• Dianah Msipa
  • LLM (McGill), Post-graduate Diploma in Legal Practice (LPC) (Northumbria), LLB (Hons) (Newcastle)
  • Consultant on Disability and Human Rights Law and Policy


1 Introduction

Persons with disabilities have historically been denied the right to employment due to discriminatory barriers and mistaken assumptions about their ability to work. As a result of these misconceptions and attitudes, employers have tended to either deny persons with disabilities employment altogether, or have hired them only for work which does not require much knowledge or skills.1 Some employers pay their workers with disabilities a comparatively lower salary than their non-disabled counterparts who do the same work because they believe that the cost of providing reasonable accommodation in the workplace is too high.2 In extreme cases, persons with disabilities may be forced into exploitative, slave labour-like situations in which they receive no pay at all, or they may be forced to work in unsafe working conditions. Still, other persons with disabilities are denied opportunities to work in the mainstream job market and they may find themselves forced, for lack of better options, into segregated work settings, such as sheltered workshops, where they work in an environment which is separate from the open labour market where non-disabled persons work.3

In recognition of the fact that persons with disabilities continue to be denied their rights, including the right to employment, the United Nations (UN) General Assembly adopted the Convention on the Rights of Persons with Disabilities (CRPD) on 13 December 2006.4 The CRPD provides for the right to work and employment in article 27. In recognizing the rights of persons with disabilities to earn a living through work that is freely chosen and accepted, the CRPD relies on the principles of equal opportunity, equal treatment and non-discrimination.5 Many Southern African countries have signed and ratified the CRPD. In spite of this ratification, persons with disabilities in Southern Africa continue to have their rights to work and employment violated, signifying a lack of adequate implementation as well as the lack of an enabling legal framework. This commentary examines the extent to which domestic legislation in five Southern African countries complies with the standards set in article 27 of the CRPD. Such an examination is important because, in the absence of an enabling legal framework, the implementation of the right to work and employment will be ineffective.

The commentary is divided into two parts. The first part briefly explores the meaning of the right to work and employment as set out in article 27 of the CRPD. The second part examines the legislation governing work and employment in the Southern African countries of Zimbabwe, Angola, South Africa, Botswana and Swaziland, with a view to assessing the extent to which the legislation complies with the standard set in article 27 of the CRPD. Whilst it is acknowledged that the picture of employment in these countries is incomplete without taking account of the relevant policy framework, this commentary does not address the policy framework as this falls outside its scope. Therefore, the commentary will be restricted to an examination of the legislation in these countries.

2 Meaning of the right to work and employment

Article 27 of the CRPD provides for the right of persons with disabilities to work and employment. The right to work and employment has been described as an issue of non-discrimination and accessibility because disability-based discrimination has been ‘prominent and persistent’ in the field of employment.6 This right does not guarantee that everyone with a disability who is of working age will have employment, in much the same way that the right to health, for example, does not guarantee that a person will be healthy.7 Rather, the right seeks to guarantee that persons with disabilities have access to work and employment opportunities on an equal basis with others and that such work and employment is carried out in a conducive environment and under favourable conditions. The right to work and employment, therefore, encompasses two elements: first, the right to be afforded the opportunity on an equal basis with others ‘to gain a living by work freely chosen or accepted in a labour market’;8 and, second, the right to carry on such employment in a ‘work environment that is open, inclusive and accessible to persons with disabilities.’9 All the obligations of state parties listed in articles 27(1)(a)-(k) of the CRPD are measures intended to either create equal opportunities for employment or to create an open, inclusive and accessible work environment.

The obligation to prohibit discrimination on the basis of disability in ‘matters concerning all forms of employment ... including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions’10 falls under the category of the creation of an equal opportunity for employment and the obligation to enable ‘persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training’,11 also concerns the creation of equal opportunities for work. The obligation to ‘ensure that reasonable accommodation is provided to persons with disabilities in the workplace’12 also falls under the category of the creation of equal opportunities for work. This is because the CRPD defines disability-discrimination as including the denial of reasonable accommodations.13 Similarly, the obligations to ‘promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment’;14 the obligation to ‘promote opportunities for self-employment, entrepreneurship, the development of co-operatives and starting one’s own business’;15 the obligation to ‘employ persons with disabilities in the public sector’;16 the obligation to ‘promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures’;17 the obligation to ‘promote the acquisition by persons with disabilities of work experience in the open labour market’;18 and the obligation to ‘promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities’19 all involve the creation of equal opportunities for work for persons with disabilities. In other words, these obligations are effectively ways in which state parties may create equal opportunities for work for persons with disabilities.

