible for compensation under the Act requires the wearing of, say, an artificial limb or to use crutches or any other appliance which may result in tear of the clothing, a clothing allowance is provided for. This sounds positive and limits the financial burden upon PWDs.
However, the tone of the Act appears to make reference to physical disability only and disregards other types of disabilities recognised at an international level like mental, intellectual or sensory disabilities.114 As has been argued above, physical disability is not the only form of disability. The Act makes reference to disabilities arising only from physical injuries. In the First Schedule115 of the Act, reference is made only to physical injuries like loss of limbs and legs in the ascertainment of the degrees of disablement for compensation purposes. Another concern is that the Act lacks an enforcement mechanism. A common problem with the laws that address disability in Zimbabwe is that paper provisions are not translated into actual benefits for PWDs.
In addition, disablement for the purposes of the Act has been defined as permanent injury or disfigurement.116 This again means that those members who acquire physical disabilities which are long-term or short-term but not necessarily permanent are not covered by the Act. The Act’s cover is very limited in scope. It is suggested that the Act should follow the CRPD which makes reference to long-term impairments as opposed to permanent impairments.117
The War Victims Compensation Act118 provides for the payment of compensation in respect of disablement or deaths of persons caused by war. If a disability results from the repercussions of war, the victim is entitled to monetary compensation after the assessment of the degree of disablement by the Commissioner of War Victims Compensation.119
The Act is the only domestic law that makes special provisions for women with disabilities (WWDs) and children with disabilities (CWDS), albeit it is in the context of disabilities directly or indirectly linked to war.120 The Act provides for generous monetary compensation to disabled women.121 In addition to monetary compensation, it makes provision for an educational allowance for children who acquire disabilities as a result of war.122 The educational allowance is also available to children with disabled parents who are entitled to compensation under the Act.123 Although the Act is silent on the underlying reasons for having special provisions for women and children with disabilities, it may be argued that it appreciates the double marginalisation of these two groups of PWDs in a way that complements international best practices.124 It is widely recognised that WWDs and CWDs are among the social groups that require particular attention and support as they are doubly marginalised.125
Like the State Service (Disability Benefits) Act, discussed earlier, the Act appears to makes explicit reference to physical disabilities only and is therefore narrow in its scope.126 Also, the levels of monetary compensation under the Act have not been reviewed since the 80s. The absence of review so as to cater for inflation and currency depreciation 127 shows a lack of seriousness in the implementation of the Act.
This Act128 regulates criminal conduct in ways that extend specific protection to PWDs in respect of some offences. Sexual conduct involving a ‘mentally incompetent’ adult is charged as rape, aggravated assault or indecent assault, as the case may be, and is punishable under the Act.129 The Act is welcome in as much as it strives to protect the rights to privacy, not to be treated in an inhuman and degrading manner,130 bodily integrity and dignity of women with ‘severe’ intellectual disabilities who are commonly victims of rape as they may not be in a position to positively identify the perpetrators.131 Given the position that women with a ‘severe’ intellectual disability may not be competent and compellable witnesses before the courts,132 the Act extends protection to a class of person that may not be able to resist or report forced sexual violence.
However, the Act falls short of the international standards as it does not guarantee protection to women with disabilities in general. It should be amended so as to include all women with disabilities.133 The Constitution requires the state to protect PWDs from all forms of exploitation and abuse.134 The state has a constitutional obligation to take positive measures for the protection of women with disabilities from sexual abuse.135
Another gap in the Act is that the disability of a rape victim is not included amongst the aggravating factors to be considered by a judge or magistrate when meting out an appropriate sentence to the accused under the Act.136 To assist with deterrence, the disability of a victim should be treated as an aggravating factor. In addition, the language of the Act should be amended so as to remove offensive terms such as ‘mentally incompetent adult’ in favour of language that is aligned to the CRPD.
