• Peter Josiah Shughuru
  • LLB (Hons) RUCO; PGDLP – Law School of Tanzania; LLM Centre for Human Rights, Faculty of Law, University of Pretoria; Certificate of Advanced Human Rights on Disability Rights in an African Context Course - Centre for Human Rights, Faculty of Law, University of Pretoria
  • Assistant Lecturer in Laws, University of Dodoma, Tanzania; Advocate of the High Court of Tanzania; Member of the Tanganyika Law Society


1 Population indicators

1.1 What is the total population of Tanzania?1

According to the 2012 Population and Housing Census (PHC) for the United Republic of Tanzania, Tanzania has a total population of 44 928 923 of which 43 625 354 are in Tanzania Mainland and 1 303 569 in Tanzania Zanzibar. The male population constitutes 21 869 990 and the female population 23 058 933. 2

1.2 Describe the methodology used to obtain statistical data on the prevalence of disability in Tanzania and the criteria used to determine who falls within the class of persons with disabilities in Tanzania.
  • The 2012 Population and Housing Census (PHC) did not obtain data on the prevalence of disability in Tanzania.
  • Data on the prevalence of disability was obtained in the 2008 Tanzania Disability Survey,3 the first population-based comprehensive disability survey, which was intended to determine the prevalence and living conditions among people with activity limitations.

The report on the 2008 Tanzania Disability Survey analysed disability in a way that conforms to the description under the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Accordingly, the report regards persons with disabilities as:

  • [T]hose 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.4

The survey was based on the population aged 7 years and above. 5

1.3 What is the total number and percentage of people, women and children with disabilities in Tanzania?

According to the 2002 National Census, Tanzania in 2002 had a total population of 34.6 million people. With the 2,9 per cent intercensal growth rates, the total population of Tanzania was estimated to be 40.6 million persons in 2008. 6

  • Out of the population of 3 166 800, 7,8 per cent aged 7 years and above had some form of activity limitation. 7
  • In terms of gender, 8,2 per cent females and 8,5per cent males had some form of disability. 8
  • The statistical data in the 2008 Disability Survey did not capture the number and percentage of children with a disability. Tanzania’s United Nations Universal Periodic Review Report (UPR), reported a total of 746 183 children with various forms of disabilities for the period ending 2009. Of this number 388 015 were reported to be boys, and 358 168 were reported to be girls. 9
1.4 What are the most prevalent forms of disability in Tanzania?
  • The 2008 Disability Survey revealed the most prevalent forms of disability in Tanzania for the population aged 7 years and above. Difficulties in seeing were the most reported form of disability (3,7 per cent), followed by mobility (3,1 per cent), hearing (1,9 per cent), cognition (1,5 per cent) and communication (0,8 per cent).10
  • The survey did not reveal any significant variation on severity among sexes, except for seeing and mobility, the proportion reporting was higher for females than males.11 

2 International obligations

2.1. What is the status of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities in Tanzania?

Tanzania signed and ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on 30 March 2007 and 10 November 2009 respectively, and the Optional Protocol to the (CRPD) on 29 September 2008 and 10 November 2009 respectively. 12

2.2 If Tanzania has signed and ratified the CRPD, when is/was its country report due? Which government department is responsible for submission of the report? Has Tanzania submitted its report? If not, what reasons does the relevant government department give for the delay?
  • Following the country’s ratification of the CRPD, Tanzania’s first Country Report was due on 9 November 2011.
  • No report has been submitted to date.
  • The Department of Social Welfare, under the Ministry of Health and Social Welfare, is the responsible government department for the preparation and submission of country reports. The department started the process of gathering information, and it is not clear when the report will be ready for submission.
2.3 If Tanzania has submitted the report in 2.2 and if the Committee on the Rights of Persons with Disabilities has reviewed the report indicate if the Committee made any concluding observations and recommendations in Tanzania’s report. Was there a domestic effect in Tanzania on disability issues due to the reporting process?

As noted in 2.2 above, Tanzania has not submitted its report to date.

2.4 While reporting under various other United Nations instruments, the African Charter on Human and Peoples’ Rights or the African Charter on the Rights and Welfare of the Child, has Tanzania also reported specifically on the rights of persons with disabilities in its most recent reports? If so, have concluding observations adopted by the treaty bodies, addressed disability? If relevant, were these observations given effect to? Was mention made of disability rights in Tanzania’s United Nations Universal Periodic Review (UPR) report? If so, what was the effect of these observations or recommendations?

A noted irregularity in Tanzania’s United Nations’ Universal Periodic Review Report (UPR)13 was that the Constitution of the United Republic of Tanzania (the Constitution) does expressly prohibit discrimination on the ground of disability. The Bill of Rights in the Constitution does not expressly mention disability in article 13(5) (the non-discrimination article), but provides that:

For the purposes of this Article the expression ‘discriminate’ means to satisfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, colour, religion, sex or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications except that the word ‘discriminate’ shall not be construed in a manner that will prohibit the Government from taking purposeful steps aimed at rectifying disabilities (emphasis mine) in the society.

The word ‘disabilities’ in the latter part of this provision does not refer to persons with disabilities as a specific category of people subjected to discrimination, but refers to affirmative action to counter oppressive tendencies in general.

Tanzania reported in the UPR on the prevalence of disability. Some measures that were reported in the UPR include the adoption of the 2004 National Policy on Disability,14 the enactment of the Persons with Disabilities Act 9 of 2010 and the continued implementation of the National Action Plan on Care Services, Training and Protection for Vulnerable Children. A further measure that was reported was the adoption of the 2011 National Disability Mainstreaming Strategy for the implementation of the African Decade of Disability (of which Tanzania is signatory).

2.5 Was there any domestic effect in Tanzania’s legal system after ratifying the international and regional instruments in 2.4 above?

Tanzania adopted legislatives measures to give effect to her international obligations with regard to the following:

  • In 2009 Tanzania enacted the Law of the Child Act 21 of 2009 as a legislative response to her obligations under the CRC, as well as under the African Charter on the Rights and Welfare of the Child.
  • In 2010 Tanzania enacted the Persons with Disabilities Act 9 of 2010 as a legislative response to her obligation under the CRPD. The domestic measures of this act have to be implemented.
2.6 Do ratified international treaties automatically become domestic law under Tanzania’s legal system? If so, are there any cases where the courts applied international treaty provisions directly?

Tanzania follows a dualistic system in which provisions of international human rights treaties require a legislative process for purposes of domestication. Provisions of international human rights treaties have been incorporated through various pieces of legislation and policies. Courts in Tanzania have, in appropriate cases, given judicial notice to international instruments.15 The Tanzanian Courts have generally used international law as an interpretative tool.

In 1993, the Court of Appeal, while interpreting the constitutional right to bail in Director of Public Prosecutions v Daudi Pete,16 remarked that:

Since our Bill of Rights and duties was introduced into the Constitution under the Fifth Amendment in February, 1985, that is slightly over three years after Tanzania signed the Charter, and about a year after ratification, account must be taken of that Charter in interpreting our Bill of rights and duties.

The court further stated that:

It seems evident in our view that the Bill of Rights and Duties embodied in our constitution is consistent with the concepts underlying the African Charter on Human and Peoples’ Rights as stated in the Preamble to the Charter. 17

In the case of Paschal Makombanya Rufutu v The Director of Public Prosecutions,18 the High Court found that:

If there is any ambiguity or uncertainty in our law, then the courts can look at the international instruments as an aid to clear up the ambiguity and uncertainty seeking always to bring it into harmony with the international conventions.

In John Byombalirwa v Regional Commissioner, Kagera and Regional Police Commander, Bukoba19 the High Court held that, the provisions of Universal Declaration of Human Rights of 1948 (UDHR) should be consulted. The Court in particular stated that:

If there is any doubt as to the obligation of the law enforcement agencies and other members of the executive branch of the government in returning the seizure goods to the suspects who have been cleared by courts I wish to point to Art. 17(2) of the Universal Declaration of Human Rights of 1948 which provides that, no one shall be arbitrarily deprived of his property.

In 2005, the High Court in Legal and Human Rights Centre, Lawyers’ Environment Action Team (LEAT) and National Organisation for Legal Assistance v Attorney General,20 confirmed the status of the UDHR in the Constitution of Tanzania. It held that:

Tanzania is a party to various international Human Rights Instruments. The Universal Declaration of Human Rights (UDHR), which is the core of the International Human Rights law, is incorporated in article 9(f) of our constitution. Article 7 of the UDHR provides for equality before the law and bars discrimination. Article 21 of UDHR provides for the right to participate in the government of one’s country directly or by (sic) freely chosen representative.

These cases demonstrate the commitment of the courts in Tanzania with regard to applying and incorporating international human rights instrument provisions into domestic law.

2.7 With reference to 2.4 above, has the United Nations CRPD, or any other ratified international instrument, or parts thereof, been incorporated verbatim in national legislation? Provide details.
  • Tanzania enacted the Persons with Disabilities Act in 2010.
  • This Act reflects in various provisions the CRPD and other international instruments. This is evident from section 4 of the Act, which sets-out the principles of the Act.21 

3 Constitution

3.1. Does Tanzania’s Constitution contain provisions that directly address disability? If so, list the provisions and explain how each provision addresses disability.
  • The Constitution of the United Republic of Tanzania (the Constitution),22 does expressly mention disability in article 11.
  • Article 11 does not fall within the Bill of Rights23 of the Constitution. 24
3.2 Does Tanzania’s Constitution contain provisions that indirectly address disability? If so, list the provisions and explain how each provision indirectly addresses disability.
  • The Bill of Rights in the Constitution does not expressly mention disability or persons with disabilities.
  • Reference in the Constitution to ‘all human beings’, ‘all persons’, ‘every person’, ‘every citizen’, ‘no person’, and ‘any person’ can be interpreted to include persons with disabilities. 

4 Legislation

4.1 Does Tanzania have legislation that directly addresses disability? If so, list the legislation and explain how the legislation addresses disability.
  • Tanzania enacted disability specific legislation in 2010, the Persons with Disabilities Act. The Act was enacted particularly to make provisions for the health care, social support, accessibility, rehabilitation, education and vocational training, communication, employment or work protection and promotion of basic rights for persons with disabilities. 25
  • The Act provides amongst other things for: (i) principles and obligations for realisation of the rights of persons with disabilities;26 and (ii) it sets out a broad institutional arrangement operating at National level, that is the National Advisory Council for Persons with Disabilities down to grass-root level, that is village and Mtaa (street) Committees all with mandates to amongst others, protect and promote all matters relating to the welfare and development of persons with disabilities. 27

Along with the Persons with Disabilities Act, several other legislation equally contains direct provisions addressing disabilities. The following table lists some of these laws:

Persons with Disabilities Act

Disability specific legislation. A comprehensive piece of law that directly provides for disability related matters.

Employment and Labour Relations Act 6 of 2004.

The Act expressly prohibits discrimination on multiple grounds including disability. In section 7(4) employers are forbidden to discriminate directly or indirectly against an employee, in any employment policy or practice, on any of the following grounds: colour, nationality, tribe or place of origin, race, national extraction, social origin, political opinion or religion, sex, gender, pregnancy, marital status or family responsibility, disability, HIV/Aids, age or station of life.

Section 37(3)(b)(ii) therein provides that it shall not be a fair reason to terminate the employment of an employee for reasons related to disability.

 

Law of the Child Act 21 of 2009.

This Act similarly outlines multiple grounds including disability on which grounds, discrimination is not allowed.

In section 5(2), a person shall not discriminate against a child on the grounds of gender, race, age, religion, language, political opinion, disability, health status, custom, ethnic origin, rural or urban background, birth, socio-economic status, being a refugee or of another status.

The Act also in section 16(p) considers a child as in need of care and protection if that child is under the care of a person with a disability and such disability hinders the person from exercising proper care or guardianship.

The Penal Code, Cap 16 R.E 2002.

According to section 137, any person who, knowing a woman to be an idiot or imbecile, has or attempts to have unlawful sexual intercourse with her in circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the woman was an idiot or imbecile, commits an offence and is liable to imprisonment for 14 years, with or without corporal punishment.

Mental Health Act 21 of 2008

Another broad piece of legislation providing comprehensively on all matters related to mental disorders. It was particularly enacted to provide for the care, protection and management of persons with mental disorders and to provide for their voluntary or involuntary admission in a mental health care facility.

The Act has established the Mental health board, mandated to amongst other things supervise and monitor the provision of mental health care services and assurance of quality by inspecting facilities within the mental health care facilities.

4.2 Does Tanzania have legislations that indirectly address disability? If so, list the main legislation and explain how the legislation relates to disability.

National Education Act 25 of 1978

Section 56(l) guarantees every Tanzanian citizen the right to receive such category, nature and level of national education as his ability may permit him.

Subsection 2 determines that no person may within Tanzania, be denied an opportunity to obtain any category, nature or level of national education on the grounds of his race, religion, political or ideological beliefs.

The National Elections Act, Cap 343 R.E 2010

Persons with disabilities are covered under section 10 of the Act which determines that all citizens who have attained the age of 18 years, irrespective of ones’ ability or disabilities, are entitled to register as voter(s).

The Commission For Human Rights And Good Governance Act 7 of 2001

Section 6(l) mandates the Commission to carry out functions including the following:

  • to Promote within the country the protection and the preservation of human rights;
  • to receive complaints in violation of human rights generally;
  • to investigate or inquire into complaints concerning practices or actions by persons holding office in the service of the government, public authorities or other public bodies, including private institutions and private individuals where those complaints allege abuse of power, injustice, unfair treatment of any person, whether a complainant or not, in the exercise of their official duties;
  • to promote ratification of or accession to treaties or conventions on human rights, harmonisation of national legislation and monitor and assess compliance, within the United Republic, by the government and other persons, with human rights standards provided for in treaties or conventions or under customary international law to which the United Republic of Tanzania has obligations; and
  • subsection (2) is to the effect that, without prejudice to Provisions of subsection (1) the Commission shall, generally in relation to members of the public, use the Commission's good office to promote, protect and where necessary to provide assistance to persons whose human rights have or are in imminent danger of being violated.

5 Decisions of courts and tribunals

5.1 Have the courts (or tribunals) in Tanzania ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases indicating what the facts, the decision(s), the reasoning and impact (if any) the cases have had.
  • Unable to report on the extent to which courts in Tanzania have decided on issues relating to disabilities.

6 Policies and programmes

6.1 Does Tanzania have policies or programmes that directly address disability? If so, list each policy and explain how the policy addresses disability.

Tanzania had since 2004 adopted the following policies or programmes:

  • National Policy on Disability;28
  • Construction Industry Policy,29 which highlights the need for building regulations to ensure accessibility to built environments for PWDs; and
  • National Strategy for Growth and Reduction of Poverty (NSGRP),30 which recognises disability as a cause of poverty.
6.2 Does Tanzania have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.

Some of the programmes and plans include, the National Action Plan on Care Services, Training and Protection for Vulnerable Children,31 the National Poverty Eradication Strategy32 and the National Women and Gender Development Policy. 33

7 Disability bodies

7.1 Other than the ordinary courts or tribunals, does Tanzania have any official body that specifically addresses the violation of the rights of people with disabilities? If so, describe the body, its functions and powers.
  • The Department of Social welfare under the Ministry of Health and Social Welfare is the specific government department which has a mandate to address issues relating to welfare of persons with disabilities.
  • The Commission for Human Rights and Good Governance, a national human rights institution, has a wider mandate to address violations of human rights in general.
  • The Persons with Disabilities Act makes provision for a mechanism for a broader institutional framework:34
  • The Act establishes the National Advisory Council for Persons with Disabilities to oversee, at a National level, amongst other mandates, the promotion of implementation and the equalisation of opportunities for persons with disabilities.
  • The Persons with Disabilities (General) Regulations35 will implement the council.
7.2 Other than ordinary courts or tribunals, does Tanzania have any official body that, though not established to specifically address the violation of the rights of people with disabilities, can nonetheless do so? If so, describe the body, its functions and powers.
  • The Commission for Human Rights and Good Governance is a constitutional body,36 established to address violations of human rights.37 Its mandate includes: (i) the promotion within the country of the protection and the preservation of human rights; (ii) receiving complaints on the violation of human rights generally; (iii) inquiring into complaints alleging violation of human rights; and (iv) in case of necessity, it can institute proceedings in a court of law against any person or body alleged to have violated human rights.
  • The Commission, at its headquarters, has for many years maintained a desk for ‘special group rights’, where the rights of PWDs were directly addressed. Recent developments in the field of disability established a new exclusive desk for addressing disability issues.

8 National human rights institutions

8.1 Does Tanzania have a Human Rights Commission or an Ombudsman or a Public Protector? If so, does its remit include the promotion and protection of the rights of people with disabilities? If your answer is yes, also indicate whether the Human Rights Commission or the Ombudsman or Public Protector has ever addressed issues relating to the rights of persons with disabilities.
  • See 7.1 and 7.2 above.
  • Tanzania has a Commission for Human Rights and Good Governance, a constitutionally created body.38 The Commission is mandated, amongst others, to promote within Tanzania the protection and the preservation of human rights. 39
  • The Commission also has a mandate to promote ratification of, or accession to treaties or conventions on human rights, monitor and assess compliance by the government and other persons with human rights standards provided for in treaties or conventions or under customary international law to which Tanzania has obligations. 40

9 Disabled peoples organisations (DPOs) and other civil society organisations

9.1 Are there organisations that represent and advocate for the rights and welfare of persons with disabilities in Tanzania? If so, list each organisation and describe its activities.

Tanzania has a total of ten Disabled Peoples’ Organisations (DPOs) that represents and advocate for rights and welfare of people with disabilities. These organisations are:

  • Tanzania League of the Blind (TLB)
  • Tanzania Association of the Physically Handicap (TAPH)
  • Tanzania society of the Deaf (TAD)
  • Tanzania Association of the Deaf-Blind (TASODEB)
  • Kilimanjaro Association of Spinal cord Injuries (KASI)
  • Tanzania Association for the Mentally Handicapped (TAMH)
  • Psoriasis Association of Tanzania (PSORATA)
  • Tanzania Users and Survivors of Psychiatric Organisation(TUSPO)
  • Association of Spinal bifida and Hydrocephalus Tanzania (ASBAHT)
  • Tanzania Albino Society (TAS)
9.2 In the countries in your region, are DPOs organised or coordinated at a national and/or regional level?

At national level, DPOs are organised to form the Tanzania Federation of Disabled Peoples’ Organisations (TFDPO), a non-governmental federation established in 1992. This Organisation is as an umbrella organisation with ten national DPOs as members.41 The organisation’s main objective is to afford a common voice with regard to issues of lobbying and advocacy for the rights and welfare of PWDs.

9.3 If Tanzania has ratified the CRPD, how has it ensured the involvement of DPOs in the implementation process?

In Tanzania, DPOs and their umbrella organisation TFDPO, commonly known as SHIVYAWATA, regularly take part in discussions with the government on issues affecting the lives of people with disabilities. 42

9.4 What types of actions have DPOs themselves taken to ensure that they are fully embedded in the process of implementation?

Lobbying, advocacy and awareness-raising activities amongst DPOs and PWDs themselves, remains the main cause of action to promote awareness to the needs of PWDs and to develop models that will enable their effective participation in the process.

9.5 What, if any, are the barriers DPOs have faced in engaging with implementation?

The following factors account for the major challenges DPOs face in their need to take an effective role in implementation process: (i) financial constraints necessary for mobilisation; (ii) lack of community awareness and involvement on matters concerning PWDs; and (iii) inadequate representation in decision-making bodies, from grassroots to national level.

9.6 Are there specific instances that provide ‘best-practice models’ for ensuring proper involvement of DPOs?
  • PWDs and DPOs are concerned that the Persons with Disabilities Act only affords minimum assurance that they will in future be given wider platforms for their rights and being fully included.
  • These concerns are due to the very broad institutional framework set-out in the Act, which do not address the inclusion of PWDs and DPOs in their compositions. This will minimise their influence in future processes.
9.7 Are there any specific outcomes regarding successful implementation and/or improved recognition of the rights of persons with disabilities that resulted from the engagement of DPOs in the implementation process?
  • The enactment of the Persons with Disabilities Act and its most recent regulations of May 2013 are directly linked to the DPOs’ engagement in the CRPDs’ implementation.
9.8 Has your research (for this project) shown areas for capacity building and support (particularly in relation to research) for DPOs with respect to their engagement with the implementation process?

No.

9.10 Are there recommendations that come out of your research as to how DPOs might be more comprehensively empowered to take a leading role in the implementation processes of international or regional instruments?

No.

9.11 Are there specific research institutes in your region that work on the rights of persons with disabilities and that have facilitated the involvement of DPOs in the process, including in research?
  • The Comprehensive Community Based Rehabilitation in Tanzania (CCBRT), a locally registered non-governmental organisation, has since its establishment in 1994 been engaged in research and rehabilitation activities in Tanzania.43
  • CCBRT comprises of a well-established disability hospital in Dar es Salaam; community programmes across Tanzania; a training and advocacy unit for among other things PWDs.
  • Yearly approximately 120 000 adults, children with disabilities and their caregivers receives a better quality of life through CCBRT services.44

10 Government departments

10.1 Do you have government departments that are specifically responsible for promoting and protecting the rights and welfare of person with disabilities? If so, describe the activities of the departments.

As indicated in 7.1 above, the Department of Social Welfare, under the Ministry of Health and Social welfare, has a mandate to promote and protect the rights and welfare of PWDs in Tanzania.

11 Main human rights concerns of people with disabilities

11.1 What are the contemporary challenges of persons with disabilities in Tanzania? (For example, in some parts of Africa ritual killing of certain classes of PWDs such as people with albinism occurs. Tanzania has been in the headlines in this regard. We should have a way of interrogating customary practices that discriminate, injure and kill persons with disabilities).

Around 2008 persons with albinism, in particular those in rural Tanzania, experienced killings virtually due to the irrational belief that their body parts carry the potential for economic wealth. Nearly 60 incidents were reported, and criminal charges instituted against the suspected.45 Many people still express their grievances on the manner the government responded to the incidents, and the manner in which the cases are delayed in the judiciary, to date, well after four years the status of many of those cases are unknown.

11.2 How does Tanzania respond to the needs of persons with disabilities with regard to the areas listed below?

Access to public buildings, premises, transport services, stations and platforms services and other recreational services.

The question particularly in respect of access to public buildings, started to be addressed in 2003 when the National Construction Industry Policy was adopted. 46

The policy acknowledged the absence of appropriate building regulations that would ensure adherence to accessibility standards.

Nevertheless, the question is now comprehensively addressed in law pursuant to the enactment of the Persons with Disabilities (General) Regulations of 2012.

These regulations extensively address accessibility in part IX (regulations 49-55), in which it is explicitly required, in mandatory terms that all public buildings, premises, transport services, stations and platform services, and other recreational services should be accessible to persons with disabilities.

Access to education and vocational training.

The 2004 National Policy on Disability sets out in lucid terms the policy objective that the government in collaboration with stakeholders shall improve skills training for people with disabilities.

This policy objective was concretised under the Persons with Disabilities Act, which under sections 27-29 makes it a fundamental entitlement for PWDs to enjoy as a matter of rights, education and training services.

Further, the Act has established the National Fund for Persons with Disabilities to finance amongst other things education and vocational training for persons with disabilities. 47

Furthermore, the most recent 2012 Persons with Disabilities (General) Regulations under part IV (regulation 11-21) provides for equality in education, support including school transport facilities for children with disabilities, accessibility, as well as adopting budget guidelines to explicitly mention disability to the government budget for education sector.

 

Access to employment

Regarding access to employment for persons with disabilities, the Employment and Labour Relations Act 6 of 2004, in unequivocal terms prohibits discrimination on grounds of Disability.48 Accordingly, employers who are convicted of having discriminated against any employee on the ground of disability shall be liable for a fine not exceeding five Million Tanzania Shillings, approximately four thousand (USD).

The Persons with Disabilities Act guarantees PWDs’ access to employment in broader terms by empowering the minister responsible for persons with disabilities, in collaboration with the minister responsible for employment, to enact regulations requiring employers with the work force of twenty and above to employ persons with disabilities based on a quota system and to ensure that 3 per cent of it constitutes persons with disabilities.49

These regulations are now in place and as envisaged under the Act, they, under part VIII (regulations 40-48) extensively provide for employment based on a quota system, complaint mechanism and career advancement.

11.3 Does Tanzania provide for disability grants or other income support measures for persons with disabilities?

Since independence, Tanzania has never put in place any form of grants, or income supporting measures for persons with disabilities. Recently under section 57 of the Persons with Disabilities Act, a mechanism was established for a National Fund for Persons with Disabilities.50 The fund has not yet been established.

It is foreseeable that when the fund is established, some form of the grant/funds will be allocated particularly to finance education and vocational training, a rehabilitation programme on disability, issuing grants to associations of persons with disabilities and financing researches on disabilities.51

11.4 Do people with disabilities have a right to participation in political life (for example, political representation and leadership, and voting independently) in Tanzania?

Article 21 of the 1977 Constitution guarantees every Tanzanian, including persons with disabilities, the right to take part (directly or indirectly) in matters relating to the governance of the country. This right has further been explained under the National Election Act, Cap 343 R.E 2010, which sets out voter qualifications. Under Section 10 of this Act all citizens who have attained the age of 18 years, irrespective of ones’ ability or disabilities, are entitled register as a voter.

Section 51 of the Persons with Disabilities Act, contains provisions with regards to PWDs political rights.52

12 Future perspective

12.1 Are there any specific measures with regard to persons with disabilities being debated or considered in Tanzania at the moment?

The need for effective implementation of the Persons with Disabilities Act and the regulations thereof are being considered.

