• Shimelis Tsegaye Tesemma
  • BSc (Addis Ababa University), MA (Addis Ababa University), DEd (University of South Africa),
  • Head of the Child Protection and Development Programme at the African Child Policy Forum (ACPF), responsible, amongst others, for pan-African disability projects


Summary

The article presents the dominant economic discourses of disability in Africa cutting across both charity and medical models. Within such discourses, persons with disabilities are depicted as unproductive and as dependents of the welfare system, and by extension, as dependents of non-disabled tax payers or non-disabled benefactors. This perceived dependence is fuelled by the vicious nexus between poverty and disability where poverty triggers disability and disability in turn leads to further impoverishment. The article also discusses the pros and cons of economic policy instruments that aim to economically empower persons with disabilities, including by increasing the demand for disabled workers via financial and tax-related incentives to employers. It focuses, in relatively greater detail, on the dilemmas facing persons with disabilities in accessing social welfare at the risk of facing discrimination by the disability-insensitive public. The article discusses the employment challenges faced by and opportunities presented to persons with disabilities, including in the area of self-employment and entrepreneurship. The latter is related, amongst others, to efficiency/productivity and human capital considerations that underlie investments in education, which might exclude children with disabilities from education services now and in the future from employment opportunities later in youth and adulthood. The article suggests a shift in both mindset and practice away from charity/economic dependence discourses to an independent living paradigm, where the focus is on the socioeconomic self-reliance and independence of persons with disabilities.

1 The multiple faces of the ‘economic discourse’ of disability: Introduction

The article concentrates, on (categorical) social welfare that targets persons with disabilities and the dilemmas associated with accessing social welfare, namely that of claiming (mostly through medical/scientific certification) one’s ‘injured’ identity at the risk of facing discrimination by the disability-insensitive public. The article ends with some suggestions on possible ways of advancing economic emancipation, empowerment and independent living of persons with disabilities.

2 Disability and poverty: The nexus

Poverty1 and disability are intertwined. Disability often leaves people without education and employment or with low paid jobs, hence it is a trigger of poverty, which in turn exacerbates peoples’ exposure to disablement.

Poverty can delay people from seeking medical help when sick or prevent women from getting access to skilled birth attendance or pregnant women from getting badly-needed mineral supplements.2 Such delays might also be caused by the distant location of health facilities combined with lack of money for transport and treatment. For instance, Asphyxia during birth, often resulting from the absence of a skilled attendant, leads to an estimated 1 million children with learning difficulties and impairments such as cerebral palsy.3 About 70 per cent of cases of spina bifida - a disability that affects from 1000 to 3000 children per million in Africa - are preventable if folic acid supplements are taken by women before and after pregnancy and during the first trimester.4 Similarly, maternal iodine deficiency leads to 18 million babies being born with mental disabilities annually and vitamin A deficiency leaves about 350000 children blind in developing countries.5

Poor people also live under worse hygienic conditions (lack of sewage systems, lack of access to clean water and nutritious food),6 which may compound their risks of being disabled. Similarly, children living in poor, urban slums are exposed to the debilitating effects of some poisonous chemicals. In many African cities, urban slum dwellers come into contact with stockpiles of obsolete pesticides such as Polychlorinated Biphenyls (PCBs), dioxins, and dichlorodiphenyltrichloroethane (DDT) and e-waste that contaminate soil and water, causing reproductive and developmental disorders and damaging the nervous system.7 Exposure to heavy metals, also common in urban waste dumpsites, poses serious threats, particularly to children and during foetal development.8

Equally important, disability leads to poverty, evident in the fact that persons with disabilities account for the predominant majority of the world’s poor. The Convention on the Rights of Persons with Disabilities (CRPD), in its preamble, not only recognises the fact that the majority of persons with disabilities live in conditions of poverty but also calls for addressing the negative impact of poverty on persons with disabilities.9

About 20 percent of the poor in developing countries are reportedly disabled.10 While one in six or seven of the world’s population is disabled,11 one in five of the world’s poor lives with a disability.12 This may be due to exclusion from education and employment opportunities, low-pay, and a very high cost associated with care, mobility and support facilities and services. Further, according to Slee:13

The impoverishment of disabled people revolves around segregation from the paid labour market, enforced dependency, the high costs of support and hosing for independent and community living, and the pervasive impact of economic rationalism on the public policy and welfare provision.

In addition, persons with disabilities have extra needs, such as medicines, hearing aids, glasses, sticks, wheelchairs, special diets (due to allergies), extra clothing, extra hearing, special beds, guide dogs, readers for the blind, incontinence pads, breathing apparatuses and the like. Persons with disabilities also have to pay for adaptations to the home, or personal care, as well as for items such as individualised cars and freezers, which are otherwise considered a luxury for a non-disabled person.14 Persons with disabilities also have to pay more for some of the basic items. For instance, people with limited mobility may have to use the nearest shops, rather than the cheapest shops.15 These accommodation requirements translate into direct financial costs that drain limited available resources, hence compounding their poverty. For example, households with persons with severe or very severe disabilities in Sierra Leone spent on average 1.3 times more on health care than their non-disabled counterparts. 16

To do the same things as an able-bodied person, a person with physical disabilities may need more income ... With the same level of income a disabled person may be able to do far fewer things, and may be seriously deprived in terms of the capabilities that he or she has reason to value.

The mainstreaming of disability in the poverty reduction agenda is therefore an urgent development priority. Persons with disabilities need to be given access to education and employment opportunities without discrimination. Awareness should be built around issues that impede the socioeconomic participation of persons with disabilities and persons with disabilities should be given greater access to community activities and social networks. Factors that compound the vulnerability of persons with disabilities to deprivation should be addressed through appropriately designed social protection measures. Legislative provisions that uphold the right to employment opportunities should be accompanied by concrete programmatic and budgetary responses, including those that ensure accessibility of the work environment.

The socio-cultural barriers that resulted in chronic poverty and economic deprivation of persons with disabilities have left many of them with no economic options other than begging, and its attendant debilitating influences. Now with the introduction of more and more progressive national legislation and greater awareness around the issue of disability, especially following the adoption of the CRPD, encouraging efforts are being made in many countries to ensure that persons with disabilities enjoy the right to access social welfare benefits as well as the right to opportunity of employment (including self-employment). It is to the latter issue that we now turn.

3 Employment of persons with disabilities

3.1 Formal employment and its challenges

Given their often limited access to education and the attitudinal and physical barriers to overcome, people with disabilities are more likely to be unemployed.17 The International Labor Organization (ILO) estimates that the level of unemployment worldwide amongst disabled people is two to three times higher than for other people.18 In some countries one in every in six to eight persons with disabilities is unemployed. According to the 2005 figures, only 12,4 percent of persons with disabilities in South Africa were employed.19 There is a complex picture when attempts are made to disaggregate the employment pattern by disability type. For example, a study found that people with intellectual impairments were three to four times less likely to be employed than people without disabilities. Besides being less likely to be competitively employed and more likely to be employed in segregated settings, persons with intellectual impairments were also more likely to have more frequent and longer periods of unemployment.20

The low level of employment of persons with disabilities may be due to a lack of adequate education or training, preconceived ideas about people with disabilities on the part of employers, lack of physical accessibility to the workplace, and lack of adequate transportation.21 Persons with disabilities may also face physical barriers to job interviews, to the actual work setting, and to attending social events with fellow employees22 as well as facing obstacles to accessing labour market information in disability-friendly formats.23

Perhaps the most important challenge relates to the tendency of employers considering the employment of persons with disabilities as a less productive venture, or as one that entails high ‘maintenance’ costs. Although data for Africa is hard to come by, studies elsewhere have revealed a positive rate of return of investments in the employment of persons with disabilities. In the Six Mary’s Place guesthouse project, for every £1 invested in Six Mary’s Place Guest House, almost £6 is returned in social added value, in the form of savings in mental health and welfare benefits, new tax income, and increased personal income.24

In cases where persons with disabilities get employment, they are often paid very low salaries25 and are less likely to get promoted.26 The flexibility of work schedules and other aspects of work preferences of persons with disabilities, including having proper time to prepare for work, to travel to and from work, and to deal with health concerns, often translate into low paying contingent and part-time work arrangements.27

3.2 Self-employment and its challenges

Whenever formal employment becomes an uphill struggle, persons with disabilities often resort to self-employment, which requires, amongst others, a start-up capital, which can be obtained from family savings, grants and loans from relatives, moneylenders, non-governmental organisations (NGOs), microfinance institutions or banks.28 Given the predominately poor status of disabled people, savings are less likely to present themselves as a source of capital, and people with disabilities might turn to microcredit schemes. But, even the latter option has not been very successful. According to Handicap International, persons with disabilities constituted less than 0,5 per cent of the clients of microfinance services in developing countries. 29

A number of factors contribute to the limited access to microcredit of people with disabilities, such as the practice of relying on personal skills and character in evaluating the viability of loans,30 and the related attitude of considering persons with disabilities as unworthy of credits.31 Further, those socioeconomic factors that exclude poor people from such services such as ‘elite capture’ also exclude people with disabilities, and at a greater rate. This is partly tied to the tendency of considering persons with disabilities as less productive and hence less capable of paying back. But there are other equally important factors, including those related to the design of the credit schemes. The first of these factors relate to lack of sufficient start-up capital, credit history and being unable to produce the collateral required,32 which is also linked to lack of flexibility in these credit operations to facilitate inclusion of persons with disabilities.33 The second set of factors are attitudinal and include stigmatisation and discrimination, the reluctance to buy goods and services from people with disabilities, leading to their lack of self-confidence and self-exclusion, as well as negative self-image and lack of confidence that is inculcated from a lifetime of being denigrated.34

The third set of factors are impairment-related such as mobility and transportation challenges and the attendant difficulties to make weekly repayments and attend meetings and market products, further compounded by inaccessible buildings and marketplaces, contributing to their limited participation in entrepreneurship education and training.35 Difficulties in keeping accounts, compared to non-disabled people, are also cited as a challenge especially facing persons with visual impairments.36

3.3 Employment of persons with disabilities: Opportunities

In light of these and related employment challenges, the CRPD obliges states parties to protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value. It also urges states parties to enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training. The Convention calls for the promotion of employment opportunities, including self-employment and entrepreneurship, and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment. 37

At the national level, with a view to improving access to employment opportunities of persons with disabilities, some countries have put in place legislation to prohibit discrimination to employment or to equal pay on the basis of disability, while others have more progressive legislation that requires appropriate steps be taken to ensure that persons with disabilities get access to gainful employment, including access to microfinance and income-generation schemes.

Non-discrimination is often addressed through constitutional provisions in the majority of countries and through disability-specific legislation such as those in effect in Ghana, Kenya, Uganda and Sierra Leone. Other countries have taken legislative steps to address some of these obstacles, through non-discrimination provisions contained in generic employment equity legislations such as in South Africa.

There are, for example, laws that entitle employers of persons with disabilities to tax exemptions - often covering a wide range of areas. The Ugandan Persons with Disabilities Act of 2006 entitles private employers who employ ten or more persons with disabilities either as regular employees, apprentices or learners on a full time basis to a tax deduction of 15 percent of all payable tax upon proof to the Uganda Revenue Authority.38 The Act requires employers to carry out appropriate modifications in their work premises to facilitate the employment of persons with disabilities, and claim tax exemption on any costs incurred as a result of such modifications.39

Kenya’s Persons with Disabilities Act, 2003 potentially increases not just the demand for disabled employees, but also accessibility of the work/office environment for disabled customers. The Act entitles a private employer who improves or modifies his physical facilities or avails special services in order to provide reasonable accommodation for employees with disabilities for additional deductions from his net taxable income equivalent to 50 percent of the direct costs of the improvements, modifications or special services. 40

Similarly Ghana’s Persons with Disability Act 715 of 2006 not only requires the government to grant a person who employs a person with a disability an annual tax rebate of the taxable income in respect of each person with a disability employed but also allows tax exemption to manufacturers of technical aids or appliances for use by persons with disabilities.41 Section 10(2) of the Act requires the government to grant special incentives to persons with disabilities engaged in business and also to business organisations that employ persons with disabilities. Section 11(a) and (b) requires employers to provide the relevant working tools, and appropriate facilities required by the person with disabilities for the efficient performance of the functions required by the employment. These provisions emanate from the prevalent perception amongst employers that ‘employing persons with disabilities ... will necessarily entail high costs for the employer’.42

The good intentions of these provisions notwithstanding, financial incentives to increase the demand on disabled labour might connote tendencies of commodification43 of disability, as the willingness to employ a person with disability or to manufacture assistive and adaptive devices might be triggered more by the anticipated financial gain from the transaction than anything else.44 In other words, these discourses run the risk of approximating disability to just financial benefits. 45

On the employee side, there are some legislative examples that attempt to raise the take-home-pay of disabled employees, hence their quality of life. For example, section 12(3) of Kenya’s Persons with Disabilities Act46 states:

An employee with a disability shall be entitled to exemption from tax on all income accruing from his employment.

Although this is an attempt to raise the amount of take-home pay by exempting employees with disabilities from income tax provisions, it might also be argued that such a provision might deprive such a person the right to make contributions to the public good from which he/she is equally a beneficiary. The potential of such discourses to perpetuate the dependency myth surrounding persons with disabilities, namely that of considering the disabled as the tax payer’s burden cannot be denied.

Many countries also have specific measures, for example quotas, aimed at increasing employment opportunities for people with disabilities.47 In South Africa, the country’s National Skills Strategy, Sectoral Education and Training Authorities require the allocation of four per cent of traineeships to people with disabilities.48 The country also binds its government departments and state bodies to ensure that at least two per cent of their workforce must consist of people with disabilities. 49

The Code of Good Practice: Key Aspects on the Employment of People with Disabilities (Disability Code)50 - issued as required by the South African Employment Equity Act 55 of 1998 - requires employers to make ‘reasonable accommodation’ for people with disabilities, which will include the elimination of obstacles at the workplace and the introduction of positive measures to adapt policies, practices and the working environment in promoting the disability-accessibility of the workplace. The Code also provides for safeguards to be put in place against unfair discrimination throughout the full cycle of employment - from recruitment to promotions and termination of employment.51

On the self-employment front, some countries have attempted to address the factors that impede disabled peoples’ access to microfinance and loans by including them in the development and implementation of microfinance and income generating schemes as well as in the management of microfinance and vocational progammes. Malawi’s Technical, Entrepreneurial and Vocational Education and Training Authority Act 6 of 1999, for instance, requires a person with a disability be represented in the board of Technical, Entrepreneurial and Vocational Education and Training Authority (TEVETA).52

The Kenyan Persons with Disabilities Amendment Act 11 of 2003 (as amended in 2007)53 states:

The Minister responsible for matters relating to credit unions, co-operatives and other lending institutions, on the advice of the Council shall establish a scheme through which such institutions shall extend credit facilities to persons with disabilities.

Ghana’s Persons with Disabilities Act not only legislated the right to get access to loans of persons with disabilities, but also the right to be provided with appropriate training to start a business.54 According to section 13(1) of the Act,

Where the name of a person with disability remains on a job search list for more than two years, the Ministry shall take the name of that person off the list, and where applicable -

(1) Give that person appropriate training,

(2) Provide that person with necessary working tools and materials, and

(3) Assist that person to access loan capital for that person to start a business

Some countries have also implemented projects where persons with disabilities are included through their representatives. The Ethiopian Federation of Persons with disabilities and the National Union of Persons with Disabilities in Uganda were involved in the work of mainstream microfinance institutions to ensure better outreach of such services to disabled beneficiaries.55 To conclude, the limited access to employment opportunities of persons with disabilities is compounded by their lack of access to education services, which may be attributed to factors ranging from attitudinal barriers that consider children with disabilities as ‘uneducable’ to school-related factors such as physical and epistemic (subject matter/curricular content) accessibility challenges, and the ethos and philosophy of organisation of contemporary schools.56 The economic efficiency/future productivity rationale of investments in education also lies at the heart of this challenge. The next section takes a look at this aspect through an economic lens.

4 Economic efficiency discourse of education of children with disabilities

The economic efficiency argument - relating to the use of future productivity and rate of return logic in making investment decisions in the education of children with disabilities - assumes that the education of children with disabilities is very costly and cost-ineffective, when compared with the education of non-disabled children.

Existing schemes for funding education are dictated more by efficiency,57 and less by equity58 rationales, which in turn derive their inspiration from the current political ideology of education that envisions that the best quality education is a good to be rationed and competitively sought after, leading to increasing commoditisation and markertisation of education services. Education as a commercial commodity promotes (neoliberal) values of competitive individualism, separation, exclusion,59 and eventually inequality. As Rioux60 observes, the school system is one that perpetuates structural inequality being ‘an important pillar of the meritocracy’.61 The meritocracy is justified because social and economic efficiency and progress - presumed essential in any society - are dependent on searching and rewarding people whose natural capacity is the source of sustenance of the social wellbeing, culture and progress of society.62

In such a system where both excellence and failure are considered as individualised attributes,63 and where there is a competition amongst schools for enrolling exceptionally clever learners, learners with disabilities might be seen as ‘non-marketable commodities’.64 This is referred to by some writers as the ‘human capital approach’ - a reductionist notion that strips education of its basic purpose and substance and lends it an economic subservient role. Here, education’s function is limited to merely structuring the supply of qualified people over a long period in accordance with economic demands.65 In short, this approach emphasises the ‘economic value of education, the rate of return on schools and the productive utility of human knowledge’.66 Beiter acknowledges the significance of economic progress in creating the resources badly needed to realise rights, but at the same time cautions against seeing economic progress as the sole or the most important function of education. 67

Although the reduction of costs through the elimination of resource wastage and leakage is an important principle of efficiency, the tendency of making investment decisions in education solely on the basis of its rate of (economic) returns and future productivity estimations would have unwelcome effects for disabled learners who may not always be highly productive in economic terms.68 The economic efficiency argument would also trigger a resource prioritisation frenzy, whereby the financing of the education of disabled children - which may not necessarily pay off financially in the near future - might be considered an ‘irrelevant luxury’ in the face of competing demands for scarce resources for apparently more urgent demands such as food. This is observed by Mittler:69

To some such issues [related to the education of disabled children] may seem an irrelevant luxury when the day-to-day concerns of families with a disabled child are with the basic necessities of food and drink, the beliefs and superstitions of neighbours about disability and their inability to secure a school place for their child.

A further extension of this idea is the link between inclusive education reform efforts and future gains in productivity and wealth accumulation, as well as between inclusive education and reduction in future dependence on social welfare.70 Of course, empirical studies have established a clear link between education and future productivity and growth. For instance, it was estimated that a 20 per cent increase in the primary school enrolment would increase economic growth by 0,3 percentage points per year.71 Another estimate found that investment in one extra year of primary education will increase future productivity by 10 to 30 per cent. 72

Other studies have estimated the economic loss resulting from failure to provide education - also termed the economic cost of exclusion - and found that it is, in general, very costly.73 For example, the Gambia loses (in income terms) approximately 10 per cent of its Gross Domestic Product (GDP) by excluding so many children from education. In Mali and Nigeria, for example, the projected cost of non-school-going children is worth over two years of average GDP growth.74

These types of economic arguments seem to have formed part of the rationale for the (inclusive) education reforms of some countries.75 For instance, the White Paper on Education and Training76 has, years back, echoed the efficiency and productivity purpose of South African education:

The productivity of the system [of education and training] - what it produces in terms of personal learning, marketable skills, and examination results, in relation to what it has cost - is very low in much of the system. Improving efficiency and productivity is essential in order to justify the cost of the system to the public, to secure more funds for development when they are needed, to raise the quality of performance across the system, and thus improve the life chances of the learners.

The following provision of the Consultative Paper 1 (South Africa)77 juxtaposes the economic efficiency discourse with the human capital approach, as an apparent justification for the country’s inclusive drive:

Rates of return on a high per capita investment of public resources in, ‘special’ or ‘specialized’ schools are low, and few disabled learners are able to secure jobs on completion of learning. This is so since learning has until now not imparted the generic competencies that allow for transferable skills and lifelong learning, and few employers have taken the employment of the disabled as their responsibility.

On a similar note, White Paper 6 on Special Needs Education: Building on Inclusive Education and Training System78 promotes the education of disabled children with an eye on ensuring future productivity and economic efficiency and as a means of combating economic and charitable dependence:

Given the serious human resources constraints in the country and the demands for justice, there is an onus on the Government to ensure that all human resources are developed to their fullest potential. In the long run such a policy will lead also to a reduction in the Government's fiscal burden as the inclusive education and training system increases the number of productive citizens79 relative to those who are dependent on the state for social security grants.

White Paper 680 further states that:

... [t]he important features of this strategy are its emphasis on cost-effectiveness81 and exploiting the economies of scale that result from expanding access and provision within an inclusive education and training system. 82

The economic efficiency discourse is also echoed in the country’s Disability Strategy83 albeit shrouded in an emancipatory rhetoric where it states that ‘Access to ABET [Adult Basic Education and Training] is the key to the economic liberation of adults with disabilities’.

In spite of the good intentions of such arguments, experts caution against such orientations where economic productivity is considered as the sole or the most important function of education.84 They also warn against the reliance purely on the ‘economic value of education, the rate of return on schools and the productive utility of human knowledge’85 in making investment decisions. Katarina Tomaševski, the former Special Rapporteur of the Commission on Human Rights on the Right to Education, had the following to say:

To refuse to educate children with disabilities on the grounds that there is no evidence that such an investment would help eliminate poverty or enhance the rate of economic growth will be cruel ... no state admits to doing it. Nevertheless, children with disabilities may be excluded from school because providing wheelchair access might not be commercially viable,86 or because their learning is deemed not to yield a sufficient marginal return on investment. This type of reasoning challenges the very assumptions of human rights, namely that there should be equal human rights for all.87

In spite of the above challenges plaguing the funding of education of children with disabilities, the key to ensuring the full enjoyment of the right to education of disabled children is to acknowledge that access to publicly funded education services is a right that cannot and should not be calculated in terms of input-output terms.88 As Hegarty rightly observes, people should be able to enjoy their entitlement to the resources that their education requires, regardless of the fact that education may or may not succeed in making them employable or economically self-sufficient. 89

Thus, seen through a human rights lens, education should not be geared towards just economy-related knowledge but more importantly towards fostering the full development of human personality and towards strengthening respect for human rights. Education should not just prepare pupils to be wage earners and tax payers, but also for fulfilling their role, inter alia, as parents, as political activists, as agents of social cohesion and tolerance and as equal members of society.90 If the purpose of education falls short of the latter ideal, then it might run the risk of compromising inherent human dignity,91 as well as compromising the right to education of children with disabilities, especially those with severe impairments.

5 Social welfare and disability

5.1 Social welfare schemes for persons with disabilities and their impact

In some societies a work-based system emerges for those who can work and a needs-based system for those who cannot. Society then takes on an obligation to support those who may be excluded from the paid labour

mechanism,92 which translates into social welfare;93 in different countries, it is also termed (amongst others): a disability grant, ‘Invalid’s Pension’, or Disability Allowance.

Table 1: Social assistance programmes for disabled people in developing countries. 94 95

Country

Type

Transfer amount

Eligibility

Lesotho

Disability pension (cash transfer)

USD16.6 per month

Destitute and disabled

Mauritius

Basic Disability Pension

USD 82 per month

People aged 15-59 certified by a Medical Board as either permanently or substantially incapacitated to work to a physical degree of 60 per cent

Carer's Allowance

USD 50 per month

Paid to beneficiaries of the basic disability pension who need the constant care and attention of another person. The allowance is paid for children with disabilities younger than age 15 if their parents’ annual income does not exceed USD 4900.

Child Allowance

USD 31 per month for a child under 10; USD 29 for children aged 10 or older

Payable to the first three children of a basic disability pensioner. Children must be younger than age 15 (age 20 if a full-time student)

Carer’s Allowance for beneficiaries of Invalid Basic Pension

USD 42 per month

Beneficiaries of Invalid Basic Pension who need the constant care and attention of another person

Namibia

Disability grant (DG) and Blind person’s grant

USD 25 per month

Disabled and/or blind

South Africa

Disability grant - cash transfer (means tested)

Maximum USD 95 per month

Working-age adults unable to work due to disability, plus means test (permanent and temporary)

Care dependency grant - cash transfer

USD 77 per month

Primary carer of child with severe disabilities in need of full-time care plus means test

Some of the disability grants and benefits being implemented in various countries are very encouraging in terms of alleviating deprivation amongst persons with disabilities. Some have been more effective while others have been plagued by challenges, such as those related to the determination of eligibility, bureaucratic hurdles, and the high opportunity cost of accessing these benefits.

In terms of impact of social welfare grants, Marriott and Gooding conclude, on the basis of limited anecdotal evidence, that social welfare grants had a positive impact96 in terms of reducing deprivation, including in household health and economic status97 as well as having a positive impact on self-esteem by enabling persons with disabilities to contribute to the household budget. They also noted, however, that disabled people often lack control over spending of the grant.

At times, even with welfare grants, notwithstanding the mixed picture in terms of reducing deprivation, disability-related costs are so high that they offset any chances of coming out of poverty for the majority of the disabled population.98 A study in South Africa gives an indication of the size of the additional costs such as medical expenses and special foods of a little over half the grant amount compared to the disability grant amount, which is a maximum USD 95 per month.99 For instance, 31 percent of grant beneficiaries indicated that medical expenses with a mean amount of USD 15 were spent on medical expenses as a result of impairment, which also included an additional USD 6 on therapy or treatment, while 16 per cent indicated that they had to pay a mean amount of USD 9 a month to assistants or people who take care of them. Sixteen percent indicated that they regularly spend money on other expenses, such as nappies or special food, as a result of the beneficiary’s disability, averaging USD 14 a month.100

In 1998, Zimbabwe introduced a disability pension to blind and disabled people that amounted to USD 5 per month. But, the cost of a bus ride to the district welfare office to collect the grant for a blind person accompanied by an assistant amounted to 80 per cent of the benefit value.101

One of the rationales for having such types of categorical grants, with the potential to stigmatise persons with disabilities, emanated from the concern that disabled people often have limited access to mainstream social assistance schemes. The reason is that such schemes rely on means testing, which may not necessarily take into account the extra costs encountered by disabled people.102

5.2 Social welfare versus discrimination: Dilemmas of ‘injured’ identity and independent living

In addition to implementation challenges facing social welfare programmes, severe criticisms have also been levelled against social welfare benefits specifically targeted to persons with disabilities on account of their design and rationales. Most social welfare systems targeted for persons with disabilities rely on medical expertise and diagnostic examinations to determine eligibility. The person with a disability seeking the service is considered the patient, while the physician or rehabilitation counsellor is considered all-knowing and in control of making decisions he or she believes are in the best interest of the client or ‘patient’.103 The physician is assigned the role of ‘scientifically’ and medically (dis-)proving that the person is less productive or unproductive to be entitled for social welfare benefits, while the ‘patient’ or the ‘client’ is expected - indeed coerced - to passively and unquestionably accept what the professional advises to be in his/her best interests.104

According to Schweik, social welfare, itself is a more formalised, scientific and bureaucratic form of organised charity, executed under the auspices of professionals.105 For some, there is a thin line between begging for alms and social welfare. As some people with disabilities were left with no option but to exhibit their impairments106 to the gaze of the non-disabled public107 mostly on city streets to garner pity for alms, so too persons with disabilities seeking social welfare have to be gazed at by professionals to get medically certified as having an ‘injured’ identity. Further, as the beggar is ‘the most conspicuous figure of dependency’, and begging, a reflection of ‘purposeful parasitism’,108 dependence on social welfare was also considered the result of ‘willed incapacity’.109

An example is the Social Welfare Assistance Act of Zimbabwe,110 which provides for the granting of social welfare assistance, in the form of cash, food, clothing, rehabilitation, occupational training or the provision of orthopaedic and orthoptic appliances, for what it refers to as ‘destitutes’ or ‘indigent persons’ and their dependents. The term destitute or indigent persons (also synonymous in common parlance with vagrant, pauper or beggar) is defined under section 2 as any person who lacks means of subsistence, and includes persons with physical and mental impairments.

Therefore, for some social welfare merely replaced the tin can, where ‘... scenes of proving worthiness for aid ... shifted from the street to the offices of certifying doctors’.111 When doctors are assigned to determine who is entitled to welfare benefits, the political issue of redistribution thus becomes a clinical problem, a medical concern,112 also referred to as the medicalisation of social welfare.113

The dilemma is that when persons with disabilities are proved and ‘certified’ with a ‘disabled identity’ - by extension - put on an ‘injured identity’ to access benefits from the state, the values and beliefs that cast that identity in a demeaned social location in the first place are reinforced, thereby heightening discrimination against them. This is a manifestation of the tension between the definition of disability in anti-discrimination law and in social welfare law, where discrimination and differential treatment may be allowed when they work for the benefit of persons with disabilities, especially when the system requires that the person with a disability be treated as such in order to gain access to welfare benefits. For Jones and Marks,114 for persons with disabilities seeking social welfare services, it is often the case that:

Having once suffered the ordeal of proving and providing evidence of, for example, a permanent loss of limb or loss of mobility or level of intellectual capacity, it is not unusual to be required to re-establish this on a regular basis when welfare entitlements are reviewed.

The dilemma facing persons with disabilities between claiming an ‘injured’ identity and risking discrimination is heightened by welfare laws that require certificates of invalidity to access social welfare benefits. According to Zatu 86 - 5 of January 1986 related to the adoption of social measures in favour of persons with disabilities of Burkina Faso, the Ministry of Health has instituted a card called Carte d’invalidité (Card of Invalidity) to entitle them to enjoy fee and tariff reductions in public health, transport and recreation facilities.115 Persons with disabilities are allowed to get privileged access to economic and social benefits upon producing this Carte d’invalidite. To access public funds, they have to strangely enough prove that they are economically incapable, or to use the French term - invalide.

On a similar tone, the Kenyan National Social Security Fund Act (as revised in 2009) entitles a person to what it termed ‘invalidity benefits’ if:

(a) he is subject to such physical or mental disability as to be suffering from permanent total incapacity, or

(b) he is subject to such physical or mental disability as to be suffering from partial incapacity of a permanent nature and is unable by reason of such disability to earn a reasonable livelihood.116

The 2000 loi portant statut, protection et promotion de la personne handicapée (law for the protection and promotion of the rights of persons with disabilities) of Central African Republic117 stipulates that:

a person with disabilities should have a certificate attesting to their disability, automatically entitling them to acquittals, exemptions, discounts and subsidies when buying orthopaedic equipments or when accessing medical and hospital services; and when undergoing laboratory and radiological tests and surgical interventions. This certificate also entitles persons with disability to reduced tariffs related to public transport, leisure and sports and school enrolment.