The remaining measures go to the creation of an open, inclusive and accessible work environment for persons with disabilities. In other words, states parties may create an open, inclusive and accessible work environment by ‘protect[ing] the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances’;20 ‘ensur[ing] that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;21 ‘ensur[ing] that reasonable accommodation is provided to persons with disabilities in the workplace’;22 and by prohibiting slavery or servitude as well as forced or compulsory labour.23

Together, these measures and obligations are intended to protect the right to work and employment for persons with disabilities. They are in line with some of the principles stated in the CRPD, such as non-discrimination,24 equality of opportunity25 and accessibility.26 It is important to note that achieving equality requires the prohibition of discrimination as well as the taking of positive steps to ensure the right to equality such as affirmative action measures. Article 4(1) of the CRPD sets out the general obligations which state parties must meet. One of the obligations found in article 4(1)(b) is to ‘take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities’. State parties, therefore, have an obligation to ensure that there is an enabling legal framework. The measures and obligations in article 27 of the CRPD provide the standard which state parties should aspire to when enacting and/or amending such legislation, in order to adequately protect the right of persons with disabilities to work and employment at the domestic level. It is against this standard that the employment laws in five Southern African countries are evaluated.

3 Evaluation of the employment laws in selected Southern African countries 27

3.1 Zimbabwe28
3.1.1 Obligation to create equal work opportunities for persons with disabilities
Constitution of Zimbabwe

The Constitution of Zimbabwe29 contains provisions which create an obligation to provide work opportunities for persons with disabilities on an equal basis with others. The Zimbabwean Constitution contains a general equality and non-discrimination clause which prohibits discrimination on several grounds, including disability, in all spheres of life.30 Therefore, the conclusion may be drawn that the Zimbabwean Constitution prohibits discrimination on the basis of disability in the employment sector. This conclusion is further supported by the clause in the Zimbabwean Constitution dealing with labour and employment relations, which provides that government must ‘adopt reasonable policies and measures, within the limits of the resources available to them, to provide everyone with an opportunity to work in a freely chosen activity, in order to secure a decent living for themselves and their families’.31 That the Constitution of Zimbabwe intends to protect the rights of persons with disabilities to have an opportunity to work is evident in the article requiring the provision of ‘vocational guidance and the development of vocational and training programmes, including those for persons with disabilities’32 so that they may access work opportunities. The provision in the Zimbabwean Constitution which is dedicated to the rights of persons with disabilities does not expressly address the right to work and employment for persons with disabilities. It does, however, provide in a rather vague fashion that the state must take measures to enable persons with disabilities to become ‘self-reliant’.33 Although the language is vague, this provision may be construed to mean the rights to work and employment of persons with disabilities.

However, these provisions still fall short of the standard set in article 27 of the CRPD, and this fact becomes apparent when other provisions in the Zimbabwean Constitution, particularly those dealing specifically with persons with disabilities, are examined more closely. For example, article 22 of the Zimbabwean Constitution, which specifically addresses persons with disabilities, requires the government and all government institutions and agencies to ‘develop programmes ... especially work programmes’ for persons with disabilities.34 However, these work programmes must be ‘consistent with their capabilities and acceptable to them or their legal representatives.’35 The requirement for government to avail work programmes for persons with disabilities which are ‘consistent with their capabilities’ equates disability with inability and does not seem to encourage persons with disabilities to obtain work on the open market as is required by article 27 of the CRPD. This is consistent with the much-criticised medical model of disability which regards disability as a problem innate in the individual with impairment as opposed to the social model of disability, to which the CRPD espouses, according to which disability is the result of the interaction between a disabling environment and an individual with impairment. Furthermore, this provision requires the development of programmes ‘for the welfare of persons with physical or mental disabilities.36 This means that persons with other types of disabilities, such as sensory disabilities, cannot benefit from these work programmes.37 The CRPD safeguards the right to work and employment for all persons with disabilities, not only persons with certain types of disabilities.38 Therefore, by failing to provide for persons with disabilities participating in the open labour market and by failing to include persons with all types of disabilities, the Constitution of Zimbabwe falls short of the standard set in article 27 of the CRPD.

Labour Act (Chapter 28:01)

The Labour Act,39 the principal Act defining the fundamental rights of employees in Zimbabwe, contains provisions which create equal work opportunities for persons with disabilities. The Labour Act contains an equality and non-discrimination clause intended to provide for the creation of opportunities for work and employment of persons with disabilities. This Act prohibits discrimination against employees on several grounds, including disability.40 Discrimination is prohibited in relation to various matters of employment, including job advertisement;41 the recruitment process;42 the creation, classification or abolition of jobs or posts;43 the determination of wages and other benefits;44 and ‘the choice of persons for posts, training, advancement, apprenticeships, transfer, promotion or retrenchment’.45 However, provisions prohibiting non-discrimination alone are not enough to meet the standard set in article 27 of the CRPD. The Labour Act, apart from prohibiting discrimination on the basis of disability in the employment sector, does not require the taking of any other positive steps, such as affirmative action or the provision of reasonable accommodation in order to ensure that persons with disabilities are provided with an opportunity to work on an equal basis with others. Since this is the principal Act dealing with matters of work and employment in Zimbabwe, this is a fundamental failure.

