• Esau Mandipa
  • LLB (Hons) UZ, LLM (Human Rights and Democratisation in Africa) University of Pretoria; Certificate in Disability Rights in an African Context, University of Pretoria, Disability Rights)
  • Lecturer, Faculty of Law, Midlands State University, Zimbabwe.
  • Gift Manyatera
  • LLB (Hons) UZ, LLM University of Turin, MSc CLEF (IUC Turin), LLD Candidate University of Pretoria; Executive Dean, Faculty of Law, Midlands State University, Zimbabwe
  • Advocate of the High of Zambia and partner at Messrs Ellis & Co, Legal Practitioners in Lusaka Zambia


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

According to the Zimbabwe Population Census Report of 2012 (the 2012 Census Report), the total population of Zimbabwe was 13 061 239.1

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

The 2012 Census Report did not seek to identify the type of the disability but focused on the number of persons with disabilities (PWDs) in a family statistical data on the prevalence of disability in Zimbabwe which was obtained from the Zimbabwe Inter-Censal Demographic Survey of 1997 (the Inter-Censal Survey)2 and the Zimbabwe Housing and Population Census Report (the Housing and Population Report).3

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

Zimbabwe has had four censuses since attaining independence in 1980. However, none of the censuses provided statistics on the prevalence of disability in the country. Recent studies have estimated the disability prevalence to be 1.4 million of the total population.4

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

There are no official statistics on the total number and percentage of women with disabilities (WWDs) in Zimbabwe. According to the Inter-Censal Survey, the proportion of male to females with disabilities was 56 and 44 per cent respectively.5 Furthermore, the Housing and Population Report recorded a national disability prevalence of 2,9 per cent of which 45 per cent were men and 55 per cent were women.6

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

There is no recent statistical data on the total number and percentage of children with disabilities (CWDs) in Zimbabwe. The last comprehensive study on the prevalence of disability amongst children in Zimbabwe was the Inter-Censal Survey. The Survey recorded a total of 218 421 PWDs in the country, which was approximately 2 per cent of the country’s total population.7 Of these, 57 232 were CWDs,8 which was about 26 per cent of the total population of PWDs in 1997. Another study which was conducted by the United Nations Children’s Emergence Fund (UNICEF) in 1997, estimated CWDs to be 150 000.9 Significantly, such disparities on estimates clearly demonstrate the absence of reliable statistics on the prevalence of disability in the country.

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

As indicated above, there are no reliable statistics on the prevalence of disability in the country. Despite the absence of official statistics, the most prevalent forms of disability are:

  • Physical impairments;
  • Mental impairments;
  • Speech functional disabilities;
  • Hearing impairments; and
  • Intellectual and sensory impairments.10

 

2 Botswana’s international obligations
2.1 What is the status of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD) in Zimbabwe? Did Zimbabwe sign and ratify the CRPD? Provide the date(s).

Zimbabwe is a state party to the CRPD. Zimbabwe ratified the CRPD and its Optional Protocol on 23 September 2013, thereby becoming the 135th state party to ratify the Convention and its Optional Protocol.11

2.2 If Zimbabwe has signed and ratified the CRPD, when was its country report due? Which government department is responsible for submission of the report? Did Zimbabwe submit its report? If so, and if the report has been considered, indicate if there was a domestic effect of this reporting process. If not, what reasons does the relevant government department give for the delay?
  • In terms of article 35, the CRPD mandates state parties to report initially to the Committee on the Rights of Persons with Disabilities within two years of accepting the Convention.12 Thereafter, state parties are mandated to submit reports at least every four years or upon request by the Committee.13
  • Zimbabwe’s initial report is due on 23 October 2015.14
  • The responsible departments for the submission of the country report are the Ministry of Public Service, Labour and Social Welfare, and the Ministry of Justice and Legal Affairs.15
2.3 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, did Zimbabwe also report specifically on the rights of persons with disabilities in its most recent reports? If so, were relevant ‘concluding observations’ adopted? If relevant, were these observations given effect to? Was mention made of disability rights in your state’s UN Universal Periodic Review (UPR)? If so, what was the effect of these observations/recommendations?
The UPR process
  • In October 2011, the Zimbabwean Government16 underwent its first Universal Periodic Review process under the auspices of the United Nations Human Rights Council in Geneva.17
  • While reporting on the status of vulnerable groups, the Zimbabwean report was silent on the country’s intention to ratify and fully domesticate the CRPD.
  • The UN Human Rights Council then recommended that the Zimbabwean Government ratify and fully domesticate the CRPD.
  • Based on the recommendations of the UN Human Rights Council, the Zimbabwean Government ratified the CRPD together with its Optional Protocol on 23 September 2013.
  • Zimbabwe is due for another review in 2016.18 However, the Zimbabwean government is expected to file its Mid-Term Progress Report in 2014.19
2.4 Was there any domestic effect on Zimbabwe’s legal system after ratifying the international or regional instruments in 2.3 above? Does the international or regional instrument that has been ratified require Zimbabwe’s legislature to incorporate it into the legal system before the instrument can have force in Zimbabwe’s domestic law? Have Zimbabwe’s courts ever considered this question? If so, cite the case(s).
  • Zimbabwe follows a dualist approach in the implementation of international treaties. In accordance with this approach, international treaties ratified or acceded to by the Zimbabwean Government will not become self-executing upon ratification or accession. Treaties must first be domesticated through parliamentary approval and be incorporated into the domestic laws through an Act of Parliament before they become binding.20
  • Zimbabwe has not domesticated the CRPD. However, section 34 of the 2013 Zimbabwean Constitution21 obliges the state to ensure that all international conventions, treaties and agreements to which Zimbabwe is a party be incorporated into domestic law.
2.5 With reference to 2.4 above, has the CRPD or any other ratified international instrument been domesticated? Provide details.
  • See 2.4 above.
  • Zimbabwe is party to the Convention on the Rights of the Child (CRC). Provisions of this Convention have been incorporated into the Children’s Act [Chapter 5.06].22
  • The same position applies to the Labour Act [Chapter 28.01]23 wherein international labour standards have also been domesticated.

 

3 Constitution
3.1 Does the Constitution of Zimbabwe contain provisions that directly address disability? If so, list the provisions and explain how each provision addresses disability.
    • Section 22 of the Zimbabwean Constitution of 2013
    • Section 22(1) of the Constitution of Zimbabwe24 states that the Zimbabwean government and its agencies must recognise the rights of persons with physical or mental disabilities, in particular their right to be treated with respect and dignity.
    • Section 22(2) of the Constitution of Zimbabwe mandates the state and all its institutions to assist persons with physical or mental disabilities to achieve their full potential and to minimise the disadvantages suffered by them.25
    • Section 22(3) of the Constitution mandates the state to:

(a) Develop programmes for the welfare of persons with physical or mental disabilities.

(b) Consider the specific requirements of PWDs in the formulation of developmental plans.

(c) Encourage the use and development of forms of communication suitable for persons with physical or mental disabilities.

(d) Foster social organisations that are aimed at improving the quality of life for PWDs.

    • Section 22(4) of the Constitution further mandates the Zimbabwean government to take the necessary measures to ensure accessibility by PWDs, of all buildings to which other members of the public have access.
    • Section 83 of the Constitution26
    • Section 83 provides that the state must take appropriate measures, within the limits of the resources available to it, to ensure the full realisation of rights by PWDs. In particular, the section mandates the Zimbabwean government to implement measures that are designed to:

(a) ensure that PWDs become self-reliant.

(b) enable PWDs to live with their families and participate in social, creative or recreational activities.

(c) protect PWDs from exploitation.

(d) give PWDs medical, psychological and functional treatment.

(e) provide special educational facilities for PWDs.

(f) provide state-funded education for PWDs.

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

The Constitution of Zimbabwe contains some provisions that indirectly address disability. These include the following:

  • Section 3 (1)(e) of the Constitution

This section recognizes the inherent dignity and worth of each human being as one of the founding principles upon which Zimbabwe is founded. This provision is of utmost importance in so far as it relates to persons with disabilities.

  • Section 3(2)(i)-(ii) of the Constitution

Pursuant to this provision, the principles of good governance which bind the state and all its agencies of government shall, amongst other things, include the rights of PWDs.

  • Section 6(4) of the Constitution

This section provides that the state must promote and advance the use of all languages used in Zimbabwe, including Sign language, and must create conditions for the development of those languages.

 

4 Legislation
4.1 Does Zimbabwe have legislation that directly addresses issues relating to disability? If so, list the legislation and explain how the legislation addresses disability.
  • The Disabled Persons Act [Chapter 17:01]

The Disabled Persons Act (DPA)27 is the primary law that addresses disability in Zimbabwe. This Act provides for the welfare and rehabilitation of PWDs.28 The Act establishes the National Disability Board and sets out the functions of this body.29 The Act creates the Office of Director for Disabled Persons’ Affairs whose duties include liaising with ministries and local authorities to ensure the implementation of the policies and measures formulated by the National Disability Board, and co-ordinating the activities of organisations which are involved in working with PWDs.30 Section 9 of the Act endeavours to protect PWDs from non-discrimination in employment.31 However, this non-discrimination clause is subject to exceptions based on the nature of the job, the nature of disability the prospective employee has, and whether the employer has special facilities to accommodate the PWD.32 The Act makes it a criminal offence to deny PWDs admission into any premises to which members of the public are ordinarily admitted or to deny provision of any public service amenity.33

  • The Mental Health Act [Chapter 15:12]

The Mental Health Act34 provides for the consolidation and amendment of the law relating to the care, detention and after-care of persons with mental disabilities for the purposes of treatment.35 This Act establishes the Mental Hospital Board which has the mandate of rehabilitating, treating and attending to the welfare of ‘mental health patients’.36 The Act stipulates the procedure for the committal of persons with mental disabilities to mental health institutions.37 The committal procedure for persons with mental disabilities who face criminal charges is also provided for by the Act.38 Special Boards are established by the Act. The Boards report on the condition of ‘mental patients’ detained in the various mental health institutions.39 The Mental Health Review Tribunal is also constituted by the Act. This Board hears applications and appeals made by and on behalf of ‘mental health patients’ detained in mental health institutions regarding their treatment, general welfare and release.40

  • State Services (Disability Benefits) Act [Chapter 16:05]

The State Services (Disability Benefits) Act41 provides for monetary compensation on the death or disablement of a state official arising out and in the course of duty.42 This includes members of the Defence Force, the Police Force and the Prison Services. The Act further provides for compensation on the death or disablement of any person whilst assisting the mentioned forces.43 The Act appears to make reference to physical disabilities only and does not mention other types of disabilities such as mental, intellectual or sensory disabilities.44 Disablement is defined in terms of this Act as permanent injury or disfigurement.45

4.2 Does Zimbabwe have legislation that indirectly addresses issues relating to disability? If so, list the main legislation and explain how the legislation relates to disability.
  • The Social Welfare Assistance Act [Chapter 17:06]

The Social Welfare Assistance Act46 provides for the granting of social welfare assistance to persons in need and their dependants.47 PWDs in Zimbabwe have been identified as the worst affected by poverty.48 In determining whether a person is eligible to receive social welfare assistance in terms of this Act, considerations laid out in section 6 of the Act are taken into account.49 Persons who are ‘handicapped mentally or physically’ and persons who are ‘destitute’, ‘indigent’ and ‘incapable of looking after themselves’ are eligible to receive social welfare assistance.50 The Act endeavours to assist PWDs by providing social welfare assistance in the various forms laid out in section 5 of the Act.51 The Department of Social Welfare in the Ministry of Public Service, Labour and Social Welfare has the mandate to provide this social welfare assistance. However, this government department is poorly resourced and funded. It does not have the requisite resources and capacity to alleviate the poverty of PWDs. This department has been described as ‘probably the most demoralized of all government departments’.52

  • The War Victims Compensation Act [Chapter 11:06]

The War Victims Compensation Act53 provides for the payment of compensation to persons who have been disabled as a result of war. Where a person has been disabled as a result of war, they are entitled to claim compensation in terms of this Act. Compensation is paid after an assessment of the degree of disablement by the Commissioner of War Victims Compensation.54 This Act has special provisions for women with disabilities and children with disabilities in the context of disabilities caused by war.55 The Act provides for increased monetary compensation for women with disabilities.56 It also makes provision for educational allowance for children who acquire disabilities as a result of war.57 This allowance is also available to children whose parents have been disabled as a result of war.58 However, the Act appears to make reference to physical disability only.59 It can be submitted that persons who acquire physical disabilities as a result of war are the only persons who are entitled to receive compensation under the Act.

  • The Criminal Law (Codification and Reform) Act [Chapter 9:23]

The Criminal Law (Codification and Reform) Act60 extends specific protection to PWDs in respect of some offences. It criminalises sexual conduct with a ‘mentally incompetent’ adult.61

  • The Criminal Procedure and Evidence Act [Chapter 9:07]

The Criminal Procedure and Evidence Act62 provides for the trial procedures of persons with mental disabilities.63 Where a magistrate or judge in the trial of a person with a mental disability has been presented with evidence to the effect that the accused person had a mental disability at the time of committing the offence, a special verdict to the effect that the person is not guilty by reason of insanity can be entered. The magistrate may order the detention of such person in a mental institution for the purposes of treatment. Where the magistrate is presented with evidence to the effect that the accused person is no longer mentally disordered, he can be released from prison.64

5 Decisions of courts and tribunals
5.1 Have the courts (or tribunals) in Zimbabwe ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases with the facts, the decision(s) and the reasoning.

There is generally a dearth of jurisprudence on disability rights in the Zimbabwean legal system. Nevertheless, the milestone ruling in the case of Simon Mvindi v The President of the Republic of Zimbabwe 65 which addressed the right to vote of PWDs. During the 2008 elections, ballot papers were not available in accessible format to PWDs. Sections 59 and 60 of the Electoral Act66 required polling officers on duty to assist voters in need of assistance especially PWDs to cast their ballot. In Simon Mvindi, the applicants were all persons with visual impairments who brought a Constitutional Court application challenging the constitutionality of sections 59 and 60 of the Electoral Act. The applicants cited a violation of the right to a secret ballot by the sections in question. The Court held that PWDs have a right to vote in secrecy like any other person. The Court further declared the sections in question null and void as they violated the applicants’ right to a secret ballot. The Court also directed the government to provide voting materials in accessible format so that PWDs could fully exercise their right to vote in secrecy. 67

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

The government has not formulated meaningful policies that directly address disability. It is important to note that civil society is far more involved in carrying out programmes and implementing policies that address the needs of PWDs. As indicated above, the DPA establishes the National Disability Board, which is tasked with developing measures and policies on the welfare of PWDs. In 2005, the National Disability Board successfully lobbied for the inclusion of disability as a prohibited ground of discrimination in the Constitution. Physical disability was then included as a prohibited ground of discrimination.68 The National Disability Board further established the Disability Fund in 2003 and received funding for this

Fund from the national reserves.69 The Board also lobbied successfully for the inclusion of children with disabilities in the Basic Education Assistance Module (BEAM).70

In 2004, the country’s first national mental health policy was launched.71 The aim of this policy was to provide a framework for the design, monitoring and evaluation of mental health programmes. However, delays in implementation and budget constraints made the implementation of this policy difficult.72

The office of the Special Advisor on Disability and Rehabilitation to the President and Cabinet was established in 2007.73 This office acts as a central point within government for matters relating to disability.74 It also coordinates the annual National Disability Expo which was launched in 2013. The purpose of this Expo is to provide a platform for government, civil society and any other relevant stakeholders involved with PWDs to interact and share their experiences. The Expo also serves to raise awareness on the rights of PWDs.75

6.2 Does Zimbabwe have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.

In 2009, the Government launched the Short-Term Emergency Recovery Program (STERP). STERP focused on stabilising the economy. This policy indirectly addressed disability as it provided financial support to revitalise the disability allowance.76 The Medium Term Plan (MTP) was Zimbabwe’s national economic and development strategy from the period 2011 to 2015.77 This policy indirectly addressed disability as it provided for the issuing of grants to PWDs facilities. However, this national policy did not address the economic empowerment of PWDs or income generation initiatives for PWDs.78 However, the implementation of the MTP was shortened by the demise of the government of national unity in 2013.

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

The DPA establishes the National Disability Board (NDB).79 The functions of the board are set out in section 5 of the Act. The NDB is mandated with formulating policies that are tailored to achieve equal opportunities for PWDs by ensuring that they obtain education and employment. The NDB is also tasked with ensuring that PWDs participate fully in sporting, recreational and cultural activities and that they are afforded full access to community and social services.

The Board is further empowered in terms of the DPA to issue adjustment orders.80 Adjustment orders issued by the NDB seek to ensure that PWDs have access to mainstream public services and premises. Where the NDB considers that any public premise or service is inaccessible to PWDs, it may serve an adjustment order. The adjustment order serves as a direction to the owner of the building or the provider of the service to ensure that there is reasonable access by PWDs. The owner or provider must effect such changes so as to ensure reasonable access by PWDs at his/her own expense.81 Section 7(8) of the DPA makes it a criminal offence not to comply with an adjustment order.

The NDB is however prohibited from issuing adjustment orders on any public institution without the consent of the Minister responsible for the institution. It can be submitted that requiring ministerial consent renders adjustment of state premises and services dependant on the political willingness of the government.82 Though the Act empowers the NDB to issue adjustment orders and criminalises non-compliance, no adjustment orders have ever been issued in terms of this Act.83 Furthermore, there have been no prosecutions in terms of this Act.84 The NDB is also hindered in its operations by lack of resources.85

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

See 8 below.

8 National human rights institutions, Human Rights Commission, Ombudsman or Public Protector
8.1 Does Zimbabwe have a Human Rights Commission, Ombudsman or Public Protector? If so, does its remit include the promotion and protection of the rights of people with disabilities? If the answer is yes, also indicate whether the Human Rights Commission, the Ombudsman or Public Protector of Zimbabwe has ever addressed issues relating to the rights of persons with disabilities.

In Zimbabwe, the Zimbabwe Human Rights Commission is established in terms of section 242 of the Constitution. Its functions include promoting awareness and respect for human rights and freedoms at all levels of society; promoting the protection, development and attainment of human rights and freedoms; monitoring, assessing and ensuring observance of human rights and freedoms; and receiving and considering complaints from the public and taking action with regard to the complaints it receives.86

The Commission is also mandated to protect the public against abuse of power and maladministration by the state and public institutions and by officers of public institutions. In addition, the Commission recommends to Parliament effective measures to promote human rights and freedoms. The Commission may also direct the Commissioner-General of Police to investigate cases of suspected criminal violations of human rights or freedoms and to report to the Commission on the results of such investigations.87

Furthermore, the Commission may also investigate complaints or allegations of human rights violations on its own initiative.88 As such, the Commission is empowered to visit and inspect prisons, places of detention, refugee camps and related facilities for the purposes of identifying and redressing cases of human rights violations in such places. With regard to disability rights, the Commission is empowered to visit and inspect places where ‘mentally disordered’ or ‘intellectually handicapped’ persons are detained.89

Although the constitutional mandate of the Commission appears to be well articulated on paper, serious questions remain with regard to the Commission’s ability to take measures against the executive arm of government, especially human rights violations by the police. It appears that the Commission is a weak body that cannot effectively address human rights violations in Zimbabwe. The recommendations or reports by the Commission with regard to human rights violations have no legal force, although the responsible authorities are expected to act on them. Furthermore, from its inception in 2009, the Commission is financially starved and therefore cannot adequately or effectively execute its mandate.90

9 Disabled peoples organisations (DPOs) and other civil society organisations
9.1 Does Zimbabwe have organisations that represent and advocate for the rights and welfare of persons with disabilities? If so, list each organisation and describe its activities.
  • Albino Charity Organisation of Zimbabwe: advocates for the rights and welfare of persons with albinism in Zimbabwe.
  • Association of the Deaf (ASSOD): representative organisation for persons with hearing and speech functional disabilities.
  • Council for the Blind: plays an active role with regards to the rights of persons with visual impairments, especially policy proposals to advance the rights of persons with visual impairments.
  • Danhiko Project: an educational and vocational training institution for persons with disabilities in Zimbabwe.
  • Deaf Zimbabwe Trust: advocates for the rights of persons with speech-functional and hearing impairments, including recording of television programmes on the rights of ‘deaf’ people.
  • Disabled Women Support Organisation: advocates for the rights of women with disabilities in Zimbabwe, especially the right to economic empowerment.
  • Henry Murray School for the Deaf: is an educational institution for children with speech-functional and hearing impairments and also advocates for the rights of persons with speech-funcntional and hearing impairments.
  • Jairos Jiri Association: a long established organisation that represents persons with disabilities in Zimbabwe.
  • Margareta Hugo School and Workshops for the Blind: an educational and vocational training centre for persons with visual impairments in Zimbabwe. It also advocates for the rights of persons with disabilities in general.
  • Midlands State University Legal Aid Clinic: specialises in strategic litigation on behalf of persons with disabilities in Zimbabwe.
  • National Association for the Care of the Handicapped: is an umbrella organisation for orgainsations of and for persons with disabilities in Zimbabwe.
  • Zimbabwe Association of the Visually Handicapped: advocates for the rights of persons with visual impairments in Zimbabwe.
  • Zimbabwe Downs Syndrome Association: a representative organisation for persons with intellectual disabilities in Zimbabwe.
  • Zimbabwe National Association for Mental Health: advocates for the rights of persons with mental disabilities in Zimbabwe.
  • Zimbabwe National League of the Blind: champions the rights of persons with visual impairments, including litigation for the rights of persons with disabilities.
  • Zimbabwe Parents of Handicapped Children Association: a representative organisation for parents of children with disabilities and advocates for the rights of children with disabilities in Zimbabwe.
  • Zimcare Trust: an educational and vocational training centre for persons with intellectual disabilities.
  • Zimbabwe Women with Disabilities in Development: caters for the needs and concerns of women with disabilities in Zimbabwe with regards to national development initiatives.91
9.2 In the countries in Zimbabwe’s region, are DPOs organised/coordinated at a national and/or regional level?

The National Association for the Care of the Handicapped (NASCOH)92 is an umbrella organisation that deals with disability in Zimbabwe. Its members include most if not all the organisations listed in 9.1 above. Other member organisations include Abilities, the Disability Agenda Forum, the Disability Resource Centre, the Disabled Child Network, the Disabled Helping Hand Association, the Disablement Association of Zimbabwe and the Zimbabwe Visually Impaired Teachers Trade Union. The objectives of NASCOH include: initiating, promoting and developing the coordination and participation of and between member organisations in matters concerning the care of people with disabilities; periodically reviewing the facilities available for the rehabilitation of people with disabilities in order to promote further developments; and advising the government on any existing or future organisation concerned with the care of people with disabilities and to disseminate information to any interested body.

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

Given the fact that Zimbabwe recently ratified the CRPD, it is not yet clear how the involvement of DPOs in the implementation of the CRPD will be achieved.

10 Government departments
10.1 Does Zimbabwe have a government department/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 Department of Social Welfare

The Department is responsible for disability issues. It is tasked with the provision of disability grants to PWDs. The Department however is not human-rights oriented in its work but approaches disability as a welfare issue. In addition, the Department ‘is probably the most impoverished and demoralized of all government departments’.93 Due to a lack of financial resources, the Department is not in a position to provide meaningful grants. At present, only a few PWDs are receiving the disability grants in the amount of US$17-00 per month.94 It is submitted that the size of the grant is very small and insignificant.

  • The National Disability Board

As indicated above, the Board is established by the DPA.95 Its functions are to adopt policies to ensure access to education and employment by PWDs.96 It also ensures that PWDs participate fully in sporting, recreation and cultural activities and are afforded full access to community and social services. Is is the Board that issues the above discussed adjustment orders in the event that there are inaccessible public premises and services.97

However, the Board is largely invisible due to a lack of resources in that it operates under the financially ailing Department of Social Welfare. The Board has not had an office to operate from since 1992 and there are no meetings by the members due to lack of resources.98

11 Main human rights concerns of people with disabilities in Zimbabwe
11.1 Contemporary challenges of persons with disabilities in Zimbabwe (for example, in some parts of Africa ritual killing of certain classes of PWDs, such as people with albinism, occurs).
  • Negative social attitudes

Disability in Zimbabwe is surrounded by myths resulting in stigmatisation of PWDs.99 Pejorative terms like ‘idiots’, ‘imbeciles’, ‘mentally retarded’ or ‘mentally handicapped’ are still used in Zimbabwe to refer to persons with mental and intellectual disability.100 Disability is linked to witchcraft and sometimes the birth of a child with a disability may result in divorce of the mother. There is also a common misconception in Zimbabwe that PWDs are passive and economically unproductive, and therefore are a burden upon the country.101 The negative social attitudes thus negatively affect the inclusion and participation of PWDs as equal members of society. Resultantly, PWDs tend to suffer more human rights violations compared to their non-disabled counterparts.102

11.2 Describe the contemporary challenges of persons with disabilities, and the legal responses thereto, and assess the adequacy of these responses to:
  • Access and accommodation

The legal framework that addresses the right of access to physical, social communication, information and other services is weak. As indicated above, the National Disability Board cannot issue and serve adjustment orders to state hospitals, clinics, nursing homes, schools or educational training centres without the consent of the relevant Minister of the institution concerned.103 The requirement for ministerial consent has resulted in many government workplaces and state recreational facilities not being accessible to PWDs104 because the required ministerial consent is very difficult to secure. There are no accessibility standards and regulations for public premises and services in Zimbabwe. As a result, roads, bus stations, communication services, transport services and recreational services are not accessible to PWDs in Zimbabwe.105

  • Access to education

It has been estimated that one in three children with disabilities is not attending school and that 75 per cent of children with disabilities never complete primary school.106 These are damning reports for a country striving to achieve the millennium development goal of universal primary education. It has also been indicated that 32 per cent of people with disabilities in Zimbabwe have had no schooling.107 This is particularly disturbing if one considers the central role that education plays in fostering the enjoyment of other rights and promoting the development of children, communities and nations. To compound the situation of learners with disabilities in Zimbabwe, section 83 of the Constitution reinforces the idea of special schools for PWDs and does not do enough to embrace inclusive education.108 Without educational opportunities, children with disabilities will not have the chance to develop to their full potential and will face tremendous barriers to full social and economic participation in society. Without the requisite education, a vicious cycle of poverty and disability is therefore created and compounded for children with disabilities in Zimbabwe. The law does not address the right to education for children with disabilities in Zimbabwe.109

  • Access to employment

Given the fact that Zimbabwe is currently facing unprecendented economic challenges, PWDs are excluded from employment.110 The law is inadequate with regards to the right to employment for PWDs. The laws that address disability in Zimbabwe have a lot of shortcomings with regard to the realisation of the right to employment of PWDs. The laws still embrace an outdated welfaristic approach or medical approach to disability.111

To start with, the Constitution does not confer any right to employment for PWDs nor does it confer any state obligation to safeguard and promote such right.112 The DPA does not help either. Apart from merely prohibiting discrimination against PWDs in employment,113 the Act does not confer any right of substance in relation to employment of PWDs. The Act is also not a human rights document and embraces the medical approach to disability as opposed to a robust human rights-approach.114 On its part, the Labour Act [Chapter 28:01] does not help either. In a similar fashion to the DPA, the Labour Act merely protects employees against discrimination on the basis of disability but does not give an obligation upon the state to promote, protect and fulfil the right to employment.115 The government has also done little to ensure the effective implementation of the laws. It is not surprising to note that, over and above the high rates of unemployment in Zimbabwe, PWDs are the worst affected.116

  • Access to health

The Constitution subjects the realisation of the right to health for PWDs to the availability of state resources.117 Given that the right to health is most important to PWDs, the law in Zimbabwe is inadequate in this regard. The Constitution does not underscore the state’s obligation to ensure progressive realisation of the right.118 PWDs, especially those in rural areas, are the most affected with regard to inaccessible health care services. As such, there is no legal mechanism to compel government to ensure full and effective access to health care services by PWDs in Zimbabwe.

