- Abdallah Possi
- Lecturer, University of Dodoma, Tanzania (on secondment), currently serving as Deputy Minister of State, Prime Minister’s Office (Persons with Disabilities) in Tanzania.
- LL.B., LL.M. (Dar es Salaam), Dr.phil. (Erlangen)
- (2016) 4 ADRY 191-212
- Download article in PDF
This article gives an account of institutional mechanisms in place for the implementation of the Convention on the Rights of Persons with Disabilities in Tanzania. The protection of human rights depends, among other things, on how effective the institutional mechanisms for the implementation of these standards are. Article 33 of the CRPD provides for domestic implementation, monitoring and consultative mechanisms. Tanzania has in place institution mechanisms for the implementation of disability legislation, which was enacted after the ratification of the CRPD by Tanzania. There are general institutional mechanisms for the monitoring of human rights, which may also be used to monitor specific issues of persons with disabilities. It is a fact that these institutions were in place even before the CRPD. The domestic arrangements in Tanzania for purposes of implementing the CRPD manifest the changing approach, moving away from the old and limited medical/welfare approach to disability, and towards the broader and more inclusive rights approach to disability. The complete change will not be abrupt, because of competing urgent interests, all of which require significant resource mobilisation. Some issues related to law and the disability movement also need to be addressed with a view to enhancing the performance of domestic mechanisms envisaged under article 33 of the CRPD.
The protection of human rights in legal or policy documents is only a step towards their actual realisation. Much also depends on how effective the institutional mechanisms for the implementation of these standards are. In various places around the world, the lack of a comprehensive approach to disability issues, and the neglect of a human rights approach to disability in policy making meant that disability rights required the transformation of social structures and not only the adoption of isolated measures.1 The UN Convention on the Rights of Persons with Disabilities (CRPD) tackles the sidelining of disability by providing for means by which the rights of persons with disabilities can be implemented internationally as well as domestically. Generally, these means are through institutional/administrative as well as legislative measures, and there is also an emphasis on the participation of persons with disabilities.2
The article gives an account of institutional mechanisms for the implementation of the CRPD in Tanzania. The article begins with a brief introduction to the CRPD’s requirements on national action, and proceeds to discuss the extent to which Tanzania’s measures are in compliance with CRPD standards. The article is based on the view that the human rights approach to disability does not only end with the conceptualisation of disability, but the way in which the concept of disability is used to realise rights. This needs to be reflected in, inter alia, institutional mechanisms in place for implementation (which includes co-ordination), promotion, protection and monitoring of disability rights, as well as consultative mechanisms on matters related to persons with disabilities. This entails a shift away from the practice of limiting disability issues to health or welfare institutions.
The earliest UN instrument to specifically address matters of persons with disabilities (albeit only a particular group), the Declaration on the Rights of Mentally Retarded Persons (DRMRP),3 did not place the emphasis on domestic monitoring and administrative measures to ensure its implementation. This also applied to the Declaration on the Rights of Disabled Persons (DRDP),4 save for the requirement of consultation with organisations of persons with disabilities. In 1993, the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities (Standard Rules)5 required states to establish and strengthen national co-ordinating committees, or similar bodies, to serve as national focal points on matters relating to disability. These ought to be permanent and based on legal as well as appropriate administrative regulation.6 The Standard Rules, among other things, emphasised the representation of private and public organisations, organisations of persons with disabilities and non-governmental organisations (NGOs).7 Significantly, the Standard Rules required that the national co-ordinating committee should be provided with sufficient autonomy and resources to fulfil its responsibilities in relation to its decision-making capacities.8
- States Parties, in accordance with their system of organisation, shall designate one or more focal points within government for matters relating to the implementation of the present Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels.
- States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.
- Civil society, in particular persons with disabilities and their representative organisations, shall be involved and participate fully in the monitoring process.
Article 33 is ‘arguably the most complete provision on national level implementation and monitoring ever in international human rights’,9 and one of the far-reaching structural innovations.10 It must, therefore, not be interpreted as a mere incentive for states to implement the Convention, but as an extension of a general duty upon state authorities by virtue of international human rights law.11 The structural shifts with respect to implementation create ‘obligations of conduct’, defining how states should reach the desired goals.12 By focusing on both international and domestic mechanisms, the CRPD bridges the gap between international and national monitoring and implementation mechanisms, and between human rights standards and their practical application.13 This approach is not found in older human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).14
Article 33 should be read together with other provisions of the CRPD, and should in no way limit measures intended to be taken with the ultimate goal of realising the rights of persons with disabilities. For example, article 4(1)(a) provides for the adoption of all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the Convention.
Article 33(1) provides for two components of implementation: first, one or more entities for matters related to the implementation of the CRPD; and, second, the co-ordination mechanism aimed at boosting co-operation between ministries and avoiding that policy makers adopt isolated measures.15
This is in recognition of the fact that the implementation of international human rights treaties is ultimately a domestic issue, and also an acknowledgment that the responsibility at the national level extends across a wide range of government sectors, resulting in significant co-ordination and coherency challenges.16
However, the establishment or designation of a co-ordination mechanism is optional, since the obligation is only ‘to give due consideration’ to the designation of a co-ordination mechanism.17
Article 33(1) also creates the possibility of mainstreaming disability rights throughout the public administration and the different levels of power and, under the circumstances, co-ordination is necessary to avoid isolated and, at times, inconsistent measures.18
The CRPD allows more flexibility with respect to the formation of disability focal points, as it gives wide options of designing these in accordance with systems or organisations in particular states. Therefore, a disability focal point within a government can be either a statutory organ (autonomous or not) or an administrative unit within a government ministry. Within a government ministry there may also be a combination of both the statutory organ and an administrative entity.
Although the CRPD allows states the freedom to find appropriate ways of forming the disability focal points within their system of organisation, it is important that the disability focal point should be within the executive branch of government in order to avoid the blurring of responsibility within government on matters related to the implementation of the CRPD. 19 It should be close to the central authority which issues instructions and policies that have an effect on the rest of the ministries and government institutions, meaning that it should co-ordinate with other government agencies, and should not be a re-enforcement of the medical, welfare or other forms of limited approaches to disability. 20 It is also important that the principle of ‘nothing about us without us’ should be considered when establishing and during the conduct of the affairs of the disability focal point. It should, therefore, be open to co-ordination and consultation with organisations of persons with disabilities, and it is advisable to have among their leaders and staff persons with disabilities who are socially and politically empowered. 21
The role of the disability focal point should not be service delivery, but to promote inclusive development in the field of the rights of persons with disabilities. 22 The proper functioning of the disability focal point requires the designated entity to have the necessary human resources, equipment and budget to perform its duties.23
The oversight role of the entity tasked with promoting and co-ordinating the implementation of the CRPD should not be confused with the monitoring function of the independent mechanisms (national human rights institutions) provided for in article 33(2). The difference between the focal points under article 33(1) and the independent mechanisms under article 33(2) seems to be that the independent mechanisms are entrusted with the promotion, protection and monitoring of the implementation of the focal points.24
They are focused on the way in which the state and its institutions are performing with regard to the rights of persons with disabilities.25
In this case, monitoring by the entities mentioned in article 33(1) is aimed at promoting - in a co-ordinated manner - public policies and inclusive programmes.26
National human rights institutions (NHRIs) may generally be described as permanent and independent bodies, established by states through law, for the specific purpose of promoting and protecting international human rights norms domestically.27 NHRIs may be (and may not be limited to) ombudsmen, rights commissions or ‘hybrid’ human rights ombudsmen.28 In Africa, a few ombudsman offices were established, starting in the mid-1960s and 1970s, and the popularity of NHRIs in Africa increased in the 1980s and 1990s.29 These institutions are mentioned in the respective constitutions, and detailed information is often found in the respective Acts of parliament.
international initiatives for the formation of NHRIs began shortly after the birth of the United Nations (UN), and their formation expanded significantly in the 1990s.30 In 1991, the Principles relating to the Status of National Institutions (Paris Principles) were adopted by an international conference of NHRIs, and were subsequently adopted by the UN General Assembly in 1993.31 Although these Principles are not binding rules, they are generally considered the international minimum standards for NHRIs.32 The Principles have been welcomed by various international and national organisations, and governments have been encouraged to follow them.33
NHRIs have often been described as ‘Paris Principle institutions’. These institutions play a role as a bridge between international human rights standards, on the one hand, and their implementation at the national level, on the other.34 Therefore, they are an answer to the question of the implementation gap - the inconsistency between formal treaty obligations and actual respect for human rights on the ground.35 Their formation has brought hope for a possible avenue to address human rights concerns domestically.36
Article 33(2) of the CRPD calls for the frameworks of one or more independent mechanisms, which are in line with the Paris Principles, to promote, protect and monitor the implementation of the CRPD. By ‘frameworks’, it is meant that the mechanisms, irrespective of their number or organisational structure, should form a coherent whole, and no standard model exists for such frameworks.37
The spirit of article 33(2) is that these mechanisms should be independent and pluralist.38 By being independent, it is meant that the mechanisms should be functionally independent, be personally independent and financially independent.39 Pluralism links NHRIs with civil society,40 such as the organisations of persons with disabilities or trade unions.
The inclusion in the CRPD of the obligation to align the independent mechanisms with the Paris Principles is a recent trend in human right treaties, and reflects the increased presence in recent years of NHRIs in human rights processes. 41
This obligation is a ‘call for change’ aimed at enhancing the implementation of the rights of persons with disabilities by having independent bodies to constantly remind states of their obligations under the CRPD.42
As most of the NHRIs have been in existence before the CRPD, the use of the Paris Principles should be construed in light of the specific mandate of the disability rights mechanisms, since article 33(2) of the CRPD deals with the mechanisms concerned solely with disability rights. Therefore, it follows that, while some matters with respect to the practice of the existing NHRIs may not change, such as the principle of independence, it may be necessary to determine the inclusion of persons with disabilities (often through the organisations of persons with disabilities) in such mechanisms.43
An important question with respect to existing NHRIs is whether the existing institutions or others should be conferred with the mandate stipulated under article 33(2) of the CRPD. Despite the fact that the Paris Principles state that the human rights mandate of an NHRI should be as broad as possible,44 they do not give a clear guidance as to the numbers of NHRIs within a state.45 An argument has been raised that the choice of single or multiple institutions will depend on which mechanism offers more effective protection of human rights. 46
It has also been suggested that other bodies, especially those already dealing with disability issues, might be designated as independent mechanisms, acting either alone or together with existing NHRIs.47
One argument against conferring the CRPD mandate on the existing NHRIs is that, while existing NHRIs are obliged to pay attention to disability rights, conferring to such an institution an additional mandate with respect to the CRPD presents the danger of these institutions paying more attention to disability rights (than other human rights), resulting in the ‘imbalance’ of the mandates of NHRIs, and that these institutions may not equally execute the mandate under article 33(2).48 On the other hand, the idea of separate institutions for separate groups has been criticised for, inter alia, portraying that ‘one particular vulnerable group is more entitled than others to have its “own” institution’.49
According to the general observations of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights (International Co-ordinating Committee), the trend, which is a strong national human rights protection system in a state by having one consolidated and comprehensive national human rights institution, is encouraged. Only under very exceptional circumstances should more than one national institution seek accreditation by the International Co-ordinating Committee. Furthermore, the Statute of the International Co-ordinating Committee provides:50
At general meetings only one NHRI per member state of the United Nations shall be eligible to be a voting member. Where more than one institution in a state qualifies for membership, the state shall have one speaking right, one voting right and, if elected, one International Co-ordinating Committee Bureau member. The choice of an institution to represent NHRIs of a particular state shall be for the relevant institutions to determine.
It follows, therefore, that the model of a single national human rights institution is widely accepted and, if effectively utilised, is likely to lead to greater effectiveness, provided that it is designed to guarantee that the unique interests of particular vulnerable groups, such as persons with disabilities, will not be neglected. 51
Because Tanzania already had in place a NHRI prior to the CRPD, whether or not to designate a new independent mechanism should depend on the possibilities of adjusting the role of the current NHRI in matters related to disability rights. That is, the current institutions may be maintained and given functions to promote, protect and monitor the implementation of the CRPD if only a human rights approach to disability is missing. It is also important to note that the reference to the Paris Principles in article 33(2) of the CRPD supports the view that the said designation should be made by a legal instrument,52 meaning that the designation of such independent mechanisms should be something more than an internal administrative arrangement within existing NHRIs.
The Declaration of the Rights of Disabled Persons (DRDP)53 provided for consultation with organisations of persons with disabilities, through their organisations, in all matters regarding the rights of persons with disabilities. However, the language used was such that the relevant provision did not address consultation strongly enough because, under article 12 of the Declaration, consultation was optional.54 The need to involve persons with disabilities was further emphasised in the Standard Rules55 which, inter alia, urged states to support and recognise the ongoing advisory role of organisations of persons with disabilities in decision making56 and in the development of a disability policy.57 The advisory role of organisations of persons with disabilities is not limited to having persons with disabilities as permanent representatives in government institutions, serving on public commissions or providing expert knowledge on projects.58 These organisations form part of a broader civil society to act as ‘pressure group’ and, thereby, propelling action by state actors.59
The CRPD does not reproduce all that is stated in the Standard Rules and, as already stated, does not limit states to apply broader measures which are of benefit to persons with disabilities. States have unlimited options regarding ways in which to consult persons with disabilities. Article 33(3) of the CRPD requires civil society, in particular persons with disabilities and their representative organisations, to be involved and fully participate in the monitoring of the implementation of the Convention. Article 33(3) of the CRPD should be read together with other provisions of the CRPD, in particular article 4(3), which requires states to consult persons with disabilities (through their representative organisations) in the development and implementation of legislation and policies, and in other decision-making processes concerning issues relating to persons with disabilities.
The language of the CRPD has the effect that organisations of persons with disabilities should be consulted. Civil society can offer constructive opinion to government when they are driven by a clear goal of ensuring the equality of persons with disabilities. These organisations may also embark on self-initiative means of monitoring by demanding to be informed of what is happening, especially with regard to the entity designated to promote and co-ordinate the implementation of the CRPD.60
They can be more active, for example by demanding to be informed and duly consulted during the preparation of reports submitted to the Committee on the Rights of Persons with Disabilities, to review of such reports to assess their accuracy and objectivity, or even to prepare shadow reports, if possible with the assistance and support of human rights NGOs.61 Generally, close co-operation between government and civil society will ensure that government policies on disability matters address the real problems of persons with disabilities.
Although the wording of article 33(3) is focused on the involvement of organisations of persons with disabilities, the article does not prohibit the involvement of more actors from civil society, a term generally used to refer to ‘a domain mediating between state and society’.62 These are non-state actors acting as ‘checks and balances’ mechanisms - ‘a counterweight to state power’,63 and, therefore, crucial to the development of not only the rights of persons with disabilities, but also human rights in general. The effectiveness of the role of organisations of persons with disabilities and civil society, generally, is largely dependent on how well they organise and advocate in interaction with disability rights processes. 64
In Tanzania, there are several mechanisms which have been established for dealing with matters related to human rights, generally, and matters of persons with disabilities. Because of the constitutional and political structure of Tanzania, each side of the union (namely, Tanzania Mainland and Zanzibar) has separate institutions, save for the national human rights institution - the Commission for Human Rights and Good Governance. An examination of the institutional mechanisms under this section is limited to mechanisms in Tanzania Mainland.
The administration of policy and laws relating to disability has occasionally changed ministries. Furthermore, while the there is one framework legislation dealing with disability issues, there are other pieces of legislation that provide for matters of persons with disabilities, a good example being the employment and labour legislation. On the other hand, matters of human rights generally fall under separate entities not primarily mandated to administer disability policy or legislation. Discussed in this section are the disability focal point(s) and co-ordination mechanisms; the Commission for Human Rights and Good Governance; and civil society and consultative mechanisms.
The Persons with Disabilities Act65 re-establishes the national advisory body known as the National Advisory Council for Persons with Disabilities (NACPWD),66 which replaces the former council established under the repealed Disabled Persons (Employment) Act.67
The NACPWD is comprised of the Chairperson appointed by the President,68 one member from the office of the Attorney-General,69 six members from different ministries,70 one member from the employers’ association,71 one representative from the apex organisation of persons with disabilities,72 one member from the Commission for Human Rights and Good Governance,73 and five other members to be appointed by the Minister (responsible for matters relating to persons with disabilities) from organisations of persons with disabilities. This composition is not very different from the composition of the former council, except for the nature of representation, and also the fact that under the former disability legislation, the Chairperson was to be appointed by the Minister.74
The NACPWD is the national advisory body through which the needs, problems, concerns, potential and abilities of persons with disabilities can be communicated to government and its agencies for action.75 The body is tasked with advising the government on a wide range of issues, such that one would be justified in concluding that the Council is tasked with advising almost ‘everything’ related to the rights and welfare of persons with disabilities.76
The Commissioner for Social Welfare is the Secretary to the NACPWD, who also exercises a number of functions under the disability legislation.77 However, the Office of the Prime Minister is primarily responsible for the implementation of disability legislation, while co-ordinating with other ministries in appropriate circumstances. In this way, the NACPWE is linked to the office of the prime minister.
Linking the NACPWD with the office of the prime minister is a significant step away from the purely medical/welfare-oriented approach to disability. Furthermore, the placement of disability and labour issues in the office of the prime minister should not be viewed as limiting disability issues only to labour matters. Matters of disability, youth and employment have been elevated to the office of the prime minister because of the special emphasis the government have accorded to these issues. Previously, labour and disability matters were classed under the ministries responsible for labour and health respectively. Significantly, membership of the Council makes it open to co-ordination and consultation with organisations of persons with disabilities. It is also important to emphasise the fact that the functions of the Council, provided for in the Persons with Disabilities Act, 78 appear to embrace the human rights approach to disability.
While the Council is set at the national level, the Persons with Disabilities Act also establishes ‘disability committees’ which are expected to work very closely with the NACPWD and other administrative authorities. The committees trickle down to the grassroots. They are established in three levels of government administration: Regional, Council and Village/Mtaa,79 whereas the Council committees appear to take the position of the former district committees.
The Commission for Human Rights and Good Governance (CHRGG) was established under the Constitution of the United Republic of Tanzania,80 following the constitutional amendments of 2000,81 and became operational in 2001 after the coming into force of the Commission for Human Rights and Good Governance Act.82 However, the history of the Commission dates back to the 1960s. The Interim Constitution of Tanzania, 1965, established the Permanent Commission of Inquiry83 and, in 1966, the National Assembly passed the Permanent Commission of Inquiry Act,84 which prescribed the procedures, powers and privileges of the Permanent Commission.
The Permanent Commission, believed to be the first ‘ombudsman’ on the continent,85 was designed to function as a mechanism by which citizens could be protected from the abuse of governmental power.86 The Permanent Commission was incorporated into the Permanent Constitution of 1977. After the incorporation of the Bill of Rights in 1984, the enforcement of these rights was hampered by several unconstitutional laws, and the government had been under pressure, inter alia, to create a human rights commission.87 Eventually, the constitutional amendments of 2000 brought about the CHRGG, which replaced the Permanent Commission of Inquiry.
The CHRGG is legally an autonomous department,88 and has various functions, under both the Constitution and the relevant legislation, which include receiving and resolving complaints and conducting inquiries in relation to violations of human rights,89 and instituting proceedings (where necessary) in court in order to prevent the violation of human rights or to restore the realisation of violated right(s).90 Other functions include research and the promotion of human rights,91 and advising government and other public institutions and the private sector on human rights and good governance.92
With respect to the rights of persons with disabilities, the CHRGG works closely with NGOs concerned with human rights and persons with disabilities.93 The CHRGG had also established a desk or department dealing with ‘special groups’, which include persons with disabilities.94 In addition, the CHRGG has one representative in the National Advisory Council for Persons with disabilities.95
The CHRGG has issued country human rights reports, but disability rights have not featured strongly, and the previous work of the Commission appears not to have had a significant impact with respect to the rights of persons with disabilities. The CHRGG’s approach towards disability could be a reflection of general past approaches to disability in Tanzania, and the history of the Commission itself, which has been focusing more on civil and political rights. Nevertheless, there are signs that the CHRGG has started to pay more attention to the area of disability rights. Disability features in the CHRGG’s action plan for years 2013 to 2017.
The right to freedom of association is enshrined in the Constitution of the United Republic of Tanzania,96 and a growing civil society, including organisations of persons with disabilities, are registered under various laws.97 The earliest registered organisations of persons with disabilities are impairment specific and operate nationwide. The Non-Governmental Organisations Act allows organisations to be registered and operate in different levels - district, regional and national.98 In recent years, some registered organisations have linked disability with other matters, such as gender, economic empowerment, legal aid and access to justice.99
Organisations of persons with disabilities can be a powerful force in promoting the rights of persons with disabilities. These organisations have a significant role in identifying the needs and promotion or provision of services to persons with disabilities, and they also act as representative bodies and a forum for persons with disabilities to voice opinions on their needs and to determine the destiny of their own development.100
The organisations are involved in researching and reporting on the human rights status of persons with disabilities; creating awareness in persons with disabilities and the public in general regarding disability rights; monitoring government’s adherence to different international commitments on the rights of persons with disabilities; providing services to persons with disabilities; and providing expertise on disability rights.101
The development of disability rights in Tanzania has progressed through the relationship between government and civil society, especially the organisations of persons with disabilities, which have been co-operating with the authorities to keep the services on course.102 Apart from having representation in the NACPWD, organisations of persons with disabilities are to be consulted by the minister in matters related to the development and implementation of the rights of persons with disabilities.103 Generally, Organisations of Persons with Disability have occasionally been invited to present their plans, and a mechanism has been formed to co-ordinate their activities, and further to ensure that they are involved in development programmes.104 According to official parliamentary records, organisations of persons with disabilities were consulted in the process that culminated in enacting the new disability legislation.105 According to this legislation, organisations of persons with disabilities have been given an advisory role to government in the promotion of the rights of persons with disabilities. For some time, some members of these organisations have been involved in active politics as members of parliament, and it should be noted that the current Deputy Permanent Secretary of the Ministry of Constitutional and Legal Affairs was the former Chairperson of the Federation of Organisations of Persons with Disabilities. The significant achievement of organisations of persons with disabilities’ campaign has been the recent action (by the government) of placing matters of persons with disabilities under the office of the prime minister.
Other organisations can also play a significant role in the promotion of the rights of persons with disabilities. For example, an analysis of the recent reports of one of the human rights organisations in the country reveals signs of the organisation’s greater engagement in disability rights issues.106
The domestic arrangements in Tanzania for purposes of implementing the CRPD (the provisions of which are implemented through the Persons with Disabilities Act) manifest the changing approach, moving away from the old approaches to disability. This complete change will take some time, and a number of issues need to be addressed in order to set realistic goals.
As a developing nation, Tanzania has competing interests in terms of budget, all touching fundamental aspects of life. This means that, over a period of time, the financial needs of the disability focal point should be properly addressed. During the process of the review of the former disability legislation, it was suggested that, in order to overcome this challenge, and perhaps as a way of drawing more attention to disability issues, disability co-ordination should be shifted to the high commanding office of government. In December 2015, a Deputy Minister of State in the prime minister’s office was appointed, with a specific mandate on disability issues.
With respect to monitoring mechanisms, one challenge calls for some attention. The absence of specific disability-related provisions in the law prescribing the mandate of the CHRGG has the result that the CHRGG interprets its general mandate only in a limited way to cover persons with disabilities.107 In the disability legislation, the CHRGG is mentioned only once, and this is with respect to the representative from the CHRGG in the disability council.108
Despite this legal challenge, the equality provisions under the Constitution of the United Republic of Tanzania of 1977 are applicable to persons with disabilities (despite the fact that disability is not specifically mentioned in the Bill of Rights), meaning that disability should also feature strongly in CHRGG activities; and that CHRGG reports should continuously and comprehensively cover disability issues.
The strength of consultative mechanisms largely depends on the strength of the disability movement. Organisations of persons with disabilities in developing nations have been reported as lacking various elements essential for making their voice heard.109 In Africa, these organisations have been perceived to be weak and experiencing financial, organisational and operational constraints,110 and their dependence on donor funding may also mean competing over funding.111 Financial problems were found to be among the reasons rendering many organisations of persons with disabilities in Tanzania ineffective,112 and a lack of transparency among some of these organisations may have enabled some individuals to use these for their own interests.113 Furthermore, most of the ‘well-known’ organisations of persons with disabilities in Tanzania are urban-centred, which means that they are not easily accessible by many persons with disabilities living in rural areas, where poverty is likely to aggravate the problems of persons with disabilities. In Tanzania Mainland, in order to minimise organisational and financial challenges, it was suggested that it may be appropriate for government to co-ordinate the activities of these organisations and to provide subsidies to them to improve and maintain their quality, but without interfering with the main objective of their establishment.114 However, the provision of subsidies to the organisations of persons with disabilities is made difficult because not only of limited financial resources,115 but also because of the fact that an increasing number of organisations have been dealing with disability issues, in addition to the ‘traditional’ organisations.116 Issues regarding resources for organisations of persons with disabilities have also been reported elsewhere in Africa.117
The CRPD is one of the few international instruments prescribing the institutional mechanism for the domestic implementation of the rights of persons with disabilities. The institutional mechanisms envisaged under the CRPD include NHRIs, the disability focal points and the participation of civil society. Tanzania has in place the human rights commission (CHRGG) and the disability focal point (NACPWD). All these were established prior to the signing of the CRPD. The disability movement and civil society, in general, appear to be making progress, inviting more expectations of increased co-operation between governments and civil societies in matters related to persons with disabilities. Despite some progress, some challenges still need to be addressed.
A number of options need to be explored for purposes of enhancing Tanzania’s institutional mechanisms. Some of these may involve the amendment of current laws to enhance the mandate and power of the NACPWD to follow examples from Ghana, Kenya, Uganda and Zambia, whose disability councils are body corporates.118 The general focus should always be on mainstreaming disability in all possible aspects of life, and achieving substantial equality to persons with disabilities in Tanzania. With respect to the mandate and structure of the CHRGG, some amendments to the existing law are likely to improve the efficiency of the CHRGG in matters relating to the rights of persons with disabilities. When an extra entity (Paris Principle-like institution) is desired, it is much more practical (in terms of resource and shared experience of marginalisation) to combine disability and other equality entities, in order to avoid the danger of having too many entities dealing with different marginalised groups. Of course, the fact that the accreditation criteria of NHRIs are restricted to only one institution per state could mean that the other (extra) institution may, in some ways, lack the full qualities of the ‘bridge aspect’ between international law and domestic implementation. Except for the accreditation limitations, the establishment of another Paris Principles-like institution to deal with marginalised groups would place more emphasis on the protection of the rights of these groups. Regarding consultative mechanisms, these should produce powerful results where there is a strong disability movement. Therefore, in order to give more power to their voice, organisations of persons with disabilities should also consider strengthening their corporation with other civil society or professional organisations.
1. G de Beco ‘Article 33(2) of the UN Convention on the Rights of Persons with Disabilities: Another role for the national human rights institutions’ (2011) 29 Netherlands Quarterly of Human Rights 87.
10. G de Beco & A Hoefmans ‘National structures for the implementation and monitoring of the UN Convention on the Rights of Persons with Disabilities’ in G de Beco (ed) Article 33 of the UN Convention on the Rights of Persons with Disabilities (2013) 21; OHCHR (n 9 above).
12. A Hoefmans & G de Beco Background Document prepared for the International Conference (2010) 18 http://www.socialsecurity.fgov.be/eu/docs/agenda/18-19_11_10_back ground_document.pdf (accessed 5 August 2013); De Beco (n 1 above) 85.
14. LFA Gatjens ‘Analysis of article 33 of the UN Convention: The critical importance of national implementation and monitoring’ (2011) 8 SUR - International Journal on Human Rights 87. It should be noted that art 3 of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment contained only ‘partial’ domestic mechanisms. See n 14 above, 72. It should also be noted that the focus of both international and national implementation mechanisms is a standard feature of environmental and other international agreements. See JE Lord & MA Stein ‘The domestic incorporation of human rights law and the United Nations Convention on the Rights of Persons with Disabilities’ (2008) 83 Washington Law Review 462.
27. JW Koo & FO Ramirez ‘National incorporation of global human rights: Worldwide expansion of national human rights institutions, 1966-2004’ (2009) 87 Social Forces 1324; A Pohjolainen The evolution of national human rights institutions: The role of the United Nations (2006) 6; LC Reif ‘Building democratic institutions: Protection: The role of national human rights institutions in good governance and human rights’ (2000) 13 Harvard Human Rights Journal 5-6; A Smith ‘The unique position of national human rights institutions: A mixed blessing?’ (2006) 28 Human Rights Quarterly 909; S Cardenas ‘Emerging global actors: The United Nations and national human rights institutions’ (2003) 9 Global Governance 23; T Pegram ‘Diffusion across political systems: The global spread of national human rights institutions’ (2010) 32 Human Rights Quarterly 739.
30. CR Kumar ‘National human rights institutions: Good governance perspectives on institutionalisation of human rights’ (2003) 19 American University International Law Review 266-268; Reif (n 27 above)7-8; Pohjolainen (n 27 above) 6; Cardenas (n 27 above) 23, 28 & 29; Pegram (n 27 above) 729, 730 732.
34. R Carver ‘A new answer to an old question: National human rights institutions and the domestication of international law’ (2010) 10 Human Rights Law Review 1. The expectation that NHRIs will act as links to the international human rights regime seems to be ‘a reprise of an idea conceived in the earliest years of the United Nations that national human rights committees should be established to monitor state compliance with the norms contained in the Universal Declaration of Human Rights’ (n 34 above).
36. Kumar (n 30 above) 275; Y Ghai ‘ Universalism and relativism: Human rights as a framework for negotiating interethnic claims ’ (2000) 21 Cardozo Law Review 1099 . CR Kumar ‘National human rights institutions: Good governance perspectives on institutionalisation of human rights’ (2003) 19 American University International Law Review 266-268;
47. De Beco (n 1 above) 94, 104 & 106. From De Beco’s conclusion, the idea of designating the national human rights institutions as the independence mechanisms to monitor the CRPD is not totally rejected: ‘NHRIs should not blindly be designated independent mechanisms. In the hypothesis that there is an NHRI in a state, the best option could be either to designate NHRI, to appoint other bodies, or to combine both.’
56. According to Rule 17(6) (n 5 above), ‘[t]he advisory role of organisations of persons with disability should be ongoing in order to develop and deepen the exchange of views and information between the state and the organisations’.
57. n 5 above, Rule 18(1). Furthermore, according to Rule 17(8), ‘[t]he role of local organisations of persons with disability should be developed and strengthened to ensure that they influence matters at the community level’.