Disabled Persons Act Chapter 17:01

Similarly, although the Disabled Persons Act,46 the main Act for persons with disabilities in Zimbabwe, contains provisions intended to create equal work opportunities for persons with disabilities, the Act still falls short of the article 27 standard. The Disabled Persons Act expressly prohibits discrimination against persons with disabilities in employment47 in order to provide for equal opportunities to work and employment. The Act prohibits employers from discriminating against persons with disabilities in relation to ‘the advertisement of employment’;48 ‘the recruitment for employment’;49 ‘the creation, classification or abolition of jobs or posts’;50 ‘the determination or allocation of wages, salaries, pensions, accommodation, leave or other such benefits;51 ‘the choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment’;52 ‘the provision of facilities related to or connected with employment’;53 and ‘any other matter related to employment’.54 However, as stated earlier, provisions which simply prohibit discrimination are not enough to adequately protect the right to work and employment for persons with disabilities as laid out in article 27 of the CRPD. It is necessary to make provision for other positive steps or measures to protect the right to work.

Interestingly, the Disabled Persons Act does not require the provision of reasonable accommodation. Instead, the Act effectively states that, where an employer has not provided reasonable accommodation, they will not be deemed to have discriminated against the person with a disability.55 This is contrary to the definition of disability discrimination contained in the CRPD, which defines disability discrimination as including the denial of reasonable accommodation.56 This may be attributed to the fact that the Act is outdated, since it was enacted as far back as 1992. Therefore, in failing to make provision for the taking of positive steps to ensure that persons with disabilities have equal opportunities to work and in failing to require the provision of reasonable accommodation, the Disabled Persons Act falls short of the article 27 standard.

3.1.2 Obligation to provide an open, inclusive and accessible work environment
Constitution of Zimbabwe

The Constitution of Zimbabwe contains provisions which create an obligation on employers to provide an open, inclusive and accessible work environment for persons with disabilities. Article 65 of the Zimbabwean Constitution deals with labour rights and requires the provision of measures intended to provide a safe and healthy working environment. Employers are required to ensure that safe labour practices and standards are in place, and it also provides for the right of employees to receive a fair and reasonable wage,57 to form and join trade unions and to take part in their activities,58 to strike, sit in or withdraw their labour,59 and the right to ‘just, equitable and satisfactory conditions of work’.60 Although this provision does not make specific reference to persons with disabilities, the term ‘every person’ impliedly includes persons with disabilities.

In line with article 27(2) of the CRPD, the Zimbabwean Constitution provides for freedom from slavery or servitude, providing that ‘[n]o person may be subjected to slavery or servitude’.61 The Zimbabwean Constitution also provides for freedom from forced or compulsory labour, stating that ‘[n]o persons may be made to perform forced or compulsory labour’.62 In this regard, the Constitution of Zimbabwe contains provisions which are in line with the article 27 standard.

3.2 Angola63
3.2.1 Obligation to provide equal work opportunities for persons with disabilities
Constitution of Angola

There are provisions in the Constitution of Angola64 which create an obligation to provide equal work opportunities for persons with disabilities. However, the Constitution still falls short of the article 27 standard. The Constitution of Angola prohibits discrimination on a number of grounds, including disability and65 in a number of spheres, including the sphere of employment. The Angolan Constitution declares that ‘[w]ork shall be the right and duty of all’.66 The Constitution goes on to place an obligation on government to promote the ‘implementation of policies to generate work’67 and equal ‘opportunities in the choice of profession or type of work and conditions which prevent preclusion or limitation due to any form of discrimination’.68 Since the Angolan Constitution prohibits discrimination on the ground of disability, it may be concluded that the obligations placed on the government to create opportunities for work also apply to the creation of work opportunities for persons with disabilities.

Article 83 of the Constitution of Angola, which deals specifically with persons with disabilities, requires the state to ‘foster and support special education and technical and vocational training for disabled citizens’.69

The Constitution, therefore, has a general anti-discrimination provision as well as a general declaration that all persons are entitled to the right to work, but does not really contain positive measures, such as the quota system70 or affirmative action, which may be taken in order to ensure that persons with disabilities actually enjoy equal opportunities to the right to work and employment. Furthermore, it does not provide for the provision of reasonable accommodation for persons with disabilities. In this regard, therefore, it falls short of the CRPD standard.

General Labour Law 2000

The General Labour Law of Angola71 contains a provision which may be taken to be intended for the creation of equal work opportunities for persons with disabilities. In spite of this, the law still falls short of the standard set in article 27 of the CRPD. The Law contains a provision on the right to work and on the prohibition of discrimination in the employment sector on various grounds. However, disability is not mentioned as one of these grounds.72 Nevertheless, it may be concluded that disability discrimination is prohibited, particularly in light of the fact that the Constitution, which is the supreme law of the land, prohibits disability discrimination. The Law fails to meet the standard set in article 27 of the CRPD as it fails to provide for the taking of positive measures as well as the provision of reasonable accommodation in order to ensure that persons with disabilities have equal work opportunities.