11.3 Do people with disabilities have a right to participation in political life (political representation and leadership) in Zimbabwe?
  • Political Participation

Prior to 2008, PWDs who needed assistance in casting ballots during an election were assisted by police officers, Zimbabwe Electoral Commission members and political party representatives. However, the position was challenged in Simon Mvindi.119 After making a finding that a myriad of factors like lack of accessible polling stations, lack of voting materials in accessible formats, lack of accessible campaign literature and inaccessible transportation to and from polling stations renders the right to vote by PWDs hollow, the Supreme Court (sitting as a Constitutional Court) found that PWDs have a right to vote in secret like any other person. Political parties and the government, through the electoral authority, were ordered to consider developing political communications and voting materials in sign language and ballot papers in large print or Braille.

Despite the judgment, political participation by PWDs in Zimbabwe is still weak due to inaccessible polling stations especially in rural areas, limited number of PWD candidates during elections120 and lack of accessible voting materials.

Basically, the major weakness in Zimbabwe is that laws make the realisation of socio-economic and cultural rights for PWDs contingent upon resources that are available to the state and do not underscore the state’s duty to ensure progressive realisation of such rights.

11.4 Specific categories experiencing particular issues or vulnerabilities:
  • Women with disabilities

Although women with disabilities (WWDs) generally face the same spectrum of human rights abuses that the able-bodied women face, their abuses are magnified due to severe dependence and social isolation. They suffer double discrimination.121 In Zimbabwe, the situation of WWDs is particularly precarious. They are subjected to harassment, sexual abuse and exploitation. In addition, Zimbabwe being a highly patriarchal society, WWDs are less likely to benefit from any developmental initiatives that are available as compared to men with disabilities.

  • Children with disabilities

On their part, children with disabilities are doubly marginalised, firstly as children and secondly as PWDs. Children with disabilities are particularly vulnerable. There is need to ensure that their rights and welfare are protected in Zimbabwe. A common scenario in Zimbabwe is that children with disabilities are less likely to complete primary school education compared to their non-disabled counterparts. This results in spill over effects in that due to a lack of education and requisite skills, it is difficult if not impossible for children with disabilities to secure any form of employment. At the end, a vicious cycle of poverty and disability is created and compounded.

  • Elderly people with disabilities

Not only are women and children with disabilities in need of concerted attention but also elderly people with disabilities. Needs of elderly people with disabilities may largely differ from those of women and children with disabilities. This means that the equal treatment of all PWDs without taking into account the specific individual circumstances may also lead to injustice.

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

Firstly, Zimbabwe needs to urgently domesticate the CRPD for the treaty to have local applicability. Zimbabwe is a dual legal system and all international treaties ratified have to be domesticated.122

Secondly, there is need to align the disability laws with the Constitution and more importantly the CRPD. This is again an urgent exercise which should be implemented without any hurdles. It is a cause of concern that laws which address disability in Zimbabwe, with the exception of the Constitution, predate the CRPD and are framed along the outdated medical model of disability which treats PWDs as sick people in need of medical treatment and charity. As an example, the DPAis not a human rights document in that it does not confer any rights on PWDs or confer any obligations on the state.

Other laws that are in need of the alignment process include the Children’s Act [Chapter 5:06], the Mental Health Act [Chapter 15:12], the Social Welfare Act [Chapter 17:06], the State Service (Disability Benefits) Act [Chapter 16:05], the War Victims Compensation Act [Chapter 11: 16] and the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The bulk of these laws still use pejorative terms that disempower rather than empower PWDs. Terms like ‘imbecile,’ ‘mentally disordered,’ ‘intellectually handicapped’ and ‘mental patients’ demean, degrade, belittle, stigmatise and devalue PWDs.

Thirdly, it is an opportunity for Zimbabwe to adopt a National Policy on Disability. A national policy is very important with regard to implementation of disability laws. Such a policy should also consider groups of PWDs who face double discrimination for example women and children with disabilities, and the elderly with disabilities.

Fourthly, there is need to take affirmative action programmes in favour of PWDs. Section 56(6) of the Constitution provides for affirmative action. Affirmative action simply means targeted steps for the advancement of people disadvantaged by historical practices or injustices. It is common cause that PWDs are a group of people who have suffered historical marginalisation due to discriminatory practices and tendencies.

A genuinely equal society is one that has a positive approach to accommodating human difference. Formal equality entrenches pre-existing patterns of social disadvantage in a number of fundamental ways and fails to ‘reasonably accommodate’ the difference of disability. Formal equality therefore creates illusory benefits for PWDs. Thus, there should be affirmative action policies in Zimbabwe laying a firm foundation for the increased participation of PWDs in critical sectors like education, employment, health and politics. Zimbabwe therefore has to take affirmative action in favour of groups marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them.

Fifthly, there is need to increase the number of senators representing PWDs from the current two senators. Such a move will assist in guaranteeing effective parliamentary representation of PWDs in Zimbabwe

Sixthly, there is need for increased litigious and non-litigious efforts for the development of domestic jurisprudence on disability. Courts of law play a very crucial role with regard to the realisation of the rights of PWDs. More referrals are therefore needed on disability issues to the courts of law so as to provide an impetus for the development of domestic jurisprudence on disability.

In addition to litigation, the Constitution and other laws can also be enforced through non-litigious means such as citizens lobbying and pressurising the government to give effect to their rights. Commissions, for example, the above-mentioned Zimbabwe Human Rights Commission can be approached whenever there is violation of the rights of PWDs.

In conclusion, disability needs to be mainstreamed in Zimbabwe. It is only through disability mainstreaming that PWDs can be accorded their full rights and fundamental freedoms.

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

See 12.1.

 


1. See the Zimbabwe Population Census 2012: National Report, available at: http://www. zimstat.co.zw/dmdocuments/Census/CensusResults2012/National_Report.pdf (accessed 7 April 2014).

2. Zimbabwe Inter-Censal Demographic Survey Report of 1997, available at: http://www. childinfo.org/files/ZIM finalest.pdf (accessed 4 June 2014).

3. Zimbabwe Housing and Population Census Report of 2002, available at: http://www. zimstat.co.zw/dmdocumets/Census/Census.pdf (accessed 3 June 2014).

4. See T Choruma The forgotten tribe: Persons with disabilities in Zimbabwe (2007), available at: http://www.africacampaign.info/uploads/media/forgottribeprogressiozim_01.pdf (accessed 5 April 2014).

5. As above.

6. As above.

7. As above.

8. As above.

9. UNICEF ‘A study of children and adolescents with disabilities in Zimbabwe’, available at: http://www.unicef.org/evaldatabase/files/ZIM_01-803 . pdf (accessed 17 June 2014).

10. Choruma (n 4 above) 11.

11. See the United States International Council on Disabilities’ (USICD) data portal, available at: http://www.usicd.org/index.cfm/news_zimbabwe-becomes-135th-state-party-to-ratify-the-crpd (accessed 9 April 2014).

12. See art 35(1) of the CRPD.

13. See art 35(2) of the CRPD.

14. See the country’s reporting history and status available at: http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/MasterCalendar.aspx (accessed 5 April 2014).

15. The Ministry of Public Service, Labour and Social Welfare is the Ministry responsible for disability issues in Zimbabwe whereas the Ministry of Justice and Legal Affairs is the Ministry responsible for the country’s report process under the United Nations Universal Periodic Review (UPR).

16. At its first reporting cycle under the UPR, held at Geneva in 2011, Zimbabwe was represented by the Ministry of Justice and Legal Affairs.

17. See the 2012 Foreign and Commonwealth Office Report on Human Rights and Democracy, available at: http://www.hrdreport.fco.gov.uk/human-rights-in-countries-of-concern/zimbabwe (accessed 8 April 2014).

18. See the Resident Coordinator’s Statement on the follow up workshop to Zimbabwe’s Universal Periodic Review (UPR) process, available at: http://www.zw.one.un.org/newsroom/news/rcs-statement-follow-workshop-zimbabwe%E2%80%99s-universal-periodic-review-upr-process (accessed 9 April 2014).

19. As above.

20. See sec 327 of the Constitution of Zimbabwe.

21. The Constitution of Zimbabwe, 2013.

22. The Children’s Act 22 of 1971 [Chapter 5:06].

23. The Labour Act 16 of 1985 [Chapter 28:01].

24. In April 2013, Zimbabwe adopted a new constitution through a referendum. The Constitution came into force on 22 August 2013.

25. It is however important to note that the state’s obligation on this regard is subject to the availability of resources test.

26. This is a dedicated section on the rights of PWDs in Zimbabwe. This section clearly demonstrates that Zimbabwe now subscribes to the human rights approach with regards to disability. This is a paradigm shift from the outdated medical model of disability. The medical model of disability treats PWDs as objects of welfare whereas the human rights model treats PWDs as holders of rights who should enjoy their rights on a par with their non-impaired counterparts.

27. The Disabled Persons Act 5 of 1992 [Chapter 17:01].

28. Preamble of the DPA.

29. Sec 5 of the DPA.

30. Sec 3(2) of the DPA.

31. Secs 9(4) and 10(c) make it a criminal offence to discriminate against a PWD in matters to do with employment.

32. Sec 9(2)(a)-(c) of the DPA.

33. Sec 8 of the DPA.

34. The Mental Health Act 15 of 1996 [Chapter 15:12].

35. Preamble of the Mental Health Act.

36. Secs 68(1) and 69-72 of the Mental Health Act.

37. See Part II of the Mental Health Act.

38. Part III of the Mental Health Act.

39. See Part IX of the Mental Health Act.

40. See Part X of the Mental Health Act.

41. The State Services (Disability Benefits) Act 22 of 1971 [Chapter 16:05].

42. Preamble of the State Services (Disability Benefits) Act.

43. Sec 37 of the State Services (Disability Benefits) Act.

44. E Mandipa ‘A critical analysis of the legal and institutional frameworks for the realisation of the rights of persons with disabilities in Zimbabwe’ (2013) 1 African Disability Rights Yearbook 88. Also see sec 15 and the First Schedule of the Act which only outlines the degrees of physical disablement that will be considered before compensation is payable.

45. Sec 2 of the State Services (Disability Benefits) Act.

46. The Social Welfare Assistance Act 10 of 1988 [Chapter 17;06].

47. Preamble of the Social Welfare Assistance Act.

48. National Association of Societies for the Care of the Handicapped ‘Disability in Zimbabwe’ available at: http://www.nascoh.org.zw/?Pageid=82 (accessed 2 April 2014).

49. Section 6 provides that the Director of Social Welfare may grant social welfare assistance to a destitute or indigent person where he/she is satisfied that such person is over sixty years of age, is handicapped physically or mentally, suffers continuous ill-health, is a dependant of a person who is a destitute or indigent or incapable of looking after himself or herself, or otherwise has need of social welfare assistance.

50. Sec 6 (1)(b) & (d) of the Social Welfare Assistance Act.

51. Sec 5 states that social welfare may be provided in the form of cash, food, clothes, pauper burials, foster care, orthopaedic and orthoptic appliances.

52. King George VI School and Center for Children with Physical Disabilities ‘Disability in Zimbabwe’, available at: https://sites.google.com/a/kinggeorge6.org/kgvi/Home/the-centre/disability-in-zimbabwe (accessed 2 April 2014).

53. The War Victims Compensation Act 22 of 1980 [Chapter 11:16].

54. Sec 12 of the War Victims Compensation Act.

55. Part VI of the War Victims Compensation Act.

56. Sec 24 (1) of the War Victims Compensation Act.

57. Secs 25 and 26 of the War Victims Compensation Act.

58. Sec 26(1) of the War Victims Compensation Act.

59. See sec 7 and the First Schedule of the War Victims Compensation Act for the assessment of degrees of physical impairments.

60. The Criminal Law (Codification and Reform) Act 23 of 2004 [Chapter 9:23].

61. Secs 60-64 of the Act.

62. The Criminal Procedure and Evidence Act 4 of 1927 [Chapter 9:27].

63. Sec 192 of the Criminal Procedure and Evidence Act provides that:

‘If at any time after the commencement of any criminal trial it is alleged or appears that the accused is not of sound mind, or if on such a trial the defence is set up that the accused was not criminally responsible on the ground of mental disorder or defect for the act or omission alleged to constitute the offence with which he is charged, he shall be dealt with in the manner provided by the Mental Health Act [Chapter 15:06].’

64. Sec 29(2)(c) Mental Health Act. The Mental Health Tribunal will then make recommendations as it sees fit as to the further detention, care, treatment and management of the accused.

65. SC 106/08 (2008).

66. The Electoral Act 25 of 2004 [Chapter 2:13].

67. Mandipa (n 44 above) 95.

68. Mandipa (n 44 above) 91.

69. R Lang & G Charowa ‘DFID scoping study: Disability issues in Zimbabwe’ (July 2007) 31, available at: http:// www.ucl.ac.uk/lc-ccr/downloads/scopingstudies/dfid_zimbabwereport (accessed 4 April 2014).

70. Mandipa (n 44 above) 91.

71. ‘Zimbabwe: Mental health policy launched’ IRIN (undated), available at: http://www.irinnews.org/report/52472/zimbabwe-mental-health-policy-launched (accessed 4 February 2014).

72. Zimbabwe Association of Doctors for Human Rights ‘Enjoyment of the right to the highest attainable standard of health by all Zimbabweans’ , available at: http://www.zadhr.org/newsletters/77-zadhr-newsletter-volume-7-issue-3-august-2009.html?start=3 (accessed 3 April 2014).

73. Mandipa (n 44 above) 93.

74. As above.

75. ‘Disability expo set for next month’ The Herald 26 June 2013, available at: http://www.herald.co.zw/disability-expo-set-for-next-month/ (accessed 4 March 2014).

76. SA Nilsson ‘Disability Rights in Zimbabwe’, available at: http://www.msc.st/docs/HRBA-Disability-Zimbabwe-revised-2011-01-30.doc (accessed 3 April 2014).

77. As above.

78. As above.

79. Sec 4 of the DPA.

80. Sec 7 of the DPA.

81. Sec 7(2)(b) of DPA.

82. Mandipa (n 44 above) 82.

83. As above.

84. As above.

85. As above.

86. Sec 243(a)-(d) of the Constitution.

87. Sec 243(e), (h) & (i) of the Constitution.

88. Sec 243(f) of the Constitution.

89. Sec 243(k)(ii) of the Constitution.

90. ‘Zimbabwe Human Rights Commission pleads for funding’ SW Radio Africa 23 May 2013, available at: http://www.swradioafrica.com/2013/05/23/zimbabwe-human-rights-commission-pleads-for-funding/ (accessed 10 April 2014).

91. The list of DPOs and other civil organisations that deal with disability in Zimbabwe is available at: http://www.nascoh.org.zw/members (accessed 24 June 2014).

92. NASCOH is a non-governmental organisation operating in Zimbabwe. It is the umbrella body for voluntary organisations for and of persons with disabilities in Zimbabwe.

93. King George VI School and Centre for Children with Physical Disabilities (n 52 above).

94. ‘Government to pay disability grants’ The Star 17 May 2013.

95. Sec 4 of the DPA.

96. Sec 5 of the DPA.

97. As above.

98. Interview with R Mudarikwa, deputy chairperson of the National Disability Board, 7 March 2014.

99. Choruma (n 4 above) 10.

100. See the Criminal Procedure and Evidence Act (n 62 above) and the Criminal Law (Codification and Reform) Act (n 60) in which pejorative terms like the ‘mentally challenged’ and ‘imbecile’ are still used.

101. Lang & Charowa (n 69 above).

102. As above.

103. See sec 7(7) of the DPA.

104. AH Eide et al ‘Living conditions among people with activity limitations in Zimbabwe: A representative regional survey’, available at: http://www.safod.org/images/lczimbabwe.pdf (accessed 4 March 2014).

105. Mandipa (n 44 above) 82.

106. ‘The plight of deaf and dumb children in education’ Manica Post 20 December 2011.

107. UNICEF A study of children and adolescents in Zimbabwe (2012) 74.

108. Mandipa (n 44 above) 80.

109. See for example the Education Act 5 of 1987 [Chapter 25:04] which does not embody any provision addressing the education of learners with disabilities in Zimbabwe.

110. Zimbabwe Human Rights Report ‘Discrimination based on race, sex, religion, disability, language, or social status’, available at: http://www.ncbuy.com/reference/country/humanrights. html?code=zi&sec=5 (accessed 7 June 2014).

111. Choruma (n 4 above) 10.

112. Sec 65 of the new Constitution provides for labour rights but does not confer any right to employment on PWDs or even for persons without disabilities.

113. Sec 9.

114. Mandipa (n 44 above) 80.

115. Sec 5 of the Labour Act.

116. Eide et al (n 104 above).

117. Section 83 of the Constitution.

118. Mandipa (n 44 above) 79.

119. n 65 above.

120. As an example, sec 120(1)(d) of the Constitution provides for only two senators to represent PWDs in Parliament.

121. SA Djoyou Kamga ‘The rights of women with disabilities in Africa: Does the Protocol on the Rights of Women in Africa offer any hope’ (2011) Barbara Faye Waxman Fiduccia Papers on Women and Girls with Disabilities, Center for Women Policy Studies 3.

122. Sec 34 of the Constitution of Zimbabwe, 2013.


  • Natasha Banda
  • LLB (University of Zambia), LLM in Human Rights and Democratisation (University of Pretoria)
  • Advocate of the High Court of Zambia and Practising Lawyer in Lusaka, Zambia
  • Likando Kalaluka
  • LLB (University of Zambia), LLM in International and Comparative Disability Law and Policy (National University of Ireland)
  • Advocate of the High of Zambia and partner at Messrs Ellis & Co, Legal Practitioners in Lusaka Zambia


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

According to the 2010 Census of Population and Housing, the total population of Zambia was 13,046,508.1

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

A National Census is used to obtain data on the prevalence of disability in Zambia. In the 2010 Census, measurement of disability was based on the definition from the 1980 WHO International Classification of Impairments, Disabilities and Handicaps (ICIDH).2 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 2010 Census therefore used the terminology ‘disability’ in the context of the medical model of disability as opposed to the social or human rights model.3

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

According to the WHO, 2 million women and men in Zambia, or 15 per cent of the population have a disability.4 In addition, a higher percentage of persons living with disabilities include persons with hearing and visual disabilities and most PWDs live in rural areas where access to basic services is limited.5

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

The total number of women with disabilities accounts for about 2,4 per cent of the population in Zambia.6

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

The total number of children with disabilities in Zambia accounts for 1,6 per cent of the total population.7

1.6 What are the most prevalent forms of disability and/or peculiarities to disability in Zambia?

The most prevalent forms of disability in Zambia include:

  • Visual impairment;
  • Hearing impairment;
  • Physical impairment;
  • Communication impairment; and
  • Intellectual impairment.8

 

2 Zambia’s international obligations
2.1 What is the status of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD) in Zambia? Did Zambia sign and ratify the CRPD? Provide the date(s).

Zambia signed the CRPD on 9 May 2008 and ratified it on 1 February 2010. The Optional Protocol was signed on 29 September 2008 and has not yet been ratified.9

2.2 If Zambia has signed and ratified the CRPD, when was its country report due? Which government department is responsible for submission of the report? Did Zambia submit its report? If so, and if the report has been considered, indicate if there was a domestic effect of this reporting process. If not, what reasons does the relevant government department give for the delay?

Zambia has not submitted its country report and the government department responsible for submission of the report is the Ministry of Justice through the International Law and Agreements department. Zambia is currently in the process of preparing its country report on the CRPD. The reason for the delay has been resource based in that it requires resources to gather the information and to convene a workshop with relevant stakeholders to consolidate the information. However, Zambia is now in the process of preparing the report for submission.

2.3 While reporting under various other United Nations’ instruments, under the African Charter on Human and Peoples’ Rights, or the African Charter on the Rights and Welfare of the Child, did Zambia also report specifically on the rights of persons with disabilities in its most recent reports? If so, were relevant ‘concluding observations’ adopted? If relevant, were these observations given effect to? Was mention made of disability rights in Zambia's UN Universal Periodic Review (UPR)? If so, what was the effect of these observations/recommendations?
UN Instruments10
  • The International Covenant on Economic, Social and Cultural Rights

In April 2005, Zambia submitted its state report to the Committee on Economic Social and Cultural rights. Zambia did not specifically report on matters of disability rights and persons with disabilities. It was noted that the information provided in the report was not sufficient for the Committee on Economic, Social and Cultural Rights to be fully able to assess developments in the status of implementation of most of the provisions of the Covenant.11

In addition, although Zambia has adopted a number of laws in the area of economic, social and cultural rights, the Covenant has not yet been fully incorporated in the domestic legal order.12

In the concluding observations of the Committee, it recommended that Zambia:

  • exercise a stronger monitoring function in relation to private social security schemes and funds so as to ensure that those schemes provide adequate social protection to their beneficiaries;
  • take adequate measures to address the difficulties faced by widows and orphans, and in particular to eliminate harmful traditional practices; and
  • ensure that street children be provided with preventive and rehabilitative services for physical and sexual abuse, as well as adequate food, clothing, housing, health care and educational opportunities.13

Most of these observations and recommendations have not yet been given effect to, although efforts are being made through the constitutional review process and law review and revision which is currently in progress in Zambia.

  • The Convention on the Rights of the Child

In May 2003, Zambia submitted its state report to the Committee on the Rights of the Child.14 Zambia reported that it had made positive efforts to protect the interests of children belonging to the most vulnerable groups. Zambia reported that the Law Development Commission is working towards ensuring that domestic legislation fully reflects the principles of the Convention.

Regional Instruments
  • African Charter on Human and Peoples’ Rights

Zambia is currently working on its initial report on the African Charter on the Rights and Welfare of the Child. The National Policy on Disability has been drafted and is before Cabinet for consideration. The Policy provides a framework through which the government will enhance the coordination of efforts by all stakeholders engaged in uplifting the rights of persons with disabilities.

2.4 Was there any domestic effect on Zambia’s legal system after ratifying the international or regional instruments in 2.3 above? Does the international or regional instrument that has been ratified require Zambia’s legislature to incorporate it into the legal system before the instrument can have force in Zambia’s domestic law? Have Zambia’s courts ever considered this question? If so, cite the case(s).

After ratifying the CRPD, Zambia has since enacted the Persons with Disabilities Act 6 of 2012. According to its preamble, the Persons with Disabilities Act seeks to domesticate the CRPD and its Optional Protocol. However, the Persons with Disabilities Act only domesticates some of the provisions of the CRPD such as those relating to the general principles,15 legal capacity,16 education,17 health,18 habilitation and rehabilitation,19 and personal mobility.20

Under Zambian Law, no international or regional treaties which are signed or acceded to are self-executing but require enabling legislation to become enforceable. Furthermore, the Constitution of the Republic of Zambia of 1996 does not include provisions on the role of international law with regard to the interpretation of the Bill of Rights and statutory interpretation. In the case of Attorney General v Roy Clarke,21 the Supreme Court held that in applying and construing the Zambian statutes, the courts should take into account international treaties to which Zambia is a signatory. However, the Supreme Court acknowledged that unless the international treaties are domesticated, they are only of persuasive value and as such not necessarily binding on Zambian courts.

2.5 With reference to 2.4 above, has the CRPD or any other ratified international instrument been domesticated? Provide details

As mentioned earlier, after ratifying the CRPD, Zambia has since enacted the Persons with Disabilities Act of 2012. Zambia has domesticated some of the provisions of the CRPD. Besides the said piece-meal domestication, Zambia has not domesticated any other international or regional instruments on the protection and promotion of disability rights.

 

3 Constitution
3.1 Does the Constitution of Zambia contain provisions that directly address disability? If so, list the provisions, and explain how each provision addresses disability.