79. n 65 above, secs 14(1) & (2). Note that under the current legislation, the committees are established in three levels of government administration (Regional, Council and Village/Mtaa), compared to the previous two (Regional and District). The Council committees appear to take the position of the former District Committees. These committees can be compared with the ‘lower councils’ in Uganda (provided under secs 18 to 24 of the Uganda’s National Council for Disability Act of 2003) and are expected to work very closely with the National Advisory Council for Persons with Disability and other administrative authorities. The committees have general functions with respect to the co-ordination and implementation of matters related to persons with disabilities. Experience from the previous disability legislation indicates that the committees were initially established in the then existing regions and districts, but they had not been operating due to various reasons, most notable being a scarcity of staff (social workers) and a lack of funds (LRCT, 2008 Report on the Review of Legal Framework on the Rights of Persons with Disability in Tanzania (unpublished) 17-18). The Law Reform Commission observed ‘that it would make no sense to enact a new piece of framework legislation to address the rights of persons with disability if the problems facing the implementation of current laws are not addressed’.
99. See, eg, Disability Organisation for Legal Assistants for Social Economic Development (DOLASED); Sauti ya Wanawake Wenye Ulemavu Tanzania (SWAUTA) (literally translated as ‘The voice of women with disabilities’); and Information Centre on Disability. The umbrella organisation is Shirikisho la Vyama vya Watu Wenye Ulemavu (SHIVYAWATA).
106. LHRC ZLSC, 2013 Tanzania Human Rights Report 2012 (unpublished); LHRC ZLSC, 2012 Tanzania Human Rights Report 2011 (unpublished)155-156; LHRC ZLSC, 2010 Tanzania Human Rights Report 2009 (unpublished) 89-92; LHRC ZLSC, 2009 Tanzania Human Rights Report 2008 (unpublished) 93-94; LHRC ZLSC, 2008 Tanzania Human Rights Report 2007 (unpublished) 67-69; LHRC ZLSC, 2007 Tanzania Human Rights Report 2006 (unpublished) 75-78.
110. Generally, civil society organisations in Africa face difficulties in effectively representing, promoting or protecting the interests of their supposed beneficiaries; J Makumbe ‘Is there a civil society in Africa?’ (2002) 74 International Affairs 316-317; DFID Uganda, 2009 Disability Scoping Study (unpublished); Disability Scoping Study for DFID Uganda: Final Report 26, http://www.ucl.ac.uk/lc-ccr/downloads/06052009_Disability_Scoping_Study_Uganda.pdf (accessed 17 January 2014).
116. There is no consolidated national register of all organisations of persons with disabilities, since they are being registered under different laws (see n 97 above), and also at different levels (district, region or national), a fact which makes it difficult to establish their exact number. It also appears that there are fewer active organisations than the actual number of organisations registered.
- Willene Holness
- Lecturer, School of Law, University of KwaZulu- Natal.
- BA LLB (Rhodes), LLM (UKZN)
- (2016) 4 ADRY 141-190
- Download article in PDF
This article was presented at the Conference on Disability Rights in Africa in November 2015 at the Centre for Human Rights, University of Pretoria. The author wishes to thank the Legal Resources Centre, Durban, for access to their files in the Springate matter and the Centre for Human Rights for funding attendance of the conference.
The lobbying and advocacy predating, and litigation in Springate v Minister of Basic Education Case no 4846/2009 (PMB HC) culminated in a victory for South African deaf learners, namely, to study sign language as a language subject for matriculation in schools. This article discusses the litigation in Springate, focusing on South African sign language as a school subject, and the silence of the Pan-South African Language Board in the litigation, curriculum development and monitoring, enforcement and advocacy by relevant institutions (the South African Human Rights Commission and the Commission on the Rights of Cultural, Religious and Linguistic Communities), the media and civil society. The rationale for legislative and policy choices distinguishing between sign language as a disability right or linguistic minority right is considered, as well as litigation and law reform for the recognition and use of sign language in education and the provision of sign language interpreters in select jurisdictions. It is concluded that the protection of sign language in domestic law and policy, though fragmented, should be read within the growing acceptance globally that sign language is both a right accruing due to disability accommodations, and due to the linguistic and cultural minority status of deaf users of sign language. The current offering of sign language as a language subject in mainstream or full service schools in South Africa is considered to be constrained by the ‘reasonable practicable’ standard, contrary to the notion of full inclusive education. The continual monitoring of the linguistic and cultural rights of sign language users will hopefully address the shortcomings in the education system, but this will need dedicated funding and political will.
That we are here launching New Zealand sign language into the New Zealand curriculum offers a greater hope of that ordinary life - not only for the deaf community, but for all disabled New Zealanders.And I’m proud to be part of a government that is working to ensure New Zealanders have the tools and support to realise their potential ... having these guidelines boosts the recognition of New Zealand sign language as a native language... But, critically, it removes sign language from the realms of special education. It firmly places New Zealand sign language within the mainstream, where hearing students will have the access to the language and culture of the deaf; where someday its use will become unremarkable - just another facet of ordinary life.1
I am very pleased that learners across the country will now have the opportunity to receive an education in their home language of choice - sign language. And I am proud of the role the Western Cape government, the WCED and our schools, particularly De La Bat, have played in making this dream a reality for our deaf learners. I am hopeful that, in future, we will be able [to provide this] option in hearing schools, particularly in our full-service schools where this is reasonably practicable. However, a lot more work lies ahead of us, and the rest of the country, before this can be implemented. 2
Despite the recognition by the South African Schools Act (SASA) that sign language has been utilised in the teaching and learning of deaf learners in public schools since 1996, there was no approved sign language curriculum for learners until 2014.3 Whilst in New Zealand, for example, sign language is a recognised official language and provided in mainstream schools to allow language acquisition and cultural acceptance of sign language and deaf culture, in South Africa sign language is not an official language and currently is taught only in special schools for the deaf. South African sign language (SASL) is a unique language and is not linguistically related to spoken languages in South Africa (English or isiZulu, for example). Rather, it is a distinct, ‘rule-governed, grammatical, systematic, and non-arbitrary communication system which is similar in nature to other natural sign languages’.4 The lack of recognition of SASL and curriculum development in practice has for generations denied learners educational and employment opportunities. This lack of recognition may also be traced to the preference for special schools rather than mainstream schools for children with hearing impairments, which means that SASL and its development has not been prioritised by the relevant state bodies. The move towards inclusive education has not been uncontroversial and, at times, has been jeopardised by exclusionary state policy and skewed funding priorities.5
In 2009, Kyle Springate, a matric pupil at a prestigious ‘mainstream’ school, Westville Boys High School, challenged the Department of Education in the High Court of Pietermaritzburg for being refused to be examined in sign language, a subject he had taken throughout high school. Kyle attended a mainstream high school, despite his hearing impairment, primarily because his communication skills were aided by his ability to lip read and the use of a hearing aid.6 Because Kyle’s hearing loss was progressive, he required to be proficient in sign language to mitigate his hearing loss in the future:
I simply feel that proper knowledge of SASL is a vital skill that will be of great use for the rest of my life. Over the last few years, I have experienced a reduction in my ability to hear. My mother has arranged for me to have the most powerful hearing aid on the market, but it cannot prevent the degeneration in hearing that I am experiencing. In due course, my ability to lip read will be diminished and I will need to use SASL as my way of communicating. 7
The threat of litigation brought by Kyle and two disabled persons’ organisations (DPOs), DeafSA and the KwaZulu-Natal Blind and Deaf Society (KZNBDS), against the Department of Education resulted in the curriculum development of South African sign language (SASL) after 14 years of advocacy by the deaf community. The constitutionally-mandated body responsible for language development, the Pan-South African Language Board (Language Board) was not a key party in the litigation, despite being cited as a respondent, nor was it an active participant in the preceding advocacy by DPOs and lobbying of government departments to have sign language recognised.
The article considers the advocacy and litigation in K Springate v Minister of Education & Others,8 which culminated in a victory for deaf learners to study sign language as a language subject for matriculation in schools. Section 2 provides a brief overview of the recognition of South African sign language and inclusive education in South Africa. Section 3 discusses the litigation in Springate, focusing on SASL as a school subject, the silence of the Language Board in the litigation, the curriculum development following the litigation, and the monitoring, enforcement and advocacy by relevant institutions, such as the South African Human Rights Commission (SAHRC) and the Commission on the Rights of Cultural, Religious and Linguistic Communities (CRL Commission), the media and civil society. Section 4 briefly outlines the rationale for legislative and policy choices distinguishing between sign language as a disability right or a linguistic minority right. Section 5 is an overview of selected jurisdictions: litigation and law reform for the recognition and use of sign language in education and the provision of sign language interpreters. Such examples provide scope for further advocacy and litigation to promote the recognition of sign language as an official language and its development and utilisation in the private and public spheres. It will also inform the choice for states’ legislative and policy frameworks between viewing the recognition of sign language as a disability right or a linguistic minority right. Such a deliberate choice is important, because
[e]ven in industralised countries, the majority of current deaf education programmes do not respect the linguistic human rights of deaf children. Indeed, most deaf education programmes fall in to the language deprivation category described in theoretical models of education of linguistic minorities. ‘Language deprivation’ for deaf people means ignoring the use of sign language as a basic communication means, as a language of instruction and as a school subject. Following this, the linguistic human rights of deaf children are grossly violated in educational programmes all over the world. 9
Grobbelaar-Du Plessis has bemoaned the lack of disability-specific legislation in South Africa, commenting that its absence means that the current fragmented legislation may promote some rights at the expense of others, and also affects the accessibility of the law, and the rights flowing therefrom.10 The legislature should, therefore, be cognisant of the implications of legislative choices regarding the recognition of SASL, for example, if SASL is to be recognised as a twelfth official language, just as the Department of Education should be aware of its policy implications when developing curricula to teach SASL in schools for the deaf and not in all schools. Section 6 is the conclusion.
During the apartheid era, disability rights issues were not prioritised by lawyers, policy and lawmakers, particularly as civil and political rights were most under threat. Because of the unequal education system, segregated according to race, persons with disabilities were marginalised, and by and large were functionally illiterate. 11 Dube explains that ‘[t]he lived experiences of black and white disabled people under apartheid were very different, and reflected the general inequalities between white and black people in South Africa’.12 Inclusive education has been the preference following the constitutional dispensation at a policy level but, in reality, particularly the hearing impaired are still segregated into special schools without the equal recognition of their language of communication and learning.
During the apartheid era, language planning and policy, not only the use of spoken languages, but also sign language, supported Afrikaner nationalist objectives and as a ‘pillar of ethnolinguistically separate education’, and has remained divisive since the dawn of democracy. 13 Deep-seated inequality of resources on the basis of race followed.14 Manual codes (a form of English) were used in schools for the black deaf, with oral and written manuals, whilst schools for the white deaf followed oral education methods, offering hearing aids and intensive speech and language therapy.15 ‘Oralism’ was the overarching approach in an attempt to ‘cure’ the deaf child, requiring children to lip-read and speak. 16 Towards the end of the apartheid era, the total communication approach was used, involving the simultaneous use of spoken language and signs, in a single education system for all students.17 Thereafter, a more bilingual-bicultural approach to deaf education was followed in line with the prevailing educational language policy.18
Within the disability sector, mobilisation by the disability community on rights issues were primarily coloured by the welfare or charity model,19 as well as the medicalised understanding of disability, with the result that the focus was on rehabilitation, namely, curing the defect, such as cochlear implants for deaf children. As in the rest of the world, DPOs were mainly constituted of able-bodied persons, managing the organisations for persons with disabilities.20 The agency of persons with disabilities was, thus, not evident in community organisations, nor in policy and law making.
During the 1980s to 1990s, DPOs moved towards a human rights approach, greatly influenced by the political environment, and organisations became more and more representative of persons with disabilities.21 As a result, the movements’ efforts at macro-level were in line with the social model of disability, based on the claim ‘that disability is caused wholly or substantially by social and environmental barriers that prevent disabled people from living independently and from participating in their communities’.22 This signals a socio-cultural perspective that advances a two-fold role of sign language for the deaf community: acting as the community’s vernacular language, and as an indicator of cultural group membership.23 Competence in a particular sign language is required for deaf cultural identity.24 In South Africa, research on the nature and characteristics of SASL points to the recognition of SASL as a ‘distinct language in its own right, not a derivational, pidgin or contact language. It is a rule-governed, grammatical, systematic and non-arbitrary communication system similar in nature to other natural sign languages’.25
Not only had the global paradigm shifted from the medical model (or clinical-pathological model) to the social-cultural model (or bilingual-bicultural approach to sign language), but the democratic transition in South Africa brought recognition of the status of children with disabilities as equal to their non-disabled peers. This is considered from the perspective of constitutional changes, international law imperatives and legislative and policy changes.
The rights to equality, language, culture and education comprise the matrix of sign language protection in the South African Constitution. In the democratic era, the anti-discrimination clause26 in the Constitution was the most significant gain made by the disability community and would prove to provide impetus for policy and legislation to address the unequal treatment of persons with disabilities, to the extent that persons with disabilities are a designated group for the purposes of employment equity and affirmative action.27 The clause prohibits unfair discrimination, inter alia on the basis of disability, culture and language.
The Promotion of Equality and Prohibition of Unfair Discrimination Act 4 of 2000 (Equality Act) was enacted to comply with the constitutional requirement for national legislation to prevent or prohibit unfair discrimination.28 The Equality Act lists unfair discrimination on the basis of disability as including the denial of or removal from any person who has a disability, any supporting or enabling facility necessary for their
functioning in society;29 and the failure to eliminate obstacles that unfairly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons.30 Failing to provide reasonable accommodation constitutes unfair discrimination. Examples of illustrative practices in education amounting to unfair discrimination were not left to the imagination of lawyers but listed in Schedule 1 of the Equality Act, including the unfair exclusion of learners, including learners with special needs, from educational institutions; and the failure to reasonably and practicably accommodate diversity in education.31 The Equality Act explicitly lists as a factor in determining the fairness of the discrimination the question as to whether the applicant has taken reasonable steps to accommodate diversity.32 The state is further enjoined to take positive steps to eliminate discrimination on the basis of disability through, for example, auditing laws, policies and practices with a view to eliminating all discriminatory aspects and to enact appropriate laws; to develop progressive policies and initiate codes of practice in order to eliminate unfair discrimination on the basis of disability; to adopt viable action plans to promote and achieve equality in respect of disability; and to give priority to the elimination of unfair discrimination and promotion of equality in respect of disability.33 The Equality Act is, therefore, a vehicle for obtaining reasonable accommodation and support measures and for removing barriers to equal opportunities for deaf learners for education in schools.
Whilst not recognised as an official language, sign languages are explicitly protected by the Constitution as it recognised the need for the establishment of a Language Board to, inter alia, promote and create conditions for the development of all official languages and sign language.34 With regard to the protection of linguistic rights, sections 30 and 31 are significant:35 the former referring to the rights of individuals to participate within their cultural and linguistic communities; the latter protecting the interests of the community.36
The right to basic education is an unqualified right.37 For educational purposes, section 29(2) guarantees that ‘[e]veryone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable’. The limitation for linguistic protection, however, is the standard of ‘reasonably practicable’. Reasonable alternatives, which include single-medium schools, should be considered by the state in implementing this right.38 Factors that should be considered include equity, practicability and the pressing need to redress the results of the racially discriminatory laws and practices of the past.39 Following a number of court decisions40 that have delineated the scope of this right, the Department of Education has described their obligation as follows:
In recognising the right of a learner to receive education in an official language or in a language of one’s choice, the state is duty-bound to ensure effective access to the right to be taught in the language of one’s choice. This duty is coupled with the obligation on the state to ensure that there are sufficient school places for every child living in a province, as well as with the duty to ensure that a public school admits learners without unfair discrimination against them in any way. 41
The right of language choice is, therefore, not absolute but tempered by considerations of equality - particularly equal access to education for all children.42 The best interests of the child is the standard against which all decisions regarding children are measured.43 Underpinning the right to education, as most rights, is non-discrimination and equal treatment, but also equality of access, resources and opportunities.44 The use of an inappropriate language of learning and teaching, such as reliance on a spoken language at the detriment of SASL, for example, violates the right to equal access to education.45
International law arguably perceives users of sign language as a linguistic and cultural minority, but more forcefully protects the rights to language, culture and education of children with hearing impairments as individual, not group rights,46 in a number of instruments. The Standard Rules on the Equalisation of Opportunities for Persons with Disabilities (Standard Rules) stress the need for states to consider the use of sign language in educating deaf children.47 Whilst acknowledging that the communication needs of the deaf may require the provision of schooling in ‘special classes and units in mainstream schools’, the Rules emphasise attention to be paid to ‘culturally sensitive instruction that will result in effective communication skills and maximum independence for people who are deaf or deaf/blind’.48
Users of sign language, arguably, comprise a minority as they are numerically inferior, possessing linguistic characteristics different from the rest of the population, and showing a sense of solidarity in preserving their culture and language.49 Article 27 of the International Covenant on Civil Political Rights (ICCPR) informs section 31 of the Constitution and protects the rights of linguistic minorities to enjoy their own culture or to use their own language.50 The Convention on the Rights of the Child (CRC), similarly, protects this minority cultural and linguistic right.51 This recognition would require positive steps to be taken by the state to develop
their linguistic identity.52 Some commentators have argued that linguistic genocide has occurred where spoken languages are preferred over sign languages, and where one sign language dominates, attaining official status, to the detriment (or ‘death’) of other sign languages practised in a given country.53 The genocide of sign language in this context also meets the understanding of linguistic genocide interpreted from the definition of ‘genocide’54 in the UN Convention on the Prevention and Punishment of the Crime of Genocide.55 Three treaties that have explicit provisions dealing with the education of children with disabilities, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the CRC and the CRPD are now discussed.
South Africa only recently ratified the ICESCR, in January 2015, 20 years after signature, but subject to a reservation that some commentators argue may be unconstitutional.56 The reservation provides:
The government of the Republic of South Africa will give progressive effect to the right to education, as provided for in article 13(2)(a) and article 14, within the framework of its national education policy and available resources.
Even though the right to education is unqualified in the Constitution,57 the government attempts to make this right subject to progressive realisation and available resources and, most disquieting, subjects this constitutional right to policy. The implications of resource allocation and much-needed political support for the provision of sign language education in all schools are distressing. The right to culture, however, is not subjected to a reservation.The ICESCR recognises the right of everyone to practise their culture.58 The UN Committee on Economic, Social and Cultural Rights (ESCR Committee) has commented that the right to take part in cultural life is
characterised as a freedom. In order for this right to be ensured, it requires from the state party both abstention (ie, non-interference with the exercise of cultural practices and with access to cultural goods and services) and positive action (ensuring preconditions for participation, facilitation and promotion of cultural life, and access to and preservation of cultural goods). 59
It appears as if this positive action may have been lacking on the part of the South African government. The cultural rights of particular groups are protected, including children, persons with disabilities and minorities. Particularly, the rights of persons with disabilities in cultural life will require the state to take positive measures to provide for them to have, inter alia, the recognition of their specific cultural and linguistic identity, including sign language and the culture of the deaf.60
The right to education is not the only entry point for holding the South African government to account; the right to cultural and linguistic identity, as described by the ESCR Committee, may also prove helpful.
The CRC does not explicitly recognise the use of sign language, but one of the aims of education is to develop respect for the cultural identity and language of children.61 The right to education is conceived as progressively realisable, and to be achieved on the basis of equal opportunity.62 For children with disabilities, their special needs may require assistance to ensure that the child has ‘effective access to and receives education’ in a way conducive to his or her ‘fullest possible’ social integration and individual development, including cultural development.63 Cultural development should include the protection and development of the deaf culture. This, in turn, would also link with the aim of developing respect for a child’s cultural identity (deaf) and language (sign language). The Committee on the Rights of the Child (CRC Committee) has commented that the main aim of article 23 is a child’s inclusion in society, which would extend to maximum inclusion in education. 64 Such quality education recognises that children with disabilities are not homogenous and that they have different needs, requiring teachers and professionals to assist a child as individual to ‘develop his or her ways and skills of communication, language, interaction, orientation and problem solving which best fit the potential of the particular child’.65 Such an individualised understanding of education may necessitate personal assistance, which should include ‘teachers trained in methodology and techniques, including appropriate languages, and other forms of communication, for teaching children with a diverse range of abilities, and who are capable of using child-centred and individualised teaching strategies, and appropriate and accessible teaching materials, equipment and assistive devices’.66 However, the rider on inclusive education is an acknowledgment that, in the short term, ‘[a] continuum of services and programme options must be maintained in circumstances where fully inclusive education is not feasible to achieve in the immediate future’.67 This rider68 is inconsistent with the Committee’s further explication of ‘inclusive education’ as not merely integration into mainstream classes.69
- inclusion in the definition of ‘language’;70
- linguistic access;71
- freedom of expression and opinion;72
- education;73 and
- participation in cultural life, recreation, leisure and sport. 74
The latter provision entitles persons with disabilities, on an equal basis with others, ‘to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture’.75 During the negotiations for the drafting of the CRPD, the South African contingent supported other lobbyists for the inclusion of sign language, particularly for full access to information in sign languages and education in sign language, as well as linguistic human rights for the deaf community.76 Article 9, on accessibility, obligates states to take appropriate measures, including the identification and elimination of obstacles and barriers to ensure equal access to facilities, including schools, medical facilities, information, communication and emergency services. Significantly, it also requires that appropriate measures should be taken ‘to provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public’.77
The vision of the CRPD for the education of learners with disabilities, set out in article 24, is inclusive education, within the general education system, in other words, that segregation into special schools is generally not supported. Three components are related to the rights of learners with hearing impairments: first, the guarantee of inclusive education, on an equal basis with others, which includes free primary education, within the general education system, in the communities where they live, with the necessary support measures or reasonable accommodation being made.78 This right to education pertains to inclusive education at all levels, including life-long learning.79 In other words, the value of education throughout the life span of the person is considered so that the person can develop their personality, talents, creativity, mental and physical abilities, and participate effectively.80 A lack of competence in a person’s vernacular would obliterate any meaningful development of these abilities, and would put the person at a distinct disadvantage compared to able-bodied persons competent in their spoken mother tongue.
Second, the learning of life and social skills that able-bodied peers may take for granted is guaranteed to allow full and equal participation in education and within the broader community, necessitating the state to take measures to facilitate ‘the learning of sign language and the promotion of the linguistic identity of the deaf community’.81 Education should be delivered in the most appropriate language or modes and means of communication for an individual child, and this should be in an environment which maximises his or her academic and social development.82 The CRPD anticipates the crucial role of teachers qualified in sign language, including those with disabilities.83 The deaf culture and linguistic identity are best learnt from positive role models with the same culture and identity. The state is, therefore, bound to take measures to allow children to learn sign language from teachers qualified to teach it.
Third, according to Murungi, in articles 24(2)(d) and (e) a ‘choice’ is evident between alternative locations: general education and special schools.84 The author’s analysis of this provision concludes that the CRPD views freedom of choice in education not as the usual choice between public or private schools, or schools that represent moral or religious convictions, as extended in other international instruments, but in the context of children with disabilities, as a choice between mainstream and special schools.85 Absolutely providing equal rights and, therefore, an equal and real choice to parents and children, would mean that states would have to properly equip special schools, with a serious cost implication that may not be sustainable.86 However, policy implementation, evidenced in the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa case, does not really provide an equal choice for learners with disabilities. Whilst this case dealt with education for children with severe and profound disabilities, it exposes the lack of political will to provide education for all children with disabilities on an equal basis with others.87 De Beco indicates that ‘environments that maximise academic and social development’ in article 24(2)(e) could be understood as referring to special schools. However, article 24(2)(e) requires support measures consistent with the goal of full inclusion, which more likely refers to a ‘mixed form of education as opposed to special education’. 88 This may be similar to the ‘full service schools’ provided for in White Paper 6.
conceives of individualised support to enable learners to receive effective education and to maximise their academic and social development.89 This individualised support to be rendered to learners means that the CRPD requires states to accommodate the difference within the general education system. A holistic reading of article 24 is more in line with the idea of full inclusion than the idea of offering a ‘choice’ to children between mainstream and special schools. Article 24(1), for example, supports inclusive education as ‘the principle’, with special education as ‘the exception’.90
A special status is accorded to children who are deaf, but who are exempted from the principle of mainstream schooling and may be educated in special schools. This option, however, may ‘not prevent them from requesting to participate in the general education system’.91 Generally speaking, there is a compromise in article 24, that children with disabilities should generally be educated in the regular education system. However, deaf children may be taught in ‘environments which maximise academic and social development’, in other words, where a special school will maximise such development. This does not mean that they cannot be taught in mainstream schools where it will maximise their development.
The African Charter on the Rights and Welfare of the Child (African Children’s Charter) does not explicitly refer to sign language, but recognises the special measures needed to meet the physical and moral needs of children with disabilities ‘under conditions which ensure their dignity, and promote self-reliance and active participation in the community’.92 Non-discrimination on the basis of a child’s disability is guaranteed.93 Assistance is to be provided to the child to have ‘effective’ access to training, preparation for employment, and so on, to allow social integration, individual development and cultural and moral development at the ‘fullest possible’ level.94 Whilst the education of children with disabilities is not clearly identified, it is implicit in the requirement that states take special measures for ‘disadvantaged children, to ensure equal access to education for all sections of community’.95
In the mid and late 1990s, a profusion of legislative drafting ensued, providing for equal rights, especially after the Integrated National Disability Strategy White Paper 96 was adopted in 1997, which considered the ‘blueprint’97 for inclusion and integration of disability in both policy and legislation. The policy recommended that the Department of Education, in consultation with the Department of Arts and Culture, DeafSA and other stakeholders, facilitate a process for the development of a comprehensive education policy to ‘promote and protect equal education opportunities for children with communication disabilities and to protect their language medium’.98
In the education setting, the legislative framework consists primarily of the South African Schools Act of 1996 (SASA) and the National Education Policy Act 27 of 1996 (Policy Act), whilst the policy framework includes the Language in Education Policy, the Norms and Standards regarding Languages and the White Paper 6 on Special Needs Education (White Paper 6). 99 SASA particularly refers to SASL in the provision relating to language policy in government schools and explicitly acknowledges that ‘a recognised sign language has the status of an official language for purposes of learning at a public school’.100 SASA supports the notion of inclusion as integration,101 insofar as it stipulates that education for learners with disabilities should be provided in ordinary public schools, with the necessary support provided to these learners in such mainstream schools.102 The concept of integration is synonymous with ‘location’, in other words, geographically separate schools (mainstream versus special schools) are eschewed in favour of all learners, including those with disabilities, placed in mainstream schools.103
The Policy Act guarantees the right to be instructed in the language of choice.104 A policy for language in education under the Policy Act105 has been developed: the short Language in Education Policy of 1997 within one year of the promulgation of the enabling legislation. The Policy Act includes in its aims three imperatives: supporting teaching and learning of SASL, as well as alternative and augmentative communication; countering the disadvantages arising from disparities between home language and languages of learning and teaching; and developing programmes to redress the historical injustices visited upon ‘previously disadvantaged languages’.106 However, the policy stipulates that languages of learning and teaching in public schools must be an official language. Fortunately, the recognition by SASA of SASL as an official language means that it is not excluded from languages of learning and teaching. The norms and standards regarding language policy, required by section 6(1) of SASA, explicitly recognises SASL as an official language for purposes of learning and teaching.107 Diversity is considered a ‘valuable asset’ and, accordingly, the language goals in school education are considered to include (i) the protection, promotion, fulfilment and extension of the individual’s language rights and means of communication in education; (ii) the facilitation of national and international communication through promotion of bi- or multilingualism through cost-efficient and effective mechanisms; and (iii) redressing the neglect of historically disadvantaged languages in school education.
The first goal embraces individual choice as a key component. The norms and standards set out the protection of an individual’s right to language in schools, and the concomitant rights and duties of the school and provincial education departments. A learner has a choice of language of learning when being admitted to a school, and may request the provincial department to provide instruction in a chosen language where it is not offered within the district.108 In reality, the choice is not as simple. A deaf learner rarely enrols in a mainstream school with the expectation of being taught in SASL. Rather, the choice is much simpler. A deaf learner either enrols in a special school for the deaf, where a sign language is used as language of teaching and learning, but not examined as a language subject and not standardised; or could enrol in a mainstream school where only official spoken languages would be the language of teaching and learning and recognised as language subjects. The third goal set out by the norms and standards emphasises redress for historically-disadvantaged languages, similar to the refrain in the policy, and may be interpreted to include SASL.
The obvious gap in the norms and standards is that the so called individual right of language choice is facially neutral, which disregards the particular need for the development and use of SASL as a language of teaching and learning. Therefore, the acquisition of SASL as a home language or mother tongue and as the language of learning and teaching was only offered in special schools for the deaf, without official recognition of SASL in the curricula of the Department of Education. Also, the need to redress the historical discrimination against SASL, in that spoken languages were preferred over sign languages, is not evident in the policies. The norms and standards inadequately deal with the development and use of SASL in schools. Simbo has called on the Minister of Education to regulate the use of languages in two ways: by ensuring that learners can communicate effectively with their teachers; and by the acquisition of basic learning needs. 109 Both these aims are vital for deaf learners. Simbo further suggests that this regulation of the use of languages should acknowledge the relationship between language and culture so that mother tongue usage may be promoted, including sign language, and, similarly, that the culture of the child be supported.110 As such, this would require the recognition of SASL as both a linguistic and cultural right of learners with hearing impairments.
White Paper 6 recommended that the Department of Education should ensure that all curriculum development, assessment and instructional development programmes address barriers to learning arising from language and the medium of learning and instruction. However, this goal is subject to the phased implementation plan of the White Paper, which made the conversion of special schools to full service schools conditional on the need and availability of resources.111 The view of the White Papers of inclusive education as progressively realisable is at odds with the Constitution and international law requirements.112
There is, therefore, a divergence between the policy position for basic education in South Africa, considered immediately realisable,113 whereas inclusive education is considered progressively realisable. Priorities in the promotion of languages in schools have followed this distinction, with the need to provide education in official languages as an immediate goal, whilst education in SASL and the development of the language were relegated to a progressive goal.
SASL is still not being used as a language of instruction in all schools. Even though sign language is the official means of instruction for educating deaf learners, very few learners and teachers are using it. 114 Not utilising SASL as a medium of instruction or school language subject has also had repercussions for the qualifications of teachers at schools for the deaf. Until 1997, for example, there had been no formal training of sign language interpreters and the sign language skills of children of deaf adults were relied on for interpretation.115 As explained earlier, manual coding of sign language was initially used by teachers at schools for the deaf. However, the preference has changed towards a bilingual, bicultural approach, where both sign language and one spoken language are utilised to allow children to function in both the deaf and the hearing world.116
Storbeck et al highlight two important challenges facing the acquisition of SASL and the training of teachers. First, teachers enter the educational setting without the ability to sign and learn on the job as a result. Second, short-term training is not a substitute for exposure to the academic level of SASL required to deliver curriculum to deaf learners. The curriculum is, therefore, delivered based on a basic social competency in SASL.117 Merely having SASL recognised as a language subject in schools for the deaf is not enough. The advantages of having SASL recognised in schools are that teachers are properly qualified in SASL and that appropriate support services are provided in mainstream schools where inclusive education is provided. The latter will require research into what exactly inclusion should entail for deaf learners in the South African context, together with the necessary support services to achieve this.118 The World Federation for the Deaf provides some insight into the way in which this should be accomplished, recommending that deaf learners in mainstream schools have access to the services of educated, trained and qualified sign language interpreters, other needed support services, deaf peers and role models, and full participation in both the educative and co-curricular processes.119
In reality, deaf learners have three options of study after completing Grade 9 (the General Education and Training phase). Glaser and van Pletzen explain these choices, namely, to leave formal education; to complete Grades 10 to 12 at mainstream schools in order to obtain a National Senior Certificate, possibly allowing entrance into tertiary education; or study at a further education and training (FET) college towards a National Certificate Vocational.120 Unfortunately, while deaf users of SASL theoretically have the same options, very few schools for deaf students offer Grades 10 to 12. Thus, in practice, deaf students have the choice of studying for Grades 10 to 12 at hearing schools, changing to FET colleges, or attending special programmes for deaf people, where these exist. Kyle unwittingly chose to be schooled in mainstream schools, where SASL was not recognised.