3.2.2 Obligation to provide an open, inclusive and accessible work environment

Despite containing provisions which create an obligation to provide an open, inclusive and accessible work environment, the Constitution of Angola still fails to meet the article 27 standard. The Constitution provides for the right to ‘vocational training, fair pay, rest days, holidays, protection, and workplace health and safety’.73 The Angolan Constitution also creates an obligation for the provision of ‘academic training and scientific and technological development, as well as vocational development for workers’.74 By failing to provide for the provision of reasonable accommodation, the Constitution does not adequately make provision for the creation of an open, inclusive and accessible work environment for persons with disabilities.

3.3 South Africa75
3.3.1 Obligation to provide equal work opportunities for persons with disabilities
Constitution of the Republic of South Africa, 1996

The Republic of South Africa has laws in place which provide for equal work opportunities for persons with disabilities. The Constitution of South Africa76 prohibits direct and indirect discrimination on several grounds, including disability.77 The Constitution goes on to state that ‘[e]very citizen has the right to choose their trade, occupation, or profession freely’.78 Article 7(2) of the Constitution provides that the state must ‘respect, protect, promote and fulfil’ the rights which are contained in the Bill of Rights, including the right to work and employment. This provision may be construed to be impliedly creating a duty to put positive measures in place in line with article 27 of the CRPD.

The Employment Equity Act

The purpose of the Employment Equity Act79 is to ‘achieve equity in the workplace’.80 Such equity is to be achieved by, first, ‘promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination’81 and, second, by ‘implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups’.82 The Act applies to all employees except members of the National Defence Force, the National Intelligence Agency and the South African Secret Service.83 The Employment Equity Act contains a provision prohibiting unfair discrimination, both direct and indirect, on a number of grounds, including disability.84 It places a duty on employers to ‘take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice’.85 This is in line with article 27 of the CRPD.

3.3.2 Obligation to provide an open, inclusive and accessible work environment
Constitution of South Africa

There are provisions in the South African Constitution which create an obligation for employers to provide an open, inclusive and accessible environment. The provision dealing with labour relations in the Constitution protects the right to form and join a trade union86 as well as the right to strike.87 This is in line with article 27 of the CRPD. Since the Constitution of South Africa prohibits discrimination on the basis of disability,88 it is implied that this provision applies to persons with disabilities even though such persons are not expressly referred to in the provision.

In line with article 27 of the CRPD, the Constitution of South Africa states that ‘[n]o one may be subjected to slavery, servitude or forced labour’.89

Employment Equity Act

Part III of the Employment Equity Act addresses the provision of affirmative action measures, which are defined as ‘measures designed to ensure that suitably-qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer’.90 It is important to note that, according to this Act, persons with disabilities fall under the category of ‘designated groups’.91 The provision of reasonable accommodation is also encapsulated within the provision on affirmative action measures.92 Providing for reasonable accommodation is important because, in the absence of a duty to reasonably accommodate persons with disabilities, the creation of an open, inclusive and accessible work environment cannot be achieved. The Act goes on to clarify that the taking of positive measures, such as affirmative action measures, does not constitute unfair discrimination.93 This is in line with the standard in article 27 of the CRPD.

Furthermore, section 54(1)(a) of the Employment Equity Act gives the Minister power to issue codes of good practice which give guidance to employers on how to implement the Act. Of particular relevance is the Code of Good Practice: Key Aspects on the Employment of People with Disabilities issued in terms of the EEA.94 The Code deals with pertinent issues, such as the provision of reasonable accommodation;95 recruitment and selection;96 training and career advancement;97 retaining people with disabilities;98 and termination of employment,99 amongst other things. Despite the fact that the Code is more of a policy document than a piece of legislation, it remains important as it must be considered when courts and tribunals are interpreting the Employment Equity Act. The matters addressed in the Code, such as the provision of reasonable accommodation, are generally in line with article 27 of the CRPD.

Labour Relations Act 66 of 1995

Further provision is made for the creation of an open, inclusive and accessible working environment in the Labour Relations Act,100 which provides for several rights, such as joining a trade union.101 The Act uses language such as ‘every employee’, implying that persons with disabilities are also included within the ambit of the provision. Furthermore, dismissal on the ground of disability is automatically deemed as unfair dismissal.102 The Act makes reference to the duty to accommodate in relation to situations where employees are injured in the workplace.103 Although this is in line with the CRPD, it falls short of the standard set therein, since all persons with disabilities are entitled to have reasonable accommodation made on their behalf in order to enable them to enjoy the right to work and employment on an equal basis with others.