Article 112(f) of the Constitution provides that the state shall endeavour to provide to persons with disabilities such social benefits and amenities that are suitable for their needs and are just and equitable. This provision seeks to ensure that persons with disabilities receive appropriate and necessary support services so as to facilitate the full inclusion in communities and also full enjoyment of their human and fundamental rights. However, article 112(f) falls within the Directive Principles of State Policy.22 According to Article 111 of the Constitution, the provisions of the Directive Principles of State Policy are non-justiciable and cannot therefore be legally enforced in any court, tribunal or administrative institution. Effectively, the disability provisions of the Constitution cannot be enforced and their enforcement is subject to availability of state resources, or in so far as general welfare of the public avoidably demands.23

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

Article 23 of the Constitution generally prohibits discrimination either in statutes24 or in the manner any person is to be treated.25 In sub-clause (3) of article 23, the term ‘discrimination’ is defined to mean affording different treatment to different persons attributable, wholly or mainly to race, tribe, sex, place of origin, marital status, political opinion or creed whereby persons of one such description are subjected to certain restrictions or unfavourable treatment which is not afforded to persons of another description. While article 23 does not expressly prohibit discrimination on the basis of disability, the High Court in Zambia has held the Constitutional provisions that generally prohibit discrimination as capturing disability discrimination.26

 

4 Legislation
4.1 Does Zambia have legislation that directly addresses issues relating to disability? If so, list the legislation and explain how the legislation addresses disability.

Zambia has taken a step towards introducing a new Act to address disability - the Persons with Disabilities Act. However, the Act has been criticised for falling short of some of the standards prescribed by the CRPD. While the Act seeks to domesticate the CRPD, it only provides a piece-meal domestication whereby some but not all the provisions of the CRPD are reproduced in the Act.27 By implication, it means that provisions of the CRPD which are not reproduced remain undomesticated such that enforcing them would be problematic since Zambia adopts a dualistic approach to domestication of international and or regional treaties.

Subject only to the Constitution, section 3 of the Act provides that where there is any inconsistency between the provisions of any other law and the provisions of the Persons with Disabilities Act, then the provisions of the Persons with Disabilities Act shall prevail to the extent of the inconsistency. The import of this particular provision is that the provisions of the Persons with Disabilities Act shall prevail over any other law (other than the Constitution) in so far as that other law impacts on the rights of persons with disabilities. It follows that provisions of the CRPD that are domesticated such as the right to legal capacity, health, education, personal mobility and habilitation and rehabilitation will prevail over all other laws.

Further, section 9 of the Persons with Disabilities Act also makes progressive provisions for the protection of the rights of persons with disabilities who come into contact with law enforcement officers, including the courts. It reads:

Subject to the Constitution, law enforcement agencies shall take into account the disability of a person on arrest, detention, trial or confinement of the person with disability and make reasonable accommodation for that person accordingly, including at investigative and other preliminary stages of the matter.

The foregoing provision seeks to ensure that persons with disabilities are accorded the necessary and appropriate reasonable accommodation as they come into contact with law enforcement agencies.

The other Act that impacts profoundly on persons with disabilities is the Mental Disorders Act (MDA).28 The MDA seeks to provide for the treatment and custody of persons with mental and intellectual disabilities, and also for the administration of their estates.29 In its interpretation section, the MDA uses very derogatory words such as ‘idiots’, ‘imbecile’, and ‘lunatics’ to describe persons with disabilities.30 Such terminology encourages stigma and prejudicial attitudes against persons with disabilities.

In section 8, the MDA empowers police officers to apprehend and arrest any person whom he or she has reason to believe is ‘mentally disordered or defective’ and is a danger to himself or herself, or is wandering at large and unable to take care of himself or herself. Such provisions obviously put persons with disabilities at risk of being arrested if in his or her subjective determination, a police officer has reasons to believe that a person has a mental illness and that he or she may be a danger to himself or herself. The person so arrested is kept in a prescribed hospital or prison.31

In section 9, the MDA provides that magistrates may, during the course of an inquiry into the state of mind of any person, order the detention of such person. The reason for the detention is no other than that person is of ‘unsound mind’.32 The MDA, therefore, discriminates against persons with intellectual and mental disabilities in that it singles them out for unfavourable treatment which is not extended to others.

The Wills and Administration of Testate Estates Act 60 of 1994 is another example of legislation that discriminates against persons with disabilities. It contains a provision that disqualifies people from legal acts, such as the capacity to make a will, on the basis of disability. Furthermore, the Electoral Commission Act 24 of 1996 has no provisions to ensure that persons with disabilities exercise the right to vote on an equal basis with others. Laws that authorise deprivation of liberty or psychiatric interventions, without the free and informed consent of the person concerned, also fall into the category of laws that discriminate against persons with disabilities.33

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

The following is some of the legislation that indirectly addresses issues relating to disability:

  • The Criminal Procedure Code34 affects persons with disabilities in that in sections 161 to 167 it provides that persons with mental disabilities who are unable to defend themselves in criminal proceedings, or who plead the insanity defence, are to be detained at the President’s pleasure. The Criminal Procedure Code also provides for periodic reviews of the state of mind of the person so detained.
  • The Prisons Act35 provides that prisoners adjudged to be ‘mentally disordered or defective’ should be detained until they serve their sentence.36 The Prisons Act does not provide for any reasonable accommodation in prison for persons with intellectual or mental disabilities.

The foregoing is by no means the only legislation indirectly touching on disability issues.

5 Decisions of courts and tribunals
5.1 Have the courts (or tribunals) in Zambia ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases with the facts, the decision(s) and the reasoning.

There are a number of cases that the courts have determined which relate to disability. The following are some of the cases, including a brief summary of facts and the decision:

  • Sela Brotherton (suing in her capacity as National Secretary of the Zambia Federation of Disability Organisations) v Attorney General & 16 Others:37 In this case, the Plaintiff had commenced court proceedings seeking amongst others orders for the adjustments of several public and private buildings which were not accessible to persons with disabilities. The High Court determined the matter on a preliminary issue and held that the action was statute barred on the grounds that the Plaintiff commenced court proceedings outside the 12 years statutory period.
  • Sela Brotherton (suing in her capacity as National Secretary of the Zambia Federation of Disability Organisations) v Electoral Commission of Zambia:38 The Plaintiff commenced court proceedings seeking amongst others orders and declarations that the respondent was discriminating against persons with disabilities by failing to provide them with the necessary services and amenities to allow them to participate in the electoral process on equal basis with others. The Court ruled that there was discrimination in that the respondent is obliged to manage public affairs in a manner that is not discriminatory.

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

The following are the key programmes and policies in place in Zambia which address matters affecting persons with disabilities:

  • The National Policy on Education, 199639 recognises the right to education for each individual, regardless of personal circumstances or capacity. The Ministry of Education has overall responsibility for education, including special education;
  • The National Employment and Labour Market Policy (NELP) 2005,40 shows the government’s intentions to provide improved care and support services to vulnerable groups, including people with disabilities;
  • The Sixth National Development Plan (SNDP) 2011 to 2015,41 builds on the Fifth National Development Plan (FNDP) 2006-2010 and aims to attain the full participation, equality and empowerment of persons with disabilities. It seeks to provide enhanced support to disabled persons through increased government spending on disability; develop inclusive mainstream policies; review existing pieces of legislation; and establish and/or strengthen institutions and systems that cater to people with disabilities.

The government works closely with the Zambia Agency for Persons with Disabilities through the Ministry of Justice in order to address various matters which affect persons with disabilities in Zambia. The Zambia Agency for Persons with Disabilities is a government Agency mandated to safeguard the interests of persons with disabilities in Zambia and to work closely with the DPO in order to ensure the protection and promotion of the rights of persons with disabilities.42

6.2 Does Zambia have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.
  • The National Youth Policy, 2006,43 aims at including disabled youth in mainstream programmes and projects targeting youth; and
  • The National Long-Term Vision 203044 articulates Zambia’s development agenda for the next 25 years. One of the objectives is to make Zambia a middle-income country by 2030 in which all people will be provided with opportunities to improve their well-being.

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

The Zambia Agency for Persons with Disabilities (ZAPD) is established under the Persons with Disabilities Act to promote the rights of persons with disabilities in Zambia and to mainstream disability issues in all aspects of national development.45 However, ZAPD does not specifically address violations of rights of individuals. Some of its functions under the Act are to:

  • plan, promote and administer services for all categories of persons with disabilities;
  • keep statistical records relating to incidences and causes of disabilities, which may be used for the planning, promotion, administration and evaluation of services for persons with disabilities;
  • provide rehabilitation, training, and welfare services to persons with disabilities; and
  • recommend to the government measures to promote the rights of persons with disabilities. 

The bodies which are specifically mandated to address violations of rights of people with disabilities are courts and the Human Rights Commission described in question 8 below.

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

The main bodies which are specifically mandated to address violations of human rights which also include the rights of persons with disabilities are courts and the Human Rights Commission described in question 8 below.

8 National human rights institutions, Human Rights Commission, Ombudsman or Public Protector
8.1 Does Zambia have a Human Rights Commission, an Ombudsman or 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 of Zambia has ever addressed issues relating to the rights of persons with disabilities.

In Zambia, the Human Rights Commission is established by article 25 of the Constitution and its mandate is articulated in the Human Rights Commission Act, Chapter 48 of the Laws of Zambia. It is tasked with the investigation of human rights violations and maladministration of justice and must propose remedies to prevent human rights abuses. It also mediates for victims of human rights abuse and acts as a spokesperson for detainees.46

The Commission may investigate on its own initiative or on receipt of complaints or allegations by individuals or groups, to others acting on their behalf. However, its findings lead only to recommendations which have no legal force, although the government and its agencies are expected to act on them.47

The Commission receives an allocation in the government budget like all other regular government departments. However, since its inception, the government has not provided the Commission with an adequate budget or facilities required to undertake the mandated tasks. As a result of the lack of a resource base, the Commission has been unable to attract or retain high calibre and skilled personnel. The Commission also receives international support, which tends to be on a project by project basis. The Norwegian government funded the refurbishment of the Commission's offices.48

While the Commission has done commendable work relating to the protection and promotion of human rights generally, it has not done much with respect to the rights of persons with disabilities.

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

The Zambia Federation of Disability Organizations (ZAFOD) is the umbrella organisation representing several disabled persons organisations in Zambia. Its main activities include advocacy and awareness-raising. It also provides small loans to people with disabilities and training in small-scale business management.

The following DPO’s are members of ZAFOD:

  • Zambia National Association of Disabled Women;
  • Zambia National Association of the Deaf;
  • Zambian National Association of the Hearing Impaired;
  • Zambian National Association of the Partially Sighted;
  • Zambian National Association of the Physically Handicapped;
  • Zambian Association of Children and Adults with Learning Disabilities;
  • Zambia Association of Parents of Children with Disabilities; and
  • Mental Health Users Network of Zambia (MHUNZA).

Other significant organisations include:

  • Zambian National Federation of the Blind;
  • Zambia National Library and Cultural Centre for the Blind; and
  • Zambia Association on the Employment for Persons with Disabilities.

Further, some of the key stakeholders where disability rights in Zambia are concerned include the following:

  • Ministry of Community Development and Social Services (MCDSS);
  • Zambia Agency for Persons with Disabilities (ZAPD);
  • Concerned line Ministries - Education, Health, Justice;
  • Disabled People’s Organisations (DPOs);
  • Zambia Law & Development Commission (ZLDC);
  • Action on Disability Development (ADD);
  • The Human Rights Commission;
  • Opportunity Zambia (OZ);
  • International Labour Organisation (ILO);
  • Sight Savers International (SSI);
  • Zambia National Federation of the Blind (ZANFOB); and
  • Power4Good / POWER International.
9.2 In the countries in Zambia’s region (Southern Africa) are DPOs organised/coordinated at national and/or regional level?

In Zambia, DPOs are organised at a national level. ZAFOD is the umbrella organisation representing several disabled persons organisations in Zambia. Its main activities include advocacy and awareness-raising. It also provides small loans to people with disabilities and training in small-scale business management. ZAFOD also coordinates all other DPOs in Zambia.

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

The main government agency responsible for promoting the rights of persons with disabilities and coordinating disability issues within government in line with article 33(1) of the CRPD is ZAPD. In addition to this, ZAPD engages directly with the Ministry of Justice on matters of legal advice and policy concerning the rights of persons with disabilities.49 It is unfortunate that not much has been reported on how well these government agencies have ensured the involvement of DPOs in the implementation process. Zambia is currently undergoing law review and revision and it is hoped that matters on the implementation of article 33(1) of the CRPD will be considered.

With regard to monitoring the Convention, ZAPD engages with DPOs and so far there has been no available report on any surveys that may have been conducted.

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

DPOs in Zambia often engage with government and its agencies on matters concerning the implementation of the CRPD either through the Ministry of Justice, or the Department of Gender and Community Development. However, there are no reports or much information on the outcome of the engagement due to the fact that DPOs have limited resources and sometimes lack awareness on key issues to be addressed.

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

Although the Zambian government has appointed disability focal point persons in all the ministries, most of them lack awareness of disability rights and the actual provisions of the CRPD. Furthermore, the framework within which they are supposed to operate has not been established. The Government has also established a Technical Committee to oversee the implementation process of domestication with the involvement of civil society and representatives from disability organisations.

The following are some of the barriers:

  • lack of awareness amongst policymakers on the CRPD;
  • lack of resources and technical capacity by DPOs to conduct research that can inform the implementation of the CRPD; and
  • lack of a unified voice by DPOs (DPOs tend to organise by disability type and each DPO lobbies for issues which are more relevant to it).
9.6 Are there specific instances that provide ‘best-practice models’ for ensuring proper involvement of DPOs?

An example of ‘best practice model’ for ensuring the involvement of DPOs is the establishment of the Advancing Disability Equality Project (ADEPt) by ZAFOD with a view of facilitating the protection and promotion of the rights of persons with disabilities through strategic litigation aimed at setting up legal precedents on disability rights.50 ZAFOD identifies meritorious cases where the rights of persons with disabilities have been violated and transmits them to selected law firms for legal advice and possible prosecution before courts of law; ZAFOD mobilises financial resources to meet the legal costs of prosecuting such cases. In this way, persons with disabilities will not have to bear the high legal fees which often hinder commencement of disability rights litigation.

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?

As stated in 9.5 above there have not been any tangible outcomes due to the lack of awareness and resources which has affected the process of engagement and implementation.

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 research has not revealed a very positive outcome with respect to engagement of DPOs in the implementation process. There is a great need for capacity building, awareness raising and improved resources in order to ensure better engagement in the implementation process.

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?

Yes:

  • Capacity building of DPOs;
  • Better collaboration and engagement between DPOs and government agencies in all relevant implementation initiatives;
  • Engagement between DPOs and the Human Rights Commission to broaden research, implementation strategies and lessons on field investigations and surveys;
  • Encouraging research by DPOs in order to allow for evidence based information to be submitted to government agencies and all relevant stake holders; and
  • Strategising on fundraising in order to improve on resources.
9.10 Are there specific research institutes in the region where Zambia is situated (Southern Africa) that work on the rights of persons with disabilities and that have facilitated the involvement of DPOs in the process, including in research?

No. However, the Open Society Initiative for Southern Africa has been a very crucial and key institution in the engagement of DPOs and facilitation of the involvement of DPOs in the area of research and outreach particularly through extensive meetings and collaborations with ZAFOD, MHUNZA and other DPOs.

10 Government departments
10.1 Does Zambia have a government department/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).

See question 7.1 above. ZAPD is a government Agency and established under an Act of Parliament.

11 Main human rights concerns of people with disabilities in Zambia
11.1 Contemporary challenges of persons with disabilities in Zambia (for example, in some parts of Africa ritual killing of certain classes of PWDs, such as people with albinism, occurs).

The most common challenge faced in Zambia is the seclusion of persons with disabilities. Persons with disabilities are often excluded from society by their families and communities generally in the belief that they are cursed. This even affects their right to education because in most instances they are not taken to school. In addition, in some traditional set ups, rituals which may be harmful to a child’s health or physical body are conducted on children with disabilities in the belief that disabilities can be cured.

11.2 Describe the contemporary challenges of persons with disabilities, and the legal responses thereto, and assess the adequacy of these responses to:
  • Access to accommodation

The Constitution does not make specific provisions for the access and accommodation of persons with disabilities. Instead, it only states that the State

shall endeavor to provide among others, decent shelter for all persons.51 However, this provision cannot be enforced before national courts as it is non-judiciable.52 Therefore, persons with disabilities continue to lack access to adequate accommodation and usually find themselves in inaccessible accommodation without necessary in-house amenities to enable lead decent lives. The Persons with Disabilities Act provides that the State shall take measures that ensure that persons with disabilities live independently and participate fully in society by among others, identifying and eliminating barriers to accessibility and accommodation.53 However, these provisions do not adequately address the challenge of accessing accommodation for persons with disabilities. The provisions are couched in a manner that merely requires the State to take measures towards providing access to adequate accommodation without specifically conferring a right on persons with disabilities.

  • Access to social security

Social security plays a very significant role in ensuring that persons with disabilities enjoy adequate standard of living on equal basis with others. This is more so as persons with disabilities are usually excluded from education, vocational training and employment. Section 36 of the Persons with Disabilities Act provides for the promotion of the right to social protection and adequate standard of living for persons with disabilities. However, provisions of the Constitutions that place a duty on the State to provide for social benefits are non-justiciable.

  • Access to public buildings

Persons with disabilities often find it very difficult to be fully included in societal activities owing to inaccessible public buildings. The plight of persons with physical disabilities and on wheelchairs was brought to the fore in the case of Sela Brotherton (suing in her capacity as National Secretary of the Zambia Federation of Disability Organisations) v Electoral Commission of Zambia.54 In that case, court proceedings were commenced among others, challenging the setting up of polling stations and voter registration centers in inaccessible public buildings. The Court found that there was discrimination as persons on wheel chairs excluded from fully participating in the electoral process.

However, the constitutional provisions which deal with access to public buildings are non-judiciable.55 Section 41 of the Persons with Disabilities Act provides that no person shall deny a person with disability access to any premises to which members of the public are ordinarily admitted and that the owner of such premises has an obligation to provide appropriate facilities to make the place accessible to person with disabilities. While provisions of the Persons with Disabilities Act protect the right of access to public places, provisions of the Constitution are compromised by their non-justiciability. At the same time, the Sela Brotherton v Attorney General case shows that it is possible for courts to recognise and enforce the right to accessibility.

  • Access to public transport

Persons with disabilities are usually discriminated against due to the lack of assistive devices and other amenities necessary to enable to access public transport. Generally, public transport vehicles and infrastructure are not equipped with assistive devices for instance, to allow a person on a wheel chair to board a bus or indeed voice recordings to announce when the bus or train approaches a particular station to enable a visually impaired person know when the bus or train reaches a particular station.

Barriers to access to public transport continue to be a challenge to persons with disabilities notwithstanding that section 42 of the Persons with Disabilities Act provides that a person who provides a service (including public transport) to the public must put in place measures that the service available and access to persons with disabilities in prescribed manner. However, it is of concern that no regulations have been adopted to prescribe the manner in which the measures should be put in place in order to make public transport accessible to persons with disabilities.

  • Access to education

Persons with disabilities are usually excluded from the education system. This is more so with respect to persons with intellectual and psychosocial disabilities who considered to be untrainable or simply denied education on the basis that there are not enough financial and other resources to for their education. There also very few specialised instructors or teachers to assist persons with disabilities at the level of primary, secondary or even tertiary education. Education facilities also lack infrastructure and other assistive devices necessary to reasonably accommodate persons with disabilities.

The Persons with Disabilities Act provides for the inclusive education at all levels and that the responsible Minister shall, in consultation with the Minister responsible for education come up with rules and guidelines to ensure that persons with disabilities are not excluded from the general education system on the basis of disability.56 The provisions relating to access to education are usually not applied in practice as there no prescribed guidelines or guidelines to ensure that persons with disabilities are included in the education sector. Further, the fact that constitutional provisions57 relating to equal and adequate educational opportunities are non-justiable, means that access to education cannot be enforced before courts of law.

  • Access to vocational training

Persons with disabilities are usually have no opportunities to develop their vocational skills so as to make them self-sufficient economically. As result, persons with disabilities continue to rely on family members or social welfare, both of which have limited resources to adequately provide for persons with disabilities.

There are no express provisions in the Constitution and the Persons with Disabilities Act touching on the access to vocational training. The Technical Education and Vocational Training Act58 prohibits the refusal of admission to any institution established for purposes of vocational training on the basis of sex, race, tribe, place of origin, colour or creed. It is noteworthy that disability is not one of the listed grounds upon which refusal to admission is prohibited. This makes both the application and enforcement of access to vocational training very difficult.

  • Access to recreation and sport

The Persons with Disabilities Act provides that a person with disabilities shall have the right to participate in recreational activities.59 However, there are no guidelines or rules as to how this right is to be realized or facilitated. Henceforth, persons with disabilities continue to be excluded from recreation and sporting activities.

  • Access to justice

Persons with disabilities usually find it difficult to access the courts of law due to inadequate and inaccessible roads and buildings. Even where persons with disabilities, persons with disabilities actually access the physical court premises, they usually have to contend with the inaccessible court procedures which do not reasonably accommodate them. It is in this regard that section 8 of the Persons with Disabilities Act provide that the judicature shall take necessary measures to ensure that persons with disabilities have equal and effective protection of the law without discrimination. Further, section 9 requires law enforcement agencies to reasonably accommodate persons with disabilities during their interview, arrest, detention trial and confinement. In practice however, these provisions are largely ignored. Persons with disabilities have not been able to enforce the right to access to justice owing to the high costs of engaging legal practitioners to represent them and argue the high technical nature of access to justice.

  • Access to health

The right to health is most important to persons with disabilities. The right to health like any other social, economic and cultural rights in Zambia is not justiciable. As such, there is no legal mechanism to compel government to ensure that persons with disabilities have access to quality health care services. The Constitution is currently under review and this is one of the areas proposed to be included in the Constitution.

  • Access to habilitation & rehabilitation

According to the World Health Organisation, habilitation refers to deliberate services put in place specifically targeting persons born with disabilities in an effort to make the environment suitable to their condition. Rehabilitation services on the other hand are targeted at persons who acquire disabilities.60 There are no measures or mechanisms in place for the promotion, availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation. The common practice amongst employers is that of retiring on medical grounds those who acquire disabilities while in employment. This has been a major concern amongst PWDs who have found themselves in similar situations as evidenced by the number of cases reported to the ADEPt project under ZAFOD.

  • Access to participation in political and public life

Inaccessible infrastructure, transportation and information usually cause barriers to the participation of persons with disabilities on an equal basis with others. People who are deaf particularly face communication barriers. For example, in many cases information is transmitted through radio stations. Such communication barriers hinder deaf people from participation in public life. Lack of Braille ballot papers means persons with visual impairments are dependent on a third party to cast their vote, which in itself overrides their right to a secret vote.

Further, almost all polling stations are not accessible to wheelchair users who also find it difficult to reach the ballot boxes that are usually placed too high. These and numerous other barriers serve to reinforce the exclusion and isolation of people with disabilities in political and public life, and, more generally, their participation in decision-making in all areas where their interests are affected in both their public and private lives.

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

Yes. Persons with disabilities have the right to participate in political life. The challenges exist at a community level with respect to prejudices and stigmatisation. There is no restriction on the right based on disability.

11.4 Are people with disabilities’ socio-economic rights, including the right to health, education and other social services protected and realised in your Zambia?

Socio-economic rights are not enforceable in Zambia as they are part of Directive Principles of State Policy and are specifically classified as non-justiable.61

11.5 Specific categories experiencing particular issues/ vulnerability:
  • Children with Disabilities

There is no legislation that specifically singles out disabled children for specific address. Zambian legislation instead deals with children in general, particularly with regards to the consideration of the best interests of the child. Children with disabilities fall under the Public Welfare Assistance Scheme (PWAS) which was established to protect vulnerable groups such as orphans, street and disabled children amongst others.

The most common challenge faced in Zambia is the seclusion of children with disabilities. Often families of the children exclude them from society in the belief that it is a curse. This even affects their right to education because in most instances they are not taken to school. In addition, in some traditional set ups, rituals which may be harmful to a child’s health or physical body are conducted on children with disabilities in the belief that disabilities can be cured. See section 11.1 above.

  • Women with disabilities

Women generally suffer discrimination and marginalisation in society whereby they are subjected to maltreatment and exploitation.62 Where women have disabilities they are especially vulnerable to abusive treatment such as rape and defilement. In some instances, the nature of their impairments makes it very difficult for them to seek redress.

  • Other (for example, indigenous peoples)

Indigenous peoples, and people with albinism also suffer multiple discrimination arising from the peculiar circumstances. When such persons have impairments, they are usually subjected to multi-faceted discrimination.

12 Future perspective
12.1 Are there any specific measures with regard to persons with disabilities being debated or considered in your country at the moment?
  • The Mental Health Bill of 2012

It is encouraging to note that the Mental Health Bill of 2012 is currently in progress as it represents a positive step towards the protection of the rights of persons with mental disabilities. In addition, the Persons with Disabilities Act of 2012 is progressive and addresses various matters which are required under the CRPD. The recognition of legal capacity addresses one of the main concerns faced by persons with disabilities in society.

  • The Disability Rights Course and the University of Zambia

The introduction of a Disability Rights Course at the University of Zambia is also a positive step which will ensure that students, who will eventually become practising lawyers and activists, will be well equipped with the knowledge and expertise to address matters concerning disability rights. The Course will start to be taught at the University to fourth year students in September 2014. In addition, the Legal Aid Clinic at the University of Zambia shall also contain a component on disability rights.