As has been indicated above, the DPA establishes the NDB,137 its main functions being, amongst others, to formulate and develop measures and policies that are designed to achieve equal opportunities for PWDs by ensuring that they obtain education and employment. It is also tasked to ensure that PWDs participate fully in sporting, recreational and cultural activities and are afforded full access to community and social services, and to issue the above-discussed adjustment orders.138 These objectives are in line with the principles outlined under the CRPD especially equality of opportunity of PWDs and accessibility.139
The NDB has achieved some success although it has not made enough of an impact. It lobbied successfully for the inclusion of PWDs in the Constitution which saw persons with physical disabilities being included in the non-discrimination clause. It established the Disability Fund in 2003 and 2006 and received funding from the national reserves140 and it also successfully lobbied for the inclusion of children with disabilities in the Basic Education Assistance Module (BEAM).141
However, the NDB is largely invisible due to lack of resources. It operates under the financially ailing Department of Social Welfare. From its introduction in 1992, the NDB has not had an office to operate from.142 It also does not have a secretariat of its own and the Minister of Labour and Social Services (the Minister) is yet to appoint the Director for Disabled Persons’ Affairs.143 In addition, it appears that the Minister has more powers on the operations of the NDB. Not only does the Minister appoints members of the Board but he/she also appoints the Chairperson and the Deputy,144 can assign personnel from his/her ministry to perform secretarial and administrative functions of the Board,145 and records of meetings of the Board must be furnished and kept by the Minister.146 It is the Minister who approves every cost to be incurred by the Board.147 This means the NDB cannot make its own decision but has to rely on the Minister’s instructions. The Minster is the only one administratively responsible for the NDB. Consequently, the effectiveness of the NDB overly depends on whether the Minister has a full appreciation of disability issues. The perception is that the NDB has been neglecting disability issues and this has impacted negatively on the realisation of the rights of PWDs generally.148
As part of reform, the NDB should, therefore, be empowered to issue adjustment orders against governmental institutions without the consent of the ministers such that the process becomes speedy. The NDB should have autonomy in making disability-related decisions as opposed to reliance on the Minister’s instructions. In its work, the NDB also needs to have a mechanism for monitoring its resolutions. Recently, the NDB resolved that the Zimbabwe Revenue Authority (ZIMRA) ought to exempt PWDs from paying import duty on vehicles imported by PWDs. This resolution has not been implemented and yet no action has been taken.149 Generally, the objectives of the NDB need to be broadened so as to include the monitoring and enforcement of the rights of PWDs and their entitlements in Zimbabwe.
The major Act which deals with children’s issues in Zimbabwe is the Children’s Act.150 This Act establishes a Child Welfare Council (CWC)151 with one of its functions being ‘to promote and encourage the co-ordination of the activities of organisations which have the promotion and protection of the rights of children as their object’.152
However, the composition of the CWC does not expressly include organisations which deal with the rights of children with disabilities. Section 2A(1)(C) simply states that six representatives from Private Voluntary Organisations (PVOs) or other organisations which the Minister153 considers deal with issues concerning the welfare and upbringing of children form part of the membership of the CWC. It is submitted that there are many organisations in Zimbabwe that deal with issues of welfare and upbringing of children which are not necessarily DPOs or any representatives of PWDs. Furthermore, not all PVOs are aware of the rights and entitlements of children with disabilities. The Minister may therefore appoint any six organisations that do not deal with rights of children with disabilities as the members of the CWC. This may mean that the rights of children with disabilities may not receive special attention in the activities of the CWC.
There is therefore an urgent need revisit the Children’s Act so that organisations that deal with the rights of CWDs or PWDs in general are clearly included in the composition of the CWC. This will go a long way in ensuring that the best interests of children with disabilities receive special attention in the functioning of the CWC. Given the position that the CWC is starved of resources, especially financial resources, specific funds should be channelled to the CWC for it to function properly. Finally, the suggested reforms should not be developed and implemented without the active involvement of PWDs and/or their representative organisations. As indicated earlier on, article 4 of the CRPD mandates active involvement and close consultation of PWDs, including children with disabilities, through their representative organisations when it comes to the development and implementation of disability-related legislation and policies.154 This is in line with the clarion call of the disability movement which is ‘nothing without us about us.’155
The recent establishment of the office of Special Advisor on Disability and Rehabilitation to the President and Cabinet is a highly positive development since the office acts as a focal point within government for the implementation of disability-related policies. This is in line with the CRPD which calls for focal points within governments for matters relating to the implementation of disability rights.156
However, it is still not clear what the priorities of the new office are and whether it has any coherent strategies for addressing disability.157 The qualifications of the incumbent of the office of Special Advisor are not clear. The current incumbent is Retired Brigadier-General Muchemwa who was appointed by the President. The activities of the Special Advisor are not yet known. According to Nilsson there is a need to question the role, mandate and appointment of this new office.158
It is suggested that the mandate of the Special Advisor should be clearly articulated. However, the articulation of such a mandate should not result in unnecessary duplication and overlapping of roles with that of the NDB, CWC and the Ministry of Labour and Social Welfare. Furthermore, in order to leave no room for political appointments, there is a need to come up with a clear criterion for the appointment of the Special Advisor. It is proposed that the Special Advisor has to be an individual who is suitably qualified and has extensive experience in the field of disability.