The Tanzanian Disabled Persons (Employment) Act 2 of 1982 requires the Commissioner (of Social Welfare) to establish and maintain a register of persons with disabilities to be known as the Persons with Disabilities Register. According to article 3, a person whose name is for the time being in the register is in this Act referred to as a ‘person registered as handicapped by disablement’.118 Under of the Kenyan Persons with Disabilities Act, the National Council for Persons with Disabilities is entrusted with the function, inter alia, of registering persons with disabilities to facilitate their full enjoyments of the rights and privileges provided by the Act.119

According to these provisions, welfare law in favour of people with disabilities can be activated when, first of all, it is proved that ‘the person concerned has the sort of disability which the legislation is designed to address’.120 To establish evidence of the disability, the person with a disability must seek the opinion of medical and paramedical professionals, who carry out screening and testing to establish his/her ‘invalid’ status. For instance, it would appear that a person with intellectual disabilities might have to be ‘judged to be incapable of controlling his/her affaires’ to access welfare benefits.121 Although such procedures are intrusive, it is equally mandatory for the welfare system to ‘ensure that only genuine applicants benefit from the law’.122 Persons with disabilities are thus made to offer themselves for public appraisal, while, at the same time, scrutinising others to guard against social counterfeits.123

Thus, the quest of people with disabilities to be treated as ordinary or ‘normal’ members of the community is challenged by laws which are only available on proof of abnormality124 - the carte d’invalidité.125 Therefore, the emphasis becomes placed on ‘what disabled people cannot do’ instead of what they can.126 In fact, this dilemma has been plaguing welfare systems the world over for quite a long time, leading to efforts to ensure access to social welfare benefits of persons with disabilities without compromising dignity.

Under such circumstances, where disability becomes a ‘ticket to a grant’,127 no wonder that some non-disabled persons may be tempted to falsify their medical documents in an attempt to ‘appear’ disabled and access social welfare benefits. Such discourses might lead to the commodification and proliferation of disability itself where new disabled identities are claimed for the sake of (economic) welfare economic benefits. There is thus a need to decide exactly what constitutes a disability, which would make the ‘bureaucrat ... suspicious of the supplicant [of the social welfare system], for there are incentives for the

supplicant to act as if belonging to a particular category’.128 Contrary to the legal dictum: presumed innocent until proved guilty, ‘persons with disabilities and other supplicants are presumed fraudulent in seeking benefits and must prove their veracity’.129 Embedded within these notions is the presumption that disability might be faked, manufactured.130 According to the Kenyan Persons with Disabilities Act,131 any attempt at giving false information to get registered - hence to falsely put on a disabled status to access benefits - is a criminal offence:

A person is guilty of an offence if he knowingly gives false information to the Council for the purpose of being registered or for the purpose of acquiring any privilege due to persons so registered.

Similarly, the Cameroon Penal Code132 states:

Any physician, surgeon, dresser or nurse, dentist or midwife who for the advantage or disadvantage of any person falsely certifies or conceals the existence of any diseases or disability, or falsely certifies the performance or result of an inoculation, or gives misleading information on the origin of a disease, on the duration of a disability, or on the cause of any death, shall be punished with imprisonment for from two months to three years and with fine of from five thousand to one hundred thousand francs.

However, some social welfare policies have made extra efforts to avoid these invalidating discourses, such as the South African Strategy for Social Welfare.The White Paper introduces the interesting notion of developmental social welfare defined in the preamble as:

a humane, peaceful, just and caring society which will uphold welfare rights, facilitate the meeting of basic human needs, release people's creative energies, help them achieve their aspirations, build human capacity and self-reliance, and participate fully in all spheres of social, economic and political life. 133

This concept has a number of progressive elements. At a more fundamental level, the concept, contrary to medical and charity notions, promotes social welfare as a human right, without losing sight of the imperative of meeting basic human needs. It promotes the idea of employing social welfare as an instrument to build human capacity and unlock people's creative energies, as well as ensure full inclusion and self-reliance.

The strategy provides for a range of services such as rehabilitative, preventative, developmental and protective services and facilities, as well as social security, including social relief programmes, social care programmes and the enhancement of social functioning.134 According to the Strategy, welfare programmes aim to ‘contribute to the optimal social development of individuals, families and communities’.135 It is also an investment in human capital development and in turn contributes to economic development. The approaches to social welfare will, according to the Strategy, be such that they complement and strengthen people’s efforts, enhance their self-respect and independence136 and allow people ‘to take charge of their own circumstances in a meaningful way’.137

The 2001 amendment to the Social Assistance Act, empowered provinces to replace the role of the Pension Medical Officer - previously responsible for evaluating and adjudicating disability grants recommendations - by assessment panels, whose members did not necessarily have to be medical doctors.138 This is an example of a move away from medicalised models of social welfare to social models, where ‘social’ factors are introduced into a purely ‘medical’ issue.139 So, as is has been the case in South Africa, legislative provisions should not present welfare grants as an instrument designed to compensate people for their disabilities (in the medical sense); they should rather present them as a means of compensating people with disabilities for the impact of their disability on earning potential (in the social and economic sense).140

Similarly, the draft national social protection strategy of Ghana centres on a programme of cash transfers called ‘Livelihood Empowerment for Alleviation of Poverty’. This includes a grant - not just for all persons with disabilities - but for those ‘without productive capacity’.141 According to the draft policy, the Disability Grant ‘recognises that some persons have disabilities that are so severe that they will not be able to earn a living even if they have the opportunity to participate in livelihood programs and even if education and employment policies are inclusive’.142

As these examples demonstrate, a shift in both mindset and practice is required away from a medicalised paradigm of social welfare to an independent living paradigm. At a more fundamental level, the independent living model views environmental barriers and societal attitudes as the factors that stand in the way of independent living and economic self-reliance of persons with disabilities. It unseats the notion of linking impairment with ‘willed dependency’ where persons with disabilities are branded as undisciplined bodies incapable of entering into productive employment.143 The independent living paradigm challenges existing models of social welfare by shifting the focus away from the view of considering expert knowledge as key to understanding disability to ‘the experience of being disabled as the key to understanding disability’.144 By doing so it challenges the notion of persons with disabilities as patients within an occupation - called social welfare - dominated by experts playing an oversight function over those in need and preoccupied with ‘the management of ‘social dependents’.145 Instead, it repositions the focus on the obligation of the state to respect and fulfil the rights of persons with disabilities to social welfare services.146

6 Concluding remarks

The economic discourses of disability that portray persons with disabilities as economically invalid and economically dependent on non-disabled tax payers and on the welfare system or chartable individuals for survival, have to be replaced by the discourse of independent living. Both legislative and programmatic responses need to adopt the Independent Living paradigm of social welfare, which considers a person with a disability coming in contact with the social welfare system as a rights holder and a citizen instead of as a person in need of care. They regard such a person as a consumer of a service (instead of a client), whose inputs, recommendations and informed consent inform the ultimate decisions concerning his or her welfare.147

Through legislative, policy and programmatic measures, a flexible and responsive system has to be promoted that supports disabled people’s participation. Instead of relying on the concept of ‘incapacity for work’ as the underlying basis for entitlement, a more flexible approach has to be adopted in order to enable people to try out work and work-related activity. In other words, one needs to adopt a balanced package of work-related conditions, with safeguards, alongside a programme of comprehensive support, for example, by expanding financial support for the extra costs associated with employment, such as alternative transport, assistive technology and personal assistance.148

Given the extra costs associated with disability, the creation of employment opportunities has to be accompanied by social assistance schemes.149 The suggestions made by the UN Rules on the Equalisation of Opportunities150 are worth noting:

  • Social security systems should include incentives to restore the income-earning capacity of persons with disabilities. Such systems should provide or contribute to the organization, development and financing of vocational training. They should also assist with placement services.
  • Social security programmes should also provide incentives for persons with disabilities to seek employment in order to establish or re-establish their income-earning capacity.

What is needed is a supportive link between disability benefits and income-generating opportunities.151 This is perhaps stated most clearly in a report for the South African government (co-authored by the South African Federal Council on Disability):152

Social security systems should be seen not merely as safety nets and poverty-alleviating measures, but also as measures to promote self-sufficiency and independence. The disability sector wish to stress that social grants should not be viewed as creating dependency, but rather as enabling development by overcoming many of the barriers faced by persons with disabilities, and thus equalising opportunities. It should be not seen as ‘social protection’ but rather as ‘social support’, encompassing a wide range of transfers, services, and subsidies.

To conclude, any social assistance effort directed at persons with disabilities should be considered a right instead of a moral charity, and an investment instead of just a safety net.153 It should also compliment, not diminish, efforts on the education, employment and political representation fronts.

Finally, persons with disabilities have to be listened to, and their views on social assistance, have to inform polices. Polices on social assistance, as on any other area, have to build on the timbre and pitch of the voices of people with disabilities themselves. In the final analysis, it is important to promote ‘self-help’, ‘self-advocacy’, peer counselling and the removal of environmental obstacles and societal attitudes. 154

 


1. Poverty is understood here to refer to both income poverty and deprivation (the attainment of states of being that are fundamental to living an acceptable quality of life such as being well-sheltered, being well-nourished, being able to move about freely, or being able to form and maintain a family). See J Braithwaite & D Mont Disability and poverty: A survey of World Bank poverty assessments and implications’ SP Discussion Paper (2008) 13.

2. UNESCO (United Nations Educational, Scientific and Cultural Organization) EFA global monitoring report 2010: Reaching the marginalized (2010) 181.

3. As above.

4. Spina Bifida Association of America (2009) cited in ACPF The lives of children with disabilities in Africa: A glimpse into a hidden world (2011) xi.

5. UNESCO (n 2 above) 181.

6. B Ingstad & AH Eide ‘Introduction- disability and poverty: A global challenge’ in AH Eide & B Ingstad (eds) Disability and poverty: A global challenge (2011) 5.

7. B Gordon et al Inheriting the world: The atlas of children’s environmental health and the environment (2004) 36.

8. As above.

9. UN General Assembly ‘Convention on the Rights of Persons with Disabilities’, adopted 24 January 2007, A/RES/61/106 (CRPD) Preamble.

10. A Elwan Poverty and disability: A survey of the literature (1999) 15.

11. World Health Organization (WHO) & World Bank World report on disability (2011) 29.

12. Elwan (n 10 above) 15.

13. R Slee ‘Disability, class and poverty: School structures and policing identities’ in C Christensen & F Rizvi (eds) Disability and the dilemmas of education and justice (1996) 100.

14. L Reith ‘Exploring the Link between poverty and disability’ in Combat Poverty Agency Disability, exclusion and poverty: A policy conference (1994) 60.

15. Reith (n 14 above) 61

16. J Trani et al Disability in and around urban areas of Sierra Leone (2010) 36.

17. Ingstad & Eide (n 6 above) 5.

18. M Turmusani Disabled people and economic needs in the developing world: A political perspective from Jordan (2003) 31.

19. S Mitra ‘The recent decline in the employment of persons with disabilities in South Africa, 1998-2006’ (2008) 76 South African Journal of Economics 480.

20. MM Verdonschot et al ‘Community participation of people with an intellectual disability: A review of empirical findings’ (2009) 53 Journal of Intellectual Disability Research 303.

21. Handicap International Good practices for the economic inclusion of people with disabilities in developing countries: Funding mechanisms for self-employment (2006) 17.

22. International Labour Organization Strategies for skills acquisition and work for people with disabilities2006http://www.hsrc.ac.za/research/output/outputDocuments/4388_Schn eider_Strategiesforskills.pdf (accessed 8 June 2014).

23. SE Butler et al ‘Employment barriers: Access to assistive technology and research needs’ (2002) 96 Journal of Visual Impairment & Blindness 664.

24. S Durie & L Wilson Six Mary’s Place: Social return on investment report (2007) http://www.socialfirms.org.uk/FileLibrary/Resources/Quality%20&%20Impact/SROI%20 report%20-%20Six%20Marys%20Place.pdf (accessed 7 June 2014).

25. Ingstad & Eide (n 6 above) 5.

26. Elwan (n 10 above) 14.

27. WHO & World Bank (n 11 above) 239.

28. Handicap International (n 21 above) 18.

29. Handicap International (n 21 above) 3.

30. Leonard Cheshire Disability and UNECA UN Convention on the Rights of Persons with Disabilities: A call for action on poverty, discrimination and lack of access (2008) 37.

31 The judgments made towards one’s creditworthiness or credit-unworthiness are more than just about lack of savings, mobility challenges or stigmatisation. Karl Marx observed, a long time ago, that one of the situations in which credit is conceivable is that a rich creditor extends credit to a poor man whom he regards as industrious and orderly. According to Marx, credit is ‘the greatest possible recognition [and judgment] of man’s worth by economics’ or indeed ‘the economic judgment on the morality of

31. man’. The man in need of credit is not defined just by his deprivation but also by the demoralising judgment that he has to put up with that ‘he does not inspire confidence, that he is, in short, a social pariah and a bad man’. See R Livingstone ‘Elements of political economy’ in Q Hoare (ed) Karl Marx: Early writings: Introduction by Lucio Colletti (1974) 263. There is, therefore, more ignominy on a man who seeks and is denied credit because he is not worthy of it than the man who just seeks credit. Denial of credit to a person - who is already in a poorer state than his creditor - amounts to recognising that that person is less than poor, less moral, less human than the poor, and is, therefore, degrading in moral and economic terms.

32. JM Cramm & H Finkenflugel ‘Exclusion of disabled people from microcredit in Africa and Asia: A literature study’ (2008) 19 Asia Pacific Disability Rehabilitation Journal 22.

33. Handicap International (n 21 above) 32.

34. M Albu Economic empowerment of disabled people: Lessons from Northern Uganda about developing the market for enterprise-based skills development services (2005) 11.

35. Cramm & Finkenflugel (n 32 above) 22.

36. As above.

37. CRPD (n 9 above) art 27.

38. Ugandan Persons with Disabilities Act, sec 17.

39. Ugandan Persons with Disabilities Act, sec 13(4).

40. Kenyan Persons with Disabilities Act, sec 16(2).

41. Ghanaian Persons with Disabilities Act, secs 10(1) & 36.

42. The UN Economic and Social Council cited in UN Enable ‘Mainstreaming Disability in the development agenda’. Economic and Social Council: Commission for Social Development: Note by the Secretariat (2007) para 30(d). Ugandan Persons with Disabilities Act, sec 17.

43. In effect, such provisions not only increase the demand for workers with disabilities, but also boost the demand for assistive and adaptive devices - leading to the growing commodification of disability itself. Here, disability is 'marked, circumscribed, and commodified by designated products, spaces, and abstracts that not only brand its members but position them as a target market segment ripe for commodification and economic exploitation’. See E DePoy & S Gilson ‘Disability, design, and branding’ in LJ Davis (ed) The disability studies reader (2013) 489.

44. Special education as an industry further exemplifies this, the very existence of which depends on finding disabled students, discovering new categories of disability, establishing special university programs for special educators, funding federal grants for special education, and relying on the participation of special educators in awarding themselves these grants. See W Roth The assault on social policy (2002) 83

45. Roth (n 44 above) 83.

46. Kenyan Persons with Disabilities Act.

47. WHO & World Bank (n 11 above) 235.

48. W Rowland Nothing about us without us: Inside the disability rights movement of South Africa (2004).

49. Department of Labour Commission for Employment Equity: Annual report 2007-2008 (2008).

50. Department of Labour Employment Equity Act 55 of 1998: Code of Good Practice: Key Aspects on the Employment of People with Disabilities GG 23702, GN 1345, 19 August 2002, Item 6.

51. Code of Good Practice (n 50 above), Item 7.

52. The Technical Entrepreneurial and Vocational Education and Training Authority Act, sec 6(i).

53. Kenyan Persons with Disabilities Act, sec 37.

54. Ghanaian Persons with Disability Act, secs 13(1) & 10(2).

55. A Leymat ‘Inclusive microfinance: Reaching disabled people through partnership development’ (2010) http://www.gre.ac.uk/__data/assets/pdf_file/0005/451976/6_Leymat_FullPaper.pdf (accessed 11 June 2014).

56. ST Tesemma ‘A critical analysis of law and policy on education of disabled children in South Africa’ unpublished DEd thesis, University of South Africa, 2013 225.

57. Efficiency is generally understood to mean ‘reducing the cost of achieving a given level of effectiveness, or improving the volume and quality of outcome achieved from fixed budgets’. See J Beecham & M Knapp ‘Inclusive and special education: Issues of cost-effectiveness’ in OECD Inclusive education at work: Students with disabilities in mainstream schools (1999) 328.

58. Equity takes into consideration the varying characteristics of learners and uses the concept of equal treatment being possible only when the system provides unequal resources as a means of compensating for the unequal needs of various learners. See DD Sage & LC Burrello Policy and management in special education (1986) 126-127.

59. Tomlinson (1994) cited in AD Vlachou Struggles for inclusive education (1997) 5, 170.

60. M Rioux ‘Disability rights in education’ in L Florian (ed) The SAGE handbook of special education (2007) 113.

61. Rioux (n 60 above) 113.

62. Rioux (n 60 above) 115.

63. Vlachou (n 59 above) 1.

64. J Blackmore ‘Big change questions: Can we create a form of public education that delivers high standards for all students in the emerging knowledge economy?’(2000) 1 Journal of Educational Change 381.

65. Tesemma (n 56 above) 43.

66. KD Beiter ‘The protection of the right to education by international law’ (2006) 19 International Studies in Human Rights 607.

67. Beiter (as above).

68. A Artiles &A Dyson ‘Inclusive education in the globalization age’ in DR Mitchell (ed) Contextualizing inclusive education: Evaluating old and new international perspectives (2005) 43.

69. P Mittler ‘Childhood disability: A global challenge’ in P Mittler et al (eds) World yearbook of education 1993: Special needs education (1993) 9.

70. R Rieser Implementing inclusive education: A commonwealth guide to implementing article 24 of the UN Convention on the Rights of Persons with Disabilities (2008) 38.

71. E Anderson & S Hague The impact of investing in children: Assessing the cross-country econometric evidence (2007).

72. J van der Gaag & J-P Tan The benefits of early child development programs: An economic analysis (1998) 7.

73 Children with disabilities are disproportionately represented amongst the educationally excluded in developing countries. In many countries one in 100 children with disabilities are excluded from education services. See ST Tesemma Educating children with disabilities in Africa: Towards a policy of inclusion (2011) 19. It is estimated that 76 per cent of children with disabilities in Sierra Leone are out of school. See Leonard Cheshire disability/UNECA (n 30 above) 113. In Ethiopia, less than one per cent of children with special needs have access to education. See UNESCO A human rights-based approach to education for all (2007) 7. Ninety-eight per cent of children with

73. disabilities in Malawi did not have access to education. See EM Chilemba ‘The right to primary education of children with disabilities in Malawi’ (2013) 1 African Disability Rights Yearbook 4.

74. M Thomas & N Burnett Exclusion from education: The economic cost of out-of-school children in 20 countries (2013)13.

75. C Acedo et al (eds) Defining an inclusive education agenda: Reflections around the 48th session of the International Conference on Education (2008) 9.

76. Department of Education White Paper on Education and Training (South Africa) (1995) para 4(23) (emphasis added).

77. Department of Education Consultative Paper No 1 on Special Education: Building an Inclusive Education and Training System, First Steps (1999) chap 6, para 2.6.

78. Department of Education White Paper 6 on Special Needs Education: Building on Inclusive Education and Training System (2001) para 2.1.3.

79. Although rare in Africa, studies in the USA conclude that the additional costs of special education are reimbursed to the community 35 times over through output and taxes paid within 10 years. Cost-benefit analyses show that for every dollar spent on special education, the disabled adult will earn 11 dollars. See UNESCO 1978 cited in R Brouillette ‘Theories to explain the development of special education’ in P Mittler et al (eds) (n 69 above) 259.

80. White Paper 6 (n 78 above) para 4.4.12.1.

81. In fact, although studies are limited in the African context, and without forgetting the local specificity of cost estimations, there is no conclusive evidence as to whether or not an inclusive education system is more or less efficient than a special education system. A study conducted in the context of the US, for example, found that ‘inclusive education programs do not necessarily cost more or less than traditional special education programs. The costs are simply different from those carrying out traditional special education programs’. See LW Jones & LA Power-deFur ‘Financing inclusive education programs’ in LA Power de-Fur & FP Orelove Inclusive education: Practical implication of the least restrictive environment (1997) 63. In contrast, according to study in the UK, public school-based inclusion (in early childhood education) was found to be 41 per cent less costly than the traditional, more segregated, special education classroom model. For instance, total instructional costs per hour are eight per cent lower for inclusion than for the traditional model (USD 5,77 versus USD 6,28). See SL Odom et al The costs of inclusive and traditional special education preschool services (2001) http://csef.air.org/publications/related/jsel/odom_hik.PDF (accessed 15 June 2014).

82. White Paper 6 (n 78 above) para 4.4.12.1.

83. Office of the Deputy President Integrated National Disability Strategy White Paper of 1997, chap 3.

84. Beiter (n 66 above) 82.

85. Beiter (n 66 above) 607.

86. Rieser cites World Bank estimates that it costs between two and four times as much to educate a child with a disability in an inclusive setting as a non-disabled child. See Rieser (n 70 above).

87. K Tomaševski Education denied: Costs and remedies (2003) 33.

88. As above.

89. S Hegarty Educating children and young people with disabilities: Principles and the review of practice (1995) 16.

90. Beiter (n 66 above) 607.

91. As above.

92. Turmusani (n 18 above) 8.

93. These may include the provision of pensions, attendant care allowances, health-care support, mobility allowances and the provision of adaptive equipment.

94 T Guthrie et al Social security policy options for people with disabilities in South Africa: An international and comparative review (2001) 40.

95 US Office of Retirement and Disability Policy Social security programs throughout the World: Africa (2009) http://www.ssa.gov/policy/docs/progdesc/ssptw/2008-2009/africa/mauritius.html (accessed 20 May 2014).

94.

95.

96. There is, however, a concern echoed by some that welfare grants would create dependency and discourage employment. A report by the South African Department of Social Development suggests that over 36 per cent of the disability grant recipients have ‘physical disabilities that should not necessarily render them unable to obtain gainful employment’. See Department of Social Development Linking social grants beneficiaries to poverty alleviation and economic activity South Africa (2006) 3.

97. A Marriott & K Gooding Social assistance and disability in developing countries (2007) 5.

98. There is also the concern echoed by some that welfare grants would create dependency and discourage employment. A report by the South African Department of Social Development suggests that over 36 per cent of the disability grant recipients have ‘physical disabilities that should not necessarily render them unable to obtain gainful employment’. See Department of Social Development (n 96 above) 3.

99. Marriott & Gooding (n 97 above) 39.

100. De Koker et al (2006) cited in Marriott & Gooding (n 97 above) 58.

101. Marriott & Gooding (n 97 above) 44.

102. Marriott & Gooding (n 97 above) 32.

103. I Marini ‘The history of treatment toward persons with disabilities’ in I Marini et al (eds) Psychosocial aspects of disability: Insider perspectives and strategies for counselors (2012) 19.

104. As above.

105. SM Schweik The ugly laws: Disability in public (2009) 79.

106. Schweik (n 105 above) 59.

107. Schweik (n 105 above) 55.

108. SL Snyder & DT Mitchell Cultural locations of disability (2006) 40.

109. Snyder & Mitchell (n 108 above) 56

110. Social Welfare Assistance Act 10 of 1988 (Chapter 17:06).

111. Schweik (n 105 above) 79.

112. Sundby (1990) cited in Schweik (n 105 above).

113. M Holmqvist The institutionalization of social welfare: A study of medicalizing management (2008) 12.

114. M Jones & LAB Marks ‘Law and social construction of disability’ in M Jones & LAB Marks (eds) Disability, Divers-ability and legal change (1999)17.

115. Ministère de la promotion des droits humains (Burkina Faso) Zatu 86 - 5 of January 1986 related to the adoption of social measures in favour of persons with disabilities of Burkina Faso of 1986, art 3.

116. Kenyan National Social Security Fund Act (as revised in 2009), sec 22.

117. République centrafricaine Loi portant statut, protection et promotion de la personne handicapée of 2000, title 2, chap 3, art 20 (emphasis added).

118. Tanzanian Disabled Persons (Employment) Act, art 7(1).

119. Kenyan Persons with Disabilities Act, sec c(i).

120. M Jones & LAB Marks ‘Law and social construction of disability’ (n 114 above) 17.

121. M Jones & LAB Marks ‘Law and social construction of disability’ (n 114 above) 18.

122. M Jones & LAB Marks ‘Law and social construction of disability’ (n 114 above) 17.

123. Kasson (1990) quoted in Schweik (n 105 above) 87.

124. M Jones & LAB Marks ‘Law and social construction of disability’ (n 114 above) 19.

125. Ministère de la promotion des droits humains (Burkina Faso) (n 115 above).

126. Marriott & Gooding (n 97 above) 44.

127. N Nattrass Disability and welfare in South Africa’s era of unemployment and AIDS (2006) 8.

128. Roth (n 44 above) 83.

129. As above.

130. For example, according to the Penal Code of the Republic of Cameroon ‘Whoever having means of support, or being able by work to obtain them, begs in any place for alms by feigning sores or disablement shall be punished with imprisonment for six months to two years’ (sec 246(c)) (emphasis added). See Republic of Cameroon Penal Code of the Republic of Cameroon: Law No 65-LF-24 of 12th Nov 1965 and Law No 67-LF-1 of 12th of June 1967 (2001). A similar provision is found under section 5, article 243 of the Penal Code of Burkina Faso. See Ministère de la Justice (Burkina Faso) Code Pénal: Décret No96-5-451/PRES du 18 décembre 1996 portant promulgation de la loi no 43/96/ADP du 13/11/1996 (1997).

131. Kenyan Persons with Disabilities Act, sec 47.

132. Penal Code of the Republic of Cameroon of 1967 (n 130 above) sec 259(1).

133. Department of Welfare White Paper for Social Welfare: Principles, guidelines, recommendations, proposed policies and programmes for developmental social welfare in South Africa (1997), Preamble.

134. White Paper for Social Welfare (n 133 above) sec 7(a).

135. White Paper for Social Welfare (n 133 above) sec 15.

136. White Paper for Social Welfare (n 133 above) sec 23.

137. White Paper for Social Welfare (n 133 above) sec 27.

138. RSA Social Assistance Act (as amended in 2001) (2001).

139. Nattrass (n 127 above) 4-5.

140. Nattrass (n 127 above) 3.

141. Government of Ghana The National Social Protection Strategy (NSPS): Investing in people (2006).

142. Government of Ghana (n 141 above).

143. Snyder & Mitchell (n 108 above) 39.

144. S Moore Social welfare alive! (2002) 413.

145. There are some attempts to break away from medicalised and charity discourses littering social welfare systems such as welfare, grants, allowances to an independent living fund in line with the independent living paradigm. See Department of Work and Pensions (UK) The future of the Independent Living Fund: Public consultation (2012) 5.

146. Snyder & Mitchell (n 108 above) 56.

147. KK Kirst-Ashman Introduction to social work and social welfare: Critical thinking perspectives (2010) 302.

148. Disability Rights Commission (2006) cited in Marriott & Gooding (n 97 above) 63.

149. Marriott & Gooding (n 97 above) 69.

150. UN ‘The Standard Rules on the Equalization of Opportunities for Persons with Disabilities’ (1993) Rule 8.

151. Marriott & Gooding (n 97 above) 63.

152. Guthrie et al (n 94 above) 125.

153. Guthrie et al (n 94 above) 27.

154. I Marini ‘The history of treatment toward persons with disabilities’ (n 103 above) 19.


  • Ashwanee Budoo
  • LLD Candidate and tutor at the Centre for Human Rights, University of Pretoria
  • Rajendra Parsad Gunputh
  • Associate Professor in the law department at the University of Mauritius.


Summary

The South African Choice on Termination of Pregnancy Act 92 of 1996 provides for the termination of a pregnancy of a person with a severe mental disability in the event that the continued pregnancy would pose a risk to the life of the woman or the fetus. Such a termination of pregnancy can be proceeded with after obtaining the consent of the natural guardian, spouse, legal guardian or curator personae. The current article investigates whether the above does not violate the provisions of the Convention of the Rights of Persons with Disabilities since it does not take into consideration the standpoint of the woman whose pregnancy is being terminated. It assesses whether depriving the woman with a mental disability of the right to give her opinion is justified. It then concludes that section 5(4)(a) violates several human rights of a woman with a mental disability and suggests a way forward.

1 Introduction

Being the ‘world’s largest minority’, it is estimated that worldwide there are about 1 billion persons living with a disability.1 ‘Recognising the need to promote and protect the human rights of all persons with disabilities (PWDs), including those who require more intensive support’,2 the Convention on the Rights of Persons with Disabilities (CRPD) was adopted in 2006. The CRPD’s purpose is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.3 Included in the list of PWDs are people who have

‘mental ... impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.4

The World Health Organisation (WHO) views mental disorders very broadly. Giving schizophrenia, depression and mental retardation as examples, it characterises mental disorders ‘by some combination of abnormal thoughts, emotions, behaviour and relationship with others’.5 People with mental disabilities, who form part of the ‘most marginalised and vulnerable groups’,6 face challenges concerning their living conditions which include stigma and discrimination and reduced access to health services.7 South Africa, having ratified the CRPD on 30 November 2007,8 has the obligation to ensure that its domestic legislation promotes and protects the rights of PWDs. Article 25 of the CRPD protects the right to reproductive health of a PWD and this paper specifically concentrates on the termination of pregnancy of persons with mental disabilities.

According to Daftary and Desai, a medical termination of pregnancy is a ‘wilful termination of a pregnancy before the age of viability of the foetus by a qualified medical practitioner under certain stipulated conditions’.9 It can be carried out by the use of pharmacological drugs.10 Practising a medical termination of pregnancy is considered to be ‘safe and effective’11 since the termination is practised by someone who has the required skills and is done in an environment which is compliant with minimal medical standards.12 The Choice on Termination of Pregnancy Act (CTPA)13 is an example of how South Africa promotes medical termination of a pregnancy so that women are not subject to vulnerabilities such as death or that which accompanies unsafe abortions.

The CTPA replaced the Abortion and Sterilisation Act 2 of 1975 which ‘severely curtailed access to abortion services by requiring a physician’s, and in some cases a magistrate’s, approval for abortion procedures’.14 The CTPA gave effect to the provisions of the African National Congress’ Reconstruction and Development Programme of 1994 which stated, inter alia, that ‘the national health system will ... give women the right to choose whether to have an early termination of [their] pregnancy’.15 The change in the political arena led to a better focus on the reproductive rights of women.16 Described as ‘an expression of female autonomy’ which abides by the fundamental rights protected by the Constitution,17 the CTPA provides ‘every woman freedom of choice to have an early, safe and legal termination of pregnancy according to her individual beliefs’ subject to certain conditions.18

Section 5(4)(a) of the CTPA provides that there can be termination of pregnancy for a person when she is ‘severely mentally disabled to such an extent that she is completely incapable of understanding and appreciating the nature or consequences of a termination of her pregnancy’.