12.2 What legal reforms are being proposed? Which legal reforms would you like to see in Tanzania? Why?

See 12.1 above.

 


1. The United Republic of Tanzania is a union of Tanganyika (Tanzania Mainland) and Zanzibar (Tanzania Zanzibar).

2. The Government of Tanzania, 2012 Population and Housing Census Report http://www.nbs.go.tz/sensa/PDF/Census%20General%20Report%20%2029%20March%202013_Combined_Final%20 for%20Printing.pdf (accessed 12 May 2013).

3. Tanzania 2008 Disability Survey Report: Tanzania 2008 Disability Survey 10 June 2010.pdf (accessed 15 May 2013).

4. 2008 Disability Survey (n 3 above) iv-v.

5. 2008 Disability Survey (n 3 above) 5.

6. 2008 Disability Survey (n 3 above) 16.

7. 2008 Disability Survey (n 3 above) 5.

8. 2008 Disability Survey (n 3 above) 5.

9. Tanzania’s United Nations Universal Periodic Review Report (19 July 2011) A/HRC/WG.6/12/TZA/1 (2011).

10. Population and Housing Census Report (n 2 above) 63.

11. Population and Housing Census Report (n 2 above) 64.

12. UN Enable Convention and Optional Protocol Signatures and Ratifications http://www.un.org/disabilities/countries.asp?navid=12&pid=166 (accessed 31 June 2013).

13. Tanzania’s UPR Report (n 9 above).

14. The Government of Tanzania, National Policy on Disability (2004) http://www.tanzania.go.tz/pdf/NATIONAL%20POLICY%20ON%20DISABILITY.pdf (accessed 7 May 2013).

15. CB Murungu ‘The place of international law in human rights litigation in Tanzania’ in M Killander (ed) International law and domestic human rights litigation in Africa (2010) 61-63.

16. [1993] TLR 22 34-35.

17. At 35.

18. Miscellaneous Civil Cause No 3 of 1990 (unreported) 10-11, partly reproduced in Murungu (n 15 above) 63.

19. [1986] TLR 73 84.

20. High Court of Tanzania, at Dar es Salaam (Main Registry) Misc Civil Cause No 77 of 2005 (unreported) 39.

21. Section 4: ‘The principles of this Act shall be:

(a) respect for human dignity, individual's freedom to make own choices and independency of persons with disabilities;

(b) non discrimination;

(c) full and effective participation and inclusion of persons with disabilities in all aspects in the society;

(d) equality of opportunity;

(e) accessibility;

(f) equality between men and women with disabilities and recognition of their rights and needs; and

(g) provide basic standard of living and social protection’.

22. 1977 (as amended from time to time).

23. While disability is expressly mentioned in article 11, The Bill of Rights starts from article 12-30 in the Constitution of the United Republic of Tanzania.

24. Article 11(1): ‘The state authority shall make appropriate provisions for the realisation of a person’s right to work, to self education and social welfare at times of old age, sickness or disability and in other cases of incapacity. Without prejudice to those rights, the state authority shall make provisions to ensure that every person earns his livelihood’.

25. Preamble to the Act.

26. Secs 4-7 of the Act .

27. Secs 8-14, together with the 1st, 2nd, 3rd and 4th Schedules to the Act.

28. n 14 above.

29. The Government of Tanzania, Construction Industry Policy (2003) http://www.ncc.or.tz/CI_P.pdf (accessed 18 May 2013).

32. NSGRP (n 30 above).

33. The Government of Tanzania, Policy on Women in Development in Tanzania (1992) http://www.tanzania.go.tz/pdf/policyonwomenindevelopment.pdf; and the Government of Tanzania, National Strategy for Gender Development http://www.mcdgc.go.tz/data/Tanzania_-_National_Strategy_for_Gender_Development.pdf (both accessed 3 August 2013).

34. Secs 8 -14.

35. Created under section 61 of the Persons with Disabilities Act.

36. Art 129(1) of the Constitution provides as follows:

‘There shall be a Commission to be known as the Commission for Human Rights and Good Governance, whose functions shall be prescribed in Article 130 of this Constitution.

Art 130(1) provides:

‘Commission for Human Rights and Good Governance shall discharge the following functions:

(a) to sensitise countrywide about preservation of human rights and duties to the public in accordance with the Constitution and the laws of the land;

(b) to receive complaints in relation to violation of human rights in general;

(c) to conduct inquiry on matters relating to infringement of human rights and violation of principles of good governance;

(d) to conduct research, to impart or disseminate to the public countrywide education in respect of human rights and good governance;

(e) if necessary, to institute proceedings in court in order to prevent violation of human rights or to restore a right that was caused by that infringement of human rights, or violation of principles of good governance;

(f) inquire into the conduct of any person concerned and any institution concerned in relation to the ordinary performance of his duties or functions or abuse of the authority of his office;

(g) to advise the Government and other public Institutions and private sector in respect of human rights and good governance;

(h) to take necessary action in order to promote and enhance conciliation and reconciliation among persons and various institutions appearing or being brought before the Commission.

37. Commission for Human Rights and Good Governance Act 2001, Cap 391 R.E 2002.

38. n 36 above.

39. Sec 6(1)(a) of the Act (n 37 above).

40. Sec 6(1)(l) of the Act (no 37 above).

41. TFDPO website: http://www.shivyawata.or.tz/ (accessed 19 May 2013).

42. ILO publication http://www.ilo.org/wcmsp5/groups/public/@ed_emp/@ifp_skills/docum ents/p ublication/wcms_111461.pdf (accessed 19 May 2013). Check link and please provide a full citation.

43. CCBRT website: http://www.ccbrt.or.tz/ (accessed 10 May 2013).

44. As above.

45. EB Makulilo E ‘ Albino k illings in Tanzania: Illogical thinking a nd racis m?’ Peace & Justice Conflict Theory and Analysis (2004) 594 1 http://www.academia.edu/223271/ALBINO_KILL INGS_IN_TANZANIA 4 (accessed on 29 July 2013).

46. (n 29 above).

47. Sec 57(3)(a) of the Persons with Disabilities Act.

48. Sec 7 of the Employment and Labour Relations Act.

49. Sec 31(2) of the Persons with Disabilities Act.

50. Sec 57(1) of the Persons with Disabilities Act provides: ‘there shall be within the office of the Commissioner, a Fund to be known as the National Fund for Persons with Disabilities.

51. Sec 57(3) of the Persons with Disabilities Act.

52. Sec 51 of the Persons with Disabilities Act provides:

‘(1) Every person with disability who has attained the age of eighteen years and above shall be entitled to enjoy and exercise political rights and opportunity as any other citizen without any form of discrimination.

(2) Subject to subsection (1), a person with a disability shall have a right to vote, hold public office and otherwise participate in the political rights and opportunity as any other citizen without any form of discrimination.

(3) The Minister shall, after consultation with the Council and National Electoral Commission -

(a) ensure that the right and opportunity for persons with disabilities to vote and be elected in public office is guaranteed by-

(i) ensuring that voting procedure, facilities and materials are appropriate and accessible to understand and use;

(ii) ensuring that voter registration locations are accessible to persons with disabilities;

(iii) ensuring that all polling places in each voting centre have accessible requirements to voters with disabilities including accommodation of voters who use wheelchairs and devices for persons with low vision and tactile ballot templates for visually impaired and deaf blind persons;

(iv) providing training for poll workers on the rights of persons with disabilities and the practical means of assuring their rights;

(v) ensuring that voters with disabilities have the same degree of information available when casting their ballot as others;

(vi) encouraging and providing reasonable accommodation to persons with disabilities to stand for elections, and to hold office and perform all public functions at all levels in the Government;

(vii) guaranteeing the free expression of the will of the persons with disabilities as electors, and where necessary, at their request, allowing assistance in voting by a person of their own choice;

(viii) setting up criteria and procedures to be applied in appointing qualified persons with disabilities to be elected or be appointed to represent persons with disabilities in all decision and policy making process during the elections, through affirmative action or special prescribed arrangements;

(b) promote actively an environment on which persons with disabilities can effectively and fully participate in the conduct of public affairs without discrimination and encourage their participation in the public affairs inc1uding-

(i) participation in non-governmental organizations and association concerned with public and political life of the country including the activities and administration of political parties;

(ii) Forming and joining organizations of persons with disabilities to represent their interest at all levels.

(4) Where a voting place under this section is inaccessible to persons with disabilities, alternative location shall be identified and publicized to be used by such persons.

(5) The Government shall initiate and encourage appointment of persons with disabilities in the organs of the Government at all levels’.


  • Ilze Grobbelaar-du Plessis
  • BIur LLB LLM LLD (UP)
  • Department of Public Law, University of Pretoria
  • Chazanne Grobler
  • BA LLB (UP)
  • Academic Associate, Department of Public Law, University of Pretoria


1 Population indicators

1.1 What is te total population of South Africa?

According to the 2001 Census the total population of South Africa was 50 586 757.1 Data of the 2011 Census is not yet available. According to the General Household Survey of 2011 the total population of South Africa was 51 770 560. 2

1.2 The methodology used to obtain the statistical data on the prevalence of disability in South Africa, and the criteria used to determine who falls within the class of persons with disabilities in South Africa.

A National Census is used to obtain data on the prevalence of disability in South Africa:

  • In the 2001 Census, measurement of disability was based on the definition from the 1980 WHO International Classification of Impairments, Disabilities and Handicaps (ICIDH). 3
  • The 2011 Census used a set of disability questions developed by the Washington Group,4 which measured the type and degree of difficulties experienced by people in South Africa. The definition of disability in the 2011 Census was broader than that of the previous 2001 Census. 5
  • The data from the 2001 Census and 2011 Census are not comparable due to the change in approach in the disability-related questions.
1.3 What is the total number and percentage of people, women and children with disabilities in South Africa?

According to the 2001 Census, 2 255 982 (approximately 2.3 million people, therefore 5 per cent of the South African population) were reported to have a serious disability: 6

  • 52 per cent of the total number of persons with disabilities in South Africa, were women (1 173 939 women with a disability).
  • 8,5 per cent of the total number of persons with disabilities, were children between the ages 0 to 9 years old, and 13,6 per cent of persons with disabilities were youth between the ages 10-19 years that are living with a disability.7

According to the 2011 Census, which used the new classification system (see 1.2 above), 2 339 000 people in South Africa, therefore 5,2 per cent of the population (aged 5 years and older) are classified as people with a disability:

  • 1 260 000 women are reported to be living with a disability, therefore 5,4 per cent of the women in South Africa are women living with a disability.8
1.4 What are the most prevalent forms of disability in South Africa?

According to the 2001 Census of the total percentage of persons with disabilities, the following was recorded:

  • Visual impairment - 32,1 per cent;
  • Hearing impairment - 20,1 per cent;
  • Communication impairment - 6,5 per cent;
  • Physical impairment - 29,6%;
  • Intellectual impairment - 12,4%; and
  • Emotional impairment - 15,7%.

Based on the sample of the 2011 General Household Survey, of the total of 45 345 000 South Africans aged 5 years and older who reported some degree of impairment or difficulty with carrying out activities: 9

  • 3 001 000 had sight impairments;
  • 840 000 had hearing impairments;
  • 1 028 000 experienced difficulty walking;
  • 1 107 000 reported challenges remembering and concentrating;
  • 1 564 000 reported challenges with self-care;
  • 364 000 experienced difficulties with communication;
  • 4 271 000 made use of spectacles or contact lenses;
  • 110 000 used hearing aids;
  • 347 000 made use of walking sticks or walking frames;
  • 83 000 used wheelchairs; and
  • 24 000 used other assistive devices.

2 International obligations

2.1 What is the status of the United Nation’s Convention on the Rights of People with Disabilities (CRPD) in South Africa? The South African position with regard to signing and ratifying the CRPD and its Optional Protocol is.

South Africa signed the CRPD and its Optional Protocol on 30 March 2007, and subsequently ratified both on 30 November 2007. The Convention entered into force on 3 May 2008. 10

2.2 If South Africa has signed and ratified the CRPD, when is/was its country report due? Which government department is responsible for the submission of the report? Has South Africa submitted its report? If not, what reason does the relevant government department give for the delay?
  • The Country Report was due two years after the CRPD was entered into force; therefore it was due by 3 May 2010.
  • The Department of Women, Children and People with Disabilities (DWCPD) is currently responsible for submitting the report.
  • The First Draft Country Report to the UN on the implementation of the CRPD was released on 26 November 2012 for public comment, and the aim is to complete and deposit the final First Country Report during 2013.
  • The reason for the delay is mentioned as being due to changes in organisational arrangements with the transition from the Office on Status of Disabled People to the DWCPD. 11
2.3 If South Africa has submitted the report in 2.2 and if the Committee on the Rights of Persons with Disabilities has reviewed the report, indicate if the Committee made any concluding observations and recommen-dations to South Africa’s report. Was there a domestic effect in South Africa on disability issues due to the reporting process?

South Africa’s country report has not been submitted. This means no observation or recommendations were made by the Committee on the Rights of Persons with Disabilities, and consequently there is no domestic effect on disability issues due to the reporting process.

2.4 While reporting under various other United Nation’s instruments, the African Charter on Human and Peoples’ Rights or the African Charter on the Rights and Welfare of the Child, has South Africa also reported specifically on the rights of persons with disabilities in its most recent reports? If so, have concluding observations adopted by the treaty bodies, addressed disability? If relevant, were these observations given effect to? Was mention made of disability rights in South Africa’s UN Universal Periodic Review (UPR)? If so, what was the effect of these observations or recommendations?
UN Instruments
  • Convention on the Rights of the Child (CRC)12

In 1999 South Africa submitted a State Report, and in 2000 Concluding Observations were adopted. In the Concluding Observations of the Committee on the Rights of the Child,13 the Committee mentioned in several instances the rights of children with disabilities, and mention was made of the positive aspect of ‘Curriculum 2005’.14 The Committee raised concerns with regard to the data collection mechanism, which was insufficient to afford a systematic and comprehensive collection of disaggregated quantitative and qualitative data for all areas covered by the Convention in relation to all groups of children in order to monitor and evaluate progress achieved, and assess the impact of policies adopted with respect to children. The Committee recommended that the system of data collection must be reviewed with a view to incorporate all the areas covered by the Convention.15 Furthermore, the Committee raised the point that the principle of non-discrimination, in article 2 of the CRC, is reflected in the Constitution of the Republic of South Africa, 1996 (the Constitution) and South African legislation, but raised their concern that insufficient measures were in place to ensure that all children are guaranteed access to education, health and other social services.16 Lastly, the Committee raised the concern that the legal protection, facilities, and services for children with disabilities, and in particularly mental disabilities, are insufficient and made the following recommendations: 17

  • South Africa should reinforce its early identification programmes to prevent disabilities;
  • establish special education programmes for children with disabilities; and
  • further encourage their inclusion in society and seek technical cooperation for the training of professional staff working with and for children with disabilities from, inter alia, UNICEF and WHO.

These observations and recommendations have been given effect to, however some remain a challenge. Data collection and the disaggregation of disability-related statistics remain a challenge, but the DWCPD is trying to finalise a monitoring and evaluation framework to facilitate the standardisation of disaggregating data.18 The National Strategy on Screening, Identification, Assessment and Support (SIAS) of 2008 has been developed in response to the inclusive education policy’s call for an overhaul of the process of identifying, assessing and enrolling of learners in special schools and to curb the unnecessary placement of learners in special schools. The strategy is also responding to the enhancement of the nature and quality of support that has to be provided to learners who require additional support.19 The Children’s Act 38 of 2005 specifically recognises the special needs of children with disabilities. 20

  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 21

South Africa’s latest Country Report was submitted in 2010. According to the Country Report, black women and women with disabilities are affected the most by the unequal legacy of South Africa.22 The report specifically made mention of women with disabilities in the workplace. The Public Service Handbook on Reasonable Accommodation for People with Disabilities in the Workplace, and the Job Access Strategic Framework on the Recruitment, Employment and Retention of Persons with Disabilities in the Public Service, aim at ensuring that the Public Service meets its minimum 2 per cent target for the employment of people with disabilities in the workplace, as well as the minimum 2 per cent representation of women with disabilities in senior management levels in the Public Service.23 According to the Report the South African Government has established the mainstreaming of the 1997 Integrated National Disability Strategy White Paper and guidelines through the former Office on the Status of Disabled Persons in the Presidency. 24

Regional Instruments
  • African Charter on Human and Peoples’ Rights25

According to article 18 of the African Charter on Human and Peoples’ Rights the aged and persons with disabilities shall have the right to special measures of protection in keeping with their physical needs. In the First Periodic Report it was mentioned that South Africa had attempted to comply with article 18 of the Charter:

  • Mention was made of sub-programmes responsible for subsidising workshops for the blind and work centres for people with disabilities.
  • Various policy guidelines that affect the lives of people with disabilities have been developed. 26

The report serves as a framework within which rehabilitation services can be provided, and further serves as a vehicle to mobilise resources for the establishment and provision of medical rehabilitation services. Standardisation of Provision of Assistive Devices (Technology)27 in South Africa was highlighted in the report, which can play a role in ensuring equitable distribution of assistive devices in the country. The report further stated that three booklets on disability prevention were being field-tested. Sign language training for primary health care workers,28 along with the audiotapes with HIV/AIDS messages,29 and assistive devices30 have been provided in order to comply with article 18. Furthermore the accessibility of health facilities has been prioritised. 31

UN Universal Periodic Review (UPR)

South Africa was last reviewed by UPR on 31 May 2012. During this session none of the 29 recommendations, made by the recommending states, mentioned disability rights. 32

2.5 Was there any domestic effect on South Africa’s legal system after ratifying the international or regional instrument in 2.4 above?

According to the Constitution it is clear that South Africa follows a dualistic approach and requires the incorporation of an international instrument unless it is

‘self-executing’.33 The Constitution includes provisions on the role of international law with regard to the interpretation of the Bill of Rights and statutory interpretation:

  • Section 39(1) of the Constitution provides that when interpreting the Bill of Rights a court, tribunal or forum: a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; b) must consider international law; and c) may consider foreign law.
  • Section 231(1) of the Constitution provides that the negotiating and signing of all international agreements is the responsibility of the national executive. According to section 231(2) an international agreement binds the Republic only after it has been approved by resolution in Parliament by both the National Assembly and the National Council of Provinces. 34
  • Section 231(4) of the Constitution provides that any international agreement becomes law in the Republic when it is enacted into law by national legislation. 35
  • Section 233 of the Constitution further provides that when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law, over any alternative interpretation that is inconsistent with international law.

Applying the above duties and obligations specifically to the international instruments (mentioned in 2.4 above) by ratifying CEDAW, South Africa committed herself to undertake a series of measures to end discrimination against women in all forms.36 In order to ratify CEDAW, the General Law Fourth Amendment 132 of 1993 was enacted, which removed all traces of legislative discrimination against women.

Legislation that specifically deals with equality in South Africa reflects deliberate endeavours to incorporate the objectives and specific provisions of CEDAW in South African domestic law. In this regard the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; the Recognition of Customary Marriages Act 120 of 1998 and customary law of succession were enacted. Other relevant laws include the Preferential Procurement Policy Framework Act 5 of 2000 and the Broad-Based Black Economic Empowerment Act 53 of 2003.37 The objectives of CEDAW and its specific provisions have also been incorporated into the South African National Policy Framework for Women’s Empowerment and Gender Equality and other transformation policies. This includes the National Skills Development Strategy, Codes of Good Practice on Black Economic Empowerment, local government policies, and policies relating to gender parity in integrated development plans and processes.38

States parties to the CRC are obliged to develop and undertake all actions and policies in the light of the best interests of the child.39 The Constitution makes provision in section 28 for the rights of the child and clearly reflects the CRC. South Africa has recently adopted a comprehensive law with the enactment of the Children's Act 38 of 2005.40 This act is in part fulfilment of the obligations set out in the CRC and the ACRWC.41

2.6 Do ratified international treaties automatically become domestic law under your legal system? If so, are there any cases where the courts applied international treaty provisions directly?

See question 2.5.

2.7 With reference to 2.4 above, has the United Nations CRPD, or any other ratified international instrument, or parts thereof, been incorporated verbatim in national legislation? Provide details.

National legislation regarding, for example, the rights of children (as mentioned above), often reflects international treaties, such as the CRC, and in a way they incorporate treaty provisions. This form of indirect domestication is evident in acts such the Children’s Act (see question 2.4). Furthermore, the Promotion of Equality and Prevention of Unfair Discrimination Act, provides that any person interpreting the Act may be ‘mindful’ of international law (which will include the CRPD), and the Act reflects the objects of CEDAW. The Labour Relations Act 66 of 1995 proclaims as one of the primary objects of the Act ‘to give effect to the obligations incurred by the Republic as a member state of the International Labour Organization’ and requires the Act to be interpreted in compliance with the public international law obligations of the Republic, this includes the obligations in CEDAW (and also the later ratified CRPD). 

3 Constitution

3.1 Does the South African Constitution contain provisions that directly address disability? If so, list the provisions and explain how each provision addresses disability.
  • Section 9(1) of the Constitution provides for equal protection and benefit of the law, and a right to non-discrimination to everyone. Section 9 provides for a vertically-applicable right in section 9(3) in providing that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
  • Section 9 furthermore provides for a horizontally-applicable right to non-discrimination in section 9(4) when providing that no person may unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Section 9(3) and 9(4) are the only sections which directly addresses disability in the Constitution.
3.2 Does the South African Constitution contain provisions that indirectly address disability? If so, list the provisions and explain how each provision indirectly addresses disability

The South African Bill of Rights, contained in chapter 2 of the Constitution, deals with most of the substantive constraints on public power, and therefore instructs the state to use the power that the Constitution gives in ways that do not violate fundamental rights, and to promote and fulfil those rights contained in the Bill of Rights. Although the Constitution is mostly concerned with state power and with the law, there are a number of provisions in the Bill of Rights that place, in certain circumstances, duties on private individuals (such as section 9(4) as discussed in 3.1 above). Most of the rights contained in the Bill of Rights apply to ‘everyone’ and therefore most of these rights would also be applicable to and include persons with disabilities. These rights contained in the Bill of Rights that are indirectly applicable to persons with disabilities are listed and captured in the footnote. 42

4 Legislation

4.1 Does South Africa have legislation that directly addresses disability? If so, list the legislation and explain how the legislation addresses disability.

South Africa does not have comprehensive disability legislation that deals exclusively with matters relating to disability or with persons with disabilities. However, South Africa has enacted different pieces of legislation that mention people with disabilities or deal with issues relating to disabilities in the legislation. The following sets out the most significant legislation that mentions or refers to disability related issues:

  • Broad-Based Black Economic Empowerment Act 53 of 2003

This Act deals with economic empowerment of black women and men and persons with disabilities. The Act gives priority to issues such as employment equity and equalising opportunities.43

  • Child Justice Act 75 of 2008

Deals with the crimes mentioned in sections 23 to 26 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, listing it as a Schedule 3 offence when dealing with child offenders.

  • Children’s Act 53 of 2003

The Children’s Act is there to provide the necessary care and assistance to children, where section 11 deals specifically with matters concerning children with disabilities or chronic illnesses. In section 6(2)(d) and (f) the Act states that all proceedings, actions or decisions in a matter concerning a child must protect the child from unfair discrimination on any ground, including on the grounds of the health status or disability of the child or a family member of the child and recognise a child’s disability and create an enabling environment to respond to the special needs that the child has.

  • Co-operatives Act 14 of 2005

Amongst others one of the objectives of this act is to facilitate the provision of support programmes that target emerging co-operatives, specifically those co-operatives that consist of black persons, women, youth, disabled persons or persons in the rural areas and that promote equity and greater participation by its members.

  • Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007

This Act deals with legal aspects of or relating to sexual offences. Specifically, it enacts comprehensive provisions dealing with the creation of certain new, expanded or amended sexual offences against children and persons who are mentally disabled.44

  • Criminal Procedure Act 51 of 1977

The Criminal Procedure Act deals with, inter alia, an accused’s competency to stand trial. Section 194 provides that no person appearing or proved to be afflicted with mental illness or to be labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby deprived of the proper use of his reason, shall be competent to give evidence while so afflicted or disabled.

  • Domestic Violence Act 116 of 1998

This Act prohibits any forms of violence within domestic relationships. Domestic relationships include between family members or caregivers and persons with disabilities.

  • Electoral Act 73 of 1998

This Act provides that voters with disabilities should be assisted by a person of their choice where necessary, and persons with disabilities can be registered as special voters. This allows them to vote on a predetermined day before election day either at the voting station or at their residence (See sections 33 and 39 of the Act).

  • Electronic Communications Act 36 of 2005

Section 2(s)(iii) determines that the primary object of this Act is to provide for the regulation of electronic communications in the Republic in the public interest and for that purpose according to section 2(s) ensure that broadcasting services, viewed collectively (iii) cater for a broad range of services and specifically for the programming needs of children, women, the youth and the disabled.

  • Electronic Communications and Transactions Act 25 of 2002

Section 1(l) states the objects of this Act are to enable and facilitate electronic communications and transactions in the public interest, and for that purpose to ensure that, in relation to the provision of electronic transactions services, the special needs of particular communities, areas and the disabled are duly taken into account.

  • Employment Equity Act 55 of 1998

This Act seeks to promote and achieve equity in the workplace. This Act specifically prohibits the unfair discrimination of employees on the ground of disability. Furthermore chapter 3 deals with the employer’s duties regarding affirmative action, ensuring that persons from designated groups have equal job opportunities. People with disabilities form one of these designated groups.

  • Labour Relations Act 66 of 1995

This Act regulates the right to fair labour practices entrenched in section 27 of the Constitution. No person may be unfairly discriminated against on an arbitrary ground such as disability.