The issue of sign language as used by Deaf and hard-of-hearing students is a human right and not one to be considered within welfare or health. The issue correctly belongs within the realm of human rights, language, and communication. It is the human right of Deaf and hard-of-hearing students to use the language to which they have the most access. Deaf people cannot hear but see sign language ... It is a violation of their human rights not to be allowed to have access to information through their most accessible language. Deafness becomes a communication disorder when sign language is not recognised.121
Not recognising SASL as a linguistic and cultural right per se has meant that other rights are denied, for example, the rights to a fair trial, political representation, access to information, freedom of expression and maintenance of cultural heritage.122 The non-recognition of SASL is thus perceived as a rights issue, not a medicalised issue. The litigation in Springate, as cases from other jurisdictions, brought to the fore the divide between the medical and social (or human rights) models of disability. Magongwa stressed that the nonsensical situation where students are taught in SASL at schools for the deaf, but may not officially study SASL as a language subject in schools, profoundly affected deaf persons on an educational, psychological and emotional level.123
DPOs, such as DeafSA, certainly followed the rights approach in lobbying for the recognition of SASL, and this agency has been a catalyst for litigation as a strategy, not merely lobbying and protesting, based on the reframing of disability as an identity:
When the identity associated with the notion of disability is prescribed in this way, the expansion of rights (as opposed to charity or health or welfare policy) becomes the most appropriate way of combating disability discrimination and, by extension, litigation becomes one of the most appropriate forms of enforcement.124
The reframing of disability based on the social model may be one of the reasons why DeafSA became a litigant in the Springate matter. Strategy choices are informed by the models of education preferred by particular interest groups. Snodden explains how the refuted separate underlying proficiency (SUP) model is still being utilised in deaf education. 125 This model translated into ‘forbidding the use of ... native signed languages of the Deaf community in the education system, owing to conceptions that learning of a signed language will interfere with the development of spoken and written language skills’.126 Since deaf children lack access to the same auditory base for the acquisition of spoken language as hearing children, depriving them of signed language can result in delayed or incomplete first language acquisition.127 This lends further credence to the argument that forbidding the use of sign language, or the insufficient protection and development thereof, may constitute linguistic genocide, as discussed earlier.
The bilingual bicultural education model preferred today focuses on the native signed language of a particular country, as well as the language of the majority in the country,128 for example Australian sign language (Auslan) and English, respectively. The implementation of these programmes has not been without challenges, including a lack of support for the signed language in the school and systems of teacher education. The inadequate support of bilingual education worldwide129 has an adverse effect on the numbers of deaf graduates from tertiary institutions, teachers and professionals, who can both provide and advocate for bilingual bicultural models of education.130 This also applies to South Africa. It is within this policy, legislative, constitutional and international law context that the Springate matter arose.
For Kyle, exemption from another language course, with SASL substituted as a language course, would have comprised the seven subjects required for entrance to university, where he had hoped to study towards Fine Arts. However, it transpired that the lack of recognition of SASL meant that he would either have to take up a brand new subject in his final school year or matriculate merely with an endorsed certificate as a learner with a barrier to learning (deafness).131 The latter option would spell the end to his dream of tertiary education. Without prejudicing his rights, Kyle decided to take up Dramatic Arts as the alternative subject, for which he had to complete a three-year portfolio, undergoing extra tuition, to enable him to sit for the examination in this subject. This proved to be an additional burden on Kyle. Supported by his mother, Paige McClennan-Smith, in Part A of the application, Kyle sought a declaration that the failure by the national and provincial departments to allow him to be examined in sign language as a subject for his senior certificate was unconstitutional and unlawful. Kyle sought an order directing the Department to allow him to sit for the examination in sign language.132
In his application, Kyle submitted that the rights of deaf and hearing-impaired learners were infringed by the education policies existing at the time.133 While sign language was a medium of instruction at some schools for the deaf, it was not recognised as a language subject for the purposes of matriculation - the National Senior Certificate. In Part B to the application, Kyle sought an order more in line with public interest and that of deaf, hard-of-hearing and hearing-impaired students to have SASL, or another form of sign language, recognised as an official language for purposes of learning at public schools, and for steps to be taken to implement sign language as a language subject (similar to Afrikaans, IsiZulu, and so on), either as home language, first or second additional language in high schools.134
Kyle based his legal argument135 in part on the basis of unfair discrimination, relying on provisions of the Equality Act136 prohibiting unfair discrimination on the basis of disability or language. He submitted that the Department’s actions in not recognising SASL as a language of learning constituted unfair discrimination as benefits, opportunities or advantages137 were withheld from him on the basis of his disability and language.138
The Department opposed his application on the basis that sign language was not an accredited language subject in the further education and training (FET) phase, but only in the general education and training (GET) phase. The Language Board was also cited as a respondent, being responsible for the promotion and creation of conditions for the development and use of sign language.139
The Springate court application was supported by DeafSA and the KwaZulu-Natal Blind and Deaf Society (KNBDS) who brought the application in the public interest.140 DeafSA, founded in 1929, represents the rights of more than 1,6 million deaf persons in South Africa. The KNBDS, established in 1936, provides rehabilitative services, such as counselling, audiometric assessments, braille literacy and sign language training in the province of KwaZulu-Natal. The KNBDS remarked that its own meetings with the Department to have sign language recognised in schools had not been fruitful and, accordingly, it supported Kyle in his court application.141 More vociferous was the struggle of approximately 13 years, through advocacy and lobbying, by DeafSA to have sign language recognised in South African schools as a language and school subject, also without success.142 In 2003, DeafSA, together with Disabled People South Africa (DPSA), marched and handed over a memorandum to the national and provincial Departments of Education. The memorandum demanded
That South African Sign Language (SASL) be recognised and implemented as an official language subject in the education of Deaf learners in general education and training (GET) and further education and training (FET);
That SASL teaching and learning materials be developed.143
In the meantime, the KZNBDS (together with other institutions) also advocated for the recognition of SASL. In 2005, a memorandum was handed to the Minister and the MEC for Basic Education, requesting clarity regarding the development of sign language resources, and identifying the need for SASL to be recognised as first language and examinable language subject in schools.144 The response from the MEC was that it was for the PanSALB, and not the Department, to first develop the language, and that it could not develop resources until the Language Board had achieved this. The Language Board, in turn, blamed the Department:
PanSALB regards this as a function of the Department of Education and as such [PanSALB is not responsible for curriculum development and the development of SASL in schools] ... recommends that you direct your request to the Department of Education: Directorate of Inclusive Education. PanSALB does from time to time advise the Department of Education on curriculum issues, but that is how far it can go.145
In 2006, the provincial Department of Education, at a meeting with KZNBDS, facilitated by the Language Board, undertook to ensure that SASL be introduced at schools for the deaf, but this undertaking did not materialise.146 In its Education Position Paper in 2006, DeafSA remarked:
The urgency of the situation is that Deaf learners have little access to the regular curriculum for most of the time they spend in school. This is because the majority of educators in schools are not proficient in SASL. A recent survey highlighted that only 14% of educators in schools for the Deaf can sign proficiently. The negative impact on these learners in terms of any access to education is alarming.147
In 2007, DeafSA handed a memorandum to parliament to recognise SASL as a twelfth official language.148 It stressed the fact that the use of SASL by a deaf member of parliament to communicate required a standardised and recognised language. Unfortunately, this did not spur the government into action. Instead, the eventual recognition of SASL as a language subject in schools depended on the success of litigation. In court papers, DeafSA asserted the injustice and unfair discrimination because of the fact that the only language that can be the first language for deaf learners is not offered as a school subject in the FET phase, with the result that deaf adults are not integrated into mainstream society, due to disempowering educational experiences.149 A number of schools for the deaf provided confirmatory affidavits, supporting the litigation by the two DPOs, affirming the challenges faced by both learners and teachers due to the non-recognition and standardisation of SASL.150
It was asserted by the DPOs that both the Department of Education and the Language Board did not meet their legislative and constitutional mandates to vindicate the language rights of deaf learners. The Department of Education instead asserted that the parties, particularly the DPOs, did not comment on its curriculum development process for the NSC in 2005, nor did the SAHRC or DeafSA indicate that SASL should have been included as a subject. 151 The Department further denied that SASL was necessarily a recognised sign language referred to in the Schools Act, and that it was not an official language as the Constitution did not render it such, but merely required the Language Board to promote and create conditions for the development and use thereof.152 The Department threw down the gauntlet, stating that ‘[i]n the absence of a single version of SASL, a standardised SASL and an approved curriculum for SASL’, it would be unable to recognise SASL as a subject.153 The Department suggested that one of the options available was that a Ministerial Committee be appointed to start the process of curriculum development for SASL, with the help of the Language Board.154 All applicable policies would have to be followed,155 and this process could take years.
Since the Department put Kyle in the untenable situation of having to learn and pass a new subject in his final year of school, failing which he would not obtain university entrance, he launched the litigation in June 2009. In August 2009, a settlement was reached between the parties and Kyle withdrew his challenge. Accordingly, Kyle was exempted from the requirement of a seventh subject for his senior certificate and he would, therefore, qualify for an exemption to allow him to study towards a Bachelor’s degree at university. As a result, Kyle’s bid to have five years of study of sign language recognised was averted. The second part of his application, namely, to have sign language recognised as a language subject in schools, was postponed indefinitely. This was ostensibly used as a sword of Damocles to ensure that the Department remedy the failure to provide sign language as a language subject in schools, failing which the application would be reinstated.
The Language Board156 was not a key player in the litigation, despite being cited as a respondent, nor was it an active participant in the preceding advocacy by DPOs and the lobbying of government departments to have sign language recognised, despite establishing a unit for SASL in 2003.157 Instead of assisting the court, the Board asserted that its independence could be compromised should it enter the legal fray.158 Its constitutional mandate included co-operation and consultation principles: to strive to promote close co-operation with any organ of state, person, body of persons or institution involved in the development and promotion of language, and to consult and work closely with any person with special knowledge or experience in South Africa’s language problems, or who is in any way involved in the development and promotion of language.159 Neither of these principles were heeded. The Department of Education denied being responsible for the development of sign language, submitting instead that this was the mandate of the Language Board.160 The Language Board chose to comment after the settlement:
While we appreciate the settlement, as PanSALB we find it regrettable that it took a court case of this nature to sensitise the Department about the need to honour the Constitution and cater for the linguistic needs of the deaf community.161
Opposition parties also entered the fray on the political front. Helen Zille of the Democratic Alliance,162 using the opportunity to comment on the litigation, harshly reprimanded the Language Board for its tardiness in developing SASL.
Kyle and the DPOs were represented by the Legal Resources Centre (LRC). This litigation appears to have been reactive in that, whilst DeafSA had lobbied and advocated for the recognition of SASL, litigation was not part of its planned strategy to secure this objective. Kyle’s conundrum, therefore, provided fertile ground to challenge the lack of SASL as a language subject. The litigation, however, was constrained by the urgency of Kyle’s own circumstances: He needed clarity regarding his own situation in order to write his final examinations. Strategically, the public interest would have to wait for another day.
The consequence of the litigation, although a ‘loss’ for Kyle and the deaf community, was that the Department of Education was sufficiently pressured into developing a curriculum for sign language as a school subject,163 which it started after the failed litigation.164 The Minister appointed the Curriculum Management Team (CMT), a ministerial committee, to oversee the development and implementation of SASL as a language to be taught in schools. A writing team was subsequently appointed to develop a curriculum assessment policy statement for SASL. Both the CMT and writing team included a representative of DeafSA.165 A decision was made that SASL would be developed as a home language to essentially support a parallel process for SASL to eventually attain official status in South Africa.166
Further impetus was provided by a presidential proclamation that sign language be developed and standardised to be one of the 11 official languages of government.167 Following submissions by DPOs at a community meeting in 2012 that deaf learners still were not being taught in SASL, the President remarked:
From today we can argue it better - whether in Parliament or Cabinet - to say that this must happen. Children with disabilities go to school and are taught by teachers who do not understand the language - you can imagine the difficulty.168
As of 20 August 2014, deaf and hearing-impaired learners are allowed to choose sign language as a language subject for matriculation in schools.169 However, the subject is available only at schools for the deaf, and not yet at ‘mainstream’ schools.170 The DPOs have obtained victory, through continued advocacy and lobbying, and its intervention as a party to what, on the face of it, appeared to be ‘failed’ litigation.
The monitoring of implementation of international law, constitutional, legislative and policy imperatives is vital to ensure that the promise that sign language is recognised is met. The protection of minorities in education demands adequate monitoring by relevant institutions.171
Key role players in the monitoring of outcomes of litigation, such as in Springate, and who are responsible for advocacy on the rights of sign language users include the Language Board (discussed above), and two institutions supporting democracy, the SAHRC and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Commission), the media,172 and civil society, such as DPOs. The gains made as a result of the Springate intervention have not been on the radar of the SAHRC. The DPOs involved have continued to advocate for the rights of the deaf, but have not marketed the positive aspects of the intervention, namely, that SASL is now a matric subject, through the legal intervention and continued advocacy by the deaf community. Perhaps the reason is because there was no judgment to rely on or precedent created.
The complementary oversight role of the SAHRC and CRL Commission means that, together with parliament, these institutions are watchdogs over government and they support parliament through information and reports, independent of the executive.173 The effective utilisation by parliament of reports and recommendations of these institutions ‘can greatly strengthen the culture of accountability and transparency’.174 The Constitution, while acknowledging the need for independent institutions to act as a check on the branches of government to advance democracy and protect human rights, does not explicitly refer to the a disability-specific mandate of any of the Chapter 9 institutions.175 The SAHRC has a specific mandate to promote and protect the rights of persons with disabilities.176 In line with its obligations as the national human rights institution (NHRI) under article 33 of the CRPD, the SAHRC is mandated, under the Constitution and its enabling legislation, to establish a framework to promote, protect and monitor the implementation of the CRPD. McClain-Nhlapo et al177 noted that, despite sociological and anecdotal evidence of violations of the human rights of persons with disabilities, a dearth of complaints had been reported to the SAHRC, leaving the institution hamstrung to develop ‘legislative prescriptions regarding disability rights’. The few complaints investigated to date include that of the non-admission of a learner with physical disabilities to a private school in an Equality Court case,178 inaccessible airlines; the lack of reasonable accommodation in prisons; and the lack of rehabilitation for a child with a physical disability.179 The SAHRC has conducted site visits to some special schools with no reports or further investigations emanating from these visits.180 The SAHRC has reported on disability issues on two occasions, neither of which touched on the issue of sign language and/or education.181 The Commission has to date received no complaints about the usage of sign language, whether in schools or in the public sphere.
Holness and Rule have commented that media sensitisation and advocacy following litigation ‘provide[s] spaces for the public, government and persons with disabilities to continue to advance the equality of persons with disabilities on equal basis with others’.182 Such initiatives should follow court interventions, such as Springate, to ensure that the public and government are made aware of not only legal victories, but also of the rights, values and principles at stake.
Aarons and Reynolds have argued that recognition of the deaf community, in particular sign language users, as a linguistic and cultural community would bring them under the protective rubric of the CRL Commission.183 This Commission,184 mandated with promoting respect for the rights of cultural, religious and linguistic communities,185 has to date not dealt with complaints regarding discrimination against sign language users. There have been calls for the rationalisation of the various Chapter 9 institutions with overlapping mandates, and the continued role of the CRL Commission, particularly, has been questioned.186
The advocacy of DPOs, such as DeafSA, continues. In the Western Cape, through a pilot project, sign language has been introduced as a subject from Grade R to Grade 3, as well as from Grade 9,187 at schools for the deaf. However, DeafSA has intimated that they have not been involved in the process, and that, therefore, there are concerns as to the roll-out of the new curriculum. Other members of the deaf community have cautioned that the Department is not ready for the roll-out because, while the curriculum has been developed, there is still a lack of specialists in SASL, and a lack of qualified deaf teachers and first language SASL users.188
The role of the Language Board in developing sign language has been woefully inadequate. Financial difficulties may play a role here.189 However, as in the case of the CRL Commission, it is possible that violations relating to particular cultural and language groups are prioritised over others due to the nature of complaints received (mostly from cultural and language groups with ‘official’ language or ethnic status) or the dearth of complaints received from deaf or sign language users. This may also be because of the evident lack of co-operation between institutions and overlapping mandates.
The following question is whether SASL should be recognised as the twelfth official language. DeafSA has since 2007 advocated for this inclusion.190 It has been argued that articles 9 and 21 of the CRPD obligate states to give equal access to communication and information to deaf and hard-of-hearing persons through the recognition of sign language and the availability of appropriate technology, which effectively means recognition as an official language.191 However, there has been no further development from parliament in this regard.
Unfortunately, the incident during the memorial for the late President Mandela, when a person with a psycho-social illness made up signs while interpreting, brought to the fore challenges with regard to the accreditation and standardisation of SASL.192 In time, these fears will be laid to rest as SASL is taught, throughout schools and tertiary institutions, as the language of the deaf and hearing-impaired and its usage is promoted by society at large. The continued monitoring of the linguistic and cultural rights of sign language users will hopefully address the shortcomings in the education system, but this will necessitate dedicated funding and political will. The level of protection of sign language in education may depend on the framing of the right in question as a disability or linguistic minority right, which is discussed next.
By and large, jurisdictions rely on sign language as a linguistic minority right (a human right) or as a disability right as the basis for the extent to which sign language is recognised in legislation and policy.193 Snoddon has commented that countries that adopt disability rights legislation (such as the United States of America and Canada) view sign language as an accommodation provided for deaf persons to access public services on an equitable basis. However, such legislation serves the needs of ‘autonomous Deaf adults’ who already know and use these sign languages, but does not address the needs of ‘pre-tertiary Deaf students right to learn or receive an education in signed language’.194 In other words, couching the right to receive education in sign language as a civil-political right accruing to persons due to their disabilities, as opposed to a linguistic minority issue (a socio-cultural right), determines what entitlements are attainable. For example, in the USA, the classification of students as disabled has prevented them from benefiting from the Bilingual Education Act of 1968, legislation supporting the rights of language minority students.195
Ball argues that the classification of the users of sign language as disabled offers better protection for the linguistic rights of sign language users than as a linguistic minority. 196 The author argues that this is possible through the employment of the framework of the CRPD to obtain recognition, since the CRPD identifies deafness as a ‘distinct culture and identity, expressed throughout the world in numerous sign languages’.197
The next question is whether the CRPD represents the best framework for ensuring the rights of the deaf to practise their culture and use their language. Batterbury argues that despite its ‘disability provenance’, the CRPD may be more effective for language justice and promulgation of sign language policies from a minority language perspective than the limited efficacy of minority language imperatives.198 The author explains that the initiative for greater linguistic access during the negotiations around the CRPD was from a disability perspective,199 not from a linguistic perspective as required by other international instruments.
Reading together the obligations under the CRPD that states are to facilitate the learning of sign language and the promotion of the linguistic identity of the deaf community; and to ensure that the education of children, in particular those who are deaf or deafblind, is delivered in the most appropriate languages and modes and means of communication for the individual in environments maximising academic and social development,200 gives credence to both the linguistic and cultural rights and disability right status of sign language. The former focuses on the linguistic aspect, while the latter focuses on the disability (or impairment) aspect of deaf learners facing barriers to equal education where inappropriate languages are used in schools or school environments which are not conducive to their maximum development.
Murray reviewed research on the outcomes of existing legislation (and legislative efforts) and laments that subsequent outcomes have not fully realised the linguistic goals of the deaf community, noting that ‘current legislation has not brought about legally codified sign language rights for deaf children’.201 Whilst 31 countries, mainly in Europe, have afforded explicit legal status to sign language, poorer countries, including Benin, Bolivia, Cape Verde, Haiti, Suriname, Laos, Myanmar, Eritrea, Seychelles and Swaziland, have not recognised sign language, have no sign language dictionary, and appear not to accord equal rights to deaf citizens compared to their hearing counterparts.202 Various law and policy reform measures have recognised the rights of sign language users, namely, either by the recognition of the linguistic status of sign language and its users, or the right to use sign language in particular contexts, educational, legal or medical.
A number of constitutions have explicitly recognised the status of a particular country’s dominant sign language(s).203 The inclusion by South Africa of SASL under the mandate of the Language Board in the Constitution, grouping it with other minority languages, squarely identifies sign language users as a minority group. However, this protection has not translated into dedicated measures to advance the development of this language and to protect the linguistic and cultural interests of this segment of society.
A four-pronged education planning in deaf education rather than the ineffective use of disability legislation for language planning and upholding language rights in education has been recommended.204 First, attitude planning breaks down ethnocentric assumptions about the superiority of spoken languages over signed languages of the deaf, and rather refocuses the aims of education as a right and educational resource.205 Second, status planning requires legal and policy recognition of signed languages in education. Third, corpus planning requires developing signed language dictionaries, curricula, technology, and so forth. Fourth, acquisition planning focuses on the support for teachers of sign language, including formal organisations and training programmes for language instructors, particularly to study bilingual bicultural pedagogy.206
How has the South African education system fared in this regard? The attitude planning has not yielded results and will need further efforts from the relevant institutions responsible for monitoring the rights of sign language users. The Department of Education has obviously had to revise its attitude towards the status of sign language in schools, but regarded the provision of sign language to learners as a progressive step, starting with special schools and ‘eventually’ offering the subject in mainstream schools. This is not consistent with the vision of inclusive education offered in the CRPD. Status planning has its roots in the SASA and Policy Act, but needs to be prioritised at policy level. Corpus planning has commenced, with SASL as a language subject in special schools, but needs further expansion into mainstream schools for truly inclusive education to be realised. The assistance to and training of sign language teachers has a long way to go in realising the right to education and linguistic and cultural rights of the deaf community. A lack of training and support for teachers and insufficient post-provisioning has plagued the entire education system, not only special schools for the deaf.207 Education planning should complement and further entrench the protection already provided in the Constitution and legislation and obligations under international law to deaf learners as being entitled to equal rights in education, with reasonable accommodation or support measures where necessary, and as a linguistic minority.
5 Litigation and law reform for the recognition and use of sign language and sign language interpreters in other jurisdictions
Some lessons may be learnt from litigation in other jurisdictions. The availability of sign language interpreters to ensure equal participation in life, including in accessing education, has been the subject of litigation. 208 Predominantly, however, litigation in health care settings has mushroomed and ensured that the deaf receive sign language interpretation and auxiliary services in accessing health care, including information about health care.209 This section outlines cases and law reform in select countries, namely, Australia, Canada, Columbia, Kenya, New Zealand, the United States of America (USA) and the United Kingdom (UK).
Komesaroff has written extensively about discrimination claims brought by parents of child users of Auslan to vindicate their right to use sign language in schools.210 She reviewed 11 discrimination cases before the Human Rights and Equal Opportunities Commission that were conciliated in Australia, and explains that such settlements mean that there is no admission of liability, the setting of legal precedent is avoided, and the requirement of confidentiality is more often than not imposed. 211 The net effect is to provide solutions for particular individual claimants, but systemic discrimination is not addressed.
In Clarke v Catholic Education Office & Another, 212 the Federal Court upheld the decision of the court a quo, finding that the school had discriminated against a prospective profoundly deaf student on the ground of his disability, by failing to provide Auslan interpreting assistance to support the student in the classroom, and awarded substantial compensation. The expert witness in that case, Komesaroff, stressed the inappropriateness of placing a child user of Auslan
in an educational environment that provides no access to that language. Furthermore, it is highly unreasonable to expect a deaf student to use note taking as his primary method of communication, and it is a monumental failure of the school system not to provide adequate access for a student who is culturally and linguistically deaf.213
The provision of sign language to the Clarke child, and to Tiahna Hurst in the next case under discussion, occurred in mainstream schools, and was more akin to the reasonable accommodation measures understood before the CRPD finally entrenched support measures to ensure inclusive education on the international law front. Both cases are, therefore, not concerned with recognising sign language as a language subject, but rather with the provision of interpreters in sign language to facilitate children’s learning. In this way, it is perceived as a disability right, and not a linguistic right per se.
In Hurst v State of Queensland,214 two families of deaf children challenged the use by teachers of signed English and the absence of Auslan in the classroom. The case, heard in the Federal Court of Australia in 2005, was determined in favour of one family (Devlin) and against the other family (Hurst). However, in July 2006 the judgment against Hurst was overturned in the Appeals Court. The discrimination claim of Tiahna Hurst was based on the fact ‘that she ought to have been taught in Auslan because that was not merely the best, but the only appropriate, method of communication with profoundly deaf children’. However, the court a quo, per Justice Landers, decided against Tiahna as she was fluent in Auslan, her first language. Evincing the oralist tradition, the court held:
There is no evidence, or no evidence which I am prepared to accept, to support a ﬁnding that Tiahna cannot be educated in English, including Signed English ... On Tiahna’s own evidence, she has not established that she has fallen behind her hearing peers. It might be that she has not fallen behind her hearing peers because of the attention which she receives from her mother and the instruction which she no doubt receives from her mother in Auslan.215
It only meant that her detriment was masked. Lack of Auslan assistance was an educational disadvantage to Tiahna because it denied her the opportunity to realise her full potential. In the case of a less able student, it might cause the student to fail rather than pass. In Tiahna’s case, it caused her to perform at an average level rather than excel. In both cases, there is serious disadvantage. Neither student performs to the best of his or her ability.216
On appeal, reliance on the ICCPR and CRC, inter alia, may have carried the day, particularly insofar as the independence of children was stressed. These submissions provided a broad interpretation of the Disability Discrimination Act217 and the responsibility of Australian states to provide deaf students with equitable and optimal educational opportunities.218 As discussed below, this may be contrasted with the USA decision in Rowley. However, the Federal Court watered down the precedent-setting nature of the decision:
It should be stressed that Tiahna’s case is not a test case. The judgment of this court does not establish that educational authorities must make provision for Auslan teaching or interpreting for any deaf child who desires it. It does not establish that Auslan is better than signed English as a method of teaching deaf children. It does not determine that an educational authority necessarily acts unreasonably if it declines to provide Auslan assistance.219
Recently, there have been advocacy efforts to bring about legislation recognising the legal right of deaf persons to use Auslan as a primary or preferred language.220 The Committee on the Rights of Persons with Disabilities dismissed a complaint lodged by a deaf person wishing to challenge his probable exclusion from jury duty due to the legal position that potential jurors requiring Auslan interpreting are exempted from jury duty for a lack of victim status being proven.221 Should the admissibility hurdle be overcome in a case such as this, the arguments about exclusion from jury duty due to the need for support and Auslan interpretation, with concomitant violations of the right to exercise legal capacity and political rights may at a civil-political level raise the bar for the recognition of participation rights of sign language users on a global scale.
In summary, measures for reasonable accommodation in schools are based on an individual learner’s requirements that can be fulfilled immediately. However, inclusive education is a process that will take longer to overcome the archaic attitudes evident in the Hurst case. In that case, the judgment, although a victory for Tiahna, does not recognise her rights to be taught in her language, Auslan, on an equal basis with her hearing peers, since she belongs to a linguistic and cultural minority. The obiter sentiments expressed by the judge is not in line with the requirement in the CRPD that the maximum development of the child is to be achieved. Hopefully, deaf learners will in future be able to frame their complaints against schools not providing sign language assistance in class, or as a language subject, as not meeting the inclusive education demands of the CRPD, and not only as ‘reasonable accommodation’ measures.
The Canadian decision in Eldridge v British Columbia (Attorney-General) was a landmark judgment in connection with the provision of sign language interpreters.222 In this case, the failure of hospitals to provide sign language interpretation where necessary for effective communication of patients was held to constitute a violation of the rights of deaf persons under the Canadian Charter of Rights and Freedoms.223A declaration of this failure as unconstitutional was ordered, with a direction that the government administer the relevant legislation in a manner consistent with the Charter.
The initial enthusiasm following the outcome of the case was watered down by the disappointingly slow and reactive pace at which the order was implemented by provincial governments.224 A Canadian disability activist commented that follow-up on the case had not been prioritised by DPOs, and a cumbersome letter-writing campaign was utilised to enforce the order. Instead, a test case in a province to challenge the lack of an implementation plan in line with the Eldridge decision may have resulted in quicker, though more costly, action.225 However, this decision remained a unanimous victory.
In Julio David Perez v Mayors Office of Monteria,226 the Constitutional Court of Columbia held that the right to education of a hearing-impaired college student had been violated by the denial of a sign interpreter being available in college due to a rule that only where there are more than ten hearing-impaired students in class would an interpreter be provided. Mr Perez was hearing-impaired and had completed the first semester at the Primary School Teachers College in Montería, but was unable to continue further than the first year of study because paragraph 3, article 9 of Decree 366/2009 established that the presence of a minimum of 10 students with hearing disabilities was necessary to require sign language interpreters in educational institutions.
Citing article 23 of the CRC, General Comment 5 of the ESCR Committee, the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities, the Protocol of San Salvador, as well as articles of the Colombian Constitution and national case law, the Constitutional Court concluded that Perez’s right to education had been violated, and granted protection to the fundamental right to inclusive education. Furthermore, the Court found that the provision making the appointment of sign language interpreters conditional on a minimum enrolment of hearing-impaired students was unconstitutional. This requirement, it was held, deepened the marginalisation and exclusion of students with hearing disabilities. The Court further ordered the Montería mayor’s office to make the necessary corrections to the budgets, planning, curricula and organisation of its educational institutions so as to effectively provide access to the right to education to those with hearing disabilities.