The procedure for such termination is provided for by section 5(5) of the CTPA which states that two medical practitioners or a medical practitioner and a registered midwife who has completed the prescribed training course can, after consultation with the natural guardian, spouse, legal guardian or curator personae, consent to the termination of pregnancy of a person with a mental disability. Such consent can be given in the following circumstances: 19

(a) [D]uring the period up to and including the 20th week of the gestation period of a pregnant woman referred to in subsection (4)(a) or (b) -

(i) the continued pregnancy would pose a risk of injury to the woman's physical or mental health; or

(ii) there exists a substantial risk that the fetus would suffer from a severe physical or mental abnormality; or

(b) after the 20th week of the gestation period of a pregnant woman referred to in subsection (4)(a) or (b), the continued pregnancy -

(i) would endanger the woman's life;

(ii) would result in a severe malformation of the fetus; or

(iii) would pose a risk of injury to the fetus ...

It is to be noted that section 5 of the CTPA makes reference to a mental disability and not to an intellectual disability. The latter has been defined as ‘a significantly reduced ability to understand new or complex information and to learn and apply new skills’.20 The scope of the article is persons who have a severe mental disability which can be considered as temporary and can be controlled through medication.21 Thus, people whose mental capacity has been affected by illness like ‘schizophrenia, depression, mental retardation and disorders due to drug abuse’22 are targeted during the course of this paper.

Further, the paper does not look into the issue of forceful sterilisation, but rather into forceful termination of pregnancy. Sterilisation has been defined as ‘a process that renders an individual incapable of sexual reproduction’.23 Forced sterilisation takes place ‘when a person is sterilized after expressly refusing the procedure, without her knowledge or is not given an opportunity to provide consent’.24 The current paper does not look into the issue of rendering a PWD incapable of sexual reproduction but instead into the termination of a current pregnancy with the person having the possibility of conceiving again in the future.

The present paper investigates whether the termination of a pregnancy of a woman with a mental disability, as provided for under the CTPA, violates the rights protected by the CRPD. Firstly, the model adopted will be explained. Then, the CRPD will be examined and the articles which are affected by such a termination of pregnancy will be analysed while making reference to the relevant sections of the Constitution of the Republic of South Africa, 1996 which give effect to the provisions of the CRPD. While reference will be made to the Constitution, it is to be noted that the current paper is limited to investigating the potential violations of the different provisions of the CRPD. It will further assess whether limiting the rights of a woman with mental disabilities to give consent concerning the termination of her pregnancy can be justified in an open and democratic society in terms of section 36 of the Constitution. Finally, there will be a conclusion and recommendations to ensure that the rights of a woman with disabilities are not violated.

2 Approach adopted

There is not yet an agreed definition of disability and the debate about defining the term ‘has been long-running and sometimes bitter’.25 There are two different models to disability, namely the medical model and social model.26 The models of disability reflect27 the behaviour that people have towards disability.

2.1 The medical model

The medical model, the least preferred one, tends to regard PWDs as being ‘imperfect’.28 Disability is viewed as a problem which requires medical care: It identifies the disability which the person has and considers PWDs as objects for clinical intervention.29 The case of Purohit v The Gambia30 is an example of the application of the medical model. The Lunatics Detention Act in contention in the above case considered people living with mental disabilities as a special group of persons who should be given special treatment for them to be able to perform and live in society.

Ngwena, applying the medical model, considers PWDs as being unable to manifest themselves in the mainstream and to live independently.31 Under this model, PWDs are treated as persons living with impairments and words such as ‘handicapped’, ‘incurable’, ‘suffering’ and ‘wheelchair bound’ are used to refer to them.32 Crossley, while highlighting that under the medical model PWDs are considered as being impaired, pointed out that this model views PWDs as ‘innately, biologically different and inferior’.33 They therefore need to be ‘cured’ to overcome the challenges that they encounter in not forming part of the mainstream.34

However, this model has been criticised since it creates dependency, marginalises PWDs from society and introduces barriers for PWDs to

access their fundamental economic, social and political rights.35 PWDs are not considered as right holders but instead as people living with an imperfection, thus focusing on the disability and not on the person. 36

Since it considers PWDs as being inferior compared to other persons, the medical model is considered to be ‘oppressive’ and out-dated. 37

2.2 The social model

The preamble to the CRPD outlines the foundation of the social model and recognises it as follows: 38

[T]hat disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others ...

Disability is therefore viewed as the relationship that PWDs have with the society and as ‘an interaction between the person and the social environment’.39 It is a new ‘attitude’ towards PWDs and it ‘emphasises their rights to make choice[s] and be independent’.40 It tackles the stigma and marginalisation that PWDs face in society due to their status of being disabled. It investigates the physical and social barriers that PWDs face in society. 41

The social model is a ‘tool’ which contributes ‘not just in a struggle for better services’, ‘but for full economic, social and political inclusion in society’.42

2.3 Model adopted

For the purpose of this paper, the social model is adopted because it is the one which takes into consideration the human rights of persons with mental disabilities. The medical model considers a person with mental disabilities as someone who is imperfect and who cannot be a right holder. The medical model violates the human rights of PWDs since it categorises them as people who cannot exercise their rights effectively in society.

The social model focuses on the removal of barriers so that PWDs can live in society without any difficulty. It imposes an obligation on states to ‘tackle socially created obstacles in order to ensure full respect for the dignity and equal rights of all persons’. 43

This paper will be based on the social model whereby a person with a mental disability is considered as someone who should be empowered in society and not as someone who should be marginalised and who cannot benefit from her human rights. The paper will take into consideration that there should be means to remove the barriers in society for women with mental disabilities to enjoy motherhood.

3 Possible violations of the provisions of the CRPD in the event of a forced termination

Section 5 of the CTPA can give rise to forced termination of pregnancies in the event the person with the mental disability wants to carry on with the pregnancy despite knowing the threats that it would pose to her life or to that of the fetus. The problem arising is whether such a termination of pregnancy does not violate the rights of women who have a mental disability since it is a forced one. A forced termination of pregnancy is when ‘a woman wants to carry her pregnancy to term, but is required to terminate it against her will’.44 In the event that the woman has expressed her willingness to keep the child but the medical advice is to terminate the pregnancy, section 5 of the CTPA poses a potential threat to several human rights of a woman living with a mental disability such as her right to reproductive choice, her right to free and informed consent, her right to dignity, and her right to equal recognition before the law.

3.1 The right to reproductive choice

Recognising that there are inequalities that arise when a woman is pregnant,45 Millennium Development Goal (MDG) 5 provides that by 2015, universal access to reproductive health should be achieved.46 The CRPD recognises the reproductive rights of PWDs in its article 23. The relevant parts of the article are as follows:

(1) States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:

...

(b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;

(c) Persons with disabilities, including children, retain their fertility on an equal basis with others.

It clearly stipulates that PWDs should not be discriminated against with regard to parenthood and that PWDs have the right to freely decide about the number of children they have. There is a rights-based approach to reproductive rights and governments must make sure it takes into consideration the ‘unique needs of women’.47 Addressing the ‘unique needs’ includes women living with disabilities. Furthermore, paragraph (n) of the Preamble to the CRPD recognises ‘the importance for persons with disabilities of their individual autonomy and independence, including their freedom to make their own choices’. The state should therefore ensure that PWDs and other women who are pregnant are treated equally and PWDs should be able to enjoy the right to decide whether to have a child or not despite living with a mental disability.

The Constitution also provides for the right to reproductive choice. Article 12(2)(a) confers upon the persons in South Africa the right ‘to make decisions concerning reproduction’. However, the reproductive rights of PWDs are often ignored, be it at the national or international level.

For a long time, feminists have struggled to enable women to ‘make decisions about their bodies, sexuality and child bearing’.48 Kallianes and Rubenfeld have highlighted the irony that exists concerning women with disabilities: despite the fact that women are perceived as sexual objects, women with disabilities are considered as ‘asexual’ or ‘undesirable’ as mothers.49 Asch identifies the following as being constraints to reproductive freedom of women with disabilities: 50

It starts in exclusion from sex education classes and in parental silence about sexuality and motherhood ... inaccessibility of affordable gynaecological services; lack of safe contraception ... and the still-prevalent sterilizations.

The right of a woman to decide whether she wants to terminate her pregnancy was firstly recognised in the case of Roe v Wade in 1973.51 Feminist theories present different options for the protection of women’s rights52 and these extend to the right to reproductive choice. Feminist theorists consider choosing as a ‘defining and unifying feature’ of their principles and define choice as encompassing ‘the positive right to bear and raise a child and the free choice not to abort’.53

The reproductive health of women should be protected irrespective of whether they have a disability or not.

Section 27 of the Constitution of South Africa imposes an obligation on the state to provide access to reproductive health care services to everyone in its territory.54 The WHO considers reproductive health to be achieved in a situation where:

[P]eople are able to have a responsible, satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa expressly provides that women have the right to decide whether they want to have children or not.55 A woman should be given the ability to decide when to have children as it is a fundamental component of her human rights and human dignity. 56

The UN Committee on Economic, Social and Cultural Rights’ (CESCR) General Comment No 1457 incorporates the right to reproductive choice as part of the right to health and includes the following: 58

[T]he right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation.

The above provision does not expressly make mention of PWDs but nevertheless it does encompass them.

Exercising one’s right to reproductive choice also ensures that one is not subjected to inhumane and degrading treatment. Article 15 of the CRPD protects PWDs from inhuman and degrading treatment by providing that ‘no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment’.59 Similarly, the Constitution provides that no one should be ‘treated or punished in a cruel, inhuman or degrading way’. 60

Inhumane and degrading treatment has been defined in the case of International Pen by the African Commission as including ‘not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his will or conscience’. 61

If, during her examination, the PWD expressed her willingness to have a baby, she will be subject to psychological suffering because she has to go through the pain of abortion and the idea that she is not like other women who can decide whether they want to face the risk of any danger to their life or that of the fetus. By forcing her to have her pregnancy terminated, she is being humiliated.

Moreover, allowing a PWD to decide whether she wants to continue her pregnancy or not ensures that her right to form a family is protected. Article 23 of the CRPD imposes an obligation on states to ensure that there is no discrimination against PWDs concerning parenthood and to further ensure that ‘[t]he rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children ...’ are protected. Being described as the ‘fundamental and natural unit of society’,62 states have an obligation to ensure that everyone has the right to form a family. However, women with disabilities are often perceived as too dependent and weak to make fit parents and serve as good role models. Not taking into consideration the right to reproductive choice of a woman with a disability, the state is impeding upon the PWD’s right to form a family.

PWDs face an uphill battle when it comes to have their right to reproductive choice respected. For instance, not so long ago, forced sterilisation of persons forming part of vulnerable groups was widely practiced since they were considered as an inferior category of persons who

gave birth to ‘undesirable’ children.63 In 1927, the US Supreme Court decided in favour of a law which provided for the sterilisation of a woman who was ‘feeble-minded’.64 The Applicant contended the substantive law and argued that such an order violated her rights. However, the Court, while highlighting that ‘three generations of imbeciles are enough’,65 stated the following:66

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.

However, in the contemporary world, forced sterilisation has been condemned by different human rights bodies. It has been considered as an act of violence against women and a form of torture and cruel and degrading treatment. 67

Moreover, a more human-rights approach to sterilisation was adopted in the case of Eberhardy where the contention was whether the guardians of a person with a mental disability can give consent to a permanent sterilisation.68 The judges held that sterilisation procedures can be considered as ‘the state’s intrusion into the determination of whether or not a person who makes no choice shall be allowed to procreate’.69 In Eberhardy the Court pointed out that instead of making orders for sterilisation, the state’s interests lie in protecting persons with mental disabilities from being subjected to forced sterilisation. 70

In Canada, in 1928, Alberta adopted the Sexual Sterilization Act which recommended sterilisation as a means to have liberty from mental institutions. An amendment to the Sexual Sterilization Act in 1937 allowed for the forced sterilisation of persons with mental disabilities. The Sexual Sterilization Act was repealed in 1972 since it was morally and legally reprehensible The CTPA can be similarly viewed because it treats persons with mental disabilities as an inferior category of people who cannot take care of their children.

In 2011, the European Court of Human Rights (ECtHR), in the case of VC v Slovakia, held that sterilisation interfered with one of the bodily functions of the woman and violated her right to reproductive choice.71 Drawing a parallel between forced sterilisation and forced termination of pregnancy, the latter also interferes with one’s reproductive system. Therefore, deciding on behalf of the PWD whether she wants to terminate her pregnancy is a limitation of the right to reproductive choice.

The question which arises is whether this limitation is justified. Their rights should be limited to serve a particular purpose which is ‘worthwhile and important in a constitutional democracy’.72 Application of section 5(4)(a) will ensure that a PWD’s life or that of the fetus is not threatened. Empowering a woman with a mental disability by informing her of the danger that she or the fetus can encounter serves as a means through which the rights of the woman can be protected. Therefore, section 5 of the CTPA is baseless in an open and democratic society where everyone should be able to decide about whether to reproduce or not, even if that poses a danger to their life.

The right to reproductive choice, as discussed, is to ensure that women with disabilities are treated along the same lines as persons who are living without any disability concerning whether they want to have a termination of their pregnancy or not. Section 5(4)(a) of the CTPA thus denies women with disabilities their right to reproductive choice.

3.2 Right to free and informed consent

Article 25 of the CRPD states as follows:

States Parties shall require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care.

The CRPD imposes an obligation on South Africa to ensure that health professionals take into consideration the free and informed consent of the person who is being examined.

The International Disability Caucus suggested the following definition for informed consent: 73

Informed decisions can be made only with knowledge of the purpose and nature, the consequences, and the risks of the treatment and rehabilitation supplied in plain language and other accessible formats.

As pointed out by the case of Christian Lawyers Association v Minister of Health, informed consent has 3 pillars namely knowledge, appreciation and consent.74 A termination of pregnancy cannot therefore occur unless a woman has given her consent after having been educated about the issue at hand.

The CRPD Committee has expressed concern in relation to forced treatment in mental health services without one’s free and informed consent.75 The Committee specifically recommended that states76 ‘incorporate into the law the abolition of surgery and treatment without the full and informed consent of the patient, and ensure that national law especially respects women’s rights under article 23 and 25 of the Convention’.

The Concluding Observation of the CRPD on the initial report of Argentina pointed out to the fact that legal guardians of persons with mental disabilities can give authorisation for an abortion on their behalf and this can lead to the choice of the person not being respected.77 It recommended the following to the state:78

[T]ake steps to provide the necessary support to women under guardianship or trusteeship to ensure that the women themselves are the ones who give their informed consent for a legal abortion or for sterilization.

Terminating the pregnancy of a PWD without her consent will have a very serious impact on her enjoyment of the rights enshrined in the Constitution. Her constitutional rights will not only be limited but will be waived. She will be in a situation where her personal will has no importance and she will be treated as an object which has to live its life according to the recommendations of other persons.

Therefore, a state has an obligation to ensure that there is full and informed consent before subjecting any woman, including one with a mental disability, to any medical intervention. Section 5 of the CTPA does not provide for the informed consent of the woman whose pregnancy is to be terminated and this contravenes article 25 of the CRPD.

3.3 Right to dignity

The right to dignity is recognised by both the CRPD and the Constitution. The CRPD makes reference to dignity in several of its provisions and one of the general principles of the CRPD is the ‘respect for inherent dignity’ of PWDs. 79

The CRPD has as its purpose the promotion of respect for the inherent dignity of PWDs.80 Section 10 of the Constitution protects the right to dignity. It provides that ‘everyone has inherent dignity and the right to have their dignity respected and protected’. The right to dignity is asserted in the Constitution ‘to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings’.81 It is a ‘value’ which ensures that there is a proper interpretation of ‘many, possibly all, other rights’.82 The case of Makwanyane gave considerable weight to the right to dignity and emphasised that the right to dignity is the cornerstone of the Constitution and is one of the values upon which the state is founded83 and that ‘this must be demonstrated by the State in everything that it does’.84 The Constitution requires South Africa to ‘acknowledge the value and worth of all individuals as members of our society’.85 Coupled with the right to life, the right to dignity is considered as ‘absolute’ and as ‘the source of all other rights’. 86

Although dignity is a term which does not have a precise definition,87 ‘it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society’.88 Concerning PWDs, dignity implies that they are treated ‘first as people and only then with people of particular characteristics’ and that treatment should not be based ‘on some idea about the person’s disability’.89

PWDs’ right to dignity can be infringed if there is a recommendation for the termination of her pregnancy since it subjects her to different treatment due to her living with a disability. According to O’Sullivan and Bailey, ‘denying a woman the freedom to make and act upon decisions concerning reproduction treats her as a means to an end and strips her of her dignity’.90 Section 5(4)(a) of the CTPA provides for the termination of the pregnancy of a woman who has a severe mental disability. However, the section ignores that by categorising them as people who are unable to decide whether they can bear children, it is classifying them according to their disability and not recognising them as individuals who are entitled to enjoy motherhood. The section is therefore offensive to women who live with mental disabilities since it denies them access to their fundamental rights and freedoms.91

3.4 Right to equal recognition before the law

Article 12 of the CRPD provides for the right of PWDs to equal recognition before the law. It further imposes on states the obligation ‘to ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law’. The right to equality is expressly protected by section 9 of the Constitution. Section 9(1) provides that ‘everyone is equal before the law and has the right to equal protection and benefit of the law’. The right to equality ‘includes the full and equal enjoyment of all rights and freedoms’.92 The Constitution strives to ‘develop a society based on equality and respect by all for all’. 93

Concerning PWDs, their right to equality is ‘inherent in their humanity, which means that they possess the same rights and obligations as other citizens’.94 The case of Shtukaturov v Russia is an application of the wording of article 12 of the CRPD where the ECtHR held that even if a person is placed under guardianship, his will has to be taken into consideration when the subject matter potentially violates his fundamental rights and freedoms.95 Therefore, persons with mental disabilities are all human beings who should be afforded the same opportunity as others. The law should not view PWDs differently on the basis of their disability.96 Such a step would include affording the PWD the opportunity to consent to the termination of their pregnancy.

Furthermore, General Comment 1 of the CPRPD Committee expands upon article 12 of the CRPD.97 Paragraph 31 of the CRPD General Comment recognises that women with disabilities ‘are often denied control of their reproductive health and decision-making’. The CRPD General Comment raises concerns about PWDs being denied their legal capacity because of the ‘unsoundness’ of their mind.98 The CRPD Committee, while making reference to the CRPD, clarifies that ‘perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity’. Section 5(4)(a) of the CTPA is a reflection of removing the legal capacity of PWDs on the basis of them having ‘impaired decision-making skills ... because of a cognitive or psychosocial disability’.99 This practice has been considered as being discriminatory towards PWDs. 100

Discrimination on the basis of disability is defined by the CRPD as follows: 101

[A]ny distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

The CRPD considers non-discrimination as one of its principles.102 The Preamble mentions that all human beings, without discrimination on the basis of their disability, must be guaranteed the full enjoyment of all their human rights and fundamental freedoms.103 It further recognises that ‘discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person’.104 The CRPD also acknowledges that there are aggravated forms of discrimination against PWDs on the basis of sex amongst others.105 The CRPD imposes an obligation on states parties ‘to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities’.106 Article 5 expressly provides that there should be prohibition of ‘all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds’.107 There should be ‘reasonable accommodation’ to prevent any form of discrimination against PWDs.108 The CRPD further recognises the vulnerability of women with disabilities and has a specific provision relating to their protection. 109

The right to equality as enshrined in the UDHR ensures that everyone benefits from their human rights in the same manner.110 Article 5 of the CRPD protects the right to equality of PWDs. It provides that PWDs are entitled to ‘equal protection and equal benefit of the law’. Similar to human dignity, achievement of equality is one of the founding provisions of the Constitution of South Africa.111 Furthermore, the Bill of Rights ‘affirms the democratic values of human dignity, equality and freedom’. 112

The Constitution provides for non-discrimination in its section 9. Section 9(3) of the Constitution protects PWDs from discrimination as follows:

The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Disability is listed as a ground on which there should not be discrimination. This provision has been applied in the case of Western Cape Forum for Intellectual Disability v Government of the RSA113 where it was held that the state education policy and practice constituted unfair discrimination under section 9(3) of the Constitution as the funding and provisions of schools accommodating children with disabilities was inferior to that of children with no disabilities.

To ensure that the best interests of the PWD is protected, section 5(4)(a) of the CTPA does provide for the consent of two medical practitioners or that of a medical practitioner and that of a midwife who has completed the prescribed training course in relation to the termination of the pregnancy of a person who is severely mentally disabled.114 Nevertheless, two different persons may have different opinions and this is an example of the incapacity to provide for ‘a rational explanation as to why similarly placed persons are treated in a substantially different way’. There is therefore unequal treatment since the same category of persons can be treated differently. Since the act does not define who a person with a severe mental disability is, it is arbitrary and not of general application. 115

Recommending a termination of pregnancy for a PWD will constitute a violation of her right to equal recognition before the law and subsequently the right to be protected from discrimination. That recommendation will be made on behalf of the PWD only based on the fact that the PWD has a mental disability and does not have the mental capacity to make reasonable decisions. If she was without the mental disability, she would not be deprived from having a child. The CRPD clearly stipulates that women with disabilities are more vulnerable to discrimination.

4 Conclusion and recommendations

It has been observed that section 5 of the CTPA violates several provisions of the CRPD. These violations could be justified in terms of section 36 of the Constitution but as analysed in the paper, limiting the right of a woman with a mental disability to decide whether she wants to terminate her pregnancy or not is not justified since it does not fulfil the conditions listed in section 36 of the Constitution. The major recommendation is to have certain amendments made to section 5 of the CTPA so that it does not continue to violate the rights of persons with mental disabilities. The amendments, if implemented will ensure that South Africa abides by its general obligations under the CRPD, one of which is ‘[t]o take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities’.116

The first problem identified with section 5 of the CTPA is that it does not offer the woman with the mental disability the choice whether she wants to keep the child or not. It is thereby recommended that the section should be amended to provide for a procedure whereby the views of the woman is considered while terminating her pregnancy. By doing so, the right to reproductive choice of the woman will be respected. The authors acknowledge that it can be challenging for a woman with a severe mental disability to freely make a decision as to whether she wants to continue with her pregnancy or not. It is therefore further recommended that this section incorporates the principles of free and informed consent. This will ensure that the persons who are terminating the pregnancy at least explain to the woman with the mental disability all the aspects of the termination and its implication. By not providing for this option in the current law, the right to reproductive choice and the right to give free and informed consent for the termination of the pregnancy is completely overlooked.

Another argument advanced for the termination of the pregnancy of a person who has a mental disability is that she will not be in a position to understand the gravity of the situation since her life or that of the fetus might be at risk. It is being proposed that section 5 of the CTPA is amended to include the conduct of a social enquiry report in the event a person with a mental disability has refused to terminate her pregnancy after having been fully informed about what the pregnancy entails. The social enquiry should give details about the family background of the person and about whether the PWD has the capacity to make rational decisions. This process will give effect to the provisions of the CRPD which emphasise reasonable accommodation which has been defined as follows: 117

[N]ecessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms

The exploration of other avenues concerning the ability of the PWD to make the right informed decision would give effect to the principle of reasonable accommodation.

It has also been noted that the Act does not clearly define what a severe mental disability is. The WHO, while defining mental disorders, gave examples of that type of disability. However, the list can be considered as non-exhaustive. As discussed above, a mental illness is temporary and can be cured. The medical practitioner can prescribe medicines to reduce the severity of the mental disability and this would thus empower the woman to make a decision concerning the termination. In the same line of thought, the act does not make reference to intellectual disabilities which is life-long and cannot be dissipated. The question which arises is whether while conducting the examination, the medical practitioners make a distinction between mental and intellectual disability. Most of the times, mental disabilities and intellectual disabilities are confused and people with intellectual disabilities also fall within the rubric of persons targeted by section 5 of the CTPA. It is recommended that the CTPA gives a precise ambit within which section 5 should operate so that it does not impede upon the rights of persons with intellectual disabilities.


1. United Nations enable ‘Factsheet on persons with disabilities’, available at http://www.un.org/disabilities/default.asp?id=18 (accessed 13 March 2014).

2. Para (j) of the Preamble to the CRPD.

3. Art 1, para 1 of the CRPD.

4. Art 1, para 2 of the CRPD.

5. Website of the WHO, available at http://www.who.int/topics/mental_disorders/en/ (accessed 30 March 2014).

6. WHO ‘Mental health and development: Targeting people with mental conditions as a vulnerable group’ (2010) vii, available at http://whqlibdoc.who.int/publications/2010/9789241563949_eng.pdf (accessed 30 March 2014).

7. D Mechanic & J Tanner ‘Vulnerable people, groups, and populations: Societal view’ (2007) 26 Health Affairs 1220, available at http://content.healthaffairs.org/content/26/5/1220.full (accessed 30 March 2014).

8. United Nations Treaty Collection Databases, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=iv-15&chapter=4&lang=en (accessed 30 March 2014).

9. SN Daftary & SV Desai Selected topics in obstetrics and gynaecology -4: For postgraduates and practitioners (2008) 118.

10. WHO ‘Safe abortion: Technical and policy guidance for health systems’ (2012) iv, available at http://apps.who.int/iris/bitstream/10665/70914/1/9789241548434_ eng.pdf (accessed 30 March 2014).

11. WHO (n 10 above) 42.

12. WHO (n 10 above) 18.

13. 92 of 1996.

14. S Guttmacher et al ‘Abortion reform in South Africa: A case study of the 1996 Choice on Termination of Pregnancy Act’ (1998) 24 International Family Planning Perspectives 191.

15. ANC ‘A basic guide to the Reconstruction and Development Programme’, available at http://www.anc.org.za/show.php?id=234 (accessed 25 March 2014).

16. B Klugman & SJ Varkey ‘From policy development to policy implementation: The South African Choice on Termination of Pregnancy Act’ in B Klugman & D Budlender (eds) Advocating for abortion access: Eleven country studies (2001) 255.

17. C Pickles ‘Termination-of-pregnancy rights and foetal interests in continued existence in South Africa: The Choice on Termination of Pregnancy Act 92 of 1996’ (2012) 15 PER 403 427, available at http://www.nwu.ac.za/sites/www.nwu.ac.za/files/files/p-per/issuepages/2012volume15no5/2012%2815%295Pickles.pdf (accessed 25 March 2014).

18. F van Oosten ‘The Choice on Termination of Pregnancy Act: Some comments’ (1999) 116 South African Law Journal 60 62.

19. Sec 5(5) of the CTPA.

21. Intellectual Disability Rights Service - Criminal Justice Support Network ‘A step-by-step guide to section 32 applications’, available at http://www.idrs.org.au/s32/_guide/p040_4_2_IDandMI.php#.Uzlu3aiSwVY (accessed 30 March 2014).

22. WHO’s definition for mental disorders, available at http://www.who.int/topics/mental_disorders/en/ (accessed 4 June 2014).

23. Mosby’s Medical Dictionary 8th edition (2009).

24. Global Campaign to Stop Torture in Health Care ‘Sterilization of women and girls with disabilities: A briefing paper’ (2011) 1.

25. S Moore Social welfare alive (2002) 401.

26. P Tassoni et al Children’s care, learning and development (2005) 315.

27. As above.

28. As above.

29. G Quinn & T Degener Human rights and disability: The current use and future potential of United Nations human rights instruments in the context of disability (2002) 11.

30. Purohit v The Gambia (2003) AHRLR 96 (ACHPR 2003).

31. C Ngwena ‘Deconstructing the definition of “disability” under the Employment Equity Act: Social deconstruction’ (2006) 22 South African Journal on Human Rights 613.

32. Tassoni et al (n 26 above) 315.

33. M Crossley ‘Disability kaleidoscope’ (1999) 74 Notre Dame Law Review 649.

34. As above.

35. South African Integrated National Disability Strategy White Paper (November 1997), available at http://www.info.gov.za/whitepapers/1997/disability.htm (accessed 5 November 2012).

36. Tassoni et al (n 26 above) 315.

37. As above.

38. Para (e) of the Preamble of the CRPD.

39. R Traustadóttir ‘Disability studies, the social model and legal developments’ in OM Arnardóttir & G Quinn (eds) The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives (2009) 16.

40. Tassoni et al (n 26 above) 315.

41. M Oliver Social work with disabled people (1983) 23.

42. AL Chappell ‘Still out in the cold: People with learning difficulties and the social model of disability’ in T Shakespeare (ed) The disability reader: Social science perspectives (1998) 211.

43. Quinn & Degener (n 29 above) 10.

44. Women’s rights without frontiers ‘What is a forced abortion?’, available at http://www.womensrightswithoutfrontiers.org/index.php?nav=forced_abortion (accessed 20 March 2014).

45. Target 5.B of the MDG 5.

46. UN website, available at http://www.un.org/millenniumgoals/maternal.shtml (accessed 6 November 2012).

47. BM Ahlberg & A Kulane ‘Sexual and reproductive health and rights’ in S Tamale (ed) African sexualities: A reader (2011) 313.

48. V Kallianes & P Rubenfeld ‘Disabled women and reproductive rights’ (1997) 12 Disability and Society 203.

49. Kallianes & Rubenfeld (n 48 above) 204.

50. A Asch ‘Reproductive technology and disability’ in N Taub & S Cohen (eds) Reproductive laws for the 1990s: A briefing handbook (1988) 87.

51. Roe v Wade 410 US 113 (1973).

52. LM Brown ‘Feminist theory and the erosion of women’s reproductive rights: The implication of fetal personhood laws and in vitro fertilization’ (2005) 13 Journal of Gender, Social Policy & the Law 87 89.

53. L Sayce & R Perkins ‘“They should not breed”: Feminism, disability and reproductive rights’ (2002) 32 Off Our Backs 18 19.

54. Sec 27(1)(a) of the Constitution.

55. Art 14(1)(a).

56. MK Eriksson Reproductive freedom: In the context of international human rights and humanitarian law (2000) 10.

57. CESCR ‘General Comment No 14: The right to the highest attainable standard of health (Art 12 of the Covenant)’ 11 August 2000, E/C.12/2000/4.

58. Para 8 of General Comment No 14.

59. Art 15(1) of the CRPD.

60. Sec 12(1)(e) of the Constitution.

61. International Pen (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998); see also Doebbler v Sudan (2003) AHRLR 153 (ACHPR 2003) paras 36 and 37.

62. Human Rights Education Associates ‘The right to family’, available at http://www. hrea.org/index.php?base_id=158 (accessed 30 March 2014).