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

Given the main areas of concern discussed in the preceding paragraphs, the following are some of the main actions which I believe the government of the republic of Zambia must take into consideration:

  • Having appointed disability focal point persons, Zambia should ensure that those appointed as focal point persons are knowledgeable about disability rights issues as promulgated in the CRPD;
  • Zambia should ratify the Optional Protocol to the CRPD as soon as possible to show its commitment to fulfilling the promotion and protection of the rights and fundamental freedoms of persons with disabilities in Zambia;
  • Government, through its specific ministries, should carry out awareness raising programmes to sensitise their officers on the provisions of the CRPD and disability rights in general;
  • Government through its ministries must develop disability inclusive policies and laws that promote participation and involvement of persons with disabilities and reduce discriminatory practices at all levels of society;
  • The enactment of a new Mental Health Services Act that promotes and protects the rights and fundamental freedoms of mental health users should be expedited to replace the old discriminatory Mental Disorders Act. The new law should abolish involuntary admission and treatment of mental health users to Mental Health Institutions and focus on ensuring legal capacity and independent living for mental health users;
  • The Ministry of Local Government, Early Childhood and Environment should quickly repeal the Town and Country Planning Act and Housing Act to put in place an inclusive law that will promote and ensure the protection of accessibility rights of persons with disabilities to public buildings, facilities and services, including roads.
  • The Ministry of Education should review the present Educating Our Future Policy of 1996 to replace it with an Inclusive Education Policy that will promote provision of reasonable accommodation within the general education system and universal design of curriculum, learning materials and teacher training programmes. Such policy should be backed by inclusive education legislation;
  • Government, through the Ministry of Health, should ensure, through policy, administrative and financial measures the facilitation for the provision of free medical care for persons with disabilities as close as possible to their homes. This should include access to HIV/AIDS and reproductive health services;
  • Government should ensure the equal participation of persons with disabilities in the political and public life sector through provision of electoral policies and laws that recognise the need for persons with disabilities to exercise their rights participate in the electoral process directly or indirectly. This should include the recognition of the right to a secret ballot;
  • The Ministry of Labour and Social Security should as a matter of urgency amend the Labour laws, especially the Employment Act, for the purposes of prohibiting discrimination on the basis of disability in employment; and
  • Government should take deliberate measures including institutional, policy, legislative and financial measures, to ensure adequate provision of matters relating to the promotion and protecting of the rights and fundamental freedoms of women and children with disabilities.

It is our view that Zambia still has a lot of work to be done in the promotion and protection of the rights of persons living with disabilities in Zambia. While it is acknowledged that some positive actions have been taken, there is still a lot to be done in achieving a level of participation and inclusion of persons with disabilities in Zambia on an equal basis with others.

There is need to identify and eliminate obstacles and barriers to accessibility in the physical environment, transportation and information communication technology and to provide training to DPO Inspectors on issues of accessibility by persons with disabilities.

Zambia is currently reviewing the Mental Health law to address such crucial matters as legal capacity and the right to independent living. This is a very crucial aspect in ensuring that Zambian laws on disability comply with the standards set out by the CRPD.

It is hoped that at the end of the constitutional review process, most of the matters of concern highlighted will be considered and addressed both at legislative and policy levels and that they will finally be incorporated in the Constitution.

It is hoped that cases will be brought before the courts of law in Zambia regarding disability rights because currently there are no landmark cases or reported judgments which can be referred to and there is need to train judges on matters concerning disability rights. There is very limited precedent and judgments often serve as a very useful source of law in Zambia.


1. Zambia Central Statistical Office, 2010 Census of Population and Housing Preliminary Report.

2. World Health Organisation ‘International Classification of Impairments, Disabilities and Handicaps: A manual of classification relating to the consequences of disease’ (1980), available at: http://whqlibdoc.who.int/publications/1980/9241541261_eng.pdf (accessed 26 August 2014).

3. The medical model focuses on a person’s impairments and ascribes incapability on such persons. See World Health Organisation and World Bank ‘World report on Disability 2011’ (2012), available at: http://www.who.int/disabilities/world_report/2011/report.pdf . The social model focuses on the attitudinal and environmental barriers that, together with a person’s impairments hinder an active participation in society. See the second para of art 1 of the Convention on the Rights of Persons with Disabilities.

4. As above.

5. World report on Disability 2011 (n 3 above) Zambian Population.

6. 2010 Census of Population and Housing, Key Findings, available at www.zamstats.gov.zm (accessed 9 September 2014).

7. As above.

8. Interview with Mr Wamundila Waliuya, Human Rights and Education Advisor, Africa Development Department at Power International (Lusaka, Zambia, November 2013).

9. United Nations Enable ‘Convention and Optional Protocol signatures and ratifications’ http://www.un.org/disabilities/countries (accessed 23 January 2014).

10. Office of the High Commissioner for Human Rights ‘Ratification status for Zambia’ http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID (accessed 11 August 2014).

11. Committee on Economic Social and Cultural Rights ‘Consideration of reports by states parties under articles 16 and 17of the Covenant - Concluding observations of the Committee on Economic, Social and Cultural Rights’ E/C.12/1/Add.106, paras 11 and 13.

12. Office of the High Commissioner for Human Rights ‘Reporting status for Zambia’ http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode (accessed 11 August 2014).

13. As above.

14. As above.

15. The Persons with Disabilities Act, sec 4.

16. Sec 8.

17. Sec 22.

18. Sec 28.

19. Sec 33.

20. Sec 40.

21. (2008) AHRLR 259 (ZaSC 2008).

22. 1996 Constitution of Zambia, part IX.

23. Art 110 (2) of the Constitution.

24. Art 23 (1) of the Constitution.

25. Art 23 (2) of the Constitution.

26. In the case of Sela Brotherton (suing in her capacity as National Secretary of the Zambia Federation of Disability Organisation) v Electoral Commission of Zambia (2008/HP/ 0818), it was held that even though disability is not one of the expressly prohibited discrimination grounds, public officers are generally estopped from administering public resources in a discriminatory manner. Therefore, the respondent was found to have discriminated against the applicants by failing to provide appropriate support services to allow persons with disabilities to participate in the electoral process.

27. See section 2.4 above.

28. Cap 305 of the Laws of Zambia, 1951.

29. Preamble of the MDA.

30. Sec 2 of the MDA.

31. As above.

32. Sec 9 of the MDA.

33. Sections 161-167 of the Criminal Procedure Code, Cap 88 of the Laws of Zambia. These provisions authorise the imprisonment of persons with disabilities, on His Excellence’s Pleasure, on account of either not being able to defend oneself or if one pleads insanity in criminal proceedings.

34. Cap 88 of the Laws of Zambia.

35. 56 of 1965

36. Sec 70.

37. 2009/HP/1402.

38. Sela Brotherton (n 26 above).

39. Ministry of Education Educating our future: National policy on education (2006).

40. Convention on Biological Diversity (National CHM for the Republic of Zambia): http://www.biodiv.be/zambia (accessed 2 September 2014).

41. The Redd Desk, a collaborative resource for REDD Readiness ‘Sixth National Development Plan 2011-2015 (Zambia)’, available at: http://theredddesk.org/countries/plans/sixth-national-development-plan-2011-2015-zambia (accessed 2 September 2014).

42. Sec 11 of the Persons with Disabilities Act.

43. Ministry of Sport, Youth and Child Development ‘Zambia National Youth Policy - 2006’, available at: www.youthpolicy.org/national/Zambia_2006_National_Youth_Policy.pdf (accessed 2 September 2014).

44. Republic of Zambia ‘Vision 2030’, available at: www.mofnp.gov.zm/index.php/vision-2030 (accessed 2 September 2014).

45. Secs 6 & 7.

46. Their website is available at: www.hrc.org.zm (accessed February 2014).

47. As above.

48. Human Rights Watch, 2001.

50. Interview with Wamundila Waliuya (n 8 above).

51. Constitution of Zambia, art 112(d).

52. As above, art 111.

53. Persons with Disabilities Act, sec 41(1) and (2).

54. Sela Brotherton v Electoral Commission of Zambia (n 26 above).

55. Constitution of Zambia, art 112.

56. Persons with Disabilities Act, sec 22 (1) and (2).

57. Constitution of Zambia, art 112 (e).

58. The Technical Education and Vocational Training Act, Cap 138 of the Laws of Zambia, sec 21.

59. Persons with Disabilities Act, sec 7.

60. World report on Disability 2011 (n 3 above).

61. Constitution of Zambia, art 111.

62. CRPD, preamble para (q).


  • Ashwanee Budoo
  • LLD Candidate and tutor at the Centre for Human Rights, University of Pretoria
  • Roopanand Amar Mahadew
  • Lecturer in Law at the University of Mauritius and LLD Candidate at the University of Western Cape


1 Population indicators

1.1 What is the total population of Mauritius?1

The Republic of Mauritius has a population of about 1.3 million, with 1 255 020 inhabitants on the Island of Mauritius; 38 240 on the Island of Rodrigues and 289 in Agalega.2

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

Statistical data concerning the prevalence of disability in Mauritius is obtained from the 2011 Population Census conducted by Statistics Mauritius found under the aegis of the Ministry of Finance and Economic Development, which is the ‘official organisation responsible for collection, compilation, analysis and dissemination of the official statistical data relating to the economic and social activities of the country’.3

For purposes of data collection, disability is primarily defined as ‘any limitation to perform a daily life activity in a manner considered normal for persons of their age’.4 The different criteria to determine whether a person falls within the class of persons with disabilities are as follows:5

  • Disturbances of behaviour
  • Speaking
  • Hearing
  • Manual activities
  • Personal care
  • Memory
  • Seeing
  • Walking
1.3 What is the total number and percentage of people with disabilities in Mauritius?

According to the 2011 Population Census, there are approximately 59 200 persons with disabilities in Mauritius, representing 4,8 per cent of the population.6

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

About 30 900 women live with disabilities in Mauritius and this accounts for 51,6 per cent of the population of persons living with disabilities.7

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

The 2011 Population Census estimated that 1,5 per cent of the population consists of persons who are under 15 and who are living with a disability.

1.6 What are the most prevalent forms of disability and/or peculiarities to disability in Mauritius?

Physical disabilities are the most prevalent form of disability in Mauritius, these account for 42 per cent of the population living with a disability.8 This is followed by persons with visual impairments, amounting to 24 per cent.9 Persons who have difficulty remembering, concentrating or acquiring education and learning account for 20 per cent of the population of persons living with disabilities.10 

2 Mauritius’s international obligations

2.1 What is the status of the United Nation’s Convention on the Rights of Persons with Disabilities (CRPD) in Mauritius? Did Mauritius sign and ratify the CRPD? Provide the date(s).

Mauritius signed the United Nation Convention on the Rights of Persons with Disabilities (CRPD) on 25 September 2007 and ratified the document on 8 January 2010.11 However, Mauritius has placed reservations on articles 11,12 9(2)(d)13 and 24(2)(b)14 of the CRPD.

2.2 If Mauritius has signed and ratified the CRPD, when was its country report due? Which government department is responsible for submission of the report? Did Mauritius submit its report? If so, and if the report has been considered, indicate if there was a domestic effect of this reporting process. If not, what reasons does the relevant government department give for the delay?
  • Mauritius’ country report was due on 8 February 2012.
  • The disability unit, under the wing of the Ministry of Social Security, National Solidarity and Reform Institutions, which is the ‘focal point’15 for disability issues, is responsible for the submission of the report.16
  • Mauritius submitted its report to the Committee on the Rights of Persons with Disabilities (the Committee) on 15 May 2012.17
  • The Committee had not considered Mauritius’ country report to date.
2.3 While reporting under various other United Nations’ instruments, or under the African Charter on Human and Peoples’ Rights, or the African Charter on the Rights and Welfare of the Child, did Mauritius also report specifically on the rights of persons with disabilities in its most recent reports? If so, were relevant ‘Concluding Observations’ adopted? If relevant, were these observations given effect to? Was mention made of disability rights in your state’s UN Universal Periodic Review (UPR)? If so, what was the effect of these observations/ recommendations?
  • The International Covenant on Civil and Political Rights

Mauritius acceded to the International Covenant on Civil and Political Rights (ICCPR) on 12 December 1973.18 The last state report that Mauritius submitted was on 27 May 2004, the due date of which was 4 November 1993.19 Paragraphs 110 to 113 of the report highlight the measures that have been adopted by Mauritius to prevent discrimination against PWDs.20 Concluding observations on the report were adopted on 27 April 2005 but there were no recommendations concerning the rights of PWDs.21

  • The Convention on the Elimination of All Forms of Discrimination Against Women

Mauritius acceded to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on 9 July 1984.22 The latest state report which was considered by the CEDAW on 12 August 2010 made no specific reference to the rights of PWDs.23 However, the Concluding Observation of the Committee on the Elimination of Discrimination against Women,24 highlighted the lacunas concerning the rights of women who are living with a disability in the following paragraphs:

Paragraph 36:

The Committee notes that Mauritius’ state report lacked information and statistics about disadvantaged groups of women, including rural women, elderly women and women with disabilities, who often suffer from multiple forms of discrimination.

Paragraph 37:

The Committee invites Mauritius to provide, in its next state report, a comprehensive picture of the de facto situation of disadvantaged groups of women, including rural women, older women and women with disabilities, in all areas covered by the Convention.

  • The International Covenant on Economic, Social and Cultural Rights

The above Covenant was acceded to by Mauritius on 12 December 1973. Mauritius submitted its most recent report on 3 March 2008, which was due on 30 June 1995. Although Mauritius was reporting under the ICESCR, the report also made reference to the provisions of the CRPD and emphasised how the government is taking measures to protect the rights of PWDs.25 The following areas were reported on: training and employment of PWDs;26 inclusivity;27 pensions and allowances;28 assistive devices;29 education;30 accessibility;31 sports culture and leisure;32 basic benefits;33 and mental health care.34 The Committee on Economic, Social and Cultural Rights, made the following recommendations with regard to PWDs in its concluding observations:35

  • The Committee urges the State party to adopt the necessary measures to prevent, diminish and eventually eliminate the conditions and attitudes which cause or perpetuate de facto discrimination against those groups of children, in line with the Committee’s general comment no. 20 (2009) on non-discrimination in economic, social and cultural rights.36
  • The Committee recommends that the State party strengthen its efforts to eliminate situations that may be discriminatory against children with disabilities and take steps to ensure that all children with disabilities can, as appropriate, study in mainstream schools. In order to implement this approach, the State party should ensure that teachers are trained to educate children with disabilities within regular schools, in line with the Committee’s general comment No. 5 (1994) on persons with disabilities.37
  • The Committee recommends that the State party considers withdrawing its interpretative declaration concerning article 24, paragraph 2(b), of the CRPD in relation to the policy of inclusive education, as this affects the object and purpose of the Convention. The Committee further recommends that the State party withdraw its reservation concerning article 11 of that Convention, by which it seeks to exclude measures specified in article 11 ‘unless permitted by domestic legislation expressly providing for the taking of such measures’, as this goes to the substance of the provision and affects the object and purpose of the Convention.38
  • The African Charter on Human and Peoples’ Rights

Mauritius ratified the African Charter on Human and Peoples’ Rights on 19 June 1992.39 The 2nd, 3rd, 4th and 5th combined state report submitted on 1 January 2008 under the African Charter on Human and Peoples’ Rights made reference to the steps taken by the government to ensure a better protection of the rights of

PWDs.40 In the concluding observations,41 the African Commission made the following recommendation concerning children with disabilities:42

  • Implement the recommendations of the UN Committee on the Rights of the Child regarding discrimination against certain groups of children, particularly with regard to children with disabilities, children affected and/or infected by HIV/AIDS and children from disadvantaged families and girls.
  • Mauritius’ UN Universal Periodic Review

Mauritius’ first Universal Periodic Review (UPR) was conducted on 10 February 2009 and numerous countries raised concerns about Mauritius not having ratified the CRPD at that time.43 The last Universal Periodic Review for Mauritius was conducted on 23 October 2013 during the seventeenth session of the Working Group on the Universal Periodic Review.44 The following recommendations were adopted:

  • Strengthen coordination within the new institutions for the protection of minors and persons with disabilities;45
  • Continue with actions aimed at improving the treatment of children with disabilities and children affected and/or infected by HIV/AIDS;46
  • Make further efforts in increasing participation of persons with disabilities at all levels of political and public life, especially the electoral process;47
  • Intensify the positive action already taken for improving the living conditions of persons with disabilities;48
  • Work to ensure inclusive, quality and free primary and secondary education to children with disabilities on an equal basis with other children;49
  • Support steps regarding the rights of persons with disabilities with administrative arrangements, in order to ensure that these rights are enjoyed by all persons with disabilities within the society, especially children with disabilities;50
  • Continue implementation of the National Plan of Action, including social programs that aim at carrying out information and education activities with regard to people with disabilities and their social protection according to the relevant Convention which the country has ratified;51
  • Continue increasing skills development programmes to public officers and staff, hospital staff and police officers on how to assist persons with disabilities as well as children with special needs;52
  • Withdraw its reservations to the Convention on the Rights of Persons with Disabilities;53 and
  • Formulate strict legislation to prevent abuse and exploitation of children with disabilities by parents or other members of society; and provide necessary measures to assist them in their quest of justice’54
2.4 Was there any domestic effect on Mauritius’ legal system after ratifying the international or regional instrument in 2.3 above? Does the international or regional instrument that has been ratified require Mauritius’ legislature to incorporate it into the legal system before the instrument can have force in Mauritius’ domestic law? Have Mauritius’ courts ever considered this question? If so, cite the case(s).

The ratification of international and regional human rights instruments led to the adoption of many laws aimed at the protection of human rights. Some of the laws pertaining to the rights of PWDs are as follows:

  • The Equal Opportunities Act 2008
  • The Training and Employment of Disabled Persons Act 1996
  • The National Council for Life Rehabilitation of Disabled Persons Act 1986
  • The Society for the Welfare of the Deaf Act 1968
  • The National Solidarity Fund Act 1991
  • The Social Aid Act 1983
  • The Lois Lagesse Trust Fund Act 1983
  • The Child Protection Act 1994
  • The Ombudsperson for Children Act 2003
  • The National Women’s Council Act 1985
  • The Employment Rights Act 2008
  • The Social Aid Act 1983
  • The Unemployment Hardship Relief Act 1983

The 1968 Constitution of the Republic Mauritius (Constitution of Mauritius) and other legislation make no reference as to whether there is a need to incorporate an international instrument into Mauritius’ legal system for it to have any force of law. Since the practice of dualism is more popular in Commonwealth African Countries,55 it has been the practice of Mauritius to adopt a law in the Parliament for it to be binding.

The judiciary have, in several instances, emphasised that Mauritius is not bound by international instruments that had not been incorporated in the domestic legislation. In the case of Matadeen v Pointu56 the court held that ‘ ... a State Party is not obliged to incorporate the provisions of the Covenant into its domestic law ... [f]urthermore, interpretation of the Covenant allows a “margin of appreciation” to the State Party in deciding what amounts to the equal protection of the law and there is no reason why that margin of appreciation should be engrossed by the judicial branch of government rather than the legislature or executive’.

In Jordan v Jordan57 it was highlighted that ‘ ... whilst our Constitution proclaims that Mauritius shall be a sovereign democratic State, it also establishes the principle of separation of powers; that each of the three arms of Government has a distinct role to play and each should confine itself to its specific domain; that there was a need for the Legislature to pass the necessary legislation to incorporate a Convention (which is usually acceded to by the Executive) into our municipal law before the Judiciary can take cognizance of it and apply it as its own domestic law’. In Pulluck v Ramphul58 it was concluded that ‘[t]he provisions contained in international instruments can therefore hardly be of help to respondents when there is no evidence of their incorporation into our domestic law’.

Finally, Ex Parte Hurnam Devendranath, a Barrister-at-Law59 clearly established that ‘[i]t is a well-settled principle that unratified and unincorporated treaties are of no direct effect in our courts’.

2.5 With reference to 2.4 above, has the CRPD or any other ratified international instrument been domesticated? Provide details.

Although there is no specific domestic piece of legislation that directly concern the rights of PWDs, the acts listed in 2.4 above each ensures that the rights of PWDs are protected in all spheres of life. The new Government Programme 2012-2015 presented by the then Acting President of Mauritius on 16 April 2012 stipulates that the government intends to introduce a Disability Bill which will give directly give effects to the provisions of the CRPD.60 

3 Constitution

3.1 Does the Constitution of Mauritius contain provisions that directly address disability? If so, list the provisions and explain how each provision addresses disability.

The Constitution of Mauritius does not contain any provisions which directly address disability.

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

Section 16(3) of the Constitution provides for an exhaustive list of factors on which people cannot be discriminated against. Disability does not form part of this exhaustive list.61 

4 Legislation

4.1 Does Mauritius have legislation that directly addresses issues relating to disability? If so, list the legislation and explain how the legislation addresses disability.

Legislation that directly addresses issues relating to disabilities is as follows:

  • The Training and Employment of Disabled Persons Act 1996 (TEDP)

The TEDP establishes a Board, known as the Training and Employment of Disabled Persons Board, which has to fulfil the following functions:62

(a) prevent, as provided under section 16, discrimination against disabled persons resulting from or arising out of their disability;

(b) encourage the establishment of appropriate vocational centres and other institutions for the training of disabled persons;

(c) operate and encourage schemes and projects for the training and employment of disabled persons;

(d) improve generally the social and economic status and condition of disabled persons;

(e) perform such other functions, not inconsistent with this Act, as the Minister may, in writing, specify or approve.

It further provides for the establishment of a register for PWDs and imposes an obligation on employers to provide for suitable employment63 for PWDs64 without any discrimination on the grounds listed in section 16 of the TEDP.

  • The National Council for Life Rehabilitation of Disabled Persons Act 1986 (NCRDP)

The NCRDP sets up a National Council for the Rehabilitation of Disabled Persons.65 The objectives of the council are as follows:66

(a) to co-ordinate the activities of voluntary organisations catering for disabled persons;

(b) to promote the development and expansion of rehabilitative services;

(c) to advise the Minister on all aspects of the rehabilitation of disabled persons;

(d) to coordinate with private international and national agencies engaged in the rehabilitation of disabled persons and to disseminate technical information received from these sources;

(e) generally to promote the welfare of disabled persons.

  • The Society for the Welfare of the Deaf Act 1968 (SWD)

The SWD incorporates a Society for the Welfare of the Deaf67 which targets the following objectives:68

[T]o aid, train and educate all deaf persons in Mauritius; to assist them in obtaining medical treatment and suitable employment; to grant them any material relief of which they may be in need; to erect, open and manage such training centres, schools and hostels as may be deemed necessary.

The SWD also draws the powers and the boundaries within which the Society for the Welfare of the Deaf is to operate.

  • The Lois Lagesse Trust Fund Act 1983 (LLTFA)

The LLTFA establishes a Lois Lagesse Trust Fund,69 which has as its objective the facilitation of persons with visual impairments in the mainstream. The aims of the Lois Lagesse Trust Fund are as follows:70

(a) to aid, train and educate all blind persons in Mauritius;

(b) to assist blind persons in obtaining medical treatment and suitable employment;

(c) to set up and manage training centres, schools and hostels for the blind;

(d) to cater for the general welfare of the blind.

4.2 Does Mauritius have legislation that indirectly addresses issues relating to disability? If so, list the main legislation and explain how the legislation relates to disability.
  • The Equal Opportunities Act 2008 (EOA)

The EOA prohibits direct or indirect discrimination pursuant to section 5 and section 6 of the Act. In both sections, discrimination based on the ‘status’ of the aggrieved person is prohibited. The interpretation section (section 2) of the EOA includes impairment in the definition of ‘status’. It implies that discrimination on the grounds of disability is illegal under the EOA.

  • The National Solidarity Fund Act 1991 (NSF)

The NSF Act can be indirectly interpreted as being of financial assistance to persons with disabilities. For instance, Section 4 of the Act provides that citizens in need of financial assistance to undergo medical treatment in foreign institutions can financially benefit from this fund.

  • The National Pensions Act 1976 (NPA)

The NPA caters for disabilities arising out of accidents in employment and financial assistance required in the form of pensions. Section 8 provides for invalid basic pensions71 whereas section 26 caters for disablement pensions and allowances. There is equally monetary aid provided to former employees who fell victim to industry injuries.

  • The Social Aid Act 1983 (SAA)

The SAA provides for social assistance to not only a person with disability, but the aid also extends to others who may be dependent on the persons with the disability. Section 3 qualifies a person and the dependants as a beneficiary of social aid if, as a result of any physical or mental disability, one is temporarily or permanently incapable of earning adequately his livelihood, and has insufficient means to support oneself.

  • The Child Protection Act 1994 (CPA)

The CPA provides for the child mentoring scheme which takes care of child victims of neglect, suffering from mild behavioural problems, are in distress or having problems of social adaptations. These problems are often seen in children with disabilities. Under this scheme, they can be properly mentored and looked after. Sexual offences on children with disability, ill treatment or abandonment or forcing a child with a disability to beg would also amount to a criminal offence under the CPA.

  • The Ombudsperson for Children Act 2003 (OCA)

The OCA ensures that the rights, needs and interests of children including children with disabilities, are given full consideration by public bodies, private authorities, individuals and associations of individuals. It also helps to promote the best interests of the child and promote compliance with the CRPD.

  • The Employment Rights Act 2008 (ERA)

Persons with disabilities whose contract is being terminated can receive compensation under the ERA. The ERA also provides for a workfare programme. The workfare programme consists of the payment of a transition unemployment benefit to a worker whose agreement has been terminated.

  • The Unemployment Hardship Relief Act 1983 (UHRA)

Under the UHRA, a person with a disability who is not working may get monetary assistance from the state. According to section 3, any person below the age of 60 with a wife or a child or who has a disability shall be qualified to claim hardship relief.

  • The Building Control Act 2012 (BCA)

To ensure that persons with impaired mobility and communication have access to buildings in a comfortable manner, section 3 of the BCA provides for accessibility as one essential building requirement.

  • The HIV and AIDS Act 2007 (HAA)

Section 3 of the HAA explicitly states that HIV or AIDS are not to be considered as a disability. One’s HIV status cannot be used as a ground to discriminate against that person. The Act further mentions that HIV or AIDS cannot be regarded as a disability or incapacity in any other act of Parliament also.

5 Decisions of courts and tribunals

5.1 Have the courts (or tribunals) in Mauritius ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases with the facts, the decision(s) and the reasoning.

No court or tribunals have decided on an issue(s) that relates to disability in Mauritius.

6 Policies and programmes

6.1 Does Mauritius have policies or programmes that directly address disability? If so, list each policy and explain how the policy addresses disability.
  • National Policy Paper and Action Plan on Disability 2007 (NPP)72

The NPP, which has the title ‘Valuing people with disabilities’, recognises that ‘without a commitment from Government, civil society and Disabled People Organisations, (DPOs), the rights of persons with disabilities can never triumph over prejudice and discrimination’.73 Chapter 4 of the document expands on the guiding principles, policy objectives and goals. Chapter 5 lays down the National Plan of Action and the recommendations to be followed to ensure a better protection of the rights of PWDs.