Since this decision, Colombia ratified the CRPD on 10 May 2011. Following a request by the Constitutional Court, the decision was communicated to economic, social and cultural rights organisations and centres and to civil society organisations focusing on disability rights involved in the case. This case led to a review of public policy regarding inclusive education in Colombia, mostly attributable to the finding that the applicable regulations included requirements that, when implemented, had a disproportionate impact on persons with disabilities. Therefore, the Court ordered public authorities to adopt general measures aimed at correcting policies and designing effective mechanisms to ensure inclusive education for students with disabilities. This judgment is commensurate with an understanding of inclusive education, albeit at higher education level, not merely integrating students with hearing impairments into mainstream institutions, but requiring support measures that allow effective communication for learning. The focus on necessary budgetary allocation is in line with the refrain by the UN Human Rights Council that an efficient budget is necessary to fund measures for inclusive education.227
Kenya has been reported to be on the brink of introducing sign language in schools in line with the goal of inclusive education.228 However, Mweri has lamented the lack of recognition of Kenyan sign language (KSL) in schools, including the segregation of deaf learners in deaf ‘units’ within mainstream schools. The Basic Education Act 14 of 2013 promotes special needs education, establishing special institutions, including those for hearing-impaired learners.229 In particular, Mweri notes that the quality of teachers in institutions for the deaf ‘is below par’ as they ‘lack the linguistic know how to use KSL to impart knowledge to the deaf’.230
The Kenyan National Commission of Human Rights has reported the challenges faced by deaf learners, including the lack of proficient teachers, the lack of resources in schools and the lack of sign language interpretation when accessing public services and accessing information.231 This is despite the recognition by the Kenyan Constitution of the role of the state in promoting and developing the use of indigenous languages, including KSL.232 The Constitution emphasises the specific rights accruing to persons with disabilities.233 KSL is also recognised as one of the languages of parliament.234 The Kenyan Persons with Disabilities Act 14 of 2003 is currently being reviewed to bring it in line with the 2010 Constitution and the CRPD, as this Act predated both documents.235 The 2003 Act is aimed at providing for the rights and rehabilitation of persons with disabilities, to achieve equalisation of opportunities for persons with disabilities, and to establish the National Council for Persons with Disabilities, as well as the National Development Fund for Persons with Disabilities to provide monetary assistance to organisations and persons with disabilities. 236 In a nutshell, legislative and policy provisions for equal education for deaf learners is still lacking in Kenya. There have been calls for the reform of the Basic Education Act of 2013 to bring it in line with the state’s obligations under article 24 of the CRPD.237
The New Zealand Sign Language Act of 2006 declared New Zealand sign language (NZSL) a third official language, alongside English and Te Reo Mãori.238 The Act was reviewed in 2011 and, following a recommendation by the Human Rights Commission, a working group persuaded the government to establish an advisory board, the New Zealand Sign Language Board, and a fund to promote and maintain NZSL progress priorities for the language, and to support NZSL initiatives for the full participation in society of the deaf community.
The fund would include $1,5 billion annually over four years. Resource allocation in line with policy and law reform measures was clearly deemed important. Although the Human Rights Commission acknowledged the fact that funding was available to support deaf people and NZSL users to access education through the provision of NZSL interpreters and other resources,239 this funding was still insufficient. It did not allocate NZSL resources and support to enable the acquisition of NZSL including funding for NZSL interpreters in schools and the capacity of staff to deliver NZSL in early childhood education centres and schools. The lack of an implementation strategy and resourcing has hampered the efficacy of the Act.240 Especially in the education and legal systems, limitations on accessing NZSL have persisted. Even where budgets are allocated for the development of sign language, its implementation will require continued monitoring to ensure that it is meaningful.
The 1982 decision in Board of Education of Hendrick Hudson Central School District v Rowley 241 is an example of the domination of the medical model of deafness in law. Amy Rowley, profoundly deaf since birth, was a first-grade student in New York. Her parents sought the services of a sign language interpreter for Amy in the general education classroom. Although Amy was an excellent lip-reader, it was estimated that she was missing more than half of what was being said in the classroom. Her parents were deaf and believed that she should be receiving instruction in her own language, American sign language (ASL), rather than placing sole reliance on her ability to lip-read. When the school denied this request, her parents filed a complaint under the Individuals with Disabilities Education Act (IDEA Act). The matter eventually came before the Supreme Court, and the Court ruled that Amy was not entitled to a sign language interpreter as her excellent grades made an interpreter unnecessary.
The majority decision of the Court was that the failure by a school to provide free appropriate public education, as defined by the Education for All Handicapped Children Act242 (the precursor of the IDEA Act), had to be because the school did not comply with the procedural standards in the Act, rather than as a result of an ineffective or even a poorly-designed individualised education programme. As such, the Court held that a student received free appropriate public education when the state provides ‘personalized instruction with sufficient support services to permit the handicapped child to benefit educationally from that instruction’.243 Therefore, ‘if the child is being educated in the regular classroom’, the individual education programme ‘should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade’.244 The Court did not implement the standard of maximising a student’s educational outcome, but rather to provide an education ‘reasonably calculated’ to provide ‘some educational benefit’ as a baseline of educational services and instruction to allow a student with disabilities to advance from one grade to the next.245 This has meant that the Court focused on attempts by the school at good enough access rather than on the student’s actual good outcomes.246
The basic floor of opportunity is instead, as the courts below recognized, intended to eliminate the effects of the handicap, at least to the extent that the child will be given an equal opportunity to learn if that is reasonably possible. Amy Rowley, without a sign language interpreter, comprehends less than half of what is said in the classroom, less than half of what normal children comprehend. This is hardly an equal opportunity to learn, even if Amy makes passing grades.247
The Rowley decision epitomises another lost opportunity to address the lack of awareness and misguided assumptions about disability.248 Snoddon explains that the Rowley standard does not recognise students to excel academically with an education in sign language where they have already acquired a language.249 Rather, the approach underscores the idea that deaf learners must first fail before they can obtain access to their sign language, that is, ASL.250 The decision, if taken today, would not meet the maximum development standard in article 24 of the CRPD.
British sign language (BSL) was officially recognised in 2003.251 The policies currently in place in the UK are based on the assumption that deaf persons require ‘assimilation to reduce the adverse effects of their disabilities’, which Batterbury argues is contrary to the collective self-identity of the deaf community as a minority linguistic community. 252 The deaf community is advocating for full legal recognition of BSL,253 and a Scottish BSL Bill254 is also on the cards.255 Integration is not enough, as the CRPD demands inclusive education.
Policy and law reform efforts to recognise sign languages of particular deaf communities in specific countries, and inclusive education where deaf students attend ‘mainstream’ schools, have catapulted the acceptance of sign language and deaf culture into regular education.256 On the litigation front, however, an awareness of the value of sign language education is evident in the Australian and Columbian decisions only. Greater law and policy reform efforts in Kenya and the UK will hopefully steer those jurisdictions towards compliance with article 24 of the CRPD, and their obligations, generally, under international and regional law to accord linguistic and cultural minority status and the promotion of inclusive education. However, the examples of New Zealand and Kenya illustrate that law reform efforts require funding priorities aimed at developing sign language to be maintained.
A resounding victory for deaf learners has been achieved following the settlement in Springate and the consequent curriculum development, in that these learners can start to learn sign language in schools and that they will hopefully not be relegated to unequal educational and employment opportunities compared to their hearing peers. The protection, though fragmented, in the Equality Act, the South African Schools Act, the Constitution and various policies for SASL should be read within the growing acceptance globally that sign language is both a right accruing due to disability accommodations, and due to the linguistic and cultural minority status of deaf users of sign language. The inattention of the constitutionally-mandated body, the Language Board, to these rights of deaf learners, and the blame-shifting by the Department of Education, evident in the way in which the advocacy and litigation have played out, have not been entirely remedied. These organs of state will continue to play a crucial part in the protection and promotion of SASL for deaf children and adults alike, and it is hoped that they will take their cues from the human rights framework in the Constitution, and on the international level, including through the explicit recognition of sign languages in the CRPD. Similarly, the SAHRC and CRL Commission will continue to play a monitoring role and should put the issue of sign language in schools on their agendas.
The majority of the litigation discussed predated the CRPD, and reliance on its framework for entrenching the recognition of sign languages in signatory countries has not yet been tested. In Springate, the settlement avoided a legal precedent. Submissions on the obligations on the state under the CRPD, therefore, may have been raised in argument. Despite the lack of consensus as to the best means of achieving the recognition of sign language in the various jurisdictions, particularly in the educational setting, a decision which interprets the state’s obligations under the CRPD may inform the debate between advocates for sign language as a disability right and those preferring to frame it as a linguistic minority right. It appears that law reform efforts are proliferating around the globe to recognise sign languages, either (rarely) as official languages, or, more often, by promoting its usage within particular settings (such as the medical and legal spheres). For deaf children, whether placed in schools for the deaf or mainstream schools, meaningful access to their vernacular should maximise their educational opportunities. States should, therefore, be cognisant of their policies and legislative choices to avoid the pitfalls of approaches such as that of the USA in Rowley. Whether disability-specific legislation and, in particular, unequivocal legislative enactments for sign language will be necessary in the South African context should be carefully planned, bearing in mind the lessons learnt from other jurisdictions.
The next challenge for the deaf community in South Africa is the education of deaf learners in ‘mainstream’ schools, through the implementation of inclusive education. This will require teachers to be well versed and trained in SASL in order to teach both hearing-impaired students and hearing students in one classroom.257 Human Rights Watch has also recommended that the state ‘adequately train all teachers deployed to schools where deaf or hard-of-hearing students are accommodated in South African Sign Language to address the gap in access to quality teaching in South African Sign Language’.258 This recommendation is based on reports of children facing exclusion from education due to the lack of materials in sign language in mainstream and special schools; that limited specialised centres are available for teaching sign language; and because of the dearth of teachers adequately trained in teaching sign language. The United Nations Educational, Scientific and Cultural Organisation (UNESCO) has also stressed the need for educational planning to include the training of ‘sufficient numbers of fully-competent and qualified teachers’ able to teach in the mother tongue.259 Most recent available statistics reveal a ratio of one interpreter to 99 000 users of sign language in South Africa.260 Statistics for the incidence of teachers of sign language for every learner are not available. Fortunately, the curriculum planning process for SASL flowing from the Springate intervention appears to have anticipated this need. However, the allocation of funding will have to match the staggering demand for qualified teachers and interpreters.
The disparities between budget allocation for special schools as opposed to inclusive education have persisted, despite the policy statements in White Paper 6, and the international law position requiring the adequate allocation of resources.261 Ram and Muthukrishna have cautioned that inclusion does not merely involve moving deaf learners from special schools to mainstream schools, which means that, once ‘mainstreamed’, the students are ‘included’ and integrated. 262 Rather, inclusive education is a continuous process, requiring constant ‘pedagogical and organisational transformation within the mainstream to ensure that the system is responsive to learner diversity’. Without challenging the curriculum and organisational arrangements and the failure to overcome barriers to learning and participation as experienced by deaf learners in mainstream schools, it will remain ‘exclusionary’. Instead, the authors call for
the ethos of a school ... to affirm the culture and language of Deaf learners. Within the philosophy of inclusive education, the implication is that even schools for the Deaf should stress interventions that uncover and minimise barriers to learning.263
It has been suggested that the current policy and academic discourses on diversity and inclusion should be strengthened so that both concepts can facilitate the entrenchment of the language and other human rights of the deaf community. What is needed for understanding diversity is a group rights-based foundation, whereas inclusion should be understood as a form of societal inclusion of sign language persons, promoting bilingual sign education in a group setting and ensuring both individual and collective rights.264
The bias towards spoken languages continues: Whether in early childhood development, primary, secondary or tertiary education, it is clear that hearing teachers and lecturers dominate. Komesaroff calls for a systemic change, because
[t]he denial of linguistic and cultural difference, in preference for a disability construction, ignores the situation in which many deaf people find themselves. Language exists within a social and cultural context and is therefore political and bound up with issues of power. Schools and universities are powerful institutions whose practices can maintain the positions of particular cultural and linguistic groups.265
The positive changes in education of the deaf, therefore, can only be expanded upon if the deaf community continues to ensure that its ‘voice’ be heard through processes that strategise and implement education policies, as was the case for the decade before and during the litigation in Springate, and through concerted planned advocacy, litigation, lobbying and law reform, as evinced in other jurisdictions.266 As the quote at the beginning of the articles hows, offering sign language as a language subject in mainstream or full-service schools is considered to be constrained by the ‘reasonable practicable’ standard in South Africa. This is not in line with the notion of full inclusive education. Sign language in South Africa should not merely remain within the ‘realms of special education’, but should be placed ‘within the mainstream’.267 The recent White Paper on the Rights of Persons with Disabilities, gazetted in 2016, recognises the linguistic identity of the deaf community and the importance of SASL within that framework.268 Hopefully, the implementation of the policy directives will bear fruit and bring us closer to meeting inclusive education imperatives under international and domestic law.
1. Ruth Dyson, New Zealand’s Minister of Disability Issues, Address to the launch of New Zealand sign language in the New Zealand curriculum (15 March 2007) http://www.beehive.govt.nz/speech/address-launch-new-zealand-signlanguage-new-zealand-curriculum, cited in JH Cripps & SJ Supalla ‘The power of spoken language in schools and deaf students who sign’ (2012) 16 International Journal of Humanities and Social Science 86 94.
2. Donald Grant, Minister of Education, Western Cape Province, statement ‘Promoting the use of sign language in schools’ 11 September 2013 https://www.westerncape. gov.za/news/promoting-use-sign-language-schools (accessed 1 December 2015).
4. C Penn ‘Signs of the times: Deaf language and culture in South Africa’ (1993) 40 South African Journal of Communication Disorders 11-23; C Penn ‘The sociolinguistics of South African sign language’ in R Herbert (ed) Language and society in South Africa (1992) 277.
5. Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 (5) SA 87 (WCC). Cf C Ngwena ‘Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa: A case study of contradictions in inclusive education’ (2013) 1 African Disability Rights Yearbook 139; P Kruger ‘A critical appraisal of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 (5) SA 97 (CC)’ (2015) 18 Potchefstroom Electronic Law Journal 756-773.
10. I Grobbelaar-Du Plessis ‘Gestremdheidsreg: ’n Internasionaal regtelike en regsvergelykende analise’ unpublished LLD thesis, University of Pretoria, 2010 565-566 http://repository.up.ac.za/bitstream/handle/2263/28549/Complete.pdf?sequence= 10 (accessed 1 December 2015).
13. T Reagan ‘South African sign language and language-in-education policy in South Africa’ (2008) 38 Stellenbosch Papers in Linguistics 165. For a historical account of education of the deaf in South Africa, see C Storbeck et al ‘Education of the deaf in South Africa’ in DF Moores & M Miller (eds) Educational and social perspectives of deaf people around the world (2009) 133.
15. Storbeck et al (n 13 above) 133; RMT Simmons ‘The role of educational systems and deaf culture in sign language in South Africa’ in C Erting et al (eds) The deaf way: Perspectives from the international conference on deaf culture (1994) 80-83.
17. E Smuts ‘Schools: Deciding on a school for the deaf’ in R Hugo & T Blumberg (eds) Challenges and choices: An aid for parents of children with hearing loss (2010) 51, cited in Peel (n 16 above) 18.
18. PAO Akach ‘Teachers attitudes towards the medium of instruction: An empirical study (a case study of two schools) in South Africa’ in DO Orwenjo et al (eds) Multilinguilism and education in Africa: The state of the state of art (2014) 286 298.
20. K Jagoe ‘The disability rights movement: Its development in South Africa’ (undated) Living Institute http://www.independentliving.org/toolsforpower/tools6.html (accessed 1 December 2015).
22. M du Plessis ‘The social model of disability, rights discourse and the impact of South Africa’s Education’ White Paper 6 on access to the basic education system for persons with severe or profound intellectual impairments (2013) 17 Law, Democracy and Development 202 208.
25. Reagan (n 13 above) 173, citing D Aarons & P Akach ‘South African sign language: One language or many? A socio-linguistic question’ (1998) 31 Stellenbosch Papers in Linguistics 1. Cf D Aarons & L Reynolds ‘South African sign language: Changing policies and practice’ in L Monaghan et al (eds) Many ways to be deaf: International variation in deaf communities (2003) 194; C Penn & T Reagan ‘Implications of the study of South African sign language for the education of the deaf in South Africa’ (1995) 15 South African Journal of Education 92; C Penn ‘Signs of the times: Deaf language and culture in South Africa’ (1993) 40 South African Journal of Communication Disorders 11; C Penn & T Reagan ‘Toward a national policy for deaf education in the “new” South Africa’ (1991) 38 South African Journal of Communication Disorders 19; C Penn & T Reagan ‘How do you sign “apartheid”? The politics of South African sign language’ (1990) 14 Language Problems and Language Planning 91.
26. Sec 9 of the Constitution, particularly sec 9(3): ‘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’ (my emphasis).
33. Secs 28(3)(b)(i) to (iv) of the Equality Act. Similarly, the suspect grounds of race and gender are elevated to needing special measures to promote equality. Unfortunately, the date of commencement of this proactive provision is still to be proclaimed.
34. Sec 6(5) of the Constitution provides that a Pan-South African Language Board is to be established by national legislation to inter alia promote and create conditions for the development of all official languages and sign language. The Pan-South African Language Board Act 59 of 1995, amended by Act 1999, established the Board.
35. Sec 30 of the Constitution provides: ‘Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.’ According to sec 31: ‘(1) Persons belonging to a cultural or linguistic community may not be denied the right, with other members of that community - (a) to enjoy their culture and use their language; and (b) to form, join and maintain cultural and linguistic associations and other organs of civil society. ‘(2)The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.’
41. Department of Basic Education ‘The status of the language of learning and teaching in South African schools: A quantitative overview’ (2010) 9 http://www.educa tion.gov.za/LinkClick.aspx?fileticket=wuoS4v3cIkg%3D&tabid=358&mid=2597 (accessed 23 September 2015). This statement is taken virtually verbatim from the decision in Hoërskool Ermelo (n 40 above) para 76.
42. Cf S Woolman ‘Defending discrimination: On the constitutionality of independent schools that promote a particular, if not comprehensive, vision of good life’ (2007) Stellenbosch Law Review 31; B Fleisch & S Woolman ‘On the constitutionality of single-medium public schools’ (2007) South African Journal on Human Rights 34 38; S Woolman & M Bishop ‘Education’ in S Woolman & M Bishop Constitutional law of South Africa (original service 11-07) 57-42 to 57-78.
46. A Kusters et al On diversity and inclusion: Exploring paradigms for achieving sign language people’s rights (2015) MMG Working Paper 15-02 Max Planck Institute for the Study of Religious and Ethnic Diversity, Göttingen, 1 8; S Batterbury et al ‘Sign language peoples as indigenous minorities: Implications for research and policy’ (2007) 39 Environment and Planning 2899.
49. This complies with the definition of minority proffered by Francesco Capotorti, Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities E/CN.4/Sub.2/384/Rev.1 para 568.
50. See also arts 1(1), 2(1), 2(5), 3(1), 3(2) and 4(1) of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, General Assembly Resolution 47/135 (18 December 1992). The multiple discrimination faced by linguistic minorities, eg on the basis of disability as well as language, is recognised in United Nations Minority rights: International standards and guidance for implementation (2010) HR/PUB/10/3 3 http://www.ohchr.org/Documents/Public ations/MinorityRights_en.pdf (accessed 1 December 2015).
52. General Comment 23 , a rt 27 of the International Covenant on Civil Political Rights (1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994) 38. Paras 6.1 and 6.2 oblige states to take positive measures to protect the identity of the minority and to enable them to enjoy and develop their culture and language, in community with the other members of their group.
54. T Skutnabb-Kangas ‘Linguistic genocide and the deaf’ (undated) http://www. deafzone.ch/file/file_pool/action/download/file_id/1379. Cf J Lubbe et al (eds) South African language rights monitor 2003 (2011) 20.
55. Convention on the Prevention and Punishment of the Crime of Genocide Assembly Resolution 260 A (III) of 9 December 1948. Art II(e) considers it genocide when there is an instance of forcibly transferring children of the group to another group; and art II(b), when it causes serious bodily or mental harm to members of the group.
56. Joint statement by Section27, Equal Education, the Centre for Child Law, the Legal Resources Centre and Equal Education Law Centre ‘SA government’s declaration on education clause mars the welcome ratification of the International Covenant on Economic, Social and Cultural Rights’ http://www.lrc.org.za/press-releases/3359-joint-statement-sa-government-s-ratification-of-the-icescr (accessed 14 February 2016).
59. ESCR Committee General Comment 21 Right of everyone to take part in cultural life (art 15 para 1(a) of the International Covenant on Economic, Social and Cultural Rights) 21 December 2009, E/C.12/GC/21, clause 6. Cf A Barratt & A Afadameh-Adeyemi ‘Indigenous peoples and the right to culture: The potential significance for African indigenous communities of the Committee on Economic, Social and Cultural Rights General Comment 21’ (2001) 1 African Human Rights Law Journal 560.
69. CRC Committee General Comment 9 (n 64 above) para 66 notes: ‘The manner and form of inclusion must be dictated by the individual educational needs of the child, since the education of some children with disabilities requires a kind of support which may not be readily available in the regular school system ... However, the Committee underlines that the extent of inclusion within the general education system may vary. A continuum of services and programme options must be maintained in circumstances where fully inclusive education is not feasible to achieve in the immediate future.’ In para 67 the Committee continues to explain that the goal of inclusive education can be achieved by different organisational means which respect the diversity of children: ‘Inclusion may range from full-time placement of all students with disabilities into one regular classroom or placement into the regular class room with varying degree of inclusion, including a certain portion of special education. It is important to understand that inclusion should not be understood nor practised as simply integrating children with disabilities into the regular system regardless of their challenges and needs.’
72. Art 21 of the CRPD. Persons with disabilities have the right to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice.
84. Art 24(2)(d) provides: ‘Persons with disabilities receive the support required, within the general education system, to facilitate their effective education.’ Art 24(2)(e) provides: ‘Effective individualised support measures are provided in environments that maximise academic and social development, consistent with the goal of full inclusion.’
88. G de Beco ‘The right to inclusive education according to article 24 of the UN Convention on the Rights of Persons with Disabilities: Background, requirements and (remaining) questions’ (2014) 32 Netherlands Quarterly of Human Rights 263 282.
96. Integrated National Disability Strategy White Paper (1997) http://www.gov.za/sites/www.gov.za/files/disability_2.pdf (accessed 1 December 2015).
97. S Mitra ‘The recent decline in the employment of persons with disabilities in South Africa, 1998-2006’ (2008) Discussion Paper 2008 12 July 2008, Fordham University Department of Economics Discussion Paper Series 3.
99. Department of Education White Paper No 6: Special Needs Education (2001) 49. The Department of Social Development’s White Paper on the Rights of Persons with Disabilities (2016) emphasises the importance of sign language in a number of instances, including for purposes of changing attitudes and behaviour: ‘disability rights awareness training programmes must be integrated into the curricula of all education and training programmes. This must include training in all forms of alternate communication. For example the teaching of South African Sign Language and the availability of Braille at schools, post school education and training institutions and at work places’ (51); access to information and communication: ‘Promote South African Sign Language (SASL) and train SASL Interpreters. A costed plan must be developed for promoting SASL through a number of interventions. The strategy and plan must include the training of SASL interpreters. Adequate budget must be provided for implementation of the plan’ (56); and life-long education and training, which requires implementation of specific programmes, including ‘facilitating the learning of South African Sign Language and the promotion of the linguistic identity of the Deaf community; ensuring that the education of persons, and in particular children, who are blind, deaf, hearing impaired, non-speaking autistic or deaf-blind is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development; employing teachers, including teachers with disabilities, who are qualified in South African Sign Language and/or Braille, and to train professionals and staff who work at all levels of education. Such training shall incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities (84)’. Cf Department of Social Development’s White Paper on the Rights of Persons with Disabilities: Implementation Matrix 2015-2030 (2015) 1.1.2; 1.1.3; and 1.4.4 identifying implementation measures and stakeholders, as well as timeframes for implementing the policy directives.
104. Sec 4(a)(v) of the Policy Act. Cf sec 4(1) of the KwaZulu-Natal School Education Act 3 of 1996 which provides that every learner has the right to be educated in the language of his or her choice and that the education be provided in accordance with the child’s aptitude, ability, needs and interests.
107. Item 3(4) of the National Norms and Standards regarding language policy defines language as all official languages recognised in the Constitution, and also South African sign language, as well as alternative and augmentative communication.
109. C Simbo ‘The right to basic education, the South African Constitution and the Juma Musjid case: An unqualified human right and a minimum core standard’ (2013) 17 Law, Democracy and Development 477 498.
114. P Akach & R Morgan ‘Sign language interpreting in South Africa’ in M Erasmus (ed) Liaison interpreting in the community (1999) 67; MN Ganiso ‘Sign language in South Africa: Language planning and policy challenges’ unpublished MA thesis, Rhodes University, 2012 32.
119. World Federation of the Deaf Education rights for deaf children (2007) http://www. wfdeaf.org/wp-content/uploads/2011/03/EducationRightsforDeafChildren_July-2007.pdf (accessed 1 December 2015).
121. L Magongwa ‘Deaf teachers’ experiences of being students at the University of the Witwatersrand’ unpublished Master’s degree dissertation, University of the Witwaters-rand, 2008 http://wiredspace.wits.ac.za/bitstream/handle/10539/5926/Lucas%20 Magongwa%20dissertation%208910575A.pdf?sequence=1 (accessed 23 September 2015).
127. Snoddon (n 125 above) 256, citing J Morford & R Merry ‘A re-examination of “early exposure” and its implications for language acquisition by eye’ in C Chamberlain et al (eds) Language acquisition by eye (2000) 111.
130. Canadian Hearing Society Status report on deaf, deafened and hard of hearing Ontario students in post-secondary institutions: Statistics, current trends, barriers and recommendations (2004) cited in Snoddon (n 125 above) 257 (my emphasis).
132 Notice of Motion filed on 8 June 2009 Part A paras 2-3 (copy with the author). Kyle submitted that the failure of the department to recognise SASL as such infringed the rights of the learners, particularly in line with the following provisions: sec 6(5)(a)(iii)
132. (PanSALBs role in developing SASL); sec 9(3) (right to equality); sec 28 (rights of children); sec 29 (right to basic education); sec 30 (right to language and cultural life of choice); and sec 31 (right of linguistic community to enjoy the use of their language) of the Constitution, as well as sec 6 of SASA (sign language has the status of an official language for purposes of learning at public schools). Furthermore, sec 4(1) of the KwaZulu-Natal School Education Act 3 of 1996 (children’s right to be educated in the language of their choice).
133. Sec 4(a)(v) of the Policy Act (right of children with disabilities to be instructed in the language of their choice). In particular, the submissions are contained in para 87 of the founding affidavit averring that the policy is ultra vires the relevant empowering legislation (SASA).
141. Jace Nair, CEO of the KNBDS, quoted in IOL News Department opposes sign language at schools 16 July 2009 http://www.iol.co.za/news/south-africa/department-opposes-sign-language-at-schools-1.449957#.VFt5sLccTIV. See also ‘Deaf learner gains support for court case’ IOL News 16 July 2009 http://www.iol.co.za/news/south-africa/deaf-learner-gains-support-for-court-case-1.449938#.VFt697ccTIV.
148. DeafSA Memorandum towards the recognition of SASL as a 12th official language (1 February 2007) http://www.pmg.org.za/docs/2007/070216memorandum.htm (accessed 23 September 2015).
150. St Vincent School, Melrose; Fulton School for the Deaf, Gillits; Sizwile School for the Deaf, Dobsonville; Durban School for the Hearing Impaired, Amanzimtoti; VN Naik School for the Deaf, Newlands; Kwavulindlebe School for the Deaf, Havenside; and Vuleka School for the Deaf, Nkandla.
151. Answering affidavit of the first and second respondents deposed to by P Vinjevold, para 33.3 (copy with the author). The deponent was referring to the policy document addendum to the policy document, the NSC: A qualification at level 4 on the National Qualifications Framework (NQF) regarding the National Protocol for recording and reporting grades (Grades R to 12) in Government Gazette 29467 of 11 December 2006; and Government Gazette 27607 of 24 May 2005 (which had called for public comments).
161. PanSALB welcomes language settlement SA News 20 August 2009 http://www. sanews.gov.za/south-africa/pansalb-welcomes-language-settlement.
162. ‘We must listen to those who cannot hear - Helen Zille’ SA Today 21 August 2009 http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71616/page71646?oid =140513&sn=Detail&pid=71646.
163. The Department of Basic Education in its report explicitly mentioned the Springate litigation in its problem statement. Department of Basic Education Report: The development of the South African sign language curriculum for grades R-12 (2013) 2 http://www.deafsa.co.za/documents/SASL%20Report%20to%20Minister%20Aug% 202013Final%20_2.pdf.
167. Proclamation by the President of the Republic of South Africa 10 of 2013 in Government Gazette 36392 on the Use of Official Languages Act 12 of 2012 (26 April 2013). The Act commenced on 2 May 2013. See, in particular, sec 4(1)(d) of the Act.
168. Call to give South African sign language official status SA News 5 December 2012 http://www.southafrica.info/services/rights/disability-051212.htm#.VYfiTrcw_IU (accessed 23 September 2015).
169. Sign language approved first language SA News 20 August 2014 http://www.sanews. gov.za/south-africa/sign-language-approved-first-language (accessed 23 September 2015); Sign language included in education curriculum SABC 15 November 2013 http://www.sabc.co.za/news/a/8cf88c8041d64e649eeebf1c2eddf908/Sign-language-includ ed-in-education-curriculum (accessed 23 September 2015).
170. S Smillie & K Child ‘Deaf pupils to be taught in sign language’ Times Live 19 August 2014 http://www.timeslive.co.za/thetimes/2014/08/19/deaf-pupils-to-be-taught-in-sign-language (accessed 23 September 2015).
172. The role of the media in promoting positive human rights norms through their reporting has been explored by N Nyika ‘Media coverage as an instrument for language rights activism: The case of Hoërskool Ermelo’ (2010) 28 Southern African Linguistic and Applied Language Studies 89; C de Wet ‘The South African Human Rights Commission and human rights violations in education: An analysis of media reports’ (2012) 10 Journal for New Generation Sciences 15.
173. H Corder et al ‘Report on parliamentary oversight and accountability’ (1999) para 7.1.2 http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/oversight&account.htm (accessed 1 February 2016).
174. Institute for Democracy in South Africa ‘The relationship between the state institutions supporting constitutional democracy and the national legislature Report to the Ad Hoc Committee on the Review of State Institutions Supporting Constitutional Democracy’ (2007) 3 https://pmg.org.za/committee-meeting/7772/ (accessed 15 February 2016).
180. SAHRC (undated) Commissioner Malatji conducts inspections of special needs schools to observe if compliance with the Convention of Rights of Persons with Disabilities http://www.sahrc.org.za/home/index.php?ipkArticleID=311 (accessed 23 September 2015).
181. SAHRC Towards a barrier-free society: A report on accessibility and built environments (2002) http://www.sahrc.org.za/home/21/files/Reports/towards_barrier_free_society.pdf20 02.pdf (accessed 23 September 2015); L Swartz ‘Disability and equity in South Africa’ in SAHRC SAHRC Equality Report: Commentaries on equality: Race, gender, disability and LGBTI issues (2012) 33-42 http://www.sahrc.org.za/home/21/files/Equality%20Re port%2020%20Oct%202012%20Final.pdf (accessed 23 September 2015).
187. I Fredericks ‘SA sign language added to curriculum’ IOL News 1 December 2014 http://www.iol.co.za/news/south-africa/western-cape/sa-sign-language-added-to-curriculum -1.1788756#.VYfeUbcw_IU (accessed 23 September 2015).
188. Cara Loening, director of Sign Language Education and Development (SLED), quoted in K Scott ‘The state of South African sign language’ Groundup 26 September 2014 http://groundup.org.za/article/state-south-african-sign-language_2287 (accessed 23 September 2015).
189. PanSALB Annual Report 2011/2 http://www.pansalb.org/PanSALB%20Annual%20 report%202012.pdf (accessed 2 February 2016) (indicating a qualified audit, and dissolution of the Board).