Basic Conditions of Employment Act 75 of 1997

The Basic Conditions of Employment Act104 deals with matters such as the regulation of working time;105 leave;106 remuneration;107and termination of employment,108 amongst others. The Act applies to all employees and employers.109 By implication, therefore, from the language used, the provisions in the Act also apply to persons with disabilities.

Code of Good Practice on Equal Pay or Remuneration for Work of Equal Value

The Code of Good Practice on Equal Pay or Remuneration for Work of Equal Value110 was issued in terms of the Employment Equity Act. One of the objectives of this Code is to ‘provide practical guidance to employers and employees on how to apply the principle of equal pay/remuneration for work of equal value in their workplaces’.111 The aim of the Code is to overcome the disadvantages which have been suffered by historically-marginalised groups, including persons with disabilities, in the workplace. The Code states that ‘[a] difference in pay/remuneration will only be unfair discrimination if the differences are directly or indirectly based on race, sex, gender, disability or any other listed or on any other arbitrary ground’.112 The Code, therefore, protects persons with disabilities from being discriminated against in relation to pay/remuneration. This is in line with article 27 of the CRPD.

In South Africa, therefore, there is no single piece of legislation which alone meets the article 27 standard. Nevertheless, the different pieces of legislation in combination can be said to meet the article 27 standard.

3.4 Botswana113
3.4.1 Obligation to provide equal work opportunities for persons with disabilities
Constitution of Botswana

The Constitution of Botswana114 falls short of the standard set in article 27 of the CRPD. Although the Constitution does not expressly list disability as one of the grounds upon which discrimination is prohibited, it does contain a clause providing for protection from discrimination on several grounds.115 It is important to note that prohibiting non-discrimination alone does not ensure that persons with disabilities have equal work opportunities. There is a need to make provision for positive steps, such as affirmative action or the use of the quota system, to ensure that persons with disabilities have equal access to opportunities for work.

3.4.2 Obligation to provide an open, inclusive and accessible work environment
Constitution of Botswana

In line with article 27 of the CRPD, the Constitution of Botswana provides for protection from slavery and forced labour.116

Employment Act Chapter 47:01

The Employment Act117 regulates all matters pertaining to employment, such as forced labour;118 protection of wages;119 rest periods; working hours; holidays; and other conditions of work.120 Section 120 deals with ‘regulations in relation to employment of infirm or handicapped persons’. This section gives the Minister the power to ‘make regulations in relation to the employment of persons affected by infirmity or physical handicap and, without prejudice to the generality of the foregoing, such regulations may regulate the conditions under which such persons are employed for the purpose of safeguarding their interests’. This provision suggests that the main provisions of this Act do not equally apply to persons with disabilities. It simply requires the Minister to produce provisions for ‘handicapped persons’. It goes without saying, therefore, that this Act falls short of the article 27 standard in that it fails to put in place measures to ensure that persons with disabilities have an open, inclusive and accessible work environment. Even if the provisions in the Act dealing, for example, with rest periods and working hours, are deemed to also apply to persons with disabilities, the Act would still fall short of the article 27 standard as it fails to include measures necessary for the creation of an open, inclusive and accessible work environment.

There are other Acts dealing with matters of work and employment, including the Trade Unions and Employers’ Organisations Act Chapter 48:01121 and the Vocational Training Act Chapter 47:04.122 However, neither of these Acts makes specific reference to persons with disabilities. This illustrates that Botswana laws do not meet the article 27 standard in as far as they fail to make provision through legislation for the right of persons with disabilities to work and employment.

3.5 Swaziland123
3.5.1 Obligation to provide equal work opportunities for persons with disabilities
Swaziland Constitution 2005

The Constitution of Swaziland124 contains provisions relating to work and employment. However, these provisions do not meet the article 27 standard. The Constitution prohibits discrimination on a number of grounds, including disability.125 This means that disability discrimination in the employment sector is prohibited by the Swaziland Constitution. The provision in the Constitution dealing with the rights of workers states that ‘[a]person has the right to practise a profession and to carry on any lawful occupation, trade or business’.126 The language used in this provision suggests that it applies to all people, including persons with disabilities. Nevertheless, the standard in article 27 has not been met. As stated earlier, the prohibition of discrimination and a declaration that all people have the right to work are inadequate for the protection of the right to work and employment for persons with disabilities. Some positive measures need to be taken in order to ensure that persons with disabilities actually have equal opportunities for work.

Employment Act 1980

The Employment Act127 also fails to meet the standard set in the CRPD. The anti-discrimination clause in the Act lists a number of grounds upon which employers may not discriminate, but disability is not one of these grounds.128 Persons with disabilities are not specifically mentioned in this Act. The provision does not contain a ‘catch-all’ phrase such as ‘or other status’ under which persons with disabilities might fall. This is an indication that the provisions in the Act are not mindful of persons with disabilities. The Act, therefore, omits to include important measures which are necessary for ensuring equal opportunities for work, such as quota systems and affirmative action. The Act, therefore, falls short of the article 27 standard.