The Ministry of Labour and Social Services is responsible for the rights and needs of PWDs in Zimbabwe. Together with the Ministry of Health and Child Welfare, it is responsible for the provision of wheelchairs and other assistive devices or appliances to PWDs among other activities. According to Eide et al, less than one fourth of PWDs who claimed that they need assistive devices have received them.159 This shows that the Ministry is failing to deliver according to its responsibilities.160 Furthermore, the Ministry has no budget at all addressing the needs of PWDs which may be the reason why it is failing in its obligations. In this regard, the Ministry is failing to live up to expected standards at the international level which require the availability of mobility aids, devices and assistive technologies to PWDs, amongst other essentials.161
It is suggested that the Ministry should have a specific budget catering for disability issues in Zimbabwe. The Ministry should also prioritise disability issues among its functions. The current position in which disability issues are relegated to the peripheries of the Ministry’s priorities has to be changed.
Courts of law can play a very crucial role when it comes to the realisation of the rights of PWDs. In Zimbabwe however, it is regrettable that only one case on disability has been decided by the Supreme Court sitting as a Constitutional Court. This is the case of Simon Mvindi & 5 Others v the President of the Republic of Zimbabwe & 3 Others.162 The case arose during the disputed March 2008 elections. During the elections, ballot papers were not available in Braille, electronic format or any other form accessible to PWDs especially those with visual impairments. Instead, sections 59 and 60 of the Electoral Act [Chapter 2:13] required voters in need of assistance especially PWDs to be assisted by the Zimbabwe Electoral Commission officials and Police officers on duty at the polling stations in casting ballots but not by their chosen relatives or friends.
All six applicants in this case are persons with visual impairment who made a constitutional challenge to the provisions of sections 59 and 60 of the Electoral Act. They argued that the sections infringed their right to free expression of political will and the right to a secret ballot. The applicants further submitted that they preferred to be assisted by relatives or friends to cast ballots as opposed to polling and police officers who may be strangers to them. By way of remedy, the applicants wanted the sections of the Electoral Act to be declared unconstitutional because there was infringement of the constitutionally guaranteed right to free expression.163
After making a finding that a myriad of factors like lack of accessible polling stations, lack of voting materials in accessible formats, lack of accessible campaign literature and inaccessible transportation to and from polling stations renders the right to vote by PWDs hollow, the Supreme Court found that PWDs have a right to vote in secret like any other person. The Court declared sections 59 and 60 of the Electoral Act null and void saying that the provisions violated the principle of secret ballot. Furthermore, government, through the electoral authority, and political parties were ordered to consider developing political communications and voting materials in sign language and ballot papers in large print or Braille.
The judgment is welcome in that it is in line with best practices at international level in which the right of PWDs to vote by a secret ballot and the use of appropriate assistive technologies are guaranteed.164 However, government and political parties were not given any deadline to implement the decision and it is not clear whether the decision is going to be implemented at all.
Zimbabwe has a long way to go in improving the realisation of the rights of PWDs. The first recommendation is for Zimbabwe to be a party to the CRPD, since the Convention embodies the best practices for the realisation of the rights of PWDs. Ratification and the ultimate domestication of the CRPD will have far reaching implications for reform in Zimbabwe especially in major sectors like education, health, housing, employment and politics. This will ensure full and effective inclusion of PWDs in the facets of life.