190. South African Parliament: Joint Constitutional Review Committee Recognition of South African sign language as official language: Briefing by Deaf Federation of South Africa 16 February 2007 accessed on Parliamentary Monitoring Group https://pmg.org.za/committee-meeting/7724/ (accessed 23 September 2015).
191. SAPA ‘Should sign language be an official language in SA?’ Health24 29 January 2015 http://www.health24.com/Medical/Hearing-management/Hearing-in-children/Shou ld-sign-language-be-an-official-language-in-SA-20140926 (accessed 23 September 2015).
192. B Molosankwe ‘Sign language “fake” blames illness’ IOL News 12 December 2013 http://www.iol.co.za/news/south-africa/gauteng/sign-language-fake-blames-illness-1621044 (accessed 23 September 2015).
203. Eg, sec 17 of the Constitution of Finland guarantees the rights of persons using sign language and of persons in need of interpretation or translation aid owing to disability; art 74(2)(g) of the Constitution of Portugal recognises the duty of the state to protect and develop Portuguese sign language, as a cultural expression and instrument of access to education and equality of opportunity. Council of Europe ‘The status of sign languages in Europe’ (2005) 67 http://www.coe.int/t/e/social_cohesion/soc-sp/5720-0-ID2283-Langue%20signe_GB%20assemble.pdf (accessed 23 September 2015).
207. Equal Education ‘Taking equal education into the classroom: The challenges to teaching and learning, and possible campaigns to address the crisis of quality and equality in the pedagogic encounter’ (2015) 102. Linkside & Others v Minister of Basic Education & Others Case 3844/2013  ZAECGHC 36 (26 January 2015).
208. Julio David Perez v Mayors Office of Monteria Decision of T-051/11 File T-2650185 (date of decision: 4 February 2011) Constitutional Court of Colombia http://www. corteconstitucional.gov.co/relatoria/2011/t-051-11.htm (accessed 23 September 2015). The Chilean Constitutional Court granted Constitutional Protection Claim Molina contra Canales de Televisón Appeals Court of Santiago, 2001, Rol No5527-2 -1/ Clínica de Acciones de InterésPúblico y Derechos Humanos - Programe Jurídico sobre Discapacidad - Facultat de Derecho, Universidad Diego Portales.The Appeals Court of Santiago ensured that access to information for the deaf in news programmes was placed on the public agenda. As a consequence of the litigation, an agreement was entered into between the deaf community of Chile, the National Television Council, the National Television Association and other political actors that sign language interpretation would be provided in at least one television news programme every day. Cf MS Cisternas Reyes ‘Standard rules on equality of opportunities for persons with disabilities: Legal view of provisions on support services, auxiliary resources and training/View from Latin America’ in MH Rioux et al (eds) Critical perspectives on human rights and disability law (2011) 419 446.
220. Deaf Australia Equality, capacity and disability in commonwealth laws (2014) Issue Paper 44 (IP44) http://www.alrc.gov.au/sites/default/files/subs/37._org_deaf_australia_jan _2014.doc (accessed 23 September 2015).
226. Perez v Mayors Office (n 208 above). Since the decision is in Spanish, the English summary of the case, provided by the court on its website, has been relied on https://www.escr-net.org/docs/i/1600443 (accessed 23 September 2015)
227. UN Human Rights Council Thematic study on the right of persons with disabilities to education Report of the Office of the United Nations High Commissioner for Human Rights A/HRC/25/29 18 December 2013 para 49.
228. Jacob Kaimenyi, Cabinet Secretary for Education, cited in F Achanda ‘State to introduce sign language in schools’ The Star (Nairobi) 23 February 2015 http://allafrica.com/stories/201502231830.html (accessed 23 September 2015).
231. Kenyan National Commission on Human Rights ‘From norm to practice: A status report on the implementation of the rights of persons with disabilities in Kenya’ (2014) http://www.knchr.org/Portals/0/Reports/Disability%20Report.pdf (accessed on 23 September 2015). The report finds that, whilst the policy environment of education is theoretically supportive of education for learners with disabilities, it faces bottlenecks in implementation. Eg, the inclusion policy is yet to be implemented and the implementation framework of the National Policy on Special Needs Education Policy of 2009 has not been developed.
232. Sec 7(3)(b) of the Kenyan Constitution of 2010. The listing of disability as a ground of discrimination in the Kenyan Constitution of 2010 (sec 27(4)) is welcomed, considering the outcome of the decision in Duncan Otieno Waga v Attorney-General  EKLR, where the Kenyan High Court held that it could not find for the applicant since disability was not listed in the non-discrimination clause of the previous Constitution of 1969, as amended in 1997.
233. Sec 54 of the Kenyan Constitution inter alia guarantees the rights ‘(b) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person; (c) to reasonable access to all places, public transport and information; (d) to use sign language, braille or other appropriate means of communication; and (e) to access materials and devices to overcome constraints arising from the persons disability’.
236. For an overview of the 2006 Act, see K Kindiki ‘Legal protection of persons with disabilities’ in Kenya in Rioux et al (n 208 above) 309-340. Cf E Kamundia ‘Country report: Kenya’ (2014) African Disability Rights Yearbook 185-205 190.
238. New Zealand Office of Disability Issues Review of the New Zealand Sign Language Act 3 http://www.odi.govt.nz/what-we-do/nzsl/2010-review-nzsl-act.html (accessed 23 September 2015).
239. Eg, the NZ Human Rights Commission noted that the Ministry of Education provides funding through the Ongoing Resourcing Scheme for additional specialists, teacher aides, and or equipment that a child might need in the classroom to access the curriculum. Office of the Minister for Disability Issues Promotion and maintenance of New Zealand sign language (2014) Cabinet Social Policy Committee http://www.odi.govt.nz/documents/nzsl/nzsl-board/pdf-word-cabinet-paper-nzsl-board-may-2014.pdf (accessed 23 September 2015).
245. Rowley (n 241 above) 198-199. The District Court, on the other hand, had interpreted the Act to provide that each child with a disability should be given an opportunity to achieve their maximum educational potential commensurate with their non-disabled peers.
246. AK Kaufman & E Blewett ‘When good enough is no longer good enough: How the high stakes nature of the No Child Left Behind Act supplanted the Rowley definition of a free appropriate public education’ (2012) 41 Journal of Law and Education 5 6.
248. TJ Seligmann ‘Sliding doors: The Rowley decision, interpretation of special education law and what might have been’ (2012) 41 Journal of Law and Education 71; JF Mead & MA Paige ‘Board of Education of Hendrick Hudson v Rowley: An examination of its precedential impact’ (2008) 37 Journal of Law and Education 329.
250. L Siegel The educational and communication needs of deaf and hard of hearing children: A statement of principle regarding fundamental systemic educational changes (2000); Greenbrae, CA: National Deaf Education Project 25 cited in Snodden (n 125 above) 265.
253. British Deaf Association Response by the BDA to the Office for Disability Issues: Draft UK initial report on the UNCRPD (2011); BDA Transforming deaf people’s lives: BSL strategy (2012), both cited in Batterbury (n 251 above) 548.
256 See, eg, the argument by R Rosen ‘ An unintended consequence of IDEA: American sign language, the deaf community, and deaf culture into mainstream education’ (2006) 26 Disability Studies Quarterly http://dsq-sds.org/article/view/685/862 (accessed 23 September 2015). Rosen argues that the integration of deaf students into American society is one of the laudable goals of the USAs Individuals with Disabilities Act. Its objective has been to foster speech and hearing skills and the placement of deaf and hard of hearing students in mainstream schools with hearing students. According to
256. Rosen, however, an analysis of historical and educational documents shows that IDEA unintentionally created the process for the inclusion of the language, community, and culture of signing deaf and hard of hearing students into the American education system. Whereas the legislation integrates signing deaf and hard of hearing students into the American education system; American Sign Language (ASL) and the American deaf community and culture are also mainstreamed into the system. However, Cripps & Suppalla (n 1 above) 89 indicate that integration of deaf learners in mainstream schools with non-disabled, non-signing peers has resulted in a lack of attention to the signed language, reflecting spoken language biases. These include the declining socialisation opportunities as well as ASL acquisition.
259. UNESCO Education in a multilingual world (2003) 31 http://unesdoc.unesco.org/images/0012/001297/129728e.pdf (accessed 23 September 2015).
260. DeafSA ‘Policy on the provision and regulation of South African sign language interpreters, Johannesburg’ (2011) cited in T Zulu The socio-economic status, sign language interpreter utilisation and the cost of providing South African sign language interpreter services in the Cape Metropole District health services MPH thesis in Health Economics, University of Cape Town, 2014 10.
261. Human Rights Watch (n 257 above) 76. Cf Department of Basic Education Progress report on inclusive education and special schools Portfolio Committee on Basic Education 23 June 2015; D Budlender ‘Budgeting for realising the right to basic education for children with disabilities in South Africa’ Annexure C in T Fish-Hodgson & S Khumalo Left in the dark: Failure to provide access to quality education to blind and partially sighted learners in South Africa (2015) http://section27.org.za/wp-content/uploads/2015/11/S27-left-in-the-dark-2015-accessible.pdf (accessed 14 February 2016)
265. L Komesaroff ‘Diversity and justice: Being different in universities and schools’ (2000) paper presented at the AARE Sydney 2000 conference, 4-7 December 2000 1-11 10 http://www.aare.edu.au/data/publications/2000/kom00269.pdf (accessed 23 September 2015).
- Rebecca Johns
- Life Skills Trainer and Resource Developer, Western Cape Forum for Intellectual Disability (WCFID).
- BA Hons (Exeter, UK), MEd (UWC)
- Colleen Adnams
- Vera Grover Professor of Intellectual Disability, Dept of Psychiatry and Mental Health, University of Cape Town.
- BSc (UKZN), BSc Med Hons MBChB (UCT), FCPaed (SA) (College of Paediatrics of South Africa)
- (2016) 4 ADRY 100-123
- Download article in PDF
In South Africa, the continuing HIV pandemic and high prevalence of sexual abuse focus attention on the vulnerability of persons with intellectual disabilities and highlight the need to provide them with comprehensive sexuality education. Access to sexuality education is intrinsic to supporting sexual health as well as any possibility of informed consent (or self protection) in relation to sexual behaviour with others or sexual health treatment, such as contraception. The right to access information relating to sexual health programmes is enshrined by the UN Convention on the Rights of Persons with Disabilities and South African law, such as the Constitution.
Learners and adults with intellectual disabilities are frequently denied this information due to negative beliefs toward their sexuality and learning capabilities compounded in Southern Africa by a paucity of programmes, training and resources to accommodate their learning needs. Over the past 10 years, the Western Cape Forum for Intellectual Disability (WCFID) has developed materials to enable educators and health care workers to provide sexuality education to this neglected population group. This article broadly describes the content and methodology of one such programme for learners with intellectual disabilities alongside contextual and other factors that impact on sexuality education for people with intellectual disabilities in South Africa.
The UN Convention on the Rights of Persons with Disabilities (CRPD)1 provides a framework for the elimination of discrimination, and champions equality in all aspects of life. Sexuality cannot be detached from human experience and demands its presence in any document that promotes the rights of people with disabilities, especially in view of the ‘interdependence, and interrelatedness’ of human rights, as stated by the CRPD.2 The provision of comprehensive3 and accessible sexuality education is integral to a rights-based framework. This mandate is supported by international research4 and a growing body of African research into the need for sexuality education for people with intellectual disabilities,5 as well as South African law relevant to this area.6 However, the provision of comprehensive sexuality education for the youth in Southern Africa, especially those with disabilities, is inadequate despite the high rate of HIV and unacceptable levels of sexual violence toward women and girls.7
The implementation of comprehensive sexuality education is hindered by an ambivalence toward acknowledging the sexuality of adolescents, leaving them more vulnerable and unprepared for their sexual lives.8 This resistance is amplified as far as the sexuality of people with disabilities is concerned,9 and even more so in relation to people with intellectual disabilities.10 Ambivalence may lead to the denial of a person’s sexuality, or the reframing of their sexual needs solely within an abuse prevention focus.
The article aims to describe a sexuality education programme and resources for learners and adults with mild, moderate and high severe intellectual disabilities who attend LSEN (Learners with Special Educational Needs) schools in the Western Cape, South Africa.11 In addressing these aims, the article examines the contextual and other factors that impact on sexuality education for people with intellectual disabilities in South Africa.
Any discussion of sexuality education will be framed by the meaning attached to the construct of sexuality. The World Health Organisation (WHO) defines sexuality as ‘a central aspect of being human throughout life’.12 Sexuality includes private sexual behaviour, sexual orientation, identity and feelings, alongside the social expression of sexual identity in gender roles, values and relationships. Social, cultural and historical contexts will shape personal experiences and the social construction of sexuality at any point in time. Within this view, it is not possible to limit our discussion of sexual health as simply the absence of disease or as excluding any sector of any population. The WHO defines of sexual health as a state of physical, emotional, mental and social well-being in relation to sexuality; it is not merely the absence of disease, dysfunction or infirmity. Sexual health requires a positive and respectful approach to sexuality and sexual relationships, as well as the possibility of having pleasurable and safe sexual experiences, free of coercion, discrimination and violence. For sexual health to be attained and maintained, the sexual rights of all persons must be respected, protected and fulfilled.13
Comprehensive sexuality education is underpinned by this view of sexual health and supports the youth to develop a positive view of their sexuality.14 The United Nations (UN) Population Fund (UNFPA) describes comprehensive sexuality education as ‘a rights-based and gender-focused approach to sexuality education’.15 The United Nations Educational, Scientific and Cultural Organisation (UNESCO) International Technical Guidance on Sexuality Education states that alongside scientifically accurate information, sexuality education provides ‘opportunities for young people to explore their values and practise decision making and other life skills they will need to be able to make informed choices about their sexual lives’.16 Just as sexual health does not only focus on the absence of disease, comprehensive sexuality education goes beyond a narrow focus of preventing pregnancy and sexual disease and is underpinned by universal human rights relating to health and education for all.17
In the past, the medical model dominated our understanding of intellectual disability, resulting in a paternalistic approach to care that prioritised protection and separate, specialised services. The social ecological model, as the theoretical framework of the CRPD, challenges the medical model through conceptualising disability as the result of a discriminatory social system.18 The CRPD recognises the need to protect the human rights of all, including those who ‘require more intensive support’,19 which is relevant to the different support needs of people with different levels of intellectual disability.
Different levels of cognitive ability within intellectual impairment, described as mild, moderate, severe or profound,20 present a diverse population group and, thus, diverse support needs. An acknowledgment of these different levels is inevitably framed within a medical discourse. However, the more recent bio-pyscho social model21 provides a more integrated view by acknowledging social barriers and discrimination alongside diverse impairments that may require individual treatment and accommodation. Current debates reflect the difficulty of ethically and equitably addressing the different abilities of people with intellectual disabilities in relation to their rights.22
Discerning the appropriate focus of sexuality education for children and adults with more severe levels of cognitive impairment, namely the high support needs of those with severe to profound intellectual disability, is difficult due to their significantly-reduced understanding and autonomy: ‘A person with profound intellectual disability cannot understand verbal requests, has very limited communication, no self-care skills and is usually incontinent.’23 One approach is to engage caregivers to acknowledge and understand the rights and needs of this group in relation to their sexual health.24 The issues related to ‘recognising the dignity’ and sexual health rights of these individuals are complex and, although outside of the scope of the article, need urgent engagement in relation to policy and practice25 in special care facilities, residential facilities and community settings.
People with intellectual disabilities have always been ‘marginalised and stigmatised’.26 The terminology used to describe intellectual disability has continually changed, reflecting the attempt to ‘define difference differently’ and ‘remove the stigma associated with a particular term’.27 The article uses the current, internationally-accepted term ‘intellectual disability’,28 although previously-used terms, such as ‘mental handicap’, ‘mental retardation’ or ‘learning disabilities’ often remain more familiar to the general public as well as professionals working outside the sector. The CRPD uses the umbrella term ‘persons with disabilities’, additionally defining intellectual disability as ‘long-term’ ‘mental or intellectual impairment’.29
South African law relevant to the sexual health of those with intellectual disabilities, such as the Sterilisation Act30 and the Sexual Offences Amendment Act,31 use the term ‘mental disability’. Within the South African educational system, the terminology varies. The move toward creating an inclusive education system, as outlined by White Paper 6,32 reflects a social model of education33 in the need to redress a segregated, inequitable school system under apartheid. LSEN schools provide for ‘children with barriers to learning’.34 Some LSEN schools refer to catering for learners with intellectual impairments, while the new LSEN curriculum (in draft process) caters for ‘learners with severe intellectual disability who are enrolled in special as well as ordinary schools’.35 LSEN schools for learners with intellectual disabilities generally provide for a broad mix of cognitive abilities, and include learners with mild, moderate and high severe intellectual disabilities.
The way in which intellectual disability is perceived remains shaped by a medical discourse dominated by intelligence (IQ) testing36 and the concept of ‘mental age’ estimated a child’s intellectual performance in relation to typical age-related results.37 Although the concept of mental age is no longer used in intelligence tests,38 it remains current and misunderstood in relation to people with intellectual disabilities and results in caregivers feeling justified in treating an adult as a five year-old. The concept of mental age perpetuates negative beliefs about the sexuality of adults with intellectual disabilities where they are infantalised39 and, thus, denied age-appropriate information.
Currently, a diagnosis of intellectual disability takes into account a person’s IQ score alongside an assessment of their adaptive skills across three domains of the conceptual, practical and social. A person’s lower intellectual functioning leads to reduced adaptive functioning.40 A life span perspective41 sees development and learning as lifelong and is extremely relevant to challenging negative perceptions that adults with intellectual disabilities are incapable of continued learning.
Bornman states that ‘a silent victim is the best victim’, highlighting the particular vulnerability to abuse of people with communication difficulties.42 Yet, even with functional communication, children and adults with intellectual disabilities are effectively silenced by withholding information about appropriate and inappropriate sexual behaviour and training them to be compliant. Children with intellectual disabilities are estimated three to eight times more likely to be abused than non-disabled children43 and adults, particularly women44 with intellectual disabilities, remain at increased risk of sexual violence and abuse.45 A lack of sexuality education results in low levels of knowledge about sexual behaviour and is a factor that increases vulnerability to sexual violence,46 increasing the risk of sexually-transmitted infections (STIs), including HIV,47 as well as mental health problems more common in people with intellectual disabilities.48 Furthermore, people with intellectual disabilities have a poor understanding of their rights and the law, further increasing their vulnerability.
For many young people, friends are a source of sexual information, especially if parents are resistant to providing information, but young people with intellectual disabilities will struggle to ‘share information and knowledge with one another’.49 Additionally, people with intellectual disabilities are more likely to have low self-efficacy in relation to sexual decision making and negotiating skills in relation to condoms,50 as they often lack social and educational opportunities to build skills related to setting boundaries or understanding their basic rights to consent.
South Africa continues to be one of the most highly HIV-affected countries in the world.51 Yet, people with disabilities are less informed about HIV, and have less access to testing and treatment despite their increased risk.52 Learners with intellectual disabilities show low levels of HIV knowledge,53 reflecting a lack of accessible HIV education, the inability to access written information about HIV and the likelihood that television or radio information aimed at the general population is too complex for them to comprehend.
A rights-based framework, underpinned by international conventions and their respective monitoring bodies, offers a powerful tool to engage professionals, community leaders, parents and wider communities, as well as people with intellectual disabilities themselves, with the right to comprehensive sexuality education. These instruments provide an opportunity to legitimise and, thus, to challenge attitudinal barriers toward providing sexuality education for children and adults with intellectual disabilities, to shape policy, as well as examine the predominant discourse within any sexuality education programme. African-based human rights ‘instruments’ offer an additional tool to support the right to comprehensive sexuality education in an African context.
Perlin and Lynch54 argue that the CRPD has the potential to challenge longstanding discrimination in the area of sexuality and people with intellectual disabilities. Rights concerning sexuality cannot be separated from other ‘equal inalienable rights’55 and the need for these to be enjoyed ‘without discrimination’.56 The UN Committee on Economic, Social and Cultural Rights (ESCR Committee)57 acknowledges that people with disabilities may experience legal, practical and social barriers in accessing sexual health, and affirms that all individuals or groups have the right to enjoy the same range and standard of sexual health services and information as others. Article 23(1) of the CRPD, ‘Respect for Home and Family’, calls for the elimination of discrimination ‘relating to marriage, family, parenthood and relationships’.58 Rule 9 of The Standard Rules on the Equalisation of Opportunities for Persons with Disabilities,59 which predated the CRPD, took a more overt tone by stating that persons with disabilities ‘must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood’.60 Schaaf61 documents the difficult process of negotiating sexuality within the CRPD, illustrating the tension between a conservative versus a sexual rights-based discourse and the resulting dominance of heteronormative values through the positioning of sexuality within the conservative framework of marriage, the family and health.62 The Convention on the Rights of The Child (CRC)63 prioritises non-discrimination and emphasises the fact that these rights apply to all children, no matter their abilities or circumstances. Article 23 addresses the rights of children with disabilities to special support to live full and independent lives. The equality of children with disabilities with other children is also supported by article 7(1) of the CRPD.
The right to education is fundamental to conventions such as the CRC,64 CRPD,65 and deserving of the ongoing scrutiny by treaty-monitoring bodies, such as the UN Committee on the Elimination of Discrimination Against Women (CEDAW Committee) and ESCR Committee. Article 17 of the CRC states that all children have the right to information important to their wellbeing, and article 28 enshrines the right of all children to free primary education. Article 24 of the CRPD affirms the rights of children and adults with disabilities to equal education, including reasonable accommodation to facilitate their learning needs. The recognition of life-long learning without discrimination66 is relevant to adults with intellectual disabilities who remain capable of continued learning and development once they have left school.67 The right to inclusive education68 is seen as integral to ending the discrimination experienced by people with disabilities.69
Comprehensive sexuality education forms part of the right to education70 and underpins other human rights, such as the right to health, information, non-discrimination, freedom from violence, and sexual reproductive autonomy for all.71 The UN CRC Committee argues that adolescents have the right to adequate information regarding their health, which includes information on sexual behaviour.72 Article 10 of CEDAW urges states to provide women with equal educational opportunities, including information on family planning. The CEDAW Committee further identifies the rights of girls and boys to age-appropriate and comprehensive sexuality education as part of the primary and secondary school curriculum.73 The ESCR Committee cites the right to sexual and reproductive health combined with the right to education, and affirm a right to sexuality education that is ‘comprehensive, non-discriminatory, evidence-based and age-appropriate’.74 The ESCR Committee states that information must be accessible to the needs of the individual and includes disability as a factor that must be taken into consideration.75 The Centre for Reproductive Rights argues that comprehensive sexuality education forms part of inclusive education for people with disabilities, and argues that this position is supported by the Special Rapporteur on the Right to Education and enshrined by article 24(1) of the CRPD. This indicates that comprehensive sexuality education for persons with disabilities should occur from a young age, alongside reasonable accommodation and appropriate teacher training.76
With regard to the increased risk of abuse experienced by people with disabilities, and especially women and children with disabilities, article 16 of the CRPD, ‘Freedom from Exploitation, Violence and Abuse’, recognises the need for information and education on how to avoid and report instances of exploitation and abuse.
The right to health is indispensible to other human rights and, according to article 12(b) of the ESCR Committee77 which asserts that health services may not discriminate against people with disabilities. The ESCR Committee in General Comment 22 argues that sexual health is intrinsic to the right to health.78 Article 25 of the CRPD states that people with disabilities should have equal access to health services and programmes, including on sexual and reproductive health. This is further supported by the CEDAW Committee in that states may not ‘censor or withhold sexual and reproductive health information’, and that everyone has the right to ‘comprehensive, unbiased and scientifically accurate sexuality education’.79
The ESCR Committee distinguishes between sexual health as defined by WHO (described above) and reproductive health which ‘concerns the capability to reproduce and the freedom to make informed, free and responsible decisions’.80 Article 23 of the CRPD recognises ‘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’. This is of crucial relevance to sexual decision making and sexual health interventions. Women and girls (as well as men and boys)81 with intellectual disabilities are frequently the recipients of medicalised sexual health interventions, often with little explanation or process of informed consent.82 The higher rates of forced sterilisations and abortions experienced by women with disabilities remain in violation of their human rights.83 Article 25 of the CRPD requires health professionals to provide equal treatment on ‘the basis of free and informed consent’,84 and this is further emphasised by the CEDAW Committee in the need to train health workers to improve support for women with disabilities concerning their reproductive health decisions.85 Again, accessible and comprehensive sexuality education is integral to any possibility of autonomy in this area. Additionally, article 12 of the CRPD addresses equal recognition under the law and equal capacity. People with intellectual disabilities are often poorly informed of their rights regarding all aspects of their lives.
The right to sexual and reproductive health is addressed by the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol).86 The Women’s Protocol articulates the rights of African women and girls, such as the right to dignity (article 3); the right to life, integrity and security of the person (article 4); and the right to equality before the law (article 8). Article 14 addresses ‘the right to self-protection and to be protected’87 regarding STIs, including HIV, and recognises the need for states to provide accessible health services and information. Article 23 recognises the need to ensure the protection of women with disabilities, and ensure their freedom from violence, discrimination and sexual abuse.88 However, Murungi and Durojaye observe that the Protocol fails to support a more positive discourse of sexuality, particularly for women with disabilities.89 This is addressed in part by General Comments on article 14 of the African Women’s Protocol,90 where the African Commission emphasises that states must guarantee information and education on sex, sexuality, HIV, sexual and reproductive rights. The content must be evidence based, facts based, rights based, non-judgmental and understandable in content and language.91
The African Charter on the Rights and Welfare of the Child (African Children’s Charter)92 specifies the right of children with physical or mental disabilities to protection and measures to ensure dignity, self-reliance and active participation in the community.93 Additional support is provided by the Ministerial Commitment on Comprehensive Sexuality Education and Sexual and Reproductive Health Services for Adolescents and Young People in Eastern and Southern Africa 2013.94 These instruments are important in challenging views that comprehensive sexuality education is contrary to African cultural values.
The South African Constitution95 is the overarching legal instrument that infers support for the right to inclusive and comprehensive sexuality education for persons with disabilities, including those with intellectual disabilities, through the following rights: The state may not unfairly discriminate against anyone on the grounds of disability (article 9(3)); every child has the right to be protected against abuse (article 28(d)); everyone has the right to a basic education including adult education (article 29(a); and everyone has the right to bodily and psychological integrity, which includes the right to make decisions about reproduction and to have control over their body (articles 12(2)(a) and (b)).
The National Health Care Act96 states that all health users have the right to accessible information and to participate in health decisions even without the capacity to consent.97 Additionally, the Children’s Act98 states that all children have the right to access information on health promotion and prevention and treatment of ill-health and disease, sexuality and reproduction, and to be given information in an accessible way that considers their age, literacy and any special needs.99
The White Paper on the Rights of Persons with Disabilities (WPRPD), approved in 2015, further strengthens South Africa’s commitment to the CRPD. Of particular relevance is the importance of life-long education and training;100 the vulnerability of women and girls to sexual violence;101 and the need for persons with disabilities to access all HIV education programmes, and that these must include ‘family planning, sexuality/sex education programmes’ through services that are accessible and disability specific.102 However, the influence of the WPRPD is somewhat undermined by the opening disclaimer that it does ‘not introduce a policy shift, nor does it replace any sector specific policies on disability’.103
The high rate of sexual abuse in South Africa leads to heightened awareness of the need to protect children and adults with intellectual disabilities in recognition of their increased vulnerability.104 The Sexual Offences Amendment Act105 acknowledges CEDAW, CRC and the Constitution as underpinning its objective to protect vulnerable people.106 However, sections 15 and 16, which define the statutory rape and statutory sexual assault of children, were challenged as unconstitutional in criminalising normative developmental and consensual sexual acts between children, and seen to ‘infringe on children’s constitutional rights to dignity, privacy and bodily and psychological integrity’.107
Adults with intellectual disabilities are protected from unconsensual sexual acts, such as sexual exploitation, sexual grooming and exposure to pornography.108 The mandate for protection is further emphasised by stating that someone with a ‘mental disability’ is incapable of consenting to a sexual act.109 In this context, the term ‘mental disability’ is not defined as a diagnosis, or a particular level of intellectual disability, but as the person’s inability to consent to sexual behaviour at the time when the offence is committed.110 This dynamic is easily overlooked and encourages caregivers or parents to react to all sexual acts as abusive without examination. It could be argued that the misinterpretation of ‘mental disability’ in relation to the capacity to consent infringes the constitutional rights of adults with intellectual disabilities. The possibility of misinterpreting all consensual sexual acts as abusive is heightened in the context of the duty to report111 sexual offences against people with ‘mental disability’ and the fear of committing an imprisonable offence if any suspicion of abuse goes unreported. The misperception that people with intellectual disabilities are unable to consent to sexual behaviour may compound the fear that sexuality education that addresses sexual behaviour is unnecessary or even against the law. Current thinking around the capacity to consent as a dynamic construct112 that varies from individual to individual in each circumstance needs to be addressed in the training of legal, health and education professionals, alongside the provision of comprehensive sexuality education for people with intellectual disabilities to address the topics needed to facilitate any possibility of capacity.113
In Southern Africa, the need for comprehensive sexuality education is unequivocal in the face of the continuing high rates of HIV, endemic sexual abuse,114 teenage pregnancy and sexual violence.115 This need is no different for people with intellectual disabilities, who remain disadvantaged by negative attitudes toward their sexuality and a lack of accessible information. Educators commonly feel inhibited by ‘social norms’ that prevent them from providing information about sexual behaviour.116 Yet, these barriers are significantly increased in relation to children and adults with intellectual disabilities due to negative beliefs about their sexuality
Negative beliefs concerning the sexuality of people with intellectual disabilities are pervasive worldwide.117 The myth of asexuality ‘strengthens the belief that people with intellectual disability should not be exposed to sexuality education’.118 The myth of hypersexuality strengthens the fear that teaching about sexuality will increase indiscriminate sexual behaviour.119 This, combined with the belief that young persons with intellectual disabilities are incapable of reciprocal relationships,120 alongside low expectations about their ability to understand the topic, means that educators, parents and caregivers feel uncertain about providing sexuality education to children or adults with intellectual disabilities,121 and are concerned about how much information is appropriate. Some parents may also avoid the topic for fear of giving their child expectations in the area of relationships that they assume are not possible.122
Although the need for protection is unequivocal, this may take the form of limiting opportunities for socialising and relationships, further reducing normative opportunities for social learning and decreasing the person’s self-protection skills. Misconceptions concerning the ability to consent, as discussed above, may strengthen resistance to providing information about sexual behaviour.