  • Mental Health Care Act 17 of 2002

This Act aims at regulating and providing mental health care, treatment and rehabilitation services available for everyone and specifically regulates the manner in which the property of persons with mental illness, and persons with severe or profound intellectual disability may be dealt with by a court of law (see section 3 of the Act for the objectives).

  • National Building Regulations and Building Standards Act 103 of 1977

This Act is currently under review, proposed amendments (in 2008) have undergone radical changes with respect to the section on providing facilities for people with disabilities. The requirements which should be met include: People with disabilities should be able to safely enter the building and be able to safely use all the facilities within it, specifically toilets. Furthermore lifts in buildings must be able to serve the needs of persons with disabilities. This means that there must be no obstacles/barriers that will prevent people with disabilities from accessing facilities within the building such as the lifts. The regulations refer specifically to people with impaired vision, but also relate to wheelchair users, or people who have trouble walking without assistance. Buildings that incorporate halls or auditoriums for public use are obliged to ensure that a reasonable percentage of space is available for wheelchair users or other ‘assistive devices’.

For any building used by the public to meet the standards and measurements contained in the ‘SANS 10400-S document’. The application of the National Building Regulations Part S: Facilities for persons with disabilities.

  • National Education Policy Act 27 of 1996

This Act’s aim, amongst others, is to ensure that no person is denied the opportunity to receive an education, to the maximum of his or her ability as a result of physical disability.

  • National Health Act 61 of 2003 and the Sterilisation Act 44 of 1998

These Acts prohibits forced sterilisation of persons with disabilities. The National Health Act stipulates that all persons, including persons with disabilities, have a right to reproductive health services including family planning.

  • National Land and Transport Act 5 of 2009

The Minister may make regulations for the requirements and time-frames for vehicles and facilities to be made accessible to persons with disabilities, including principles for accommodating such persons in the public transport system (Section 8 of the Act).

  • National Road Traffic Act 93 of 1996

This Act, amongst others, states which disabilities or illnesses disqualify a person from obtaining or holding a learner’s or driver’s licence.45

  • Postal Services Act 124 of 1998

Section 2(h) of this Act specifically states that one of the objects of the Act is to ensure that the needs of persons with disabilities are taken into account in the provision of postal services.

  • Preferential Procurement Policy Framework Act 5 of 2000

This Act seeks to provide a framework for preferential treatment of women of all races, black people and persons with disabilities in procurement transactions, as a means of addressing historical imbalances, to accelerate de facto equality.46

  • Promotion of Equality and Prevention of Unfair Discrimination Act

This Act promotes the prevention of unfair discrimination and protection of human dignity as contemplated in sections 9 and 10 of the Constitution. This specifically includes discrimination against people with disabilities.

  • Skills Development Act 97 of 1998 and Skills Development Levies Act 9 of 1999

These Acts sets out a framework for managing skills development. The implementation of the Employment Equity Act requires synergy with that of the Skills Development Framework. Furthermore, the Skills Development Strategy sets out skills development targets for women of all races (54 per cent); black people, including women, and persons with disabilities.

  • Social Assistance Act 13 of 2004

This Act regulates the eligibility of social assistance (section 5 of the Act) and section 9 specifically deals with the condition or requirements in respect of disability grants.

  • South African Library for the Blind Act 91 of 1998

To provide for the South African Library for the Blind; for library and information services to blind and print-handicapped readers; and for matters connected therewith.

  • South African Schools Act 84 of 1996

The purpose of this Act is to provide uniform education for ‘everyone’. The Schools Act states that as far as is reasonably possible education should be provided for students with special education needs. Measures should be taken to try and provide physical facilities at public schools for it to be accessible to disabled people.

4.2 Does your country have legislation that indirectly addresses disability? If so, list the main legislation and explain how the legislation relates to disability.
  • South African Citizenship Act 88 of 1995

This Act provides for the acquisition, loss and resumption of South African citizenship, and for matters incidental thereto. This includes and ensures the rights of persons with disabilities to have equal access to nationality.

5 Decisions of courts and tribunals

5.1 Have the courts (or tribunals) in South Africa ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases indicating what the facts, the decision(s), the reasoning and impact (if any) the cases have had.

The Constitutional Court determined in 1997 in Prinsloo v Van der Linde47 that human dignity constitutes a criterion to determine unfair discrimination. The Court endorsed the view 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.

The Promotion of Equality and Prevention of Unfair Discrimination Act provides for the establishment of Equality Courts in all magisterial districts, which in principle should provide easy access to persons who believe they have been discriminated against on, amongst others, the basis of disability.

The importance of human dignity was emphasised in WH Bosch v The Minister of Safety and Security & Minister of Public Works48 when the Equality Court in Port Elizabeth held that:

There is no price that can be attached to dignity or a threat to that dignity. There is no justification for the violation or potential violation of the disabled person’s right to equality and maintenance of his dignity that was tendered or averred by the respondent. The court therefore found the discrimination to have been unfair.

The judgment directed that all South African Police Services (SAPS) stations be made accessible to persons with disabilities.

In another Equality Court case in Germiston, Esthé Muller v Minister of Justice & Minister of Public Works,49 an out-of-court settlement in 2004 created precedence by directing that all court buildings be made accessible to persons with disabilities. Bosch and Muller resulted in the creation of a dedicated programme within the Department of Public Works to renovate existing public services buildings.

Similarly, the Equality Court ruled in favour of Lettie Oortman against the St Thomas Aquinas private school (Lettie Hazel Oortman v St Thomas Aquinas Private School & Bernard Langton)50 when the court directed that not only was the school obliged to re-admit Chelsea Oortman, but that the school had to take reasonable steps to remove all obstacles to enable Chelsea to have access to all the classrooms and the toilets allocated to her by using a wheelchair. The SAHRC (see question 8) had assisted Oortman and addressed the issues relating to the rights of persons with disabilities in Mpumalanga’s Equality Court. The court found that the school had not taken all the reasonable steps to accommodate Oortman and the school had to remove all obstacles for the learner in order to enable her to have access to the classroom, washbasin and toilet allocated to the learner by using her wheelchair.

In the Standard Bank of South Africa v Commission for Conciliation, Mediation and Arbitration & Others,51 an employee was dismissed after being injured in a car accident. The Bank failed to accommodate the employee, which rendered the dismissal ‘automatically unfair’ in terms of labour practice. The Bank had not complied with the Code of Good Practice on Dismissal. The Court noted that the underlying constitutional rights are the right to equality, the right to human dignity, the right to choose an occupation, and the right to fair labour practice. Judge Pillay noted that marginalisation of persons with disabilities in a workplace is not because of their ability to work, but because the disability is seen as an abnormality or flaw; that integration and inclusion in mainstream society aims not only to achieve equality, but also to restore the dignity of persons with disabilities.

6 Policies and programmes

6.1 Does South Africa have policies or programmes that directly address disability? If so, list each policy and explain how the policy addresses disability.
  • National Disability Strategy

The White Paper on an Integrated National Disability Strategy of 199752 facilitates the promotion and protection of the rights of people with disabilities.

  • It provides guidance for disability considerations in policy and legislative reform.
  • The policy aims at integration of disability issues in all government development strategies, planning and programmes.53
  • Raising awareness

The majority of disability awareness work targets the public at large. Initiatives include:

  • Government’s political outreach programmes, including ‘Taking Parliament to the People’ (quarterly) and the ‘Izimbizo’ programme, where Members of Parliament and Provincial Legislatures as well as Cabinet Ministers and Mayors, provide a monthly platform for communities, particularly in deep rural areas, to engage their leadership directly on issues of human rights, development and service delivery. The guidelines for these public meetings require that persons with disabilities and their organisations be targeted as participants, and that it be ensured that all venues are accessible and sign language interpreters are available. Responses to public questions with regard to disability are based on the CRPD. These events also coincide with bringing services closer to remote communities, with mobile services from the Departments of Home Affairs, Health and Labour, the South African Social Security Agency and the National Youth Development Agency present on site for ease of access to those who would normally find it difficult to access these services.
  • The former Office on the Status of Disabled Persons developed and distributed policy guidelines for portraying disability in the media to media practitioners. The aim of the policy guidelines was to encourage frequent and positive portrayals of people with disability in mass media. The Department of Social Development conducted 64 community advocacy and awareness programmes that benefited 20 000 people.
  • The Department of Basic Education (DBE) in collaboration with the Government Communication and Information Service produced and broadcast awareness raising programmes on national television and subsequently distributed DVDs on the right of children with disabilities to schools in the communities. The DBE website also has the Thutong Education Portal that raises awareness on an on-going basis. A number of departments conduct media campaigns to raise awareness on the portrayal of persons with disabilities in a manner consistent with the principles of the CRPD.
  • Accessibility
  • Accessibility in schools - the National School Infrastructure Norms include specifications for universal design with regard to new school buildings.
  • National Accessibility Programme: The National Accessibility Programme is a large, multi-year research and innovation project that addresses the marginalisation of persons with disabilities from mainstream society and the economy, ensuring their participation and inclusion at all levels of society through the use of Information and Communication Technology (ICT). 54
  • Broadcasting Digital Migration Policy and Broadband Policy: Digital broadcasting must contribute significantly to accelerating the building of social cohesion and achieving national identity in South Africa through the dissemination of appropriate content that adequately reflects the country's cultures. Digital broadcasting provides services for persons with disabilities with closed captioning embedded in the television signal, which becomes visible when a special decoder is used. The South African decoder will, as a matter of policy, enable viewers to see captions, which assist them to read what is being said in that particular programme.55 The Independent Communications Authority of South Africa, the regulatory body, developed a Code on Persons with Disabilities as required by section 70 of the Electronic Communications Act 36 of 2005, as well as section 2(h) of the Postal Services Act.56
  • A disability portal, the National Accessibility Programme, was launched in 2008 as a partnership project between government, the African Advanced Institute for Information and Communication Technology and the disability sector, and is positioned as an integrated service provider to the disability community and industry offering accessible technology services, communication services, data synthesis services and other commercial services. 57
  • Policy on the Provision of Reasonable Accommodation and Assistive Devices in the Public Service (2012): This policy seeks to assist government departments in planning for and implementing reasonable accommodation measures for employees with disabilities.
  • Accessible transport
  • Standard design guidelines (Universal accessibility standards) to address accessibility in the passenger rail environment commenced in 2005, and culminated in the adoption of such universal guidelines in March 2008 by the Passenger Rail Agency of South Africa (PRASA) and the Department of Transport. PRASA is currently updating the guidelines and policy in consultation with organisations of persons with disabilities to strengthen universal access on its trains and stations as an integral component of its programme, which will upgrade 134 core stations by 2014.
  • The Airport Companies of South Africa (ACSA) has worked with the disability sector to improve services on passenger assistance units (PAUs) by increasing the number of units available at ACSA airports, as well as training PAU personnel. DPOs periodically report on isolated instances where people with physical disabilities are discriminated against in terms of boarding flights. These are usually resolved through intervention by, amongst others, the Civil Aviation Authority, the Department of Transport, as well as the Department of Women, Children and Persons with disabilities (DWCPD).
  • The Department of Transport is furthermore finalising norms and standards for accessible scholar transport and specifications for accessible school buses have been developed.
  • The Integrated Transport System, which provides universal accessibility on municipal bus services, is currently rolled out in metropolitan and larger local municipalities.
  • Education
  • Guidelines for Inclusive Teaching and Learning of 2009.
  • National Strategy on Screening, Identification, Assessment and Support (SIAS) of 2008. The aim of introducing the SIAS strategy in the education system is to overhaul the process of identifying, assessing and providing programmes for all learners requiring additional support to enhance participation and inclusion. One of the key objectives of the strategy is to provide clear guidelines on enrolling learners in special schools and settings. 58
  • Education White Paper 6 on Special Needs Education: This policy supports inclusive education. The Education White Paper outlines six strategies to be implemented to try and achieve the goal of inclusive education. 59
  • Guidelines to Ensure Quality Education and Support in Special Schools and Special School Resource Centres of 2007: The aim of these guidelines is to ensure that special schools function well and offer appropriate, quality education to learners. 60
  • Guidelines for Full-Service or Inclusive Schools of 2010: These guidelines form part of the Schooling 2025 Plan of the Department of Basic Education to strengthen the implementation of Inclusive Education, and to ensure greater access for all learners. The guidelines provide criteria or minimum standards that a school or institution must comply with to be considered an inclusive or a full service school or institution. 61
  • Guidelines for Responding to Learner Diversity in classrooms through National Curriculum Statement of 2011. These guidelines are intended to provide teachers, principals, subject advisors, administrators, school governors and other personnel, parameters and strategies on how to respond to learner diversity in the classrooms through the curriculum. One of the most significant barriers to learning is the school curriculum. Barriers to learning arise from the different aspects of the curriculum such as the content, the language, classroom organisation, teaching methodologies, pace of teaching and time available to complete the curriculum, teaching and learning support materials and assessment.62 In responding to the diversity of learner needs in the classroom, it is imperative to ensure differentiation in curriculum delivery to enable access to learning for all learners. All schools are required to offer the same curriculum to learners while simultaneously ensuring variations in mode of delivery and assessment processes to accommodate all learners. Respecting diversity implies a belief that all learners have the potential to learn. 63
  • National Protocol on Assessment of 2011: The National Protocol for Assessment Grades R - 12 standardises the recording and reporting processes for Grades R - 12 within the framework of the National Curriculum Statement Grades R - 12. With respect to persons with disabilities the national policy on assessment is also contained herein and must comply with the prescriptions set out in the Education White Paper 6 on Special Needs Education.64
  • Liberty and security of a person with a disability
  • The Department of Correctional Services separates offenders with disabilities who are housed in a secure detention unit to ensure that they are not exposed to any danger, in particular within the context of the current over-crowding in the majority of correctional facilities.
  • Monitoring and evaluation is done by means of Statistical tool G388-form, which has been reviewed and mainstreamed to accommodate offenders with disabilities. 65
  • The White Paper 8 on Corrections in South Africa: Correctional institutions should be designed to cater for the needs of offenders with disabilities and should be consistent with the national policy framework on persons with disabilities. The policy should reflect both the equality of rights of disabled offenders and the particular needs that offenders with disabilities have. The provision of appropriate facilities must not be limited to the physical accommodation needs, but must include the provision of appropriate facilities for the enhancement of rehabilitation amongst these offenders. The White Paper further states that ‘the courts need to make a greater commitment to consider the individual circumstances of each offender, and in this instance, the courts should consider imposing non-custodial sentences for offenders with disabilities’.66
  • Living independently and being included in the community
  • The Department of Social Development has developed policy guidelines on residential facilities and minimum norms and standards for residential facilities, which have given effect to providing guidelines, minimum norms and standards to the transformation and improvement of the quality of life for persons with disabilities in residential facilities. Supported/assisted living and independent living programmes constitute a move towards units/homes that are more open and smaller and within the community to facilitate de-institutionalisation. These are suitable for people who do not require 24 hour care and have some degree of independence.
  • Personal mobility/health/habilitation and rehabilitation
  • The National Rehabilitation Policy of 2006’s objectives includes facilitating human resource development, which takes into account the needs of both the service providers and the consumers as well as the appropriate allocation of funding, such as funding for assistive devices. The policy aims at securing the rights of all persons to have equal access to healthcare, which includes mental health and rehabilitation services. This Policy further aims to assist people with disabilities to attain maximum independence and full inclusion in all aspects of life. 67
  • Participation in cultural life, recreation, leisure and sport
  • Sport and Recreation South Africa (SRSA) must, in accordance with its funding policy in terms of section 10(1)(d) of the National Sports and Recreational Act 18 of 2007, increase the profile and financial assistance to volunteers, women, senior citizens, neglected rural areas and persons with disabilities, in sport and recreation. The SRSA Funding Policy of 2008 states that preference will be given to those clients (National Federations) whose activities clearly impact on government priorities and one of them is the ‘advancement of women and persons with a disability’.
  • The Performing Art Policy ensures that 5 per cent of performers contracted for celebration and/or commemoration of national days constitute performers with disabilities. 68
6.2 Does South Africa have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.
  • The Proximity of Courts Programme: This service provides periodic courts to rural and remote communities that would otherwise not have access to courts. Furthermore Legal Aid provides legal assistance at the expense of the state.
  • The Expanded Public Works Programme (EPWP): This programme is aimed at providing poverty and income relief through temporary work for the unemployed to carry out socially useful activities. 69
  • The Community Work Programme (CWP) (2009): This programme provides an employment safety net by giving participants a minimum number of regular days off work.
  • The National Policy Framework for Teacher Education and Development (2006): The overriding aim of the policy is to equip teachers to undertake their essential and demanding tasks, to enable them to continually enhance their professional competence and performance, and to raise the esteem in which they are held by the people of South Africa. This includes addressing inclusive education and being able to comply with the policies on disabilities. 70

7 Disability bodies

7.1 Other than ordinary courts or tribunals, does your country have any official body that specifically addresses the violation of the rights of people with disabilities? If so, describe the body, its functions and its powers.

There are no bodies other than courts that specifically address the violation of rights of people with disabilities.

7.2 Other than ordinary courts or tribunals, does your country have any official body that though not established to specifically address the violation of the rights of people with disabilities, can nonetheless do so? If so, describe the body, its functions and its powers.

The only other bodies addressing the violation of rights of people with disabilities are the National Human Rights Institutions discussed in question 8 below.

8 National human rights institutions

8.1 What is South Africa’s position with regard to a Human Rights Commission or an Ombudsman or Public Protector? Does its remit include the promotion and protection of the rights of people with disabilities? If your answer is yes, also indicate whether the Human Rights Commission or the Ombudsman or the Public Protector of South Africa has ever addressed issues relating to the rights of persons with disabilities.

South Africa has a South African Human Rights Commission (SAHRC) and a Public Protector, which were both established in terms of chapter 8 of the Constitution.71 Both these institutions are required to be independent and subject only to the Constitution and the law.

  • South African Human Rights Commission (SAHRC)72

The mandate of the SAHRC is contained in section 184 of the Constitution, which determines that the SAHRC must promote respect for human rights and a culture of human rights; promote the protection, development and attainment of human rights; and monitor and assess the observance of human rights in the Republic. Section 184(2) provides for the powers, as regulated by the national legislation,73 necessary to perform its functions, including the power to investigate and report on the observance of human rights; take steps and secure appropriate redress where human rights have been violated; carry out research; and educate. Furthermore, according to section 184(3), the SAHRC must yearly require the relevant organs of state, to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, healthcare, food, water, social security, education and the environment.

The SAHRC has to promote respect for the human rights of persons with disabilities, and promote the protection, development and attainment of human rights of persons with disabilities (See question 3 above). In this regard, the SAHRC has recently assisted and addressed the issues relating to the rights of persons with disabilities in Oortman and Muller (in this regard see question 5.1 above).

In terms of article 33(2) of the CRPD: ‘[s]tates should designate or establish one or more independent mechanisms to promote, protect and monitor the implementation of the Convention taking into account the Paris Principles.’ The SAHRC is a status National Human Rights Institution, and constitute the independent monitoring mechanism envisaged in article 33 of the CRPD. 74

In advocating on issues relating to older persons and persons with disabilities, the SAHRC has created a Section 5 Committee on Disability and Older Persons.75 The Section 5 Committee on Disability and Older Persons has a sub-committee, which convenes once or twice a year with various departments. The sub-committee engages in the monitoring and observing process of the rights of people with disabilities with regard to the implementation of the CRPD. 76

  • Public Protector77

Section 182 of the Constitution determines that the Public Protector has the power, as regulated by national legislation78 to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action. The Public Protector may not investigate court decisions, must be accessible to all persons and communities and any report issued by the Public Protector must be open to the public, unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential. According to section 182 the Public Protector has the additional powers and functions prescribed by national legislation. 79

The Public Protector’s mandate includes the promotion and protection of the rights of people with disabilities and recently, in November 2010, addressed the problem in a report on the investigation into the alleged failure by the Western Cape Department of Health to provide proper health care to a person with a disability. In this report the complainant’s son had suffered serious injuries, including a disabling brain injury after an accident. The son, Mr Lobi (Jnr) was in need of long-term nursing care and a wheelchair. Mr Lobi (Jnr) had been lying on his back for 2 years and could not afford care and a wheelchair. The complainant was not informed timeously that his son could be reclassified as a state patient and therefore be provided with the necessary wheelchair. The Public Protector, amongst others, found that there is a serious backlog in the supply of wheelchairs and other assistive devices and confirmed that the supply of this is a constitutional right in terms of section 27 of the Constitution. The Public Protector stated that certain remedial actions should be taken and that urgent steps should be taken to provide Mr Lobi (Jnr) with a wheelchair. Furthermore the Department should introduce adequate measures to try and address this problem and that the budget and use of funds should be revisited. 80

9 Disabled peoples organisations (DPOs) and other civil society organisations

9.1 Do you have organisations that represent and advocate for the rights and welfare of persons with disabilities in your country? If so, list each organisation and describe its activities.
Organisations that advocate for all disabilities81
  • Disabled People South Africa (DPSA)

Ensures development and integration of people with disabilities in all spheres of life in SA. 82

  • African Disabled Refugees Organisation

Advocacy and support for African Refugees.

  • Alexandra Disability Movement

Programme areas include: advocacy, disability, job creation, and welfare.

  • Association for and of Persons with Disabilities

Assists in the needs of people with disabilities in the community and offers advice and assistance.

  • Association for Persons with Disabilities

The Association includes: residential facilities, learning centres, a school support programme, a youth empowerment programme, leadership camps, sports clubs, an entrepreneurship programme, a rehabilitation programme, skills development, and a job creation programme.

  • Association for Persons with Physical Disabilities

The Association includes: community development, protective workshops, training in work skills, access, awareness, placement, sport and the continual fight for equality for physically challenged people.

  • Association for the Physically Disabled

Development of communities to enable them to provide services to their own people with disabilities in that specific community .

  • Association for the Rehabilitation of People with Disability

Works with the community and individuals to ensure the highest level of achievement especially for those with disabilities.

  • Centre for Rehabilitation Studies - African Policy on Disability and Development (A-PODD) Project

This project is aimed at gathering and analysing research based evidence about whether persons with disabilities engage in national and international policy initiatives that target poverty reduction.

  • Children’s Assessment and Therapy Centre

Which focuses on providing evaluation for early learning difficulties as well as behavioural and remedial difficulties in children.

  • Children’s Disability Centre

Early childhood development: medical, developmental assessments of disabled children; therapy; support to children and caregivers; training and skills development in the management of disabled children; gathering and publishing of statistics; resource and consultancy centre networking with other organisations and government authorities.

  • CREATE - CBR Education and Training for Empowerment

Training and education of community-based rehabilitation workers as well as, amongst others, introductory workshops and courses in disability and rehabilitation.

  • Curamus Association

For members of the South African Security Services or their dependents who have a disability and those with disabilities caused by war.

  • Disability Action Research Team

Which conducts research and shares information relating to disability, including information that demystifies disability and empowers persons with disabilities.

  • Disability Alliance (Formerly South African Federal Council on Disability)

A platform for discussion, joint planning, collaboration and consensus seeking amongst key role players within the disability sector.

  • Disability Connexion

Part of African Enterprise, an international, interdenominational Christian organisation, connecting people with disabilities to others and the church.

  • Disability Empowerment Concerns Trust

A broad-based BEE investment vehicle established by the seven largest South African disability NGO’s for their benefit.

  • Disability Info and Care

Specialised training of care-workers, placement of care-workers, personal development programmes for people with disabilities, employment placement, personal consultation, enquiries on all disability issues.

  • The Disability Help-Line - Networking on Disability Issues

Supports people with disability through networking on disability issues, a telephone help-line, assessments of the accessibility of existing buildings and facilities.

  • Disability Options

An independent organisation working with people with mobility challenges and other physical, vision, hearing, speech and mental disabilities.

  • Disabled Children’s Action Group

Affiliated to DPSA and promotes the rights of children with disabilities and their development and participation in society. Aims to raise awareness of disability and challenge stereotypes and perceptions of people with disabilities in South Africa.

  • Disabled Care Group

A support group for people with disabilities or chronically ill persons, or persons who are looking after people with disabilities or chronically ill spouse(s).

  • Disabled Youth South Africa

Aims to develop a programme to campaign for equal rights for youth with disabilities and awaken the awareness of youth with disabilities about health care, especially AIDS.

  • Gauteng North Services to People with Disabilities

Promotes the rights and welfare of persons with disabilities in Gauteng North through a variety of activities and services.

  • Health Professions Council of South Africa

Established to protect consumers of health care services, guide practitioners on educational, professional and ethical issues, and co-ordinate the 12 professional boards in setting health care standards for training and discipline in the professions registered with the Council, ensuring on-going professional competence and fostering compliance with those standards.

  • Hospice Palliative Care Association of South Africa

Palliative care or pain relief for people with terminal illnesses; support given to their families.

  • Johannesburg Council for the Disabled

Holistic service for people with various disabilities - welfare, counselling, life skills, education, sports and recreation, skilling and training, workshops, creation of employment opportunities, hydroponic farming.

  • National Council for Persons with Physical Disabilities in South Africa

A proactive forum for the advancement of persons with physical disabilities, to enable them to achieve maximum independence and integration into the community. 83

  • Lowveld Association for People with Disabilities

Whose mission is to strive to meet the social needs of persons with disabilities in the Lowveld region of South Africa, including improving their quality of life by providing services they need

  • Orion Organisation

Dedicated to caring and providing for the educational, training and therapeutic needs of children, youth and adults with physical, intellectual and/or mental disabilities; includes group homes, a special day care centre, a semi-frail care facility, workshop and job creation initiatives.