  • Special Education Needs and Inclusive Education Policy and Strategy 2006 (SEN)74

The SEN recognises that children with disabilities should attend school and that it is important for the government to have a strategic plan for inclusion and special educational needs. SEN provides for recommendations for a sustainable special education needs strategy.

  • Respite care programme by the Minister of Social Welfare 2010

Children with a disability registered at the Disability Unit, which is under the aegis of the Ministry of Social Security, National Solidarity and Reform Institutions, have the privilege of regularly participating in leisure activities organised by the Ministry of Social Welfare.

6.2 Does Mauritius have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.
  • Government Programme 2012-2015 (GP)75

The following extracts from the GP address disability:

  • ‘Government will further pursue the implementation of the UN Convention on the Rights of Persons with Disabilities by giving a new boost to training and employment of persons with disabilities. Relevant amendments will be brought to the Training and Employment of Disabled Persons Act and the National Council for Rehabilitation of Disabled Persons Act.’76
  • ‘Government proposes to introduce a Disability Bill in line with the Convention provide further protection to persons with disabilities against all forms of discrimination.’77
  • ‘Government will set up a Respite Care Centre with a view to providing specialised rehabilitative services and leisure facilities to persons with disabilities.’78

7 Disability bodies

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

There is no official body which addresses violations of the rights of PWDs.

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

The Equal Opportunities Tribunal established in terms of Part VII of the EOA is an additional platform where issues pertaining to violations of rights of people with disabilities may be addressed. The above Tribunal has jurisdiction in matters referred to it by the Equal Opportunities Division. Section 41 of the EOA provides for appeal to the Supreme Court from the decision of the Equal Opportunities Tribunal if one is not satisfied with the proceedings before it.

8 National human rights institutions, Human Rights Commission, Ombudsman or Public Protector

8.1 Do you have a Human Rights Commission, Ombudsman or Public Protector in your country? 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, the Ombudsman or Public Protector of your country has ever addressed issues relating to the rights of persons with disabilities.
  • The National Human Rights Commission (NHRC) has been created by the Protection of Human Rights Act of 1998. The NHRC’s mandate is limited to written enquiries made by a victim of a violation or a possible violation of the provisions of Chapter II of the Constitution.79 As stated in 3 above, Chapter II of the Constitution does not contain any provision relating to disability and therefore, the NHRC’s mandate does not cover the promotion and protection of the rights of PWDs.
  • Chapter IX of the Constitution establishes the office of an Ombudsman. The Ombudsman investigates issues of public maladministration. Since the Disability Unit is a public body, the office of the Ombudsman has the responsibility to ensure that the Disability Unit is offering the proper services to members of the public.
  • The Ombudsperson for Children Act 2003 provides for the office of the Ombudsperson for Children. The Ombudsperson for Children has to ensure that the rights, needs and interests of all children are protected by public bodies, private associations or individuals. Therefore, the rights, needs and interests of children with disabilities also fall within the Ombudsperson for Children’s mandate.

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 Mauritius? If so, list each organisation and describe its activities.

Apart from the organisations in 4.1 above, there are about 62 non-governmental organisations, which represent and advocate for the rights and welfare of PWDs in Mauritius.80 Some of these organisations are as follows:

  • The ‘Centre d’Education et de Développement pour les Enfants Mauriciens’ (CEDEM)81

The CEDEM was founded in 1984 and its main objective is to ensure that all vulnerable children have a better quality of life. It has schools which host children with disabilities and slow learners and also concentrates on family counselling.

  • Cypres Handicapped Association82

The Cypres Handicapped Association’s was officially registered in 1998 and focuses on the social and economic empowerment of adults with disabilities.

  • ‘Fraternité Mauricienne des Malades et Handicapés’

The above NGO runs a special school for children with severe physical disabilities. It also has a programme whereby it provides training for athletes who play basketball from wheelchairs.

  • Century Welfare Association

One of the projects of the Century Welfare Association is the Century Special Education Needs School for children with disabilities between the age of 5 and 15. According to the school’s website the objectives are ‘to provide access to proper attention and care’, ‘to enhance self-esteem and confidence building’, and ‘to provide appropriate education and promote self-development’.83

  • ‘Association Handicapés Sans Frontières’

This particular NGO promotes sports, leisure and recreational activities for PWDs.

  • The Southern Handicapped Association

The Southern Handicapped Association was registered with the Registrar of the Association in 1986 and was affiliated with the Ministry of Social Security in 1987. It runs a day care centre for children and adolescents with disabilities. Its current project is the creation of a pre-primary unit for children with mental disabilities aged from 3 to 5 years old.

  • ‘Fondation Georges Charles’

The ‘Fondation Georges Charles’ runs a specialised school for children with intellectual disabilities. It also organises workshops for adolescents and adults with intellectual impairment.

  • ‘Association des parents d’enfants inadaptés de l’ile Maurice’ (APEIM)84

The APEIM is ‘responsible for the care, support, development and well-being of children and adults with developmental disabilities, moderate to severe mental handicap, in some cases with other related disorders’.

  • ‘Association de Parents des Déficients Auditifs’ (APDA)

The APDA provides for special education, training, sports and cultural activities for children with hearing impairment. It also runs courses on sign language and an adult education programme for deaf persons.

  • ‘Liziedan la main’85

‘Liziedan la main’ was set up in 1981. It engages in the rehabilitation of visually impaired persons. Its services cover eye care, education, training the organisation of recreational/leisure activities such as music and sports.

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

In Mauritius, DPOs are regulated by different boards. Some of them are the National Council for the Rehabilitation of Disabled Persons, the Training and Employment of Disabled Persons Board, the Lois Lagesse Trust Fund, the Society for the Welfare of the Deaf and the NGO Trust Fund.

To gain recognition as a DPO, an association must apply for registration under section 6 of the Registration of Associations Act 1978.86

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

DPOs are generally involved in workshops and conferences that are organised by relevant ministries. Their participation, as mandated by the CRPD, is ensured by their presence and in some cases by the possibility of submitting reports.87 However, it is important to highlight that due to the absence of the rights of PWDs and public interest litigation or class action in the Constitution, it becomes quite complex for DPOs and NGOs to ensure a better protection of the rights of PWDs through constitutional litigation.

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

The Universal Periodic Review (UPR) for Mauritius was conducted in 2013 and about 20 DPOs came together to present a report on that occasion. They pointed out the main issues and provided for recommendations to be considered.

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

There is no proper legal or normative framework concerning DPOs. The nature and the understanding of the role and functions of NGOs or DPOs, by themselves, are questionable. DPOs tend to work in a vacuum where only a single relationship is defined, the one between themselves and the state or financial partners. Information about their activities is most of the time not disseminated and they do not seek assistance from third parties. For instance, academics, the university and research tanks are never involved in what they do. There are few efforts to develop a partnership and working relations between various stakeholders. This is a huge barrier impeding the proper functioning of DPOs.

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

No.

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?

No.

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?

Training and education in the field of disability is essential. It is often observed that officers of DPOs are not necessarily qualified to handle issues on disabilities. There is a lack of training of persons who engage in DPOs. In addition, fostering links with other regional DPOs is equally important but this is not currently present in the Mauritian context. This actually impacts on their financial capacity and they fail to be part of important associations of DPOs that benefit from donor aids.

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?

As highlighted in 9.5, there is a need for proper legislative framework within which DPOs can operate. The government should therefore strive towards setting up a legal framework, which will facilitate the operation of DPOs in Mauritius. Apart from the Registration of Associations Act, DPOs do not get legal support and structure from any other legislation. Their functioning, the modes of operation and their financing are not harmonised and well publicised.

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?

No.

10 Government departments

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

The Ministry of Social Security, National Solidarity and Reform Institutions has the Disability Unit which is responsible for promoting and protecting the rights and welfare of PWDs. The activities of the Disability Unit are as follows:88

  • The Disability Unit is the “focal point” for disability issues in Mauritius.
  • It provides information, counselling, guidance and referral services.
  • It is responsible for the conceptualisation and implementation of disability policies, projects and programmes and facilitates the process of integration of persons with disabilities in mainstream society.
  • It coordinates matters relating to the UN Convention on the Rights of Persons with Disabilities.
  • It organises activities, seminars and workshops on disability issues.
  • It also provides an array of direct services to persons with disabilities.

11 Main human rights concerns of people with disabilities in Mauritius

11.1 Contemporary challenges of persons with disabilities in Mauritius (for example, in some parts of Africa ritual killing of certain classes of PWDs, such as people with albinism, occurs).

The Mauritian society still looks down on PWDs.89 The reservation that Mauritius has on article 9.2(d) of the CRPD acts as a barrier for accessibility for PWDs. There are no public transportation means that accommodate PWDs in Mauritius. This therefore prevents PWDs from moving around independently. Furthermore, there is a lack of ‘accommodations for PWDs’ during elections.90

11.2 Describe the contemporary challenges of persons with disabilities, and the legal responses thereto, and assess the adequacy of these responses to:
  • Access and accommodation

The Building Control Act 2012 makes provision for PWDs to access buildings. However, the reservation purporting to article 9.2(d) of the CRPD is a challenge for PWDs since the government of Mauritius does not feel obliged to make sure that all buildings accommodate PWDs.

  • Access to social security

The Ministry of Social Security, National Solidarity and Reform Institutions provides for a number of social security measures for registered PWDs such as a carer’s allowance, constant attendance allowance, special allowance and child allowance.

  • Access to public transport

See 11.1 above.

  • Access to education

The reservation to article 24.2(b) of the CRPD acts as a barrier for Mauritius to provide free inclusive education to children with disabilities. They have to either go to specialised schools or face the challenges of being in the mainstream education without any accommodation for them.

  • Access to vocational training

The Training and Employment of Disabled Persons Act makes sure that PWDs have access to vocational training.

  • Access to employment

See 4.2 above.

  • Access to recreation and sport

As far as it is reasonable, recreation and sport activities are organised by either the Ministry for Social Security, National Solidarity and Reform Institutions or the DPOs.

  • Access to justice

Support is provided for to PWDs whenever they are in contact with the law.

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

Section 33 of the Mauritian Constitution provides for the qualification for membership of the Parliament and it makes no reference to PWDs. However, section 34 states that a person is disqualified from membership if he ‘is a person adjudged to be of unsound mind ...’.91 Nevertheless, no disqualification is made regarding a person with a physical disability. It is noteworthy that in 2009, a person with visual impairments was elected as a Mayor in one of the towns.

11.4 Are people with disabilities’ socio-economic rights, including right to health, education and other social services protected and realised in Mauritius?

Socio-economic rights are not generally protected by the Constitution. However, the Ministry of Health and Quality of Life ensures that everyone has access to healthcare systems in the public hospitals. Moreover, there is a Mental Health Care Act of 1998, which ensures that persons with mental disabilities have access to health.

As for education, see 11.2 above.

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

Children with disabilities encounter difficulties with regard to access to education since they are not integrated in mainstream education.

12 Future perspective

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

Currently, the Ministry of Social Security, National Solidarity and Reform Institutions is working on a Disability Bill, which will address specific issues related to PWDs.

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

The Concept of a one-stop shop as the principal provider of social services to persons with disabilities is being envisaged by the Government. However, the actions of the Government towards realisation of this project has been very slow with seven years down the line without much progress.

It is proposed that first there must be a proper domestication of the CRPD to provide for the proper legal structure and to hold the government accountable. Consequently, based on those obligations, it would then be possible to pressurise the government whenever such 'statements' are made without appropriate actions.

There equally needs to be a proper educational campaign on disability rights in Mauritius. As it is, the social and compassionate aspect in relation to persons with disabilities are not at all lacking. Mauritians help and contribute socially when it comes to Persons with Disabilities. However, what is equally important is that they work towards the empowerment of those people by acknowledging their rights and start pushing through a legal agenda for them by lobbying various stakeholders.


1. Mauritius lies in the Indian Ocean with a total area of 2040 square kilometres.

2. Statistics Mauritius ‘Population and vital statistics: Republic of Mauritius, year 2012’ (2012) 2, available at http://statsmauritius.gov.mu/English/StatsbySubj/Documents/ei1018/Amen ded%20FINAL%20_ESI%202012.pdf (accessed 5 March 2014).

3. Official site of Statistics Mauritius, available at http://statsmauritius.gov.mu/English/Pages/default.aspx (accessed on 5 March 2014).

4. Statistics Mauritius ‘2011 Population Census - Main Results’ (2011) 19, available at http://stats mauritius.gov.mu/English/CensusandSurveys/Documents/ESI/pop2011.pdf (accessed 5 March 2014).

5. Statistics Mauritius (n 4 above) 12.

6. As above.

7. Statistics Mauritius ‘Gender statistics, 2012’ (2012) 10, available at http://statsmauritius.gov.mu/English/StatsbySubj/Documents/ei1052/gender.pdf (accessed 5 March 2014).

8. Statistics Mauritius (n 2 above) 12.

9. As above.

10. As above.

11. UN Website, available at http://www.un.org/disabilities/countries.asp?navid=17&pid=166 (accessed 12 March 2014).

12. Article 11 of the CRPD: ‘States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.’

13. Article 9.2(d) of the CRPD: ‘States Parties shall also take appropriate measures to ... provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms.’

14. Article 24.2(b) of the CRPD: ‘In realizing this right, States Parties shall ensure that ... persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live.’

15. Article 33(1) of the CRPD provides for a focal point within governments in the following terms: ‘States Parties, in accordance with their system of organization, shall designate one or more focal points within government for matters relating to the implementation of the present Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels.’

16. Website of the government of Mauritius, available at http://www.gov.mu/portal/sites/disability/index.htm (accessed 13 March 2014).

17. A copy of the report is available on the website of the Office of the High Commissioner for Human Rights at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbol no=CRPD%2fC%2fMUS%2f1&Lang=en (accessed 13 March 2014).

18. United Nations Treaty Collection Database, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (accessed 13 March 2014).

19. As above.

20. HRC ‘Consideration of reports submitted by States Parties under article 40 of the Covenant, Fourth Periodic Report, Mauritius’ CCPR/C/MUS/2004/4 28 June 2004, available at file:///C:/Users/User.CREATEK2012/Downloads/G0442345.pdf (accessed 13 March 2014).

21. HRC ‘Consideration of reports submitted by States Parties under article 40 of the Covenant-Concluding Observations of the Human Rights Committee-Mauritius’ CCPR/CO/83/MUS adopted on the 83rd session on 27 April 2005, available at file:///C:/Users/User.CREATEK2012/Downloads/G0541376%20(3).pdf (accessed 13 March 2014).

22. Office of the High Commissioner for Human Rights ‘Ratification status for CEDAW’, available at http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?Treaty=CEDAW&Lang=en (accessed 13 March 2014).

23. Office of the High Commissioner for Human Rights ‘CEDAW/C/MUS/CO/6-7’. French version available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno= CEDAW%2fC%2fMUS%2f6-7&Lang=en (accessed 16 May 2014).

24. ‘Concluding Observations of the Committee on the Elimination of Discrimination Against Women’, 8 November 2011, adopted on the fiftieth session CEDAW/C/MUS/CO/6-7, available at file:///C:/Users/User.CREATEK2012/Downloads/G1146814.pdf (accessed 13 March 2014).

25. Report submitted to the Economic and Social Council-implementation of the International Covenant on Economic, Social and Cultural Rights-fourth periodic report submitted by States Parties under articles 16 and 17 of the Covenant-Mauritius 3 March 2008 E/C.12/MUS/4.

26. Report to the Economic and Social Council (n 23 above) paras 119, 120, 126, 127, 137-140.

27. Para 129.

28. Para 130.

29. Para 131.

30. Paras 132-136.

31. Paras 141-144.

32. Paras 145-146.

33. Para 208.

34. Paras 422-426.

35. Concluding observations of the Committee on Economic, Social and Cultural Rights-consideration of reports submitted by states parties under articles 16 and 17 of the Covenant-forty fourth session-8 June 2010.

36. Concluding observations (n 35 above) para 12.1.

37. Concluding observations (n 35 above) para 30.2.

38. Concluding observations (n 35 above) para 36.

39. African Commission’s website ‘Ratification table: African Charter on Human and Peoples’ Rights’, available at http://www.achpr.org/instruments/achpr/ratification/ (accessed 14 March 2014).

41. African Commission on Human and Peoples’ Rights-consideration of reports submitted by states parties under article 62 of the African Charter on Human and Peoples’ Rights-concluding observation on the 2nd, 3rd, 4th and 5th Periodic Reports of the Republic of Mauritius forty-fifth ordinary session, 13-27 May 2009.

42. Para 63.

43. The report of the Working Group is available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/116/86/PDF/G0911686.pdf?OpenElement (accessed 14 March 2014).

44. The seventeenth session was held from 21 October to 1 November 2013.

45. Para 128.26 of the UPR.

46. Para 128.68 of the UPR.

47. Para 128.106 of the UPR.

48. Para 128.107 of the UPR.

49. Para 128.108 of the UPR.

50. Para 128.109 of the UPR.

51. Para 128.110 of the UPR.

52. Para 128.111 of the UPR.

53. Para 129.10 of the UPR.

54. Para 129.39 of the UPR.

55. JO Ambani ‘Navigating past the “dualist doctrine”: The case for progressive jurisprudence on the application of international human rights norms in Kenya’ in M Killander (ed) International law and domestic human rights litigation in Africa (2010) 27.

56. Matadeen v Pointu Privy Council Appeal No 14 of 1997 para 24.

57. Jordan v Jordan 2000 SCJ 226.

58. Pulluck v Ramphul 2005 SCJ 196.

59. Ex Parte Hurnam Devendranath, a Barrister-at-Law 2007 SCJ 289.

60. Para 52 of the Government Programme 2012-2015, available at http://primeminister.gov.mu/English/Documents/Govt_Prog2012-15.pdf (accessed 16 May 2014).

61. Sec 16(3) of the Constitution of Mauritius: ‘In this section, 'discriminatory' means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description.’

62. Sec 4 of the TEDP.

63. Sec 14 of the TEDP.

64. Sec 13 of the TEDP.

65. Sec 3 of the NCRDP.

66. Sec 4 of the NCRDP.

67. Sec 2 of the SWD.

68. Sec 3 of the SWD.

69. Sec 3 of the LLTFA.

70. Sec 4 of the LLTFA.

71. Section 8(1) of the NPA: ‘Subject to section 10, a person shall be qualified to receive an invalid's basic pension where -(a) he is disabled and is likely to be so disabled for a period of at least 12 months; and (b) he has reached the age of 15 and is under the age of 60.’

72. Ministry of Social Security, National Solidarity and Senior Citizens Welfare and reform Institutions ‘National Policy Paper and Action Plan on Disability - “Valuing People with disabilities”’ (2008) available at http://www.gov.mu/portal/sites/disability/policypaper.pdf (accessed 18 March 2014).

73. As above 8.

74. Ministry of Education and Human Resources ‘Special Needs and Inclusive Education in Mauritius - The Policy and Strategy Document’ (2006), available at http://ministry-education.gov.mu/English/educationsector/Documents/sen.pdf (accessed 18 March 2014).

75. ‘Government Programme 2012-2015: Moving the Nation Forward’ (2012), available at http://www.labourparty.mu/programme/Govt-Address-2012.pdf (accessed 18 March 2014).

76. Para 51.

77. Para 52.

78. Para 53.

79. Sec 4 of the Protection of Human Rights Act 1998.

80. A list of organisations of PWDs in Mauritius is available at http://www.gov.mu/portal/sites/disability/list.pdf (accessed 18 March 2014).

81. CEDEM’s website: http://www.lecedem.org/services.htm (accessed 19 March 2014).

82. Cypres Handicapped Association’s Website, available at http://cypreshandicappedasso.intnet.mu/ (accessed 19 March 2014).

83. Website of the Century Welfare Association, available at http://www.centuryassociation.org/services/special-needs-school (accessed 19 March 2014).

84. Website available at http://www.apeim.org/index.php?langue=eng (accessed 19 March 2014).

85. Liziedan la main’s website is available at http://www.ldlm.intnet.mu/ (accessed 19 March 2014).

86. Section 6 of the Registration of Associations Act provides:

(1) Subject to subsection (2), every application under section 5 shall be accompanied by -

(a) 2 copies of the rules of the association;

(b) a list of the members, showing their names, occupations and addresses;

(c) a list of the officers, showing their titles, names and addresses;

(d) a certified copy of the minutes of proceedings of the meeting at which the rules were approved and the officers were appointed;

(e) a notice of the address of the office of the association; and

(f) the prescribed fee.

(2) An application for registration under section 5 (2) shall also specify -

(a) the names and addresses of the person authorised to represent the foreign association in Mauritius;

(b) the office of the association in Mauritius; and

(c) the nature of the activities in which the foreign association intends to engage in Mauritius.

(3) The Registrar may, by written notice, require the secretary to provide any further information he may reasonably require for the purpose of considering the application.

(4) Where the Registrar is of opinion that the association does not comply with this Act or, as the case may be, with the Sports Act 2001, he shall give written notice to the secretary of the failure to comply and afford the association a reasonable time in which to comply with this Act or as the case may be, with the Sports Act 2013.

87. Art 32 and 33 of the CRPD.

88. Website of the disability unit is available at http://www.gov.mu/portal/sites/disability/index.htm (accessed 19 March 2014).

89. DPO’s submission for Mauritius’ UPR.

90. US Department of State Affairs ‘Mauritius-Executive summary’ (2011) 8, available at http://www.state.gov/documents/organization/186432.pdf (accessed 19 March 2014).

91. Sec 34(1)(e) of the Constitution.


  • Louis O Oyaro
  • LLM Candidate, International and Comparative Disability Law and Policy, Center for Disability Law and Policy, National University of Ireland, Galway


1 Population indicators

1.1 What is the total population of Uganda?

According to the 2002 National Housing and Population Census, Uganda has a total population of 24.4 million people. But with a Population growth rate of 3,2 per cent, Uganda’s population was estimated to be at 34.1 million as at mid 2012.1

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

Data on disability prevalence is varied. According to the official 2002 Uganda Population and Housing Census, disability prevalence was estimated at 4 per cent. Identification and measurement of disability prevalence though not specifically stated was based on the definition from the 1980 World Health Organization’s (WHO) International Classification of Impairments, Disabilities and Handicaps.2 According to the Census, ‘disability’ was defined

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.3

In contrast, the Uganda National Household Survey of 2009/2010 estimated disability to be at 16 per cent of Uganda’s then 30.7 million population. This Survey followed a substantial functional limitation approach rather than an impairment based model to identify disability. 4

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

As already stated, according to the 2002 Population and Housing Census, at least 1 out of every 25 people, or 4 per cent of Uganda’s then 24.4 million population, are disabled. Later studies have however revealed a higher prevalence of disability in Uganda. According to the Uganda National Household Survey, the estimated disability population was 16 per cent or 5 088 000 people out of Uganda’s then estimated 31.7 million population in 2010. 5

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

The 2002 National Population and Housing Census does not provide segregated data on prevalence rates of disability amongst women. The same is true for the National Household Survey 2012.

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

According to the 2002 Population and Housing Census, disability prevalence was at 2 per cent amongst children. The National Household Survey on the other hand does not provide an estimate on prevalence rates amongst children.

1.6 What are the most prevalent forms of disability and/or peculiarities to disability in Uganda?

According to the National Population and Housing Census the most frequently observed types of disability were:

  • Loss/limited use of limbs (35 per cent);
  • Serious spine problems (22 per cent);
  • Hearing impairments (15 per cent);
  • Sight impairment (6.7 per cent);
  • Speech impairment (3.9 per cent);
  • Mental retardation (3.6 per cent);
  • Mental illness (3.6 per cent); and
  • Other disabilities (9.6%)6 

2 Uganda’s international obligations

2.1 What is the status of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in Uganda? Did Uganda sign and ratify the CRPD? Provide the date(s).

Uganda signed the CRPD and its optional protocol on 30 March 2007 and ratified both instruments on 25 September 2008 without reservations.7

2.2 If Uganda has signed and ratified the CRPD, when was its country report due? Which government department is responsible for submission of the report? Did Uganda submit its report? If so, and if the report has been considered, indicate if there was a domestic effect of this reporting process. If not, what reasons does the relevant government department give for the delay?

Uganda submitted its first CRPD country report in March 2013. However, it was due in 2010. The specific reason for the delay is unclear. However, despite having an in-house government department on disability (the Department of Elderly and Disability Affairs in the Ministry of Gender, Labour and Social Development) the National Council for Disability was instead directed by government to spearhead the preparation and submission of the national report on the CRPD.8

The committee is yet to review the Uganda country CRPD initial report.

2.3 While reporting under various other United Nations’ instruments, or under the African Charter on Human and People’s Rights, or the African Charter on the Rights and Welfare of the Child, did Uganda also report specifically on the rights of persons with disabilities in its most recent reports? If so, were relevant ‘concluding observations’ adopted? If relevant, were these observations given effect to? Was mention made of disability rights in your state’s UN Universal Periodic Review (UPR)? If so, what was the effect of these observations/recommendations?

Generally, most of Uganda’s reports to various UN conventions and regional instruments have not specifically addressed persons with disabilities but instead human rights concerns for all persons. There are however isolated cases of mention made of persons with disabilities, they include:

  • The 2011 fourth Uganda periodic report to the African Commission on Human and Peoples’ Rights on article 16 of African Charter makes mention of the government’s mental health initiatives including the need for the enactment of a new national
  • Mental Health Bill and the revision of the Mental Health Policy.9 The Reports also mention the activities of the Equal Opportunities Commission (EOC), its primary objective is to promote equality of opportunity of all marginalised groups including persons with disabilities.10 Unfortunately, the resultant concluding observations by the African Commission does not make reference to persons with disabilities.
  • The 2010 Government of Uganda Report to the Committee of Experts on the Rights and Welfare of the Child notes the various kinds of discrimination faced by children with disabilities in educational institutions especially as a result of the non-provision of reasonable accommodation. It also highlights the various challenges faced by children with disabilities in their access to health services and justice and states that too often such children have been victims of negative community and cultural attitudes. As a solution, the report states that the government has established the National Council for Disability, to implement policy and advance advocacy in favour of persons with disabilities.11 In response, the Committee of Experts recommended that the government put in place measures to raise awareness about disability in order to combat negative social perceptions and discrimination.12 The Committee also recommended that the government of Uganda put in place measures to encourage integration of children in mainstream education and to promote the training of teachers accordingly.13
  • Uganda’s third periodic report to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) does not specifically report on women with disabilities. However, it notes with concern the diversity in class amongst women and that such differences often lead to further marginalisation.14
2.4 Was there any domestic effect on Uganda’s legal system after ratifying the international or regional instruments in 2.3 above? Does the international or regional instrument that has been ratified require Uganda’s legislature to incorporate it into the legal system before the instrument can have force in Uganda domestic law? Have Uganda’s courts ever considered this question? If so, cite the case(s).