People with intellectual disabilities may internalise these negative attitudes about their sexuality.123 The denial of sexuality as an acceptable part of the self may result in low sexual self-esteem, and exacerbate challenging behaviour, depression, inappropriate sexual attraction, inappropriate sexual behaviour or secretive sexual experiences.124 There is no evidence to support fears that teaching about sexuality increases sexual behaviour in mainstream youth125 or in youth with intellectual disabilities; rather, evidence points to sexuality education improving positive decision-making skills in people with intellectual disabilities related to sexual behaviour.126
Another common area of resistance is in acknowledging and, thus, including respectful information about same-sex relationships in sexuality education.The Constitution states that no one should be discriminated against on the basis of their sexual orientation.127 However, for many educators this issue remains uncomfortable and, therefore, is most likely avoided. A study on identifying effective sexuality education methods,128 based in developed countries, suggested low levels of knowledge and negative attitudes about same-sex relationships contributes to the isolation experienced by homosexual individuals.129 In the South African context, negative attitudes may contribute to the low visibility of homosexual individuals with intellectual disabilities.
School-based programmes are an important platform to deliver sexuality and HIV education to learners,130 yet messages associated with sexuality education tend to be ‘negative and based in fear’.131 The new draft Department of Education policy on HIV, sexually-transmitted infections and tuberculosis presents a disease-focused intervention.132 This draft policy commits access to male and female condoms as well as information on their use to all learners in the basic education sector.133 The draft policy also commits to increased educator training and support in the teaching of sexual and reproductive health education.134 In the authors’ experience of training educators, it is disturbing how many educators lack basic information about the sexual reproductive system and sexual development. Lack of information and mistaken beliefs prevent them from imparting accurate information or having the confidence to even begin a discussion with learners.
A recent South African study based in special schools found that educators were supportive about the need to provide sexuality education, but tended to focus on information related to personal hygiene, body development, self-respect, abstinence and the need to use condoms, but avoided topics such as sexual behaviour, contraception, sexual orientation and how to use condoms.135 Information about sexual behaviour is most likely to be provided reactively in response to problems rather than as a tool to prevent problems.136 Educators who are supportive of sexuality education may lack the confidence, skills or resources to present the information in an accessible format,137 especially because the concepts are so abstract.138 In identifying reasons to provide sexuality education, educators139 first prioritise protection against sexual abuse and sexually-transmitted infections and, second, sexually-appropriate behaviour, such as what is public and private. These priorities reflect real concerns about the sexual risk in South Africa, as well as the real stigma associated with sexually-inappropriate behaviour. However, a supportive framework140 that acknowledges pleasurable sexual experiences, alone and with others, is much less likely to be communicated, if at all.141 Additionally, there may be disagreement among staff about providing sexuality education to learners142 or beliefs that parents will disapprove, especially considering the taboo in many South African cultures associated with talking about sexuality.143
Sexuality and HIV education is a compulsory part of the national curriculum144 for all learners, regardless of their ability. Yet, an adapted curriculum for learners with intellectual disabilities attending LSEN schools or ordinary schools to date is lacking.145 A draft skills and vocational curriculum statement for Grade R to Grade 9, to include learners with intellectual disabilities, is currently in process and is expected to be released to schools in 2017/2018.146 In residential and work settings for adults, participation in sexuality education is dependent on the individual outlook and policy of each centre, leading to different approaches to or the total absence of programmes.
A more positive attitude toward sexuality education by educators is difficult, if not impossible, to maintain without a whole school approach.There is an urgent need for increased leadership from principals and the education department to prioritise and formalise sexuality education for learners with intellectual disabilities with regard to their rights expressed in the CRPD, South African law and not least due to the unacceptable levels of sexual abuse and HIV risk in South Africa.
Although sexuality education programmes for people with intellectual disabilities have been available in Europe and America since the 1990s,147 in South Africa there are few available resources or programmes. Those available, and in use, reflect the commitment of individuals within small-scale organisations, often non-governmental organisations (NGOs), who have identified the need for this work in a ‘bottom-up’ approach rather than directed from above by national policy.148
In advocating for the rights of people with intellectual disabilities, the Western Cape Forum for Intellectual Disability (WCFID) has developed sexuality and education programmes and resources. ‘All About Me’ is a group-based programme facilitated by educators and aimed at learners with intellectual disabilities from the foundation to senior phase.149 This programme will be discussed in the context of a rights-based framework, identifying core components of effective sexuality education and accommodations for people with intellectual disabilities.
Treaty-monitoring bodies urge that sexuality education be introduced as part of the primary phase, to continue throughout secondary education.150 The need for sexuality education to reach children before puberty and before sexual debut151 is recommended to improve their sexual health outcomes.152 Children with intellectual disabilities have an equal right to accurate and age-appropriate information in preparation for puberty and the social and emotional changes of adolescence.153 Additionally, their increased difficulty to learn through observation and to generalise and internalise information means that comprehensive sexuality education is conditional to achieving their basic rights. The All About Me programme is organised into nine modules, designed to be repeated, and extended in response to the age and learning needs of participants: modules 1-5 foundation phase; modules 1-6 intermediate phase; modules 1-8 senior phase; and modules 1-9 upper senior phase and beyond.
The tension between a rights and risk discourse in relation to the sexuality education of people with intellectual disabilities is well recognised.154 The increased risk of sexual abuse, combined with conceptualising the sexuality of people with intellectual disabilities as problematic, skews content toward fear based and restrictive messages. This may have unintended consequences, as discussed above, such as reinforcing secretive sexual behaviour or maintaining low sexual self-esteem.
The need to balance messages is achieved in the All About Me programme through using social stories, pictures and activities that balance and, thus, integrates a rights and risk perspective.155 Positive relationship experiences in relation to family and friends or sexual relationships can be interrogated in the context of equality, consent, autonomy and respect, alongside related feelings of joy and wellbeing. The possibility of harmful relationship experiences engendering hurt, anxiety, fear, anger and sadness can more easily be understood in relation to that which is positive.
The programme provides matter-of-fact and age-appropriate information about sexual development, sexual body functions and reproduction that normalise sexual development. Learners need to discriminate between public and private places, body parts and behaviour. Ignorance about these matters increases the likelihood of making sexual mistakes, such as masturbation in public, and so perpetuates stigma and discrimination against people with intellectual disabilities. The tendency to treat adults with intellectual disabilities like children is a form of discrimination that impacts self-concept, behaviour and wellbeing. The ‘right to grow up and be treated with the respect and dignity accorded to adults’156 means that sexual development, sexual feelings and safer sexual behaviour must be acknowledged and taught in a way that is accessible and affirming.
The values in the All About Me programme reflect the ‘core universal values of human rights’ identified by the UNFPA as an essential component of comprehensive sexuality education.157 The UNFPA argues that ‘even younger learners can grasp concepts of fairness, respect, equal treatment, protection of bodily integrity and freedom from stigma and violence’.158 This assertion is equally relevant to learners and adults with intellectual disabilities if their learning needs can be accommodated.
There is limited research identifying evidence-based practice and efficacy of methods for this population group.159 Studies are limited by small sample sizes, a lack of detail concerning goals and methods as well as the difficulty of evaluating behavioural outcomes due to the private nature of sexuality.160 Schaafsma et al begin to address the knowledge gap concerning sexuality education and people with intellectual disabilities, and identify three components of an effective programme: information and instruction; modelling and rehearsing; and testing and generalising skills.161
The All About Me programme uses participatory group-based activities and specially-developed visual resources. These support the more concrete learning needs of people with intellectual disabilities162 and methods that do not rely on reading, writing skills or verbal skills.163
Placing pictures into categories, that is, showing consensual and non-consensual touch,164 or different kinds of relationships,165 allows learners to indicate their understanding even without expressive verbal communication.
Large body outlines allow learners to draw the private body parts166 or, for those who struggle with fine motor control, to stick on cut-out body parts. Fake bodily fluids made from tea, water, tomato sauce, water-based lubricant and shampoo provide concrete information about sexual bodily functions and how bodily fluids transmit STIs.167 A penis made from clay illustrates ejaculation and demonstrates how condoms act as a barrier to prevent the transmission of bodily fluids.168 Visual resources and interactive methods enable information and instruction to be accessible and memorable and are particularly relevant, as children and adults with intellectual disabilities often have difficulties with short-term memory.169
The UNFPA identifies participatory methods as a core component of effective sexuality education in developing ‘communication, negotiation and decision-making skills’.170 The UNESCO report on sexuality education in Southern Africa asserts that participatory teaching methods are a significant skills gap for teachers that need to be addressed in the delivery of comprehensive sexuality education.171 Participatory methods in the All About Me programme provide an opportunity for modelling and rehearsing social skills, engendering a new and shared understanding of appropriate sexual behaviour and sexual rights. Games, social stories and role play can be repeated to assess and improve learners’ understanding and to offer significant opportunities for social learning, especially considering the reduced opportunities for social learning experienced by many people with intellectual disabilities. Methodology developed for learners with intellectual disabilities is relevant to an inclusive setting and the need for participatory methods that meet different learning needs.172
The ability to generalise behaviour relies on social reasoning or the ability to learn rules and apply them repeatedly in different contexts.173 The skill of generalising is difficult for people with intellectual disabilities. Topics taught in sexuality education need to be reinforced in other contexts, such as the home, emphasising the importance of parental involvement. This aspect, namely, what happens outside of the programme, is the most difficult to evaluate. Interviewing participants may not reveal accurate information because of the participant wanting to provide socially-desirable answers,174 or having difficulties with understanding questions or expressing themselves.
One component of effective comprehensive sexuality education is strengthening youth advocacy, and some research shows the benefit of peer-led education programmes.175 The involvement of youth in programmes facilitates personal agency, empowerment and leadership. Negative perceptions about the learning capabilities of learners with intellectual disabilities, especially in relation to sexuality education, forecloses their ability to disseminate this information. However, this perception is currently being challenged by a peer educator-led sexuality education programme in an LSEN school for learners with intellectual disabilities using the All About Me curriculum and programme.176
The silence surrounding the sexuality of persons with intellectual disabilities has the result that most educators, caregivers, parents and health professionals struggle to engage with the topic,177 whilst having few, if any, opportunities to re-examine their beliefs. A rights-based framework used in policy development, training and awareness campaigns can support engagement with the need for comprehensive sexuality education and an opportunity to re-examine the way in which negative beliefs impact the life experiences of persons with intellectual disabilities.
The importance of equal access to information and the right to informed consent is integral to international human rights conventions and South African law. These principles present an argument in favour of sexuality education as a human right. The denial of this right could be viewed as simultaneously negligent and directly harmful, especially in the context of South Africa, where the rate of sexual abuse and HIV infection is soaring. The denial of sexuality education is well researched as a factor increasing sexual risk and the vulnerability of people with intellectual disabilities. The lack of comprehensive sexuality education denies persons with intellectual disabilities their constitutional and legal rights, as the denial of accessible information prevents any possibility of informed consent or self-protection.178
For many learners and adults with intellectual disabilities, relationships are forbidden and information about sexuality and sexual behaviour remains taboo. Perceptions that people with intellectual disabilities cannot consent and, therefore, do not need sexuality education may be further entrenched by the Sexual Offences Amendment Act.179 There is an urgent need to understand how the definition of mental disability in this Act impacts the sexual experiences of people with intellectual disabilities.
There is also a need for more evidence-based research into which kind of sexuality education is effective for people with intellectual disabilities to guide the development of curriculum, methods and resources.180 The growing research in this area worldwide and in Southern Africa reflects an increasing engagement with the sexual rights of people with intellectual disabilities. Advocates of sexuality education programmes believe that it is possible to teach the abstract and sensitive concepts needed in sexuality education through participatory-based methods. Concurrent to this belief is the fact that learners and adults with intellectual disabilities are capable of life-long learning and development if their learning needs are appropriately accommodated.
Presently, sexuality education for people with intellectual disabilities in South Africa is driven by a small number of NGOs, individual educators and health professionals who remain passionate about the rights of persons with intellectual disabilities. The Department of Education is required to address, with increased urgency, educator training, an appropriate curriculum, the methodology and visual resources appropriate to the learning needs of learners with intellectual disabilities. Methodology suitable for learners with intellectual disabilities is conducive to an inclusive approach and may benefit learners with a wide range of learning needs.
Attitudes that sexuality education causes indiscriminate sexual behaviour leads to denying support and information about sexuality. Avoidance increases the risk of secretive, ignorant or abusive sexual experiences alongside mental health problems so common in people with intellectual disabilities. In South Africa, the long journey to acknowledge the autonomy of people with intellectual disabilities and their rights to be sexual beings, whether in a relationship or not, remains in its early stages. The provision of comprehensive sexuality education is a step in the right direction.
4. NA Gougeon ‘Sexuality education for students with intellectual disabilities: A critical pedagogical approach; outing the ignored curriculum’ (2009) 9 Sex Education 277; G Katz & E Lazcano-Ponce ‘Sexuality in subjects with intellectual disability: An educational intervention proposal for parents and counsellors in developing countries (2008) 50 Salud publica de mexico 239; T Gardiner & E Braddon ‘A right to know. Facilitating a relationship and sexuality programme for adults with intellectual disabilities in Donegal’ (2009) 37 British Journal of Learning Disabilities 327; A Craft Practice issues in sexuality and learning disabilities (1994); JK Carter ‘Sexuality education for students with specific learning disabilities’ (1999) 34 Intervention in School and Clinic 220; L Lofgren-Martenson ‘I want to do it right! A pilot study of Swedish sex education and young people with intellectual disability’ (2012) 30 Sex and Disability 209.
5. T Aderemi ‘Teachers’ perspectives on sexuality and sexuality education of learners with intellectual disabilities in Nigeria’ (2014) 32 Sexuality and Disability 247; J Hanass-Hancock et al ‘The cross-cultural validation to measure the needs and practices of educators who teach sexuality education to learners with a disability in South Africa’ (2014) 32 Sex and Disability 279; P Rohelder & L Swartz ‘Providing sex education to persons with learning disabilities in the era of HIV/AIDS. Tensions between discourses of human rights and restriction’ (2009) 14 Journal of Health Psychology 601.
10. M Perlin & A Lynch ‘Love is a four-letter word: Sexuality, international human rights and therapeutic jurisprudence’ (2014) SSRN Electronic Journal 10 doi 10.2139/ssrn.2380714 (accessed 18 March 2016).
11. The Western Cape Forum for Intellectual Disability (WCFID) has published resources to support sexual health in children and adults with intellectual disabilities: R Johns ‘All about me: A life skills, sexuality and HIV/AIDS education programme for learners with intellectual disability’ (2007) WCFID; http:// www.wcfid.co.za (accessed 18 March 2016).
20. Mild intellectual disability is indicated by an IQ of between 50 and 69 and accounts for about 80 percent of people with intellectual disability. Moderate intellectual disability is indicated by an IQ of between 35 and 49 and accounts for about 10 percent of people with intellectual disability. Severe intellectual disability is indicated by an IQ of between 20 and 34 and accounts for 4 percent of all people with intellectual disability. Profound intellectual disability is indicated by an IQ score usually below 20 and accounts for 2 percent of all people with intellectual disability. See C Adnams ‘Assessment of levels of intellectual disability and adaptive behaviour’ in R Johns & C Adnams (eds) Understanding intellectual disability: A handbook for families, staff, students and professionals (2016) 14.
22. Submission to the Committee on the Rights of Persons with Disabilities from the Cambridge Intellectual and Developmental Disabilities Research Group’ (2011) http:// www.ciddrg.org.uk (accessed 18 March 2016); A Dimopoulos ‘The legal capacity of persons with disabilities in light of the United Nations Convention on the Rights of Persons with Disabilities’ Brunel University http:// www.era-comm.eu/UNCRPD/kiosk/speakers-contributions/111OV69/ Dimopoulos-pres-pdf (accessed 14 March 2016).
23. D Clarke ‘What is intellectual disability?’ in A Roy, M Roy & D Clarke The psychiatry of intellectual disability (2006) in NJ Wilson et al ‘Conditionally sexual: Men and teenage boys with moderate to profound intellectual disability’ (2011) 29 Sex and Disability 275.
27. L Lomofsky & M Skuy ‘Educational needs related to intellectual and cognitive difference’ in P Englebrecht & L Green (eds) Promoting learner development. Preventing and working with barriers to learning (2001) 192.
28. American Psychiatric Association (APA) ‘Intellectual disability fact sheet’ DSM V (2013) APA Publishing http://www.dsm5.org (accessed 17 March 2016).
34. https://www.westerncape.gov.za/directories/facilities/788 (accessed 14 March 2016).
35. Department of Education The new curriculum for learners with severe intellectual disability currently in process http:// www.gov.za/basic-education-development-vocational-learning-programme (accessed 14 March 2016).
39. Perlin & Lynch (n 10 above); C Capri & C Buckle ‘We have to be satisfied with the scraps: South African nurses' experiences of care on adult psychiatric intellectual disability in patient wards’ (2015) 28 Journal of Applied Research in Intellectual Disabilities 167.
46. ‘UN Thematic study on the issue of violence against women and girls and disability’ Report of the Office of the United Nations High Commissioner for Human Rights (2012) 7; Barger (n 44 above) 251.
47. P Chirawu et al ‘Protect or enable? Teachers’ beliefs and practices regarding provision of sexuality education to learners with disability in KwaZulu-Natal, South Africa’ (2014) 32 Sex and Disability 259.
48. D Shaafsma et al ‘Identifying effective methods for teaching sex education to individuals with intellectual disabilities: A systematic review’ (2014) Journal of Sex Research doi 10.1080/00224499.2014.919373.
53. T Aderemi et al ‘Differences in HIV knowledge and sexual practices of learners with intellectual disabilities and non-disabled learners in Nigeria’ (2013) 16 Journal of the International AIDS Society 1.
59. UN Standard Rules on the Equalisation of Opportunities for Person’s with Disabilities Rule 9; Family Life and Personal Integrity (1993) http:// www.un.org/esa/socdev/enable/dissre00.htm (accessed 18 June 2016).
63. UN Convention on the Rights of the Child (CRC) (1990) http:// www.ohchr.org/esa/socdev/enable/dissre00.htm (accessed 18 June 2016).
69. International Disability Alliance (IDA) and Centre for Reproductive Rights Comments to the Committee on the Rights of Persons with Disabilities on Draft General Comment 4, on the Right to Inclusive Education (art 24) 22 December 2015 http:// www.ohchr.org/documents/HRBodies/CRPD/GC../CentreReproductiveRights.doc (accessed 18 June 2016).
81. In the author’s experience of training educators and health professionals, anecdotal reports indicate that boys and men with intellectual disabilities in the Western Cape, South Africa are given the female contraceptive injection, Depo Provera, as anti-libidinal medication to manage what is perceived as ‘difficult’ sexual behaviour, such as public masturbation or inappropriate sexual behaviour towards others. This is despite the lack of standard guidelines or evidence-based research to support this approach.
83. Centre for Reproductive Rights (n 79 above) 22; Human Rights Watch ‘Sterilisation of women and girls with disabilities: A briefing paper’ (2011) https://www.hrw.org/news/2011/11/10/sterilization-women-and-girls-disabilities (accessed 18 June 2016).
86. Adopted in Maputo, Mozambique on 11 July 2003; entered into force on 25 November 2005; reprinted in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2016) 65.
89. LN Murungi & E Durojaye ‘The sexual and reproductive health rights of women with disabilities in Africa: Linkages between the CRPD and the African Women’s Protocol’ (2015) 3 African Disability Rights Yearbook 1.
104. TN Phasha & LD Myaka ‘Sexuality and sexual abuse involving teenagers with intellectual disability: Community conceptions in a rural village of KwaZulu-Natal South Africa’ (2014) 32 Sexuality and Disability 153.
114. BJ Dickman & AJ Roux ‘Complainants with learning disabilities in sexual abuse cases: A 10-year review of a psycho-legal project in Cape Town, South Africa’ (2005) 33 British Journal of Learning Disabilities 138.
122. C Kahonde ‘A grounded theory study of family caregivers responses to sexuality issues of young adults with intellectual disabilities’ unpublished PhD thesis, University of Cape Town Disability Studies Programme, Department of Health and Rehabilitation Sciences (2015).
123. E Healy et al ‘Sexuality and personal relationships for people with an intellectual disability. Part 1: Service user perspectives (1998) 53 Journal of Intellectual Disability Research 905; A Swango-Wilson ‘Caregiver perceptions and implications for sex education for individuals with intellectual and developmental disabilities’ (2008) 26 Sexuality and Disability 167.
130. Kirby et al (n 125 above); L de Reus et al ‘Challenges in providing HIV education to learners with disabilities in South Africa: The voice of educators’ in Sex education: Sexuality, society and learning (2015) doi: 10.1080/14681811.2015.1023283.
144. The Life Orientation curriculum covers the foundation, intermediate and senior phase and can be downloaded as Curriculum Assessment Policy Statements (CAPS). http:// www.kzneducation.gov.za (accessed 17 June 2016).
146. Basic education on development of vocational learning programme’ South African government http:// www.gov.za/basic-education-development-vocational-learning-programme (accessed 17 June 2016).
147. L Walker-Hirsch & MP Champagne ‘Circles, level 2: Intimacy and relationships’ (2005); A Craft Living your life (1991); L Scott & L Kerr-Edwards ‘Talking together about growing up: A workbook for parents of children with learning disabilities (1999); M McCarthy & D Thompson Sex and the 3R’s (2007).
148. See Cape Mental Health Sexuality Awareness Training Programme, http:// www.capementalhealth.co.za/sexuality.html (accessed 18 June 2016). See R Johns et al Breaking the silence and closing the gap: Accomodating young people with disabilities in sexuality education (2014).
154. Rohelder & Swartz (n 5 above). R Johns ‘Rights versus risk: Balancing perspectives in a sexuality programme for learners with moderate intellectual disabilities’ unpublished MEd thesis, University of the Western Cape, 2004.
162. L Lomofsky& M Skuy ‘Educational needs related to intellectual and cognitive difference’ in P Engelbrecht & L Green ‘Promoting learner development: Preventing and working with barriers to learning (2001) 188.
- Paul Chappell
- Postdoctoral Research Fellow, Centre for Social Development in Africa (CSDA), University of Johannesburg.
- BSc (UCN), MSc (UCL), PhD (UKZN)
- (2016) 4 ADRY 124-140
- Download article in PDF
The subject of sexual rights and disability is a largely underdeveloped sphere in relation to African rights discourse. This subject becomes even more contested and unacceptable when discussing access in relation to sexual expression or relationships amongst adolescents with disabilities. Most commonly, adolescents with disabilities are often denied their sexual autonomy and are generally depicted as being non-sexual and incapable of sexual agency. In view of this, while adolescents with disabilities continue to gain recognition as citizens with the same equal opportunities as their non-disabled peers, they have not as yet truly emerged as sexual citizens within the African context.
This article aims to (re)position discourses of sexual access in relation to adolescents with disabilities in South Africa. In particular, the article outlines the importance of supporting and nurturing the sexual autonomy of adolescents with disabilities. The article also outlines the way in which international rights conventions and national legislation may impact sexual encounters amongst adolescents with disabilities and what this means for significant adults working with adolescents with disabilities.
Since the country’s first democratic elections in 1994 and the ending of apartheid, South Africa has introduced several advancements in terms of its socio-political context, Constitution and legislation. One of the most significant advancements has been the promotion of basic human rights, which has had a particular bearing on young people with disabilities who, for the first time, were recognised as having a substantive role in the country’s new Constitution.1 In this context, South Africa is recognised as having some of the most comprehensive legislation and policies in the world that protect and promote the rights of all people with disabilities.2
At the basis of this rights legislation is the discourse of accessibility. For instance, in accordance with the basic principles of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), accessibility is recognised as a crucial component in the realisation of disability rights, and enabling people with disabilities to ‘participate fully in all aspects of life ... on an equal basis with others’.3 Moreover, the discourse of accessibility is often used by the disability movement as a gauge in which to measure the lived experiences of people with disabilities within an ableist world.
In terms of children and adolescents with disabilities, much attention has been given to their rights of access in relation to inclusive education4 and to ending their discrimination and oppression in South Africa.5 Likewise, increasing attention has been given to children and adolescents with disabilities in relation to accessing HIV and AIDS services6 and the judicial system following sexual abuse.7 Despite this, very little attention has been given to access in relation to sexual expression and relationships. This becomes evident from the apparent invisibility in the CRPD of adolescents with disabilities, and the growing number of youth sexuality studies in South Africa.8 In view of this, while adolescents with disabilities continue to gain recognition as citizens with the same equal rights and opportunities as their non-disabled peers, they have not as yet truly emerged as autonomous sexual citizens.
In accordance with the World Health Organisation (WHO) and United Nations Population Fund (UNFPA), adolescence is defined as being between the ages of 10 and 19 years.9 This critical period is marked as a time of great physical and psycho-social change as individuals transition from childhood to adulthood. Regardless of this age range, the article will focus on adolescents between the ages of 12 and 19 years. The reason for focusing on adolescents over 12 years of age is guided by national legislation, mainly the Children’s Act 38 of 2005. Although the Act does not directly discuss sexuality, it does allude to sexual access and the ability of adolescents over the age of 12 years to consent to HIV testing10 and to access condoms and other contraceptives11 without the consent of parents or caregivers. Notwithstanding legislation, another reason for concentrating on this age group is because of the high levels of reported sexual risk-taking amongst this age group.12 In addition, recent data on sexuality and HIV prevalence demonstrates that AIDS-related deaths have tripled since 2000 and that AIDS is now the leading cause of death among adolescents in Africa.13 The United Nations Children’s Fund (UNICEF) also reports that over 70 per cent of adolescents aged 12 to 19 years in sub-Saharan Africa lack comprehensive knowledge about HIV or their sexual and reproductive rights.14
Against this background, the article aims at critically exploring constructions of disabled sexualities and rights discourse in relation to sexual access and adolescents with disabilities in the South African context. In particular, the article outlines the importance of supporting and nurturing the sexual expression of adolescents with disabilities. The article also outlines how international rights conventions and national legislation may impact sexual expression and encounters among adolescents with disabilities, and what this means for parents and other adults working with adolescents with disabilities. By addressing the issue of sexual access for adolescents with disabilities, the article ultimately aims to politicise what has, until now, remained an invisible and, at times, controversial topic.
After defining the concepts of disability, sexuality and sexual access, the article proceeds to explore commonly-held constructs of disabled sexualities and the invisibility of sexuality within the rhetoric of the disability rights movement in South Africa. The article then critically explores how sexuality and disability have been addressed in international rights conventions and declarations, including the CRPD, and their links to national sexuality legislation. Following this, the article discusses the way in which these social and legislative constructs impact sexual access for adolescents with disabilities. Drawing from national legislation and international rights conventions and treaties that include issues of sexuality, the article then attempts to (re)position sexual access for adolescents with disabilities in South Africa, and concludes with recommendations for future practice and research.
The construct of disability in South Africa has been the subject of much historical debate, ranging from a biomedical discourse to that of a social and human rights perspective.15 For purposes of the article, disability is situated as a social construct and draws upon the CRPD, which defines disability as
an evolving concept that results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full participation in society on an equal basis with others.16
For purposes of the article, the focus will be on adolescents with sensory, physical, communication, and mild to moderate intellectual or psycho-social disabilities.17
In terms of sexuality, it is also recognised as being more than just a biological or psychological construct, and includes other significant factors such as gender, identity, desirability, love and forming meaningful relationships. In view of this, the article adopts the World Health Organisation (WHO) definition, which describes sexuality as
a central aspect of human life and encompasses sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and reproduction. Sexuality is experienced and expressed in thoughts, fantasies, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships. Sexuality is influenced by the interaction of biological, psychological, social, economic, political, cultural, ethical, legal, historical, religious and spiritual factors.18
In acknowledgment of the WHO definition of sexuality, it is clear that when defining sexual access, it goes beyond merely sexual intercourse, and includes ‘access to the psychological, social and cultural contexts and
supports that acknowledge, nurture and promote sexuality in general’.19 Therefore, the article draws upon the work of Kangaude, who categorises sexual access within two principle domains. According to Kangaude,20 the first domain of sexual access acknowledges the importance of supporting and nurturing sexual expression, and covers issues such as comprehensive sexuality education and sexual autonomy. The second domain focuses upon opportunities for sexual encounters. In relation to disability, opportunities for sexual encounters stir up controversies and emotive discussions around such issues as facilitated sex, sexual surrogacy, and the use of sex workers.21 Although discussions surrounding access to sexual surrogates and sex workers are an important issue, they go beyond the scope of this article. Likewise, in discussing sexual encounters, the article does not promote sexual activity amongst adolescents with disabilities who lack sexual maturity.
Before discussing rights legislation in terms of adolescents with disabilities and sexuality, it is important to provide a critical overview of how disabled sexualities have emerged in social discourse. As put forward by Shildrick,22 social constructs of disabled sexuality and rights policies are ‘mutually constitutive’ in shaping each other and an individual’s perception of their own sexual identity and practice.
The discourse on disabled sexualities has been subjected to similar a historical and apolitical disregard as that on African sexualities. For instance, popular notions about disabled sexuality have usually focused around biomedical discourses that construct people with disabilities in terms of ‘deviance, lack and tragedy’, and as victims of impairment.23 As a result, ableist communities have made stereotypically incorrect assumptions about the sexualities of people with disabilities, their desirability, and their abilities to exercise agency in negotiating intimate relationships. When these assumptions intersect with other oppressions, such as the severity of the impairment, gender, age, sexual orientation, race and socio-economic status, it further complicates the discourse on disabled sexualities and how it is captured within rights legislation.24
In most societies, prominent socio-medical discourses construct people with physical or sensory impairments as incapable of experiencing sex or intimate relationships. As portrayed by Morris, those with physical impairments are deemed ‘non-sexual, or at best sexually inadequate; that they cannot ovulate, menstruate, conceive or give birth, have orgasms, erections, ejaculations or impregnate’.25 This notion of being non-sexual is clearly emphasised in a study conducted amongst boys with physical impairments in Lesotho.26 The boys reported that their non-disabled peers would often tease them, believing them to be incapable of having the same sexual fantasies or feelings. In essence, the boys were rejected because of their perceived incapability of performing normative constructs of sexuality and masculinity due to their physical impairments.