  • OR Tambo Disabled People’s Organisation

Concerned mainly with advocacy and capacity building; also supports programmes for children with disabilities, youth development, home-based care and HIV/AIDS.

  • Parents for Children with Special Educational Needs.
  • People for Awareness of Disability Issues (PADI)

PADI is a group of people - both people with disabilities and non-disabled - who since 1987 have been committed to education and awareness on disability issues in both the academic and business worlds.

  • Reach for a Dream

Fulfilling the dreams of children of any race, colour or creed between the ages of 3 and 18 with life-threatening illnesses.

  • Restoration of Human Abilities Association

Provides therapeutic, community and educational services to restore abilities lost through mental illness, disability and neglect.

  • Social Aspects of HIV/AIDS Research Alliance.
  • South African Disability Institute.
  • South African Sport Association for the Physically Disabled.
  • Trans Oranje Institute for Special Education

Sponsoring body for five schools - Transoranje (for deaf learners), Sonitus (for the hearing-impaired), Prinshof (for the blind), Martie du Plessis (for learners with cerebral palsy) and Transvalia (for learners with epilepsy).

  • Western Cape Network on Disability

Lobbies government to institute various services for people with disabilities on behalf of disability-related NGOs in the Western Cape.

  • Wheelchair Users Forum South Africa.
  • Zanempilo Trust.
Disability specific organisations include:84
  • The Deaf Federation of South Africa (DEAFSA); 85
  • The South African Blind Worker Organisation of South Africa (SABWO);
  • The National Organisation of the Blind in South Africa (NOBSA);
  • The South African Federation for Mental Health (SAFMH);86
  • The Quadriplegic Association of South Africa (QUASA);
  • The Down Syndrome Forum of South Africa;
  • The South African Epilepsy League;
  • South African National Council for the Blind (SANCB);87 and
  • Dementia South Africa.
9.2 In the countries in your region, are DPOs organised or coordinated at a national and/or regional level?

The paradigm shift, from the medical to the social model, has come about largely through the development of strong DPOs. Central to the concept of the social model of disability is the principle of self-representation by people with disabilities through DPOs.

The South African Disability Alliance (SADA) is a body comprising of the 13 national organisations representing disability issues in South Africa. This body, which was formerly known as the South African Federal Council on Disability, has been reconstituted to be a body of consensus, and the voice of the disability sector in South Africa.88 In South Africa DPOs are organised on a national level under umbrella organisations, but there are many organisations that further co-ordinate the DPOs on a regional/provincial level.

9.3 If your country has ratified the CRPD, how has it ensured the involvement of DPOs in the implementation process?

In order to ensure public participation, the DWCPD has established a close and working relationship with the disability sector through its civil society structures, such as the South African Disability Alliance and Disabled People South Africa. The Disability sector participates in the National Disability Machinery, which is a non-statutory consultative forum between government and, organisations of persons with disabilities, business and institutions of higher learning. All national government departments, provincial administrations as well as district and local municipalities are required to appoint/designate a disability focal person/unit to coordinate the mainstreaming of disability considerations within each of these institutions. These focal points converge in the National Disability Machinery, which is constituted by, amongst others, the Inter-Departmental Coordinating Committee, the Provincial Coordinating Forum, and the National Disability Forum, which brings civil society on board. 89

9.4 What types of actions have DPOs themselves taken to ensure that they are fully embedded in the process of implementation?

It is difficult to ascertain which organisations in South Africa specifically monitor the implementation of the CRPD. The Secretariat of the African Decade of Persons with Disabilities (SADPD) is one such organisation. In September 2009, the SADPD hosted an annual disability workshop on Human Rights Monitoring and the CRPD in   Cape Town. Participants from over eleven African countries, including experts on disability issues from civil society, academia, governments and the UN, attended this event. Most participants came from countries that have ratified the CRPD. Among the issues discussed at the workshop were the challenges faced by African States in implementing the CRPD. 90

CREATE (Community Based Rehabilitation Education and Training for Empowerment), a non-profit organisation based in KwaZulu-Natal, drafted a shadow report and drew from the experiences of members of the Umgungundlovu Disability forum (a network of disability organisations). The report was read by the UN Special Rapporteur on Disability, S Chalklen, and sent to the Conference of State Parties in New York in September 2010.

Except for the actions taken to ensure the implementation of the CRPD in general, the DPOs each have their own achievements with regards to advocating the rights of people with disabilities and implementing the CRPD. CREATE has listed their achievements as follows: 91

  • Translation of the CRPD into isiZulu;
  • Development of a picture version of the CRPD for people who are illiterate;
  • Developed the skills of people with disabilities in 8 of KwaZulu-Natal's 11 districts to advocate for their rights and engage with service providers;
  • Many local improvements have happened due to CREATE's advocacy work, for example, a disabled people's organisation receiving seeds and agricultural implements from the Department of Agriculture and people with disabilities being taken to participate in national sports events by their municipality;
  • Development of a comic in English and isiZulu on the CRPD for use with youth and children;
  • Production of a DVD on CREATE's advocacy work; and
  • Initiated the process and authored a shadow report from the Umgungundlovu Disability Forum to the CRPD in Geneva.

In a study done on the role and effectiveness of disability legislation in South Africa (Disability Knowledge and Research programme) by AK Dube (March 2005) it was stated that where successful implementation of policies and legislation, necessary to implement the CRPD, has occurred, it has largely been due to political support by the ministers and senior civil servants in charge of departments, and/or the sustained commitment and on-going advocacy by the disability sector, led by DPSA.92

9.5 What, if any, are the barriers DPOs have faced in engaging with implementation?

Problems associated with the implementation include a lack of resources and funding for the DPOs. DPOs only receive part-subsidisation from the state. Procedural bottlenecks have been identified as one of the main causes of ‘policy evaporation’ within the South African context, and raising awareness about disability issues has to be addressed on an on-going basis.93 With regards to the National Disability Machinery many challenges face DPOs, which include mandate, capacity, functionality and the impact of disability focal points and coordinating structures across all three spheres of government. 94

9.6 Are there specific instances that provide ‘best-practice models’ for ensuring proper involvement of DPOs?

It is difficult to ascertain at this stage if a 'best-practice models' for ensuring proper involvement of DPOs are in place. The South African government recognises the role that the disability sector, and DPOs in particular, continue to play in promoting and adopting a rights based approach for persons with disabilities and their families during the drafting process of their first draft country report. 95

9.7 Are there any specific outcomes regarding successful implementation and/or improved recognition of the rights of persons with disabilities that resulted from the engagement of DPOs in the implementation process?

See question 9.4 for the achievements of CREATE.

According to DPSA, the achievement resulting from DPSA’s advocacy can be summarised in the following way:96

  • The Constitution outlaws discrimination against people on the grounds of disability.
  • Disability is no longer seen as a charity/welfare issue, but as a human rights and development issue.
  • The former Office on the Status of Disabled Persons had been established with the responsibility of implementing the Integrated National Disability Strategy.
  • People with disabilities have been placed in key Commissions established by the government as part of the transformation process, for example, Human Rights, Gender, Youth, Special Needs Education and Public Service Commissions.
  • People with disabilities are represented on the Boards of SATOUR, National Skills Authority (NSA), NTSIKA Enterprise Development Promotion Agency (NEPA), South African Qualifications Authority (SAQA), National Board for Further Education and Training (NBFET) and the SABC.
9.8 Has your research shown areas for capacity building and support (particularly in relation to research) for DPOs with respect to their engagement with the implementation process?
  • Government acknowledged during the drafting of their First Country Report for Public Comment that capacity and resource constraints limited the extent to which DPOs and disability service organisations were able to participate in the development of the Country Report. This will be an area for capacity building and support with respect to DPO's engagement with the implementation process in future.
  • The contributions by the South African National Council for the Blind, the National Council for Persons with Physical Disabilities in South Africa and the South African Federation on Mental Health were appreciated in the First Country Report for Public Comment by the South African government.
9.9 Are there recommendations that come out of your research as to how DPOs might be more comprehensively empowered to take a leading role in the implementation processes of international or regional instruments?

See question 9.8 above.

9.10 Are there specific research institutes in South Africa that work on the rights of persons with disabilities and that have facilitated the involvement of DPOs in the process, including in research?

There are currently no specific research institutes in South Africa that work on the rights of persons with disabilities, which have facilitated the involvement of DPOs in the process.

10 Government departments

10.1 Does South Africa have government departments that are specifically responsible for promoting and protecting the rights and welfare of person with disabilities? If so, describe the activities of the departments.
  • South Africa has the DWCPD,97 which was established in May 2009, and incorporates the former Office on the Status of Disabled Persons.
  • This Department, amongst others, is responsible for the equity, equality and empowerment agenda in terms of those living with disabilities. 98
  • To achieve this, programmes for persons with disabilities are being implemented and their empowerment will be promoted. The Ministry will also promote the protection of the rights of persons with disabilities and will guide, monitor, evaluate, co-ordinate and facilitate mainstreaming of issues relating to this sector, in terms of national priorities. 99

11 Main human rights concerns of people with disabilities

11.1 What are the contemporary challenges of persons with disabilities in South Africa? (For example, in some parts of Africa ritual killing of certain classes of PWDs such as people with albinism occurs. Tanzania has been in the headlines in this regard. We should have a way of interrogating customary practices that discriminate, injure and kill persons with disabilities).

The myth that having sexual intercourse with a virgin will cure a person of HIV, that often includes young girls and women with disabilities, is not limited to South Africa, but is a prevalent problem in Africa. Individuals with disabilities are presumably at risk both because they are, incorrectly, often assumed to be sexually inactive, hence virgins, and because they might be easy targets. 100

11.2 How does South Africa respond to the needs of persons with disabilities with regard to the areas listed below?
  • Access and accommodation

People receiving less than R 3 500 income a month are eligible for government housing subsidies. The normal subsidies are supplemented with additional funding to provide for the specific needs of a person with a disability.101 The Social Housing Policy (2003) identifies people with disabilities who are able to live independently as one of the target groups for social housing.102

  • Access to social security

The Social Security Act 13 of 2004, provides for amongst others, an additional grant-in-aid for disability grant recipients who require full-time attendance by another person owing to his/her physical or mental disabilities.103 There is a range of social assistance for care dependency grants, child support grants, grant-in-aid and disability grants.104

  • Access to public buildings

The Department of Public Works identified buildings for reconstruction in order to facilitate accessibility for people with disabilities. 105

  • Access to public transport

According to the Department of Transport the Programme of Action on Accessible Public Transport is an internal working document, which developed the Accessible Public Transport Strategy into a series of programmes that would be implemented over time.

Suggested remedies:106

  • Integrated transport and settlement planning;
  • Integrated upgrading of roads;
  • Implementation of Part S of the building regulations 2011, upgrading through PRASA’s programme;
  • Alter Taxi rank classification under the building regulation; and
  • Change accessible bus specifications.
  • Access to education

An integrated strategy and programme of action for the provision of educational support to learners with severe and profound disabilities is currently in development following the November 2010 judgment against the Government of the Republic of South Africa and the Government of the Province of the Western Cape.107 A process has been initiated by the Department of Basic Education to track individual learners, including learners with disabilities, with the introduction of the Learner Unit Record Information Tracking System in 2008. 108

  • The National Strategy on Screening, Identification, Assessment and Support is currently being finalised in a response to inclusive education. 109
  • Negotiations are underway with the publishing industry to make prescribed works and textbooks available in digital format. 110
  • Education White Paper 6 on Special Needs Education: Building an Inclusive Education and Training System of 2001 is not fully implemented. 111
  • Access to vocational training

The Department of Basic Education in 2011 introduced the process of developing a skills and vocational orientated exit level qualification at Grade 9 level for learners with intellectual disabilities.112

  • Access to employment
  • The Department of Social Development finalised policy guidelines on the management and transformation of protective workshops aimed at providing decent work and wages, strengthening skills development in these centres and improving employability of persons with disabilities in the open labour market. 113
  • The Department of Social Development is responsible for the subsidisation of 293 protective workshops in 2012, providing an income for 14 212 persons with disabilities. 114
  • Access to recreation and sport
  • The Department of Arts and Culture supports a number of initiatives to promote arts and culture among persons with disabilities.115
  • The Annual Zwakala DeafTV National Championships, in partnership with the South African Public Broadcaster, the Pan South African Language Board, reaches approximately 300 deaf children.
  • The Afrika Sinakho ‘In the Blood’ national touring production showcases performing arts abilities of persons with disabilities in a cast of 80 persons with both persons with disabilities (sight, physical and mentally disabled) and non-disabled artists.
  • The Market Theatre’s ‘Listen with your Eyes’ Festival in 2010, produced two plays that were aimed at both the deaf and hearing community.
  • The South African Library for the Blind, established under the South African Library for the Blind Act 91 of 1998 receives an annual grant.
  • The Strategic Plan for Sport and Recreation (2011-2015) states that one of the aims is to promote sport through programmes specifically aimed at marginalised and discriminated groups such as people with disabilities.116
  • Access to justice

Some initiatives have included the creation of special courts, including sexual offences courts, family courts, labour courts and equality courts. Although full accessibility of the justice system has not yet been achieved, government has created a range of institutions and mechanisms for facilitating equal access to justice. Among these institutions and programmes is Legal Aid, providing legal assistance at the expense of the state especially to impoverished persons. With regard to access to courts by persons with disabilities in rural areas, the Proximity of Courts Programme is noteworthy. This service provides periodic courts to rural and remote communities that would otherwise have no access. 117

11.3 Does South Africa provide for disability grants or other income support measures for persons with disabilities?
  • Persons with disabilities who are indigent qualify for a range of social assistance grants, including disability grants (USD150 per month in 2012); child support grants (children aged 0-14 years, USD35 per month in 2012), care dependency grants (children with disabilities requiring 24 hour care, USD150 per month in 2012), grant-in-aid (persons who require regular attendance by other persons, USD35 per month in 2012), foster care grant (USD96.25 per month in 2012), war veterans grant (USD152.50 per month in 2012) and older persons grants (USD150 per month plus USD2.500 per annum for those over 75 years in 2012).
  • Workers are furthermore protected through unemployment insurance benefits as well as compensation for injury on duty.
11.4 Do people with disabilities have a right to participation in political life (for example, political representation and leadership) in South Africa?

Where political rights118 are concerned, a number of specific factors impact on the rights of persons with disabilities to vote and be elected: 119

  • Physical barriers exist such as accessible transportation and access to polling stations. 120
  • Accessible information regarding voting times, dates, candidates and the accessibility,121 bearing in mind that television and radio remain preferred sources of information. 122
  • Electoral staff that understand and respect the needs of persons with disabilities. 123
11.5 Specific categories experiencing particular issues or vulnerabilities
  • Women and children with disabilities124
  • Black women with disabilities, in particularly, bear the brunt of inequality based on race, disability, gender, socio-economic status and class.
  • A major concern with regard to disability and gender is the persisting violence against and victimisation of women and children, and in particular women and girls with disabilities. Estimates of the extent of violence vary, as there under-reporting.125

12 Future perspective

12.1 Are there any specific measures with regard to persons with disabilities being debated or considered in South Africa at the moment?

The First Draft Country Report was open for public comment during 2013, before the intended deposit thereof to the UN’s Committee on the Rights of Persons with Disabilities.

12.2 What legal reforms are being raised? What legal reforms would you like to see in your country? Why?

List of future measures and reforms:

  • Effort to mainstream disability into Millennium Development Goals (MDGs) since this issue was highlighted at the second Conference of States Parties. 126
  • The South African Law Reform Commission is concluding a lengthy participatory process of reviewing legislation with regard to assisted decision-making for adults with impaired decision-making capacity. The review of legislation seeks to address the inadequacies of the current curatorship system. 127
  • The Department of Public Services and Administration is currently costing the draft policy on reasonable accommodation in the public service, which will bring uniformity across the public service in the provisioning of assistive devices, personal assistance services and technology for disabled public servants. 128
  • The Department of Arts and Culture has just completed an investigation into national braille production needs and related braille policy matters with the aim of developing a braille production strategy for the country.129
  • The Department of Social Development is in the process of finalising a strategy for orphans in order to provide them with places of safety if the immediate family is unable to care for a child with a disability. 130
  • Education White Paper 6 on Special Needs Education: Building an Inclusive Education and Training System (2001) outlines government’s strategy to transform the current education system to make it more efficient, more equitable and more just, recognising the right of all learners to attend their local neighbourhood school and to receive the necessary support. 131
  • Steps have been taken to develop specifications for accessible school buses in KwaZulu- Natal Province.132
  • A Curriculum for South African Sign Language is currently being drafted by a Ministerial Task Team. 133
  • The White Paper on an Integrated National Disability Strategy (INDS), released in 1997, is currently under review with the aim of strengthening, among others, institutional mechanisms, the monitoring and evaluation framework, national priorities and targets for the next 10 to 15 years, ensuring full alignment with the CRPD. 134
  • The draft Fitness Industry Bill makes provision that a fitness establishment must, amongst others, have at least a defibrillator and a first aid kit for persons with disabilities; and a sufficient number of staff that is specifically trained to assist persons with disabilities. 135
  • The Deaf Federation of South Africa has approached the Constitutional Review Committee to recognised Sign Language as the twelfth official language of South Africa. 136


1. Statistics South Africa Mid-year population estimates (2011) http://www.statssa.gov.za/publications/P0302/P03022011.pdf (accessed 26 September 2013).

3. Statistics South Africa Census 2011 http://www.statssa.gov.za/Publications/P03014/P030142011.pdf (accessed 26 September 2013). The ICIDH defined ‘disability’ as a physical or mental handicap which has lasted for six months or more, or is expected to last at least six months, which prevents the person from carrying out daily activities independently, or from participating fully in education, economic or social activities. The 2001 Census therefore used the terminology of ‘disabled’ and the data gathered reflects the prevalence of certain disabilities.

4. This was first introduced in the 2009 General Household Survey questionnaire. These questions relate to the ‘difficulties’ that people have in executing a series of activities such as seeing, hearing, walking, communicating, self-care, remembering and concentrating. Therefore not only severe disabilities are measured with these questions.

5. Disability is defined as difficulties encountered in functioning due to body impairment or activity limitation, with or without the use of assistive devices.

6. Statistics South Africa Census 2001: Prevalence of disability in South Africa http://www.statssa.gov.za/Publications/Report-03-02-44/Report-03-02-44.pdf (accessed 26 September 2013).

7. As above .

8. Department of Women, Children & People with Disabilities First Draft Country Report to the United Nations on the implementation of the Convention on the Rights of Persons with Disabilities: For Public Comment (26 November 2012) http://www.info.gov.za/view/DownloadFileAction?id=179901 (accessed 26 September 2013) (First Draft Country Report for Public Comment).

9. As above.

10. Landmark UN treaty on rights of persons with disabilities enters into force (2008) http://www.un.org/apps/news/story.asp ? (accessed 2 October 2013).

11. First Draft Country Report for Public Comment 1; and (n 10 above) .

12. South Africa has signed and in 1995 ratified the CRC.

13. CRC/C/15/Add.122.

14. Curriculum 2005 aims at facilitating a more inclusive school environment, including programmes to encourage non-discrimination, especially of children with disabilities.

15. Such a system should cover all children up to the age of 18 years, with specific emphasis on those who are particularly vulnerable, which includes, amongst others, children with disabilities.

16. Of particular concern were certain vulnerable groups of children such as children with disabilities, especially those with learning disabilities. The recommendation made by the Committee was that South Africa must increase her efforts to ensure the proper implementation of the non-discrimination article.

18. First Draft Country Report for Public Comment, 62. The SIAS strategy provides guidelines for early identification and support, how to determine the nature and level of support required by learners and how to determine the best learning site for the support. The strategy also provides guidelines on the central role that parents and teachers play in implementing the strategy as well as on the alignment of services by various government sectors.

19. First Draft Country Report for Public Comment, 28.

20. See section 4 on South African Legislation for a further discussion on domestic legislation.

21. South Africa ratified the CEDAW in 1995.

22. Report to the CEDAW Committee on South Africa’s implementation of CEDAW 1998-2008 (2010) (CEDAW Report) http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/CGE_SouthAfrica 48.pdf (accessed 2 October 2012) 21.

23. CEDAW Report (n 22 above) 48.

24. This policy enables a multi-faceted approach to advance the rights of people with disabilities in all areas. Targeted assistance, programmes and support in addressing inequities and health needs are very important. Barriers, such as environmental barriers and attitudes, often hinder participation in society for people with disabilities and impairments. The Report further mentioned that these disabilities often cause social segregation. CEDAW Report (n 22 above) 117.

25. Since ratifying the African Charter on the Rights and Welfare of the Child (ACRWC) in 2000, the government has not yet submitted any report to the African Committee of Experts on the Rights and Welfare of the Child.

26. For example the National Rehabilitation Policy was launched in August 2001.

27. Printed 2003.

28. Since 1998, training sessions have been held for health workers to learn sign language. The purpose is to give health workers the opportunity to learn basic sign language so that they can communicate with deaf patients who visit health facilities. It was not intended to make trainees fluent in sign language. It was recorded that to date 72 health workers have been trained.

29. Audiotapes have been produced carrying selected HIV/AIDS messages to create awareness among blind people. These tapes were launched on 6 September 2001 in Polokwane. To date 20 000 copies have been produced and distributed throughout the country, catering for all 11 official languages.

30. Provision of assistive devices countrywide is prioritised, with a particular focus on rural areas, children and women. Donor funds have also been used to reduce the backlog. On the maintenance side, wheelchair repair centres have been established in the nine provinces. These centres are mainly run by people with disabilities and take the repair service to the people.

31. A project has been initiated to encourage health facility managers to make their facilities accessible to people with disabilities. Facilities were then assessed and those who meet the set criteria are awarded certificates in Bronze, Silver or Gold (Gold the highest grading), as appropriate.

33. However, in Government of RSA & Others v Grootboom & Others 2001 1 SA 46 (CC) para 26, the Court stated that: ‘where the relevant principle of international law binds South Africa, it may be directly applicable'.

34. Section 231(3) provides that an international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.

35. Section 231(4) determines that a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. Section 231(5) further provides that the Republic is bound by international agreements, which were binding on the Republic when the Constitution took effect.

36. This includes incorporating the principle of equality of men and women in their legal system, abolishing all discriminatory laws and adopting appropriate ones prohibiting discrimination against women; and establishing tribunals and other public institutions to ensure the effective protection of women against discrimination.

37. See question 4 on legislation.

38. CEDAW Report (n 22 above).

39. UNICEF Convention on the Rights of the Child http://www.unicef.org/crc/ (accessed 26 September 2013) .

40. This Act sets out principles relating to the care and protection of children, defines parental responsibilities and rights and makes provision for matters such as children's courts, adoption, child abduction and surrogate motherhood. The principles call for the prioritisation of the best interests of the child, the right to the child being able to participate in any matter concerning that child, children living with disability or chronic illness and a child's right of access to court.

41. UNICEF Innocenti Research Centre Reforming child law in South Africa: Budgeting and implementation planning (2007) http://www.unicef-irc.org/publications/pdf/reformingchildlaw_reprint.pdf (accessed 26 September 2013).

42. Sec 10 (Human dignity); sec 11 (Life); sec 12 (Freedom and security of the person); sec 22 (Freedom of trade, occupation and profession); sec 23 (Labour relations); sec 27 (Health care, food, water and social security); sec 28 (Children); sec 29 (Education).

43. It aims to do this through human resources development, preferential procurement and state asset restructuring.

44. The offences including offences relating to sexual exploitation or grooming, exposure to or display of pornography and the creation of child pornography, despite some of the offences being similar to offences created in respect of adults as the creation of these offences aims to address the particular vulnerability of children and persons who are mentally disabled in respect of sexual abuse or exploitation. Furthermore this Act creates a duty to report sexual offences committed with or against children or persons who are mentally disabled. See secs 23 to 26, 54 and 57 of the Act.

45. The Act, clearly states that the test centre can issue a licence if they are satisfied that all the requirements have been met and in the case of an applicant is found to be competent to drive with the aid of spectacles or contact lenses, an artificial limb or other physical aid, endorse the licence accordingly; and in the case where the applicant is a physically disabled person who has to drive a vehicle adapted for physically disabled persons, or a vehicle adapted specifically for that physically disabled applicant, endorse the licence accordingly.

46. The Act introduces a point system for adjudicating state tenders or contracts. The framework includes preferential points for black women and men, white women and persons with disabilities.

47. 1997 3 SA 1012 (CC) para 32.

48. Case no 25/2005 (9).

49. Case no 01/2003.

50. Equality Court Case 1/2010 (December 2010).

51. [2008] 4 BLLR (LC) 356-390.

52. The INDS is currently under review, with the aim of strengthening institutional mechanisms, the monitoring and evaluation framework, national priorities and targets for the next 10 to 15 years, ensuring full alignment of the CRPD.

53. Office of the Deputy President Integrated National Disability Strategy White Paper (November 1997) http://www.info.gov.za/whitepapers/1997/disability.htm (accessed 26 September 2013) . There must be an integrated and co-ordinated management system for planning, implementation and monitoring at all spheres of government, and, to complement the process, there must be capacity building and wide public education.

54. National Accessibility Programme http://www.napsa.org.za/ (accessed 26 September 2013); and First Draft Country Report for Public Comment, 25.

56. This Code provides and regulates key aspects of access to ICT services for persons with disabilities and compels ICT service providers to comply with its requirements. These include: All service providers are required to meet specific targets in respect of the rights of access for persons with disabilities, including access to postal services and the built environment, as an integral component of their licences; annual awareness programmes on the rights of persons with disabilities to universal access to ICT services are coordinated through ICASA and the Code has been made available in different formats across all nine provinces; and awareness programmes through the use of community radio stations in local languages.