63. P Paupenoe ‘The progress of eugenic sterilization’ (1934) 25 The Journal of Heredity 19 21.

64. Buck v Bell 274 US 200 (1927).

65. Buck v Bell (n 64 above) 207.

66. Buck v Bell (n 64 above) 209.

67. UN Committee on the Elimination of Discrimination Against Women ‘General Recommendation No 19: Violence against women, article 16 (and article 5) of the Convention (Women and Health)’ (1992) para 22; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the UN Human Rights Council ‘Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development’ A/HRC/7/3 (2008) paras 38 and 39; UN Committee Against Torture ‘General Comment No 2: Implementation of article 2 by States Parties’ CAT/C/GC/2 (2008) para 22; Human Rights Committee ‘General Comment No 28: Equality of rights between men and women’ CCPR/C/21/Rev.1/Add.10 (2000) paras 11 and 20; UN Committee on the Rights of the Child ‘General comment No 13: Article 19: The right of the child to freedom from all forms of violence’ CRC/C/GC/13 (2011) 17 paras 16 and 21.

68. The guardianship of Joan I. Eberhardy, Incompetent: Quintin Eberhardy and Mary Eberhardy, guardians v Circuit Court for Wood County 307 Wisconin Supreme Court (1981), available at https://www.courtlistener.com/wis/9zJf/in-matter-of-guardianship-of-eberhardy/ (accessed 23 June 2014).

69. Eberhardy (n 68 above) 893.

70. Eberhardy (n 68 above) 896-897.

71. VC v Slovakia Application No: 18968/07 ECtHR (2011).

72. I Currie & J de Waal The Bill of Rights Handbook 5 ed (2005) 179.

73. International Disability Caucus ‘Article 21‒ Health and informed consent’.

74. Christian Lawyers Association v Minister of Health 2005 (1) SA 509 (T) 515.

75. CRPD Committee Concluding observations: Tunisia, para 28, UN Doc CRPD/C/TUN/CO/1 (2011).

76. Concluding observations: Tunisia (n 75 above) para 29.

77. CRPD Committee Concluding Observations on the Initial Report of Argentina as approved by the Committee at its eighth session (17-28 September 2012) CRPD/C/ARG/CO/1 para 31.

78. Concluding Observations on the Initial Report of Argentina (n 77 above) para 32.

79. Art 3(a) of the CRPD.

80. Art 1 of the CRPD.

81. Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC) para 35.

82. As above.

83. Sec 1(a) of the Constitution.

84. S v Makwanyane 1995 (3) SA 391 (CC) para 144.

85. National Coalition for Gay and Lesbian Equality & Anor v The Minister of Justice & Others 1999 (1) SA 6 (CC) para 28.

86. Makwanyane (n 84 above) paras 84 and 144.

87. Egan v Canada (1995) 29 CRR (2d) 79 106.

88. The National Coalition for Gay and Lesbian Equality (n 85 above) para 28.

89. LA Basser ‘Human dignity’ in MH Rioux et al (eds) Critical perspectives on human rights and disability law (2011) 36.

90. M O’Sullivan & C Bailey ‘Reproductive rights’ (1998) 16-15, available at http://www1.chr.up.ac.za/chr_old/centre_publications/constitlaw/pdf/16-Reproductive%20 Rights.pdf (accessed 30 March 2014).

91. I Grobbelaar-du Plessis & T Van Reenen ‘Introduction to aspects of disability law in Africa’ in I Grobbelaar-du Plessis & T van Reenen (eds) Aspects of disability law in Africa (2012) xvi.

92. Sec 9(2) of the Constitution.

93. Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) para 59.

94. J Lecomte, West Montreal and Lisette-Dupras Readaption Centres, Quebec and Céline Mercier, University of Montreal, Quebec ‘The emergence of the human rights of persons with intellectual disabilities in international law: The cases of the Montreal Declaration on International Disabilities and the United Nations Convention on the Rights of Persons with Disabilities’ in F Owen & D Griffiths (eds) Challenges to the human rights of people with intellectual disabilities (2009) 52.

95. Shtukaturov v Russia Application No: 44009/05 ECtHR (27 March 2008).

96. As above.

97. Committee on the Rights of Persons with Disabilities ‘General Comment 14 - Article 12: Equal recognition before the law’ (2014) CRPD/C/GC1 adopted during the eleventh session (31 March-11 April 2014).

98. Para 12 of the CRPD General Comment.

99. Para 13 of the CRPD General Comment.

100. As above.

101. Art 2 of the CRPD.

102. Art 3(b) of the CRPD.

103. Para (c) of the Preamble of the CRPD.

104. Para (h) of the Preamble of the CRPD.

105. Para (p) of the Preamble of the CRPD.

106. Art 4(b) of the CRPD.

107. Art 5(2) of the CRPD.

108. Art 5(3) of the CRPD.

109. Art 6 of the CRPD: ‘(1) States Parties recognize that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms. (2) States Parties shall take all appropriate measures to enjoy the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention.’

110. Art 1 of the UDHR.

111. Sec 1(a) of the Constitution.

112. Sec 7(1) of the Constitution.

113. Western Cape Forum for Intellectual Disability v Government of the RSA 2011 (5) SA 87 (WCC).

114. Art 5(4) of the CTPA.

115. Sec 36(1) of the Constitution.

116. Art 4(1)(b) of the CRPD.

117. Art 2 of the CRPD.


  • Sue Philpott
  • Centre for Disability Law and Policy, University of the Western Cape


This article originated from a paper presented at the Conference on Disability Rights in Africa, University of Pretoria, November 2013.


Summary

In the light of growing recognition of the importance of early childhood development in South Africa and internationally, the CRPD provides important pointers regarding the rights of young children with disabilities. A critique of selected South African legislation and policies is provided through the lens of the CRPD, identifying key gaps and inconsistencies. The article concludes by making recommendations as to how the ‘transformative potential’ of the CRPD could be tapped with respect to advancing the rights of children with disabilities to early childhood development services.

1 Introduction

There has been growing awareness of the importance of early childhood development (ECD) on the well-being of young children and its far-reaching impact on later stages of their lifespan.1 Inclusion of ECD as a priority in the National Development Plan of the South African government reflects the (political) importance being placed on services for children in the early years.2 But given the on-going challenges with access and quality of services for young children with disabilities (as documented in a recent national situation analysis),3 there is reason to seek instruments by which to evaluate current South African legislation and policy on ECD with respect to rights of children with disabilities. One such instrument is the Convention on the Rights of Persons with Disabilities (CRPD)4 a human rights treaty ratified by the South African government in 2008.

The CRPD provides a valuable tool and standard for critique for several reasons. First, it is an international rights treaty specifically addressing disability, taking cognisance of the unique circumstances of adults and children with disabilities. Secondly, the rights-based approach on which it is based emphasises respect, support and celebration of diversity by creating conditions that allow meaningful participation by a wide range of people, including those with disabilities. Thirdly, each of the broad categories of rights contained in the CRPD can be related to elements of ECD: there are rights relating to protection against the abuse of power, rights intended to nurture the capacities of persons with disabilities towards participation as equals in society, and rights that empower them to take up opportunities emerging from a strategy of equality.5 Finally, because the South African government is a state party to the CRPD, it is under an obligation to promote the realisation of human rights for all persons with disabilities in various ways, including ‘legislative, administrative and other measures’. A critique made using the framework of the CRPD thus directly informs government obligations with respect to the rights of children with disabilities.

But even beyond its status as a human rights treaty, the CRPD has been acknowledged as being a developmental tool6 insofar as it affirms the inherent dignity of every person, regardless of disability or difference, placing on society the obligation to support individual freedom and equality, including providing support to those who need it.7 The CRPD thus provides 'a moral compass for change as well as legal benchmarks against which to measure that change’.8 However, Quinn has observed that the extent to which the CRPD can contribute to such change depends on whether states acknowledge ‘the contradiction between [our] universal human rights and [our] practice on disability,9 and embrace its ‘domestic institutional architecture for change’.10

This brings us to the focus of this paper - to evaluate current South African law and policy on ECD in light of the letter, spirit and emerging interpretations of the CRPD. But before viewing ECD-related legislation and policies through the lens of the CRPD, it is necessary to delineate what these services encompass and establish their particular importance for children with disabilities.

2 Nature and scope of ECD services and their significance for children with disabilities

2.1 Nature and scope of ECD services

Early childhood has been defined by UNESCO as covering the period from birth to school-going age,11 while other definitions also include the period of gestation.12 In South Africa, it is recognised that children born into situations of poverty are more likely to be exposed to conditions that are adverse for development (such as nutritional deficiencies and preventable diseases), and services to support the development of young vulnerable children have been identified as an ‘essential package’ comprising five components.13

2.1.1 Nutrition

From the last months of gestation until the age of two, the child’s brain is undergoing a period of accelerated growth, especially of the central nervous system. This process requires higher amounts of energy than any other stage in the child’s lifespan, and therefore sufficient amounts of nutrients are required for optimal growth of the foetus and young child. Support for young children includes maternal education on the importance of breastfeeding as well as provision of vitamins, supplements (such as vitamin A and folate) and micronutrients to improve the nutritional status of mothers and young children,14 particularly for children who fail to thrive, namely gain weight as expected.

2.1.2 Health services

Mothers and young children require health services during the periods of pregnancy, childbirth and early childhood. Services for pregnant women include antenatal and obstetric care which aims to ensure optimal health for both mother and newborn. Preventive health care for children under the age of five includes immunisations, while curative services address common childhood illnesses such as diarrhoea and pneumonia. During routine clinic visits children are also to be screened for developmental delays.

2.1.3 Social services

Social services are another component of the ‘essential package’ and include both social security and child protection services. Beginning with birth registration, children born to poor families may access social grants, intended to mitigate the effects of severe poverty by improving household food security, and reducing child malnutrition and its negative impact on the developing brain.15 Those subject to child abuse and neglect need to be provided with a responsive child protection system in which investigations are conducted and concluded timeously and victims provided with the necessary support.

2.1.4 Caregiver support

Fourthly, affectionate and responsive care-giving is a key factor required for the well-being of children and for healthy brain development,16 and it is during the period of early childhood that young children need to form strong emotional attachments to their parents and/or primary caregivers. Support for caregivers includes both information on parenting as well as psycho-social support. The latter is important as many caregivers living in situations of poverty carry a significant burden of care. Where a caregiver is suffering from depression or other psychological distress, his or her ability to provide a safe and nurturing environment is reduced, with research showing an association between caregiver depression and child malnutrition,17 disturbed mother-infant interactions and poor parenting and safety practices.18 Psycho-social support is thus important to promote the well-being of caregivers and reduce the risk of poor care-giving.

2.1.5 Opportunities for early learning

Finally, all young children need opportunities for early learning, which includes opportunities to develop physical, socio-emotional, communi-cation and language and cognitive skills. Research indicates that the ‘architecture’ of the developing brain and the process of skill formation are shaped by the influences of both genetics and experience.19 Thus the environmental conditions to which young children are exposed - including the quality of relationships and the language environment - are instrumental in ‘sculpting’ the developing brain.20 For children growing up in poor families, access to quality early learning opportunities prior to formal schooling has been shown to enhance their capacity to benefit from schooling, reduce their rate of dropout and increase the chances that they will be employed as adults.21 Support for early learning of young children may be provided through formal, centre-based services, as well as through outreach programmes such as home visiting, community playgroups and toy libraries. Outreach programmes are based on the premise that supporting parents with additional knowledge and skills about parenting will strengthen their ability to provide a nurturing and stimulating environment for their child.22

2.2 Significance of ECD for children with disabilities

ECD services are significant for all young children, because the impact of interventions at this level by and large cannot be replicated later in life. But particularly for children with disabilities, they provide the opportunity for early intervention. Early intervention services are based on the premise that it is possible to improve outcomes such as cognitive, emotional and social skills of young children, and thus reduce or eliminate the impact of risk factors. For children with disabilities, early intervention has the potential to prevent or minimise further delays or secondary complications.23 They comprise a range of strategies to promote children’s personal development and resilience, strengthen families and facilitate social inclusion of children with disabilities.24

Model early childhood programs that deliver carefully designed interventions with well-defined objectives and that include well-designed evaluations have been shown to influence the developmental trajectories of children whose life course is threatened by socioeconomic disadvantage, family disruption, and diagnosed disabilities. Programs that combined child-focused educational activities with explicit attention to parent-child patterns and relationship building appear to have the greatest impacts.25

On an economic level, early intervention is a sound investment, with research showing that appropriate interventions for young, highly vulnerable children produce better outcomes and cost less than later remediation.26 Thus investment in early childhood has been described as a situation of ‘pay now or pay more later’.27

ECD services also provide an opportunity for social inclusion, with pre-school programmes for young children referred to as ‘fertile ground for high quality inclusive education’.28 Indeed, there is a unique opportunity for inclusion at this level because young children mature at varying rates, and differences in skills are expected and accommodated within the curriculum. In addition, early childhood teaching practices encourage child-initiated learning and active engagement of children with the environment and with each other.

Early childhood inclusion embodies the values, policies and practices that support the right of every infant and young child and his or her family, regardless of ability, to participate in a broad range of activities and contexts as full members of families, communities and society. The desired results of inclusive experiences for children with and without disabilities include a sense of belonging and membership, positive social relationships and friendships, and development and learning to reach their full potential.29

Conversely, failure to adopt inclusive practices within early childhood services is likely to have adverse consequences on development of children with disabilities ‘including limiting the full range of stimulation that children can experience, restricting social and educational learning opportunities and perhaps creating low expectations for achievement’.30

Finally, ECD has the potential to reduce inequalities because (regardless of underlying factors) interventions can compensate for vulnerability and disadvantage.31 It is thus not inevitable that children with disabilities will be trapped in an inter-generational cycle of poverty and exclusion. The Commission on the Social Determinants of Health found comprehensive ECD services to influence subsequent life chances and health of children, reducing the risk of obesity, malnutrition, mental health problems, heart disease and criminality.32 Referring to ECD as ‘a powerful equalizer’ this report concluded that investment in young children provides one of the greatest opportunities to reduce health inequalities within a generation.

3 Evaluative framework provided by the CRPD

The CRPD provides an evaluative framework by which to assess state action both by virtue of the general obligations which it places on the state, as well as through specific substantive articles.

3.1 General obligations of the state under the CRPD
3.1.1 Legislative, administrative and other measures

Under the CRPD, the state must adopt legislation where necessary, repeal inconsistent legislation, and mainstream disability into policy formulation and programming towards realising the rights of persons with disabilities.33 This implies that all policies and programmes relating to ECD need to take cognisance of children with disabilities and how their rights can be ensured and promoted.

The CRPD sets out the general obligations of the state, which are closely linked to its general principles.34 Respect for dignity, non-discrimination, inclusion, participation and accessibility are to be the basis for legislative, administrative and other measures of implementation.

Equality and non-discrimination

The principle of equality and non-discrimination in the CRPD reflects ‘substantive equality’ ‘[which] does not mean treating everyone in exactly the same way. Indeed, accommodating people’s differences is the essence of substantive equality, and ... key to eliminating discrimination against people with disabilities’.35 This stance is based on the Standard Rules for the Equalisation of Opportunities for Persons with Disabilities which refer to the principle of equal rights as implying that

... the needs of each and every individual are of equal importance, that those needs must be made the basis for the planning of societies and that all resources must be employed in such a way as to ensure that every individual has equal opportunity for participation.36

The CRPD requires states to prohibit all forms of discrimination against persons with disabilities ‘by any person, organisation or public enterprise’. Denial of reasonable accommodation is viewed as a form of disability discrimination and thus the CRPD requires states to prohibit such denials and to do so immediately, because it is not a right to which the principle of progressive realisation applies.37 And as the focus of reasonable accommodation is on the individual, interventions to remove barriers must be uniquely tailored to their situation. These may necessitate changes to practices, the physical environment or the provision of additional equipment or support. The obligation to provide reasonable accommodation is subject to ‘disproportionate or undue burden’, thus requiring consideration of the impact of making the relevant changes on the entity concerned.

Inclusion and participation

The CRPD adopts a two-pronged approach towards ensuring that children with disabilities are included and able to participate in society. First, there is a need to remove general societal barriers, enabling them to have access to mainstream services and facilities.38 Indeed, the right to access is enshrined in article 9 and, as a general principle, it applies to all areas of implementation.39 This means that (under article 19(c)) states must ensure that ‘community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs’. States are required to take steps to ensure that people with disabilities are able to access the physical environment, which includes ‘buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities ...’40 In working towards this, it is necessary to develop and implement minimum standards for accessibility of public facilities.

The CRPD also provides for disability-focused services that facilitate participation and inclusion. For example, article 26 defines habilitation and rehabilitation as a means of enabling people with disabilities to ‘attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life’. These are not limited to medical and health-related services, but are to be provided in the areas of health, education, social services and life skills.

The CRPD also makes it clear that realising the rights of persons with disabilities is not limited to the provision of disability-related services, but includes the adoption of measures to change attitudes and practices that stigmatise and marginalise people with disabilities. The state is to take action to eliminate discriminatory practices against persons with disabilities on the part of any person, organisation or private enterprise.41 There needs to be mechanisms in place to guard against discrimination on the basis of disability within services targeting young children, including those run by the private sector.

It is also necessary to put in place legislation and policies that remove barriers to the exercising of rights, and provide programmes, awareness and social support to change the way society operates, in order to give adults and children with disabilities opportunities to participate fully.42 States have the responsibility to take positive steps to promote the development and availability of universal design and assistive technology. Principles of universal design should be incorporated in ECD services, such that they are able to cater for the diversity of children. Indeed, the early childhood sector lends itself to inclusive practices based on the principles of universal design. The state also has an obligation to promote research and development of assistive technology, giving priority to technology that is affordable. This includes assistive technology and simple adaptations that could be made to support learning and development of young children with disabilities.

3.1.2 Progressive realisation to the maximum of available resources

A major challenge facing adults and children with disability is the fact that enjoyment of sectoral rights is often dependent upon resource allocations. Indeed, changing the social, political and legal environments so that people with disabilities will get more resources has been a major objective of the disability rights movement.43 As with other human rights instruments, the CRPD sets out the principle of progressive realisation for economic, social and cultural rights to the maximum of the states available resources.44

The notion of progressive realisation genuflects to an inescapable reality that resources are finite and some change take time. Yet this nod towards reality in the Convention does not rob the concept of some core meaning. There needs to be some positive dynamic in place ‒ it must be measurable and it should lead to positive results within a reasonable time frame.45

Even in a situation of economic recession, progressive realisation must maintain a minimum level of provision to ensure human dignity and autonomy, and avoid the tendency to cut back first against the weakest.46 States must therefore take positive action to reduce structural disadvantages, giving ‘appropriate preferential treatment’ to adults and children with disabilities, towards their full participation and equality.47

3.1.3 Monitoring implementation

The CRPD48 describes the monitoring and reporting process required of states parties. Schulze notes that the challenge associated with respect to monitoring the rights of persons with disabilities is ‘who gets to define the factors or statistical indicators for collecting data’, adding that the risk of inaccuracy is high, depending on whether the definition of disability is wide or narrow. Accuracy is also compromised by societal attitudes which may make parents reluctant to identify their child as being disabled.49

States must collect statistics and data collection in order to formulate and implement policies which give effect to the CRPD. Such information is to be disaggregated as appropriate and used to assess progress in implementation, as well as identify and address barriers faced by persons with disabilities in the exercising of their rights. These statistics must be disseminated and accessible to persons with disabilities and their representative organisations.

3.1.4 Consultation with persons with disabilities and their representative organisations

The CRPD emphasises the need to recognise the contributions that disabled adults and children have made (and will make) to society, and affirms that promotion of their rights towards full participation will lead not only to a sense of belonging but also to development of society and the eradication of poverty.50 There is an obligation on states to actively consult persons with disabilities and their representative organisations, and to establish mechanisms involving them in monitoring compliance with the provisions of the CRPD.51 This involvement is not seen as an optional extra, but as a ‘key tool to achieve conformity with the Convention’.52 This obligation is supplemented by the duty (imposed on states by Article 8) to raise awareness of the contribution and potential of disabled people, counter negative stereotypes and promote positive images of disability.53 In the context of young children with disabilities, engaging with parents of children with disabilities and their representative organisations is critical for the development of effective policies and programmes.

3.1.5 International co-operation

The CRPD also provides for international co-operation to support implementation, through capacity-building and exchange and sharing of information, experiences, training programmes and best practices.54 International organisations such as Inclusion International, UNESCO and Save the Children have been very active in promoting inclusive education, and tools and resources have been developed around the Sustainable Development Goals and the Education for All initiative. There is a need to extend these into the arena of ECD for young children with disabilities. The documentation and analysis of examples of good practice would assist states to identify practices that could be replicated and scaled up, as well as providing a framework to guide planning in the most effective use of available resources.55

3.2 Specific substantive rights relating to ECD services

In addition to the general obligations placed on states under the CRPD, there are a number of specific substantive rights which provide a benchmark against which to assess ECD interventions provided by the state. These include the article relating to children and articles that correspond to elements of the ‘essential package’ of ECD services.

3.2.1 Obligations of the state to children with disabilities

The precursor to the article on children (Art 7) is found in the Preamble (r) of the CRPD which provides that ‘children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by states parties to the Convention on the Rights of the Child’ (CRC). Indeed, the text of this article contains phrases almost identical to those of the CRC.56 Because of the close alignment between these treaties, tools developed for interpretation of the CRC57 give valuable insights into interpreting the rights of children with disabilities under the CRPD.

3.2.2 Obligations of the state with respect to ECD-related services

There are also provisions of the CRPD which correspond to components of the ‘essential package’ of services for young children.

Health

Under Article 25, adults and children with disabilities have the right to ‘the enjoyment of the highest attainable standard of health without discrimination on the basis of disability’. Children with disabilities are to be provided with access to health services which are available to all children, such as immunisation and growth monitoring. Further, health services are to include ‘early identification and intervention ... and services designed to minimize and prevent further disabilities’ (Art 25(b)).

For children with disabilities, early intervention involving stimulation and interaction with parents soon after birth is essential to development... Early identification can also be promoted through the preparation of all family members, especially parents, to monitor their child’s developmental progress through the use of simple instruments, strengthened with a basic understanding of children’s capacities at different stages.58

Under the CRPD, there are a number of features required of health services.59 Services need to be available (of sufficient quantity within the state party) and include measures that address underlying determinants of health.60 They also need to be accessible to everyone without discrimination, acceptable, scientifically and medically appropriate and of good quality.

With regard to disability-focused services that facilitate participation and inclusion, the CRPD places an obligation on states to ‘organise, strengthen and extend’ habilitation and rehabilitation services, which must begin at the earliest possible stage and support persons with disabilities to be independent and to participate in all aspects of society. Indeed, without the benefit of such interventions, it is likely that children with disabilities would not be able to realise the rights to accessibility and education.61 Habilitation and rehabilitation services should be offered at no cost, where possible, within a service that is efficient and with minimal delays.62 The state is responsible for ensuring that services are available in local communities, including rural areas.63

Adequate standard of living and social protection

The CRPD provides for an adequate standard of living and social protection, which includes adequate food, clothing and housing and the continuous improvement of living conditions. Under article 28, state parties must acknowledge the link between disability and poverty and respond by ensuring access to social protection and poverty reduction programmes. Particular mention is made of families living in conditions of poverty, obliging states parties to assist with ‘disability-related expenses’ which include training, counselling, financial assistance and respite care.64 States are required to realise this right through a number of different measures including access to clean water, appropriate and affordable services and housing. The CRPD65 also places on states the obligation to prevent exploitation, violence and abuse by providing age-appropriate assistance and support as well as protection services that are age- and disability sensitive. States must put in place child-focused legislation and policies to ensure that perpetrators of exploitation, violence and abuse of children with disabilities are identified, investigated and where found guilty, prosecuted.

Caregiver support

The CRPD recognises that ‘the family is the natural and fundamental group unit of society, and is entitled to protection by society and the state and that persons with disabilities and their family members should receive the necessary protection and assistance to enable family members to contribute to the full and equal enjoyment of rights ...’ (Preamble(x)). It provides for equal rights for children with disabilities with respect to family life.66

Article 16 requires that service providers acknowledge the processes by which children with disabilities mature, and offer guidance and support as necessary. Parents and other caregivers need particular support to ensure that children with disabilities are not over-protected or treated as babies, thus preventing them from acquiring the necessary competencies for increasing autonomy. In order to reduce the risk of the abandonment or hiding of disabled children, states have an obligation to ‘provide early and comprehensive information, services and support to children with disabilities and their families’.67 In line with the twin-track approach, community services that are provided for the general population are to be made available for children with disabilities, and disability-specific support services are to be provided to facilitate the inclusion of disabled adults and children and prevent their isolation.68

Education

Educational provisions in the CRPD are based on the view that inclusion is the most effective means of combating discriminatory attitudes and achieving education for all.69 It places on the state an obligation to develop an inclusive education system, specifically education that is provided for all children within the regular education system.70 UNESCO’s Guidelines for Inclusion stress that the earlier this is done the better.71

Article 24(1) focuses on the purpose of education, which is to be directed towards ‘the full development of human potential and sense of dignity and self-worth ...’ as well as development of individual ‘personality, talents and creativity’ and ‘mental and physical abilities to the fullest potential’. Although it does not make reference to pre-school education, the CRDP provides for an inclusive education system ‘at all levels’ with the necessary support within the general education system. Under the CRPD, the obligation of the state is to provide non-discriminatory access, reasonable accommodation and individualised support such that each child is able to develop to their full potential.

The premise that inclusive education nurtures a society in which children with disabilities are accepted and embraced and not stereotyped is reflected in article 8(2)(b) on awareness-raising, in which the state is to undertake measures to foster ‘at all levels of the education system, including all children from an early age, an attitude of respect for the rights of children with disabilities’.

4 Evaluation of selected ECD-related legislation and policy using the CRPD

As indicated above, the CRPD provides a useful standard with which to review legislation and policies providing for social services, social security, health and nutrition and education for young children with disabilities.

4.1 Social services

As the primary legal framework in South Africa that gives effect to children's rights to social services, the Children’s Act 38 of 2005 prohibits discrimination on the basis of disability, and adopts the social model of disability in addressing factors which limit the ability of children with disabilities to participate in different spheres of life.72 Indeed, extensive disability-related provisions have led to recognition of the Act as placing children with disabilities on ‘centre stage’.73 Section 11 (entitled ‘children with disability or chronic illness’) has the most direct provisions of the Act in relation to disability, and as one of the general principles, is to guide all proceedings, actions and decisions involving children with disabilities. It has been argued that this section contains all the elements of ECD for children with disabilities viz being treated with dignity, enabling their participation in community life and having support for primary carergivers.74

ECD has been defined in the Children’s Act as ‘the process of emotional, cognitive, sensory, spiritual, moral, physical, social and communication development of the child from birth to school-going age’.75 Although this definition is very broad, provisions of the Act relate almost exclusively to early learning and focus on services provided in centres. Little consideration is given as to what is needed at the level of the home or community to support parenting and the nutrition, learning and protection of the young child. The bias of the Act towards centre-based services is of particular concern with respect to children with disabilities, because parent education programmes, toy libraries and other similar outreach programmes provide important learning opportunities and parental support for children who are not able to access centres.

Under the Children’s Act, government has the responsibility to develop a national strategy towards providing a properly resourced, co-ordinated and managed ECD system, with an appropriate spread of services throughout the province and country, giving ‘due consideration’ to children with disabilities.76 This is an important provision for parents and organisations concerned with service delivery, especially organisations seeking funding and registration. Further, the information included in the records, strategies and profile required by the Act (in section 92) may be used to monitor government’s fulfilment of its obligations under the Act.77 Such monitoring is important to ensure timeous implementation, with clear time frames and budgets for service delivery. However, while the Act targets particular groups, its strategy omits civil society structures, such as parent organisations and disability-related NGOs. These groups have an important role to play and the relationship between the state and such organisations is of critical importance. Promoting the participation of such groups is one of the obligations of government under the CRPD if programmes are to be fully inclusive of children with disabilities.78

In funding ECD services, the Act states that priority must be given to poor communities and making services accessible to children with disabilities.79 Although it theoretically enables the MEC for Social Development to prioritise funding of ECD on this basis, the Act gives the MEC the discretionary power to provide and fund ECD services.80 Further, this limited directive to fund refers only to early learning services, not ECD more broadly. It thus reflects the limitation of the Children’s Act in defining ECD widely, but only regulating early learning facilities with no regulation of other ECD services.81 In addition, there is as yet no national strategy in place to promote their access to ECD services, a problem which is exacerbated by the funding model being used by the Department of Social Development which is not responsive to the needs of children with disabilities. And because information systems do not disaggregate data on children with disabilities it is not possible to measure targeted spending.82 Lack of adequate data collection systems for monitoring and planning services for children with disabilities constitutes a violation of the States obligations under the CRPD.83

4.2 Social security

The Social Assistance Act 13 of 2004 gives effect to the constitutional right of access to social security for people who are unable to support themselves and their dependents, and to children’s right to social services.84 Recognising the extra care required and costs incurred as a result of disability, the Act provides for social assistance for children with disabilities in the form of the Care Dependency Grant (CDG). This is a non-contributory monthly cash transfer, payable to a caregiver of a child who ‘requires and receives permanent care or support services due to his or her physical or mental disability’.85 To qualify for the grant, the child is required to undergo a medical assessment and the parent must pass a means test. As of May 2014, the value of the CDG is R1 350 per month. Research has shown that the CDG contributes to improving the standard of living of children with disabilities by enabling caregivers to purchase better quality food, pay costs of transport to health facilities, purchase medicines and improve housing.86 Although (in the absence of accurate disability prevalence rates) it is not possible to calculate the take-up rate, it is estimated that the CDG is reaching only a quarter of children with severe disabilities.87

Using the CRPD as a standard, two particular areas of concern emerge in relation to the Social Assistance Act and children with disabilities. The first is that the assessment process for the CDG is based primarily on the medical model of disability, determining the severity of the child’s health condition or impairment by means of an assessment by a medical practitioner. There is failure to take cognisance of factors other than the impairment in the determination of disability. This leads directly to the second concern viz the tendency to view social assistance only as a means of improving the standard of living of children with disabilities. Given the high levels of poverty in the country, this is laudable, but it does not go far enough. Instead, in line with the CRPD, access to social security should be promoted in tandem with strategies to equalise opportunities and create environments in which children with disabilities can thrive. In summary, social security should be viewed as one element of the ‘essential package’ of services that enables children with disabilities to be included and benefit from all other elements, including opportunities for early learning, towards developing to their full potential.