Besides being deemed non-sexual, those with psycho-social or intellectual impairments are often ‘infantilised’27 and depicted as lacking the capacity to engage in responsible sexual relationships. On the other hand, commonly-held public perceptions view those with psycho-social and intellectual impairments as over-sexed with limited social judgment to control their sexual desires.28
Notwithstanding these differences in sexual abilities, the article contends that these hegemonic discourses of disabled sexuality are largely formulated through the discourse of heteronormativity. Understood in this context, it is widely accepted that heteronormativity is responsible for governing and regulating our gender roles, our sexual behaviour and, to a large extent, sexuality rights legislation.29 In doing so, heteronormativity privileges narrow constructs of phallocentric (mainly that of penile-vaginal) sexuality and notions of compulsory able-bodiedness that uphold beliefs of health and fertility as normal sexuality.30 As a result, those who do not embody these dominant socio-sexual norms are often marginalised and relegated as non-normative or even perverse. Quintessentially, heteronormative constructs of sexuality and desirability ultimately question the suitability of all people with disabilities as sexual partners.31
The medicalised and apolitical focus on disabled sexuality has drawn attention away from the rights of sexual access of people with disabilities, and fails to recognise the experiences of multiple barriers to sexual expression and relationships.32 What is more, this apolitical approach to sexuality has been inadvertently reinforced by the disability rights movement, both in South Africa and globally. For instance, although the disability rights movement in South Africa has played an influential role in terms of addressing the exclusion of people with disabilities from public issues, such as education, employment and poverty reduction strategies, the private lives of people with disabilities, that is, sexuality and identity, are not seen as equally worthy of concern.33 This is evident in the South African country progress report to the UN General Assembly on the implementation of the CRPD.34 For instance, the report highlights varying changes in terms of physical and social disability indicators, but does not include anything about sexual access. By failing to engage with sexual access as a rights-based issue, the disability rights movement in South Africa perpetuates the marginalisation of disabled sexualities. Finger, a disabled feminist activist, poignantly sums this up by suggesting:
The disability rights movement has certainly not put sexual rights at the forefront of its agenda. Sexuality is often the source of our deepest oppression; it is also often the source of our deepest pain. It’s easier for us to talk about -and formulate strategies for changing - discrimination in employment, education, and housing than to talk about our exclusion from sexuality and reproduction.35
The continual absence of sexuality on the disability rights agenda impelled disabled feminists and disability scholars to call for the politicisation of sexuality within the disability rights movement, particularly in the Western world.36 In so doing, they aimed to draw attention to the notion that the sexual socialisation of people with disabilities did not exclusively revolve around pathologised bodies, but also the structures within social communities. As portrayed by Shakespeare:
The solution is not more prosthetics, or more Viagra, or any other physical or clinical intervention ... The barriers to the sexual expression of disabled people are primarily to do with the society in which we live, not the bodies with which we are endowed with.37
The politicisation of disabled sexualities as a rights-based issue is still in its infancy in the context of Africa and the global south. Moreover, much of African disability scholarship on sexuality is primarily focused upon the rights to protection from sexual exploitation and abuse. This protection discourse may be largely influenced by the reported high incidence of sexual abuse among people with disabilities,38 but also international rights treaties.
Before discussing the way in which international rights conventions39 address disabled sexualities, it is important to give some background on how the discourse of sexuality has emerged within international conventions and treaties. According to Petchesky,40 the terms ‘sexual’ and ‘sexuality’ did not appear in international conventions until after 1993. Prior to this, sexuality was only discussed in relation to reproductive health rights. The only exception was the UN Convention on the Rights of the Child (CRC) in 1989, which addressed protection from sexual exploitation. Sexuality-related rights only started to emerge following efforts by transnational women’s advocacy groups at the International Conference on Population and Development in Cairo in 1994, and the International Conference on Women in Beijing in 1995.41 Their efforts resulted in the UN incorporating reproductive health with freedom from sexual violence and equality between men and women in relationships.
Reflecting critically on sexuality rights in UN conventions and treaties, although discussions surrounding sexuality rights have been extended to include sexual orientation and the sexual rights of minors, sexuality rights still predominantly relate to health, protection and public morals. To date, UN conventions have not included regulation on sexual behaviour or access.42 As far as South Africa is concerned, the notion of international regulation on sexual access could be a bitter pill to swallow, especially given previous colonial and apartheid racial legislation regarding sexual behaviour in the country.43
In terms of disability, the CRPD clearly recognises the full and equal participation of all people with disabilities in all aspects of life. Included in this are several rights pertaining to sexuality. These include the rights to freedom from exploitation, violence and abuse;44 respect for the home and family;45 and the right to health.46 Besides protection from abuse and sexual violence, these specific articles highlight the right to reproductive health information and the right to marry and have children. Reflecting critically on these sexuality-related rights, although they do acknowledge people with disabilities as sexual agents, and also issues of gender, reproduction, and protection from abuse, the CRPD, like other UN conventions and treaties, fails to explicitly mention sexual access, and ultimately continues to promote a heteronormative gaze. As a result, issues surrounding sexual diversity, promoting positive sexual identity development, sexual expression, and sexuality education remain invisible within the international disability rights discourse.47
However, this has not always been the case. For instance, the United Nations Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, which informed the backdrop of the CRPD and national disability legislation, clearly call for the politicisation of disabled sexualities in Rule 9(2), which unequivocally states:
Persons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood. Persons with disabilities must also have the same access as others to family planning methods, as well as to information in accessible form on the sexual functioning of their bodies.48
States should promote measures to change negative attitudes towards marriage, sexuality and parenthood of persons with disabilities, especially of girls and women with disabilities, which still prevail in society.49
According to Schaaf, the failure to explicitly include sexual access in the CRPD was not only due to pressure from the Vatican and other religious states to limit sexual rights, but also because of widespread concerns about eugenic practices and the ‘centrality of the body in conceptions of disability’.50 Moreover, reflecting on both the CRPD and Standard Rules, both fail to address the needs of adolescents with disabilities. Given the invisibility of sexual access and disabled adolescents in the CRPD and other UN conventions and treaties, it may provide a reason as to why national states and the disability rights movement in South Africa have not readily politicised the issue of disabled sexualities within their own legislation. In this regard, concepts of disabled sexual rights remain inadequate, with what Miller describes as ‘troublesome but predictable disjunctures [that] constrain the evolution of coherent and progressive policy positions in this area [of disabled sexual rights].51
As outlined earlier in this article, South Africa is recognised for its comprehensive legislation and policy development in relation to disability rights. However, similar to the CRPD and other UN conventions, rights in relation to sexual access and disability are minimal; however, rights in terms of protection from abuse appear strongly in national sexuality-related legislation. An example is the Criminal Law (Sexual Offences and Related Matters) Amendment Act 5 of 2015, which includes two parts related to ‘sexual offences against children, and persons who are mentally disabled’.52 In summary, the Act states that youths and adults who are ‘mentally disabled’ (either intellectually or psycho-socially) are unable to consent to sex and, therefore, any attempt at a sexual act is deemed an offence.
In a first reading of the Act, it is often misunderstood that the Act is applicable to everyone with an intellectual or psychosocial disability, and is often used as a means of preventing sexual encounters amongst adolescents with varying intellectual disabilities. However, on closer reflection, in particular the definitions in Chapter 1, the Act defines ‘persons who are mentally disabled’ as any person who, as a result of a disorder or disability of the mind, is:
(d) unable to show that she does not want to take part in the sexual act.53
Given this context, it is evident that the Act does not prevent sexual encounters amongst adolescents with disabilities (including those with intellectual or psycho-social impairments) who can understand the nature and outcome of a sexual act, and who are able to consent to sexual acts.
The continual subjugation of disabled sexualities and the silence surrounding adolescents with disabilities within the CRPD has played a significant role in the understanding of sexual access in relation to adolescents with disabilities in South Africa. This is made evident by the fact that adolescents with disabilities are generally discouraged by their parents or caregivers and other significant adults from discussions around sexuality, and are often inhibited from expressing their sexuality. For instance, in a study in the Northern Cape, Sait et al54 found that the mothers of girls with intellectual disabilities ignored their daughters’ attempts to talk about issues of a sexual nature. What is more, the majority of the mothers perceived sexuality education as consisting only of discussing the sex act, which they believed was inappropriate for their disabled daughters. Similar findings were reported among parents of adolescents with physical disabilities in the Western Cape, who limited sexual discussions with their disabled offspring, believing them to be non-sexual and not in need of sexuality education.55 Similarly, it was found that Xhosa-speaking parents of disabled youth in the Eastern Cape were reluctant to talk about issues of sexuality because of doubts about the sexual and reproductive capacities of youths with disabilities.56 As a result, the youths with disabilities who took part in the same study indicated that their non-disabled siblings were reportedly more valued as reproductive family members, leaving the disabled siblings feeling rejected. Contrary to these studies, a study amongst Zulu-speaking adolescents with disabilities in KwaZulu-Natal revealed that their lack of sexual communication with their parents or caregivers was no different from that of their non-disabled siblings. Instead, the young participants attributed this lack of sexual communication to cultural practices and the inability of parents or caregivers to talk about sexuality.57
With the reported inability of parents and caregivers to discuss sexuality, and their apparent lack of awareness surrounding sexuality rights, more emphasis has been placed on educators to provide moral (sexual) guidance. However, given the fact that nearly half a million children and adolescents with disabilities in South Africa do not attend school,58 it is clear that they are exempt from these efforts to provide sexuality education. Nevertheless, those adolescents with disabilities who do attend school are often exempt from efforts at sexuality education.59 It is reported that some educators in South Africa believe that discussing sexuality would only encourage adolescents with disabilities to go ahead and practise sexual activities.60 Contrary to this, however, some educators working in special education did recognise the importance of providing sexuality education to learners with disabilities, but the way in which it was delivered differed between schools and educators.61 Furthermore, as indicated by De Reus, educators of learners with intellectual disabilities were less inclined to discuss sexuality in detail, as they assumed that the learners would not understand.62
These differences in terms of the provision of sexuality education are exacerbated by a reported lack of skills and resources on the part of educators in terms of conveying sexuality messages in accessible and understandable format to learners with disabilities.63 Moreover, with the invisibility of disabled sexuality in initial teacher education and national guidelines in teaching sexuality education, educators also reported tensions between the discourses on human rights and the restriction of sexual behaviour of adolescents with disabilities.64 This conflict between rights and sexual access will be discussed below.
Apart from a reluctance on the part of adults to discuss sexuality issues, attempts at sexual expression or sexual encounters are often also chastised or prevented. This is particularly evident amongst adolescents with intellectual disabilities living in institutional care or educational settings. For example, studies in New Zealand65 and Canada66 demonstrate how a lack of privacy, combined with negative attitudes of caregivers and support staff, reduced opportunities for the development of intimate relationships in institutional care settings. Moreover, attempts at sexual acts by young residents with intellectual disabilities were generally classified as problematic behaviour rather than as expressions of love and intimacy.67 In addition to attitudes towards sexuality and disability, issues of morality and religion also play an integral role in preventing sexual encounters. This was revealed in a study conducted amongst educators and support staff in a Christian residential organisation for adolescents and young adults with intellectual disabilities in the Western Cape. Some educators identified a conflict between their Christian beliefs and the promotion of sexual rights, as identified in the following extract:
If an organisation were to recognise the sexual rights of persons with learning disabilities, and provide condoms to residents, there will be a perceived condoning of sexual relationships occurring outside of marriage.68
To overcome this moral dilemma and to manage sexual behaviour, educators would make it difficult for the residences to access condoms, and did not provide private spaces in which couples could meet.69 Critically analysing this situation, the lack of privacy and access to condoms not only goes against the Children’s Act, but would undoubtedly not deter curious adolescents with disabilities from having sexual encounters. If anything, this situation may perpetuate risky sexual behaviour and heighten risks of unplanned pregnancies, rape and HIV infection.
Separate from the doubts concerning the sexual capacities of adolescents with disabilities, Milligan and Neufeldt70 contend that the reluctance of both parents, caregivers and educators to engage with the discourse of sexual access may be further attributed to their efforts to protect adolescents with disabilities from future rejection and vulnerability to sexual abuse. These concerns about abuse also intersect in the control of reproduction and use of forced or coerced sterilisation to protect young disabled women from pregnancy following sexual abuse.71 This is of particular relevance in the South African context, where sexual and gender-based violence is rife and where children and youths with disabilities are two to five times more likely to experience sexual abuse than their non-disabled peers.72
A closer reflection on the various attitudes of parents/caregivers and educators towards the sexuality of adolescents with disabilities clearly reveals that sexuality is presented as a dangerous and risky discourse. These notions of sexuality as ‘dangerous’ or ‘risky’ are not unique to the disability discourse, but also feature prominently in South African sexuality discourse and national legislation.73 Given this perspective, instead of recognising the sexual agency of adolescents with disabilities, parents/caregivers and educators have tended to focus on the construct of adolescents with disabilities as innocent and, therefore, in need of protection. Although not denying the importance of protection from harm, it is argued that the discourse of innocence ‘constructs young [disabled] people as un-knowledgeable about sexuality, sexual practice and their own bodies, and inherently creates young [disabled] people as pure’.74
Although the discourses of innocence and purity are also related to non-disabled adolescents,75 it is more pronounced amongst adolescents with disabilities as it is believed that sex will never form a part of their lives. This continual silence surrounding sexuality and adolescents with disabilities demonstrates not only adultist constructs of adolescence, but ableist constructs of disabled sexuality. Quintessentially, it also demonstrates a general disregard for recognising the sexual agency and rights of adolescents with disabilities. As argued by Coppock, the discourses of silence and protectionism does nothing more than ‘skilfully disguise a fundamental distrust in young [disabled] peoples’ competence’.76 Moreover, the silence surrounding sexual access and adolescents with disabilities reflects a powerful discourse that ultimately culminates in the regulation of young disabled sexual identities.
As a result of the silence and invisibility of adolescents with disabilities in terms of sexual access, many disabled adolescents may lack the confidence to find out how to discuss matters of sex, love and relationships.77 This, for example, was identified in a qualitative study in the United Kingdom, which sought to understand disabled sexuality amongst 44 disabled persons in the UK.78 The study found that, although respondents were able to talk in general about their lives and issues of identity and barriers, they had difficulty talking about relationships and sexuality. As a consequence of not being able to speak openly about sexuality, it could in turn increase the vulnerability of adolescents with disabilities to abusive relationships and continue to privilege hegemonic notions of non-sexuality.
Similarly, in the South African context, as children and youths with disabilities are often ‘hidden’ away, either in their own homes or distant schools or institutions, it is argued that adolescents with disabilities may experience a different sexual identity development process than their non-disabled peers, as the knowledge that they are ‘different’ is always present.79 Consequently, in the absence of positive role models and because of their need to ‘fit in’ with their peers, some adolescents with disabilities may try to overcompensate for their physical and psycho-social differences.80 This became evident in a study amongst Zulu-speaking older adolescents with visual and physical disabilities in KwaZulu-Natal, where it was reported that, in an effort to overcompensate for their differences and fit in with their non-disabled peers, some disabled adolescents displayed behaviour that put them at high risk of sexual exploitation, abuse and HIV infection, all in an attempt to prove their self-worth.81
Reflecting on the various studies, the CRPD and other legislation discussed in the article, it is clear that the sexuality of adolescents with disabilities in South Africa is constructed as a danger both to themselves and others and, at times, is perceived as socially unacceptable. As a result, any attempt at sexual communication or sexual expression is deemed undesirable and in need of adult and state intervention. Understood in this way, the notion of sexual access for adolescents with disabilities is manipulated and contrived in social and legislative contexts by important adults who are generally perceived as having more power. In the context of adolescents with disabilities, these important adults are the parents or caregivers, educators and government departments, who through their given positionality are able to enforce certain vocabularies and values and in effect control and protect the discourse of sexuality amongst adolescents with disabilities.
As far as South Africa is concerned, the need for control over and protection of adolescents with disabilities has been justified because of the current climate where issues such as HIV and AIDS, gender-based violence and sexual exploitation of children and youths with disabilities are rife. However, in critically analysing this protectionist approach, it not only constructs sexuality as a dangerous and risky discourse, but also renders adolescents with disabilities as void of sexual agency. This undoubtedly has a two-fold effect on disabled adolescents. First, it marginalises the (sexual) voices of adolescents with disabilities and, second, it may also impact on the individual and their perceptions of their own sexual identity, desirability and, possibly, their perceptions regarding the risk of HIV. In this regard, it is argued that by taking a solely protectionist approach to sexual access, it can be a potentially ‘disempowering act’, which fails to recognise the sexual rights of adolescents with disabilities.82
Although not denying the significance of protection, the article calls for a more balanced, holistic approach between the need for protection and recognition of the rights of adolescents with disabilities to access their sexualities. However, in order to achieve this balance, it is necessary to recognise the fluidity of power and that adolescents with disabilities also have the potential to exercise agency and trouble constructions of their sexual identities and notions of sexual access. In adopting this approach, we need to (re)position adolescents with disabilities as sexual beings who, in line with Marr and Malone’s concept of the ‘agentic child’, are ‘capable and competent agent(s) who replicate and appropriate aspects of their culture through their talk and interaction with others, thereby actively participating in the construction of their own social situations’.83 Given this perspective, adolescents with disabilities are positioned as ‘knowers’ or experts in their own lives.84 The notion of adolescents with disabilities as ‘knowers’ troubles constructs of innocence and encourages adults to take cognisance of the knowledge and experiences disabled adolescents already have regarding sexuality.
To some extent, this approach has been acknowledged within the recent Department of Social Development’s national adolescent sexual and reproductive health and rights framework strategy, 2014-2019.85 In the milieu of South Africa’s growing youth population, the aim of the strategy is to address some of the gaps in the provision of sexual and reproductive health care for adolescents (defined between the ages of 10 to 19 years) and to call for
the development of an inclusive agenda that intends to promote the quality of life and the right to choose whether and when to have children; the right to exercise sexuality free of violence and coercion; the right to seek pleasure with respect for other people’s rights; the right to protect fertility; and the right to access modern techniques for the prevention, diagnosis and treatment of sexually transmitted infections.86
As part of its commitment to developing an ‘inclusive agenda’, the strategy framework acknowledges adolescents with disabilities. Furthermore, reflecting on the five key priorities in the strategy framework, it attempts to ensure that the (sexual) voices of adolescents are heard, and that parents/caregivers and other significant adults are trained in the sexual and reproductive health rights of adolescents with disabilities. In taking a rights-based approach, although the strategy does not include any indicators, it does, however, start to positively acknowledge both the sexual agency of adolescents with disabilities, and their rights to sexual access.
- There is a need to develop a draft sexuality rights policy within the disability sector, which aims at creating optimal and safe conditions for adolescents with disabilities to experience positive relationships, sexuality and sexual health.
- Further research is required amongst adolescents with disabilities in South Africa to gain a better understanding of their experiences of sexual access and sexuality rights. In line with the concept of adolescents with disabilities as experts in their own lives, research efforts should engage adolescents with disabilities as co-researchers. The findings from this research may contribute to developing comprehensive indicators in relation to disabled adolescents and the national adolescent sexual and reproductive health and rights framework strategy.
- Comprehensive sexuality educational programmes that use a rights-based approach are needed for parents/caregivers and educators of adolescents with disabilities. From the outset, these educational programmes must recognise adolescents with disabilities as ‘capable social agents’ and not merely innocent vessels when it comes to sexuality and HIV.
2. AK Dube ‘The role and effectiveness of disability legislation in South Africa: Disability and Knowledge Research Programme’ http://www.dfid.gov.uk/r4d/PDF/Outputs/Disability/PolicyProject_ legislation_sa_ex.pdf (accessed 6 December 2012).
7. B Dickman et al ‘How could she possibly manage in court? An intervention programme assisting complainants with intellectual disabilities in sexual assault cases in the Western Cape’ in Watermeyer et al (n 1 above) 116.
13. UNICEF ‘Children and AIDS 2015 Statistical Update’ http://www.childrenand aids.org/situation (accessed 29 January 2016).
18. WHO ‘Defining sexual health: Report of a technical consultation on sexual health’ 28-31 January 2002 http://www.who.int/reproductivehealth/publications/sexual_ health/defining_sexual_health.pdf (accessed 23 May 2014).
24. R Shuttleworth ‘Disability and sexuality: Toward a constructionist focus on access and the inclusion of disabled people in the sexual rights movement’ in N Teunis & G Herdt (eds) Sexual inequalities and social justice (2007) 174.
26. KM Motalingoane-Khau ‘“I never thought they do it too ...!” Sexuality and the disabled body’ (2006) Understanding Human Sexuality Seminar Series, Durban: Africa Regional Sexuality Resource Centre.
27. A Craft ‘Mental handicap and sexuality: Issues for individuals with a mental handicap, their parents and professionals’ in A Craft (ed) Mental handicap and sexuality: Issues and perspectives (1987) 14.
34. Department of Women, Children and People with Disabilities ‘Baseline country report to the United Nations on the implementation of the Convention on the Rights of Persons with Disabilities in South Africa’ (2013).
42. A Miller ‘Sexuality and human rights: discussion paper’ (2009) Geneva: International Council on Human Rights Policy http://www.ichrp.org/files/reports/47/137_web.pdf (accessed 5 February 2016).
55. M Wazakili et al ‘Experiences and perceptions of sexuality and HIV/AIDS among young people with physical disabilities in a South African township: A case study’ (2006) Sexuality and Disability 24.
60. P Rohleder & L Swartz ‘Providing sex education to persons with learning disabilities in the era of HIV/AIDS: Tensions between discourses of human rights and restriction’ (2009) 14 Journal of Health Psychology 4.
66. A Saxe & T Flanagan ‘Factors that impact support workers’ perceptions of the sexuality of adults with developmental disabilities: A quantitative analysis’ (2014) 32 Journal of Sexuality and Disability 45.
81. P Chappell ‘The social construction of the sexual identities of Zulu-speaking youth with disabilities in KwaZulu-Natal, South Africa, in the context of the HIV pandemic’ unpublished PhD thesis, University of KwaZulu-Natal, 2013 180.
- Enoch Macdonnell Chilemba
- Lecturer in Law and Co-ordinator of the Disability and Human Rights Programme (teaching and research) at the Faculty of Law, University of Malawi; Advocate of the High Court and Supreme Court of Malawi
- LLD (RSA), LLM (RSA), LLB (Hons) (Mal)
- (2016) 4 ADRY 77-99
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Children with disabilities in many African countries suffer violence and abuse that take various forms. Human rights treaties, such as the Convention on the Rights of Persons with Disabilities (CRPD) require state parties to take appropriate legislative, policy, administrative and other measures that conform to international standards to protect children with disabilities from violence. At the African regional level, the CRPD is complemented by the African Charter on the Rights and Welfare of the Child. A number of African countries that are party to the CRPD have adopted disability and child protection legislation. For example, Malawi, Zambia Tanzania, Uganda and Kenya have adopted disability specific statutes; while South Africa has enacted child protection legislation. The legislative documents are expected to provide for mechanisms for protecting children with disabilities from violence. The study seeks to analyse the extent to which selected African state parties to the CRPD have put in place legislative mechanisms for protecting children with disabilities from violence as envisaged by international standards, such those under the CRPD. The selected countries are expected to have adopted disability-specific statutes and/or child protection legislation. Accordingly, the study focuses as selected case studies on Malawi, Tanzania, Zambia, South Africa, Kenya, Ghana and Uganda. The study observes that African states need to put in place mechanisms in their child protection and disability-specific legislation that will ensure, amongst others, the identification, investigation and prosecution of all forms of violence and abuse, and the existence of legislative provisions that protect children with disabilities from all forms of violence. Such mechanisms could go a long way towards making the domestic legislative frameworks provide the appropriate mechanisms for combating violence against children with disabilities, as envisaged by the pertinent international standards.
Children with disabilities in many African countries are often and disproportionately subjected to various forms of violence and abuse.1 Human rights treaties, such as the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD),2 require state parties to take appropriate measures to protect children with disabilities from violence. The international standards under the CRPD and other pertinent treaties expect state parties to put in place legislative mechanisms, amongst others, to ensure such protection. At the international level, the CRPD is complemented by the UN Convention on the Rights of the Child (CRC).3 At the African regional level, the CRPD is complemented by human rights treaties such as the African Charter on the Rights and Welfare of the Child (African Children’s Charter)4 and, where applicable, the African Youth Charter.5 A number of African countries that are party to the CRPD and other applicable treaties have enacted disability-specific and child protection laws, which serve as crucial legislative tools for combating violence against children with disabilities. For example, Malawi, Zambia, Ghana, Tanzania, Uganda and Kenya have adopted disability-specific statutes, while South Africa has enacted child protection legislation. As will be illustrated by the international standards explored below, these legislative documents are expected to provide for mechanisms for protecting children with disabilities from violence.6
The study seeks to analyse the extent to which selected African state parties to the CRPD have put in place legislative mechanisms for protecting children with disabilities from violence, as envisaged by the pertinent international standards such as those under the CRPD. For the assessment, the study has selected African state parties to the CRPD that also have in place disability-specific statutes and/or child protection legislation, as some of the legislative measures taken for realising the rights of children with disabilities.7
The study analyses how such legislation incorporates the pertinent international standards. Accordingly, the study focuses on Malawi,8 Zambia,9 Uganda,10 Kenya,11 Tanzania,12 Ghana13 and South Africa.14 The study assumes that efforts to protect children with disabilities in Africa from violence could bear fruits if African countries put in place appropriate legislative mechanisms as envisaged under CRPD standards. In accordance with its scope, the study proceeds on the premise that, as a first step, African states must ensure that the disability-specific and child protection legislation (in addition to other implementation measures) that they adopt must conform to the pertinent international standards in order to provide the appropriate framework for combating violence. The actual implementation of such statutes on the ground forms the second crucial step, a discussion of which does not fall within the scope of the study.
With regard to the disability statutes, it is worth noting that Malawi, Zambia and Tanzania enacted their disability statutes after the three countries had already ratified the CRPD. On their part, Ghana, Kenya and Uganda enacted their disability statutes before the adoption of the CRPD, but during the period when advocacy for the adoption was rife (in the case of Kenya), and in the year that the CRPD was (being) adopted, in the case of Ghana and Uganda. Nonetheless, as explained above, these three jurisdictions subsequently ratified the CRPD. Since the study appraises the conformity of these disability statutes to the CRPD’s standards for combating violence against children with disabilities, it is relevant to examine the disability laws in the selected jurisdictions as they are expected to reflect the CRPD’s standards.15 Accordingly, the study looks at disability legislation enacted by the selected African countries before and after the adoption of the CRPD.
In achieving its objectives, the study briefly gives an overview of the forms of violence experienced by children with disabilities in Africa. Thereafter, it analyses the standards under the CRPD and other applicable treaties for eradicating violence against children with disabilities. The study also assesses the extent to which the disability and child protection statutes enacted by the selected African jurisdictions reflect, or adhere to, the pertinent international standards. Lastly, the study suggests concrete recommendations based on the findings.
Children with disabilities in Africa face many challenges that impede the enjoyment of their human rights on an equal basis with other children.16 A number of studies have established that these children often live in conditions of abject poverty, are victims of violence, exploitation, abuse and harmful traditional practices, lack access to health, rehabilitation and welfare services, are neglected by parents, and that little action is taken to meet their needs.17 For example, in certain African societies, children with disabilities are killed, neglected or not sent to school to attain an education, due to negative stereotypes.18 Similarly, it has been found that children with disabilities are also at the risk of being locked up by parents or guardians who seek to hide them from society due to, amongst others, the fact that certain communities consider having a child with a disability as a taboo.19 This illustrates the deplorable situation relating to violence facing a large majority of children with disabilities in Africa.
Indeed, certain studies have found that several children with disabilities in Zimbabwe are killed immediately after birth,20 and are abandoned by their fathers as disability is perceived as a curse on the family.21 Likewise, in certain African societies, including Malawi, Tanzania, Kenya and Uganda, persons and children with albinism are often attacked, abducted and killed on the basis that their body parts could be used for certain traditional rituals.22 In addition, studies have found that children with disabilities in South Africa suffer from harmful practices, such as violence, including sexual assault, in addition to abuse and neglect by the family and the community.23 In this regard, it has been established that children with disabilities are more likely to be beaten or bullied than children without disabilities,24 and are also at a greater risk of experiencing sexual abuse.25 For example, a study conducted in nine Southern African countries observed that persons or children with disabilities are often sexually abused due to certain misconceptions, such as the belief that having sex with a person with a disability will cure HIV/AIDS. In addition, the study observed that persons or children with disabilities are ‘easy targets for rapists, because a mobility-impaired person cannot run away ... and so on’.26
Similarly, in various African societies/countries children with disabilities are hidden or prevented from engaging with the rest of the community as they are perceived as ‘a “disgrace” to their families’ and are regarded as symbolising a ‘punishment from the gods on the family’.27 Above all, harmful practices against children with disabilities, such as hiding them or locking them up, also result in their exclusion from society, further perpetuating the violation of their human rights.28 This confirms the link between disability and violence as regards children with disabilities in Africa. As will be explained below,29 the pertinent international standards expect African state parties to the CRPD, CRC and African Children’s Charter to address this situation by taking measures aimed at protecting children with disabilities in their jurisdictions from all forms of violence.
The CRPD is the global disability-specific human rights treaty. It contains provisions on the rights of children with disabilities and the rights of persons with disabilities broadly,30 including provisions that provide protection from violence. For example, article 16 of the CRPD guarantees the right to freedom from all forms of exploitation, violence and abuse. The provision has five separate sub-articles outlining the obligations of the state to be discharged when implementing the right.31 The first sub-article obliges states to take legislative, administrative, social, educational and other measures to protect persons or children with disabilities from all forms of exploitation, violence and abuse.32 The second sub-article requires the provision of appropriate forms of gender- and age-sensitive assistance and support for persons or children with disabilities and their families and caregivers, which should include the provision of information and education on how to avoid, recognise and report instances of exploitation, violence and abuse.33 The third sub-article mandates states to ensure that all facilities and programmes designed to serve persons or children with disabilities are effectively monitored by independent authorities.34
The fourth sub-article obliges states to take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons or children with disabilities who become victims of any form of exploitation, violence or abuse, which should include the provision of protection services.35 Lastly, the fifth sub-article requires states to have effective legislation and policies, including child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons or children with disabilities are identified, investigated and, where appropriate, prosecuted (and, by implication, punishing perpetrators when convicted).36 This obligation under the CRPD, as clarified by the Committee on the Rights of Persons with Disabilities (CRPD Committee), expressly requires states to identify, investigate and prosecute instances of exploitation, violence and abuse through implementing legislation and policies, which must include child-focused laws.37
The CRPD Committee in its Concluding Observations, adopted after having examined various state parties’ reports, has further elaborated on the obligations of states and the standards to be adhered to in implementing the right to freedom from violence guaranteed under article 16 of the CRPD. For example, it has urged states to diligently investigate the situations/allegations of violence, exploitation and abuse and to take appropriate measures on the findings, such as prosecuting (and, by implication, punishing upon conviction) the perpetrators, and ensuring that victims can testify.38 It is submitted by the author that states are required to have a legislative framework that provides the enabling environment for discharging these obligations.39
The CRPD Committee further expects states to set up protocols for, and training in, the investigation of cases of violence, and to adopt measures to prevent the exploitation of children with disabilities for the purpose of begging, and to establish programmes to promote their integration in society;40 to collect and compile systematic disaggregated data and information on violence and abuse,41 and establish institutional mechanisms for the early detection of situations in which violence may occur;42 to identify incidents of violence and abuse and make available the necessary support;43 to set up a complaints mechanism and to conduct mandatory training for the police force on violence;44 and to take the necessary steps for protection, such as alternative housing for those who have been neglected or are making a living by begging, and the creation of reception centres where victims of trafficking in persons can obtain psychosocial care and legal assistance.45
The CRPD Committee has also taken a stand against corporal punishment and the exploitation of children with disabilities for the purpose of begging.46 It has further appreciated the initiatives taken by states, such as providing specific disability-related provisions in legislation and policies for the prevention of exploitation, violence and abuse.47 It is further worth noting that the CRPD, in article 8, imposes the obligation of awareness raising regarding disability, which should be used to ‘combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life’.48 Thus, awareness-raising measures can also be used as a way of combating violence against children with disabilities in Africa, in particular the violence that is influenced by negatives or harmful beliefs and attitudes towards children with disabilities as is often the case with attacks on children with albinism.