57. National Accessibility Programme (n 54 above).

59. As above.

61. Education White Paper: 2.2. Guidelines for Full-service/inclusive schools 2 http://www.thutong.doe.gov.za/inclusiveeducation//Policy//Guidelines/tabid/3262/Default.aspx (accessed 26 September 2013).

62. Department of Education, Education White Paper 6: Special needs education: building and inclusive education and training system (2001) 19.

63. Guidelines for Responding to Learner Diversity in Classrooms through National Curriculum Statement 2 http://www.thutong.doe.gov.za/inclusiveeducation//Policy//Guidelines/tabid/3262/Default.aspx (accessed 26 September) .

65. Statistical analysis to monitor trends in the prisoners with disabilities population is done monthly through reporting on the Management Information System (MIS), which reports on location, type of disability, age, gender and racial group.

66. White Paper on Corrections in South Africa 80 http://www.info.gov.za/view/Download FileAction?id=68870 (accessed 26 September 2013) . According to the White Paper the Department should also use the system of ongoing assessment to consider referrals, depending on the nature of the crime, to court for conversion of sentences of disabled offenders to correctional supervision and community service. To ensure that offenders with disabilities are treated in an appropriate manner, it will be important that members of staff are well educated and trained in the management of disabled offenders.

67. National Rehabilitation Policy http://www.doh.gov.za/docs/policy/2000/rehabpolicy.pdf (accessed 26 September 2013); and First Draft Country Report for Public Comment 24,39 and 43.

68. First Country Report for Public Comment 58.

69. First Draft Country Report for Public Comment 51.

70. The National Policy Framework for Teacher Education and Development in South Africa (2006) http://www.pmg.org.za/files/gazettes/061023educ-teachers.pdf (accessed 26 September 2013) .

71. According to the founding provisions of the Constitution, South Africa is one sovereign, democratic state founded on various values. In order to comply with the founding requirements, the Constitution establishes certain important institutions designed to provide and support the envisaged system of constitutional democracy and open government.

72. SAHRC website: http://www.sahrc.org.za.

73. Human Rights Commission Act 54 of 1994.

74. Section 14(1)(b)(vi) of the South African Human Rights Commission Bill of 2013; SAHRC Submission to the United Nations High Commissioner for Human Rights: Human Rights of Persons with Disabilities: Human Rights Council Resolution 16/15 (31 August 2011) http://www.ohchr.org/Documents/Issues/Disability/PoliticalParticipation/NHRIs/ResponseNHRISouthAfrica.doc (accessed 26 September 2013).

75. Members of the Committee on Disability and Older Persons represent a range of organisations, including many South African DPOs such as, and including, the Western Cape Cerebral Palsy Association, Down Syndrome South Africa, the QuadPara Association of South Africa and the South African Disability Alliance as well as the Cape Mental Health Society.

77. Public Protector website: http://www.pprotect.org .

78. Public Protector Act 23 of 1994.

79. As above.

80. The full report is available on the public protector’s website (n 77 above).

81. Disability Allsorts A directory of organisations and resources for people with disabilities in South Africa http://www.unisa.ac.za/contents/management/arcswid/docs/Disability_directory_allsorts09.pdf (accessed 26 September 2013) .

82. Disabled People South Africa website: http://www.dpsa.org.za/ (accessed 26 September 2013).

83. National Council for Persons with Physical Disabilities in South Africa website: http://www.ncppdsa.org.za/ (accessed 26 September 2013).

84. Disability Allsorts (n 81 above).

88. A list of the members of SADA can be found at http://www.dpsa.org.za/partnerships/. SADA will be registered as a non-profit organisation, and thereafter, it will exist as a legal entity.

89. First Draft Country Report for Public Comment, 63.

90. Early in 2011, the SADPD hosted a workshop on the possibility of developing an African Protocol on Disability. The workshop was convened in order that the disability partners of Africa could be informed and deliberate upon the African Disability Protocol that was in the process of being drafted by the Working Group on Older Persons and persons with disabilities in Africa. This idea is still under discussion.

92. AK Dube ‘The role and effectiveness of disability legislation in South Africa’ Disability Knowledge & Research (KaR) Programme http://tugsa63.org/documents/aditional%20documents/PolicyProject_legislation_sa.pdf (accessed 26 September 2013).

93. As above.

94. First Draft Country Report for Public Comment 64.

95. First Draft Country Report for Public Comment 2.

96. DPSA Achievements http://www.dpsa.org.za/achievements/ .

98. The DWCPD is specifically responsible for providing and protecting the rights and welfare of persons with disabilities, but many of the other government departments also deal with issues relating to persons with disabilities. They include the Department of Health, providing assistive devices such as wheelchairs to people in need of them; the Department of Justice and Constitutional Development, dealing with the lodging of complaints in the Equality Courts based on discrimination because of disability and access to courts; the Department of Transport, striving for quality and affordable transport for all; the Department of Basic Education, aiming at an Inclusive Education system; the Department of Labour, dealing with elimination of inequality at the work place and protecting human rights; the Department of Social Development, management and oversight over social security, encompassing social assistance and social insurance policies that aim to prevent and alleviate poverty in the event of life cycle risks such as loss of income due to disability; the Department of Communications and Department of Arts and Culture who both have to address the issue of the use of sign language for people with hearing disabilities; and any of the other departments also deal with the welfare and protecting of the rights of persons with disabilities to a lesser extent.

99. The DWCPD core functions include to: facilitate policy implementation towards the empowerment, advancement and socio-economic development of persons with disabilities; mainstream disability considerations into government policies, governance processes and programmes; facilitate, co-ordinate, oversee and report on the national rights of persons with disabilities programme - as well as those programmes part of South African regional, continental and international initiatives.

100. NE Groce & R Trasi ‘Rape of individuals with disability: AIDS and the folk belief of virgin cleansing’ (2004) 363 The Lancet 1663.

101. First Draft Country Report for Public Comment, 52.

102. L Chenwi & K Tissington Engaging meaningfully with government over socio-economic rights (2010) http://www.dhs.gov.za/Content/legislation_policies/Social%20Housing%20Policy.pdf (accessed 3 October 2013).

103. First Draft Country Report for Public Comment, 23.

104. First Draft Country Report for Public Comment, 50.

105. First Country Report for Public Comment, 10; Department pf Public Works website: http://www.publicworks.gov.za (accessed 26 September 2013); Bosch (see question 5) has also influenced and set a precedent for the accessibility of South African Police Services stations ensuring that in the future disabled persons will have access to all police stations.

106. Parliamentary Monitoring Group Department of Transport & DWCPD response to hearings on implementation of UN Convention on Rights of Persons with Disabilities (5 September 2012) http://www.pmg.org.za/report/20120905-responses-issues-raised-submissions-public-hearings-implementation-un (accessed 26 September 2013).

107. First Draft Country Report for Public Comment, 29; the Western Cape Forum for Intellectual Disability petitioned for the right to education for children with severe and profound intellectual disabilities to be recognised by the Department of Education.

108. It should be noted that the quality of the data is not in all cases reliable and up to date, and mostly tracks learners who are in special needs schools. First Draft Country Report for Public Comment, 29.

109. First Draft Country Report for Public Comment, 32.

110. First Draft Country Report for Public Comment, 33.

111. Department of Education Implementing inclusive education in South Africa: True stories we can learn from (November 2002) http://www.thutong.doe.gov.za/ResourceDownload.aspx?id=37391&userid=-1 (accessed 26 September 2013).

112. First Draft Country Report for Public Comment, 35.

113. A training manual to give effect to the guidelines was developed and has been implemented nationally and in all nine provinces, targeting government officials, national organisations for persons with disabilities, DPOs and representatives from protective workshops; First Draft Country Report for Public Comment, 48.

114. First Draft Country Report for Public Comment, 47.

115. First Draft Country Report for Public Comment, 58.

116. Department of Sport & Recreation Strategic Plan for Sport and Recreation 2011-2015 (2011) http://www.srsa.gov.za/pebble.asp?relid=807 (accessed 3 October 2013).

117. First Draft Country Report for Public Comment, 16-17.

118. SAHRC (n 76 above).

119. Disabled People South Africa (DPSA), interview with F Hassiem (11 August 2011) see http://www.dpsa.org.za/ (accessed 26 September 2013) . Prior to the local government elections held in early 2011, DPSA, a local NGO that advocates on behalf of persons with disabilities, and IEC representatives formed part of the Disability Reference group of the Western Cape, which consulted with various stakeholders in the disability sector on how voting can be facilitated to include persons with disabilities. The following restrictions were identified: Voter education needs to happen on an on-going basis and Reasonable Accommodation (RA) should be a priority. RA means, inter alia, documents in Braille or large print, information in audio, sign language interpretation, introduction of Electronic Voting Machines; Secondly, venue accessibility was cited as a concern, including the need for ramps, assistance, and ballot papers themselves in large print or Braille. The IEC concurred that one of the biggest restrictions to vote and be elected is the issue of access, as well as the issue of whether there are special arrangements made during elections for persons with disabilities. The reference group noted that special voting education must be undertaken so that persons with disabilities, especially those in far outlying or rural areas, understand their rights with regard to applying for special voting procedures.

120. Health Sciences Research Council IEC Voter Participation Survey 2010/11: An Overview of Results (14 April 2011). In the 2011 Human Sciences Research Council (HSRC) Survey on Voter Participation (conducted in collaboration with the IEC), about 3 per cent of the participants found that facilities to register and vote were inaccessible.

121. Media Statement issued by the Ministry for Women, Children and People with Disabilities ‘People with disabilities can vote at home’ 17 April 2011 http://www.wcpd.gov.za/images/uploads/Disability_elections.doc (accessed 2 October 2013). In 2011, the IEC announced that it had procured the necessary equipment to make ballot papers available in Braille at all polling stations. This would enable persons with visual impairments to vote in secret during local and general elections for the first time. However, the Commission noted that the needs of persons with intellectual and psycho-social disabilities been largely overlooked. The Commission thus concluded it must be ensured that they are included in the voting process and are given the opportunity to participate fully in public life: SAHRC (n 76 above).

122. IEC Voter Participation Survey 2010/11 (n 120 above) 12.

123. IEC ‘Findings of IEC voter participation survey’ 14 April 2011 http://www.elections.org.za/content/new.aspx?id=1799 (accessed 27 September 2013).

124. First Draft Country Report for Public Comment 59.

125. Disaggregated statistics for violence against women and children with disabilities are not available. Women with communication and/or intellectual and/or psychiatric disabilities experience particular difficulties in accessing justice when their rights have been violated.

126. South Africa has not, effectively built the inclusive MDGs into its planning frameworks in terms of the alignment and harmonisation of programs. There is a lack of coherent data to measure progress. South Africa will ensure a stronger focus on poverty reduction and the improvement of health for persons with disabilities as well as children. First Draft Country Report for Public Comment, 1.

127. First Draft Country Report for Public Comment, 16.

128. The South African Police Services (SAPS) have for example procured an extensive range of personal assistive devices for employees with disabilities, including manual and motorised wheelchairs, prosthesis, white canes, vehicle adaptations, as well as a range of technological equipment, to promote independence and productivity during the period 2008-2011. First Draft Country Report for Public Comment, 24-25.

129. First Draft Country Report for Public Comment, 25.

130. First Draft Country Report for Public Comment, 22-25.

131. The policy embodies the principles of art 24 of the CRPD.

132. The scholar transport policy which is being developed will incorporate norms for accessibility. Mobile ramps have been procured by the national Department of Education for selected schools to ensure that mini bus taxis can be made accessible. First Draft Country Report for Public Comment, 30; The Department of Transport Final draft: National scholar transport policy (February 2009) http://www.fedsas.org.za/downloads/10_52_24_National%20Scholar%20Transport%20Policy.pdf (accessed 27 September 2013) .

133. For introduction into the system during 2013. Once this curriculum is completed Higher Education Institutions will be encouraged to increase the number of teacher training courses for teachers using Sign Language as a medium of instruction across subject fields. Currently there are only 3 teacher training programmes, namely at Free State University, the University of the Witwatersrand and UNISA. First Draft Country Report for Public Comment, 34.

134. First Draft Country Report for Public Comment, 5; SAHRC Report November 2002, 20.

135. First Draft Country Report for Public Comment, 56.

136. Affording sign language with official language status would help deaf people to be recognised by all the sectors to accommodate them and to enable them to have full access: Parliamentary Monitoring Group ‘Recognition of South African Sign Language as Official Language: Briefing by Deaf Federation of South Africa’ 16 February 2007 http://www.pmg.org.za/minutes/20070215-recognition-south-african-sign-language-official-language-briefing-deaf-federation (accessed 27 September 2013).


  • Ngozi C Umeh
  • LLD Candidate, Centre for Human Rights, University of Pretoria
  • Romola Adeola
  • LLD Candidate, Centre for Human Rights, University of Pretoria


 
1 Population indicators
1.1 What is the total population of Nigeria?

According to the 2006 Population and Housing Census the total population of Nigeria was 140 431 790.1

1.2 Describe the methodology used to obtain the statistical data on the prevalence of disability in Nigeria, and the criteria used to determine who falls within the class of persons with disabilities in Nigeria

The methodology used to obtain statistical data on the prevalence of disability in Nigeria was through field interview (National Census).2

1.3 What is total number and percentage of people with disabilities in Nigeria?

The total number of people with disabilities in Nigeria according to the 2006 Census were 3 253 169 and the percentage is approximately 2.32 per cent.3

1.4 What is the total number and percentage of women with disabilities in Nigeria?

The total number of women with disabilities in Nigeria in line with the 2006 Census is 1 544 418 and the percentage is 1.1 per cent.4

1.5 What is the total number and percentage of children with disabilities in Nigeria?

According to the 2006 Census the total number of children with disabilities in Nigeria is 1 002 062 and the percentage is 0.71 per cent.5

1.6 What are the most prevalent forms of disability in Nigeria?

The most prevalent forms of disability in Nigeria include:

(1) visual impairment;

(2) hearing impairment;

(3) physical impairment;

(4) intellectual impairments; and

(5) communication impairment.6

 

2 International obligations
2.1 What is the status of the United Nation’s Convention on the Rights of People with Disabilities (CRPD) in Nigeria? Has Nigeria signed and ratified the CRPD and the Optional Protocol?

Nigeria signed and ratified both the Convention and its Optional Protocol on 30 March 2007 and 24 September 20107 respectively.

2.2 If Nigeria has signed and ratified the CRPD, when is/was its country report due? Which government department is responsible for submission of the report? Has Nigeria submitted its report? If not, what reason does the relevant government department give for the delay?

The Ministry of Women Affairs and Social Development is responsible for the submission of Nigeria’s country report. Nigeria’s Report was due by May 2012. The delay was caused by lengthy national processes.

2.3 If Nigeria has submitted the report in 2.2 and if the Committee on the Rights of Persons with Disabilities had reviewed the report, indicate if the Committee made any concluding observations and recommendations to Nigeria’s report. Was there a domestic effect in Nigeria on disability issues due to the reporting process?

Nigeria has not submitted the report. Therefore there were no observations.

2.4 While reporting under various other United Nation’s instruments, the African Charter on Human and People’s Rights or the African Charter on the Rights and Welfare on the Child, has Nigeria also reported specifically on the rights of persons with disabilities in its most recent reports? If so, have concluding observations adopted by the treaty bodies, addressed disability? If relevant, were these observations given effect to? Was mention made of disability rights in Nigeria’s UN Universal Periodic Review (UPR)? If so, what was the effect of these observations or recommendations?
Regional instruments
  • African Charter on Human and Peoples’ Rights (ACHPR)

Nigeria’s fourth periodic report8 (the report) on human rights incidences and interventions to the Committee on the ACHPR did not report specifically on the rights of persons with disabilities. The report made reference to the constitutional, administrative and judicial measures adopted towards the protection of the family and rights of women, children, the aged and the disabled, to the extent that government directs its policies towards ensuring that suitable and adequate shelter, food and welfare of the disabled and other citizens are provided.

  • African Charter on the Rights and Welfare of the Child (ACRWC)

The Nigeria report on the status of implementation of the African Charter on the Rights and Welfare of the Child (ACRWC)9 did not mention the right of persons with disabilities.

United Nations instruments
  • Convention on the Rights of the Child (CRC)

The Minister of Women Affairs and Social Development while presenting the Nigeria Country Report10 did not specifically report on the rights of persons with disabilities.

  • Convention on the Elimination of all forms of Discrimination against Women (CEDAW)

Nigeria in its sixth periodic report in 2008 did not report specifically on the rights of persons with disabilities.11

  • UN Universal Periodic Review (UPR)

Nigeria’s UPR took place on 9 February 2009.12 During the session, no mention was made of disability rights except that Nigeria has ratified the Optional Protocol to the CRPD.

2.5 Was there any domestic effect on Nigeria’s legal system after ratifying the international or regional instruments in 2.4 above?

After ratifying the ACHPR, the ACRWC, and the CRC, they were incorporated into Nigerian legislation through an Act of the National Assembly (the legislature) in line with the Nigerian Constitution.13 The Constitution states that no treaty between the federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly. Consequently, the ACHPR was adopted in its entirety as part of Nigerian law by the (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria. Since then, Nigeria has since, progressively been implementing the ACHPR through Chapter 2 and 4 of the Constitution and through other government ministries, commissions and organisations. Moreover, there is the Child’s Right Act which has been adopted by the 22 states of the Federation. States that have passed the Child Right Act have been encouraged to develop mechanisms for the effective implementation of the legislation in their domains. Nigeria has through this Act mainstreamed the provisions of the CRC. Nigeria has yet to domesticate the CEDAW.

2.6 Do ratified international treaties automatically become domestic law under your legal system? If so, are there any cases where the courts applied international treaty provisions directly?

Nigeria follows a dualistic approach under which international instruments or treaties become domestic law only when such a treaty has been enacted into law by the National Assembly.

2.7 With reference to 2.4 above, has the United Nations CRPD, or any other ratified international instrument, or parts thereof, been incorporated verbatim into national legislation? Provide details.

The ACHPR was incorporated in its entirety into Nigerian legislation. The Amended 1999 Constitution of the Federal Republic of Nigeria, in chapter II and IV make provision for socio economic rights and civil and political rights14 respectively. These provisions essentially conform to the provisions in the ACHPR. However, the chapter II group of rights are rendered non justiciable15 under the Nigerian Constitution and cannot expressly be determined by any court of law in Nigeria. Nigeria has also mainstreamed the CRC.

 

3 Constitution
3.1 Does the Constitution of the Republic of Nigeria of 1996 (hereinafter referred to as the ‘Constitution’) contain provisions that directly address disability? If so, list the provisions and explain how each provision addresses disability.

The Constitution does not contain any provision or provisions that directly address disability.

3.2 Does the Constitution contain provisions that indirectly address disability? If so, list the provisions and explain how each provision indirectly addresses disability.

The Amended 1999 Constitution of Nigeria contains some provisions that indirectly address disability. These include:

  • Section 42(2) which prohibits discrimination based on the circumstances of a person’s birth; and
  • Sections 14, 16(1) and 17 which guarantee the right to equality and fundamental rights for all.

 

4 Legislation
4.1 Does Nigeria have legislation that directly addresses disability? If so, list the legislation and explain how the legislation addresses disability.
  • There is a 1993 Nigerians with Disability Decree passed by the Nigerian military government in 1993.

This legislation directly addresses disability by providing for the rights and social welfare of persons with disabilities.

Some legislation on disability can be found in some states16 in Nigeria

    • Lagos State Special People’s Law 2011 set up an Office of Disability Affairs whose functions include:

The issuance of guidelines for the education, social development and welfare of persons living with disability; investigation, prosecution and sanctioning in appropriate cases the violation of any of the provisions of the law subject to an individual’s right to seek redress in court; re-orientation and education of the public on the right attitude towards persons living with disabilities; issuance of directives and guidelines on all manner of disabilities, preventive or curative exercises; actualising the enjoyment of all rights in the law by persons living with disabilities; keeping and updating a register and database of persons living with disabilities; and an advocacy and enlightenment campaign drive targeted at members of the public on ways to empathise with persons living with disabilities.

The law also establishes a Disability Fund, which shall be administered by the office and to which individuals, corporate bodies and government may make contributions. As settled in the law, the purpose of the Fund is to advance the cause of persons living with disability in the state.

4.2 Does your country have legislation that indirectly addresses disability? If so, list the main legislation and explain how the legislation relates to disability.
  • The Child Rights Act, 2003

It states that children are entitled to freedom from discrimination on the grounds of belonging to a particular community or ethnic group, place of origin, sex, religion, the circumstances of birth, disability, deprivation or political opinion.Further, it provides categorically that the dignity of the child shall be respected at all times. The Act specifies that children in need of special protection measures should be protected in a manner that will enable them to achieve their fullest, possible social integration.

5 Decisions of courts and tribunals
5.1 Have the courts (or tribunals) in Nigeria ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases indicating what the facts, the decision(s), the reasoning and impact (if any) the cases has had.

Generally, after researching the same, I was not able to find any Nigerian case or decision relating to a disability issue or issues.17

6 Policies and programmes
6.1 Does Nigeria have policies or programmes that directly address disability? If so, list each policy and explain how the policy addresses disability.
  • There is a national policy aimed at integrating persons with disabilities in governance.18 This policy is intended at providing equal opportunity for persons with disabilities to contest elective positions, have access to elections, and the ability and opportunity to vote in elections.
  • The National Social Welfare Policy19 aims to take care of the developmental needs of persons with disabilities, orphans and vulnerable children, as well as the elderly in society. The main objective of the policy is to provide a comprehensive social welfare package to check the growing menace of street begging in and around cities by citizens, as well as take into consideration the plight of the aging sector of the county’s population and other vulnerable groups.
6.2 Does Nigeria have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.

The Nigerian National Policy on Education,20 recognises that children and young persons with special needs shall be provided with inclusive education services.

7 Disability bodies
7.1 Other than the ordinary courts or tribunals, does your country have any official body that specifically addresses the violation of the rights of people with disabilities? If so, describe the body, its functions and its powers.

The Joint National Association of Persons with Disabilities (JONAPWD) is the official body in Nigeria that specifically addresses the violation of the rights of people with disabilities. The Executive Council of JONAPWD acts as a conduit between the Nigerian government and persons with disabilities in order to promote the rights of persons with disabilities. JONAPWD protects persons with disabilities by reporting any form of inhuman treatment they are subjected to, to the government. It has been able to establish partnership with other mainstream human rights organisations, like Action Aid Nigeria, coalition for change and PACT Nigeria. However, it has been argued that JONAPWD does not have the capacity to become an effective rights-based advocacy body as a result of the absence of a strategic plan including an obvious lack of transparency.21

7.2 Other than the ordinary courts or tribunals, does your country have any official body that though not established to specifically address a violation of the rights of people with disabilities, can nonetheless do so? If so, describe the body, its functions and its powers.

The Association of Comprehensive Empowerment of Nigerians with Disabilities (ASCEND) started as a movement for the empowerment of Nigerians with disabilities. It is a platform for all Nigerians with disabilities to come together and speak with one voice.22 ASCEND is more or less a socio-political group with the objective aim of integrating persons with disabilities in society generally, and in politics in particular.23

8 National human rights institutions
8.1 Discuss Nigeria’s position with regard to a Human Rights Commission or an Ombudsman or Public Protector in Nigeria? Does its remit include the promotion and protection of the rights of people with disabilities? If your answer is yes, also indicate whether the Human Rights Commission or the Ombudsman or Public Protector of Nigeria has ever addressed issues relating to the rights of persons with disabilities.

Nigeria has a National Human Rights Commission. One of the functions and powers of the Human Rights Commission is to deal with all matters relating to the protection of human rights as guaranteed by the Nigerian Constitution, the ACHPR, United Nations Charter, the Universal Declaration of Human Rights and other International treaties on human rights to which Nigeria is a signatory.

Furthermore, the National Human Rights Commission has addressed issues relating to the rights of persons with disabilities in Nigeria in the following ways: it has created the office of a special rapporteur as well as a program officer on persons with disabilities. This is a way to integrate disability issues into the National Human Rights Commission’s work and to have a desk responsible for disability concerns.24

The Nigerian Human Rights Commission also conducted a survey to support facilities in tertiary institutions aimed at assisting persons with disabilities to enjoy inclusive education. It was found that few tertiary institutions in Nigeria have basic facilities like ramps, lifts with sound and brailed floor numbering to assist persons with disabilities. It has also planned workshop and advocacy visits for institutions to improve access to persons with disabilities. The National Human Rights Commission has provided ramps and lifts with sound and brailed floor numbering in its head office at Abuja, Nigeria.

 

9 Disabled peoples organisations (DPOs) and other civil society organisations
9.1 Do you have organisations that represent and advocate for the rights and welfare of persons with disabilities in your country? If so, list each organisation and describe its activities.

In addition to the JONAPWD and the ASCEND, mentioned in 7.1 & 7.2 above which are the national umbrella bodies, there is a multiplicity of other DPOs working at a national, state and local level. Most of these organisations cater for the needs of single impairment groups:

  • The Leprosy Mission

Provides medical and vocational rehabilitation services to individuals with leprosy; they have also undertaken public campaigns to educate and inform the public about leprosy

  • The Spinal Cord Injury Association of Nigeria

Provides therapeutic care and support for people with spinal cord injury

  • Deaf Women in Nigeria

Takes care of women with hearing and communication impairments

  • The Accidents Victim Support Association

Provides services for people with mobility problems and other physical, vision and hearing impairments

  • Centre for Citizens with Disabilities

Provides development and integration persons with disability in all spheres of life

  • The Nigerian National Association of the Deaf

Offers assistive services to people with hearing impairments

  • Resource Centre for Advocacy on Disability

Assists with advocacy support through networking on disability issues

  • Persons with Disabilities Action Network

Inclusive Participation and Access through research and documentation, advocacy capacity building, resource mobilisation and networking

  • Leonard Cheshire Disability

Provides training, workshops and research

  • National Handicap Carers Association of Nigeria

A support group for persons with disabilities

  • Christian Blind Mission

Running community based rehabilitation programmes for persons with disabilities

  • Inclusion International

Advocates for human rights of people with intellectual disabilities and their families

Admittedly and according to Lang,25 disability organisations in Nigeria are weak and are always in conflict with each other. This does not allow them to communicate with one unifying voice in effectively advocating for their rights.