The new Constitution of Zimbabwe is an improvement with regard to the realisation of the rights of PWDs. Section 83 has a disability focus. It imposes new obligations on the state including obligations to give PWDs access to medical treatment, education and to enable self-reliance. However, it is a major concern to note currently disability-related legislation in Zimbabwe predates the CRPD. The legislation was modelled along the outdated medical model of disability. There is therefore an urgent need to review the legislation and align it with the new Constitution and better still the CRPD.
Among the institutions dealing with disability, it can be submitted that the NDB and the Special Advisor need to have their objectives clearly articulated and even broadened so as to ensure the full and effective realisation of the rights of all PWDs in Zimbabwe. More referrals are needed on disability issues to the courts of law so as to provide impetus for the development of domestic jurisprudence on disability. There should be mainstreaming of disability as provided for under both the CRPD and the Constitution.
It is high time for Zimbabweans to be reminded that all human beings have something to contribute towards humanity and that social structures should be built inclusively with human empowerment as a key goal.165 PWDs are equal members of society who have to be treated as rights-bearers always. Disability is a universal human experience.166 It should be mainstreamed in major socio-economic areas like education, health, employment and political participation.167
7. Zimbabwe Human Rights Report ‘Discrimination based on race, sex, religion, disability, language, or social status’ available at http://www.ncbuy.com/reference/country/humanrights.html ?code=zi&sec=5 (accessed 7 April 2011).
12. I Grobbelaar-du Plessis ‘The African women with disabilities: The victims of multilayered discrimination’ (2007) 22 South Africa Publiekreg/Public Law 405; SA Djoyou Kamga ‘The rights of women with disabilities in Africa: Does the Protocol on the Rights of Women in Africa offer any hope’ (February 2011) Barbara Faye Waxman Fiduccia Papers on Women and Girls with Disabilities, Center for Women Policy Studies 3; R Traustadóttir ‘Obstacles to equality: The double discrimination of women with disabilities’ (July 1990) available at http://dawn.thot.net/disability.html (accessed 5 September 2013).
24. The National Association of Societies for the Care of the Handicapped (NASCOH) and the Southern Africa Federation of the Disabled (SAFOD) were among the NGOs that campaigned vigorously for the inclusion of disability as a ground upon which discrimination is prohibited in the Constitution.
26. See ‘Constitution of Zimbabwe Amendment (no. 17) Bill, 2005 (hb 2005) - Representations made by the Zimbabwe Human Rights NGO Forum to the Portfolio Committee on Justice, Legal and Parliamentary Affairs’ available at http://reliefweb.int/sites/reliefweb.int/node/181818/.pdf (accessed 15 August 2011).
29. The new Constitution was adopted through a referendum held in April 2013. It received presidential assent on 22 May 2013. However, only some sections of the Constitution came into force on the day of presidential assent including the Bill of Rights in chapter 4 and a provision on elections in chapter 7. The Constitution as a whole document came into force on 22 August 2013.
30. It can be submitted further that the recognition of the inherent dignity of all human beings in the Constitution mirrors art 17 of the CRPD, which provides for the right of PWDs to have their physical or mental integrity respected.
35. See paragraph (e) of the Preamble to the CRPD; R Traustadóttir ‘From social policy to the human rights law of the 21st century’ in OM Arnardóttir & G Quinn (eds) The UN Convention on the Rights of Persons with Disabilities (2009) 8.
48. See art 1 of the CRPD which gives reference to physical, mental, intellectual and sensory impairments; H Combrinck ‘The hidden ones: Children with disabilities in Africa and the right to education’ in J Sloth-Nielsen (ed) Children’s rights in Africa: A legal perspective (2008) 303;
54. See the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, A/RES/48/96 (20 December 1993) para 19 in which the use of terminology which reflects a medical and diagnostic approach and, ignores the deficiencies and imperfections of the surrounding society is castigated.
59. ‘Zimbabwe: Disabled Persons Act Defective’ The Standard 22 January 2012 available at http://www.allafrica.com/stories/201201230521.html (accessed 7 February 2012).