The CRC is the global child-specific human rights treaty which guarantees the rights of children, including children with disabilities. The CRC in article 19 sets out the right to freedom from all forms of violence, exploitation and abuse.49 The provision also requires states to identify, report and investigate all instances of violence and abuse and to involve the judiciary (through the prosecution of perpetrators of violence), in addition to providing the necessary support to the child and care givers.50 It may be observed that the framework under the CRC also singles out the obligations to provide support and to carry out investigations and to prosecute instances of violence.51
The Committee on the Rights of the Child (CRC Committee), which monitors the implementation of the CRC, has further issued a specific General Comment on the rights of children with disabilities.52 In the General Comment, the Committee has highlighted the need for state parties to address the situation by taking all necessary measures for the prevention of abuse and violence against children with disabilities.53 It has also urged states to take measures that should include the following: establishing an accessible, child-sensitive complaints mechanism and a functioning monitoring system;54 taking all necessary legislative measures to punish and remove perpetrators of violence and abuse;55 and ensuring the treatment and re-integration of victims of abuse and violence with a special focus on their overall recovery programmes.56
It should be noted that the CRC also recognises the right to survival and development of a child in article 6.57 On its part, the CRC Committee has identified the child’s survival and development as one of the four cardinal principles for the implementation of the CRC.58 The concept of a child’s survival and development recognises that the child is entitled to live, survive and develop.59 It is related to the right to life and to other rights, such as the right to health, ensuring the survival and development of children to self-sustenance and independent living.60 The principle requires states to identify and address all challenges that threaten the life, survival and development of children.61 The CRC Committee has observed that this principle ‘warrants particular attention where children with disabilities are concerned’.62 This is the case because, as highlighted above,63 children with disabilities often suffer many forms of violence which also threaten their survival and development.64 In this regard, it will be appreciated that protecting children with disabilities from violence will also ensure their survival and development.
The African Children’s Charter makes specific provision for the rights of all African children, including children with disabilities, to be protected from violence, abuse, exploitation and torture in two separate articles.65 First, article 16 guarantees the right to freedom from torture and abuse. In terms of this provision, states should take specific legislative, administrative, social and educational measures to protect the child from all forms of torture, inhuman or degrading treatment and especially abuse, neglect or maltreatment.66 In addition, states have the obligation to put in place effective procedures for identifying, preventing, reporting and investigating all instances of violence and abuse and to provide the necessary support to the child and care givers, including through establishing special monitoring units.67
On its part, article 21 sets out the right to protection against harmful social and cultural practices. This provision, amongst others, requires states to take all appropriate measures to eliminate harmful social and cultural practices, which include customs, discrimination and prejudices affecting the welfare, dignity, normal growth and development of the child.68 Above all, the African Children’s Charter outlaws ‘any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations’ contained in the Charter.69 Lastly, the Charter reflects the cardinal principles of the CRC by, amongst others, providing in article 5 for the right of the child to life, survival and development.70
The survey of the applicable human rights law above gives insights into the international standards African states must adhere to in setting out the domestic framework for combating violence against children with disabilities.71 In particular, the standards require states to ensure that the domestic framework incorporates the following: first, the existence of effective legislation for combating all forms of violence against children with disabilities, including prohibiting exploitation and harmful practices;72 second, legislation for identifying, investigating, prosecuting and punishing instances and perpetrators of violence against children with disabilities;73 third, the provision of forms of gender- and age-sensitive assistance and support for children with disabilities and their families and caregivers, including information on identifying, preventing and dealing with all forms of violence and abuse;74 fourth, appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of children with disabilities who become victims of any form of exploitation, violence or abuse;75 fifth, independent monitoring of all facilities and programmes designed to serve persons or children with disabilities.76 In addition, states must take additional measures, such as data collection on violence,77 and awareness raising,78 in addressing violence. Lastly, states must protect the right to survival and development of children with disabilities.79
It is thus relevant to examine the extent to which the selected African state parties to the CRPD have put in place a domestic framework for combating violence against children with disabilities that adheres to the standards identified above. These include Malawi, South Africa, Kenya, Uganda, Tanzania, Ghana and Zambia. Although the standards identified above are all crucial, for the purposes of the analysis the study focuses on assessing compliance with three standards, namely, protecting the right to survival and development; legislative provisions that prohibit violence, including harmful practices and exploitation; and putting in place a legal (legislative) mechanism for identifying, investigating and prosecuting instances of violence against children with disabilities. The requirement to protect survival and developmental rights has been identified as it is not only one of the cardinal principles of the CRC and, by extension, the African Children’s Charter, but the CRC Committee has also highlighted its significance in so far as the protection of children with disabilities is concerned.80 In addition, in a study commissioned by the African Child Policy Forum (ACPF) on best practices relating to children with disabilities in Africa, it was highlighted that a domestic framework is considered to be ‘disability friendly’ with regard to children with disabilities if, amongst others, it ensures the rights to survival, protection and development of children with disabilities.81 On their part, the obligations to have legislative provisions that prohibit violence, including harmful practices and exploitation, and putting in place a legislative mechanism for identifying, investigating, prosecuting and punishing instances of violence against children with disabilities have been specifically isolated, for two particular reasons. First, these obligations will ensure the criminalisation of all acts of violence against children with disabilities, thereby providing higher standards of protection from violence. Second, the regimes under the CRPD, CRC and African Children’s Charter have all emphasised these obligations.82
Malawi enacted the Disability Act in 2012 as the jurisdiction’s contemporary principal disability legislation.83 The Disability Act contains a number of survival and developmental rights, such as healthcare.84 However, it does not set out the right to protection from violence, abuse or exploitation. Therefore, it does not impose any obligation to identify, investigate and prosecute incidents of violence or abuse against children with disabilities. The Act does not even prohibit harmful practices against persons or children with disabilities.
Malawi also enacted the Child Care, Protection and Justice Act (CCPJA) as its child protection legislation.85 The CCPJA sets out a number of obligations that could facilitate the survival and developmental rights of children with disabilities. For example, the Act requires local authorities to provide shelter, within their areas, to children who are lost, abandoned or in need of refuge, and to trace the parents of such children.86 In addition, the Act criminalises acts relating to child neglect or desertion.87
The Act also imposes duties on the parent or guardian to take care of children.88 Amongst others, these responsibilities include ‘non-deprivation’ or the provision of welfare and primary responsibility for raising children.89 The parental duties further extend to protection from neglect, violence, abuse, exploitation, oppression and exposure to physical, mental, social and moral hazards; the provision of proper guidance, care, assistance and maintenance for the child’s survival and development, including adequate diet, clothing, shelter and medical attention; and ensuring that there is always a competent person to care of the child.90 Furthermore, the Act makes provision for the protection of children from undesirable practices, which include child abduction; child trafficking; harmful cultural practices; forced marriage or betrothal; and the pledging of a child as security.91
It can be observed that the protection of these rights would address the glaring gaps in the Disability Act in providing legal protection from violence for against children with disabilities. For example, section 80 expressly prohibits subjecting a child to a social or customary practice that is harmful to the health or general development of the child, while section 83 criminalises such acts. On its part, section 84 requires a social welfare officer, who has reasonable grounds to believe that a child has been trafficked, abducted, subjected to a harmful cultural practice, or used for the purposes of prostitution or immoral practices, to remove and temporarily place the child in a place of safety. The drawback is that the Act does not expressly impose the duty to identify and investigate incidents of violence or abuse. Nonetheless, these duties might be implicit in the responsibility to prosecute such incidents and the duty to remove affected children to a place of safety. Above all, the Act expressly domesticates the CRC and the African Children’s Charter.92 Consequently, the provisions in the two treaties that protect all children, including children with disabilities, from violence form part of domestic law and can be enforced before local courts.93 The domestication would address most of the gaps in the national framework explained above.
South Africa has not as yet enacted disability-specific legislation, but it has child protection legislation in place, namely, the Children’s Act.94 The Act contains a number of provisions setting out mechanisms that could protect children with disabilities from violence. For example, section 11 of the Act is dedicated to children with disabilities and children with chronic illnesses. Amongst others, the provision guarantees every child with a disability ‘the right not to be subjected to medical, social, cultural or religious practices that are detrimental to his or her health, well-being or dignity’.95 Furthermore, the Children’s Act sets out a number of developmental and survival rights in addition to the general rights of children. These include the right to freedom from harmful practices, such as those based on culture, society or religion.96 Thus, the Act expressly provides protection from harmful practices against children, including children with disabilities.
The Act further makes provision for ‘particular measures’ that could strengthen the protection of children from violence, abuse and exploitation. For example, section 104 provides for a national child protection system that should be properly resourced, co-ordinated and managed. Section 105 provides for designated child protection services for each of the nine provinces of South Africa. In terms of section 105, designated child protection services include the carrying out of investigations and the making of assessments, in cases of suspected abuse, neglect or abandonment of children.97 On its part, section 107 provides for the designation of child protection organisation(s) that will be responsible for performing all or any specific designated child protection services in the relevant province. Furthermore, section 110 sets out a mechanism for the reporting of abused or neglected children and those in need of care and protection. In terms of this mechanism, any designated person or officer who, on reasonable grounds, concludes that a child has been abused in a manner causing physical injury, sexually abused or deliberately neglected, is required to report the conclusion to a designated child protection organisation, the provincial department of social development or a police official98 who should, upon receiving the report, ensure the safety and well-being of the child concerned if the child’s safety or well-being is at risk.99 The designated child protection organisation or the provincial department of social development should further cause an investigation to be carried out and, depending on the findings, initiate proceedings in terms of the Act for the protection of the child without delay. The two institutions are also required to report the commission of an offence to a police officer after having carried out the investigation.
The Act further makes provision for a national child protection register.100 The purposes of the register (in Part A) include having a record of abuse or deliberate neglect inflicted on specific children; having a record of the circumstances surrounding the abuse or deliberate neglect; and using the information in the register in order to protect these children from further abuse or neglect.101 The reports of the neglect of a child contained in the register are also required to indicate whether the child has a disability and, if so, the nature of the disability.102 The register (in Part B) is further required to have a record of persons who are unsuitable to work with children and to use the information in the register in order to protect children in general against abuse from these persons.103 In terms of the mechanism, a person whose name is recorded in Part B of the register will not be allowed to do any work, duties or functions that involve dealing with or having access to children.104
It can be observed that the national child protection register sets out a mechanism for protecting children, including children with disabilities, from neglect, abuse and other forms of violence or the continuation thereof at the hands of persons with a record of perpetrating such abuses. The Children’s Act further contains provisions that prohibit certain acts of violence, exploitation and abuse against children. For example, section 141 prohibits child labour and exploitation. In view of this, South Africa’s legislative framework may be regarded as demonstrating many aspects of compliance with the international standards for combating violence against children with disabilities.
In 2012 the Persons with Disabilities Act was enacted as Zambia’s contemporary disability legislation.105 It sets out mechanisms that could address violence against children with disabilities. For example, Part IX of the Act provides for offences and penalties comprising fines and a term of imprisonment.106 The offences include the concealment of a person with a disability by a parent, guardian or any next of kin.107 The Act prohibits any such concealment if it will have the effect of denying the concealed person or child with a disability the opportunities and services guaranteed under the Act.108 It further prohibits exploiting or subjecting any person with a disability to abusive, violent or degrading treatment,109 and also prohibits the use of derogatory terms against persons or children with disabilities because of the disability of the person concerned.110
The Act makes provision for the continuation of the Zambia Agency for Persons with Disabilities,111 originally established under the repealed Zambian Persons with Disabilities Act of 1996.112 The Act mandates the Agency to carry out programmes and conduct campaigns to inform the public and raise public awareness on issues relating to disability, and in particular to achieve the following:113 combating stereotypes, prejudices and harmful practices relating to persons with disabilities in all areas of life;114 promoting positive perceptions and greater social awareness towards persons with disabilities;115 and promoting and encouraging the media to portray persons with disabilities in a manner consistent with the purpose of the Act and the CRPD.116
The Act also requires the government to develop and implement national strategies and plans which incorporate measures aimed at ensuring, amongst others,117 the protection of persons with disabilities from all forms of exploitation, violence and abuse, and that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.118 Lastly, the Act recognises survival and developmental rights, such as healthcare.119 However, it does not specifically recognise survival and development as a substantive right.120 In conclusion, it can be stated that the Act incorporates most of the standards for combating violence against children with disabilities, as it almost duplicates the provisions in article 16 of the CRPD, discussed above.121
The Persons with Disabilities Act was passed in 2010 as the modern principal disability legislation of Tanzania.122 It contains a number of provisions that could play a role in curbing violence against children with disabilities. For example, section 20(1) imposes a duty on a local government to safeguard and promote the rights and welfare of a person with a disability within its area of jurisdiction. Section 20(3) requires the local government authority, through a social welfare officer, to provide counselling to parents, guardians, relatives and persons with disabilities for the purpose of reducing or removing the degree of stigma among them.
Section 21(1) places the duty on any member of the community who has evidence or information that the rights of a child with disabilities are being infringed or that a parent, guardian or relative having custody of a person or child with a disability who is able to, but refuses or neglects to, provide the right to play, medical care, leisure and education, to report the matter to the local government authority as well as to any other relevant authority in the area. On its part, section 21(2) requires the social welfare officer, upon receiving the report, to summon the person against whom the report was made to discuss the matter and to make a decision in the best interests of the person or child with a disability. In terms of section 23(3), where the person against whom the report was made refuses to comply with the decision made under sub-section (2), the social welfare officer should refer the matter to the court, which should hear the matter and in that respect order the parent, guardian or relative to execute a bond to exercise proper care and guardianship by signing and undertaking to provide a person or child with a disability with any or all of the requirements.
The Act also takes the approach of making provision for offences and penalties comprising a term of imprisonment or a fine. The list of offences includes hiding, concealing or causing a person with a disability not to be accessible to or admitted to schools or training institutions for whatever reason;123 abandoning or rejecting or denying a person with a disability the right to social support;124 and denying participation of a person with a disability in social, economic and political activities.125 It is worth noting that the Act also recognises survival and developmental rights, such as healthcare.126
The analysis reveals that the Act does not expressly impose the obligation to protect persons or children with disabilities from violence, exploitation or abuse, nor does it contain a provision prohibiting harmful practices. Therefore, it does not impose a duty to identify, investigate and prosecute incidents of violence. Nevertheless, it prohibits and criminalises acts constituting violence and abuse, such as neglecting, abandoning or concealing a person or child with a disability. It may be submitted that the duty to identify, investigate and prosecute should be covered by the criminalisation of acts that constitute violence and abuse.
Furthermore, Tanzania adopted the Law of the Child Act in 2009,127 which is applicable in Tanzania Mainland. The Law of the Child Act in section 9(3) places duties and responsibilities on every parent towards his or her child, which include the duty to protect the child from neglect, violence, abuse, exposure to physical and moral hazards and oppression,128 and to provide guidance, care, assistance and maintenance for the child and the assurance of the child’s survival and development.129 Section 13(1) prohibits any person from subjecting a child to torture or other cruel, inhuman punishment or degrading treatment, including any cultural practice which dehumanises or is injurious to the physical and mental well-being of a child. Section 95 places the duty on any member of the community to report incidents of abuse against a child to the local government authority in the area. Section 96 requires a social welfare officer, who has reasonable grounds to suspect child abuse or that a child is in need of care and protection, to enter and search the premises where the child is being kept, in order to investigate in the company of a police officer.130 The mechanisms provided for in the child protection statute should complement and strengthen the rather inadequate legal protection under the disability legislation.
The Persons with Disabilities Act was enacted in 2006 as the principal disability legislation in Uganda.131 It sets out a number of mechanisms to address violence against children with disabilities. For example, the Act recognises survival and developmental rights, such as healthcare.132 In addition, the Act prohibits subjecting a person with a disability to cruel, inhuman or degrading treatment, or medical or scientific experimentation without his or her free and informed consent.133 However, the Act does not expressly impose the obligation to protect persons or children with disabilities from violence, exploitation or abuse, nor does it contain a provision prohibiting harmful practices. It, therefore, does not impose the duty to identify, investigate and prosecute incidents of violence. Nevertheless, the Act prohibits and criminalises acts that constitute violence and abuse, such as cruel and inhuman treatment against a person or child with a disability. This mechanism may be regarded as inherently implying the duty to identify, investigate and prosecute incidents of cruel and inhuman treatment against a child with a disability.
Furthermore, Uganda enacted child-specific legislation in the Children Act,134 which contains various provisions that could protect children with disabilities from violence, abuse and exploitation. For example, section 5(2) requires any person having custody of a child to protect the child from violence, abuse and neglect. In addition, section 7 outlaws subjecting a child to social or customary practices that are harmful to the child’s health. Similarly, section 8 prohibits employing or engaging a child in any activity that may be harmful to his or her health, education or mental, physical or moral development. These provisions may be regarded as a prohibition of harmful practices.
In addition, the Act imposes a duty on each local government council to provide assistance and accommodation to any child in need (of protection) within its area of jurisdiction, or any child who appears to require assistance and accommodation as a result of his or her having been lost or abandoned or seeking refuge.135 The Act further requires each local government council to make every effort, including publication through the mass media, to trace the parents or guardians of any lost or abandoned child or to return the child to the place where he or she ordinarily resides and, where this is not possible, to refer the matter to a probation or social welfare officer or to the police.136 Lastly, the Act imposes a duty on any member of the community who has evidence that a child’s rights are being infringed or that a parent, guardian or any person having custody of a child is able to but refuses or neglects to provide the child with adequate food, shelter, clothing, medical care or education, to report the matter to the local government council in the area.137 These provisions should play a crucial role in protecting children with disabilities from various forms of violence and abuse.
Above all, the Children Act explicitly domesticates the CRC and the African Children’s Charter.138 Consequently, the provisions in these two treaties which protect all children, including children with disabilities, from violence form part of domestic law and can be enforced before local courts. The domestication could address most of the gaps in the national framework identified above.
Kenya enacted the current Persons with Disabilities Act in 2003.139 The Act contains a few provisions that could be utilised to protect children with disabilities from violence. For example, the Act sets out survival and developmental rights, such as health.140 In addition, the Act prohibits and criminalises the concealment of any person with a disability in such a manner as to deny such a person the opportunities and services available under the Act.141 However, the Act does not expressly impose the obligation to protect persons or children with disabilities from violence, exploitation or abuse, nor does it contain a provision prohibiting harmful practices. It thus does not impose the duty to identify, investigate and prosecute incidents of violence. Nevertheless, it prohibits and criminalises certain acts that constitute violence and abuse, such as neglecting, abandoning or concealing a person or child with a disability. The duty to identify, investigate and prosecute should be understood as being implicit in the prohibition and criminalisation of acts which constitute violence and abuse.
Furthermore, Kenya adopted child protection legislation, namely, the Children’s Act of 2007 (revised in 2010).142 The Act contains provisions that could address violence against children with disabilities. For example, the Act protects the inherent right to life of a child, and places a duty on government and the family to ensure the survival and development of the child.143 Section 10 provides protection to a child from economic exploitation and any work likely to be hazardous to or interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.144 Section 13 provides protection to any child from physical and psychological abuse, neglect and any other form of exploitation, including the sale, trafficking or abduction by any person.145 Section 14 prohibits subjecting a child to female circumcision, early marriage or other cultural rites, customs or traditional practices likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development. Section 15 protects a child from sexual exploitation and use in prostitution, inducement or coercion to engage in any sexual activity, and exposure to obscene materials. Section 18(1) prohibits subjecting a child to torture or cruel treatment or punishment.
In addition, The Act establishes a Directorate of Children’s Services and Children’s Officers, comprising a director and senior children’s officers.146 The functions of the director include providing assistance and procuring accommodation for any child not in proper custody, any child who is abandoned or any child who is in need of refuge or safety,147 and tracing the parents or guardians of any lost or abandoned child, or returning a lost or abandoned child to his or her lawful place of residence.148 These functions should protect children with disabilities from exploitation, abuse and violence. Thus, the Act contains mechanisms that could protect children, including children with disabilities, from various forms of violence and abuse. However, the Act still is not clear on the duty to identify, investigate and prosecute incidents of violence.149
The Persons with Disabilities Act of Ghana was enacted in 2006.150 The Act sets out certain mechanisms that could protect children with disabilities from violence. For example, it provides for survival and developmental rights, such as healthcare.151 Furthermore, the Act contains two different sections that make provision for offences and their penalties in the form of fines or terms of imprisonment.152 Amongst others, it makes it an offence for any person to contravene the provisions setting out rights relating to family life and social activities;153 and to exploit a person with a disability.154 Further, section 4(1) prohibits exploiting or subjecting a person with a disability to abusive or degrading treatment; while section 8 criminalises such acts.
The Act further prohibits and criminalises calling a person with a disability by any derogatory names because of the disability of the person.155 However, the Act does not expressly impose the obligation to protect persons or children with disabilities from violence or prohibit any harmful practices. It, therefore, does not impose the duty to identify, investigate and prosecute incidents of violence. Nonetheless, it prohibits and criminalises several acts that constitute violence, and it expressly prohibits and criminalises exploitation and abusive treatment. Ghana also enacted child protection legislation, namely, the Children’s Act.156 Section 6 sets out parental duties that include protecting a child from neglect, violence, abuse, exposure to physical and moral hazards and oppression.157 Section 10(1) prohibits any person from treating a child with a disability in an undignified manner. Furthermore, section 17 sets out a mechanism requiring any person to report child abuse and protection cases to the Social Welfare and Community Development Department of a district assembly. The Department is required to carry out an investigation where there are reasonable grounds to suspect child abuse or a need for care and protection.158 These provisions should complement the disability legislation by addressing the gaps in the latter.
The study has revealed that children with disabilities in Africa face various forms of violence despite a number of African state parties to the CRPD having enacted disability-specific and/or child protection legislation. Such legislation is expected to provide legislative mechanisms that adhere to international standards for the protection of children with disabilities from violence. The study has explored international standards, and it has, furthermore, examined the extent to which the disability and child protection laws of selected African state parties to the CRPD incorporate, or adhere to, these standards. Four conclusions may be drawn in relation to the analysis. First, most disability-specific or child protection statutes either protect the right to survival and development, or they recognise rights and/or obligations that could protect the survival and development of children, including children with disabilities. The child protection statutes of South Africa, Malawi and Tanzania and the disability legislation of Malawi, Zambia, Uganda, Kenya, Ghana and Tanzania are cases in point, as discussed above.
Second, certain disability laws still fall short of conforming to the standard of having legal provisions that protect children with disabilities from all forms of violence, abuse and exploitation, including by prohibiting harmful practices. The disability legislation of Malawi, Uganda, Kenya, Ghana and Tanzania falls within this category. Third, most of the disability laws do not conform to the standard that requires states to have a legislative framework expressly imposing the duty to identify, investigate, prosecute and punish incidents of violence and abuse against children with disabilities. The disability statutes that fall within this bracket include those of Kenya, Uganda, Ghana and Malawi. Lastly, a number of jurisdictions have set out elaborate provisions dealing with violence against all children, which includes children with disabilities, in their child protection laws, as opposed to disability-specific legislation. Such jurisdictions include Malawi, Uganda, Kenya, Ghana and Tanzania.
Therefore, it may be concluded from the analysis that African countries need to modify their disability and child protection laws, which are part and parcel of the required legislative implementation measures, in conformity with the CRPD and other international standards. In addition, the jurisdictions that have not yet domesticated the relevant treaties by means of their statutes can revise the relevant legislation to expressly incorporate the treaties. Such an exercise would enable these legislative measures to provide mechanisms that comply with international standards for combating violence against children with disabilities in their jurisdictions. Indeed, most of the jurisdictions the study has assessed would benefit from this type of exercise. This modification is necessary especially regarding aspects of ensuring the identification, investigation, prosecution and punishment of all forms of violence and abuse, and the existence of legal provisions that protect children with disabilities from all forms of violence. Such modification would go a long way towards making disability and child protection laws provide the appropriate legislative mechanisms for combating violence against children with disabilities in Africa, as envisaged by the relevant international standards. Of course, a jurisdiction could set out anti-violence provisions in penal statutes, such as criminal or penal codes. However, these statutes or codes may not specifically address violence against children with disabilities. Therefore, utilising disability-specific and/or child protection legislation to combat violence against children with disabilities is undoubtedly one of the most appropriate and necessary means of incorporating the requisite international standards.
1. See generally African Child Policy Forum (ACPF) Reasons for hope: Good practices relating to children with disabilities from Kenya, Liberia and Mozambique: A synthesis report (2014) 13; ACPF The African report on children with disabilities: Promising starts and persisting challenges (2014) 99. Both reports highlight that ‘[t]hroughout Africa, children with disabilities are at acute risk of violence and abuse’. See also ACPF Breaking the silence: Violence against children with disabilities in Africa (2010). It is worth noting that the study uses the phrase ‘children with disabilities’ with reference to children who have disabilities in accordance with contemporary practice.
7 See eg CRPD, art 4(1)(a) & (b) as read with art 4(3), which require state parties to, amongst others, enact and implement legislation as one of the measures for implementing the CRPD. Of course, constitutions, policies and any other
7. implementation measures are also expected to have provisions or mechanisms that could be used to address issues relating to violence. However, in accordance with its scope, the study limits its attention to the identified legislative measures.
15. The disability laws that had been enacted before the countries concerned ratified the CRPD were expected to be reviewed to be aligned with the CRPD within a reasonable time after the states had ratified the CRPD. Alternatively, or in addition, the drafters of these statutes had to draw inspiration from the advocacy and negations surrounding the adoption process of the CRPD by containing provisions that, to an extent, reflected the CRPD’s standards.
17. See ACPF The African report on children with disabilities (n 1 above) 1-6; ACPF The lives of children with disabilities in Africa: A glimpse into a hidden world (2011); B Ransom Missing voices: Children with disabilities in Africa (2008).
18. See eg ACPF The African report on children with disabilities (n 1 above) 2; D Filmer ‘Disability, poverty, and schooling in developing countries: Results from 14 household surveys’ (2008) 22 World Bank World Economic Review 141; N Marongwe & R Mate Children and disability: Their households’ livelihoods and experience in accessing key services (2007) 25; T Choruma The forgotten tribe: People with disabilities in Zimbabwe (2006) 7 & 16.
20. E Mandipa ‘A critical analysis of the legal and institutional frameworks for the realisation of the rights of persons with disabilities in Zimbabwe’ (2013) African Disability Rights Yearbook 74; ‘Woman drowns disabled toddler’ Chronicle 22 August 2013.
22. animals” for body parts in Malawi’ News 24 3 March 2015 http://www.news24.com/Africa/News/Albinos-hunted-like-animals-for-body-parts-in-Malawi-20150303-4 (accessed 25 March 2016); ‘Albinos hunted for body parts in Africa’ The Telegraph 10 April 2011.
27. See SAD Kamga ‘Forgotten or included? Disabled children’s access to primary education in Cameroon’ (2013) African Disability Rights Yearbook 27-48 46. See also H Combrinck ‘The hidden ones: Children with disabilities in Africa and the right to education’ in J Sloth-Nielsen (ed) Children’s rights in Africa: A legal perspective (2008) 302; J Biegon ‘The promotion and protection of disability rights in the Africa human rights system’ in I Grobbelaar-Du Plessis & T van Reenen (eds) Aspects of disability law in Africa (2011) 83.
31. See art 16. Other provisions of the CRPD such as art 10 on the right to life and art 14 on the right to liberty and security of the person are also applicable and significant since certain forms of violence result in killings of children with disabilities.
38. CRPD Committee Concluding Observations on Australia (2013) para 38; Concluding Observations on Argentina (2012) para 30; Concluding Observations on China (2012) para 30; Concluding Observations on Hong Kong, China (2012) para 66; Concluding Observations on Hungary (2012) para 32.
39. See generally art 4 of the CRPD, which requires state parties to adopt or modify legislation to deal with practices and customs that negatively affect the realisation of the rights set out in the CRPD.
49. See art 19(1), which requires states to ‘take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’.
51. The CRC also dedicates a provision to the rights of children with disabilities in art 23, but the provision does not mention the issue of violence. It also expressly prohibits discrimination against children on the basis of disability in art 2(1).
58. The other three cardinal principles are the best interests of the child; child participation; and non-discrimination. See eg CRC Committee General Comment 5 ‘General measures of implementation of the Convention on the Rights of the Child’ (2003) para 12; CRC Committee ‘Guidelines for initial reports’ (1991) para 13.
70. See art 5(2). See generally D Olowu ‘Protecting children’s rights in Africa: A critique of the African Charter on the Rights and Welfare of the Child’ (2002) 10 International Journal of Children’s Rights 129.
72. See eg CRPD art 16(1); African Children’s Charter arts 16(1) and 21(a) & (b). It is worth noting that the African Commission on Human and Peoples’ Rights has also emphasised such obligation in the context of the protection of the right to life. See General Comment No 3 on the African Charter on Human and Peoples Rights: The Right to Life (Article 4) (2016).
73. See eg CRPD art 16(5); African Children’s Charter art 16(2); CRC art 19(2); CRPD Committee Concluding Observations on Australia (2013) para 38; Concluding Observations on El Salvador (2013) para 36(a).
79. See eg CRC art 6; African Children’s Charter art 5(2); CRC Committee General Comment 9 para 31; Karp (n 61 above) 123; Olowu (n 70 above) 129. It is worth noting that the report by ACPF on best practices relating to children with disabilities observed that a domestic framework designed to protect children with disabilities must also ensure the ‘development of both disability-specific and comprehensive child-rights legislation that explicitly prohibits discrimination and ensures survival and developmental rights, including education, health ...’ See ACPF Reasons for hope (n 1 above) 16. The report further highlights that ‘legislation ... should explicitly ... recognise survival and developmental rights, including education, health and alternative care’. See ACPF Reasons for hope (n 1 above) 24.
81. ACPF Reasons for hope (n 1 above) 5. The report further observes that a domestic framework will be able to provide protection to children with disabilities if it, amongst others, facilitates their survival and development. See ACPF Reasons for hope (n 1 above) 6.
82. See eg CRPD arts 16(1) & (5); African Children’s Charter arts 16(1) & (2); CRC art 19(2); CRPD Committee Concluding Observations on Australia (2013) para 38; Concluding Observations on El Salvador (2013) para 36(a). The African Commission on Human and Peoples’ Rights has emphasised the state obligation to excersise due diligence by effectively investigating and prosecuting cases resulting in killings as a significant obligation for protecting the right to life. See General Comment No 3 (n 72 above).
93. The express domestication is significant as Malawi essentially has a dualist legal system that requires, on the one hand, the transformation of treaties Malawi ratified in 1995 through an incorporation by an Act of Parliament while, on the other hand, it appears not to require such transformation for treaties ratified before 1995. See the 1995 Malawian Constitution, secs 211(1) & (2); DM Chirwa Human rights under the Malawian Constitution (2011) 29-30; EM Chilemba ‘Malawi’ (2014) 2 African Disability Rights Yearbook 211. The express domestication removes any doubt about the domestic applicability of the CRC and the African Children’s Charter in Malawi.
149. Sec 38(2)(g) merely requires the Director of Children’s Services to ‘make such enquiries and investigations and provide such reports and assessments as may be required by any court or for the enforcement of any order made by a court’ under the Act.