Yes. To pick one thematic instrument, the CEDAW and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa or Maputo Protocol, have formed the basis for various legislation protecting the rights of women in Uganda. For example, the Prohibition of Female Genital Mutilation Act, 2010 was adopted in December 2009 to protect women from the harmful cultural practice of female genital mutilation and the Domestic Violence Act was adopted in 2010 to play a critical role in protecting women from violence at home and in the community.

According to the Ratification of Treaties Act,15 all treaties that have been ratified have to be presented before parliament (the legislature). However, the status of ratified treaties in domestic law is still unclear and any presentation before parliament may not have any bearing on its domestic applicability. This has not been helped by the fact no regulations or rules have been made to enable the application of the Ratification of Treaties Act. Thus it should be noted that ratification of treaties and their coming into domestic effect has grown out of usage rather than as a result of standardisation by law.16

In addition, no superior court in Uganda has addressed the question of whether the legislature has to incorporate international treaties before they can have domestic effect. Regardless, there are instances where courts have positively applied international treaties. One of the most recent cases is the application of the treaty in the International Criminal Court (ICC) in the case of Uganda v Thomas Kwoyelo.17 Others include: Attorney General v Susan Kigula18 where the Supreme Court invoked international law to inform its decision on the death penalty and Uganda v Peter Matovu19 where the High Court relied on provisions of the CEDAW.

2.5 With reference to 2.4 above, has the CRPD or any other ratified international instrument been domesticated? Provide details.

Yes, there are a number of treaties whose provisions have been incorporated verbatim into domestic law, these include: the Rome Statute (every significant part has been incorporated in the International Criminal Court Act); the Geneva Convention (has specified provisions incorporated in the Geneva Convention Act); and the Diplomatic Relations Convention (has specific provisions incorporated in the Diplomatic Privileges Act). Additionally, treaties have been incorporated in schedules of specific Acts. Examples include all the above treaties that have appeared in the schedule of the above respective domestic legislation.

The CRPD has not been incorporated verbatim in any national legislation nevertheless as discussed above it has effect and domestic legal status. 

3 Constitution

3.1 Does the Constitution of Uganda contain provisions that directly address disability? If so, list the provisions and explain how each provision addresses disability.

Yes, the Constitution contains provisions that directly address disability. The following are some of the constitutional provisions which make direct reference to the protection and promotion of persons with disabilities in Uganda:

  • National Objective XVI provides that the state shall recognise the rights of persons with disabilities to respect and human dignity.
  • National Objective xxiv(C) of the Constitution provides that the state shall promote the development of sign language for the deaf.
  • Article 21 provides for equality and prohibits discrimination against all persons and specifically includes persons with disabilities.
  • Under article 32 the state shall take affirmative action in favour of marginalised groups including persons with disabilities and shall make laws including laws to establish and Equal Opportunities Commission for the full fulfilment of this clause.
  • Article 35 provides for the rights of persons with disabilities to respect and human dignity. It also imposes a duty on the state to make laws appropriate for the protection of persons with disabilities.
  • Article 75 provides for the composition of parliament to include such representatives including representatives of persons with disabilities.
3.2 Does the Constitution of Uganda contain provisions that indirectly address disability? If so, list the provisions and explain how each provision indirectly addresses disability.

Yes, the Constitution contains provisions that make reference to universal application of human rights for all persons and groups including persons with disabilities. Some of these include:

  • Article 20 provides for the fundamental rights of all individuals and groups (including persons with disabilities) to be respected and protected by the state.
  • Article 22 provides for the right to life of all persons.
  • Article 24 protects all persons and groups from torture or cruel, inhuman or degrading treatment and punishment.
  • Article 26 provides for the right to property for all persons.
  • Article 28 provides for the right to a fair hearing for all persons in the formal justice system including disabled persons.
  • Article 30 provides for the right to education for all.
  • Article 31 provides for the right to found a family? for all persons.
  • Article 36 provides for the rights of minorities to participate in the judicial making process.
  • Article 38 provides for the civic rights for all persons. 

4 Legislation

4.1 Does Uganda have legislation that directly addresses issues relating to disability? If so, list the legislation and explain how the legislation addresses disability.

Yes, Uganda has three primary disability specific legislations:

  • The Persons with Disabilities Act, 200620 is the primary legislation for the protection of human rights for persons with disabilities. It makes provisions for the elimination of all forms of discrimination against persons with disabilities and calls for the equalisation of opportunities.
  • The Mental Treatment Act21 enacted in 1938 (revised in 1964) is still applicable in Uganda today. The Act itself is primarily related to persons with mental disabilities and follows the old medical model approach to addressing issues. It provides for the declaration of unsound mind by the court and subsequent compulsory detention and treatment and/or rehabilitation.
  • The National Council for Disability Act, 2003 establishes the National Council for Disability, its key function is to act as a national body through which the needs, problems, concerns, potential and ability of persons with disabilities of persons with disabilities can be communicated to the government and its agencies. The Council is also responsible for monitoring and evaluating the extent to which the government, nongovernmental organisations and private institutions include and meet the needs of persons with disabilities. Amongst its many functions the Council acts as a coordinating body between government departments, service providers and persons with disabilities. 22
4.2 Does Uganda have legislation that indirectly addresses disability? If so, list the main legislation and explain how the legislation relates to disability.
  • The Employment Act, 2006 provides for the protection and equality of all persons employed in the work place including persons with disabilities.
  • The Equal Opportunities Commission Act: The Commission was appointed in 2009 with one of its five members being a woman with a disability. The Commission, with a fully-fledged secretariat, has embarked on its work of promoting equal opportunities for marginalised groups, persons with disabilities included.
  • The Business, Technical, Vocational Education and Training Act 12 of 2008, promotes equitable access to education and training for all disadvantaged groups, including disabled people.
  • The Local Government Act, 1997 provides for representation of disabled people at the various Local Council levels.
  • The Parliamentary Elections Statute, 1996: Section 37 of the Parliamentary Elections Statute provides for five seats in parliament for representatives of persons with disabilities.
  • The Traffic and Road Safety Act, 1998, prohibits the denial of a driving permit on the basis of disability.
  • The Uganda Communications Act, 1998 provides for the promotion of research into the development and use of new communications techniques and technologies, including those which promote accessibility of hearing-impaired people to communication services.
  • The Uganda National Institute of Special Education Act, 1998 provides for the establishment of the Kyambogo National Institute of Special Education, training of teachers for children with special needs as well as special education teachers.
  • The Workers’ Compensation Act, 2000, provides compensation to workers who are injured or disabled through industrial accidents.
  • The Equal Opportunity Act, 2006 and the Employment Act 6 of 2006 both prohibit discrimination of persons in employment based on disability.
  • The Universities and Other Tertiary Institutions Act, as amended, provides for affirmative action during admission of persons with disabilities to public tertiary institutions.

5 Decisions of courts and tribunals

5.1 Have the courts (or tribunals) in Uganda ever decided on issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases with the facts, the decision(s) and the reasoning.

Yes, there are number of cases directly relating to disability that have been decided by courts in Uganda. However, due to poor reporting very few of these cases are readily available. Nonetheless, below are two recently decided cases relating to disability:

  • Legal Action for Persons with Disabilities v Attorney General 23

The applicants sued the Attorney General (the official government legal representative), Kampala Capital City Authority (KCCA) and Makerere University Kampala (MUK) on the grounds that public buildings and facilities within Kampala city and Makerere University (an institution of higher education) were not accessible to persons with disabilities. The applicants relied on the anti-discrimination provisions in the Constitution and the Persons with Disabilities Act of 2006 mandating that all public buildings be made accessible to persons with disabilities to enable them to fully participate in society.

In its judgement, the High Court held that KCCA and MUK had taken sufficient reasonable steps within their means to make their buildings and facilities accessible. The court also held that KCCA and especially MUK had limited resources and could not fully make all buildings immediately accessible and that the current state of inaccessibility was attributable to buildings constructed prior to the period when issues of disability became a pertinent national agenda. The court also noted that to expect MUK to prioritise resources to making buildings accessible would substantially increase the cost of education hence affect other students. On the above grounds, the court dismissed the application.

  • Nyeko Okello & Santo Dwoka v Centenary Rural Development Bank Limited 24

The plaintiffs, both persons with disabilities and customers of Centenary Rural Development Bank (CERUDEB), sued CERUDEB on the grounds that the bank, including access to the main banking hall, was inaccessible for persons with disabilities. Prior to the suit the plaintiffs had notified CERUDEB about the lack of ramps to facilitate their access to the bank but to no fruition. The plaintiffs sued. The bank afraid of costs arising from loss of the suit, eventually constructed the ramps. Since the breach had been remedied the judge advised the plaintiffs to settle the matter out of court. A consent judgement was later entered into between the parties with costs being awarded to the plaintiffs however no damages were awarded by the court.

6 Policies and programmes

6.1 Does Uganda have policies or programmes that directly address disability? If so, list each policy and explain how the policy addresses disability.
  • The Uganda National Policy on Disability 2006

The Policy provides the basis for national interventions and programmes in favour of persons with disabilities in all government departments and activities. The priority areas of focus are accessibility, participation, capacity building, awareness raising, prevention and management of disabilities, care and support, socio-economic security, research, communication (sign language, tactile and Braille literacy) and budgeting. Other aspects considered in this national policy include the protection and promotion of the rights of persons with disabilities in spheres of health including HIV/Aids interventions, education, social security, employment and access to basic human rights services for example access to justice. 25

  • National Community Based Rehabilitation Programme

In 1991, the three government ministries of health, education and social development together with the Norwegian Association of the Disabled (NAD) developed a National Community Based Rehabilitation Programme as the main strategy for the delivery of rehabilitation services and ensuring full participation in poverty eradication programmes and inclusion for persons with disabilities.26 The programme was also designed to ensure early identification, assessment and referral. The programme focuses on awareness, capacity building, livelihood and influencing policy change for persons with disabilities. Currently it is being implemented in the districts of Mbarara, Bushenyi, Mbale, Kabale, Mukono, Iganga, Kamuli, Ntungamo, Rukungiri, Butaleja, Busia and Kayunga.27

  • The National Mine Action Programme

The Landmine Victim’s Assistance programme was launched in 2008 to raise awareness of Uganda’s obligation as a state party to the Mine Ban Treaty28 and the CRPD. The plan provides for the

establishment of a framework for rapid response to support landmine survivors and other persons with disabilities and older who are in emergency and conflict situations to enable them participate and re-integrate into the development process and raise awareness on Uganda’s obligations.29

6.2 Does Uganda have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.

Yes, these include:

  • The National Gender Policy (2007) emphasises the protection of human rights for all women.
  • The National Education Policy encourages equality for all in education related programming.
  • The National Health Policy puts in place structures to ensure equality in the health sector.

7 Disability bodies

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

Besides the general courts and tribunals, there are no other adjudicatory bodies that specifically address or are established to address violations of rights of persons with disabilities.

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

The Equal Opportunities Commission, which is established by the Equal Opportunities Commission Act of 2007,30 is a fully-fledged secretariat that has the mandate to investigate and inquire into matters on its own initiative or by a complaint made to it by persons belonging to marginalised groups including persons with disabilities where discrimination in relation to opportunities has occurred.

8 National human rights institutions, Human Rights Commission, Ombudsman or Public Protector

8.1 Does Uganda have a Human Rights Commission, Ombudsman or a Public Protector in your country? 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, Ombudsman or Public Protector of Uganda has ever addressed issues relating to the rights of persons with disabilities.

Yes. Uganda has a national Human Rights Commission established by the Constitution.31 The Commission has the mandate to address all human rights violations including those relating to persons with disabilities. According to the Uganda Human Right Commission Act, the Commission has adjudicatory powers to investigate on its own initiative or by complaint made to it any alleged human rights violation.32 In October 2004, the Commission established the Vulnerable Persons Unit to address issues raised by vulnerable groups including people with disabilities.33 The Unit amongst its functions, monitors government compliance with its human right obligations to vulnerable persons. It also undertakes activities aimed at ensuring national human rights protection for vulnerable persons. At the time of reporting, it was unclear whether the Commission has handled any cases relating to violations against persons with disabilities. However, the issues raised by people with disabilities for the attention of the Commission are centred on education, transport, employment and accessibility to basic services. 34

The second public protection body is the Inspectorate of Government established under chapter 13 of the Constitution. The Inspectorate does not specifically handle matters relating to persons with disabilities. Its primary functions involve the promotion of natural justice, fairness, efficiency and good governance in the administration of public offices. 35

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

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

Yes, there are a number of organisations in Uganda that represent and advocate for the rights of persons with disabilities. By their names it is easy to identify the specific disability on which they focus. These are often referred to as Disabled Peoples Organisations and they include:

  • The National Union of Disabled Persons (NUDIPU). Its main role is to coordinate activities of DPOs in Uganda and provide a common platform to address disability issues.
  • The National Union of Women with Disabilities of Uganda (NUWODU). The organisation is primarily focused on the protection and promotion of rights for women with disabilities in Uganda. It provides leadership and training for emerging women’s organisations and focuses on economic development projects.
  • The Disabled Women Network and Resource Organisation.
  • The Uganda Disabled Women’s Association.
  • Uganda Parents Care for the Mentally Handicapped.
  • Comprehensive Rehabilitation Services in Uganda (CoRSU) - a hospital for people with disabilities officially opened on 27 March 2009 and to date provides orthopaedic services, plastic/reconstructive services, and therapy services through facility based and community.
  • Uganda Parents’ Association of Children with Learning Disabilities (UPACLED).
  • Legal Action on Persons with Disability (LAPD) provides legal aid services to persons with disabilities.
  • Sight Savers International supports blind prevention and rehabilitation programmes.
  • Katalemwa and other Cheshire Homes provides rehabilitation services to children with disabilities.
  • Basic Needs UK in Uganda advocates for the rights of persons with psychosocial services.

Other Specific organisations include:

  • The Spinal Injury Association (SIA)
  • The Epilepsy Support Association of Uganda (ESAU)
  • The National Association of the Deaf Blind (NADB)
  • The Uganda National Association of the Blind
  • The Uganda National Association of the Deaf
  • The Uganda Mental Health Association
  • The Uganda National Action on Physical Disability
  • The Uganda Federation of the Hard of Hearing
  • The Uganda Albino association
  • The Little People of Uganda

(The list is not exhaustive)

9.2 In the countries in Uganda’s region (East Africa) are DPOs organised/coordinated at national and/or regional level?

In practice, in Uganda, the National Union of Disabled Persons Uganda (NUDIPU) represents an umbrella organisation that brings together DPO’s. Currently it is comprised of 14 DPO’s and 112 district unions.36 Membership is voluntary and there is no particular legislation or policy obligating DPO’s to join.

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

Following the ratification of the CRPD, DPO’s have been actively engaged in informing and participating in the implementation of national programmes in favour of persons with disabilities. For example:

  • DPO’s were actively involved and interviewed during the preparation of the CRPD report to the UN Committee on the Rights of Persons with Disabilities.37
  • Since 2009 there has been debate between the government and DPOS’s on whether the current Persons with Disabilities Act should be annulled or amended to bring it in line with the CRPD ‒ the government is in favour of annulment of the Act while the DPO’s favour amendment of specific provisions. 38
  • In 2009, the government embarked on the translation of the National Disability Policy into tangible activities. This process required a consultative process involving representatives from various DPO’s. 39
9.4 What types of actions have DPOs themselves taken to ensure that they are fully embedded in the process of implementation?

DPO’s have collectively and individually engaged in a wide range of activities and projects aimed at informing and ensuring their participation in the implementation process of pro-disability initiatives, some of these activities include:

  • Conducting evidence based research and publishing subsequent reports intended to bring disability rights issues to the fore front, identify existing gaps and/or offer recommendations to the government.
  • DPOs also carry out direct service provision and/or activities geared at protecting and/or promoting the rights of persons with disabilities.
  • They also conduct public awareness campaigns geared at raising knowledge about disability rights, laws and changing attitudes of persons towards disability rights.
9.5 What, if any, are the barriers DPOs have faced in engaging with implementation?

DPOs have over the years faced a number of barriers:

  • Financial constraints;
  • Low government prioritisation and response;
  • Low levels of enforcement of disability laws;
  • Poor monitoring and accountability structures; and
  • Negative public and individual attitude towards disabled persons.
9.6 Are there specific instances that provide ‘best-practice models’ for ensuring proper involvement of DPOs?

Nationally within Uganda, efforts are still being made to come up with best practices to ensure involvement of DPOs. However partnership with other countries and jurisdictions such as Norway and Japan, amongst others, is being encouraged to discuss challenges and glean best practices for the involvement of all DPOs in Uganda.

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?

As a result of their persistence, DPO’s are slowly gaining recognition and are consequently actively involved by the government in implementation of disability programmes. DPOs played a crucial role in the development of the Persons with Disabilities Act and in the preparation of the CRPD Uganda report. Because of their efforts the government has been moved to adopt positive steps for persons with disabilities such as: enacting laws providing for the political representation of persons with disabilities, ratifying the CRPD, developing a national disability policy and promoting legislation that encourages employment of persons with disabilities. In 2012, Martin Mwesigwa Babu a member of staff of NUDIPU was successfully nominated by the government of Uganda as a member of the Committee of Persons with Disabilities. 40

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?

Yes. In the first place, additional research and statistics are required including statistical data on disability prevalence and trends using the WHO International Classification of Functionality (ICF) model to identify disability. More national research towards understanding the correlation between disability and the community, poverty, employment, mortality, family, education, ownership of property, access to justice and health to mention but a few should also be carried out. These findings should then be used to inform comprehensive national legislation, policies and interventions for persons with disabilities.

Secondly, while there is a huge representation of physical disability and other sensory disability like a hearing impairment, persons with mental and/or intellectual disability have not been sufficiently represented. With the introduction of the CRPD more research, representation and advocacy should be directed towards this area.

Many government disability departments and even some DPO’s still do not express a proper understanding of the social model human rights approach to disability adopted by the CRPD. This in consequence has led to continued acceptance of medical and charity based interventions for persons with disabilities with less than equal effort directed towards addressing social and physical barriers. As such strategic capacity building is required to address these gaps in ideological understanding.

Additional efforts are also needed to adopt proper advocacy strategies for persons with disabilities. Self advocacy, peer advocacy, group advocacy and family advocacy are some examples of advocacy strategies that have yielded particular success in other jurisdictions. It is crucial that more research and initiatives be directed towards advancing and developing successful advocacy techniques.

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?

Yes. Financial empowerment, capacity empowerment and full commitment by government is still required to enable DPO’s to take a leading role in the implementation process of international, regional and national instruments. Recognition by the state of the status and role of DPO’s in the disability movement is crucial as envisaged by the slogan repeated during the CRPD drafting process ‘nothing about us without us’.41 Thus besides engaging them right from the inception of national programmes there should be a transparent and clear flow of information between government agencies dealing with disability and DPOs.

9.10 Are there specific research institutes in the region where Uganda is situated (East 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 is no specific research institute singularly dedicated to persons with disabilities. In Uganda all research is regulated by the National Council for Science.42 Organisations, institutions and individuals conduct research generally and may at times focus on disability and require involvement with DPO’s.

10 Government departments

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

Yes, these are:

  • The Department of Disability and Older Persons, within the Directorate of Social Protection under the Ministry of Gender, Labour and Social Development. This department is headed by a Commissioner under the political supervision of the Minister of Gender, Labour and Social Development assisted by the Minister of State for Elderly and Disability Affairs. It has the overall responsibility of overseeing disability based issues.
  • The Ministry of Education and Sports has a Department of Special Needs Education and Career Guidance headed by a Commissioner to ensure the requirements of children with special needs are catered for in the programming of ministry activities.
  • The Ministry of Health has the Disability Prevention and Rehabilitation section, its role is to mainstream disability rights in the health sector.
  • At the District and Sub County levels, disability issues are also provided for in the Local Government Act (1997), and are handled under the Department of Community Development. The position of District Inspector of Schools in Charge of Special Needs Education also exists in the District Local Government structure.
  • Suffice to mention, the National Council for Disability is an independent statutory body that was established to deal with matters related to disability, its main objectives are: to promote the implementation and the equalisation of opportunities for persons with disabilities; monitor and evaluate the impact of policies and programmes designed for equality and full participation of persons with disabilities; advocate for and promote effective service delivery and collaboration between service providers and persons with disabilities; advocate for the enactment of laws and the reviewing of existing laws with a view to complying with the equalisation of opportunities as stipulated in the Constitution, other national laws and international legal instruments. 43

11 Main human rights concerns of people with disabilities in Uganda

11.1 Contemporary challenges of persons with disabilities in Uganda? (for example, in some parts of Africa ritual killing of certain classes of PWDs, such as people with albinism, occurs).

The challenges faced by persons with disabilities in Uganda are not widely different from those faced by other sub Saharan African countries. Because of the rate at which they occur here are some examples that stand out: poverty, marginalisation and exclusion, discrimination, low government prioritisation resulting in inadequate or no institutional interventions, negative cultural and social attitudes, existence of environmental physical/structural barriers, low levels of education and unemployment to mention but a few. 44

11.2 Describe the contemporary challenges of persons with disabilities, and the legal responses thereto, and assess the adequacy of these responses to:
  • Access to public buildings

All newly constructed public buildings such as schools and health facilities have to cater for the needs of persons with disabilities.45 In collaboration with the Uganda National Action on Physical Disability, the Ministry of Gender and Labour and Social Development in 2010 developed accessibility standards for the removal of barriers to access buildings.46 These standards require that all are accessible and include provisions such as rumps and elevators. In reality however, most buildings are still not accessible to persons with disabilities.

  • Access to public transport

Section 22 of the Persons with Disability Act provides a duty for any person involved in the business of public transport to provide facilities to enable access by DPOs. Section 44 poses penalties for any person who fails to meet these requirements.

  • Access to education

The right to education is granted to all persons in Uganda by virtue of article 30 of the Constitution which provides that all persons have a right to education. The government is mandated to promote educational development of persons with disabilities47 and any prohibition on the basis of disability is outlawed.48 The Ministry of Education has a fully fledged Department of Special Needs Education and Career Guidance to promote the education of persons with disabilities.

To promote higher education for and the needs of persons with disabilities, all boards of public universities are mandated to have a member with a disability to represent persons with disabilities.49 In addition, during admission to public universities, 4,5 points are awarded to applicants with disabilities to promote affirmative action.

  • Access to vocational training

Section 11 of the Persons with Disability Act calls on the government to undertake measures to encourage vocational training for persons with disabilities and over the years, the Government of Uganda has been facilitating a vocational training programme to equip persons with disabilities with employable skills to promote their access to employment. 50

  • Access to employment

The Persons with Disabilities Act, in section 12 prohibits discrimination in employment on the grounds of disability and details the grounds that are considered to constitute discrimination. Section 13 of the Act provides that persons with disabilities have a right to practice their professions and to carry on any lawful occupation, trade or business of their choice. It also calls on the government and private sectors to promote the right to employment of persons with disabilities, including those who acquire a disability during the course of their employment, to work on an equal basis with others and to earn a living by work. This stance is reechoed in the Employment Act which discourages discrimination on the basis of disability. 51

  • Access to recreation and sport

The Persons with Disabilities Act contains an extensive enumeration of the right to sports and recreational activities. Under section 30 of the Act, government is required to promote the rights of persons with disabilities to participate in recreational, leisure and sporting activities. The section also prohibits any related discrimination. In addition, in terms of section 30(4) of the Act, the government is required to use at least ten percent of all funds it commits to sports for the development of the recreation and sports of persons with disabilities.52

  • Access to justice

The various entities of the justice system - including police and courts- are covered by the provisions of Part V of the Persons with Disabilities Act. Section 25 of the Persons with Disabilities Act prohibits such entities from excluding a person with disability from accessing services. Section 27 of the Act imposes an obligation on service providers to provide auxiliary aid or services to enable a person with a disability to use the service.

In terms of Court proceedings, the Evidence Act allows witnesses with speaking disabilities to give their testimony in writing or in signs. 53

  • Access to health care

The Persons with Disabilities Act recognises the right of persons with disabilities to enjoy the same rights with other members of the public in all health institutions including general medical care.54 It goes on to provide for the duty of the government to provide special health services required by persons with disabilities including providing access to reproductive health services which are relevant to Women with Disabilities (WWDs); enforcing user friendly hospital materials for use by persons with disabilities visiting hospitals; and encouraging population based public health programmess relevant to persons with disabilities.55

The Ministry of Health has a Disability and Rehabilitation Section responsible for developing policies and guidelines for reducing the incidence and prevalence of disability, providing rehabilitation and promoting access to health services by persons with disabilities.56

  • Access to social security

There are periodical national budgetary grant schemes targeting PWDs. For example, in to the 2010 national budget, the government introduced a Social Assistance Grant for Empowerment (SAGE) programme targeting poor households headed by amongst others persons with disabilities to be managed under the Ministry of Gender Labour and Social Development.57

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

The Constitution of Uganda recognises in article 59 the right to vote of every citizen irrespective of disability above 18 years of age. Article 38 recognises the right of every Ugandan citizen to participate in the affairs of the government, individually or through his or her representatives in accordance with law. However, persons of unsound mind cannot hold political positions.58 Although no definition exists to identify what constitutes unsound mind, the declaration of unsound mind in Uganda involves an adjudicatory process before a Magistrate and is governed by the Mental Treatment Act.