9.2 In the countries in your region, are DPOs organised and coordinated at a national and/or regional level?

DPOs in the West African region are organised at a national level in their various countries and are also organised and coordinated at a regional level.

9.3 If your country has ratified the CRPD, how has it ensured the involvement of DPOs in the implementation process?

Though the CRPD has not been domesticated in Nigeria, the Ministry of Women Affairs try to partner with DPOs through focus group discussions on issues concerning them with respect to policies, programmes and operational modalities that will make for effective social inclusion of persons with disabilities in society. Furthermore, the government has also provided disability desks in each of the 774 local government areas and at the office of the National Commission on Human Rights.

9.4 What types of actions have DPOs themselves taken to ensure that they are fully embedded in the process of implementation?
  • In Nigeria, DPOs have tried to lobby government towards a rights based approach to disability issues.
  • They have also partnered with the national government in developing policies and programmes on disability even though participation is generally poor.
  • DPOs have also lobbied the Independent National Electoral Commission (INEC) to amend section 57 of the Electoral Act, so as to ensure that all Nigerians with disabilities have access to voting and can be voted for during elections.
9.5 What, if any, are the barriers DPOs have faced in engaging with implementation?

DP0s in Nigeria face the following barriers when it comes to engaging with implementation:

  • Lack of political will
  • No national disability legislation
  • Non-existence of administrative structures for effective implementation.
9.6 Are there specific instances that provide ‘best-practice models’ for ensuring proper involvement of DPOs?

To the best of my knowledge, there are no best practice models for ensuring effective involvement of DPOs in Nigeria.

9.7 Are there any specific outcomes regarding successful implementation and/or improved recognition of the rights of persons with disabilities that resulted from the engagement of DPOs in the implementation process?

The introduction of the Disability Bill in the National Assembly in order to secure disability rights is an example of a specific outcome in recognising the rights of persons with disabilities. Furthermore, disability legislation has been enacted in some states of the Federation with disability advisors and desks provided.

9.8 Has your research shown areas for capacity building and support (particularly in relation to research) for DPOs with respect to their engagement with the implementation process?

In the area of teacher training and funding of schools, a lot of capacity building and support is required. DPOs need to be sensitised to the dangers of adopting the welfare approach to disability as this will further perpetuate their exclusion from society. The greatest challenges DPOs face is the non-existence of any structure to apply and implement a rights based approach to disability issues.

9.9 Are there recommendations that come out of your research as to how DPOs might be more comprehensively empowered to take a leading role in the implementation processes of international or regional instruments?
  • DPOs need be trained and sensitised through public lectures and the media on the principles of the social/human rights approach to disability.
  • There is a need to adopt a national legislation on disability, so that the proposed national commission for persons with disability can take off.
  • There is a need to establish an adequate administrative infrastructure at a national, state, and local level to ensure effective implementation and consequently provide an opportunity for DPOs to play or take a leading role.
  • There is a need to ensure DPOs are represented at the policy making bodies of both federal and state governments.

10 Government departments
10.1 Does Nigeria have government departments that are specifically responsible for promoting and protecting the rights and welfare of persons with disabilities? If so, describe the activities of the departments

The government department responsible for promoting and protecting the rights and welfare of persons with disabilities in Nigeria is the Federal Ministry of Women Affairs and Social Development.26

The Ministry provides some basic rehabilitation services. They also organise seminars and workshops for persons with disabilities. The Ministry is also responsible for the formulation of policies and programmes for persons with disabilities.

11 Main human rights concerns of people with disabilities
11.1 What are the contemporary challenges of persons with disabilities in Nigeria? (for example, in some parts of Nigeria ritual killing of certain classes of PWDs occurs, such as people with albinism. Tanzania has been in the headlines in this regard. We should have a way of interrogating customary practices that discriminate, injure and kill persons with disabilities).

There are deep-seated negative social attitudes and perceptions of persons with disabilities, who deserve compassion and concern. Ritual killing of people with albinism also occurs.There is no comprehensive legislation on disability and a non-homogenous disability movement.

11.2 How does Nigeria respond to the needs of person with disabilities with regard to the areas listed below?
  • Access to public buildings

Most public buildings in Nigeria are not accessible to persons with disabilities. Only very few tertiary institutions and government offices have rams, lifts with sound and floors with brail numbering.

  • Access to public transport

Nigeria’s public transport system is not sensitive to the plight of persons with disabilities and there is no social inclusion project or programme envisaged

  • Access to education, vocational training and health care

The number of persons with disabilities in mainstream schools is dismally low. They are usually kept in special schools and are prevented from having close interaction with other pupils and the community at large.

Nonetheless, one positive factor relates to education, vocational training and health care. A number of national and international non governmental organisations (NGOs)27 are working within the disability sector to provide vocational training which will focus on computer technologies and ICT,28 care giving projects and inclusive education.

The Ministry of Women Affairs and Social Development provides some rehabilitation, medical and vocational services to persons with disabilities. Sometimes the Ministry of Health assists with funds.

  • Access to employment

There are no policies or programmes to enable persons with disabilities to gain full or even part time employment. Efforts to provide financial independence come largely from NGOs.29

  • Access to recreation and sports

Very few persons with disabilities have access to recreation and sporting facilities. Persons with disabilities in rural areas are usually forgotten.

  • Access to justice

There is a Legal Aid Office attached to the Ministry of Justice that renders pro bono legal services to persons with disabilities who cannot afford to live on less than one dollar per day. Another organisation, International Federation of Women Lawyers (FIDA), also provides access to justice for persons with disabilities by offering pro bono services.

11.3 Does Nigeria provide for disability grants or other income support measures for persons with disabilities?

In Nigeria income support measures for persons with disabilities come in the form of grants.

11.4 Do people with disabilities have a right to participation in political life (political representation and leadership) in Nigeria?

Persons with disabilities have a right to participation in political life.

11.5 Specific categories experiencing particular issues or vulnerability
  • Women with disabilities

They are highly vulnerable and bear a disproportionate burden of caring for other persons with disabilities. In the majority of cases they find it very difficult to get married as a result of their disability, and are usually raped and abandoned. These women also suffer stigmatisation.

  • Children with disabilities

Children are more vulnerable as they are entitled to care by parents and the community. Unfortunately children with disabilities are usually stigmatised and hidden away from public view, and as a result they do not have access to inclusive education and so do not have the opportunity of interacting with other children. This leads to low self-worth and great disempowerment.

12 Future perspective
12.1 Are there any specific measures with regard to persons with disabilities being debated or considered in Nigeria at the moment?

At the moment, there is a National Social Welfare Policy to take care of the developmental needs of persons with disabilities, orphans and vulnerable children, as well as the elderly within society.30 It is on the verge of being developed and has attracted a lot of attention and workshops.

12.2 What legal reforms are being raised? What legal reforms would you like to see in your country? Why?
  • Advocacy efforts are being channelled to ensure that the Disability Bill before the National Assembly is enacted into law.
  • The Nigerian Constitution amended to include disability rights specifically and these rights should be made justiciable.
  • There should be a body responsible for evaluating and monitoring accessibility in all sectors of human endeavours for persons with disabilities.
  • Disability awareness should be incorporated in the training of teachers, doctors, architects, lawyers, construction engineers, nurses and the like.
  • There should be a legal provision that mandates representatives of persons with disabilities to participate in policy making and to work with government institutions.

 


1. Federal Republic of Nigeria Official Gazette, No 2 Abuja, 2 February 2009, Vol 96, National population commission Census Priority Table: 2006 Population distribution by, sex and class size of householdstate and local government area table HH (ADD 1), Vol IX, April 2010.

2. Interview with surveyor C Nwogwu, State Director National Population Commission, Imo State, Nigeria.

3. Census Priority Table (n 1 above) 14 - 15.

4. Census Priority Table (n 1 above) 20 - 21.

5. Census Priority Table (n 1 above) 40 - 41.

6. ‘Interview source from Mrs Comfort Nnaji, principal planning officer, ministry of Women Affairs and Social Development Imo State Nigeria’: CC Opara, Principal Assistant Social Welfare Officer I, Ministry of Women Affairs and Social Development Imo State.

7. Consolidated disability findings from the 2010 US State Department Country Reports on Human Rights practices http://www.usicd.org/doc/africa_disability_references1.pdf (accessed 15 April, 2013); http://www.un.org/en/rights/html (accessed 15 April 2013); E-mail communication from Prof O Nnamdi on 19 April 2013.

8. http//www.achpr.org/files/sessions/50th/state-reports/4th-2008-2010/staterep4_nigeria_2011_ eng.pdf (accessed 24 April 2013).

10. http://www.refworld.org/docid/43fb2c612.html (accessed 28 April 2013).

11. http://www.iwraw.ap.org/resources /pdf141_shadow_reports/Nigeria_SR_by-html (accessed 28 April 2013).

12. http://wwwreliefweb.int/.../Nigeria/report-working-group-universalperiodicreview.2006 (accessed 28 April 2012).

13. See sections 12(1), (2) & (3) of the Amended Constitution of the Federal Republic of Nigeria.

14. The chapter 11 group of rights is referred to as the Fundamental Objectives and Directive Principles of state policy, while the chapter IV group of rights is referred to as Fundamental Rights. See sections 13-24 and 33-46 of the Amended 1999 Constitution of the Federal Republic of Nigeria.

15. By virtue of sections 6(6)(c) of the Amended Constitution of the Federal Republic of Nigeria; see also 2.5 above.

16. The Edo State House of Assembly is currently considering a bill, to enact into law, to make provisions for the establishment of a commission for persons with disabilities. http://www.lagosstate.gov.ng/entities.php?k=207 (accessed 26 September 2013).

17. The researchers also interviewed senior lawyers, judges and lawyers in the Ministry of Justice.

18. J Xinhua ‘Nigeria develops policy on integration of disabled persons’ 29 February 2010 http://www.englishpeopledaily.com.cn/00001/90777/90855/7045385.html (accessed 10 April, 2013).

19. http://allafrica.com/stories/201202090857.html (accessed 26 September 2013).

20. Revised National Policy on Education 2008 sec 7: Special Needs Education, Abuja, Nigeria

21. R Lang & L Upah ‘Disability scoping study in Nigeria’ (2008) 19.

22. As above.

23. (n 21 above) 20

24. The Nigeria Report (n 9 above) 4.

25. Lang & Upah (n 21 above) 20.

26. This is situated at Abuja.

27. Interview with CC Opara, principal assistant social welfare officer, Ministry of Women Affairs and Social Development, Imo State. See also Xinhua (n 18 above) 19.

28. Christian Blind Mission (CBM), Leprosy Mission (LM), and Leonard Cheshire Disability (LCD).

29. Xinhua (n 18 above) 24. LCD is working in Lagos, Ibadan, Port Harcourt, Imo and Enugu States and has trained a number of teachers in mainstream schools on the inclusive education approach as against the integration approach which they are used to. The CBM is also piloting community-based rehabilitation programmes in some states in Nigeria.

30. This formed part of the resolutions of the 14th regular meeting of the National Council on Women Affairs and Social Development held in Ado Ekiti, Southern Nigeria on 9 February 2012.


  • Pierre Olivier Lobe
  • Florent Mubaya Kiwele Kya Bantu, Avocat à la Cour d’Appel, Kinshasa, DRC


1 Les indicateurs démographiques

1.1 Quelle est la population totale de la République Démocratique du Congo (RDC).

Depuis l’année 1984, il n’a jamais été organisé de recencement de la population totale habitant la RDC, seules des estimations ont été utilisées ces dernières années, la dernière estimation du Gouvernement date de l’année 2011, et fait état de plus ou moins 70.000.000 d’habitants, dont 52% au moins sont des femmes.

1.2 La méthodologie employée en vue d’obtenir des données statistiques sur la prévalence du handicap en RDC, et les critères utilisés pour déterminer qui fait partie de la couche des personnes handicapées en RDC:

Les statistiques sont peu développées dans ce pays, à ce jour seules les enquêtes faiblement documentées et réalisées généralement par les Organisation des Personnes Handicapées nationales et internationales sur une partie du territoire ont servi pour resencer les personnes handicapées

1.3 Quel est le nombre total et le pourcentage des personnes handicapées en RDC?

Il est estimé qu’il ya,10.500.000 personnes handicapées en RDC, ce qui fait en termes de pourcentage, près de 15% de la population.1

1.4 Quel est le nombre total et le pourcentage des femmes handicapées en RDC?

Il n’existe aucune statistique établissant avec exactitude le pourcentage de femmes handicapées en RDC.

1.5 Quel est le nombre total et le pourcentage des enfants handicapés en RDC?

Comme pour les femmes handicapées, il n’existe pas à ce jour, des statistiques établissant avec exactitude le pourcentage des enfants handicapés en RDC.

1.6 Quelles sont les formes d’handicap les plus répandues en RDC?

Toutes les formes d’handicap se retrouvent partout en RDC,

(1) L’handicap moteur,

(2) L’handicaps visuel,

(3) L’handicaps auditif et

(4) L’handicaps mental 

2 Obligations internationales

2.1 Quel est le statut de la Convention des Nations Unies relative aux Droits des Personnes Handicapées en RDC. La RDC a-t-elle signé et ratifié la CDPH? A quelle(s) date(s) ? La RDC a-t-elle signé et ratifié le Protocol facultatif? A quelle(s) date(s)?

Non, la RDC n’a pas encore jusqu’à ce jour ni signé, ni ratifié ou adhéré à la CDPH, comme non plus pour le Protocol facultatif.

2.2 Si la RDC a signé et ratifié la CDPH, quand doit elle soumettre son rapport, et le service du gouvernement responsable de la soumission du rapport. La RDC a-t-elle soumis son rapport?

La RDC n’est pas encore partie à la CDPH, et de ce fait, elle n’a pas l’obligation de présenter de rapport initial ou périodique au comité de surveillance institué par la CDPH.

2.3 Si la RDC a soumis le rapport au 2.2 et si le comité en charge des droits des personnes handicapées avait examiné le rapport, veuillez indiquer si le comité avait émis des observations finales et des recommandations au sujet du rapport de la RDC. Y’avait-il des effets internes découlant du processus de rapport liés aux questions des handicapés en RDC?

Comme dit au point 2.2, la RDC n’est pas encore partie à la CDPH, et par conséquent n’a jamais soumis de rapport.

2.4 En établissant un rapport sous divers autres instruments des Nations Unies, la Charte Africaine des Droits de l’Homme et des Peuples ou la Charte Africaine relative aux Droits et au bien-être de l’Enfant, la RDC a-t-elle également fait mention spécifique du droit des personnes handicapées dans ses rapports les plus récents? Si oui, les observations finales adoptées par les organes statutaires ont-elles fait mention du handicap? Si pertinent, ces observations ont-elles été suivies d’effet? Etait-il fait mention des droits des handicapés dans le rapport de l’Examen Périodique Universel (EPU) des Nations Unies présenté par la RDC en décembre 2009? Si oui, quels sont les effets de ces observations ou recommandations?

Les instruments internationaux relatifs aux droits de l’homme des Nations Unies: la RDC est partie à six des neuf principaux instruments internationaux des droits de l’homme. Pour certains de ces instruments, elle a accumulé des retards dans la présentation de ses rapports périodiques devant les organes de traités. Les observations faites lors de présentation de ces rapports sont devenues dépassées vu le temps écoulé pendant lequel la RDC a rompu tout contact avec les organes de surveillance des traités internationaux relatifs aux droits de l’homme. La question de la personne handicapée n’a pas été posée.

Concernant les instruments régionaux, la RDC est partie à Charte Africaine des droits de l’homme et des Peuples. La même réalité exposée ci-dessus concernant les instruments internationaux des droits de l’homme s’applique malheureusement en ce qui concerne cet instrument régional

La RDC a présenté son rapport au cycle premier de l’Examen Périodique Universel, EPU, en décembre 2009, et elle a reçu et accepté 124 recommandations des Etats ayant examiné son rapport. De toutes ces recommandations, seules quatre(4) sont relatives à la personne handicapée, les 3,6 et 7 portent sur la ratification de la CDPH, et une, la 24, demande à la RDC d’améliorer la situation des personnes vulnérables, et d’adopter une législation pouvant garantir la protection et la promotion des personnes handicapées, des enfants et des femmes.

2.5 Y’avait-il un quelconque effet interne sur le systeme juridique de la RDC après la ratification de l’instrument international ou régional invoqué au 2.4 ci-dessus?

En effet on a observé quelques fois des modifications de la loi nationale pour la rendre en conformité avec les dispositions d’une convention. Par exemple, en droit pénal congolais, il n’y avait pas d’infraction autonome défissant et punissant la torture, après l’adhésion de la RDC à cet instrument, il a été nécessaire de modifier le code pénal pour y introduire une nouvelle infraction spécifique réprimant la torture, dont la définition se réfère à l’article 1er de la Convention relative à la torture et autres peines ou traitements cruels, inhumains et dégradants. Cette loi punit indistinctement toute personne ou agent public qui se rendrait coupable des actes de torture, y compris à l’égard des personnes handicapées.) La Loi no 11/008 du 09 Juillet 2011 portant criminalisation de la Torture a prévu des peines selon qu’il s’agisse des personnes normales ou celles protégées du fait de leur âge ou condition.

L’infraction de torture est punie d’une peine de cinq à dix ans de servitude pénale principale et d’une amende de cinquante milles à cent milles Francs congolais.

Le coupable sera puni de dix à vingt ans de servitude pénale principale et d'une amende de cent mille à deux cents mille francs congolais lorsque les faits commis auront causé à la victime un traumatisme grave, une maladie, une incapacité permanente de travail, une déficience physique ou psychologique, ou lorsque la victime est une femme enceinte, un mineur d'âge ou une personne de troisième âge ou vivant avec handicap.

2.6 Les traités internationaux ratifiés deviennent-ils automatiquement loi nationale sous votre systeme juridique? Si oui y’a-t-il des cas où les cours et tribunaux appliquent directement les dispositions du traité international?

La Constitution du 18 Février 2006 en son article 215 dispose: « Les traités et accords régulièrement conclus, ont dès leur publication, une autorité supérieure à celle des lois, sous réserve pour chaque traité ou accord, de son application par l’autre partie. »

La RDC applique le système juridique dit « monisme », avec primauté du droit international sur le droit interne, c’est à dire, toute convention régulièrement ratifiée entre automatiquement dans le système juridique national et a une autorité supérieure à la loi nationale.

Toutefois, la condition de réciprocité ne joue pas en matière des droits de l’homme, parce que cette matière ne constitue pas en effet des obligations réciproques, mais plutôt des obligations objectives qui lient les Etats.

Pour ce qui est de l’applicabilité des normes internationales des droits de l’homme par le juge national, l’article 153 in fine de la même Constitution dispose: « Les cours et tribunaux, civils et militaires, appliquent les traités internationaux dûment ratifiés, les lois, les actes réglementaires pour autant qu’ils soient conformes aux lois ... ». Les dispositions des traités qui ne sont pas directement applicables, donc celles « non self-executing », font l’objet d’intégration dans le système juridique national par une loi de mise en oeuvre votée par le Parlement.

Bien que les conventions régulièrement ratifiées sont automatiquement intégrées dans l’ordre juridique congolais, et ont une autorité supérieure à la Constitution et aux lois nationales, les cas où les tribunaux ont fait application directe des dispositions des traités internationaux sont encore rares, du fait tout simplement du manque de formation et d’information des juges.

Sinon rien ne peut empêcher sur le plan juridique les juridictions congolaises d’appliquer les conventions internationales relatives aux droits de l’homme, le refus de les appliquer constutuerait non seulement une violation des articles 153 et 215 de la Constitution ci-dessus cités, mais aussi une violation de la convention elle même.

2.7 En référence au 2.4 ci-dessus, la Convention des Nations Unies relative aux Droits des Personnes Handicapées CDPH ou tout autre instrument international ratifié, en tout ou en partie, a-t-il été incorporé textuellement dans la législation nationale? Fournir les détails.

En application de la théorie du monisme ci-haut évoqué, tout traité ratifié ou auquel la RDC adhère, est automatiquement incorporé dans la législation nationale, et peut être invoqué immédiatement devant les tribunaux, si toutes ses dispositions ou une partie de celle-ci sont « self-excecuting » « auto-exécutoire », excepté les dispositions qui nécessitent l’intervention de la loi pour les rendre appliquables en droit national (loi de mise en oeuvre votée par le Parlement).

Par exemple, en droit pénal congolais, il n’y avait pas d’infraction autonome défissant et punissant la torture, mais après l’adhésion de la RDC à la Convention contre la torture et autres peines ou traitements cruels, inhumains et dégradants, il a été nécessaire de modifier le code pénal pour y introduire une nouvelle infraction réprimant la torture, loi de 2006, dont la définition se réfère textuellement à l’article 1er de la Convention relative à la torture. (La RDC n’ayant pas encore ratifié la CDPH, elle n’est donc pas encore partie à cette convention, et celle ci ne peut nullement s’appliquer sur sa juridiction.)

3 Constitution

3.1 La Constitution de la RDC du 18 février 2006 contient-elle des dispositions concernant directement le handicap? Si oui énumérez les dispositions et expliquez comment chacune d’elles traite du handicap.

La Constitution de la RDC du 18 février 2006 telle que modifiée et complétée à ce jour par la Loi no 11/002 du 20 janvier 2011 portant révision de certaines dispositions de la Constitution de la RDC, traite en son titre II,  des droits humains, des libertés fondamentales et des devoirs du citoyen et de l’etat .

L’article 45 de la Constitution de la RDC sur la liberté de l’enseignement, stipule en son second alinéa: « Toute personne a accès aux établissements d’enseignement national, sans discrimination de lieu d’origine, de race, de religion, de sexe, d’opinions politiques ou philosophiques, de son état physique, mental ou sensoriel, selon ses capacités. »

L’article 49 de la même Constitution dispose: « La personne du troisième âge et la personne avec handicap ont droit à des mesures spécifiques de protection en rapport avec leurs besoins physiques, intellectuels et moraux. »

L’Etat a le devoir de promouvoir la présence de la personne avec handicap au sein des institutions nationales, provinciales et locales. Une loi organique fixe les modalités d’application de ce droit.

Cette loi initiée par la Députée Nationale Eve BAZAIBA MASUDI vient d’être adoptée par les chambres du Parlement los de la dernière session de mars 2013, et transmise au Chef de l’Etat pour sa promulgation.

3.2 La Constitution de la RDCongo contient-elle des dispositions concernant indirectement le handicap? Si oui énumérez les dispositions et expliquez comment chacune d’elles traite indirectement du handicap.

La Constitution de la RDC du 18 février 2006 telle que modifiée et complétée à ce jour par la Loi no 11/002 du 20 janvier 2011 portant révision de certaines dispositions de la Constitution de la RDC, traite en son titre II, des droits humains, des libertés fondamentales et des devoirs du citoyen et de l’etat. Ce titre consacre l’égalité des citoyens devant la loi, et instaure le principe de l’égalité et de la non- discrimination qui peut être fondée sur la race, la tribu, la religion, la condition sociale, l’origine familiale, la résidence, les convictions politiques, ...

L’article 11 dit: « Tous les êtres humains naissent libres et égaux en dignité et en droits ... ». L’article 12 ajoute: « Tous les congolais sont égaux devant la loi et ont droit à une égale protection des lois. »

L’article 13: « Aucun congolais ne peut, en matière d’éducation et d’accès aux fonctions publiques ni en aucune autre matière, faire l’objet d’une mesure discriminatoire, qu’elle résulte de la loi ou d’un acte de l’exécutif, en raison de sa religion, de son origine familiale, de sa condition sociale, de sa résidence, de ses opinions ou de ses convictions politiques, de son appartenance à une race, à une tribu, à une minorité culturelle ou linguiste. »

L’article 16 quant lui renchérit en disant: « La personne humaine est sacrée. L’Etat a l’obligation de la respecter et de la protéger. Toute personne a droit à la vie, à l’intégrité physique ainsi qu’au libre développement de sa personnalité dans le respect de la loi, de l’ordre public, du droit d’autrui et des bonnes moeurs. Nul ne peut être tenu en esclavage ni dans une condition analogue. Nul ne peut être soumis à un traitement cruel, inhumain ou dégradant. Nul ne peut être astreint à un travail forcé ou obligatoire. »

Il y a lieu d’ajouter aussi l’article 51 qui stipule: « L’Etat a le devoir d’assurer et de promouvoir la coexistence pacifiques et harmonieuse de tous les groupes ethniques du pays.  Il assure également la protection et la promotion des groupes vulnérables et de toutes les minotés. Il veille à leur épanouissement. »

Toutes ces dispositions visent à protéger la personne humaine, y compris la personne vivant avec handicap. L’Etat a mis en place un dispositif constitutionnel et légal en vue de protéger tout être humain, sans discrimination quelconque. 

4 Législation

4.1 La RDC a-t-elle une législation concernant directement le handicap? Si oui énumérez la législation et expliquez comment la législation aborde le handicap.