4.3 Health and nutrition

Since promulgating the National Health Act 61 of 2003, the Department of Health has undertaken a process of ‘re-engineering primary health care’.88 This is one of several initiatives to improve health services,89 and has three prongs, viz strengthening of the district health system, greater emphasis on delivery of community-based services and a focus on the social determinants of health.90 It includes three programmes, viz primary health care outreach teams,91 school health teams, and district clinical specialist teams (DCSTs).92 It is anticipated that a renewed focus on primary health care (PHC) will improve access to health services and address persisting inequalities in the health sector, especially in rural areas. It will also be a means of strengthening referral systems to manage patients at regional and district levels.

There are two provisions of the Re-engineering Strategy which are of particular importance for health services for children with disabilities. First, the Integrated Management of Childhood Illness (IMCI)93 - referred to by the Minister of Health as ‘the cornerstone of child health service provision at PHC level’94 - is a principal strategy to improve child health, especially in poor communities.95 As an intervention in response to the crisis of high maternal and child deaths in the country, the primary focus of IMCI is prevention and curative treatment of common illnesses of childhood (such as diarrhoea, pneumonia and HIV). However, there is no clear directive given when ‘cure' is not effective and a child develops a permanent impairment (such as hearing loss). The IMCI protocol contains a section on 'special risk factors' (which include the mother's death, prematurity or low birth weight, a teenage mother, or a birth defect), but there is very little guidance on how to deal with them.96 There is no mention of therapists as a possible option for referral, although they are included on the Chart of Developmental Milestones in the Road to Health Booklet. Having been effective in reducing child mortality, it is now anticipated that the ‘Care for Development’ component of the IMCI at community level, will be expanded as a potential early intervention tool.97 This would be in line with the state obligations under the CRPD.

Secondly, the Re-engineering of PHC details community-based services to support people with non-communicable diseases. This includes conducting household visits to identify those with chronic diseases and disabilities, oral health or visual or hearing impairments. There is also identification and management of common health problems and the provision of basic stroke support and rehabilitation services. Community-based services are to include identification of at-risk households and individuals and promoting of information and support on appropriate home care, such as infant and young child feeding. Significantly, services focusing on chronic diseases do not make reference to the disabling effects of different conditions, nor do they refer to specific conditions affecting children. Although consideration is given to psycho-social support in the management of common health problems, there is no reference to rehabilitation in the process. Similarly, services in response to violence and injuries do not include rehabilitation. Despite this, it is anticipated that the work of the DCSTs will ensure better management of primary health facilities thereby improving quality of services and referral, as required by the CRPD.

As part of the PHC package, the Department of Health has established the Integrated Nutrition Programme,98 which has a major focus on breastfeeding and the reduction of under-weight, stunting and wasting amongst children under five years of age. While the programme targets young children, no particular consideration is given to the nutritional needs of children with disabilities. One of the aims of the Infant and Child Feeding Policy99 is to improve the nutritional status of children, with an objective ‘to provide guidance on feeding children in exceptionally difficult circumstances’. This includes ‘children with mothers who have physical or mental disabilities’. The policy thus does not take cognisance of risk factors related to the child’s disability, such as cerebral palsy, which may result in difficulties with chewing or swallowing, heightening risk of under-nutrition or malnutrition.100

Rehabilitation services rendered by the Department of Health are guided by the National Rehabilitation Policy101 and aim to help adults and children with disabilities to attain maximum independence and full inclusion in all aspects of life. Rehabilitation is viewed as a means of achieving equalisation of opportunities and protecting the rights of adults and children with disabilities. The goal of the policy is to improve access to rehabilitation services, thereby ensuring the right of all citizens of access to health services. Community-based rehabilitation (CBR) is affirmed as the ‘philosophy or strategy’ on which rehabilitation services are based, and therefore CBR principles are applicable at all levels, towards promoting accessible, affordable and appropriate services. The Policy identifies a number of different components of rehabilitation (including prevention of disability, identification and diagnosis of different conditions, medical and educational rehabilitation), which involve various government departments working collaboratively. Provision of assistive devices is also part of rehabilitation and constitutes a key mechanism to ensure that disabled adults and children can participate as equals in society.

Although the Strategy for re-engineering of PHC identifies rehabilitation as one of its components (with goals for CBR articulated at the levels of community, clinics and community health centres, where it is envisaged that therapists will be deployed)102 there is currently no national strategy for CBR. A policy response to the country’s shortage and inequitable distribution of rehabilitation professionals by the Department of Health has been the introduction of community service therapists.103 However, ongoing challenges include high turnover of staff, lack of continuity of services, and inadequate supervision and support in rural areas. Further the ‘transient nature’ of these therapists and their lack of accountability have contributed to a breakdown of trust between them and the families that they serve.104

In summary, the legislation and policies of the Department of Health have gone some way to improving access to health services for children with disabilities. Great emphasis has been placed on improving maternal and child health through servicing of immediate medical needs and the reduction of mortality.105 Although the re-engineering of PHC is recognised as an opportunity for fulfilling the rights of children with disabilities, the Department of Health is yet to prioritise early intervention, habilitation and rehabilitation (particularly CBR) as part of health services. Current legislative, policy and strategy provisions do not provide adequately for routine and/or early screening for disabilities such as hearing loss106 and the District Health System is not adequately equipped to deal with children who are at high risk for impairment and disability. As a result, the rights to early identification and intervention (as part of the right to health in the CRPD) and habilitation and rehabilitation for young children with disabilities are not being realised.

4.4 Education

The South African Schools Act 84 of 1996 is the principal legislation governing the education system in the country. Because the legislature has interpreted ‘basic education’ as including one year of pre-school (for six year olds) and up to Grade 9, this Act is outside the scope of this paper.

Two education-related policy provisions are considered with respect to early learning of children with disabilities. First, White Paper 5 on ‘Early Childhood Development’ focuses primarily on the establishment of the Reception Year (Grade R) as an additional year of compulsory schooling. However, it does not address the needs of young children (viz those below the age of 4) for early stimulation and opportunities for learning.

Secondly, Education White Paper 6 on inclusive education is based on respect for diversity in learning abilities, acknowledging that all children can learn if they have the necessary support.107 It has been described as ‘a discourse driven by the substantive equality imperative of recognising as well as responding affirmatively to diversity’.108 The ultimate goal of inclusive education is the provision of an education system which maximises the capacities of all learners and enables their participation.109 White Paper 6 contains a 20-year timeframe to progressively realise this goal, steadily increasing the number of full-service and special schools until there is adequate provision for all learners. It was used as a basis on which to advocate for equal financial provision in Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa.110 However, the focus of this policy is the primary level of education, and there is a lack of acknowledgement of the pre-school years and the importance of early learning for young children with disabilities. Indeed, ECD is largely absent from White Paper 6.111 This is indefensible in light of the substantial input and direction given by the Commission that informed its development.112 This policy therefore does not comply with the requirements of the CRPD that states parties ‘shall ensure an inclusive education system at all levels’.113

5 Conclusion and recommendations for tapping the ‘transformative potential’ of the CRPD

As indicated in the foregoing discussion, the CRPD provides a standard by which to identify gaps and limitations with respect to legislation and policies on ECD for children with disabilities. It indicates that currently what the South African government is doing is ‘too little’ (with respect to health and social services) and ‘too late’ (with respect to inclusive education). But the CRPD is more than just a standard against which to evaluate legislative measures which have been taken, it also provides directives towards making ECD-related rights a reality for children with disabilities in South Africa,114 and it is towards these that we now turn our attention.

5.1 A mechanism for accountability

Under the CRPD, the state is responsible for monitoring and reporting on its implementation. However, this is a task in which civil society - particularly organisations of disabled people and parents of disabled children - can play an important role. Using the framework of the CRDP, compilation of shadow or alternate reports provides an opportunity to systematically and periodically report on the experiences of children with disabilities and the extent to which their capacities have been nurtured so that they are able to participate as equals in society, and whether they have been able to take advantage of opportunities emerging from a strategy of equality.115 Such critique of state action need not be driven only by the demands of the Committee on the Rights of Persons with Disabilities, but the CRPD-related processes provide a potential framework for local activists and policy makers in the disability sector.

5.2 Guiding interpretation of rights by courts

Secondly, the CRPD can contribute to advancing the rights of young children with disabilities through its use and interpretation by the Courts. Indeed, the Constitution of South Africa requires courts to consider international law in their deliberations,116 as was done in Western Cape Forum117 where the CRPD was used to expose the shortcomings of the Department of Basic Education in realising the right of children with severe and profound intellectual disabilities to education. That such a case came to court is commendable, as is the action being taken as a result of the court interdict issued.118 This case demonstrates the potential of international law to shape courts’ interpretation of the state’s obligations and identify where a breach has occurred. The CRPD thus has the potential to be used in respect of other rights of young children with disabilities, such as the right to health and social security.

5.3 Providing the basis for advocacy coalitions

As was demonstrated in Western Cape Forum, organisations of civil society, together with academics and legal experts collaborated in bringing a case against the state in breach of the rights of children with severe and profound disabilities to education. Similarly, in the ECD sector, there exists the potential for coalitions to be established between organisations of parents of children with disabilities, NGOs, and child rights advocates, working together to ensure that the state fulfils its obligations with respect to access to the range of services contained in the ‘essential package’.

5.4 Supporting innovative programming

Finally, while legal interventions are important, human rights practice needs to extend beyond these, for ‘transformation takes place not only through processes of domestic law and policy change, but more broadly through innovative programming and through the processes of socialization and acculturation’.119

In addressing the question ‘Early childhood development: What are the next steps?’ Albino & Berry identify actions that can be taken to strengthen service delivery for ECD in the areas of nutrition, health, caregiver support, parenting and early learning.120 The CRPD offers an important tool which could be used to shape these ‘next steps’ such that they provide children with disabilities opportunities to develop to their full potential. This requires that innovative programming at all levels and in all sectors is based on the principle of equality and non-discrimination, with considerations for reasonable accommodations to ensure that strategies are targeted to the unique needs of the individual child. Full and effective participation of children with disabilities in ECD services requires removal of barriers that prevent access to services provided generally for young children, as well as strengthening of disability-specific services such as early intervention and (re)habilitation.

The rollout of ECD services (including nutrition, health care, social protection and education) is recognised as being critical to the successful achievement of the National Development Plan, which reflects the government’s vision for the country up to 2030.121 It is not as yet too late for the CRPD to be used to guide development of services that are inclusive of children with disabilities, and a benchmark by which to assess progress.


1. See for example UNESCO ‘Rights from the start: Early childhood care and education’ (2012) Global Campaign for Education Paris: UNESCO, WHO & UNICEF ‘Early childhood development and disability: A discussion paper’ (2012).

2. National Planning Commission National Development Plan: Vision for 2030 (2011).

3. Department of Social Development, Department of Women, Children and People with Disabilities & UNICEF ‘Children with disabilities in South Africa: A situation analysis 2001-2011’ (2012).

4. UN General Assembly, Convention on the Rights of Persons with Disabilities: Resolution adopted by the General Assembly, 24 January 2007, A/RES/61/106.

5. G Quinn ‘The United Nations Convention on the Rights of Persons with Disabilities: Toward a new international politics of disability’ (2009) 15 Texas Journal on Civil Liberties and Civil Rights 33.

6. M Schulze Understanding the UN Convention on the Rights of Persons with Disabilities: A handbook on the human rights of persons with disabilities (2010).

7. AS Kanter ‘The promise and challenge of the United Nations Convention on the Rights of Persons with Disabilities’ (2006-2007) 34 Syracuse Journal of International Law and Commerce 287.

8. Quinn (n 5 above) 34.

9. Quinn (n 5 above) 39.

10. Quinn (n 5 above) 50.

11. UNESCO ‘Strong foundations: Early childhood care and education’ (2007).

12. UN General Assembly ‘Status of the Convention on the Rights of the Child: Promotion and protection of the rights of children’ (2010); WHO & UNICEF (n 1 above).

13. L Berry et al ‘Getting the basics right: An essential package of services and support for ECD’ in L Berry et al South African child gauge (2013).

14. See for example M Hendricks et al ‘Promoting healthy growth: Strengthening nutritional support for mothers, infants and children’ in Berry et al (n 13 above).

15. JM Agüero et al ‘The impact of unconditional cash transfers on nutrition: The South African Child Support Grant’ (2010).

16. A Schore ‘Effects of a secure attachment relationship on right brain development, affect regulation and infant mental health’ (2001) 22 Infant Mental Health Journal 7.

17. MJ Rotheram-Borus et al ‘Philani Plus (+): A Mentor Mother community health worker home visiting program to improve maternal and infants’ outcomes’ (2011) 12 Prevention Science 372.

18. T Field ‘Postpartum depression effects on early interactions, parenting and safety practices: A review’ (2010) 33 Infant Behaviour and Development 1.

19. P Adamson ‘The child care transition: A league table of early childhood education and care in economically advanced countries’ (2008).

20. A Siddiqi et al ‘Total environment assessment model for early child development’ Evidence report prepared for the WHO’s Commission on the Social Determinants of Health (June 2007) 3.

21. M Nores & SW Barnett ‘Benefits of early childhood education interventions across the world: (Under) investing in the very young’ (2010) 29 Economics of Education Review 271.

22. S Walker et al ‘Inequality in early childhood: Risk and protective factors for early child development’ (2011) 378 The Lancet 1325.

23. MJ Guralnick & G Albertini ‘Early intervention in an international perspective’ (2006) 3 Journal of Policy and Practice in Intellectual Disabilities 1. For example, research has shown that the decline in intellectual development that occurs after the first 12 to 18 months for children with Down Syndrome can be prevented almost entirely through early intervention. MJ Guralnick ‘Effectiveness of early intervention for vulnerable children: A developmental perspective’ (1998) 102 American Journal on Mental Retardation 319.

24. MB Bruder ‘Early childhood intervention: A promise to children and families for their future’ (2010) 76 Exceptional Children 339. EE Werner ‘Protective factors and individual resilience’ in J Shonkoff & S Meisels (eds) Handbook of early childhood intervention 2 ed (2000) 115. WHO & UNICEF (n 1 above).

25. J Shonkoff & D Philips (eds) From neurons to neighbourhoods: The science of early childhood development (2000) 11.

26. JJ Heckman ‘The economics of inequality: The value of early childhood education’ (Spring 2011) American Educator 31.

27. J Lally ‘School readiness begins in infancy: Social interactions during the first two years of life provide the foundation for learning’ (2010) 92 Phi Delta Kappan 17.

28. CC Mogharreban & DA Bruns ‘Moving to inclusive pre-kindergarten classrooms: Lessons from the field’ (2009) 36 Early Childhood Educational Journal 407.

29. DEC/NAEYC ‘Early childhood inclusion: A joint position statement of the Division for Early Childhood (DEC) and the National Association for the Education of Young Children (NAEYC)’ (2009).

30. M Guralnick ‘A developmental systems model for early intervention’ (2001) 14 Infants and Young Children 1.

31. UNESCO (n 11 above). UNICEF ‘Inequities in early childhood development - What the data say: Evidence from the Multiple Indicator Cluster Surveys’ (2012).

32. Commission on the Social Determinants of Health ‘Closing the gap in a generation: Health equity through action on the social determinants of health’ (2008).

33. This is reflected in the Preamble of the CRPD, para (g): ‘emphasising the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development’.

34. Arts 4 and 3 respectively.

35. Statement by Ambassador Normandin to the General Assembly on the Convention on the Rights of Persons with Disabilities, as deputy permanent representative of Canada to the United Nations, at the 61st Session of the United Nations General Assembly (2006).

36. Standard Rules (1994) para 25.

37. A Lawson ‘The United Nations Convention on the Rights of Persons with Disabilities: New era or false dawn?’ (2006-2007) 34 Syracuse Journal of International Law & Commerce 563.

38. As above.

39. Standard Rules (n 36 above). Rule 5 relates to accessibility.

40. Art 9 (1)(a) of the CRPD.

41. Schulze sees this as including the adoption of measures to ensure that privatisation of the health sector does not undermine the availability, accessibility, acceptability and quality of health facilities, goods and services. Schulze (n 6 above).

42. United Nations Office of the High Commissioner for Human Rights ‘Monitoring the Convention on the Rights of Persons with Disabilities: Guidance for human rights monitors’ (2010).

43. B Abramson ‘Article 2: The right of non-discrimination’ in A Alen et al (eds) A commentary on the United Nations Convention on the Rights of the Child (2008).

44. Art 4(2).

45. Quinn (n 5 above) 44.

46. Quinn (n 5 above).

47. UN Committee on Economic, Social and Cultural Rights ‘General Comment No 5: Persons with disabilities’ (1994) E/1995/22 para 9.

48. Arts 31-36.

49. Schulze (n 6 above) 172.

50. CRPD Preamble (m).

51. Article 4(3) obliges states to ‘closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organisations’ in the implementation of the CRPD and other policies impacting on adults and children with disabilities. Article 33(3) provides for persons with disabilities to be involved in monitoring implementation.

52. Schulze (n 6 above). See also Committee on the Rights of the Child ‘General Comment No 12: The right of the child to be heard’ (2009) CRC/C/CG/12.

53. Lawson (n 37 above).

54. Art 32(1)(b) of the CRPD.

55. Examples of good practice are documented in: Save the Children ‘Addressing exclusion and invisibility in early childhood years: Report on promising practices in working with young children in South Africa’ (2010).

56. The provision in the CRPD (art 7(2)) is almost identical to that in the CRC (art 3(3)).

57. For example UN Committee on the Rights of the Child ‘General Comment No 7: Implementing child rights in early childhood’ (2005) CRC/C/GC/7; and UN Committee on the Rights of the Child ‘General Comment No 9: The rights of children with disabilities’ (2007) CRC/C/GC/9.

58. UNICEF ‘Promoting the rights of children with disabilities’ (2007) 13 Innocenti Digest 22.

59. In interpreting the right to health in the CRPD, Schulze cites the UN CESCR‘General Comment No 14: The right to the highest attainable standard of health’ (Art 12 of the Covenant) (2000) E/C.12/2000/4 para 11; Schulze (n 6 above).

60. This includes safe and potable drinking water, adequate sanitation facilities, hospitals, clinics and other health-related buildings, trained medical and professional personnel and essential drugs.

61. UNHCHR ‘From exclusion to equality: Realizing the rights of persons with disabilities: A handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol’ (2007) UN Doc HR/PUB/O7/6.

62. General Comment No 9 (n 57 above).

63. This has been understood as referring to community-based rehabilitation, as defined in the joint position paper issued by ILO, WHO and UNESCO. WHO ‘Towards community-based inclusive development’ (2010).

64. Art 28(2)(c).

65. CRPD, art 16: Freedom from exploitation, violence and abuse.

66. CRPD, art 23: Respect for home and the family.

67. CRPD, art 23(3).

68. CRPD, art 19(1)(b).

69. Schulze (n 6 above).

70. This is the definition contained in the Salamanca Declaration, adopted at the World Conference on Special Needs Education. The Declaration calls on states to ensure that children with ‘special educational needs’ must have access to regular schooling.

71. UNESCO ‘Guidelines for Inclusion: Ensuring access to education for all’ (2005).

72. H Combrinck The Children's Act and disability (2011).

73. L Jamieson & P Proudlock ‘From sidelines to centre stage: The inclusion of children with disabilities in the Children's Act’ Children's Institute Case Study 4, University of Cape Town (October 2009).

74. S Philpott ‘Realising the right of children with disabilities to early childhood development in South Africa’ unpublished PhD thesis, University of the Western Cape, 2013.

75. Sec 92(1).

76. Sec 92(1).

77. C du Toit & B Mbambo ‘Early childhood development’ in CJ Davel & A Skelton (eds) Commentary on the Children's Act (2010) 8. Sec 99(3) of the Children’s Act.

78. Art 4(3) of the CRPD reflects the state’s obligation to ‘closely consult with’ and ‘actively involve’ persons with disabilities, including children, through their representative organisations.

79. Sec 93(4).

80. Sec 93(1).

81. L Richter et al ‘Diagnostic review of the ECD sector’ Report commissioned by the Department of Performance Monitoring and Evaluation and the Inter-Departmental Steering Committee on Early Childhood Development (2012).

82. Situation analysis (n 3 above).

83. Art 31(2).

84. Secs 27(1)(c) and 28(1)(c) of the Constitution of the Republic of South Africa, 1996.

85. Sec 7(a) of the Social Assistance Act.

86. C de Koker et al A profile of social security beneficiaries in South Africa (2006).

87. P Martin et al ‘The rights of children with disabilities to social assistance: A review of South Africa’s care dependency grant’ in P Proudlock (ed) South Africa’s progress in realizing children’s rights: A law review (2014).

88. Department of Health ‘Re-engineering Primary Health Care in South Africa: A discussion document’ (2010). This was adopted by the National Health Council in January 2011.

89. The others are implementation of the National Health Insurance as a means of financing universal coverage of health services and renewed focus on quality assurance and improvement. Dept of Health Strategic Plan 2010/11-2012/13 21.

90. N Schaay et al ‘Overview of health sector reforms in South Africa’ Report commissioned by the UK Department for International Development (2011).

91. Each team comprises of four primary health care nurses and six community health workers. Each community health worker is responsible for 250 households and their responsibilities include health promotion and prevention as well as screening and referral. LJ Bamford ‘Extending child survival gains: The policy context’ in CR Stephen & LJ Bamford (eds) Saving children 2010-2011: A seventh survey of child health care in South Africa (2013) 35.

92 There is one team in each district, focusing on improving maternal and child health, chronic illnesses and HIV/AIDS. They comprise: an obstetrician and gyneacologist, a paediatrician, a family physician and an anaesthetist as well as a midwife, a paediatric

92. nurse, and a primary healthcare nurse. Bamford (n 91 above).

93. Department of Health & WHO ‘Integrated Management of Childhood Illness’ (2011).

94. A Motsoaledi ‘A vision for child health in South Africa’ in M Kibel et al (eds) South African child gauge (2010) 91.

95. It has been promoted by WHO and UNICEF since the mid-1990s.

96. The options given are to refer to a social worker, to an appropriate support group, and/or for a child support grant.

97. WHO & UNICEF ‘Care for child development: Improving the care for young children’ (2012). L Jacklin ‘The future is in our hands’ in Stephen & Bamford (eds) (n 91 above) 46.

98. Department of Health ‘The primary health care package for South Africa - A set of norms and standards’ (2000) 67. Its vision is ‘optimum nutrition for all South Africa’. It is recognised that nutrition is multi-sectoral and complex. Nutrition status is improved through a mix of direct and indirect nutrition interventions implemented at various points of service delivery such as clinics, hospitals and communities and aimed at specific target groups.

99. Department of Health ‘Infant and young child feeding policy’ (2007).

100. E Bostock ‘Dysphagia: The silent killer’ Poster presented at the Conference of South Africa Doctors (RuDASA) Rhodes: Eastern Cape (2011).

101. Department of Health ‘Rehabilitation for all: National rehabilitation policy’ (2000) 2.

102. Department of Health (n 88 above).

103. This is the requirement that newly qualified therapists work in a disadvantaged area for one year.

104. Jacklin (n 97 above).

105. M Chopra et al ‘Achieving the health Millennium Development Goals for South Africa: Challenges and priorities’ (2009) 374 The Lancet 1023.

106. C Storbeck & S Moodley ‘ECD policies in South Africa - What about children with disabilities?’ (2011) 3 Journal of African Studies and Development 1.

107. Department of Education ‘Education White Paper 6: Special Needs Education: Building an inclusive education and training system’ (2001).

108. C Ngwena & L Pretorius ‘Substantive equality for disabled learners in state provision of basic education: A commentary on Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa’ (2012) 28 South African Journal on Human Rights 81 103.

109. Ngwena & Pretorius (n 108 above).

110. 2011 (5) SA 87 (WCC).

111. In one of the few references made to early childhood, White Paper 6 states that district support teams are to include ‘early childhood and adult basic education centres’ (sec 4.3.3.1).

112. This Commission argued that 'the foundation for inclusive education should be formed in the ECD band’ (118). It recommended a preventative and developmental approach to support, with early identification and intervention taking place specifically at the ECD level. Department of Education ‘Quality education for all: Overcoming barriers to learning and development’ (1997) Report of the National Commission on Special Needs in Education and Training and National Committee on Education Support Services.

113. Art 24(1).

114. Philpott (n 74 above).

115. See Quinn (n 5 above).

116. Sec 231(4) of the Constitution.

117. Western Cape Forum (n 110 above).

118. The Western Cape Department of Education has set up multi-disciplinary teams to support the Day Care Centres that provide for children with severe and profound intellectual disabilities.

119. J Lord & MA Stein ‘The domestic incorporation of human rights law and the United Nations Convention on the Rights of Persons with Disabilities’ (2008) 83 Washington University Law Review 467.

120. N Albino & L Berry ‘Early childhood development in South Africa: What are the next steps?’ (2013) in L Berry et al (eds) (n 13 above).

121. National Planning Commission (n 2 above). B Dlamini 'Reflections on early childhood development' in L Berry et al (eds) (n 13 above)


  • Heléne Combrinck
  • LLD (University of the Western Cape)
  • Associate Professor, Centre for Disability Law and Policy, University of the Western Cape.


  This article owes its existence to my attending a training course on mental disability law presented by the Mental Disability Advocacy Centre (MDAC) during July 2011 in Budapest, Hungary, and in particular, a thought-provoking discussion on art 29 of the Convention on the Rights of Persons with Disabilities presented by Oliver Lewis. I am further indebted to participants in the regional workshop of the PANPPD (Pan-African Network of Persons with Psychosocial Disabilities) convened in Cape Town in August 2011 for the information they provided on voting rights in their respective countries and a discussion of voting rights led by Eyong Mbuen from the MDAC at this workshop. I also acknowledge the thoughtful
suggestions of anonymous peer reviewers.


Summary

Persons with psychosocial disabilities were historically denied the right to vote due to the long-held perception that they do not have the required decision-making capabilities required for voting. The adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2006 has necessitated a re-examination of this perception, leading to the growing recognition internationally that a universal limitation on the right to vote of persons with psychosocial disabilities can no longer be justified. This article accordingly examines the right to vote of persons with psychosocial disabilities in South Africa, which is generally regarded as an exemplary electoral model in the African region. The South African Constitution guarantees universal suffrage; at the same time, persons who are regarding as being ‘of unsound mind’ are excluded from voting. The article considers this ‘systemic electoral inconsistency’ against the paradigm shift mandated by the CRPD (and to some extent presaged by earlier international instruments). The traditional justifications for excluding persons with psychosocial disabilities from voting are weighed against the contemporary notions of legal capacity and decision-making, again with reference to the CRPD and recent interpretations by the Committee on the Rights of Persons with Disabilities.

1 Introduction

The right to vote is regarded as one of the fundamental cornerstones of democracy, and at the beginning of the 21st century, the recognition of this right (which encapsulates the principle of universal suffrage),2 appears to be beyond debate. However, for many persons with psychosocial3 disabilities globally, the right to vote remains out of reach, due to the long-held perception that they do not have the decision-making capacity that is required for voting. More often than not, it has gone unremarked that the very same constitutions or legislative enactments that proclaim the principles of non-discrimination and universal suffrage also exclude persons ‘of unsound mind’ from voting and from standing as candidates in elections.

This position is set to change in the light of a growing recognition that the limitation of the right to vote of persons with psychosocial disabilities cannot be justified on the basis of disability. Indeed, several recent developments, most notably the introduction of the Convention on the Rights of Persons with Disabilities,4 point to the need for a radical reconsideration on the part of governments (and society more broadly) of the assumption that persons with psychosocial disabilities should be excluded from voting. While the pursuit of the principles of democratic elections is valued everywhere, this is particularly the case in Africa, given its notorious history of electoral discontent. Ensuring the right to vote, as an aspect of the right to political participation, therefore takes on a distinct note of urgency in this context.

Against this background, this article examines the question whether existing limitations placed on the right to vote of persons with psychosocial disabilities can be sustained, with specific reference to the position in South Africa. It commences by looking into the background to disability-based voting exclusions and considering the primary current justifications for such restrictions. It then investigates the international human rights framework, with specific reference to the CRPD. It also considers two regional human rights instruments, notably the European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention) and the African Charter on Human and Peoples’ Rights (the African Charter). The article subsequently discusses the position relating to the right to vote of people with psychosocial disabilities in South Africa, and concludes with recommendations for alignment of the law with the CRPD.

While this article constitutes an investigation in its own right, it can also be seen as a ‘case study’ of the requirement for incisive law reform brought about by the ratification by states parties of the CRPD. In this sense, it also seeks to demonstrate a need for different ways of conceptualising disability and citizenship, in particular psychosocial disability.

2 Background: Understanding disability and the right to vote

2.1 Disability-based exclusions

Earl and Bushner explain that the types of obstacles encountered by voters with disabilities fall loosely into three categories: inaccessible polling places; inaccessible vote recording technologies; and disability-based voting restrictions.5 The inaccessibility of polling places generally includes environmental barriers, for instance a lack of parking accommodations and architectural barriers such as stairwells up to the polling site or doorways too narrow for wheelchairs.6 Inside the building, persons with visual impairments may require clear and easy-to-read signs in large font.

When it comes to inaccessible voting technologies,7 persons with visual impairments are again often at the receiving end. Paper ballots are not always available in Braille format (assuming that all voters with visual impairments make use of Braille), and alternatives such as a Braille ‘template’ that can be placed over the paper ballot are not consistently supplied. Similarly, voters with motor impairments, who require assistance in marking their ballot paper, may experience obstacles in the form of small voting booths that do not allow entry of two persons at the same time. In such instances, voting technologies such as direct recording electronic systems may provide potential solutions; however, these are probably out of reach in developing countries for the foreseeable future.