Article 78(1)(c) of the Constitution provides that parliament shall be composed of representatives of amongst others persons with disabilities as parliament may determine. The Local Governments Act, 1997 (amended in 2002 and 2005) provides for the election of two persons with disabilities to district council and the lower councils.59

11.4 Are people with disabilities’ socio-economic rights, including right to health, education and other social services protected and realised in your country?

See question 11.2 above.

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

Some of the particular issues affecting women with disabilities include concerns relating to availability of accessible and suitable reproductive health and birth services; sexual exploitation; extreme denial of the right to property, family, child support and education; and a lack of socio-cultural structures to address their needs. 60

  • Children with disabilities

A specific concern relating to children with disabilities is in regard education. According to the 2008 data used in Uganda’s first country report, there were only 183 537 children with disabilities in primary education.61 This figure when compared to the general enrollment in 2008 of 7 963 000 means that children with disabilities only represented 0,023 per cent of the general primary school population.62

  • Other (persons with mental and intellectual disability)

At present persons with mental and/or intellectual disabilities are minimally represented, there is limited research as to their status and experience and there is limited national intervention directed to their needs. As a result, they are left to wander the streets without food or family protection since in most cases they have been abandoned or neglected by even their families. The Mental Treatment Act that follows a predominantly medical model is the only law that governs their relationship with the state and legal structures. In the light of the CRPD standards and state obligations on equal recognition before the law for all disabled persons, autonomy, liberty, protection against compulsory detention and involuntary treatment a lot still needs to be done to adopt a humane approach to issues of persons with mental disability.

12 Future perspective

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

Yes, here are a few examples:

  • Currently, there is ongoing debate and activity between the government, DPO’s and civil society to bring the Persons with Disability Act in line with the CRPD (see 9.3 above).
  • A Bill to Amend the National Council for Disability Act, 2003 has been tabled before parliament to streamline the election of persons with disabilities into parliament. 63
  • The government plans to strengthen its monitoring role to ensure that disability programmes are implemented as per the work plans at the various levels. 64
  • The government plans to consult with persons with disabilities and DPOs to fully provide for measures of reasonable accommodation in the Persons with Disabilities Act, the National Council for Disability Act and the National Disability Policy.65
  • By 2008, the government was finalising the development of regulations and guidelines aimed at ensuring domestic law compliance with the CRPD. 66
12.2 What legal reforms are being raised? What legal reforms would you like to see in Uganda? Why?

At present the government is committed to ensuring harmony between present and future laws with the CRPD. That said, it is important that:

  • National legislation incorporates the interpretation of disability as enshrined in the CRPD in order to realise a human-rights approach to disability as opposed to the predominantly medical model identification.
  • The Mental Treatment Act and other laws providing for guardianship, detention and forced treatment of persons with mental disabilities should be reviewed in line with the CRPD.
  • Monitoring and enforcement measures of pro disability laws should be put in place and strengthened. This specifically relates to existing laws governing accessibility, employment and equal opportunity. Enforcement is important for the realisation of rights.
  • Advocacy laws and programmes should be encouraged to increase awareness.
  • Laws intended to organise DPO’s and encourage their participation in national disability programmes should be encouraged.
  • Laws, policies and guidelines should adopt and prioritise an inclusive approach for all including persons with disabilities.

 


1. Uganda Bureau of Statistics (UBOS) ‘Statistical abstract’ (2012) 9.

2. WHO International classification on impairments, disabilities and handicaps: A manual of classification relating to the consequences of disease (1980) 27, 143 & 183.

3. Government of Uganda ‘National Population and Housing Census’ (2002) 17.

4. Uganda Bureau of Statistics (UBOS) ‘Uganda National Household Survey’ (2010) 156, available at http://www.ubos.org/UNHS0910/unhs200910.pdf (accessed 24 February 2014).

5. As above.

6. National Population and Housing Census (n 3 above) 18.

7. UN Enable ‘Convention and Optional Protocol signatures and ratifications’: http://www.un.org/disabilities/countries.asp?navid=12&pid=166 (accessed 24 February 2014).

8. Government of Uganda ‘Initial status report on the United Nations Convention on the Rights of Persons with Disabilities’ (2010) 4.

9. Government of Uganda ‘Fourth periodic report to the African Commission on Human and Peoples’ Rights’ (2011) 18.

10. Fourth Periodic Report (n 9 above).

11. Government of Uganda ‘Implementation on the African Charter on the Rights and Welfare of the Child in Uganda’ (2007) 13.

12. African Committee of Experts on the Rights and Welfare of the Child ‘Recommendations and observations to the Government of the Republic of Uganda by the African Committee of Experts on the Rights and Welfare of the Child on the initial implementation Report of the African Charter on the Rights and Welfare of the Child’ (2010) 2.

13. African Committee of Experts (n 12 above) 5.

14. Government of Uganda ‘Third periodic report to the Committee on the Elimination of Discrimination against Women on the Convention on the Elimination of all forms of Discrimination against Women’ (2000).

15. Laws of Uganda, Ratification of Treaty Act, Cap 204, secs 4 & 6; Constitution of the Republic of Uganda, 1995, art 123 (2).

16. See: H Onoria ‘Uganda case study’ in D Shelton (ed) International law and domestic legal systems (2011) 594-619.

17. HCT-00-ICD 02/2010 (unreported).

18. Constitutional Appeal No 3/2006 (2009) UGSC 6 (SC) (21 January 2009) 12.

19. Criminal Session Case No 146/2001 (2002) UGHC 72 (19 October 2002).

20. Laws of Uganda, Persons with Disabilities Act, 2006 sec 3.

21. Laws of Uganda, Mental Treatment Act Cap 279 sec 4, 6 & 9.

22. Laws of Uganda, National Council for Disability Act, 2003 sec 4.

23. High Court of Uganda, Misc App No 146/2011, judgment delivered 20 May 2014 (unreported), case excerpt available at http://www.ulii.org/ug/judgment/high-court/2014/42 (accessed 23 June 2014).

24. High Court of Uganda Civil Suit No 23/2008 (unreported).

25. Ministry of Gender, Labour and Social Development ‘National Policy on Disability in Uganda’ (2006).

26. Norwegian Association of the Disabled ‘Evaluation the Community Based Rehabilitation Program in Uganda’ Final Report (2005).

27. Community Rehabilitation Programme for the Disabled: http://www.mglsd.go.ug/?p=485 (accessed 10 March 2014).

28. United Nations Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction UN Treaty Series Volume 2056, 211.

29. Ministry of Gender, Labour and Social Development ‘The Uganda comprehensive plan of action on victim assistance’ (2008-2012) 2.

30. Laws of Uganda, Equal Opportunities Commission 2008, sec 14.

31. Arts 51 & 52 of the Constitution of Uganda .

32. Laws of Uganda, Uganda Human Right Commission Act Cap 24 sec 7 (1)a.

33. Uganda Human Rights Commission: http://www.uhrc.ug/?page_id=1675 (accessed 3 March 2014).

34. Uganda CRPD Country Report (n 8 above) 12.

35. Art 225 of the Constitution of Uganda.

36. National Union of Disabled Persons of Uganda: http://nudipu.org/about/membership/ (accessed 4 March 2014).

37. Uganda CRPD Country Report (n 8 above) 4.

38. Uganda CRPD Country Report (n 8 above) 7.

39. As above.

40. Office of the High Commissioner for Human Rights ‘Elected members of the Committee on the Rights of Persons with Disabilities’: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Membership.aspx (accessed 5 March 2014).

41. Disability Rights in Uganda - Research Blog: http://disability-uganda.blogspot.ie/2012/01/nothing-about-us-without-us.html (accessed 6 March 2014).

42. Laws of Uganda, National Council for Science and Technology Act Cap 209.

43. Secs 5 & 6 of the National Council for Disability Act.

44. ‘Disability scoping study: Final report’ Commissioned by DFID Uganda (February 2009).

45. Secs 19 & 20 of the Persons with Disabilities Act.

46. Uganda National Action on Physical Disability in collaboration with the Ministry of Gender, Labour and Social Development ‘Accessibility standards: A practical guide to create a barrier-free physical environment for persons with disabilities in Uganda’ (2010).

47. Sec 5 of the Persons with Disabilities Act.

48. Sec 6 of the Persons with Disabilities Act.

49. University and other Tertiary Institutions Act, 2001.

50. Uganda CRPD Country Report (n 8 above) 35.

51. Laws of Uganda, Employment Act, 2006, sec 6.

52. Also see Uganda CRPD Country Report (n 8 above) 35.

53. Laws of Uganda, Evidence Act Cap 6, sec 118.

54. Sec 7 of the Persons with Disabilities Act.

55. Sec 8 of the Persons with Disabilities Act.

56. Ministry of Health: Community health: http://health.go.ug/mohweb/?page_id=267 (accessed 6 March 2014).

57. Government of Uganda ‘2010/2011 National Budget’.

58. Art 80(2)(a) & 107(1)(c) of the Constitution of Uganda.

59. Laws of Uganda, Local Government Act Cap 243 secs 10(d) & 23(d).

60. Human Rights Watch ‘”As if we weren’t human”: Discrimination and violence against women with disabilities in Northern Uganda’ (August 2010) 26-69.

61. Uganda CRPD country Report (n 8 above) 33.

62. Uganda Bureau of Statistic (UBOS) ‘2012 Statistical Abstract’ 12 & 14.

63. Parliament of Uganda eNewsletter, Vol 5, issue no 23: http://www.parliament.go.ug/enewsletter/index.php/home/view/126/monday-march-5-2012-friday-march-9-2012 (accessed 30 September 2013).

64. Uganda CRPD Country Report (n 8 above) 13.

65. As above.

66. As above.




  Special appreciation is given to Dr Mwiza Nkhata, Dean of Law, the University of Malawi for assisting with the research and contributing immensely to the report.


1 Population indicators

1.1 What is the total population of Malawi?

At the time of the latest 2008 National Statistical Office (NSO) Population and Housing Census, the population was estimated at 13 077 160 of which 6 358 933 were males and 6 718 227 were females.1 The population is currently estimated at 16 777 547.

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

Data on the prevalence of disability were obtained by means of census (decennial). In terms of criteria, persons were asked if they have difficulties with the following: seeing, speaking, hearing, walking/climbing and/or ‘any other problem’. Anyone who reported experiencing any difficulties with the abovementioned activities was consequently considered to be within the class of a ‘person with a disability’.

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

According to the 2008 NSO Census, the population of persons with disabilities (PWDs) was recorded at 498 122 representing a disability prevalence rate of 3,8 per cent.

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

The population of women with disabilities was estimated to be 254 853, representing about 51,1 per cent.

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

The population of children with disabilities up to the age of 14 was estimated to be 274 465, representing 51,1 per cent.

1.6 What are the most prevalent forms of disability and/or peculiarities to disability in Malawi?

In terms of the disability statistics, the most prevalent forms of disability/impairment were classified as follows: seeing - 126 110; walking - 103 359; hearing - 76 434; and speaking - 27 585. These four types of disabilities constitute 66,9 per cent of the forms of disability in Malawi.

According to the 2008 census, 1 946 637 people in the country were urban residents and 11 082 861 were rural dwellers. Amongst the urban residents, 45 379 people were classified as PWDs, consisting of 23 544 males and 21 835 females; while 452 743 of the rural residents were classified as PWDs, consisting of 219 725 males and 233 018 females. 

2 Malawi’s international obligations

2.1 What is the status of the United Nation’s Convention on the Rights of Persons with Disabilities (CRPD) in Malawi? Did Malawi sign and ratify the CRPD? Provide the date(s).

Malawi signed the CRPD on 27 September 2007, and subsequently ratified it on 27 August 2009. However, Malawi has not signed or ratified the CRPD Optional Protocol.

2.2 If Malawi has signed and ratified the CRPD, when was its country report due? Which government department is responsible for submission of the report? Did Malawi submit its report? If so, and if the report has been considered, indicate if there was a domestic effect of this reporting process. If not, what reasons does the relevant government department give for the delay?

The Ministry of Justice and Constitutional Affairs (MoJ) is currently responsible for submitting state party reports and it works together with line ministries. In respect of reports that fall under specific ministries such as the CEDAW and CRPD reports (which fall under the Ministry of Gender, Children, Disability and Social Affairs) the specific ministry takes the lead role and MoJ is part of the task team. In such cases, MoJ is entrusted with the responsibility of drafting and vetting the final report. The CRPD country report for Malawi was due on 27 August 2011; two years after Malawi ratified the Convention. Malawi has not yet submitted the initial report. The reasons that the government gives (unofficially), have to do with lack of funds.

2.3 While reporting under various other United Nations’ instruments, under the African Charter on Human and Peoples' Rights, or the African Charter on the Rights and Welfare of the Child, did Malawi also report specifically on the rights of persons with disabilities in its most recent reports? If so, were relevant ‘concluding observations’ adopted? If relevant, were these observations given effect to? Was mention made of disability rights in your state’s UN Universal Periodic Review (UPR)? If so, what was the effect of these observations/recommendations?
UN Instruments
  • Convention on the Rights of the Child (CRC)

Malawi acceded to the Convention on the Rights of the Child (CRC) on 2 January 1991. It submitted its initial state party report in August 2000. In 2002, the Committee on the Rights of the Child (CRC Committee) adopted its Concluding Observations on the report in which it expressed concern at the challenges (such as widespread discrimination; limited facilities and services; and exclusion from society) facing children with disabilities and other vulnerable children in Malawi. In light of these challenges, the Committee made a number of recommendations.

Malawi submitted its second report, which was considered by the CRC Committee in January 2009. In 2009, the CRC Committee adopted its Concluding Observations on the report in which it mentioned issues relating to children with disabilities in several instances. For example, the Committee was concerned at the persistent de facto discrimination against girls and vulnerable groups of children, including children with disabilities. Accordingly, the Committee urged Malawi to, amongst others, strengthen its efforts to eradicate all discriminatory laws. Furthermore, in respect of the rights and welfare of children with disabilities in general, the Committee welcomed the adoption of Malawi’s disability specific policy (discussed in 6.1 below) but expressed concern at the inadequate financial resources allocated to the Disability Ministry and the lack of attention with respect to children with mental illness. Consequently, the Committee advised Malawi on the appropriate recommendations.

Some of the observations and recommendations have been given effect to; while action is yet to be taken in respect of the others. For example, Malawi enacted the Child Care, Protection and Justice Act (CCPJA) in 2010,2 which has two provisions on children with disabilities (discussed in 4.2 below). Secondly, Malawi enacted the Disability Act (discussed in 4.1 below),3 which provides for a number of rights (such as education) that can be exercised by all PWDs, including children with disabilities. However, the Act does not have a specific provision on children with disabilities. Thirdly, Malawi ratified the CRPD in the same year that the Concluding Observations were adopted. In addition, Malawi recently enacted the Gender Equality Act.4 In respect of the 2002 recommendations, the Disability Act recognises the right to ‘inclusive education’, which requires the education of PWDs to be provided in mainstream/regular schools.

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

Malawi ratified/acceded to CEDAW on 12 March 1987. Malawi submitted the combined second, third, fourth and fifth report to the CEDAW Committee in May 2006 for consideration. In 2006, the CEDAW Committee adopted its Concluding Observations on the report. However, the Concluding Observations did not make reference to women and girls with disabilities.

  • International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

Malawi acceded to CERD on 11 June 1996. The CERD Committee adopted Concluding Observations on Malawi in 2000, which were based on the materials that were at the Committee’s disposal since Malawi had not submitted its state party report. However, the Committee did not make reference to PWDs in its Concluding Observations.

Regional Instruments
  • African Charter on Human and Peoples’ Rights, African Children’s Charter and African Women’s Protocol

Malawi ratified the African Charter on the Right and Welfare of the Child (ACRWC) on 16 September 1999. However, Malawi has not yet submitted any ACRWC state party report. Malawi ratified the African Charter on Human and Peoples’ Rights (ACHPR) on 17 November 1989. It also ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol) on 20 May 2005. Malawi submitted its first ever combined report on the ACHPR and the Africa Women’s Protocol in July 2013. The report includes aspects pertaining to the rights of PWDs. For example, the ACHPR report makes reference to the fact that the Malawi Constitution protects the right of PWDs to freedom from disability based discrimination under section 20; that Malawi ratified the CRPD in 2009; and that Malawi enacted the Disability Act in 2012.5 On its part, the Women’s Protocol report highlights, amongst others, that the adoption of the 2012 Disability Act and 2013 Gender Equality Act seeks to address challenges (such as discrimination on the basis of gender and disability) faced by women with disabilities.

  • UN Universal Periodic Review (UPR)

Malawi undertook the Universal Periodic Review (UPR) process in November 2010 during the ninth session of the Working Group on the UPR. The Working Group, which falls under the UN Human Rights Council (HRC), released its report in 2010. During the review, a few disability issues were considered. These include the recommendation to adhere to the CRPD Optional Protocol, raised by Argentina; the recommendation to sign and ratify the CRPD Optional Protocol, suggested by Spain; and the recommendation to ‘[s]trengthen efforts to eliminate discrimination against girls and vulnerable groups such as children with disabilities and orphans’, which was put forward by Bangladesh. Some of the observations and recommendations have been given effect to while action is yet to be taken in respect of the others. For example, the 2012 Disability Act, amongst others, prohibits discrimination on the basis of disability in the enjoyment of rights such as education, housing, healthcare and accessibility.6

2.4 Was there any domestic effect on Malawi’s legal system after ratifying the international or regional instruments in 2.3 above? Does the international or regional instrument that has been ratified require Malawi’s legislature to incorporate it into the legal system before the instrument can have force in Malawi’s domestic law? Have Malawi’s courts ever considered this question? If so, cite the case(s).

As highlighted above, Malawi enacted the Disability Act as its new disability legislation.7 The Act is based on the social model of disability and as can be appreciated from its provisions discussed in 4.1 below, the passing of the Act has, to some extent, put into effect the provisions of the CRPD. On its part, the CCJPA ‘domesticates’ the CRC and the ACRWC.8

In respect of the legal status of treaties ratified by Malawi, it is noteworthy that the jurisdiction has a dualist legal system which requires ratified treaties to be incorporated by an Act of Parliament to become domestically enforceable.9 However, the Constitution provides that the treaties that Malawi ratified before the commencement of the 1995 Constitution do not need to be incorporated to become applicable.10 Above all, Malawian courts have considered the issue relating to ‘domestication’ of ratified treaties and they have gone further to apply treaties ratified and incorporated by Malawi (in addition to other international instruments) in a number of cases which did not deal with disability matters. For example, in Chihana v Republic, the Supreme Court applied the Universal Declaration of Human Rights, which the 1996 Constitution had incorporated.11 Similarly, in Kalinda v Limbe Leaf Tobacco Ltd,12 the High Court held that the ILO Convention No 158 (Termination of Employment Convention (1983) No 158) is applicable in labour matters through section 211 of the Constitution.13 Thus, the courts have affirmed the Constitution’s position regarding ‘domestication’. Therefore, the CRPD has to be specifically incorporated or ‘domesticated’ by an Act of Parliament.

2.5 With reference to 2.4 above, has the CRPD or any other ratified international instrument been domesticated? Provide details.

Malawi is yet to ‘domesticate’ the CRPD (as discussed above). Nevertheless, the Disability Act incorporates ‘verbatim’ a number of provisions that are contained in the CRPD. For example, the definition of reasonable accommodation contained in section 2 of the Act is the same as the definition under the CRPD contained in article 2. Furthermore, section 10 of the Act incorporates the CRPD’s requirement of inclusive education in article 24(2). 

3 Constitution

3.1 Does the Constitution of Malawi contain provisions that directly address disability? If so, list the provisions, and explain how each provision addresses disability.

The 1995 Constitution of Malawi contains a number of provisions that directly address disability. These are explained in Table 3.1 below.

Table 3.1 Disability provisions in the Constitution of Malawi 

Section

Provision in words

Explanation

13(g)

The State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving the following goals -

(g) Persons with Disabilities

To enhance the dignity and quality of life of persons with disabilities by providing -

(i) adequate and suitable access to public places;

(ii) fair opportunities in employment; and

(iii) the fullest possible participation in all spheres of Malawian society.

The courts are expected to have regard to the provisions in section 13 when interpreting the laws or evaluating government decisions. Hence, the state will be expected to ensure the equalisation of opportunities for PWDs and their participation and inclusion in society as required by section 13(g) whenever it takes any action or decisions that affect PWDs.

20(1)

Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition. (my emphasis)

PWDs are expressly guaranteed the right to freedom from disability discrimination. This entails that PWDs are entitled to enjoy all human rights on an equal basis with others. In addition, any failure by PWDs to exercise any human rights must not be attributable to disability lest it be considered disability discrimination. The state is also required to take special temporary measures, including affirmative action, designed to achieve substantive equality of PWDs. Hence, the non-discrimination provision offers crucial protection of the rights of PWDs.

20(2)

Legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the courts.

23(4)

All children shall be entitled to reasonable maintenance from their parents, whether such parents are married, unmarried or divorced, and from their guardians; and, in addition, all children, and particularly orphans, children with disabilities and other children in situations of disadvantage shall be entitled to live in safety and security and, where appropriate, to State assistance. (my emphasis)

The government is given the obligation to ensure the safety and security of children with disabilities and to provide them with assistance. This obligation is based on the Constitution’s perception that children with disabilities belong to category of children that are in ‘situations of disadvantage’.

30(1)

All persons and peoples have a right to development and therefore to the enjoyment of economic, social, cultural and political development and women, children and persons with disabilities in particular shall be given special consideration in the application of this right. (my emphasis)

By virtue of section 20(2) of the Constitution the state will be expected to take special temporary measures, including affirmative action, to realise the right to development of PWDs. Hence, the provision would promote the developmental rights of PWDs.

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

Most of the provisions in the Constitution are applicable in the context of disability and would thus indirectly address disability by virtue of the general non-discrimination clause in section 20. 

4 Legislation

4.1 Does Malawi have legislation that directly addresses issues relating to disability? If so, list the legislation and explain how the legislation addresses disability.

(See 2.4 above).

  • Disability Act

The Disability Act directly addresses disability related issues since, as discussed above, it is Malawi’s disability specific legislation. The Act sets out the rights of PWDs in Part 4,14 which is summarised in Table 4.1 below.

Table 4.1: The substantive provisions on the rights of PWDs in the Disability Act 

Section

Description of provisions

Sec 6

Right to health care services:

Government to provide appropriate health care services to PWDs, including prevention, early identification, intervention and other services designed to minimise and prevent the occurrence of more disabilities

Sec 7

Non-discrimination in health care and rehabilitation services, including sanctions/penalties for violation

Sec 8

Right of/to accessibility:

Government to take appropriate measures to ensure that PWDs have access to the physical environment, transportation, information and communications, including information and communication technologies and systems, and other facilities and services available or provided to the public.

Government to ensure, amongst others, the development of a Malawi sign language as a national language for persons with hearing impairments and recognising it as an official language.

Sec 9

Non-discrimination in accessing premises and the provision of services or amenities, including sanctions/penalties for violation.

Sec 10

Right to education and training:

Government to recognise the rights of PWDs to education on the basis of equal opportunity, and ensure an inclusive education system and lifelong learning

Sec 11

Non-discrimination in education or training institutions, including sanctions/penalties for violation.

Sec 12

Right to work and employment:

Government to recognise the rights of PWDs to work and employment.

Sec 13

Non-discrimination in work and employment, including sanctions/penalties for violation

Sec 14

Right to adequate standard of living and social protection:

Government to recognise the rights of PWDs to an adequate standard of living, for themselves and their families (and ensure, amongst others, access to adequate food, clothing and housing).

Government to ensure equal access by PWDs to appropriate and affordable social services and to social support programmes.

Sec 15

Non-discrimination in social services, including sanctions/penalties for violation.

Sec 16

Right of association and representation:

Right to form and join any group or association of one’s choice, and

Right to be represented at any level in such group or association.

Sec 17

Right to participation in political and public life:

Through deliberate policies and measures, Government to guarantee participation in political and public life by PWDs.

Sec 18

Non-discrimination in political and public life, including sanctions/penalties for violation.

Sec 19

Right to cultural and sporting activities, and recreational services.

Government to recognise the rights of PWDs to take part in cultural and sporting activities, and access recreational services.

Sec 20

Non-discrimination in cultural and sporting activities, and recreational services, including sanctions/penalties for violation.

Sec 21

Right to housing:

In its National Housing Programmes, Government to take into account the needs of PWDs.

Sec 22

Non-discrimination in housing, including sanctions/penalties for violation.

Sec 23

Right to economic empowerment:

Government to recognise the importance of empowering PWDs economically, without any form of discrimination, and to ensure that the PWDs are able to access loans and credit facilities for purposes of carrying out income generating activities.

Sec 24

Prohibition of disempowerment, including sanctions/penalties for violation.

Sec 25

Right to information and communication technologies:

PWDs to have the right to access information and communication technologies at an affordable cost.

Sec 26

Right to benefit from state (disability oriented) research and information and communication technologies:

Government to recognise the importance of research and the role that information and communication technologies play in improving the quality of life of PWDs.

  • Mental Treatment Act

The Mental Treatment Act currently provides for matters relating to the treatment/handling of mental illness and mental health in Malawi.15 The Mental Health Bill of 2005 has been drafted as Malawi undertakes the process to replace the Act. Amongst others, the Bill makes provision for accessible and comprehensive mental health care services to persons with mental ‘illness/disorders’ at all levels of care; for the custody of their property or estates; and for the respect of their human rights. The rights are set out in section 55 and they include the right to ‘the best available mental healthcare’.16

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

Malawi has a number of laws that have disability provisions. The legislation is captured in Table 4.2 below.

Table 4.2: Legislative provisions on disability

Name of legislation

Contents/description of pertinent provisions

Child Care, Protection and Justice Act (Act 22 of 2010)

1. Section 72:

A local government authority shall keep a register of children with disabilities within its area of jurisdiction and give assistance to them whenever possible in order to enable those children grow up with dignity among other children and to develop their potential and self-reliance

2. Section 145(d):

The proceedings of a child justice court shall be informal and in particular, the presiding officer shall ensure that -

(d) children with disabilities are accorded with assistance to meet their special needs where necessary.