La Loi no 09/001 du 10 Janvier 2009 portant Protection de l’Enfant donne un traitement spécial à l’enfant avec handicap physique ou mental, il en est ainsi de l’enfant se trouvant dans une situation qui peut constituer un obstacle ou une difficulté à l’expression normale de toutes ses facultés physiques ou mentales, notamment les fonctions intellectuelles et cognitives, le langage, la motricité et les performances sociales.

4.2 La RDC a-t-elle une législation concernant indirectement le handicap? Si oui énumérez la principale législation et expliquez comment elle réfère au handicap.
  • A l’état actuel de la législation congolaise, le principe consacré par la Constitution et les lois de la République est celui de l’égalité de tous et de la non discrimination» reconnu à tout citoyen, et ce la personne handicapée comprise.
  • En plus, la Loi portant organisation des élections présidentielle, législatives, urbaines, municipales et locales, garantit, sans discrimination aucune, le droit à tout citoyen en âge de majorité de participer à la direction des affaires politiques du pays dans les conditions fixées par la Constitution, ceci implique que des candidats puissent se présenter quel que soit le mode de scrutin, touts les candidats bénéficiant d’un traitement égal de la part de l’Etat, notamment dans l’utilisation des médias, la représentation paritaire homme-femme et la promotion des personnes vivant avec handicap, celles-ci devant se trouver sur les listes des candidats que les partis ou regroupements politiques présentent.

5 Décisions des cours et tribunaux

5.1 Les cours (ou tribunaux) de la RDC ont-ils jamais statué sur une question(s)relative au handicap? Si oui énumérez le cas et fournir un résumé pour chacun des cas en indiquant quels étaient les faits; la (les) décision(s), la démarche et l’impact (le cas échéant) que ces cas avaient entrainés.

La recherche n’ a pas révélé des cas où les tribunaux ont statué sur des questions relatives aux hadicapes. En plus les OPH que nous avons contactées n’ont aucune information précise concernant cette préoccupation.

6 Politiques et programmes

6.1 La RDC a-t-elle des politiques ou programmes qui englobent directement le handicap? Si oui énumérez la politique et expliquez comment cette politique aborde le handicap.

Il est vrai qu’il n’existe pas une politique ou un programme ayant pour cible les personnes avec handicap. C’est pour combler à cette carence que le Gouvernement de la République par le truchement du Ministère des Affaires Sociales, Action Humanitaire et Solidarité Nationale est entrain de recruter deux experts nationaux aux fins de mener une enquête documentée devant déboucher sur le recencement des personnes handicapées, identifier les diffucultés qu’elles recontrent, les multiples défis auxquels elles font face, les besoins nécessaires pour leur épanouissement social, et concevoir un plan d’action national et une stratégie appropriée pour arriver à répondre aux problèmes spécifiques des personnes handicapées.

Les états généraux de la personne handicapée devaient être convoqués après ce resencement, et c’est à cette occasion qu’une politique ou plan national devait être défini. Les dates pour la tenue de ces travaux ne sont pas encore fixées, mais les autorités du Ministère des Affaires sociales que nous avons rencontrées nous ont parlé des mois a venir, tout étant fonction des ressources financières qui font toujours cruellement défaut dans ce pays.

6.2 La RDC a-t-elle des politiques ou programmes qui englobent indirectement le handicap? Si oui énumérez chaque politique et décrivez comment elle aborde indirectement le handicap.

Les politiques ou programmes de la RDC que ça soit en matière de protection des droits de la personne humaine, d’éducation, de justice, d’accès aux fonctions publiques, s’adressent à tous les citoyens en général sans qu’il ne soit fait de distinction d’ordre discriminatoire basée sur la condition physique de la personne.

7 Organismes handicapés

7.1 En dehors des cours ou tribunaux ordinaires, la RDC a-t-elle un organisme officiel qui s’intéresse spécifiquement à la violation des droits des personnes handicapées? Si oui décrire l’organe, ses fonctions et ses pouvoirs.

Non dans l’état actuel de la législation nationale, il n’existe aucun organisme officiel chargé de la question de violation des droits des personnes handicapées. C’est la Commission Nationale des Droits de l’homme qui n’est pas encore installée, qui aura dans ses attributions tous les problèmes liés à la violation des droits des personnes avec handicap.

7.2 En dehors des cours ou tribunaux ordinaires, la RDC a-t-elle un organisme officiel qui, bien que n’étant pas spécifiquement en charge de la violation des droits des personnes handicapées s’y attèle tout de même? Si oui décrire l’organe, ses fonctions et ses pouvoirs.

Il n’existe pas actuellement pareil organisme officiel en RDC.

8 Institutions Nationales des Droits de l’Homme (Commission des Droits de l’Homme ou Oumbudsman ou Protecteur du Citoyen)

8.1 La RDC est-elle dotée d’une Commission de Droits de l’Homme ou d’un Ombudsman ou d’un Protecteur du Citoyen? Si oui ses missions incluent-elles la promotion et la protection des droits des personnes handicapées? Si votre réponse est oui, indiquez également si la Commission de Droits de l’Homme ou l’Ombudsman ou le Protecteur du Citoyen de la RDC à jamais abordé des questions relatives aux droits des personnes handicapées. 

Après son adoption par l’Assemblée Nationale et le Sénat en décembre 2012, la Loi organique no 13/011 portant institution, organisation, et fonctionnement de la Commission Nationale des Droits de l’Homme, CNDH en sigle, a été promulguée par le Président de la République en date du 21 mars 2012, et publiée au Journal Officiel depuis le 1er avril 2013.

Cette loi détermine la mission, les attributions, l’organisation, la composition et le fonctionnement de la CNDH, institution citoyenne d’appui à la démocratie, chargée de la promotion et de la protection des droits de l’homme en République Démocratique du Congo.

En ce moment où nous rédigeons ce rapport, elle n’est pas encore opérationnelle. Toutefois la loi la créant précise en son article 4 que la Commission nationale des droits de l’homme est chargé de la promotion et de la protection des droits de l’homme, elle veuille au respect des droits de l’homme et des mécanismes de garantie des libertés fondamentales.

L’article 6 de la même loi consacré aux attributions de la CNDH, en son point 5, stipule: « la CNDH a pour attributions de veuiller au respect des droits de la personne avec handicap ». Il est vrai qu’à ce jour la CNDH n’est pas encore opérationnelle, et ses structures non encore mises en place, donc aucun travail n’a été accompli par elle.

Dans sa composition, parmi les associations devant proposer les animateurs, il est prévu qu’un des 9 membres soit une personne issue d’une Organisation des personnes handicapées (OPH).

9 Organsation des personnes handicapées (OPH) et autres Organisations de la Société Civile

9.1 Avez-vous en RDC des organisations qui représentent et défendent les droits et le bien-être des personnes handicapées? Si oui énumérez chaque organisation et décrivez ses activités.

Les organisations engagées dans la promotion et la protection des droits de la personne handicapée sont abondantes, et la Constitution garantit la liberté d’association.

Ci-après nous citons quelques unes, toutes étant bien entendu totalement impliquées dans la défense des droits de la personne handicapée:

  • Association des Personnes Handicapées LA PERSEVERANCE « APHAP »
  • Association des Handicapés Chrétiens de Kisenso « APHCK »
  • Réseau des Comités de Réadaptation Communautaire « RCRC »
  • Coopérative des Mamans Vivant avec Handicap « COMAVAH »
  • Fondation des Œuvres Sociales pour le Progrès des Personnes Vivant avec Handicap) « FOSPHA »
  • Conseil National pour la Promotion des Aveugles « CNPSA »
  • Centre Psychopédagogique de Limeté « CPL »
  • Association des Personnes avec Handicap Chrétiennes « APHAC »
  • Coopération des Personnes vivant avec Handicap « COPEHANG »
  • PAROUSIA - ONGD/ASBL
  • Collectif pour la Réinsertion des Personnes vivant avec Handicap « COREPH »
  • Centre Professionnel d’Assistance et de Promotion pour la Personne vivant avec Handicap « CEPAPHA »
  • Coordination des Femmes avec Handicap de Kinshasa-Est « COFHAKINE »
  • Fraternité des Aveugles Catholiques de Kinshasa « FACK »
  • Union des Frères et Sœurs Aveugles en Mission pour Christ « UFSAMC »
  • Association des Personnes vivant avec Handicap pour le Développement « APHAD »
  • Action et Solidarité pour la Promotion Sociale des Personnes vivant avec Handicap « ASOPHA »
  • Association des Personnes vivant Handicap des Télécommunications « APHATEL »

Toutes ces OPH ont le même rayon d’action, à savoir, la personne en situation d’handicap, et la promotion et la protection de ses droits, ou une forme donnée d’handicap, certaines étant actives sur toute l’étendue du territoire de la RDC, et d’autres dont le champ d’action se limite soit à la province, soit à la ville où elles sont établies.

9.2 Dans les pays de votre région, l’Afrique centrale, les OPH sont-elles organisées ou coordonnées au niveau national et/ou régional?

Il existe des fédérations au niveau national qui regroupent les OPH, les plus connues sont:

Réseaux au niveau national
  • Fédération Congolaise des personnes handicapées (FECOPEHA)
  • Fédération des ONG Laïques à Vocation Economique du Congo (FOLECO)
  • Fédération Nationale des Personnes Handicapées du Congo (FENAPHACO)
  • Consortium de Plaidoyer sur Assistance aux Victimes des Mines et autres personnes en situation de Handicap (CPAV)
  • Agir pour les Elections Transparentes et Apaisées (AETA)
  • Caucus des Femmes Congolaises
  • Cadre de concertation pour l’intégration des personnes vivant avec handicap (CCIPVH)
  • Réseau National des Organisations des Droits de l’Homme au Congo (RENADHOC)
  • Rassemblement des Organisations des Femmes pour le Développement (ROFED)
  • Réseau des Comités de Réhabilitation Communautaire (RCRC)

Comme il en existe aussi au niveau régional ou international:

Réseaux au niveau régional et international
  • Fédération des Associations des Femmes Handicapées d’Afrique Centrale (FEAFHAC)
  • Association des Centres des Handicapés d’Afrique Centrale (ACHAC)
  • Organisation Mondiale des Personnes Handicapées (OMPH)
  • Réseau UMOJA (Région des grands lacs d’afrique)
  • Afrique Handicap
  • Hope for Handicap
9.3 Si la RDC a ratifié la CDPH, comment a-t-elle assuré l’implication des Organisations des personnes handicapées dans le processus de mise en œuvre?

Jusqu’à ce jour, la RDC n’a pas encore ratifié la CDPH.

9.4 Quels genres d’actions les OPH ont-elles prise elles-mêmes afin de s’assurer qu’elles soient pleinement intégrées dans le processus de mise en œuvre?

La CDPH n’ayant pas encore ratifié par la RDC, les OPH ont fait un travail énorme de sensibiliser des membres du Gouvernement, principalement le Ministre des Affaires Sociales, Action Humanitaire et Solidarité nationale, et les amener à comprendre l’importance qu’il y avait à ratifier la CDPH, qui garanti au mieux les droits de la personne handicapée.

9.5 Quels sont, le cas échéant les obstacles rencontrés par les OPH lors de leur engagement dans la mise en œuvre?

La RDC n’a pas encore ratifié la Convention.

9.6 Y’a-t-il des exemples pouvant servir de ‘modèles’ pour la participation des OPH?

La RDC n’est pas encore concernée.

9.7 Y’a-t-il des résultats spécifiques concernant une mise en œuvre prospère et/ou une reconnaissance appropriée des droits des personnes handicapées résultant de l’implication des OPH dans le processus de mise en œuvre?

OPH de la RDC non concernées.

9.8 Votre recherche (pour ce projet) a-t-elle identifié des aspects qui nécessitent le renforcement des capacités et soutien pour les OPH afin d’assurer leur engagement dans la mise en œuvre de la Convention?

La RDC n’ayant pas encore ratifié la CDPH, le travail qui demeure est celui d’assister les OPH pour constituer un lobby fort au niveau de la Présidence de la République pour la promulgation de la loi déjà votée par le Parlement congolais (Assemblée Nationale et Sénat) pour continuer de sensibiliser sur l’importance de cette convention pour les personnes handicapées de la RDC.

9.9 Y’a-t-il des recommandations provenant de votre recherche au sujet de comment les OPH pourraient être plus largement responsabilisées dans les processus de mise en œuvre des instruments internationaux ou régionaux?
  • Le problème majeur que rencontrent les OPH est celui d’insuffisance des ressources matérielles ou financières. Elles sont pleines de bonnes foi et volonté et de dynamisme, mais faute de ressources financières adéquates, elles n’arrivent pas à accomplir les objectifs qu’elles se sont assignés.
  • Le principal problème est d’autonomiser la personne vivant avec handicap pour lui permettre de subvernir à ses besoins et abandonner la mendicité des rues, phénomène déplorable auquel on assiste chaque jour malheureusement dans les grandes villes de la RDC, où handicape et mendicité vont généralement ensemble.
9.10 Y’a-t-il des instituts de recherche spécifiques dans votre région qui travaillent sur les droits des personnes handicapées et qui ont facilité l’implication des OPH dans le processus, y compris la recherche?

Les seuls instituts existant sont ceux qui dispensent des cours de formation à des personnes avec handicap, tels que les aveugles, les handicapés moteurs, les sourds muets (Ecole des Sourds muets des Soeurs de la Charité de Kasenga), les centres ou instituts de recherche n’existent presque pas.

10 Branches gouvernementales

10.1 Avez-vous de(s) branche(s) gouvernementale(s) spécifiquement chargée(s) de promouvoir et protéger les droits et le bien-être des personnes handicapées? Si oui, décrivez les activités de cette (ces) branche(s).

Oui il existe au sein du le Ministère des Affaires Sociales, Action Humanitaire et Solidarité Nationale, une direction et deux Services chargés spécifiquement des questions de la personne avec handicap. Ce sont les suivants:

10.2 La Direction de Coordination des activités de Réadaptation des Personnes Handicapées (DICOREPHA).

Elle a pour attributions, (1)le suivi de l’exécution des projets initiés en faveur des personnes handicapées, (2)l’organisation et le suivi des réunions du Conseil national de réadaption et de reclassement des personnes handicapées avec les partenaires sociaux, (3)la définition et la coordination de la politique nationale d’encadrement promotionnel des personnes handicapées pour leur partipation active à la production nationale ainsi que (4) la supervision des activités de tous les etablissements officiels, privés (Centres et Ateliers) et Associations s’occupant de la formation et de la réinsertion professionnelle des personnes handicapées.

10.3 Le Centre National d’Apprentissage professionnel pour Handicapés Physiques et Invalides (CENAPHI).

Il a pour attributions principales (1) d’apporter les appuis techniques et financiers pour le reclassement et la réinsertion sociale des jeunes formés et (2) la formation et la réadaptation professionnelle des personnes handicapées en vue de leur participation au développement du Pays.

10.4 Le Service National de Réadaptation, Apprentissage, Placement et Reclassement Socio-professionnel des Aveugles du Congo (SENARAC). Ce Service a pour attributions (1) Assurer la réadaptation, l’apprentissage, le placement et le redressement Socio-Professionnel des Aveugles, (2) Procéder à la réadaptation et à l’apprentissage des métiers adaptés aux Aveugles, (3) la réadaptation des Aveugles adultes et (4) la création des emplois dans l’informel et le formel au niveau local et national surtout dans les milieux ruraux.

11 Préoccupations majeures des droits de l’homme relatives aux personnes handicapées

11.1 Quels sont les défis contemporains des personnes handicapées en RDC ? (exemple: Certaines régions d’Afrique pratiquent des tueries rituelles de certaines catégories de personnes handicapées telles que les personnes atteintes d’albinisme. A cet effet La Tanzanie est aux avant-postes. Nous devons remettre en cause les pratiques coutumières qui discriminent, blessent et tuent les personnes handicapées.

La quasi-totalité des personnes handicapées en RDC vit en deçà du seuil de la pauvreté du fait que l’action minime du gouvernement en leur faveur a peu d’impact. Les structures gouvernementales de prise en charge des personnes handicapées sont soit inopérantes, soit inefficaces. La question du handicap n’est pas encore dans les priorités du gouvernement, d’autres questions prenant le dessus telles que la paix, la stabilisation du pays, la reconstruction nationale ... A cela il faut ajouter les discriminations dont les personnes handicapées sont parfois victimes en matière d’éducation, d’emploi ...

11.2 Comment la RDC répond-t-elle aux besoins des personnes handicapées au regard des domaines ci-dessous  énumérés?

Le gouvernement de la RDC a, comme tous les gouvernements du monde, des structures et des mécanismes destinés à garantir le plein épanouissement des personnes handicapées, lequel est censé passer par la prise en charge sociale et médicale, l’accès à l’éducation et à l’emploi, la réinsertion économique, etc.

Malheureusement, la réalité de la vie quotidienne des personnes handicapées en RDC est tout autre.

  • Accès aux bâtiments publics

Aucune mesure spécifique concernant l’accès aux bâtiments publics par les personnes handicapées n’a été prise à ce jour, même ceux utilisant des fauteuils roulants ont souvent de la peine pour y accèder.

  • Accès au transport public

La même observation que dessus.

  • Accès à l’éducation

La Constitution garantit l’accès à l’enseignement public dans les mêmes conditions pour tous les citoyens, les mêmes principes d’égalité et de non discrimination sont de mise. L’article 45 de la Constitution de la RDC sur la liberté de l’enseignement, stipule en son second alinéa: « Toute personne a accès aux établissements d’enseignement national, sans discrimination de lieu d’origine, de race, de religion, de sexe, d’opinions politiques ou philosophiques, de son état physique, mental ou sensoriel, selon ses capacités. »

  • Accès à la formation professionnelle

Il existe à travers le pays plusieurs écoles et instituts spécialisés dans la formation des personnes avec handicap, relevant soit du secteur public, soit des églises et des privés (Ecoles pour Aveugles, sourds muets ...)

  • Accès à l’emploi

La Constitution garanti à tout citoyen l’accès à l’emploi dans des conditions d’égalité et de non discrimination.

  • Accès à la détente et au sport

Les installations sportives sont généralement entre les mains des églises qui organisent parfois des compétitions destinées aux personnes handicapées.

  • Accès à la justice

A l’instar des autres citoyens, l’accès à la justice est garanti à toute personne dans les mêmes conditions d’égalité et de non discrimination.

  • Accès aux soins de santé

L’accès aux soins, il est vrai, constitue un véritable problème, pour les personnes handicapées,

11.3 La RDC accorde-t-elle des subventions pour handicap ou autre moyen de revenue en vue de soutenir les personnes handicapées?

L’Etat congolais n’a pas mis en place une politique ou un programme allant dans le sens d’accorder des subventions aux OPH ou aux personnes handicapées, si ce n’est que des modiques sommes d’argent qui leur sont remises sporadiquement par le Ministère des affaires Sociales pour une petite assistance

11.4 Les personnes handicapées ont-elles un droit de participation à la vie politique (représentation politique et leadership, vote indépendant etc.) en RDC?

La Constitution de la République reconnait à tout citoyen congolais les mêmes droits que tous les autres congolais, et les principes d’égalité devant la loi et celui de non discrimination y sont bien affirmés. Des personnes avec handicape accedent à des responsabilités aux mêmes conditions de mérite et de compétence comme tous les autres citoyens.

Le droit de prendre part à la gestion des affaires publiques, soit directement, soit indirectement, est un droit garanti à tout citoyen congolais, sans discrimination aucune.

11.5 Catégories spécifiques expérimentant des questions particulières/vulnérabilité:
  • Femmes handicapées

L’absence totale de statistiques fiables et crédibles rend difficile de connaitre les problèmes qui peuvent se poser à une catégorie spécifiques des personnes handicapées. Néanmoins l’autonomisation de la femme handicapée reste un défi

  • Enfants handicapés

La même observation vaut pour les enfants handicapés aussi.

  • Autre (exemple: populations indigènes)

La même observation s’applique aussi ici.

12 Perspective future

12.1 Y’a-t-il des mesures spécifiques débattues ou prises en compte présentement en RDC au sujet des personnes handicapées?

Le processus d’adhésion à la CDPH, est en cours parce que l’Assemblée Nationale a été saisie par le Gouvernement de la République d’un projet de loi portant sur l’autorisation de ratifier la CDPH, l’examen dudit projet de loi a été a eu lieu pendant la session de Mars 2013, et cette loi vient d’être votée par les deux chambres du Parlement, et transmise au Président de la République pour sa promulgation qui va déclencher le processus d’adhésion avec le dépôt des instruments de ratification auprès du Secrétaire Général des Nations Unies.

C’est seulement tout recemment qu’à l’initiative d’une dame Députée Nationale, du nom de Eve BAZAIBA MASUDI, qu’une proposition de « loi organique portant promotion et protection de la personne avec handicap » a été déposée au bureau du Président de l’Assemblée Nationale.

L’examen de cette proposition de loi a été programmé pour la session de mars 2013, et vient d’être adoptée par les deux chambres du Parlement, et transmis au Chef de l’Etat pour sa promulgation et sa publication au Journal Officiel. Une fois promulguée et entrée en vigueur, cette loi répondra à l’exigence contenue dans l’article 49 dernier alinéa de la Constitution de la RDC qui stipule : «La personne du troisième âge et la personne avec handicap ont droit à des mesures spécifiques de protection en rapport avec leurs besoins physiques, intellectuels et moraux.

L’Etat a le devoir de promouvoir la présence de la personne avec handicap au sein des institutions nationales, provinciales et locales. Une loi organique fixe les modalités d’application de ce droit. »

12.2 Quelles réformes légales sont proposées? Quelle réforme légale aimeriez-vous voir en RDC? Pourquoi?

Les réformes à souhaiter sont de deux ordres, principalement dans un premier temps, c’est de voir la RDC ratifier rapidement la CDPH pour sa mise en oeuvre immédiate, et en second lieu, c’est d’obtenir du Parlement que soit adoptée la loi organique portant promotion et protection de la personne avec handicap. De ces deux instruments et avec l’aide des partenaires, un plan d’action national sur la promotion et la protection des droits de la personne handicapée pourra être élaboré, et une stratégie définie en conséquence.

Ce plan aura le mérite de faciliter la mise en œuvre de la CDPH en définissant les mesures à prendre pour encourager la participation des personnes handicapées à la vie sociale.L’approche du handicap a changé, en particulier parce que les personnes handicapées se sont organisées d’elles-mêmes, et aussi parce que l’on considère, de plus en plus, que le handicap est une question de droits de l’homme.

Il y a nécessité de penser aussi à l’élargissement des opportunités de travail et d’emploi pour les personnes handicapées qui accèdent à des niveaux plus élevés d’études ou de formation.

La RDC étant un pays en situation de conflits, il conviendrait de penser à toutes les personnes devenues handicapées du fait de la guerre, , des fractures et des emputations des membres du fait des balles, mines antipersonnel et autres armes de guerre susceptibles d’engendrer un handicap. La situation des personnes qui subissent ces traumatismes et lésions est souvent aggravée par les délais prolongés pour obtenir des soins d’urgence et une réadaptation à long terme (cas des militaires mutilés, démobilisés ou blessés de guerre)

 


1. Rapport annuel 2012 du Ministère des Affaires Sociales Humanitaires et Solidarité Nationale.


  • Ruusa Ntinda
  • LLM candidate, Centre for Human Rights, University of Pretoria


1 Population indicators

1.1 What is the total population of Namibia?

According to the 2011 population census, the total population of Namibia is 2104 900.1

1.2 Describe the methodology used to obtain the statistical data on the prevalence of disability in Namibia and the criteria used to determine who falls within the class of persons with disabilities in Namibia?

The methodology used to determine the population and the total percentage of people with disabilities is the general household census of 2006.2

1.3 What is the total number and percentage of people with disabilities in Namibia?

According to the 2006 Namibia Inter-censal Demographic Survey, the population of people with disabilities is 102 100.3

1.4 What is the total number and percentage of women with disabilities in Namibia?

According to the 2006 Namibia Inter-censal Demographic Survey, the population of women with disabilities amounts to 52 433.4

1.5 What is the total number and percentage of children with disabilities in Namibia?

Statistics on the total number and percentage of children with disabilities in Namibia are not available.

1.6 What are the most prevalent forms of disability in Namibia?

According to the National Planning Commission Disability statistics in Namibia 2004, the most prevalent forms of disability include:5

  • Visual impairment: 35 per cent
  • Hearing impairment: 21 per cent
  • Speech and communication impairments: 11 per cent
  • Developmental and intellectual impairments: 5 per cent
  • Physical impairment: 37 per cent

2 International obligations

2.1 What is the status of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities in Namibia?

Namibia signed and ratified the CRPD and its Optional Protocol on 4 December 2007.6

2.2 If Namibia has signed and ratified the CRPD, when is/was its country report due? Which government department is responsible for the submission of the report? Has Namibia submitted its report? If not, what reason does the relevant government department give for the delay?

The CRPD initial report has been overdue since 2009.7 The responsible departments for the submission of the report are the Ministry of Health and Social Services which has the main obligation to promote and protect of the rights and welfare of persons with disabilities, and the Office of the Prime Minister which houses the nation’s Disability Unit. No reasons were evident from the research as to the delay in the submission of the report.

2.3 If Namibia has submitted the report in 2.2 and if the Committee on the Rights of Persons with Disabilities has reviewed the report, indicate if the Committee made any concluding observations and recommendations to Namibia’s report. Was there a domestic effect in Namibia on disability issues due to the reporting process?

As the country report was not submitted, there were no observations or recommendations to make.

2.4 While reporting under various other United Nation’s instruments, the African Charter on Human and Peoples’ Rights or the African Charter on the Rights and Welfare on the Child, has Namibia also reported specifically on the rights of persons with disabilities in its most recent reports? If so, have concluding observations adopted by the treaty bodies, addressed disability? If relevant, were these observations given effect to? Was mention made of disability rights in Namibia’s UN Universal Periodic Review (UPR)? If so, what was the effect of these observations or recommendations?