3.5.2 Obligation to create an open, inclusive and accessible work environment
Constitution of Swaziland

Article 32 of the Swaziland Constitution deals with the rights of workers. It provides for the right to ‘freely form, join or not to join a trade union for the promotion and protection of the economic interests of that worker’129 and the right to ‘collective bargaining and representation’.130 Article 32 also requires the enactment of laws to ‘provide for the right of persons to work under satisfactory, safe and healthy conditions’;131 to ‘ensure equal payment for equal work without discrimination;132 to ‘ensure that every worker is accorded rest and reasonable working hours and periods of holidays with pay as well as remuneration for public holidays’;133 and the protection of employees ‘from victimisation and unfair dismissal or treatment’.134 In line with article 27 of the CRPD, the Constitution provides for protection from slavery and forced labour.135 The language used in the Constitution indicates that the provisions also apply to persons with disabilities. However, the article 27 standard is still not met in the Constitution as important measures, such as the requirement to reasonably accommodate, have not been included and, without these measures, the right to work and employment for persons with disabilities will not be adequately protected.

Industrial Relations Act 2000

The Industrial Relations Act136 regards dismissal based on disability discrimination as automatically unfair.137 This Act, however, still falls short of the article 27 standard as it does not make provision for conditions during employment of persons with disabilities. The Act also fails to require reasonable accommodation, which may be relevant to the question of unfair dismissal. For example, an employer may terminate the employment of a person with a disability because of claims that the employee is not doing the work satisfactorily, when in fact the lack of reasonable accommodation could be a contributing factor as to why the employee is not performing to the standard required.

Wages Act 1964

The Wages Act138 applies to all workers. Although it does not make specific reference to workers with disabilities, it may be implied that these workers are covered in the section under the term ‘all workers’. This Act does not make specific reference to persons with disabilities. This is a missed opportunity, since persons with disabilities have historically been disadvantaged as far as wages are concerned, by being paid less than other workers. The provisions in this Act were, therefore, not crafted with persons with disabilities in mind and fall short of the article 27 standard.

4 Conclusion

All the Southern African countries which have been examined in this commentary have legislation dealing with the right to work and employment. What varies between the different countries is the extent to which their legislation is mindful of the rights of persons with disabilities, particularly the right to work and employment. In some of the countries, the laws contain provisions on the right to work and employment which are specific to persons with disabilities while, in others, the provisions relating to the right to work and employment do not make mention of persons with disabilities at all. All the countries examined, with the exception of South Africa, are similar in that, despite having legislation governing the right to work and employment, they all have room for improvement as far as complying with the article 27 standard is concerned. Much of the legislation omits to make provision for important positive measures, such as the duty to provide reasonable accommodation, affirmative action and the quota system, to mention but a few. In light of the historical marginalisation of persons with disabilities in the employment sphere, such omissions can seriously compromise the ability to protect the right to work and employment for persons with disabilities. Therefore, the legislation in these countries does not meet the standard set in article 27 of the CRPD. The only exception is South Africa, whose employment legislation in combination to a large extent meets the article 27 standard. The other countries examined in this commentary have much work to do in order to comply with their general obligations under article 4(1)(b) to, at the very least, ‘take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities’. This, therefore, means, that the legislation in each of these countries needs to be amended in order to bring it in line with the standard set in article 27 of the CRPD. For these countries, such as Zimbabwe, which have disability-specific legislation which was drafted before the coming into force of the CRPD amending such legislation to bring it in line with the CRPD, should be a matter of priority. Those countries which have no disability-specific legislation should enact such legislation to ensure that it is in line with the standards set in the CRPD. Without taking these legislative steps, it is difficult, if not impossible, to adequately protect the right of persons with disabilities to work and employment.



 


1. JE Lord et al Human rights. YES! Action and advocacy on the rights of persons with disabilities139.

2. As above. Some employers actually deny persons with disabilities employment on the basis that it would be too ‘expensive’ to employ persons with disabilities because they have to be accommodated.

3. As above.

4. Convention on the Rights of Persons with Disabilities GA Res A/RES/61/06, adopted on 13 December 2006, entered into force on 3 May 2008.

5. The Right to Decent Work for Persons with Disabilities, launched by the ILO on the International Day of Disabled Persons, 3 December 2007.