Education Act (Act 21 of 2013)

Section 4(1)(a):

Requires the Minister responsible for education to promote education without discrimination on various grounds, including disability.

Employment Act (Act 6 of 2000)

1. Section 5(1):

Prohibits discrimination against any employee or prospective employee on various grounds, including disability in respect of recruitment, training, promotion, terms and conditions of contract of employment and in all aspect of employment.

2. Sec 5(2):

Allows for the taking of special measures to achieve de facto equality in employment. Thus it recognises the need for special measures, including affirmative action.

3. Section 6(1):

Equal remuneration for equal work without discrimination, including disability discrimination.

4. Section 57(a):

Prohibits the dismissal of any employee on the ground of disability.

Technical, Entrepreneurial and Vocational Education and Training Authority Act (Act 6 of 1999)

Establishes the Technical, Entrepreneurial and Vocational Education and Training Authority (TEVETA) and its board. In terms of the Act, the TEVETA board must have one person (in its composition) representing PWDs. However, the Act does not have substantive provisions that expressly make reference to disability.

5 Decisions of courts and tribunals

5.1 Have the courts (or tribunals) in Malawi ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases with the facts, the decision(s) and the reasoning.

There are no known or reported court cases on disability in Malawi. Similarly, there are no reported court cases which have dealt with issues relating to disability. Perhaps the passing of the Disability Act could trigger disability rights litigation.

6 Policies and programmes

6.1 Does Malawi have policies or programmes that directly address disability? If so, list each policy and explain how the policy addresses disability.
  • National Policy on the Equalisation of Opportunities for Persons with Disabilities

The National Policy on the Equalisation of Opportunities for Persons with Disabilities (Equalisation Policy) principally seeks to ensure equalisation of opportunities for PWDs in all aspects of society.17 Its purpose is to promote the rights of PWDs in Malawi and to enable them to play a full and participatory role in society. Its vision is that of ‘Malawi becoming a nation where people with disabilities have equal opportunities to participate in various undertakings and realize their potentials and goals in life.’ Its mission is to ‘promote the inclusion of persons with disabilities at all levels of society through the creation of an enabling environment for the respect of human diversity, human rights and the development of all human potential’. It has 10 guiding principles: Recognition of the diversity of PWDs; advocacy and support to the human rights approach to disability; a twin-track approach to service delivery; ensuring access for PWDs to all public sector activities; ensuring the inclusion of PWDs; participatory approach and community empowerment; monitoring and evaluation of inclusiveness of government programmes; promotion of gender equality and equity in disability programmes; inclusion of PWDs in the workforce; and facilitating and supporting capacity building of DPOs. The overall goal of the Policy is ‘to integrate fully persons with disabilities in all aspects of life thereby equalizing their opportunities in order to enhance their dignity and well-being so that they have essentials of life’.

The Policy has seven main objectives: to formulate strategies towards disability prevention, rehabilitation and equalisation of opportunities for PWDs; to support community-based service delivery, in collaboration with local and international development agencies and organisations; to promote efforts that encourage positive attitudes towards children, youth, women and adults with disabilities; to develop programmes that alleviate poverty amongst PWDs and their families; to put in place programmes that create greater awareness and conscientiousness of communities and government relating to disability; to strengthen the National Advisory and Coordination Committee on Disability Issues (NACCODI); and to mainstream disability in the social, economic and political agenda of development programmes. It has a number of policy statements that apply to specific areas or sectors, which include rehabilitation, accessibility, transport, information and communication, education and training, and self-representation and participation.

  • Special Needs Education Policy, 2007

The Special Needs Education Policy (SNE Policy) provides for the policy approach relating to the education of PWDs in Malawi.18 The Policy contains relevant concepts and definitions. However, it does not mainly use the concept of inclusive education but special needs education (SNE) in reference to the education of PWDs. The Policy has clear goals, a mission, a vision, and objectives. Its objectives include: Providing education and training to learners with special educational needs (SEN); ensuring equitable access for all learners with SEN; providing educational facilities with needed supportive provisions; ensuring accommodating learning environments for all learners with SEN; and increasing SNE services provisions. The SNE Policy also contains ten guiding principles for its implementation. It identifies eight major components of SNE that include early identification assessment and intervention; advocacy; care and support; management, planning, and financing; access; quality; equity; and relevance. For example, the policy area relating to access is informed by the understanding that ‘the education system should encourage all individuals who have special needs to enrol in school and to facilitate the effective participation in all learning activities’. On its part, the policy area of equity seeks to ensure the elimination of gaps between learners with SEN and those without; while the policy area of relevance aims at ensuring that learners with SEN are provided with an education that will adequately prepare them to participate in social and economic activities. The SNE policy further aims at overcoming SNE implementation challenges that include financial constraints, physical environmental considerations, attitudinal barriers, and limited capacity in training specialist personnel.

6.2 Does Malawi have policies and programmes that indirectly address disability? If so, list each policy and describe how the policy indirectly addresses disability.

Malawi has few policies/programmes that also address disability despite being adopted for other purposes as opposed to specifically deal with disability. These are usually in form of sectoral policies such as education and youth policies.19

  • National Youth Policy

The rationale for the adoption of the National Youth Policy seeks to provide ‘a framework with guidelines for the facilitation of meaningful youth development programs and services with full participation of the young people themselves at all levels’.20 It mentions youth with disabilities amongst the special groups that will be ‘given attention’ in implementing the Policy’s target areas. However, it does not clarify how this will be done. The Policy recognises the right to freedom from discrimination as one of its eight principles. The relevant principle explicitly recognises the duty to protect the youth from disability based discrimination. It further provides that the youth are entitled to enjoy all the rights in the CRC and the Constitution of Malawi.

7 Disability bodies

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

Malawi does not have any official body that specifically addresses violations of the rights of PWDs.

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

The Malawi Disability Act confers power on the responsible Minister to establish institutions and committees for purposes of the proper and effective administration of the Act. It is unlikely that such administrative body would address rights violations. The Act also requires the Minister to establish a National Advisory and Coordinating Committee on Disability Issues (NACCODI), which will be the official body on disability affairs. According to section 5 of the Act, the body will have functions that seek to provide a forum for all key stakeholders on disability issues such as disability mainstreaming; make recommendations to government on best practices regarding disability policies, legislation and programmes; and oversee the implementation, monitoring and evaluation of disability-related programmes.

On its part, the Equalisation Policy requires the Malawi Council on Disability Affairs (MACODA) to regulate the work of disability organisations; implement government policy on disability issues and register NGOs dealing with disability issues.

8 National human rights institutions, Human Rights Commission, Ombudsman or Public Protector

8.1 Does Malawi have a Human Rights Commission, Ombudsman or 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, the Ombudsman or Public Protector of Malawi has ever addressed issues relating to the rights of persons with disabilities.

The Constitution established the Malawi Human Rights Commission (MHRC) to address the violations of human rights of all persons, including PWDs. There is

also the Human Rights Commission Act,21 which makes provision for matters relating to the status and functioning of the MHRC. Amongst others, the Act expects the MHRC ‘to promote more particularly the human rights of vulnerable groups, such as children, illiterate persons, persons with disabilities and the elderly’.22

The Constitution also established the Office of the Ombudsman with similar functions. The Constitution further requires allegations/complaints regarding threats to or violations of human rights to be brought before the courts or the MHRC or the Ombudsman. However, the two institutions are yet to be involved in disability rights litigation.

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

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

At national level, most of the DPOs work under one umbrella organisation known as Federation of Disability Organisations in Malawi (FEDOMA), which was founded in 1999 to provide a unified voice for all persons with disabilities in Malawi. FEDOMA’s objectives include promoting and advocating for rights of people with disabilities; coordinating and strengthening the capacity of the affiliated DPOs; and advocating for and monitoring the equalisation of opportunities for people with disabilities as stipulated in the United Nation’s Standard Rules. The DPOs listed in this section below work with FEDOMA.

Apart from FEDOMA and its affiliates, there are also a number of community based organisations (CBOs) that deal in disability issues. For example, the Association of Early Childhood Development lobbies district councils, local and international organisations to invest in childhood development. Most CBOs work with the Government Department of Social Welfare to ensure the protection of the interests of PWDs.

Although most DPOs are actively involved in lobbying and advocating for disability rights, their work suffers due to lack sufficient funds. Most DPOs often depend on funds from international partners and work comes to a halt if they are not funded. In addition, the grants are often tied to particular projects and thus there is no flexibility as to what they should do when they get the funds.

The following are the DPOs that are affiliated to FEDOMA:

  • Malawi Union of the Blind (MUB)

The Malawi Union of the Blind is a non-governmental organisation that deals with the blind and persons with visual impairments broadly. Since its establishment, MUB has opened up more than 19 district-based branches with about seven thousand registered members. The organisation has a diversified range of programmes in areas such as health, education, rehabilitation of the rural blind women, advocacy on HIV/AIDS, sexual and reproductive health rights.

  • Disabled Women in Development (DIWODE)

DIWODE was established in 1996 to fight for the rights of women with disabilities so that they may participate in all aspects of development and become self-reliant. It strives to achieve its objectives by conducting training in business skills and helping women write proposals for securing funds. DIWODE also holds awareness meetings meant to encourage growth of self-confidence amongst women with disabilities.

  • Malawi National Association of the Deaf (MANAD)

MANAD is an organisation of the deaf formed in 1992 and registered with the government in 1996. It aims at promoting the use and acceptance of sign language in interpretation, encouraging education and career opportunities for the deaf and promotion of welfare of the deaf in various social and economic aspects.

  • Malawi Disability Sports Association (MADISA)

This organisation was established in 1998 to promote sporting activities for (PWDs) in Malawi. For example, it received funds to assist with the training of PWDs to participate in the 2012 Paralympics. MADISA has 562 registered members from Chiradzulu, Mulanje, Blantyre and Lilongwe districts.

  • Parents of Disabled Children Association in Malawi (PODCAM)

This is an organisation for parents of children with disabilities. It aims at sensitising its members, teachers and other members of the community on disability issues. It accords the parents a platform to share their experiences and promote educational opportunities for children with disabilities. PODCAM is currently working with a total of 3214 children with various disabilities.

  • The Albino Association of Malawi (TAAM)

The Albino Association of Malawi was registered in 1997 with the aim of addressing the plight of people living with albinism. TAAM lobbies the private sector and government to mainstream albinism issues and to recognise albinism as a disability.

  • Association of the Physically Disabled in Malawi (APDM)

APDM was established in 1999 to empower people with physical disabilities to become self-reliant and to participate fully in social life at the national level. The organisation has members from Nkhotakota, Mulanje, Balaka, Neno, Lilongwe and Mangochi districts.

  • Disabled Widows Orphans Organizations of Malawi (DWOOM)

This organisation was formed to promote the rights of widows and orphans with disabilities and also to provide them with skills that will enable them to economically become self-reliant. The organisation has its headquarters in Rumphi in the northern part of Malawi, and it is currently constructing a vocational training centre which will impart artisan skills to its members.

  • Visual Hearing Membership Association (VIHEMA)

VIHEMA was registered on 10 June 2008 to advocate for the rights of the deaf and blind. Its vision is to see the deaf and blind accepted and given an opportunity to participate in national development. It does this by raising awareness on needs, problems, limitations, potentials and rights of deaf and blind people so as to change society’s negative attitude towards them.

10 Government departments

10.1 Does Malawi have a government department/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).

(See generally section 7.2 above)

Malawi has a specific Ministry that is responsible for disability issues, namely, the Ministry of Gender, Children, Disability and Social Services.23 The Ministry is responsible for coordinating, monitoring and evaluating the implementation of policies on disability and the elderly, legislation, programmes, and services delivery. Furthermore, the Disability Act establishes NACCODI as the government’s official body on disability affairs.24 There is also MACOHA, which was established under the HPA of 1971 to act as the government’s agent in respect of the affairs of PWDs. According to section 10 of the HPA, MACOHA’s functions include: administering vocational and special training centres for PWDs; administering rehabilitation services for PWDs; and administering services for the care and welfare PWDs. Malawi Against Physical Disabilities (MAP) is another important government agency, which was formed in 1979. It specialises in providing rehabilitation services to PWDs; the early identification of disabilities and interventions; disability awareness and training for general medical staff and health workers; and the support and training of parents of children with disabilities.

11 Main human rights concerns of people with disabilities in Malawi

11.1 Contemporary challenges of persons with disabilities in Malawi (for example, in some parts of Africa ritual killing of certain classes of PWDs, such as people with albinism, occurs).

(See 11.2 below)

11.2 Describe the contemporary challenges of persons with disabilities, and the legal responses thereto:

PWDs in Malawi experience discrimination from birth or from the moment the person acquired the disability. Discriminatory practices subsist in all aspects of the

society.25 In most Malawian societies, the birth of a child with disability is considered a tragedy.26 PWDs are identified as ill and different from other persons and consequently their prime predicament becomes exclusion which translates into difficulty in accessing fundamental social, political and economic rights.27 According to the Equalisation Policy, many PWDs make their way through life impoverished, abandoned, uneducated, malnourished, discriminated against, neglected and vulnerable.28 Being a person with a disability in Malawi entails exclusion from essential services; lack of the protection of the family and community; clear and present risk of exploitation and abuse; and ultimately a daily struggle for survival.29 Although all disability matters are under the purview of the Ministry of the PWDs, the most comprehensive compilation of the government’s commitment to disability issues before the enactment of the Disability Act was the Disability Policy, which seeks to simultaneously respond to the challenges and needs of the PWDs and promote equality of opportunities.30 With regard to legal responses for addressing discrimination against PWDs, it is regrettable that the Disability Act does not impose the obligation to provide reasonable accommodation in ensuring equality and non-discrimination. This is because, amongst others, the Act (in section 2) does not define discrimination as including the denial of reasonable accommodation. In fact, the Act does not require the provision of reasonable accommodation in any context or in realising any right (such as education or employment). Thus it is unlikely that the Disability Act would provide an adequate legal tool/response for addressing discrimination against PWDs due to this drawback.

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

The Constitution guarantees political rights to all persons, including PWDs, in section 40. Since the Constitution prohibits disability based discrimination in section 20(1), this right is required to be exercised by PWDs on an equal basis with others. Hence, the Constitution affords every person the right to form, to join, to participate in the activities of, and to recruit members for, a political party; and to participate in peaceful political activity intended to influence the composition and policies of the Government.31 The Constitution also provides that every person shall have the right to vote, to do so in secret and to stand for election for any elective office.32

Above all, the Disability Act in section 17 guarantees PWDs the right to participation in political and public life through deliberate policies and measures. Thus the government is required to guarantee participation in political and public life by PWDs. In addition, section 18 recognises the right to non-discrimination in political and public life, including sanctions/penalties for violation.

However, the drawback is that while PWDs are guaranteed these political rights; when they actually vie for political office in competition with people without disabilities, the electorate tends to favour the latter. This has to do with societal negative attitudes towards PWDs. Therefore, it is in the actual voting process that improvements need to be considered given that barriers for PWDs still exist.33 In the light of these barriers, the Disability Policy intends to facilitate the establishment of mechanisms to improve access to election and polls by PWDs and also empowering the PWDs through counselling, education and training coupled with public awareness campaigns.34 The Disability Act also envisages deliberate policies and measures by government to guarantee participation in political and public life by PWDs.35

11.4 Are people with disabilities’ socio-economic rights, including the right to health, education and other social services protected and realised in Malawi?
  • Education

According to the Equalisation Policy, 98 per cent of children with disabilities receive no formal education and even where schools are physically accessible, many children with disabilities remain excluded. This is because parents may fear that the child will not cope or that disclosure of a child with a disability will stigmatise the whole family and affect the marriage prospects of siblings. Other parents also consider that ‘investment’ in a child with a disability is not worthwhile.36 In terms of vocational training, it is estimated that only 5 per cent of PWDs in need of vocational training and welfare services receive the training.37

Another obstacle to the education of PWDs in Malawi is the lack of SNE or inclusive education facilities. In view of this, Malawi developed the SNE Policy in 2007 (discussed above).

On its part, the Disability Act recognises the right to education and training of PWDs, which includes inclusive education; prohibits discrimination on the basis of disability in education; and prescribes penalties and sanctions for violation of the right to freedom from discrimination in education (as discussed above).38 The Equalisation Policy also makes provision for further interventions to facilitate the education of PWDs apart from developing SNE. These include the design and development of appropriate technologies, assistive devices and learning; provision of free appropriate technology, equipment and resources to assist boys and girls, women and men with disabilities with their learning needs; and promoting awareness amongst parents or guardians on the need to send children with disabilities to school.39 However, the main obstacle to the education of PWDs in Malawi is that despite the Disability Act recognising inclusive education, Malawi continues to utilise integrated and special schools over inclusive schools in practice contrary to the pertinent international standards.40

  • Health

Apart from health centres being physically inaccessible and situated far apart, health workers discriminate against PWDs. Healthcare information is provided in formats which are inaccessible to PWDs, perhaps due to the fact that they are not uniquely targeted for health education.41 The government seems to be cognisant of this state of affairs and is currently directing the Ministry of Health to ensure the following: promote prevention and occurrence of disabilities; provide early detection and intervention services with regards to disability; provide medical rehabilitation services; and provide specialised training in the area of disability.42 In addition, the Disability Act guarantees PWDs the right to access healthcare services and the right to freedom from discrimination in healthcare and rehabilitation services, including sanctions/penalties for violation.43

  • Social services

The Disability Act recognises the right of PWDs to an adequate standard of living and social protection in section 14 (as discussed above). The section obliges government to ensure adequate standards of living for PWDs and their families, including ensuring that they have access to adequate food, clothing and housing.44 Above all, the provision expressly obliges government to ensure equal access by PWDs to appropriate and affordable social services and to social support programmes.45 In addition, the Act prohibits discrimination on the basis of disability in all matters relating to social support, including access to appropriate and affordable social services in section 15.46 Therefore, it can be observed that in terms of the Disability Act, PWDs in Malawi have the right to social services.47

11.5 Specific categories experiencing particular issues/vulnerability:

While disability and its exigencies is a cross cutting issue, women and children remain the most adversely affected. For example, children with disabilities are almost twice as likely not to receive any primary education whatsoever. This problem is further compounded when the gender differentials are taken into account with the effect that 41 per cent of girls with disabilities never attend school compared to 29 per cent of boys with disabilities.48 Children are further abused in the form of forced imprisonment. For example, a parent who has a child with disability will send the other children to school while she/he locks up and neglects the child with a disability in the house because the parent cannot afford to stay home and look after such child as the parent has to go and fend for the rest of the family.49 This practice is common in Malawi.50

Women in Malawi are generally victims of gender based violence and disability exacerbates the situation as they are more defenceless and vulnerable. In addition, women with disabilities are often regarded as mere ‘sex objects’ rather than marriage partners. This results in a situation where men will merely be intimate with these women, leaving the probability of pregnancy.. The men fail to formalise the relationship or even support the women (or children) physically, emotionally or socially.51

The other main legal setback is that the Disability Act has not made specific provision in respect of women, children and older persons with disabilities or albinos.

12 Future perspective

12.1 Are there any specific measures with regard to persons with disabilities being debated or considered in your country at the moment? What legal reforms are being raised? Which legal reforms would you like to see in your country?

Although the Disability Act has been passed (which in itself is a significant milestone considering that it took almost eight years before it was actually enacted into law by Parliament), PWDs in Malawi continue to face multiple challenges. At a general level, it seems the Government of Malawi’s commitment to properly and comprehensively respond to the needs of PWDs is not ‘deep’ and consistent. Indeed, issues of disability tend to be benignly invisible in major Government policy documents. For example, there is no mention of the Government’s strategy with regard to disability issues in the Malawi Growth and Development Strategy (MGDS). (The MGDS is the Malawi Government’s overarching medium term development strategy for Malawi and it is designed to help Malawi attain its long term development goals as articulated in the Malawi Vision 2020). The vulnerability of PWDs is mentioned under social support and disaster risk management themes but the MDGS does not provide how they will help people living with disabilities as a special group. This can be argued as one of the reasons why the government has not been forthcoming with comprehensive projects that specifically target PWDs.

With regard to legal reforms, Malawi could consider reviewing the Disability Act to, amongst others, make specific provision for the rights of women, children and older persons with disabilities and albinos. As discussed in 11.5 above, the Disability Act fails to make such provision. In addition, (as discussed in 11.2 above) the Disability Act does not currently impose an obligation to provide reasonable accommodation in ensuring equality and non-discrimination for PWDs. This is because the Act merely provides for the definition of reasonable accommodation (in section 2) but it does not recognise the denial of reasonable accommodation as constituting disability based discrimination.52 Accordingly, Malawi should revise the Act and/to include the denial of reasonable accommodation in the definition of discrimination. This would strengthen the ‘legal tools’ for ensuring freedom from discrimination and substantive equality for PWDs in Malawi.

Nonetheless, the enactment of the Disability Act presents clear normative standards against which the government can be judged in terms of the steps that it will be taking towards the realisation of the rights of PWDs in the country. Thus the ‘appropriate’ implementation of the Act coupled with the suggested revisions could offer hope for PWDs in Malawi.

 


1. National Statistical Office (NSO) Population and Housing Census 2008: Main report (2008) 24.

2. Act 22 of 2010.

3. Act 8 of 2012.

4. Act 3 of 2013.

5. The Act is discussed in 4.1 below.

6. See 4.1 below for further discussion of the Act’s non-discrimination and other human rights provisions.

7. Prior to its enactment, disability issues were provided for under the Handicapped Persons Act (HPA) enacted in 1971.

8. See sec 4(c) of Third Schedule.

9. See Malawi Constitution, sec 211(1); Chihana v Republic [1992] 15 MLR 86 (Supreme Court).

10. See sec 211(2), which provides that: ‘Binding international agreements entered into before the commencement of this Constitution shall continue to bind the Republic unless otherwise provided by an Act of Parliament’. See also DM Chirwa Human rights under the Malawian Constitution (2011) 29-30.

11. n 9 above.

12. Civil Cause No 542 of 1995.

13. Malawi ratified ILO Convention 158 on 1 October 1986. See also Banda v Dimon (Mw) Ltd [2008] MLLR 92; Malawi Telecommunications v Makande [2008] MLLR 35.

14. Part 4 runs from sec 6 to sec 26.

15. Chapter 34:02 of the Laws of Malawi.

16. See generally sec 55(1), which provides in part as follows:

‘(1) Any person suffering from mental disorder or who suffering from mental disorders is being treated as such, shall be entitled the following rights:

(a) to be treated in a least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs, taking into account the need to protect the physical safety of others;

(b) to the best available mental healthcare, which shall be part of the health and social care system;

(c) to be treated in a humane manner and with respect for the inherent dignity of the human person; (d) to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment;

(e) not to be discriminated against on the grounds of mental disorder; and

(f) to enjoy all the rights provided in the Constitution and any other written law ... .’

17. Malawi Government National Policy on the Equalisation of Opportunities for Persons with Disabilities (2005) (the Equalisation Policy).

18. Malawi Government National Policy on Special Needs Education (Revised) (2007).

19. The education polies include the National Education Sector Plan 2008-2017: A statement (2008).

20. Malawi Government (Ministry of Youth Development and Sports) National Youth Policy: Youth - The Nation today and tomorrow (2010).

21. Act 27 of 1998.

22. See sec 13(1)(c).

23. Prior to June 2014, disability issues were under the then Ministry of Disability and Elderly Affairs.

24. See 7.2 above for the discussion relating to NACCODI.

25. Interview with Naomi Kaluwa, Projects Manager of the Disability Rights Unit for the Federation of Disability Organisations in Malawi (FEDOMA), at FEDOMA head office, Blantyre, 5 June 2013. Naomi Kaluwa stated, amongst others, that she has handled over 40 cases where PWDs were complaining of unfair and discriminatory treatment at the hands of several employees.

26. Equalisation Policy (n 17 above) 4.

27. Equalisation Policy (n 17 above) 1.

28. As above.

29. As above.

30. See Leonard Cheshire Disability & Inclusive Development Centre Disability policy audit in Namibia, Swaziland, Malawi, and Mozambique: Final report (2008) 68-70.

31. See sec 40.

32. Sec 40(1)(a), (c) & (3).

33. Equalisation Policy (n 17 above) 6.

34. Equalisation Policy (n 17 above) 17.

35. Sec 17.

36. Equalisation Policy (n 17 above) 1.

37. Leonard Cheshire Disability & Inclusive Development Centre (n 30 above) 66.

38. Disability Act, secs 10 & 11.

39. Equalisation Policy (n 17 above) 14.

40. See generally EM Chilemba ‘The right to primary education for children with disabilities in Malawi: A diagnosis of the conceptual approach and implementation’ in African Disability Rights Yearbook (2013) 3, 18 & 26; A Chavuta et al Baseline study report on inclusive education in Shire Highlands Education Division in Malawi (2008) 12.

41. Equalisation Policy (n 17 above) 1.

42. As above.

43. Secs 6 & 7.

44. See sec 14(1)(a).

45. See sec 14(2)(a) & (b).

46. Sec 14(1)(b) further requires government to ensure non-discrimination in the realisation of the right to adequate standards of living.

47. It is also noteworthy that the Disability Act provides for the establishment of a disability trust fund by the responsible minister for the purpose of supporting the implementation of disability programmes and services. See secs 28 & 29.

48. Leonard Cheshire Disability and Inclusive Development Centre (n 30 above) 64.

49. Interview with Mrs Botomani, Principal Child Rights Officer, at Malawi Human Rights Commission, Blantyre 5 June 2013.

50. Interview with Mrs Botomani (n 54 above). Naomi Kaluwa of FEDOMA (n 25 above) confirmed this phenomenon.

51. Interview with Naomi Kaluwa (n 25 above).

52. See generally Chilemba (n 40 above) 21 & 22.

Open Access Policy

The African Disability Rights Yearbook is an Open Access Journal and provides immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge. In accordance with the definition of the Budapest Open Access Initiative all content published by the African Disability Rights Yearbook is made free to users without any registration, subscription or other charges. Users are permitted to read, download, copy, distribute, print, search, or link to the full text of these articles, or use them for any other lawful, non-commercial purpose, without asking prior permission from the publisher or the author.