61. AH Eide et al ‘Living conditions among people with activity limitations in Zimbabwe: A representative regional survey’ available at http://www.safod.org/images/lczimbabwe.pdf (accessed 25 July 2011).
70. ‘The plight of deaf and dump children in education’ (n 13 above); Eide et al (n 61 above) 70-72, states that the proportion of those who have never attended school is almost three times higher among PWDs as compared to the non-disabled.
71. According to R Rieser Implementing inclusive education: A Commonwealth guide to implementing article 24 of the UN Convention on the Rights of People with Disabilities (2008) 2, inclusive education is a process of responding to the diversity of needs of learners through increasing participation in learning, cultures and communities, and reducing exclusion. The ultimate goal of inclusive education is that schools accommodate all children in spite of their differences.
82. Art 4(3) of the CRPD provides that states parties have a mandate to closely consult and actively involve PWDs when it comes to development and implementation of legislation and policies addressing disability. See also art 33 of the CRPD.
93. See ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading Treatment or punishment’ A/HRC/22/53 available at http://www.ohchrc.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A. HRC.22.53 _ English.pdf (accessed 17 May 2013).
99. King George VI School and Centre for Children with Physical Disabilities ‘Disability in Zimbabwe’ available at http://www.kinggeorge 6.org/home/the-centre/disability-in-zimbabwe (accessed 9 April 2011).
104. WHO ‘Global Programming Note 2006-2007: Call for resource mobilisation and engagement opportunities’ available at http://www.who.int/nmh/donorinfo/vip_ promoting_access_healthcare_rehabilitation_update.pdf.pdf (accessed 5 September 2013).
105. NASCOH ‘Disability in Zimbabwe’ available at http://www.nascoh.org.zw/ ?Pageid=82 (accessed 9 April 2011); Choruma (n 10 above) 12.
114. See sec 15 and the First Schedule of the Act, which gives an outline of the degrees of physical disablement that will be considered before compensation is payable. This has been done to the expense of other types of disabilities like mental or sensory.
127. In March 2009, Zimbabwe experienced hyperinflation up to 24 000 per cent. Zimbabwe then adopted a multi-currency regime which saw the United States Dollar, South African Rand and the Botswana Pula being used as the official currencies. See ‘How Zimbabwe lost control of inflation’ Newzimbabwe 11 December 2009 available at http://www.newzimbabwe.com/pages/inflation180.17386.html (accessed 25 August 2013); ‘Currency regime: Where do we go now from here?’ Zimbabwe Independent 1 March 2012.
131. See AL Pillay ‘Competency examinations with rape survivors having mental retardation’ available at http://behavmed.ukzu.ac.za/upload/ (accessed 8 May 2011), in which it is indicated that women with mental retardation are commonly victims of rape due to the inability to protect themselves, insufficient understanding of sexual behaviour and the fact that they are stigmatised, marginalised and vulnerable to exploitation.
133. See art 16(2) of the CRPD, which mandates the putting in place of measures to prevent all forms of abuse, violence or exploitation and gives reference to gender-and age-sensitive assistance and support.
141. According to N Marongwe ‘Observatory Case Studies: The Basic Education Assistance Module (BEAM) in Zimbabwe’ available at http://www.aidsandemergencies.org/cms/documents/5_Agency.pdf (accessed 10 October 2011), BEAM is the largest form of educational assistance in Zimbabwe that was launched by the Government as a response to the worsening social conditions and high drop outs of school children.
142. P Chitambara ‘Social Protection in Zimbabwe’ available at http://www.tedriz. co.zw/index.php?option =com (accessed 20 May 2013).
148. According to Lang & Charowa (n 8 above) 30-31, the NDB is invisible and since 1994, the Social Welfare staff have been working on other responsibilities to the detriment and neglect of disability issues.
158. S Nilsson & A Nilsson? ‘Disability rights in Zimbabwe’ (30 January 2011) available at http://www.msc.st/docs/HRBA-Disability-Zimbabwe-revised-2011-01-30.doc (accessed 25 July 2011).
166. See WHO International Classification of Functioning, Disability and Health available at http://www.who.int/classifications/icf/en/ (accessed 16 August 2011).