6. M Schulze ‘Understanding the UN Convention on the Rights of Persons with Disabilities’ http://www.handicap-international.fr/fileadmin/documents/publica tions/HICRPDManual.pdf

7. Lord et al (n 1 above).

8. CRPD, art 27(1).

9. As above.

10. CRPD, art 27(1)(a).

11. CRPD, art 27(1)(d).

12. CRPD, art 27(1)(i).

13. CRPD, art 2.

14. CRPD, art 27(1)(e).

15. CRPD, art 27(1)(f).

16. CRPD, art 27(1)(g).

17. CRPD, art 27(1)(h).

18. CRPD, art 27(1)(j).

19. CRPD, art 27(1)(k).

20. CRPD, art 27(1)(b).

21. CRPD, art 27(1)(c).

22. CRPD, art 27(1)(i). The provision of reasonable accommodation falls under both categories: the creation of equal employment opportunities as well as the creation of an open, inclusive and accessible work environment. This is because the denial of reasonable accommodation is now part of the definition of disability discrimination. Therefore, in order to create equality of opportunity, there is a need to provide reasonable accommodation. At the same time, the provision of reasonable accommodation is also necessary to ensure that persons with disabilities can access buildings, information at the workplace and perform effectively in the workplace.

23. CRPD, art 27(2).

24. CRPD, art 3(b).

25. CRPD, art 3(e).

26. CRPD, art 3(f).

27. For purposes of this section, reference is made to disability-specific provisions and general provisions which apply to persons with disabilities by virtue of the use of terms such as ‘everyone’, ‘all’, etc. In order to save space and avoid repetition, the author will not explain when dealing with general provisions that they apply to persons with disabilities by virtue of the use of terms such as ‘everyone’ and ‘all’.

28. Zimbabwe ratified the CRPD on 23 September 2013.

29. Constitution of Zimbabwe, 2013.

30. Constitution of Zimbabwe art 56(3).

31. Constitution of Zimbabwe art 24(1).

32. Constitution of Zimbabwe art 24(2)(c).

33. Constitution of Zimbabwe art 83(a).

34. Constitution of Zimbabwe art 22(3)(a).

35. As above (my emphasis).

36. As above (my emphasis).

37. Art1 of the CRPD lists the different types of disabilities and these include ‘physical, mental, intellectual or sensory’ disabilities.

38. CRPD, art 27(1).

39. Labour Act [Chapter 28:01].

40. Labour Act, sec 5(1).

41. Labour Act, sec 5(1)(a).

42. Labour Act, sec 5(1)(b).

43. Labour Act, sec 5(1)(c).

44. Labour Act, sec 5(1)(d).

45. Labour Act, sec 5(1)(e).

46. Disabled Persons Act [Chapter 17:01].

47. Disabled Persons Act, sec 9.

48. Disabled Persons Act, sec 9(1)(a).

49. Disabled Persons Act, sec 9(1)(b).

50. Disabled Persons Act, sec 9(1)(c).

51. Disabled Persons Act, sec 9(1)(d).

52. Disabled Persons Act, sec 9(1)(e).

53. Disabled Persons Act, sec 9(1)(f).

54. Disabled Persons Act, sec 9(1)(g).

55. Disabled Persons Act, sec 9(2)(c).

56. CRPD, art 2.

57. Constitution of Zimbabwe, art 65(1).

58. Constitution of Zimbabwe, art 65(2).

59. Constitution of Zimbabwe, art 65(3).

60. Constitution of Zimbabwe, art 65(4).

61. Constitution of Zimbabwe, art 54. See n 27 above.

62. Constitution of Zimbabwe, art 55. See n27 above.

63. Angola ratified the CRPD on 19 May 2014.

64. Constitution of Angola 2010.

65. Constitution of Angola, art 23(2).

66. Constitution of Angola, art 76(1). See n27 above.

67. Constitution of Angola, art 76(3)(a).

68. Constitution of Angola, art 76(3)(b).

69. Constitution of Angola, art 83(4).

70. Making use of the quota system is not a necessity, particularly in light of the fact that there are divergent opinions about whether or not quota systems are desirable. The specifics of this debate are beyond the scope of this commentary. It is included here as an example of a positive step which may be taken in the protection of the right to employment.

71. General Labour Law 2000.

72. General Labour Law, art 3(1).

73. Constitution of Angola, art 76(2).

74. Constitution of Angola, art 76(3)(c).

75. South Africa ratified the CRPD on 30 November 2007.

76. Constitution of the Republic of South Africa, 1996. See n 27 above.

77. Constitution of South Africa, art 9(3).

78. Constitution of South Africa, art 22.

79. Employment Equity Act, 1998.

80. Employment Equity Act, sec 2.

81. Employment Equity Act, sec 2(a).

82. Employment Equity Act, sec 2(b).

83. Employment Equity Act, sec 4(2).

84. Employment Equity Act, sec 6(1).

85. Employment Equity Act, sec 5.

86. Constitution of South Africa, art 23(2)(a).

87. Constitution of South Africa, art 23(2)(c).

88. Constitution of South Africa, art 9(3).

89. Constitution of South Africa, art 13. See n27 above.

90. Employment Equity Act, sec 15(1).

91. Employment Equity Act, sec 1(e).

92. Employment Equity Act, sec 15(2)(c).

93. Employment Equity Act, sec 6(2)(a).

94. Code of Good Practice: Key Aspects on the Employment of People with Disabilities. Sec3(1) of the Code states that the code ‘is not an authoritative summary of the law, nor does it create additional rights and obligations. Failure to observe the Code does not, by itself, render a person liable in any proceedings. Nevertheless, when the courts and tribunals interpret and apply the Employment Equity Act, they must consider it.’