It is however the third category, namely disability-based voting restrictions, that compels our interest here. The first two categories are increasingly addressed8 either in general or disability-specific legislation setting standards for accessibility9 and reasonable accommodation.10 There is also a growing trend to make legislative provision for persons with disabilities to make use of assistance of their choice when casting their vote11 - another form of reasonable accommodation. On the other hand, it is noteworthy that the disability-based voting restrictions for the most part affect only persons with psychosocial disabilities and/or those with intellectual disabilities.12 These restrictions stand alongside constitutional and legislative assurances of equality, prohibition of disability-based discrimination and universal suffrage. This constitutes an internal dissonance between foundational constitutional principles and the exclusion of persons with psychosocial disabilities from voting. Nelson refers to this disjuncture as ‘systemic electoral inconsistency’, an aptly descriptive term that will also be used for the purposes of this article.13

2.2 Who votes - and who does not?

Since the earliest democratic formations (from the Greek city states and the subsequent Roman period), public participation was characterised by a binary division between those who had the right to take part (the ‘insiders’) and those who were excluded (the ‘outsiders’), such as slaves, women and non-citizens.14 Schriner and Ochs, in their study of the development of disability exclusions in the United States, make the compelling point that the question of ‘who votes’ historically has been a contentious one because this issue is ‘so basic to the functioning of a representative democracy’. 15

They recount that in early colonial America, property ownership was required as the basis for voting.16 This requirement was carried forward from the English notion that property ownership was a prerequisite for selfhood; there was also a fear that the votes of landless persons such as renters or tenants would be controlled by the direct and indirect influence of the wealthy.17 Although the requirement of property ownership was eventually replaced by a taxpaying qualification, states at the same time began to exclude outsiders such as ‘foreigners, the free negro, and [women]’.18 This was also when states began to develop disability-based exclusions.19 Importantly, the disability exclusions were initially linked to perceptions of economic dependency.20

By 1880, 26 of the 38 American states had enacted provisions disenfranchising persons with ‘diminished mental capacities’.21 The motivation accepted for these disenfranchising provisions was first, that persons with mental illness were considered to have ‘no intellect at all’.22 This disqualified them from participation in civic society, given the emphasis on rationality as the essence of democratic citizenship during this period.23 A second motivation was based in Social Darwinist theory, which held that ‘some persons are more socially desirable than others’ and that future generations can be improved biologically by increasing the proportion of ‘desirable individuals’ and decreasing the rate of propagation of ‘inferior individuals’. At the time24 concern about a perceived increase in the rate of mental illness in America led to a view that society needed to be protected from the actions of those who were less capable - which included voting.25

The third motivation was one of electoral advantage, which entailed that political parties perceived an advantage in limiting the pool of potential voters by excluding certain groups. Interestingly, the adoption of disenfranchisement statues often coincided with initiatives to construct ‘asylums’ for persons with mental illness and institutions for persons with intellectual disabilities; this concentrated people with psychosocial and intellectual disabilities in large numbers in a single location, with a potential to control the outcome of local elections.26

 The more contemporary justification for disbarring persons with psychosocial disabilities from voting has been described as ‘preserving the political community’27 or ‘preserving the integrity of the election process’28 as well as the prevention of voter fraud.29 The assumption is that the political community will be preserved by making a distinction between voters who intend to affect the election outcome by expressing some preference, and those who do not understand the nature of voting and are unable to vote competently.30 As Brescia observes,31 there is a prevailing belief that a person with a mental health diagnosis is intrinsically irrational and incapable of participating in civic functions. However, it should be noted that a psychosocial disability does not necessarily affect a person’s ability to make decisions or understand concepts.32

On a more fundamental level, however, the question is whether it is for the state to determine what ‘voting competently’ means - whether it is the role of the state to determine what is a valid political opinion.33 It has been observed that the (in)ability to cast a rational vote is not specific to people with disabilities.34 Karlan observes that much of political discourse ‘bypasses the conscious mind altogether’;35 a voter will likely vote for a candidate he or she supports, but his or her approval need not be driven by agreement with the candidate's policies.36 In some instances, it may be motivated by the candidate’s appearance, a long-standing political affiliation (especially relevant in the South African context) or grounds that would have been impermissible if applied in another context - such as the race, gender, religion or sexual orientation of the candidate.37 As Quinn notes, ‘our choices are nearly always a mix of raw preferences with rationality’. 38

The apprehension about voter fraud entails first, that persons with psychosocial or intellectual disabilities may receive inappropriate assistance when voting (for example, from caregivers) or may be unduly influenced.39 Secondly, there is a concern about fraudulent absentee voting.40 The first concern involves persons with disabilities receiving inappropriate assistance when voting. At its extreme, this could devolve into proxy voting on behalf of the person with a disability by another, for example, a caregiver.41 Voting is one context in which delegation of decision-making is impermissible.42 Even short of a caregiver engaging in proxy voting, some are concerned that persons with psychosocial disabilities can be unduly persuaded by others. The question of undue influence ultimately becomes one of degree: for example, when do candidates’ electioneering promises cross the line to ‘undue influence’?

The issue that arises with fraudulent absentee voting is that absentee ballots may be requested on behalf of a person with a psychosocial disability and cast without the knowledge of this person. However, Bindel points out that these concerns also apply to other groups of voters, such as those with physical or communicational disabilities or newly registered voters.43 And, as Fiala-Butora et al observe, given the lack of any empirical evidence that persons with disabilities are either ‘generally more susceptible or relatively more prone to becoming victims of fraud’, concerns about this aspect must be attributed to prejudice and stigma.44

The strongly held preconceptions described above remain powerfully entrenched, as can be seen in the number of jurisdictions where the right to vote remains elusive to people with psychosocial disabilities. A study conducted in 2009-2010 amongst 27 European Union (EU) member states found that national practice in this regard was diverse: it ranged from total exclusion from political participation, through a case-by-case consideration to full participation.45 The majority of EU member states were found to link the right to political participation to the legal capacity of the individual.46 These member states had an automatic or quasi-automatic exclusion provision in their legal systems, which denies the right to political participation to all persons under a protective measure such as a partial and plenary guardianship,47 regardless of their actual and/or individual level of functional ability or whether they have an intellectual disability or a mental health problem.48 Plenary guardianship remains one of the primary mechanisms depriving persons with psychosocial disabilities of the right to vote.

Secondly, several EU member states were observed to have adopted a variety of practices falling between the two ends of the spectrum, in which an assessment is made of the individual’s actual ability to vote.49 These countries have adopted either an exclusion policy coupled with an individualised assessment or a full participation policy complemented with a specific decision on voting capacity. Furthermore, amongst these countries a differentiation can be made between those in which the individual’s situation is assessed by a medical practitioner and those in which the assessment is made by a judge. A minority of countries has lifted all restrictions on political participation, including Austria; Finland; The Netherlands; and Sweden.50 This means that these countries have opted for full participation in the electoral process for persons with psychosocial disabilities and with intellectual disabilities.

Bindel similarly reported in 2010 that 41 states in the US disenfranchise persons with ‘diminished mental capacities’, either in their state constitutions or statutes.51 A brief overview of Anglophone African jurisdictions reveals a similar trend.52

2.3 Why is the right to vote so important?

The significance of the right to vote cannot be overstated. Waterstone notes that voting should be viewed as more than the instrumental choice of electing a candidate: Voting in a polling place is a way in which a citizen asserts his or her ‘place in a community’.53 This is particularly important in the case of people with disabilities, a group that has traditionally been excluded and marginalised. It is this expressive54 function of voting that is restricted when people with disabilities are prevented from voting in polling places because of lack of accessibility; the expressive aspect is also curtailed where people with disabilities vote by absentee or ‘special’ ballot. 55

It can be said that voting forms the basis of equal citizenship; Fishkin points out that it is also closely bound up with dignity.56

It is a dignity inhering in the idea that my vote counts just as yours counts - that I am, with respect to the right to vote, your equal. 57

Voting exclusion therefore amounts to ‘dignitary harm’, which may be especially acute when the disenfranchised person is someone who is also disregarded as a full and equal citizen in other contexts, namely when it is part of a broader pattern of unequal treatment.58

3 International human rights framework

3.1 General

The right to vote, as an aspect of the right to public participation, is set out in article 21 of the Universal Declaration of Human Rights (UDHR).59 Article 21(1) provides that everyone has the right to take part in the government of his country, directly or through freely chosen representatives. In article 21(2), the principles of ‘periodic and genuine elections’, ‘universal and equal suffrage’ and ‘secret vote’ are set out as expressing the will of the people, which forms the basis of the authority of government.

3.2 International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights60 (ICCPR) recognises the right to participate in public affairs in article 25. It provides that every citizen has the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions,61 to take part in the conduct of public affairs both directly or through freely chosen representatives. Secondly, they have the right to vote and to be elected at genuine period elections which shall be ‘by universal and equal suffrage’ and held by secret ballot, guaranteeing the free expression of the will of the electors.

In 1996, the Human Rights Committee (HRC) adopted a General Comment on this article. The Committee noted that limitations on the right to vote are permissible; however, it emphasised that such restrictions should be ‘based on objective and reasonable criteria’.62 It pointed out that no distinctions are permitted between citizens in the enjoyment of these rights on a number of grounds, including race, colour, sex, language, religion, political or other opinion, property, birth ‘or other status’.63 The HRC regards it as unreasonable to exclude persons from voting on the ground of physical disability or to impose literacy, education or property requirements.64 At the same time, it states that ‘mental incapacity may be a ground for denying a person the right to vote or to hold office’. 65

It is noteworthy that this General Comment is a product of its time (specifically predating the adoption of the CRPD). Significantly, the Office of the UN High Commissioner for Human Rights, in its 2011 thematic study, observed that ‘the legal landscape has changed dramatically since the adoption of the Human Rights Committee’s general comment in 1996’. It may therefore be argued that limitations of the right to vote on the basis of psychosocial or intellectual disabilities are no longer compatible with the prohibition of discrimination or ‘with the present-day understanding of democracy’.66

3.3 Convention on the Rights of Persons with Disabilities

The Convention, adopted in 2006, was developed on the basis of ‘a recognition that the existing human rights framework had failed to protect the human rights of people with disabilities in an equal measure with others’.67 Based on the foundational principles of, inter alia, respect for inherent dignity and individual autonomy, non-discrimination and full and effective participation and inclusion in society,68 the CRPD represents a definitive shift in the right of persons with disabilities - not only through the actual substance of its provisions, but also through the transformative power of the instrument as a whole.69 While the interpretation of the Convention is still in the early stages of its development, a number of clear trends may already be drawn out.

Article 29 of the Convention (examined below) sets out the right to public participation of persons with disabilities. Given the strong correlation drawn in many national contexts between the right to political participation (including the right to vote) and legal capacity, it is also important to consider article 12, which deals with legal capacity.70

Article 12 has been described as lying at the very heart of the revolution in disability introduced by the Convention - treating people as ‘subjects’ and not as ‘objects’.71 Trömel explains that this is the provision that best reflects the paradigm shift accomplished by the Convention;72 it also generated the most heated and complex debates during the preparatory negotiations.73 Much of this discussion was devoted to the meaning of ‘legal capacity’ and whether this notion included both the capacity to have rights74 (‘passive’ legal capacity) and the capacity to act or exercise75 these rights (‘active’ legal capacity).76 Certain delegates favoured an approach that would limit the interpretation of legal capacity in article 12 to ‘passive legal capacity’; as Lawson explains, this had the potential of authorising a lower standard of human rights protection.77 During the negotiations, attempts were accordingly made to qualify (by means of a footnote to the main text) the meaning of ‘legal capacity’.78 These attempts ultimately proved unsuccessful, and the text as it stands is free of such limitations.79

Article 12 is clear in its simplicity. The unequivocal starting point is that all persons have legal capacity, without any mention of a distinction between active and passive legal capacity. This starting point is not conditional (‘all persons have legal capacity provided that they have the capacity to ...’) or presumptive (‘all persons are presumed to have legal capacity until proved otherwise’).80 Once this starting point is grasped, it also becomes apparent how other closely related rights should be approached - such as the right to vote. This is when we begin to get a glimpse of the vertiginous paradigm shift81 brought about by article 12.

In addition to requiring states parties to recognise that persons enjoy legal capacity on an equal basis with others in all aspects of life,82 article 12(3) provides that states parties must take appropriate measures to provide access to persons with disabilities to the support they may require in exercising their legal capacity. This (unconditional) recognition of legal capacity on an equal basis with others in all aspects of life has to include

the political sphere;83 furthermore, where the state is required to provide support in exercising legal capacity, this would also apply to the act of voting.

This understanding of article 12 underpins the construction of the right to vote in article 29, a point that was recently emphasised by the Committee on the Rights of Persons with Disabilities in its first interpretive General Comment, which deals with article 12 of the Convention. The Committee explains that recognition of legal capacity is inextricably linked to the enjoyment of many other human rights provided for in the Convention, including the right to vote and stand for election in article 29.84

The Committee further notes that while the denial or restriction of legal capacity has been used to deny political participation, especially the right to vote, for certain persons with disabilities, a person’s decision-making ability cannot be a justification for any exclusion of persons with disabilities from exercising their political rights.85

Article 29 of the CRPD, which sets out the right to public participation,86 covers first, the right to participate in elections (both active

and passive) and second, general public participation.87 Under paragraph (a), the article addresses inter alia the questions of accessibility and assistance by a person of the voter’s choice.88

For present purposes, however, the important section is the undertaking by states parties to ensure that persons with disabilities can ‘effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote’ (and be elected). Two points may be observed. The commitment is first to ensure that persons with disabilities may effectively and fully participate and second, that they may participate on an equal basis with others. The latter raises the question whether a disability-based voting exclusion of any nature would be permissible. It is notable that these provisions make no exception for persons with an ‘established mental incapacity’.89

This question was recently answered by the Committee on the Rights of Persons with Disabilities in the communication of Bujdosó v Hungary.90 The authors of this communication were six Hungarian nationals with intellectual disabilities who had been placed under partial or general guardianship pursuant to judicial decisions. As an automatic consequence of their placement under guardianship, the authors’ names were erased from the electoral register.91 This meant that they were unable to vote in either the parliamentary or municipal Hungarian elections held in 2010. They also subsequently remained disenfranchised.92 The authors maintained that they were able to understand politics and participate in elections if they were allowed to do so, and therefore complained that as persons under guardianship, they were, by direct application of the constitutional provisions automatically deleted from electoral registers.93 This automatic ban was unjustified, and therefore breached article 29, read alone and in conjunction with article 12 of the Convention.

The state party’s response mainly revolved around the fact that the relevant legislation had undergone significant changes since the authors had filed their complaint: Hungary’s Fundamental Law now required judges to make decisions on suffrage on consideration of the individual circumstances of each case.94 While it was therefore still possible for a person with an intellectual disability to be disenfranchised, this would only be done subject to an individual judicial assessment.95 The state party further argued that this new provision was in conformity with the right to free elections enshrined in article 3 of Protocol No 1 to the European Convention, and with the judgment of the European Court of Human Rights in the case Alajos Kiss v Hungary.96

The Committee on the Rights of Persons with Disabilities was of the view that article 29 does not foresee any reasonable restriction, nor does it allow any exception for any group of persons with disabilities.97 Therefore, an exclusion of the right to vote ‘on the basis of a perceived, or actual psychosocial or intellectual disability, including a restriction pursuant to an individualised assessment’, constitutes discrimination on the basis of disability, within the meaning of article 2 of the Convention. The Committee referred to its Concluding observations on Tunisia98 and Spain99 and noted that the same principles applied in casu. Accordingly, the Committee concluded that the relevant provisions, which allow courts to deprive persons with intellectual disabilities of their right to vote and to be elected, are in breach of article 29 of the Convention. Similarly, a breach of article 12 was found.100

This finding by the Committee is a significant one. It appears that the Committee took up the invitation by the third party intervener to make a

finding beyond the narrow confines of this particular matter,101 and in fact provided broader guidance to state parties in the interpretation of article 29. Most significant is the Committee’s emphasis that article 29 does not permit any exclusion or ‘reasonable restriction’; however, of similar weight is the statement that a disability-based voting exclusion, including a restriction pursuant to an individualised assessment, would constitute discrimination in terms of article 2 of the Convention.

It is also helpful to states parties attempting to gain an understanding of the Convention that the Committee explains that under article 29 of the Convention, the state party is required to adapt its voting procedures, by ensuring that they are ‘appropriate, accessible, and easy to understand and use’, and allowing, where necessary, assistance in voting upon request of the person with disability.102

It is by so doing that the state party will ensure that persons with intellectual disability cast a competent vote, on an equal basis with others, while guaranteeing the secrecy of the vote.103

The Committee’s reference to article 12(3) further assists in this regard.104 States parties will therefore be required not only to repeal discriminatory provisions, but also to adapt voting procedures and to take additional supportive measures to ensure that persons with intellectual (and by extension, psychosocial) disabilities may cast their vote on an equal basis with others.

The Committee’s approach in the Bujdosó matter strengthens the trend that is discernible in its concluding observations to initial reports of states parties. In the majority of the reports that have been considered to date, the Committee has expressed concerns about the way in which states parties approach the political rights of persons with intellectual and psychosocial disabilities. For example, the Committee has voiced its apprehension about the exclusion from voting of persons with intellectual or psychosocial disabilities;105 the exclusion of persons who are under some form of ‘guardianship’ limitation (and hence precluded from voting);106 and provisions preventing persons with intellectual or psychosocial

disabilities from running for municipal office.107 Austria alone was commended for upholding article 29 by allowing all persons, including persons with intellectual disabilities and psychosocial disabilities, to vote. 108

3.4 European regional instruments

In terms of Protocol No 1 to the European Convention, member states undertake to hold free elections at reasonable intervals by secret ballot, under conditions that will ensure the free expression of the opinion of the people in the choice of the legislature.109

The European Court of Human Rights has dealt with the right to vote in a number of noteworthy judgments. The issues to be decided have included an absolute ban on the voting rights of convicted prisoners in the United Kingdom,110 as well as an automatic voting exclusion imposed on persons placed under guardianship.111 In the latter case, Mr Kiss (a Hungarian citizen diagnosed with manic depression)112 contested the voting exclusion that resulted from his being placed under partial guardianship.113

It was common cause that the aim of the constitutional measure in question was to ensure that only citizens capable of ‘assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs’.114 The Court was satisfied that this constituted a legitimate aim. The Hungarian government argued, with reference to the margin of appreciation, that it must be permissible for the legislature to establish rules limiting participation in public affairs to this group of citizens only.115

The Court accepted that this is an area in which, generally, a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on the right to vote can be justified in modern times and, if so, how a fair balance is to be struck.116 It was noted that the restriction in question does not distinguish between those under total and those under partial guardianship;117 furthermore, the Court was unwilling to accept that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation. The Court reiterated that while this margin of appreciation is wide, it is not all-embracing.118

Importantly, the Court cautioned that if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the ‘mentally disabled’, then the state's margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (a comparable example is those suffering different treatment on the ground of their gender). The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail ‘legislative stereotyping’ which prohibits an individualised evaluation of their capacities and needs.119

The conclusion reached by the Court was that an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote. It accordingly found that there had been a violation of Article 3 of Protocol No 1 to the Convention. 120

While the Court’s conclusion regarding the imposition of an indiscriminate voting restriction of persons under partial guardianship is sound, the judgment may be criticised for its interpretation in that it leaves a margin for the state to permissibly impose an ‘individualised judicial evaluation’. This indeed led to the amendment of the Hungarian Constitution that was examined by the Committee on the Rights of Persons with Disabilities in the Bujdosó communication (above); while the state party maintained that these amendments, which now allowed individualised assessments instead of the prior ‘blanket’ restriction, were in line with the European Court’s judgment in the Kiss matter, the Committee’s conclusion was that the (amended) provisions were not consistent with the CRPD.121

Importantly, the Council of Europe adopted a Recommendation in 2006 to the effect that the participation of all citizens in political and public life and the democratic process is essential for the development of democratic societies. Society needs to reflect the diversity of its citizens and benefits from their varied experience and knowledge; it is therefore important that persons with disabilities can exercise their rights to vote and participate in such activities. 122

The European Commission for Democracy through Law (the so-called ‘Venice Commission’) has adopted a revised interpretative declaration to the Code of Good Practice in Electoral Matters.123 The aim of this document is to align the Code with the principles guaranteed by article 29 CRPD. Significantly, it notes that universal suffrage is a fundamental principle of the ‘European Electoral Heritage’.124 People with disabilities may not be discriminated against in this regard, in conformity with article 29 of the Convention of the United Nations on the Rights of Persons with Disabilities and the case law of the European Court of Human Rights.125 The declaration also requires that voting procedures and facilities should be accessible to people with disabilities so that they are able to exercise their democratic rights, and allow, where necessary, the provision of assistance in voting, with respect to the principle that voting must be individual.126

This declaration is an important development of the original Code, which provided for deprivation of the right to vote and be elected based on ‘mental incapacity’ or criminal conviction for a serious offence as an exception to the rule of universal suffrage.127

Finally, it must be borne in mind that the European Union as a ‘regional integration organisation’ has acceded to the CRPD in terms of article 44. This may further shape regional developments in line with article 29 of the Convention.128

3.5 African regional system

An investigation into the human rights framework at African regional level commences with the African Charter. The right to political participation129 is addressed in article 13 of the African Charter.130 For present purposes, article 13(1) is of particular interest. As Mbondenyi correctly observes, the formulation of this provision appears somewhat curtailed when compared to its counterparts in similar instruments, which do include explicit references to the obligations resting on states to hold ‘periodic and genuine elections’131 underpinned by universal suffrage and held by secret vote.132 He therefore concludes that the right to political participation is recognised in the African Charter in a fairly superficial way. 133

The African Commission on Human and Peoples’ Rights has however been robust in its interpretation of article 13(1) and is developing a body of jurisprudence emphasising that it will not lightly sanction limitations of the right to political participation.134 In the key communication of Purohit v The Gambia,135 the Commission found that the disputed legislation,136 in addition to being discriminatory and violating the guarantee of equal protection of the law,137 also constituted a violation of article 13(1) since its application precluded persons detained in the psychiatric unit in question from exercising their right to vote.

The Commission made the following important observation:

The right provided for under Article 13(1) of the African Charter is extended to ‘every citizen’ and its denial can only be justified by reason of legal incapacity or that the individual is not a citizen of a particular State. Legal incapacity may not necessarily mean mental incapacity. For example a State may fix an age limit for the legibility of its own citizens to participate in its government. Legal incapacity, as a justification for denying the right under Article 13(1) can only come into play by invoking provisions of the law that conform to internationally acceptable norms and standards.138

The Commission further explained that since article 13(1) of the African Charter is similar in substance to those provided for under article 25 of the ICCPR and it therefore endorsed the clarification provided by the Human Rights Committee in relation to the latter article.139 In this instance, besides the view held by the Gambian government respondent state questioning the mental ability of mentally disabled patients to make informed choices in relation to their civic duties and obligations, it is very clear that there are no objective bases within the legal system of the respondent state to exclude mentally disabled persons from political participation.

The right to vote also features in the African Charter on Democracy and Good Governance.140 The objectives of this Charter include the promotion of adherence to the values and principles of democracy and respect for human rights and the holding of regular free and fair elections to ‘institutionalise legitimate authority of representative governments as well as democratic change of governments’.141 States parties must implement the Charter in accordance with certain principles, which include the effective participation of citizens in democratic and development processes and in governance of public affairs.142

Significantly, in terms of article 4, states parties must recognise popular participation through universal suffrage as the ‘inalienable right of the people’.143 This provision should be read firstly with article 8, which places a duty on states parties to eliminate all forms of discrimination, with a list of specific grounds.144 Although disability is not explicitly listed, the open-ended formulation of the list allows for its easy inclusion.145 Secondly, states parties have a duty to promote participation of social groups ‘with special needs’, including the youth and persons with disabilities, in the governance process. 146

The African regional standards, while not as fully developed as the European counterparts, recognise the broad principles of participation and non-discrimination. The statement by the African Commission on Human and People’s Rights to the effect that the exclusion of persons with psychosocial disabilities should be considered in conformity with international standards is an important one, bearing in mind that these international standards have evolved since the statement by the HRC on which the African Commission based its original views in the Purohit communication.

4 South Africa

Since the advent of democracy, South Africa’s electoral history is regarded as one of the African ‘success stories’. Who can forget those enthralling images of queues of people waiting to vote, the majority for the first time ever, in the first multi-racial elections in 1994?147 Subsequent elections, both at national and provincial and at local government levels, have proceeded comparatively smoothly, and the Independent Electoral Committee (IEC) has been lauded for its innovative approaches to election administration.148

Given the country’s history of race-based electoral exclusion, it is not surprising that the Constitution states emphatically that one of the foundational values of the South African state is universal adult suffrage.149 It further notes ‘human dignity, the achievement of equality and the advancement of human rights and freedoms’ amongst these values. The right to vote is addressed in section 19, which sets out various aspects of the right to political participation. Section 19(3) provides that every adult citizen has the right to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and to stand for public office and, if elected, to hold office.150

These provisions must however be read with sections 47, 106 and 158, which deal with membership of the National Assembly,151 provincial legislatures and municipal councils respectively. Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except ‘anyone declared to be of unsound mind by a court of the Republic’.152 Section 106(1)(d) similarly states that every citizen who is qualified to vote for the National Assembly is eligible to be a member of the provincial legislature, except anyone declared to be of unsound mind by a court of the Republic. Finally, section 158(1)(c) provides that every citizen who is qualified to vote for a Municipal Council is eligible to be a member of that Council, except anyone who is disqualified from voting for the National Assembly or is disqualified in terms of section 47(1)(c), (d) or (e) from being a member of the Assembly.

The Electoral Act 73 of 1998 further sets out how the right to vote takes shape in practice.153 In terms of the Act, a ‘voter’ is a South African citizen who is 18 years or older and whose name appears on the national common voters’ roll.154 In order to place their names on this voters’ roll, citizens are required to register as voters;155 the chief electoral officer, who is responsible for registering voters, may not register (amongst others) persons who have been declared by the High Court to be ‘of unsound mind or mentally disordered’156 or are detained under the Mental Health Care 17 of 2002 Act. 157

The question of electoral exclusion has served before the South African courts in the form of a limitation on the voting rights of prisoners. Brickhill and Babiuch recount that the right of prisoners to vote was one of the most contentious issues during the negotiation process.158 These challenges have given the courts an opportunity to pronounce on the limitation of the right to vote. 159

In August v Electoral Commission, Sachs accordingly made the following statement:

In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement. 160

Given these strong views expressed by the Constitutional Court against restriction of the right to vote, I argue that the present exclusion of persons with psychosocial disabilities constitutes an impermissible limitation of this right that may not survive constitutional scrutiny. Brickhill and Babiuch posit that this exclusion constitutes a form of unfair discrimination on the ‘prohibited’ ground of disability.161 They further argue (correctly) that since the Electoral Act does not make allowance for a person with a psychosocial disability to challenge their disqualification from voting, the provisions may also be found to be overbroad.162

In September 2013, when the Electoral Act was undergoing amendments, efforts were made to persuade the relevant portfolio committee163 to remove the current restrictions on the right to vote of persons with psychosocial disabilities.164 The Independent Electoral Commission, in briefing the portfolio committee, however noted that many jurisdictions exclude persons with ‘mental disabilities’ from registering as voters due to concerns about the faculty to form informed opinions.165 It stated that the exclusion was not ‘arbitrary and automatic’, and came into operation at the instance of the High Court after examining medical evidence presented. While the portfolio committee devoted some attention to the reform proposal in its deliberations,166 the amended Bill as adopted did not include the proposal.167 This omission represents a lost opportunity to take a first step towards aligning the current South African position with the CRPD by eliminating the electoral exclusion of persons with psychosocial disabilities.168

Finally, it is with some irony that one notes that the Electoral Act also makes clear provision for what may be termed ‘reasonable accommodation’ for certain voters. The Act states that a person may assist a voter in voting if the voter requires assistance due to a physical disability, including ‘blindness or other visual impairment’; the voter has requested to be assisted by the person; and the presiding officer is satisfied that the person rendering assistance has attained the age of 18 years and is not an agent or candidate.169 A voter may also apply for a special vote if they cannot vote at a voting station in the voting district in which they are registered as a voter, due to that person’s ‘physical infirmity or disability, or pregnancy’.170 Finally, at the request of a voter who is unable to read, the presiding officer must assist that voter in voting in the presence of a person appointed by an accredited observer and two agents from different parties, if available.171

These arrangements indicate a recognition of the increasing trend in providing voters with disabilities with reasonable accommodation. They stand in stark contrast however with the exclusion of persons with psychosocial disabilities from voting.

5 Conclusion

Kelley notes that persons with psychosocial disabilities have faced unique challenges in the battle for recognition of their rights.172 In the African context, this often includes a prevailing perception that psychosocial disability is linked to ill omens, curses and spiritual misfortune. Their position as ‘outsiders’, who experience exclusion and prejudice, stands starkly against the ideal of full participation in society. The right to vote, in its expressive sense, therefore becomes an important signifier of such participation. As Fishkin proposes, the right to vote is ‘fundamental’ because it makes citizenship real.173

This article has demonstrated that ‘systemic electoral inconsistencies’ exist in one of Africa’s more progressive electoral democracies in respect of the right to vote of persons with psychosocial disabilities. These inconsistencies are in contrast with recent developments in international law, most notably the introduction of the CRPD and the interpretation of article 29 by the Convention’s monitoring body.

Waterstone notes that the trend in international human rights law (as well as state domestic laws) has been to move from ‘a general statement of voting equality’ to more specific protections for people with disabilities.174 Where domestic law is lagging behind this standard, as is the case with South Africa, law reform is clearly indicated. However, as Keys indicates, successful law reform presupposes a significant attitudinal change in the mind-set of public and civil servants, policy makers and other key players, like the judiciary.175 Law reform, as the key change, has to be underpinned at a more substantive level by ‘embracing the notion of capacity as an integral part of all human beings’. 176

As noted above, I propose that the reform of existing South African constitutional and legislative provisions is required in order to reflect the ‘paradigm shift’ reflected in the CRPD. This reform cannot be based on a midway compromise position where persons with psychosocial disabilities who ‘qualify’ (however this is determined) are permitted to vote - and those who do not remain excluded.

While this may appear to some to be a startling proposition, Lawson notes that the CRPD is, in many ways, a startling instrument.177 This is particularly true in the realm of legal capacity and concomitant rights of persons with psychosocial disabilities, where stigma, prejudice and ‘dignitary harm’ still prevail. But it is precisely the role of the CRPD to startle (and dislocate) preconceived notions underpinning discriminatory laws - such as those denying persons with disabilities the right to vote.

 


1. August v Electoral Commission 1999 (3) SA 1 (CC) para 17.

2. Defined as ‘ the right of all the adults in a country to vote in elections’ : http://www.mac millandictionary.com/dictionary/british/universal-suffrage#universal-suffrage_3 (accessed 11 July 2014) ; ‘the right of all a nation's citizens above a certain age, usually eighteen or twenty-one, to vote, unless they are in violation of certain basic legal requirements’: http://www.wordsmyth.net/?level=3&ent=universal+suffrage (accessed 11 July 2014) .

3. The term ‘psychosocial’ is used here to refer to the interaction between the psychological and social/cultural components of this disability. The psychological component refers to ways of thinking, processing experiences and perceptions of the world. The social/ cultural component refers to societal and cultural limits for behaviour that interact with the psychological aspect as well as the stigma that society attaches to label people as disabled - World Network of Users and Survivors of Psychiatry Implementation manual for the United Nations Convention on the Rights of Persons with Disabilities (2008) 9. Psychosocial disabilities are also sometimes referred to as ‘psychiatric disabilities’, ‘mental disabilities’ or ‘mental health problems’. Because of the array of different terms used in the literature (legal and otherwise), it is not always possible to establish exact terminological equivalence. For example, the term ‘mental disability’ is sometimes used as a collective for both psychosocial disability and intellectual disability; in other work it denotes only the former.