Namibia has submitted its first, second and third periodic reports on the implementation of the United Nations Convention on the Rights of the Child and two optional protocols (1997-2008) which referred to children with disabilities. But according to the Legal Assistance Centre these reports did not capture a full or accurate picture and expert observations were not implemented.8

2.5 Was there any domestic effect on Namibia’s legal system after ratifying the international or regional instrument in 2.4 above?

In Frans v Paschke & Others9 (rights of the child) an international instrument was used. This case dealt with the common law rule that prohibited Frans, who was born out of wedlock, from inheriting from his father. The court held that, such laws are in violation of the Namibian Constitution of 1990 and international law obligations that form part of the Namibian law.

2.6 Do ratified international treaties automatically become domestic law under Namibia’s legal system? If so, are there any cases where the courts applied international treaty provisions directly?

Namibia is a monist state. International treaties become part of the domestic laws upon ratification as a whole by virtue of articles 143 and 144 of the Namibian Constitution, unless reservations are submitted. Therefore, no enabling legislation is required. There are however no cases that have considered the CRPD directly or indirectly.

2.7 With reference to 2.4 above, has the United Nations CRPD, or any other ratified international instrument, or parts thereof, been incorporated verbatim in national legislation? Provide details.

The CRPD or parts thereof have not been incorporated verbatim or otherwise in national legislation. However, other international instruments such as the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights influenced the drafting of charter 3 of the Namibian constitution that contains the bill of rights.

3 Constitution

3.1 Does the Constitution of the Republic of Namibia of 1990 (the Constitution) contain provisions that directly address disability? If so, list the provisions and explain how each provision addresses disability.

There are no provisions in the Namibian constitution that directly addresses disability.

3.2 Does the Namibia Constitution contain provisions that indirectly address disability? If so, list the provisions and explain how each provision indirectly addresses disability.

The Constitution contains some provisions that indirectly address disability. These include:

  • Article 23 of the Namibian Constitution provides for affirmative action in order to remedy the injustices of the past. Article 23(2) states that it is for the advancement of persons in Namibia that have been disadvantaged by past discriminatory laws or practices. While women are mentioned in article 23(2), there is no reference to disability or persons with disabilities. However in terms of section 18 of the Affirmative Action (Employment) Act 29 of 1998 disability is listed as a targeted group.
  • Article 10 of the Constitution deals with equality and freedom from discrimination. Under article 10(1) all are equal before the law and in terms of article 10(2) no person may be discriminated against. This can be used to argue that people with disabilities fall under ‘all’. However this argument may be disputed on the basis that disability is not listed as a ground for non-discrimination. In addition, the grounds listed under article 10(2) are exhaustive or can be viewed as a closed list. This is due to the fact that ‘other status’ is not included.

4 Legislation

4.1 Does Namibia have legislation that directly addresses disability? If so, list the legislation and explain how the legislation addresses disability.
  • The National Disability Council Act 26 of 2004

In terms of section 4(1) the Council has the power and function to make representations on behalf of any person with a disability before any organ of state, or provide or procure legal assistance for any persons with disabilities, if the matter in question relates to the rights of, or the integration of persons with disabilities in society. It also has the duty to recommend to Cabinet the taking of necessary steps in order to facilitate compliance with the National Policy on Disability and the amendment of any law.

  • Affirmative Action (Employment) Act 29 of 1998

This Act is aimed at addressing the injustices of the past. In order to place the previous disadvantaged groups on a par with other groups in society for the full realisation of their rights. According to section 18(c) of this Act, persons with disabilities are listed as one of the designated groups.

Furthermore, the Affirmative Action (Employment) Act sets out in section 19 the preferential treatment of such designated groups. It provides that in filling positions of employment a relevant employer shall give preferential treatment to suitably qualified persons of designated groups.

4.2 Does your country have legislation that indirectly addresses disability? If so, list the main legislation and explain how the legislation relates to disability.

Section 2(1) of the Racial Discrimination Prohibition Amendment Act 26 of 1991 states that:

(1) No person shall:

(a) deny any other person access to or the use of any public amenity or any facility in a public amenity;

(b) permit any other person such access or use on less favourable terms or conditions than those upon which he or she would otherwise permit such access or use; or

(c) require any other person to leave or cease to use any such amenity or facility,

This Act indirectly protects PWDs because the concepts of ‘no person’ and ‘any other person’ implicitly include PWDs.

5 Decisions of courts and tribunals

5.1 Have the courts (or tribunals) in Namibia ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases indicating what the facts, the decision(s), the reasoning and impact (if any) the cases have had.

In conducting this research, the researcher was unable to obtain any court cases that dealt with cases that directly or indirectly deal with disability.

6 Policies and programmes

6.1 Does Namibia have policies or programmes that directly address disability? If so, list each policy and explain how the policy addresses disability.

Policies and programmes that address disability issues in Namibia are as follows:

  • Namibia has a National Policy on Disability 2004. It was put in place with the mandate to accept the principles of participation, integration and equalisation of opportunities defined by the United Nations in the World Programme of Action Concerning Disabled Persons and The Standard Rules on the Equalisation of Opportunities for Persons with Disabilities.
  • The National Policy on Special Needs and Inclusive Education (2008) was put in place to enable the regular school system to meet the diverse educational needs of all children, and increase the opportunities available to students with disabilities.
  • The National Policy for Mental Health (2005)

This policy has the mandate to regulate matters with regard to mental health and institutionalisation of people with mental disabilities. This policy is outdated. A new Mental Health Bill draft has been discussed to replace it. The eighth draft of a Mental Health Bill was circulated in 2011. The drafting process has been dragging on for years; there are doubts if it will ever be passed.10 The current mental health policy has been criticised in that there are no special provisions for children with mental disabilities. In addition, in terms of the policy, only 211 psychiatric beds are available for the mental health needs of over 1.8 million people in Namibia and only 90 registered psychologists nationwide.11

6.2 Does Namibia have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.
  • The policy on ‘Decentralization in Namibia’ was adopted by the Ministry of Regional and Local Government and Housing in 1998. It is an inclusive policy which indirectly addresses disability. Its paragraph 2(1) reads: ‘Decentralization is an instrument the state can use to bring about democratic participation to [all] people at lower levels of government’.
  • Namibia’s Environmental Assessment Policy for Sustainable Development and Environmental Conservation of 1995 was adopted for the benefit of all Namibians including those with disabilities. The Preamble states that: ‘The State shall actively promote and maintain the welfare of the people by adopting policies ...’. PWDs are not excluded.
  • Similarly, the Vision 2030 Document addresses ‘people’s quality of life’ in chapter 4 and this includes PWDs.

7 Disability bodies

7.1 Other than the ordinary courts or tribunals, does Namibia have any official body that specifically addresses the violation of the rights of people with disabilities? If so, describe the body, its functions and its powers.

Namibia has a National Disability Council that deals with violations of the rights of persons with disabilities. According to section 16(3) of the Namibia Disability Council Act, the Council may run programmes or conduct campaigns to inform the public to raise the awareness concerning an issue relating to disability. The National Disability Council was established so that line Ministries would be required to report annually to the Council on activities related to disability programmes. At every level programmes that are aimed at social, economic and political development include persons with disabilities in order to increase their visibility at all levels from decision making to implementation. Courts in Namibia have the jurisdiction to hear any case arising from the exercise of the functions and powers of the National Disability Council.12

7.2 Other than ordinary courts or tribunals, does Namibia have any official body that though not established to specifically address the violation of the rights of people with disabilities, can nonetheless do so? If so, describe the body, its functions and its powers.

No such body exists.

8 National human rights institutions

8.1 Does Namibia have a Human Rights Commission or an Ombudsman or Public Protector? Does its remit include the promotion and protection of the rights of people with disabilities? If your answer is yes, also indicate whether the Human Rights Commission or the Ombudsman or Public Protector of Nigeria has ever addressed issues relating to the rights or persons with disabilities.

Namibia has an Ombudsman provided for under articles 89 to 94 of the Namibian Constitution.13 His/her duties include the promotion and protection of human rights for all citizens, including persons with disabilities but there is no provision in the Ombudsman’s mandate that directly makes provisions for the rights of persons with disability. There are no indications as to whether the ombudsman ever addressed issues relating to the rights of persons with disabilities.

9 Disabled peoples organisations (DPOs) and other civil society organisations

9.1 Do you have organisations that represent and advocate for the rights and welfare of persons with disabilities in Namibia? If so, list each organisation and describe its activities.

There is a national umbrella disabled people's organisation in the country, known as the National Federation of People with Disabilities in Namibia. It has a strong working relationship with service providers in the disability sector, for example Leonard Cheshire, the Association for Children with Language, Speech and Hearing Impairments in Namibia and the Onyose Trust.14 The federation advocates for the rights and welfare of persons with disabilities. It was founded in 1990. It has six national affiliate members. These are:

  • The Namibian Federation for the Visually Impaired

Provides services needed by the visually impaired, including rehabilitation; to promote the well-being of blind and partially sighted persons; promotes social integration in all fields of life; and disseminates information in order to promote a positive attitude among the community of Namibia towards visually impaired persons.15

  • Namibia National Association for the Deaf

Provides training related to deafness and empowers deaf people.

  • National Association of Differently Able Women

Builds organisational capacity for CRPD implementation; documents human rights abuses; and conducts advocacy with the Ministry of Transport to ensure accessible roads and transport.16

  • Namibian Association for Children with Disabilities17

Builds organisational capacity of persons with disabilities and their allies such as parents and sympathetic educationalists; and advocates for and supports inclusive education.18

  • Albino association of Namibia

Disseminates information and promotes education about albinism; and provides support services to persons with albinism.19

9.2 In the countries in your region, are DPOs organised or coordinated at a national and/or regional level?

They are mostly organised at the national level under the National Federation of People with Disabilities in Namibia.

9.3 If Namibia has ratified the CRPD, how has it ensured the involvement of DPOs in the implementation process?
  • By conducting consultations with the DPOs on issues surrounding the disability sector.
  • By providing a conducive environment for NGOs and other organisations. It is noteworthy to mention that some of the executive members of the National Federation of People with Disabilities in Namibia (NFPDN) are also spearheading the disability department under the Office of the Prime Minister.
9.4 What types of actions have DPOs themselves taken to ensure that they are fully embedded in the process of implementation?
  • They have taken steps in order to be actively involved in the processes taken by the government on disability issues. This is in terms of section 3(1)(d) of the National Disability Council Act that states that before a law relating to persons living with disabilities is passed, there must be consultations with persons with disabilities, organisations of persons with disabilities, and organisations rendering services to persons with disabilities, taking into consideration relevant information regarding the implementation of the National Policy on Disability.20
  • Ensuring that persons with disabilities are consulted in all disability matters. This is made possible by the fact that some of the executive members of the National Federation of People with Disabilities in Namibia (NFPDN) - which is the national umbrella disabled people's organisation in the country - are also spearheading the disability department under the Office of the Prime Minister.
9.5 What, if any, are the barriers DPOs have faced in engaging with implementation?

The barriers faced by DPOs in engaging with implementation include the lack of resources and the lack of interest by the general public on disability matters.

9.6 Are there specific instances that provide ‘best-practice models’ for ensuring proper involvement of DPOs?
  • Namibia has a member of parliament with albinism, Mr S Ankama, who is also the Deputy Minister of Works and Transport. But since albinism is not recognised as a disability in Namibia it is unclear if this will be seen as a best practice but it is in the researchers view that albinism be viewed as a disability due to the stigmatisation and discrimination that persons with albinism experience.
  • Inclusive education and community-based rehabilitation represent complementary and mutually supportive approaches to serve those with special needs. By adopting community-based rehabilitation as a strategy, the government further strengthens its principle of decentralisation of programme implementation.21
9.7 Are there any specific outcomes regarding successful implementation and/or improved recognition of the rights of persons with disabilities that resulted from the engagement of DPOs in the implementation process?

There are no specific outcomes regarding the recognition of the rights of persons with disabilities. The situation for persons with disabilities still remains the same as it was before the ratification of the CRPD as there has been no change in law. The old policy on disability prior the CRPD still operates.

9.8 Has your research shown areas for capacity building and support (particularly in relation to research) for DPOs with respect to their engagement with the implementation process?

The University of Namibia promotes capacity building and provides support in relation to research on disability matters, by providing and recommending such DPOs, people with disabilities and others for research grants. The university also has a disability unit and offers a module on inclusive education under the Bachelor of Education degree.

9.9 Are there recommendations that come out of your research as to how DPOs might be more comprehensively empowered to take a leading role in the implementation processes of international or regional instruments?
  • There is a need for proper implementation monitoring and evaluation of the laws in place to protect the rights of persons with disabilities.
  • There is a lack of coordination and overlapping of duties among the relevant Ministries who have responsibility for the design, implementation and evaluation of disability services.22
  • In order for Namibia to put in full and effective operation of the rights-based approach to disability, more human and financial resources need to be committed.23 However, Namibia still perceives disability under welfare and charity and not under human rights even after ratifying the CRPD.24
  • Accurate data on the persons with disabilities is needed. It will provide policy makers and service providers with information on all persons with disabilities in order to better tailor programmes to meet the actual needs and anticipate future developments.25
  • There is a need for the rights and needs of all disabled people to be incorporated in all sectors.26
9.10 Are there specific research institutes in your region that work on the rights of persons with disabilities and that have facilitated the involvement of DPOs in the process, including in research?

The research institution in the region working on the rights of people with disabilities is the Centre for Human Rights, University of Pretoria.

10 Government departments

10.1 Does Namibia have a government department or departments that is/are specifically responsible for promoting and protecting the rights and welfare of persons with disabilities? If so, describe the activities of the department(s).

The National Disability Council and the Ministry of Health and Social Services have the main obligation for the promotion and protection of the rights and welfare of persons with disabilities in line with other ministries. In addition, the Office of the Prime Minister also has a Disability Unit which was established in 2001.27 However despite the existence of these structures, there appears to be limited action directed at promoting the rights and welfare of persons with disabilities. For example, according to the most recent annual report from the Office of the Prime Minister (2008-2009), the Disability Unit did not appear to conduct any activities regarding improving access to healthcare services for children with disabilities. The functioning of the National Disability Council also appears to be problematic. The state report states that ‘Namibia’s National Disability Council Act creates a council tasked with monitoring the implementation of Namibia’s National Policy on Disability’.28 This policy, which was adopted by the executive Cabinet in 1997, identifies children with disabilities as a key target group. However, there are no available reports documenting actions conducted by the Council. Although government ministries are required to submit a report on the implementation of the Disability Policy to the Council, such reports have not been submitted. Neither has the Council drafted annual reports which should be submitted to the Minister of Health and Social Services and then to the National Assembly as required by the National Disability Council Act.29

11 Main human rights concerns of people with disabilities

11.1 What are the contemporary challenges of persons with disabilities in Namibia? (For example, in some parts of Namibia ritual killing of certain classes of PWDs such as people with albinism occurs. Tanzania has been in the headlines in this regard. We should have a way of interrogating customary practices that discriminate, injure and kill persons with disabilities).

Disabled people encounter multiple levels of exclusion and discrimination, as evidenced by the 2004 Disability Living Conditions Survey.30 There are many customary practises, for instance disabled persons are abandoned as they are believed to be a sign of bewitchment, that violate the rights of person’s with albinism especially in the rural areas.31

11.2 How does Namibia respond to the needs of person with disabilities with regard to the areas listed below:
  • Access to public buildings

Public and private facilities have taken the needs of people with disabilities into account. Public buildings provide access to wheelchair users. Public toilet facilities cater for persons with physical disabilities. The parking areas have designated parking bays for persons with disabilities that are situated as near to the entrance of the building as possible.

  • Access to public transport

The Disability Council Act also addresses Environmental Accessibility and stipulates that, the state must develop mandatory standards and guidelines to make the physical environment accessible to all persons with disabilities. Furthermore, the state must ensure that architects, construction engineers and others who are professionally involved in the design and construction of the physical environment have access to the disability policy and the requirements for making public places accessible to disabled people.32

  • Access to education

According to the 2004 Disability Living Conditions Survey, disabled children are more than twice as likely not to have received a primary education as their non-disabled counterparts.33 As a result, access to education is one of the areas that the government heavily invests in, in terms of the National Policy on Special Needs and Inclusive Education (2008) and the National Policy Guidelines for Educationally Marginalised Children (2002). In addition, since the beginning of this year, the government has provided free primary education. Educational services for children with disabilities are provided through a total of nine special schools. However, mainstream schools which accept learners with learning disabilities but often do not have special facilities to assist these learners. According to statistical data from the Ministry of Education, 32169 learners with disabilities were enrolled in the education system in 2009.34

  • Access to vocational training

This is provided for in terms of the National Vocational Training Act 18 of 1994.

  • Access to employment

According to the 2004 Disability Living Conditions Survey about 98 per cent of disabled people were unemployed.35 This is a clear indication that the government is not doing enough to provide persons with disabilities with access to employment.

  • Access to recreation and sport

Access to recreation and sport is provided for through special programmes such as Disability sports Namibia and the Special Olympic Namibia. The organisations provide year-round sports training and athletic competition in a variety of Olympic-type sports for children and adults with intellectual disabilities. These activities provide persons with disabilities with opportunities to develop physical fitness, demonstrate courage, experience joy and participate in a sharing of gifts, skills and friendship.36

  • Access to justice

The Legal Aid Department in the Ministry of Justice provides legal aid services for every Namibian who is not able to afford a private lawyer. It ensures that persons with disabilities receive general information on the Namibian legal system as well as specific information on how to seek and qualify for legal aid. This information is also readily available to people with sensory loss in Braille and in large prints respectively. This information is also being made available to persons with hearing impairments, especially when requiring legal assistance. Furthermore, trained sign language interpreters are made available in courts for deaf people who use this form of communication.37

  • Access to health care

According to the 2004 Disability Living Conditions Survey38 the majority of disabled people are able to access health services, with over two-thirds of respondents actually doing so.39 It was found that hospitals and primary health care clinics were the most accessible. However, there was gross inadequacy in the provision of vocational rehabilitation, counselling services and access to assisted devices.40 The right to health is a controversial issue as it is not justiciable. Patients at state health facilities are expected to pay a fee of approximately US$1 per visit and, although a waiver system exists, the government admits that it is ‘uneven’ in its application.41 A recent study assessing the experience of parents of children with learning disabilities or mental health problems access to healthcare services, noted that many patients are not exempted from this fee and some do not access healthcare services because of the cost involved.42

11.3 Does Namibia provide for disability grants or other income support measures for persons with disabilities?

The government has a pension and a social grant scheme for persons with disabilities, provided they are registered. These are administered by the Ministry of Health and Social Services.

11.4 Do people with disabilities have a right to participation in political life (political representation and leadership) in Namibia?

Persons with disabilities have a right to participation in political life (political representation and leadership, and voting independently). Voting centres provide access to wheelchair users. However, there is no provision for Braille for people who cannot see partially or fully. They cannot vote independently and must be accompanied by someone they trust. Namibia has Mr Ankama who is a person with albinism who is a member of parliament as a Deputy Minister of Works and Transport.

11.5 Specific categories experiencing particular issues/ vulnerability:
  • Women with disabilities

According to the Disability Council Act the state must ensure that women with disabilities have comparable opportunities to participate in all aspects of life equal to that of their fellow citizens.43 In addition general protection for women’s rights is provided for and protected under the following provisions of the Constitution: article 5 which provides for the protection of human rights; article 10 which provides for equality; and article 25(4) which provides for the enforcement of human rights.

  • Children with disabilities

The Disability Council Act requires parents of children with disabilities to be provided with information about services available so that they can make informed decisions about the needs of their children in cases where these children cannot do so themselves. Early intervention, such as stimulation and education must be provided to children as early as possible in order to prevent developmental disabilities. Furthermore the state must ensure that children with disabilities have equal opportunities and equal access to education, sports and recreation and all other services in the community such as health care.44 There is a need for an explicit focus on the problem of children with mental health disabilities.45

  • Other (for example, indigenous peoples)

They are provided for under the equality clause (article 10) and the affirmative action clause (article 23) of the Constitution.

12 Future perspective

12.1 Are there any specific measures with regard to persons with disabilities being debated or considered in Namibia at the moment?

In conducting this research, no information was found in this regard.

12.2 What legal reforms are being raised? Which legal reforms would you like to see in Namibia? Why?

The researcher did not come across any proposal for law reform on disability in Namibia. However, there is a need for the disability policy to be reformed and move away from a medical to human rights based approach.There is also a clear need for more proactive public programmes to address the needs of children and their families, with a particular focus on marginalised groups, including children with disabilities and indigenous minorities.46

 


1. Republic of Namibia ‘Namibia 2011 Population and Housing Census Preliminary Results’ 2 http://www.gov.na/documents/10180/34849/2011_Preliminary_Result.pdf/0ea026d4-9687-4851-a693-1b97a1317c60 (accessed 31 May 2013).

2. Namibia Inter-censal Demographic Survey (2006) http://www.npc.gov.na/publications/census_data/NIDS_report_final_revised_04%20August%202010.pdf (accessed 03 June 2013).

3. 2006 Inter-censal Demographic Survey (n 2 above) 16.

4. As above.

5. CK Haihambo ‘Inclusive education: Challenges of students with disabilities in institutions of higher education in Namibia’ Doctoral thesis, University of South Africa, 2010 4.

6. United Notations enable, Development and human rights for all, Convention and Optional Protocol Signatures and Ratifications http://www.un.org/disabilities/countries.asp?id=166 (accessed 19 August 2013).

7. Human Rights Council, Working Group on the Universal Periodic Review, Tenth session, Geneva, 24 January-4 February 2011 ‘Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1’ Namibia http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/173/07/PDF/G1017307.pdf (accessed 20 February 2013).

8. ‘Alternative report to Namibia’s first, second and third periodic reports on the implementation of the United Nations Convention on the Rights of the Child and two optional protocols (1997-2008)’ prepared by the Gender Research & Advocacy Project Legal Assistance Centre (January 2012) http://www2.ohchr.org/english/bodies/crc/docs/ngos/Namibia_LAC_GRAP_CRC61.pdf (accessed 31 May 2013).

9. (PI1548/2005) [2007] NAHC 49 (11 July 2007).

10. LAC Alternative Report (n 8 above) 18.

11. LAC Alternative Report (n 8 above) 18-19.

12. The National Disability Council Act 26 (2004), art 16(3).

13. The Constitution of the Republic of Namibia, 1990.

14. ‘Disability Policy Audit in Namibia, Swaziland, Malawi and Mozambique: Final Report’ (July 2008) Research Commissioned by the Southern African Federation of the Disabled’s DFID-funded Research Programme http://www.ucl.ac.uk/lc-ccr/downloads/DISABILITY_POLICY_AUDIT_ RESEARCH_FINAL_REPORT.pdf (accessed 20 February 2013).

15. The Namibian Federation for the Visually Impaired: http://visuallyimpairednamibia.com/ (accessed 29 May 2013).

17. Policy Audit Report (n 14 above) 8.

18. Namibia Association of Children with Disabilities: http://www.osisa.org/education/namibia/namibia-association-children-disabilities (accessed 26 March 2013).

19. RN Ntinda ‘The rights of people with albinism: A conceptual and rights based comparative analysis’ LLB dissertation, University of Namibia, 2011 39 http://digital.unam.na/bitstream/handle/11070.1/834/ntinda_therights_2011.pdf?sequence=1 (accessed 20 February 2013).

20. Reponses by the Government of Namibia, Human Rights Resolution 17/11 on violence against women and girls and disability (2011) 3 http:// www2.ohchr.org/english/issues/women/docs/.../Governments/Namibia.do (accessed 24 May 2013).

21. Responses by the Government of Namibia (n 20 above) 7-8.

22. Policy Audit Report (n 14 above) 10.

23. As above.

24. As above.

25. Statistics, Data and Evaluation, and Monitoring ‘Programme monitoring and evaluation: The disability perspective in the context of development’ Annex II ‘Data and statistics for disability-sensitive policies and programmes’ http://www.un.org/esa/socdev/enable/monitor/dme62.htm (accessed 20 February 2013).

26. Responses by the Government of Namibia (n 20 above) 7.

27. Policy Audit Report (n 14 above) 8.

28. LAC Alternative Report (n 8 above) 53.

29. LAC Alternative Report (n 8 above) 16.

30. Policy Audit Report (n 14 above) 8.

31. See R Ntinda ‘Customary practices and children with albinism in Namibia: A constitutional challenge?’ in OC Ruppel (ed) Children’s rights in Namibia (2009). This article dealt extensively with this matter.

32. Responses by the Government of Namibia (n 20 above) 5.

33. Policy Audit Report (n 14 above) 10.

34. LAC Alternative Report (n 8 above) 15.

35. Policy Audit Report (n 14 above).

36. JP Kennedy Jr Foundation for the Benefit of Persons with Intellectual Disabilities (2013); Special Olympics Namibia: http://www.specialolympics.org/Regions/africa/Locations/Special-Olympics-AF-Namibia.aspx (accessed 26 May 2013).

37. Responses by the Government of Namibia (n 20 above) 6-7.

38. Policy Audit Report (n 14 above) 10.

39. Policy Audit Report (n 14 above) 10.

40. Policy Audit Report (n 14 above) 10.

41. LAC Alternative Report (n 8 above) 20.

42. LAC Alternative Report (n 8 above) 16.

43. Responses by the Goverment of Namibia (n 20 above) 4.

44. Responses by the Government of Namibia (n 20 above) 4.

45. LAC Alternative Report (n 8 above) 17.

46. LAC Alternative Report (n 8 above) 1.

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