4. GA Res A/RES/61/06, adopted on 13 December 2006, entered into force on 3 May 2008 (CRPD).

5. TH Earle & KM Bushner ‘Effective participation or exclusion: The voting rights of people with disabilities’ (2001-2002) 11 Temple Political & Civil Rights Law Review 327 329; K Schriner et al ‘Democratic dilemmas: Notes on the ADA and voting rights of people with cognitive and emotional impairments’ (2000) 21 Berkeley Journal of Employment & Labor Law 437 483. See also JE Lord et al ‘Facilitating an equal right to vote for persons with disabilities’ (2014) 6 Journal of Human Rights Practice 115 117.

6. Earle & Bushner (n 5 above) 329.

7. These may include paper ballots (the method still used most frequently in developing countries), mechanical lever machines, punch cards, optical scan systems and Direct Recording Electronic (DRE) systems - see http://inventors.about.com/library/weekly/aa111300b.htm (accessed 11 July 2014) . Earl and Bushner refer to ‘voting machines’.

8. See M Waterstone ‘Political participation for people with disabilities’ in MH Rioux et al (eds) Critical perspectives on human rights and disability law (2011) 371 380-381.

9. See art 9 of the CRPD.

10. See art 5 of the CRPD, which makes it clear that a failure to provide reasonable accommodation constitutes disability-based discrimination. ‘Reasonable accommo-dation’ is defined in art 2 of the Convention as ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’ (my emphasis). Reasonable accommodation is therefore aimed at meeting the requirements of a specific individual, whereas ‘accessibility’ entails the identification and elimination of barriers and obstacles to ensure to persons with disabilities (generally) access, on an equal basis with others, to the physical environment, to transportation, etc.

11. See eg discussion of South African legislation below.

12. Another group that is regularly excluded is prisoners, whether awaiting-trial or sentenced. The rationale for exclusion for each group is different.

13. JS Nelson ‘Fair measure of the right to vote: A comparative perspective of voting rights enforcement in a mature democracy’ (2010) 18 Cardozo Journal of International & Comparative Law 425 429. Although this article deals with sentenced prisoners in Ghana, I argue that the same principle applies.

14. See J Fishkin ‘Equal citizenship and the individual right to vote’ (2011) 86 Indiana Law Journal 1289 1334.

15. Schriner et al (n 5 above) 483.

16. Schriner et al (n 5 above) 487; JA Bindel ‘Equal protection jurisprudence and the voting rights of persons with diminished mental capacities’ (2009) 65 New York University Annual Survey of American Law 87 101. Of course one also had to be an adult white male.

17. Schriner et al (n 5 above) 488. Renters would be susceptible to the power of their landlords, and employees subject to the influence of their employers. This thought replicated ideas already common in England.

18. Schriner et al (n 5 above) 489.

19. Bindel (n 16 above) 102.

20. In Massachusetts, for example, the constitution was amended in 1821 in two respects. First, the property qualification was dropped in favour of a taxpaying qualification; second, ‘paupers and persons under guardianship’ were excluded from the electorate. This exclusion was justified on the basis that paupers (persons who had no means of self-support and thus were dependent on public relief) and persons under guardianship (insane persons, drunkards, and others whose financial affairs were managed by a guardian for the primary purpose of avoiding dependency on public relief) were viewed as unworthy because of their economic dependency - Schriner et al (n 5 above) 490.

21. Bindel (n 16 above) 102. Terminology used in source.

22. Bindel (n 16 above) 103.

23. Interestingly, similar arguments based on citizenship and inferior mental capacity were proposed at the time to deny women the right to vote - see NF Brescia ‘Modernizing state voting laws that disenfranchise the mentally disabled with the aid of past suffrage movements’ (2010) 54 Saint Louis University Law Journal 943 957-960.

24. The late 19th and early 20th centuries.

25. Bindel (n 16 above) 104-105. Social Darwinism also gave rise to the eugenics movement, which saw prohibitions on marriage and procreation of people with especially intellectual disabilities and also encouraged laws permitting involuntary sterilisation - see KB Glen ‘Changing paradigms: Mental capacity, legal capacity, guardianship, and beyond’ (2012) 44 Columbia Human Rights Law Review 93 104-105.

26. Bindel (n 16 above) 106.

27. PS Karlan ‘Framing the voting rights claims of cognitively impaired individuals’ (2007) 38 McGeorge Law Review 917 925.

28. As above.

29. See also Schriner et al (n 5 above) 486.

30. R Kelley ‘Toward an unconditional right to vote for persons with mental disabilities: Reconciling state law with constitutional guarantees’ (2010) 30 Boston College Third World Law Journal 359 370.

31. Brescia (n 23 above) 959.

32. Brescia concedes that while ‘some severe mental disabilities’ can inhibit individuals from making decisions or comprehension, by no means do the vast majority of people with mental disabilities lose these functions.

33. MA Stein & R Allen Third party intervention in the matter of Bujdosó, Zsolt et al. v. Hungary (2013) para 19.

34. Stein & Allen (n 33 above) para 20.

35. Karlan (n 27 above) 917; Brescia (n 23 above) 960.

36. Bindel (n 16 above) 115.

37. Stein & Allen (n 33 above) para 20; Bindel (n 16 above) 115.

38. G Quinn Personhood and legal capacity: Perspectives on the paradigm shift of article 12 CRPD (2010) 7.

39. Bindel (n 16 above) 107.

40. Bindel (n 16 above) 108.

41. Bindel (n 16 above) 107.

42. See also the discussion below.

43. Bindel (n 16 above) 122.

44. J Fiala-Butora et al ‘The democratic life of the Union: Toward equal voting participation for Europeans with disabilities’ (2014) 55 Harvard International Law Journal 86.

45. European Union Agency for Fundamental Rights (FRA) The right to political participation of persons with mental health problems and persons with intellectual disabilities (2010) 15; see also Fiala-Butora et al (n 44 above) 75. See Brescia (n 23 above) 946-948 for a brief summary of the position in the US.

46. The notion of legal capacity is discussed below.

47. Guardianship traditionally means that when the state determines that an individual lacks the ‘capacity’ to make some or all decisions, the state removes the individual's legal right to make those decisions and appoints a guardian to make those decisions for that individual - so-called ‘substituted decision-making’: L Salzman ‘Guardianship for persons with mental illness - A legal and appropriate alternative?’ (2011) 4 St Louis University Journal of Health Law & Policy 279 279. The notion of guardianship is closely bound up with a discussion of legal capacity; this is however beyond the scope of this article. For a thorough discussion of guardianship and recent changes in guardianship laws, see generally Salzman (above) 279-329; Glen (n 25 above) 92-169.

48. FRA (n 45 above) 15.

49. FRA (n 45 above) 16.

50. FRA (n 45 above) 18.

51. Bindel (n 16 above) 92. See also Bazelon Centre for Mental Health Law State laws affecting the voting rights of people with mental disabilities (2012), available at http://www. bazelon.org/LinkClick.aspx?fileticket=-Hs7F_Ohfgg%3d&tabid=543 (accessed 9 April 2014).

52. Electoral laws in the following jurisdictions contain disability-based voting exclusions: Angola; Botswana; Ethiopia; Ghana; Liberia; Sierra Leone; South Africa; Tanzania; and Zambia. This list, which does not purport to be exhaustive, is limited to Anglophone jurisdictions due to language restrictions.

53. Waterstone (n 8 above) 378.

54. A Winkler ‘Expressive voting’ (1993) 68 New York University Law Review 330 331, 368.

55. Waterstone (n 8 above).

56. Fishkin (n 14 above) 1335-1336.

57. Fishkin (n 14 above) 1336.

58. Fishkin (n 14 above) 1296.

59. Adopted by the UN General Assembly resolution 217 A (III) on 10 December 1948.

60. Adopted on 16 December 1966, entered into force on 23 March 1976.

61. Art 2 refers to ‘distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.

62. Human Rights Committee General Comment No 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Article 25) UN Doc CCPR/C/21/Rev.1/Add.7 (12 July 1996) para 4.

63. Para 3.

64. Para 10.

65. Para 4.

66. Office of the UN High Commissioner for Human Rights Thematic study on participation in political and public life by persons with disabilities A/HRC/19/36 (21 December 2011) para 28. For this reason, the General Comment is currently being reviewed in this respect - Fiala-Butora et al (note 43 above) 79 fn 48. See also FRA (note 45 above) 9 and discussion of art 29 of the CRPD below.

67. European Commissioner for Human Rights Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities (2012) CommDH/IssuePaper(2012)2 12.

68. Art 3 of the CRPD.

69. See generally JE Lord & MA Stein ‘The domestic incorporation of human rights law and the United Nations Convention on the Rights of Persons with Disabilities’ (2008) 83 Washington University Law Review 449 449-479.

70. Para (c) of the preamble to the CRPD reaffirms the principle of the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms. Additional articles of significance to the present analysis are art 3 (general principles) and art 5 (equality and non-discrimination).

71. G Quinn ‘Resisting the “temptation of elegance”: Can the Convention on the Rights of Persons with Disabilities socialise states to right behaviour’ in O Arnardóttir & G Quinn (eds) United Nations Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives (2009), 49; see also A Lawson ‘The United Nations Convention on the Rights of Persons with Disabilities: New era or false dawn?’ (2006-2007) 34 Syracuse Journal of International Law & Commerce 563 595.

72. S Trömel ‘A personal perspective on the drafting history of the United Nations Convention on the Rights of Persons with Disabilities’ in European Yearbook of Disability Law (2009) 125.

73. Trömel (n 72 above) 126; M Schulze Understanding the UN Convention on the Rights of Persons with Disabilities (2009) 86.

74. Ie being someone who can own property and possess rights provided for by domestic legislation, including the right to vote - European Commissioner of Human Rights (n 67 above) 7.

75. Specifically including the power to dispose of one’s property (ie to use it, sell it, give it away or destroy it) and claim one’s rights before a court - European Commissioner on Human Rights (n 67 above) 7. This includes exercising the right to vote.

76. This distinction is more familiar to civil law systems than common law systems.

77. Lawson (n 71 above) 596.

78. For an overview of this history, see Trömel (n 72 above) 126-128; Lawson (n 71 above) 595; Schulze (n 73 above) 88-89.

79. However, it is noteworthy that several of the reservations entered by states parties relate to art 12.

80. Eg the declaration entered by Canada includes the following statement ‘Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives’.

81. See Glen (n 25 above) 96-97 for the origin (in the history of science) of the term ‘paradigm shift’ and how this has come to be the standard ‘term of art’ for describing the phenomenon of re-examination and re-orientation in disability rights concretised by the adoption of the CRPD.

82. Art 12(2).

83. This reading is reinforced by the definition of disability-based discrimination in article 2 of the CRPD, which reads as follows: ‘“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation’ (my emphasis).

84. Committee on the Rights of Persons with Disabilities General Comment No 1 Article 12: Equal recognition before the law UN Doc CRPD/C/GC/1 (dated 11 April 2014) para 27.

85. Para 44.

86 Article 29 provides as follows:

‘States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake:

(a) To ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:

(i) Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;

(ii) Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;

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

(b) To promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:

(i) Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;

86. (ii) Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.’

87. See Committee on the Elimination of Discrimination against Women General Comment 23, Political and public life para 5 for an explanation of the term ‘political and public life’.

88. The degree of assistance was the subject of heated debates over the danger(s) of manipulation - Schulze (n 73 above) 151.

89. The wording would therefore appear to depart from the position previously adopted by the Human Rights Committee on this issue - Lawson (n 71 above) 606.

90. Communication No 4/2011, views adopted on 9 September 2013, UN Doc Ref CRPD/C/10/D/4/2011, dated 20 September 2013.

91. Pursuant to article 70(5) of the state party's Constitution, applicable at the time, which provided inter alia that persons placed under total or partial guardianship did not have a right to vote.

92. Para 2.

93. The decisions incapacitating them did not address their ability to vote, as they were automatically and indiscriminately disenfranchised by operation of the Constitutional provision, regardless of the nature of their disability, their individual abilities, and the scope of the incapacitation measure - para 3.1.

94. Para 4.2.

95. Article XXIII, paragraph (6) of the Fundamental Law.

96. Application No 38832/06, 20 May 2010. See also the discussion below.

97. Para 9.4.

98. The Committee recommended that the state party adopt urgent legislative measures to ensure that persons with disabilities, including persons who are currently under guardianship or trusteeship, can exercise their right to vote and participate in public life, on an equal basis with others - Committee on the Rights of Persons with Disabilities Concluding observations: Tunisia UN Doc CRPD/C/TUN/CO/1 dated 13 May 2011 para 35.

99. The Committee expressed a similar concern over the fact that the right to vote of persons with intellectual or psychosocial disabilities can be restricted if the person concerned has been deprived of his or her legal capacity, or has been placed in an institution - Committee on the Rights of Persons with Disabilities Concluding observations: Spain UN Doc CRPD/C/ESP/CO/1 dated 19 October 2011 para 48.

100. Under art 12(2) of the CRPD, states parties must recognise, and uphold the legal capacity of persons with disabilities ‘on an equal basis with others in all aspects of their lives’, including political life, which encompasses the right to vote. Under art 12(3) of the Convention, states parties further have a positive duty to take the necessary measures to guarantee to persons with disabilities the actual exercise of their legal capacity. Accordingly, the Committee was of the view that by depriving the authors of their right to vote, based on a perceived or actual intellectual disability, the state party had failed to comply with its obligations under art 29 of the Convention, read alone and in conjunction with art 12 - para 9.5.

101. See Stein & Allen (n 32 above) para 15.

102. Para 9.6.

103. Para 9.6.

104. Para 9.5.

105. See Committee on the Rights of Persons with Disabilities Concluding observations: China UN Doc CRPD/C/CHN/CO/1 dated 15 October 2013 para 45; Australia UN Doc CRPD/C/AUS/CO/1 dated 21 October 2013 para 51.

106. Committee on the Rights of Persons with Disabilities Concluding observations: Tunisia UN Doc CRPD/C/TUN/CO/1 (13 May 2011) para 35; Spain CRPD/C/ESP/CO/1 (19 October 2011) para 48; Argentina UN Doc CRPD/C/ARG/CO/1 dated 18 October 2012 para 47; Hungary UN Doc CRPD/C/HUN/CO/1 dated 22 October 2012 para 45; Azerbaijan UN Doc CRPD/C/AZE/CO/1 dated 12 May 2014 para 44.

107. Concluding observations: El Salvador UN Doc CRPD/C/SLV/CO/1 dated 8 October 2013 para 59.

108. Concluding observations: Austria UN Doc CRPD/C/AUT/CO/1 dated 30 September 2013 para 48. Peru was also commended for removing voting restrictions on certain persons with intellectual and psychosocial disabilities; however, persons with disabilities who have been ‘judicially interdicted’ remained ineligible to vote, which was still of concern to the Committee - Concluding observations: Peru UN Doc CRPD/C/PER/CO/1 dated 16 May 2012 para 44.

109. Art 3.

110. Hirst v United Kingdom No 2 (GC) Application No 74025/01, 6 October 2005.

111. Kiss v Hungary (n 96 above).

112. Terminology employed in the ECtHR judgment.

113. Similar to the authors in Bujdosó (n 90 above), the applicant was excluded from the electoral register pursuant to the Hungarian Constitution, which contained (at the time) an absolute voting ban for people under guardianship.

114. Para 38.

115. Para 40.

116. Para 41.

117. Para 39.

118. Para 42.

119. The Court referred to its judgment in Shtukaturov v Russia, Application No. 44009/05, 27 March 2008 - Kiss v Hungary (n 96 above) para 42.

120. Para 44.

121. It is important to consider that the European Court was pronouncing on a violation of the European Convention, while the Committee on the Rights of Persons with Disabilities in Bujdosó was concerned with the interpretation of the CRPD.

122. Council of Europe Recommendation Rec (2006) 5 of 5 April 2006. See also Recommendation Rec (2004)10 of 22 September 2004 - persons with ‘mental disorder’ should be entitled to exercise all their civil and political rights. Any restrictions to the exercise of these rights should be in conformity with the provision of the European Convention and should not be based on the mere fact that the person has a mental disorder. See also Recommendation Rec (99)4 of 23 February 1999.

123. European Commission for Democracy through Law (Venice Commission) Revised Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections (adopted at the 89th Session of the Venice Commission, 16-17 December 2011) CDL-AD(2011)045.

124. Para II.2.

125. A reference is provided here to the judgment in Kiss v Hungary (n 96 above).

126. Para II.3.

127. European Commission for Democracy through Law (Venice Commission) Code of good practice on electoral matters: Guidelines and explanatory report (adopted by the Venice Commission at its 52nd Session, 18-19 October 2002) CDL-AD (2002) 23 rev para I.1.1(d).

128. Articles 39-40 of the Charter of Fundamental Rights of the European Union guarantee the rights to political participation.

129. Article 13 reads as follows:

‘(1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

(2) Every citizen shall have the right of equal access to the public service of his country.

(3) Every individual shall have the right of access to public property and services in strict equality of all persons before the law.’

130. African Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc CAB/LEG/67/3 Rev 5, entered into force 21 October 1986.

131. See eg European Convention.

132. As above.

133. MK Mbondenyi ‘The right to participate in the government of one’s country: An analysis of article 13 of the African Charter on Human and Peoples’ Rights in the light of Kenya’s 2007 political crisis’ (2009) 9 African Human Rights Law Journal 183 186-187.

134. See Modise v Botswana (2000) AHRLR 30 (ACHPR 2000); Legal Resources Foundation v Zambia (2001) AHRLR 84 (ACHPR 2001).

135. (2003) AHRLR 96 (ACHPR 2003).

136. The ‘Lunatics Detention Act’ (Gambia).

137. The Commission further found violations of arts 5, 7 (1)(a) and (c), 13(1), 16 and 18(4) of the Charter.

138. Para 75.

139. Para 76. This referred to General Comment No 25 adopted by the HRC discussed above.

140. Adopted on 30 January 2007, came into operation 15 February 2012.

141. Art 2.

142. Art 3(7).

143. Art 4.2.

144. Art 8.1.

145. Art 8.2 further enjoins states parties to adopt legislative and administrative measures to guarantee the rights of women, ethnic minorities, migrants, persons with disabilities, refugees and displaced persons and other marginalised and vulnerable social groups.

146. Art 31.1.

147. See eg ‘In Pictures: South Africa’s freedom day’ BBC News (undated), available at http://news.bbc.co.uk/2/shared/spl/hi/africa/04/photo_journal/94election/html/5.stm (accessed on 7 April 2014).

149. Sec 1(d) of the Constitution of the Republic of South Africa, 1996.

150. Sec 19(3).

151. The South African Parliament consists of the National Assembly and the National Council of Provinces.

152. Sec 47(1)(d).

153. As Lord et al observe, the legal framework for a fair and democratic process for political participation must look beyond electoral laws to also include anti-discrimination legislation (amongst others) - see Lord et al (n 5 above) 120. In the South African context, this implies that one also needs to consider legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 Act in understanding the electoral framework; see sec 6 read with sec 9 of this Act, which prohibits unfair discrimination based on disability.

154. Sec 1 (definition of ‘voter’).

155. Secs 5-7.

156. Sec 8(2)(c).

157. Sec 8(2)(d) of the Electoral Act.

158. J Brickhill & R Babiuch ‘Political rights’ in S Woolman et al (ed) Constitutional law of South Africa 2nd ed (2007) 45-49.

159. See Masuku & Mbonani v State President 1994 (4) SA 374 (T), challenging sec 16 of the Electoral Act of 1993, which excluded certain categories of prisoners from voting; August (n 1 above), where the courts had to determine whether the Electoral Commission had an obligation to take affirmative steps to ensure that prisoners awaiting trial and sentenced prisoners could register and then vote in an upcoming general election; Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) 2005 3 SA 280 (CC), where a limitation on the right to vote of prisoners serving a sentence without the option of a fine was challenged.

160. n 1 above, para 17.

161. Brickhill and Babiuch (n 158 above) 45-49. See sec 9(3) of the Constitution.

162. Brickhill and Babiuch (n 158 above) 45-49.

163. The National Assembly Portfolio Committee on Home Affairs.

164. The Ubuntu Centre ‘Submission to The Department of Home Affairs Portfolio Committee: Comment on Electoral Amendment Bill B222013’ (28 August 2013), available at http://www.pmg.org.za/report/20130910-electoral-amendment-bill-b22-2013-public-hearings (accessed 7 April 2014).

165. See minutes of meeting of Portfolio Committee on 16 September 2013, available at http://www.pmg.org.za/report/20130916-electoral-amendment-bill-electoral-commission-response-public-submissions (accessed 7 April 2014).

166. As above.

167. The Electoral Amendment Act 18 of 2013 as adopted included provisions inter alia to give effect to the judgments in Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) 2005 (3) SA 280 (CC) and Richter v Minister of Home Affairs 2009 (3) SA 615 (CC).

168. In terms of sec 4(1)(b) of the CRPD, states parties are under an obligation to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.

169. Sec 39(2).

170. Sec 33(1). Sec 33A makes a similar provision for special votes in election of provincial legislatures.

171. Sec 39(1).

172. Kelley (n 30 above) 362; see also Brescia (n 23 above) 957-958.

173. Fishkin (n 14 above) 1355.

174. Waterstone (n 8 above) 381.

175. M Keys ‘Legal capacity law reform in Europe: An urgent challenge’ in European yearbook of disability law (2009) 63.

176. As above.

177. Lawson (n 71 above) 619. See also Glen (n 25 above) 98.


  • William Aseka
  • William Aseka received his LLM, with a concentration in International and Comparative Disability Law, at Syracuse University College of Law. He is a graduate of the Catholic University of Eastern Africa in Kenya.
  • Arlene S Kanter
  • Professor Arlene S Kanter is the Bond, Schoeneck & King Distinguished Professor of Law and the Meredith Professor of Teaching Excellence.


William Aseka wishes to thank Open Society Foundation for supporting his LLM studies at Syracuse University College of Law. He also thanks Prof Arlene Kanter for her mentorship. Research for this article was supported in part by the Disability Rights Scholarship Program, which is funded and administered by the Open Society Institute (OSI). The opinions expressed herein are the author’s own and do not necessarily express the views of OSI.

Arlene S Kanter founded and directs the College of Law’s Disability Law and Policy Program, coordinates the LLM Program in International and Comparative Disability Law, and co-directs the Syracuse University Center on Human Policy, Law, and Disability Studies. She worked with the UN Ad Hoc Committee on drafting the CRPD, and has worked with many governments and organizations on implementing the CRPD. Her upcoming book, The development of disability rights under international law: From charity to human rights (Routledge 2014) traces the history of the CPRD and its potential impact.


Summary

The Basic Education Act 14 of 2013 ensures the right of all children with disabilities to free and compulsory education for the first time in Kenya. However, the Act continues to perpetuate discrimination against Kenyan children with disabilities. First, the law fails to provide reasonable accommodations in education, which amounts to disability discrimination. Second, the law fails to ensure an inclusive education system as required by article 24 of the CRPD. While there has been some debate as to whether article 24 bans all specials schools, the Basic Education Act creates a system in which all children with disabilities are required to attend separate schools, solely based on their disability. Although an inclusive education system may not be possible to achieve in Kenya overnight, the law does not do enough to promote equal educational opportunities for children with disabilities as required by the CRPD. At the very least, children with disabilities should be guaranteed the right to an education in the least restrictive environment, which, we argue, is possible to achieve immediately. The right to education in the least restrictive setting ensures that children with disabilities are provided the opportunity to learn with

their non-disabled peers. However, enforcing the right to education in the least restrictive environment should not be the final goal; it is only a means that will lead towards full inclusion for all children with disabilities in Kenya, as mandated by the CRPD.

1 Introduction

Children with disabilities have been subjected to discrimination in education for the longest time in Kenya. According to the Kenya National Survey for Persons with Disabilities, about 67 per cent of persons with disabilities have some primary education.1 Of those, only nine per cent attended public schools with non-disabled children.2 Thus in Kenya today, many children with disabilities are not allowed to attend school at all, and those who do attend school are not allowed to attend school with non-disabled children. Instead, they have been forced to attend special schools designed specifically for their specific type of disability. These special schools have developed based on the assumption that students without disabilities would not want to attend school with children with disabilities and vice versa. As a result, children with disabilities have been denied their basic right to education on an equal basis with their non-disabled peers.

In August 2010, Kenya adopted a new Constitution. This Constitution expressly prohibits discrimination against children and adults with disabilities in education for the first time in Kenya’s history.3 Article 54 of the Constitution specifically guarantees the right of people with disabilities to be treated with dignity and respect, and to have ‘access to educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person’.4 Further, article 53(b) guarantees every child in Kenya the right to ‘free and compulsory basic education’.

It is against the background of the new Constitution that the government of Kenya passed the Basic Education Act 14 of 2013 (the Act). The purpose of the Act is to implement article 53(b) of the Constitution by ensuring a free and compulsory education for all children in Kenya. Not only does the Act recognise the importance of the right to a free basic education for all children with disabilities, but it specifically prohibits

schools from denying admission to students with disabilities;5 on the other hand, the Act authorises the creation of a special public education system for students with disabilities.6

In 2007, Kenya signed the UN Convention on the Rights of Persons with Disabilities (CRPD), and ratified it in 2008. The purpose of the CRPD is to protect and ensure equal enjoyment of human rights for children and adults with disabilities.7 According to the CRPD, state parties are required to protect the best interests of children and to ensure the realisation of their rights under the Convention.8 Article 24 of the CRPD specifically guarantees the right to education for all children and adults with disabilities as well as an obligation on state parties to provide an ‘inclusive education system’.9

The Act may be commended for establishing, for the first time in Kenya, the right of all children, with and without disabilities, to education. However, it falls short of complying with article 24 of the CRPD. The Act legislates the status quo in education by segregating children with disabilities in so-called ‘special schools’.10 It also fails to mention the right to inclusive education, which has been determined to be the best way to achieve quality education for children with disabilities. Some might argue that the Act benefits children with disabilities in Kenya since many of these children were never even allowed to attend public schools and that situation will now change. However, as we argue in this article, the Act discriminates against children with disabilities by continuing a system of special schools, and by failing to create an inclusive education system which would also ensure reasonable accommodations that are necessary to fully implement the goal of inclusive education for all children with disabilities. In particular, in this article, we discuss the extent to which the Act fails to comply with article 24 of the CRPD, and what action Kenya should take to fully protect the right of children and adults with disabilities to education on an equal basis with people without disabilities, as required by the CRPD.

In the first part of the article, we present an overview of the Act which shows, in our view, the ways in which the Act discriminates against children with disabilities. In the second part of the article, we discuss the concepts of equality, non-discrimination and reasonable accommodations, which are essential to any education system that is to comply with article 24 of the CRPD. The final section of the article explores the Act’s failure to adhere to the principles that are essential in protecting the right of children with disabilities to education, followed by our recommendations.

2 The right of children with disabilities to education under the Act

The Act came into force on 25 January 2013. The Act is divided into 12 parts.11 Most of the Act addresses the relationship between the county and national governments in providing education. However, Parts IV and V of the Act also establish the right of children to free, compulsory education, and the creation of special schools for children with disabilities.12

Section 28 of Part IV of the Act is perhaps one of the most progressive provisions of the Act. This section requires the government to implement the right of every child to a free and compulsory education. This mandate is in line with Kenya’s obligation under international law, specifically the International Covenant on Economic Social and Cultural Rights13 as well as the CRPD. The government is also mandated to establish different schools, in order to achieve this fundamental right to education for every child in Kenya.14 To ensure that the education is free, the Act provides that no public school may charge a fee for admission to school.15 To ensure that the education is compulsory, the Act has made it a criminal offence for parents who fail to take their children to school, with a maximum term of two years’ imprisonment.16 Section 34 also prohibits a school from denying admission to a child based on his or her disability.17 In line with Kenya’s international obligations, the Act mandates the government to ensure that all the above provisions are available to every child.18 In addition, for those children who are marginalised or from disadvantaged groups, the government is required to ensure that they are not discriminated against in their access to education.19

The government is also mandated under the Act to establish and maintain public special schools.20 The children who qualify to enrol in these special schools include children with intellectual, physical, emotional, hearing or vision impairments as well as students with special talents or multiple disabilities.21 To ensure that these schools are up and running efficiently, the government is mandated to provide special needs teachers and support staff in the schools. 22

In contrast to the CRPD which adopts a social model of disability, 23 the Act incorporates a medical model of disability. Special schools are defined as those schools whose ‘purpose is to help a particular class of children not only attain education but some form of treatment or care’.24 The medical model, also known as the deficit model, views people with disabilities as ‘sick’ and in need of a medical intervention. This model locates the ‘problem’ of disability within the person rather than in an environment that creates barriers to the full inclusion and participation of people with disabilities.25 On the other hand, the CRPD, rejects the medical model of disability, and instead adopts a more holistic model of disability, commonly referred to as the social model of disability. The social model of disability sees disability as an interaction between an individual and the environment and society.26 According to this view, people with various conditions and impairments become ‘disabled’ only when they encounter environmental and other barriers that prevent them from accessing their rights on an equal basis with nondisabled people. According to the social model, therefore, people with disabilities can be included in society when the environmental and other barriers are removed.

The Act does not adopt a social model of disability. It does not declare that all children have a right to education on an equal basis with other nondisabled children; nor does it require the removal of barriers to their full inclusion. Instead, children with disabilities are sent to separate ‘special’ schools. Moreover, the purpose of education for children with disabilities under the Act is not to ensure their equal right to education but to expose them (only) to an ‘appropriate curriculum for children with disabilities’.27 But as the United States Supreme Court wrote 60 years ago, separate educational facilities are inherently unequal’.28 Thus the Act discriminates against children with disabilities not only by creating separate schools, but also by requiring separate curricula for children with disabilities.

As this brief summary of the Act reveals, on one hand, it seeks to protect the right to public education for every child; but, on the other hand, it directly discriminates against children with disabilities by forcing them to attend separate, segregated, special schools with special curricula. As discussed more fully in the next section, the Act fails to provide children with disabilities in Kenya the right to education on an equal basis with their non-disabled peers, in violation of international standards.

3 The right of children with disabilities in Kenya to equality and non-discrimination

3.1 The right to equality in education

The principle of discrimination can be understood as treating similar situations differently without an objective or reasonable justification.29 Both the Constitution of Kenya of 201030 and the Act31 prohibit discrimination on the basis of disability. These laws also recognise the right to positive discrimination, otherwise known as affirmative action. 32 Nevertheless, such measures of positive discrimination must be reasonable and justifiable.33 Some may argue that the establishment of special schools is an example of affirmative action for children with disabilities since these schools provide children with disabilities the different treatment they need in order to remedy past discrimination against them. However, the European Court of Human Rights (ECtHR) as well as other countries’ courts have held that the creation and continuation of special schools

amounts to prohibited discrimination.34 According to these views, the way to remedy past discrimination is not to create separate schools but to integrate children with disabilities into regular schools and to provide them with the assistance they may need to succeed.35

It is undisputable that children with disabilities in Kenya are marginalised in the field of education. However, children with disabilities deserve much better than the provisions provided in the Act. The next section of this article explains the way in which the Act violates the right to equality and non-discrimination on the grounds of disability, as required under international law, including the CRPD.

The principles of non-discrimination and equality have been referred to as the flip side of the same coin.36 In other words, for equality to be present, discrimination must be absent.37 However, there is no agreed upon definition of the concept of equality or non-discrimination.38 Formal equality is understood as requiring that similar cases be treated similarly, and different cases be treated differently.39 But the concept of equality refers only to partial equal treatment because human beings can never be in completely identical situations.40 Thus equality is not an absolute truth; rather, it is a relational concept: it can only exist in a comparative state between two groups, such as between children with and without disabilities.41 To attain formal equality in education, then, children with and without disabilities must be afforded the same rights, opportunities and treatment.42 To realise the goal of formal equality for children with disabilities in education, therefore, the law may provide simply that

children with and without disabilities are to be treated alike.43 The problem with the formal equality approach to education, however, is that it does not take into account various social, economic, and personal characteristics and abilities or disabilities of individual students.44 Hence, formal equality is often criticised for assuming that all children are on an equal footing and thereby failing to address the specific barriers that some children may face in accessing their right to equal educational opportunities.45 Furthermore, formal equality does not guarantee children with disabilities equal opportunities in schools, as it does not require the schools to provide the accommodations that may be necessary to fully realise their right to education.

In contrast to formal equality is substantive equality, which is understood to mean that the results of the treatment must be equal. 46 Here, the focus is less on the opportunity for equality, and more on ‘equality of results’.47 The concept of substantive equality demands that people with and without disabilities, require different treatment in order to ensure that equal results can be achieved.48 For example, a law that states that all children are entitled to equal education may satisfy the requirements of formal equality; however, it will not ensure that a child who uses a wheelchair will be able to enter a school that has only stairs at its entrance; nor will it ensure that a child who is blind or deaf will be able to access materials and communicate effectively with other students and the teacher in the classroom; nor will it ensure that a child with a learning disability will be able to receive the tutoring or testing accommodations that he or she may need. Hence, to fully ensure equality in some cases, ‘different’ treatment must be provided to ensure equal results. In order to ensure equal education for all children, the law must ensure that children with disabilities receive the accommodations or modifications that they require to ensure that they may access education on an equal basis with their non-disabled peers. The Act fails to ensure this ‘different’ treatment that will guarantee equality of results for children with disabilities in Kenya.

3.2 The right to non-discrimination in education

Non-discrimination is the cornerstone of international human rights law. However, the content and scope of non-discrimination remains in dispute.49 Discrimination simply means to treat people differently. The jurisprudence of the ECtHR has stated that different treatment of persons who are in an analogous situation with identifiable characteristics amounts to discrimination.50 However, not all different treatment amounts to discrimination. Different treatment will not always amount to discrimination if there is an objective and reasonable justification for such discrimination. 51 Different treatment is not in itself conclusive of discrimination even though it is a perquisite. For example, the Human Rights Committee found a violation of articles 2(1) and 3 of the International Covenant on Civil and Political Rights (ICCPR) in Mauritanian Women v Mauritius52 when different treatment based on gender alone was not conclusive. The Committee reasoned that no ‘sufficient justification’ had been found for the distinction.53

Discrimination can also be direct and indirect. Direct discrimination occurs when people equal in status are treated differently. This means that children with disabilities will be discriminated against when they are denied admission to public schools because of their disability. However, direct discrimination rarely occurs because today in most countries, including Kenya, have constitutional provisions that bar direct discrimination. The Act, too, does not directly discriminate against children with disabilities because public schools are prohibited from denying them admission based on their disability. However, the Act does require children with disabilities to attend public special schools. The question that we must now address is whether this provision is a violation of the right of children to be free from discrimination, as required by the Kenyan Constitution as well as the CRPD.

Although no court decision in Kenya has applied the principle of equality to people with disabilities, other countries’ courts have addressed the issue of what constitutes discrimination based on disability. For instance, the US Supreme Court in 1982 held that discrimination based on disability is not a suspect class that would require the government to show a compelling state interest.54 All that is required is for the government to show a rational basis for discriminating based on disability.55 Having said that, however, in a later case, the Supreme Court held that it is discrimination for the state to provide people with disabilities certain services (in an institution) while providing similar services to people without disabilities in the community. 56

In addition to direct discrimination, indirect discrimination, otherwise called disparate impact discrimination,57 occurs when a neutral law, practice or requirement has a disproportionate effect or impact upon a protected group of people.58 The ECtHR has developed no clear distinction between direct and indirect discrimination. However, the Court has found indirect discrimination in several recent cases.59 First, in the case of DH v The Czech Republic, the Court found indirect discrimination against Roma children in the Czech Republic. A series of tests were used to establish the intelligence and suitability of pupils in mainstream and special schools.60 The special schools were designed for those with intellectual disabilities and other learning difficulties. The same test was applied to all pupils who were considered for placement in special schools. However, in practice, the test had been designed for the mainstream Czech population. As a result of their general unfamiliarity with Czech mainstream culture, Roma students performed less well than their Czech peers. Between 50 to 90 per cent of Roma children were educated outside the mainstream education system. The ECtHR found that this was a case of indirect discrimination.61

In a second case, Orsus v Croatia, the Court noted that the concept of indirect discrimination needs further development.62 The dissenting judges were critical of the majority opinion for failing to offer ‘practical guidance on how to develop and apply the notion of indirect discrimination’. 63

Indirect discrimination has also been defined as discrimination that occurs as the result of equal treatment.64 This means that a law may require children to be treated in the same way in attaining education but fails to ensure that children with disabilities receive the accommodations or modifications they may need in order to have the same access to education as non-disabled children. For instance, a law may require all children pass a reading test before they may be admitted to a particular school. Although this is a neutral law, its effect may be to discriminate against blind children, for example, if the admission tests for the school are not available in Braille or another alternative format. Indirect discrimination looks at the effect of the rules, rather than how they are constructed.65 Thus like the concept of substantive equality, indirect discrimination is also concerned with results. However, a court will likely find indirect discrimination only if there is no objective and reasonable justification for the treatment. The CRPD Committee has held, therefore, that the right not to be discriminated against ‘can be violated when states, without objective and reasonable justification, fail to treat differently persons whose situations are significantly different’.66

3.3 Failure to provide reasonable accommodation is disability discrimination

The CRPD prohibits both direct and indirect disability discrimination, in most, if not all, areas of life. Article 5(1) provides that every disabled person shall be treated equally before the law. Article 5(2) specifically prohibits discrimination based on disability. To understand disability discrimination, it is not enough to look at the first two provisions of article 5; paragraph 3 of article 5 is also important since it explains the meaning of disability discrimination as follows: ‘In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.’67

For the first time in any international treaty, the CRPD states that the failure to provide reasonable accommodation is considered explicitly as a form of disability discrimination.68 Article 2 of the CRPD defines reasonable accommodation as the necessary and appropriate modification on a case by case basis to ensure an individual with a disability enjoys the same rights as others.69 However, if an accommodation would cause the state an undue burden, it would not be considered ‘reasonable’.70 The concept of reasonable accommodation is now being developed by the CRPD Committee in its responses to country reports. The CRPD Committee has already criticised several countries for their failure to provide reasonable accommodations, including in the area of education.71 Further, in cases that have come before the CRPD pursuant to the Optional Protocol, the CRPD Committee has held that failure to provide reasonable accommodation amounts to disability discrimination.72

In the context of education, reasonable accommodation means changes that a school must make to the building, programmes or services that would enable a child with disability to attain education on an equal basis with his or her nondisabled peers. Reasonable accommodations may include: changing admission rules that may exclude children with disabilities; making renovations or building new schools that are accessible to children with mobility impairments; ensuring communication access for students with sensory disabilities; and providing tutoring or other assistance such as extra time on exams for students with learning disabilities.73Although the need to provide reasonable accommodations involves a subjective judgment about a student’s disability and abilities, the denial of reasonable accommodations may be seen as sui generis discrimination.74 Of course, ensuring the right of children with disabilities to reasonable accommodations does not mean that schools have to change or lower their academic standards.75

4 The Act discriminates against children with disabilities

Based on the previous discussion of what constitutes disability discrimination, it is clear that the Act discriminates against children with disabilities in Kenya in a number of ways. First, the Act fails to comply with the fundamental principle of equality. The purpose of the Act is to ensure that all children in Kenya are provided with a free and compulsory primary education. Both children with and without disabilities should be treated ‘equally’ which involves both the same treatment as well as different treatment based on the need of some children for accommodations. However, the Act creates special schools for children with disabilities without any legitimate justification. Although some children may need assistance or accommodation, that is not true for all children with disabilities. There is no justification for treating children without disabilities differently from children with disabilities who require no accommodation. Yet even for those children with disabilities who may need assistance or accommodations, there is no reason, to require that they attend separate schools or receive separate curricula. Such assistance and accommodations may be provided in regular schools as is done today in many countries throughout the world. By segregating children with and without disabilities on the basis of disability constitutes discrimination against children with disabilities who are relegated to attain their right to free and compulsory basic education only in segregated, special schools.

For example, in the United States, the Supreme Court held in the landmark case of Brown v Board of Education that laws that create separate schools are unconstitutional as a violation of the fundamental right of all to equality. 76 The Supreme Court rejected the doctrine of ‘separate but equal,’77 stating that ‘separate educational facilities are inherently unequal’.78 Similarly, the European Court of Human Rights has recently held in a series of cases involving Roma children that maintaining separate schools and programmes for them is discriminatory, including on the basis of disability.79 Moreover, in its response to reports that have been filed by countries that have ratified the CRPD, the CRPD Committee itself has criticised countries that have special schools, citing such schools as a violation of article 24’s mandate of an inclusive education system.80

The second way in which the Act fails to comply with the CRPD is its failure to ensure the provision of reasonable accommodations. A prohibition on disability discrimination does not entail merely outlawing differences based on disability; it may also entail failing to provide reasonable accommodations to people with disabilities who require such accommodations to exercise their rights. Article 24 of CRPD mandates states parties to ensure that children with disabilities receiving the accommodations they need to access education.81 The Act ignores the mandate.

The third way in which the Act violates the requirements of the CRPD is that it fails to recognise the right of students with disabilities to an inclusive education system. The definition of an inclusive education system is not included in the CRPD. However, prior international documents have defined inclusive education. The first international document that defined inclusive education is the Salamanca Statement, which provides:

The fundamental principle of the inclusive school is that all children should learn together, wherever possible, regardless of any difficulties or differences they may have. Inclusive schools must recognize and respond to the diverse needs of their students, accommodating both different styles and rates of learning and ensuring quality education to all through appropriate curricula, organizational arrangements, teaching strategies, resource use and partnerships with their communities. There should be a continuum of support and services to match the continuum of special needs encountered in every school.82

The Kenyan law does not even mention inclusive education, nor does it require that the state is under any obligation to determine whether or not a student with a disability should be educated in the regular school rather than in a separate school. For example, in the US, which does not require that all students with disabilities are educated in inclusive classrooms, students with disabilities are nonetheless insured their right to an education in the ‘least restrictive environment’. This means that students with disabilities in the US are entitled to attend schools and participate in classes and programmes that are the least restrictive of their individual liberties.83

In the context of education, the least restrictive requirement has been interpreted to require the inclusion of students in the mainstream or ‘regular’ schools and classrooms. The least restrictive requirement also means that education for children with disabilities should be in the mainstream schools with the supplemental aids and services the students may need. This additional requirement is intended to facilitate the integration of children with disabilities in the US into the mainstream education system.84 As a result, one federal court of appeals in the US overturned a 1983 decision that had authorised the placement of a child with a severe mental disability in a specialised school.85 In this decision, the appeals court reasoned that the services the student required could be provided just as easily in the public school as in the special school. Accordingly, the court held that to require the student to attend a separate school amounted to a violation of the law’s least restrictive placement requirement. The Court rejected the lower court’s holding that schools have the broad discretion in deciding to place children with disabilities in segregated or mainstream schools. Accordingly, the appeals court considered the benefits the child would receive in a segregated setting versus the regular school. If the benefits that a child would receive in the segregated setting could be achieved in the regular school setting, then the child should be educated in the least restrictive, regular school setting. This decision has led the authors to conclude that the court’s test now creates a presumption in favour of the inclusion of children with disabilities in regular classrooms and schools.

In 1989, another appeals court in the US developed an alternative test to determine the propriety of placing a child in a separate school rather than his neighbourhood school.86 In Daniel RR v State Board of Education, this appeals court determined that the school had not complied with the least restrictive setting requirement of the US education law.87 In this case, the appeals court inquired first whether the education, with the use of supplemental aid and services, could be achieved satisfactorily. Secondly, the court determined if segregation was necessary for the education of the child. If so, then the court must examine whether the school has mainstreamed the child to the maximum extent appropriate, specifically whether the school has made efforts to include the child in programmes with nondisabled children wherever possible. The first part of this test requires the court to look at the steps the school has taken to include the child with disabilities in the regular classroom.88 It is important to note that mere gestures by schools to include children with disabilities in regular classrooms would not pass this test, according to the court.89 Here, the court must look at unique benefits the child will receive in regular classrooms such as development of social skills resulting from interaction with nondisabled peers.90 Under this second part of the Daniel RR test, courts are also required to look at the effect of inclusion of children with disabilities on other children in school. If the inclusion leads to disruption in the classroom, then segregation may be justified.91 The test also allows segregation if the inclusion will demand the teacher’s attention to the disadvantage of other children.92 However, caution should be exercised while examining the negative effects of inclusion of children with disabilities on other children.93

As these cases illustrate, the right to education in the least restrictive environment developed in the US pursuant to its Individuals with Disabilities in Education Improvement Act of 2004, favours the placement of children with disabilities in classes with children who are not disabled. This idea is not present in the Act. As stated, the Act favours special schools over mainstreaming. In this way, children with disabilities in Kenya are denied an opportunity to interact with their peers as part of their education in the least restrictive environment. The purpose of the Act was not only to avoid discrimination of the children with disabilities, but also to ensure that they receive quality education.94 Quality can be attained not only by examining what the schools teach but also through ensuring that children with disabilities are, in fact, in public schools. This is because, in fact, public schools have a better curriculum compared to special

schools.95 Moreover, it has been established that children with disabilities become better students and perform better when they are in the same schools with their non-disabled peers. 96

Although the CRPD does not refer to the concept of the least restrictive environment, this concept is central to the right to education. The goal of any education system, including Kenya’s, must be full inclusion, as envisioned by article 24 of the CRPD. Ensuring the right to education in the least restrictive setting as a first step will be a major achievement for Kenya at the present time. The right of children with disabilities to education in the least restrictive setting may be used as a bridge towards attaining full inclusion for children with disabilities in Kenya.

Article 24 of the CRPD mandates state parties to ensure an inclusive education system.97 Kenya ratified the CRPD in 2008 yet its children remain relegated to a woefully inadequate segregated education system. To continue the placement of children with disabilities in special schools in Kenya violates the spirit and language of the CRPD. While it is important to appreciate that article 24 of the CRPD does not explicitly prohibit the operation of special schools, it is also important to have in mind the general principles of article 3 when reading article 24.98 Article 3 prohibits discrimination and seeks to ensure equality of treatment and results of all children and adults with disabilities. Kenya’s adherence to a separate education system for students with disabilities fails to respect the differences, dignity and equality rights of children with disabilities in Kenya. Furthermore, article 24 is subject to the principle of progressive realisation.99 Although progressive realisation of a right means that the right need not be realised immediately it does not mean that a state may deny children with disabilities the right to education in mainstream schools, entirely. The minimum core content of article 24 is to ensure that there is no discrimination on the basis of disability. Such regressive measures as creating special schools for children with disabilities are not in line with the letter or spirit of the CRPD.

Moreover, the concept of education in the least restrictive setting should not be considered the end result; rather it should be seen as a means towards attaining the result of an entirely inclusive education system for all children with disabilities. Therefore, the longer Kenya waits to amend the Act in order to ensure an inclusive education system, as required under the CRPD, the longer children with disabilities in Kenya will face an inherently unequal education system, and one which appears to violate the CRPD.

5 Conclusion

The Act ensures the right of all children in Kenya the right to a free and compulsory education. However, the Act discriminates against children with disabilities in Kenya. It fails to provide children with disabilities with the right to reasonable accommodation in education, to ensure education in the least restrictive setting, and it fails to require the establishment of an inclusive education system, as required under international law, especially article 24 of the CRPD.

While there has been some debate as to whether or not article 24 bans all special schools for children with disabilities, there is no debate that it prohibits a system which assigns children with disabilities to separate, special schools solely on the basis of their label of disability, as is provided in the Act. Such a policy runs afoul the right to equality and non-discrimination as well as the general principles of the CRPD. Thus although the CRPD does not expressly ban special schools, article 24 of the CRPD has been interpreted by the CRPD Committee as requiring changes in countries that have a system of special schools for students with disabilities. Furthermore, the ECtHR has also consistently held that specials schools may amount to discrimination, as have some courts in the US.

Although an inclusive education system in Kenya may not be possible overnight, ensuring the right to an education in the least restrictive environment should be possible to enforce immediately. The right to education in the least restrictive setting would require that each child be assessed individually to determine which classroom is the least restrictive to his or her liberties. A least restrictive classroom is one in which children, with and without disabilities, learn together. However, enforcing the right to education in the least restrictive setting should not be the final goal, but rather a means that will lead towards full inclusion for all children with disabilities in mainstream schools, as mandated by the CRPD.

 


1. Kenya National Survey for Person with Disabilities Report (2008) 15.

2. As above.

3. Art 27(4) of Constitution of Kenya provides: ‘The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth,’ (emphasis added).

4. See generally art 54 of Constitution which guarantees the right to access educational institutions, the right to be treated with dignity and to use sign language, Braille etc.

5. See sec 34 of the Act, which provides: ‘A school or person responsible for admission shall not discriminate against any child seeking admission on any ground, including ... disability.’

6. See Part VI of the Act entitled ‘Special Needs Education’.

7. Art 1 Convention on the Rights of Persons with Disabilities (CRPD).

8. Art 7(2) of the CRPD.

9. Art 24(1) of the CRPD.

10. Sec 44 of the Act.

11. Part I deals with the interpretation of terms according to the act, the guiding principles of the Act. Part II establishes the National Education Board, its functions under the Act include working with different stakeholders to ensure the removal of barriers to education. Part III establishes the County Education Boards, which functions include, amongst others, coordinating and monitoring education training. Parts IV and VI of the Act establish the free and compulsory education and promotion of special needs education. Parts V through XIII identify the coordination of responsibilities between the county and the national government, which is also beyond the scope of this article. Whether the coordination as proposed by the Act is efficient is outside the realms of this paper.

12. Sec 28 and 44 of the Act.

13. UN General Assembly ‘International Covenant on Economic, Social and Cultural Rights’, adopted by UN General Assembly Resolution 2200A (XXI) of 16 December 1966 at New York, entered into force on 3 January 1976. Article 13 provides for the right to free and compulsory primary education.

14. Sec 28(2) of the Act.

15. Sec 29 of the Act.

16. Sec 31 of the Act.

17. Sec 34(2) of the Act.

18. Sec 39 of the Act.

19. As above.

20. Sec 44(1) of the Act.

21. Sec 44(3)(a), (b) and (c) of the Act.

22. As above.

23. AS Kanter ‘The promise and challenge of the United Nations Convention on the Rights of Persons with Disabilities’ (2006-2007) 34 Syracuse Journal of International Law & Commerce 287.

24. Sec 2 of the Act.

25. AS Kanter ‘The law: What’s disability studies got to do with it or an introduction to disability legal studies’ (2011) 42 Columbia Human Rights Law Review 403 419-421; G Quinn & T Degener Human rights & disability: The current use and future potential of United Nations human rights instruments in the context of disability (2002) 15.

26. Kanter (n 25 above) 420; See also C Ngwena ‘Deconstructing the definition of “disability” under the Employment Equity Act: Social deconstruction’ (2006) 22 South African Journal on Human Rights 613 625.

27. Ngwena (n 26 above) 625.

29. Willis v The United Kingdom ECHR (11 June 2002) para 48.

30. See art 27(4) of the Constitution of Kenya 2010.

31. Sec 4(e) of the Act.

32. DH v The Czech Republic (57325/00) ECHR (13 November 2007) para 175.

33. As above.

34. See DH v The Czech Republic (n 32 above); Orsus v Croatia (Application no: 15766/03) ECHR (16 March 2010); and Horvath v Hungary (Application no: 11146/11) ECHR (29 January 2013), where the court, even though it did not expressly state that special schools are discriminatory, gave all the reasons as to why education in special schools may be substandard compared to the public mainstream schools; See also European Action of the Disabled v France European Committee of Social Rights Complaint 81/2012, where the committee unanimously held that students with autism are entitled to education in mainstream schools.

35. Brown (n 28 above).

36. A Bayefsky ‘The principle of equality and non-discrimination in international law’ (1990) 11 Human Rights Law Journal 1; See also C McCrudden & S Prechal ‘The concepts of equality and non-discrimination in Europe: A practical approach’ European Network of Legal Experts in the field of Gender Equality (2009) 12.

37. P van Dijk & GJH van Hoof Theory and practice of the European Convention on Human Rights (1990) 539.

38. Bayefsky (n 36 above) 2; See also K Frostell ‘Gender difference and the non-discrimination principle in the CCPR and the CEDAW’ in L Hannikainen & E Nykänen (eds) New trends in discrimination law: International perspectives (1999) 33; BG Ramcharan ‘Equality and nondiscrimination’ in L Henkin (ed) The International Bill of Rights (1981) 246-247; EW Vierdag The concept of discrimination in international law (1973) 2.

39. McCrudden & Prechal (n 36 above) 11.

40. Ramacharan (n 38 above) 252; Vierdag (n 38 above) 9.

41. J Fawcett The application of the European Convention on Human Rights (1987) 299.

42. Vierdag (n 38 above) 14.

43. See PG Polyviou The equal protection of the laws (1980) 2-3; S Fredman ‘Combating racism with human rights: The right to equality’ in S Fredman (ed) Discrimination and human rights: The case of racism (2001) 17.

44. Fredman (n 43 above).

45. MK Eriksson Reproductive freedom: In the context of international human rights and humanitarian law (2000) 30.

46. R Oostland Non-discrimination and equality of women: A comparative analysis of the interpretation by the UN Human Rights Committee and the UN Committee on Elimination of Discrimination against Women (2006) 19.

47. Polyviou (n 43 above) 3.

48. Oostland (n 46 above) 21.

49. Bayefsky (n 36 above) 2; Vierdag (n 38 above) 2; Ramacharan (n 38 above) 246.

50. Carson v UK (Application no: 42184/05) ECHR (16 March 2010) para 61; See also Burden v UK (Application no: 13378/05) ECHR (29 April 2008) para 60.

51. See Case relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics case) (1968) Series A no 6, para 10, where the court stated that: ‘[T]he principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the existence of right laid down in the convention must not only pursue legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means and the aim sought to be realized.’

52. Mauritanian Women v Mauritius (Communication no: 35/78) UNHR Committee (9 April 1981) UN Doc CCPR/C/OP/1 (1984) 134.

53. See Belgian Linguistics case (n 51 above) where the court held that the non-discrimination principle was only violated if the distinction had no reasonable and objective justification.

54. See Cleburne v Cleburne Living Center Inc 473 US 432 (1985), where the Court declined to apply the strict scrutiny test to a challenge to a zoning ordinance that required a special permit for a group home for people with mental disabilities. The Court however, held in favour of the applicants because the city’s reasons failed the rational basis test.

55 The US Supreme Court has developed criteria in determining whether a law discriminates people. The criteria are dived into three. The highest level of scrutiny is the ‘strict scrutiny test’ where the government needs to show compelling reasons for discriminating on this basis of the suspect class ie race, national origin and religion. The

55. second level of scrutiny is intermediate scrutiny test where a government must show an important reason. Discrimination based on sexual orientation or gender is protected by this category. The third is rational basis where government is allowed to limit someone’s right based on a rational government interest. This classification includes disability.

56. See Olmstead v LC 527 US 581 (1999).

57. Disparate impact is the American version of indirect discrimination. See generally T Loenen ‘Indirect discrimination: Oscillating between containment and revolution’ in T Loenen & P Rodrigues (eds) Non-discrimination law: Comparative perspectives (1999) 196-197.

58. Interights Non-discrimination in international law: A handbook for practitioners (2011) 18.

59. S van den Bogaert ‘Roma segregation in education: Direct or indirect discrimination - An analysis of the the parallels and differences between Council Directive 2000/43/EC and recent EctHR case law on Roma educational matters’ (2011) 71 Heidelberg Journal of International Law 719

60. DH (n 32 above) para 79.

61. DH (n 32 above) para 184.

62. Orsus (n 34 above) para 19.

63. As above.

64. Vierdag (n 38 above) 70.

65. Vierdag (n 38 above) 71.

66. To date, the CRPD Committee has adopted views on three individual communications provided pursuant to the Optional Protocol. The CRPD has found violations in two of the three of them, including HM v Sweden (Communication no: 3/2011) CRPD/C/7/D/3/2011 (19 April 2012) para 8.3.

67. Emphasis added. See too art 24(2)(c) of the CRPD which provides: ‘In realizing this right, States Parties shall ensure that ... reasonable accommodation of the individual’s requirements is provided’, (emphasis added).

68. Kanter (n 23 above).

69. Art 2 of the CRPD.

70. As above.

71. See Concluding observations for Hungary CRPD/C/HUN/CO/1 (2012) para 15; Concluding observations for Spain CRPD/C/ESP/CO/1 (2011) paras 20-21; Concluding observations for Tunisia CRPD/C/TUN/CO/1 (2011) para 12; Concluding observations for China CRPD/C/CHN/CO/1 (2012) paras 11-12.

72. See, HM (n 66 above), the CRPD Committee held that a failure to provide reasonable accommodation under the CRPD constitutes discrimination. The applicant had complained that she was being discriminated against by the state party for failure to take into account her rights to equal opportunity for rehabilitation and health. The applicant wanted to have a hydrotherapy pool at her home which would change the housing plan in the area in which she was staying. The state party had denied her this permission because it was a major departure from the development plan. According to the state party they would have allowed her to if it was not going to be a minor change to the development plan. The committee reasoned that the essence of preventing disability discrimination is by providing reasonable accommodation. The only time that reasonable accommodation would be denied is when it is causing ‘disproportionate or undue burden’. In this case, the state party could not prove that the reasonable accommodation sought by the applicant was going to cause undue burden on the part of the state.

73. See Bartlett v New York State Board of Law Examiners (1998) 156 F.3d 321.

74. Zuckle v Regents of the University of California (1999) 166 F.3d 1041 1046.

75. Southeastern Community College v Davis 442 US 397 (1979) 413, in this case the US Supreme Court held that the Rehabilitation Act does not require an academic institution ‘to make fundamental or substantial modifications to its programs or standards’.

76. Brown (n 28 above), though this case was based on race, the same principle can be applied to children with disabilities in Kenya who have historically been segregated in public education.

77. The doctrine of separate but equal was established in Plessy v Ferguson 163 US 537 (1896), where the court upheld a Louisiana law that required that railway passenger cars have ‘equal but separate accommodations for the white and colored races’. Plessy was arrested for refusing to vacate a seat in a coach for the whites.

78. Brown v Board of Education (n 28 above) 495; See also Bolling v Sharpe 347 US 497 (1954) which was held on the same day as Brown. The Court in Bolling concluded that segregation in public education is reasonably unrelated to any proper governmental objective.

79. Orsus (n 34 above), DH (n 32 above), and Horvath (n 34 above) all involved Roma children being subjected to special schools and the ECtHR held that special schools are discriminatory in nature unless the government can show a reasonable justification for the different treatment.

80. See Concluding observations for Hungary CRPD/C/HUN/CO/1 (2012) para 39; Concluding observations for Spain CRPD/C/ESP/CO/1 (2011) para 43; Concluding observations for China CRPD/C/CHN/CO/1 (2012) para 35; Concluding observations for Australia CRPD/C/AUS/CO/1 (2013) para 45; Concluding observations for Austria CRPD/C/AUT/CO/1 (2013) para 40.

81. See art 24(2)(c) (n 67 above).

82. UNESCO & Ministry of Education and Science, Spain ‘The Salamanca statement and framework for action on special needs education’ UN Doc ED-94/WS/18 (1994) 11-12, available at http://www.unesco.org/education/pdf/SALAMA_E.PDF (accessed 22 July 2014) .

83. MC Weber et al Special education law: Cases and materials (2013) 287.

84. Individuals with Disabilities Education Act 20 USC § 1412(a)(5)(A): the Individuals with Disabilities Education Act is a Federal law that requires states to have programmes that will allow children with disabilities to access education on an equal basis with other children. The Federal government supports the education through allocation of funds to School Districts for Special Education.

85. See Ronker v Walter 700 F.2d 1058 (1983).

86. Different tests have been developed over the years and the third was set out in the case of Sacramento City v Rachael H 14 F.3d 1398 (1994) where the 9th Circuit added a third dimension to the Daniel RR test which is cost. Here the court must look at the cost of educating children with disabilities in segregated settings and regular settings.

87. Daniel RR v State Board of Education 874 F.2d 1036 (1989).

88. Daniel RR (n 87 above) 1048; See also Greer v Rome City School Dist 950 F.2d 688 (1991) 696.

89. Daniel RR (n 87 above).

90. Daniel RR (n 87 above) 1049; see also M Minow ‘Learning to live with the dilemma of difference: Bilingual and special education’ (1985) 48 Law & Contemporary Problems 157 160.

91. Daniel RR (n 87 above) 1048-1049.

92. As above.

93. Greer (n 88 above) 697.

94. Sec 64 of the Act.

95. See the above mentioned Roma Cases where it was discovered that all the special schools designed for Roma children had a poor curriculum compared to public schools where non-Roma children attended (n 79 above).

96. R Rieser Implementing inclusive education: A Commonwealth guide to implementing article 24 of the UN Convention on the Rights of Persons with Disabilities (2012) 31.

97. ‘States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels...’ (Emphasis added).

98. Art 3 of CRPD provides: ‘The principles of the present Convention shall be: (a) Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons; (b) Non-discrimination; (c) Full and effective participation and inclusion in society; (d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e) Equality of opportunity; (f) Accessibility; (g) Equality between men and women; (h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.’

99. UN Committee on Economic, Social and Cultural Rights (CESCR) ‘General Comment No 3: The Nature of States Parties’ Obligations (Art 2, Para. 1, of the Covenant)’ 14 December 1990, E/1991/23.

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