95. Code of Good Practice, sec 6.

96. Code of Good Practice, sec 7.

97. Code of Good Practice, sec 10.

98. Code of Good Practice, sec 11.

99. Code of Good Practice, sec 12.

100. Labour Relations Act 66 of 1995.

101. Labour Relations Act, sec 4(1)(b).

102. Labour Relations Act, sec 187(1)(f).

103. Reference is made to the duty to accommodate in secs 10(4), 10(1) &11(b)(ii) - dealing with cases of dismissal arising from ill health or injury.

104. Basic Conditions of Employment Act 75 of 1997.

105. Basic Conditions of Employment Act, ch 2.

106. Basic Conditions of Employment Act, ch 3.

107. Basic Conditions of Employment Act, ch 4.

108. Basic Conditions of Employment Act,ch5.

109. Basic Conditions of Employment Act, sec 3(1). There are, however, some exceptions such as members of the National Defence Force, the National Intelligence Agency, and the South African Secret Service and unpaid volunteers.

110. Code of Good Practice on Equal Pay or Remuneration for Work of Equal Value.

111. Code of Good Practice on Equal Pay, sec 1(1.1).

112. Code of Good Practice on Equal Pay, sec 4(6).

113. Botswana has not yet ratified the CRPD.

114. Constitution of Botswana 1966.

115. Constitution of Botswana, art 15(3).

116. Constitution of Botswana, art 6.

117. Employment Act [Chapter 47:01].

118. Employment Act, part VI.

119. Employment Act, part VII.

120. Employment Act, part VIII.

121. Trade Unions and Employers’ Organisations Act ch48:01.

122. Vocational Training Act ch47:04.

123. Swaziland ratified the CRPD on 24 September 2012.

124. Constitution of Swaziland 2005.

125. Constitution of Swaziland, art 20(2).

126. Constitution of Swaziland, art 32(1).

127. Employment Act 1980.

128. Employment Act, sec 29.

129. Constitution of Swaziland, art 32(2)(a).

130. Constitution of Swaziland, art 32(2)(b).

131. Constitution of Swaziland, art 32(4)(a).

132. Constitution of Swaziland, art 32(4)(b).

133. Constitution of Swaziland, art 32(4)(c).

134. Constitution of Swaziland, art 32(4)(d).

135. Constitution of Swaziland, art 17.

136. Industrial Relations Act, 2000.

137. Industrial Relations Act, sec 2(f).

138. Wages Act 1964.




1 Introduction

The Optional Protocol to the Convention on the Rights of Persons with Disabilities (CRPD), adopted by the United Nations (UN) and entered into force at the same time as the Convention, is a crucial addition to the international system of human rights protection.1 The Protocol provides for a mechanism for individual complaints to be submitted to the Committee on the Rights of Persons with Disabilities (CRPD Committee) by or on behalf of individuals or groups of individuals who believe that their rights under the CRPD have been violated by the state party. The Protocol gives persons with disabilities who are victims of such violations a voice and makes states more responsive and accountable to their obligations under the CRPD. The communication procedures of the Protocol are like those of other UN human rights treaty systems.2

Article 1 of the Protocol empowers the treaty-monitoring body of the CRPD, the CRPD Committee, to receive and review communications alleging violations of the Convention by participating state parties. To this end, the Committee confidentially communicates to state parties the communications received and allows the state six months to respond in writing with explanations or clarifying statements. Thereafter the

Committee reviews the communication and conveys its decision to the state party concerned and the author of the communication.3Although the Protocol is a legally-binding instrument, decisions of the CRPD Committee are not legally binding. The Committee, through its decisions under the Protocol, contributes towards the interpretation and application of the CRPD and the development of normative standards. The Protocol allows the Committee to express an expert opinion as to whether the violation of a right has occurred and to recommend appropriate remedies.

The CRPD, along with its Optional Protocol, has been strongly embraced by African states. This is evidenced by the fact that, as of July 2016,42 African states have ratified the CRPD and 23 states are party to the Optional Protocol.4 This commentary seeks to, first, describe and critically discuss the emerging jurisprudence of the CRPD Committee. The focus will be on the communications where the Committee has to date found violations of the CRPD, namely, HM v Sweden, Szilvia Nyusti and PéterTakács v Hungary, Marie-Louise Jungelin v Sweden,Liliane Gröninger v Germany, SC v Brazil and Zsolt Bujdosó & 5 Others v Hungary.

Akin to their counterparts in other regions, most African countries face significant challenges in formulating, domesticating and implementing disability rights to make the rights guaranteed in the CRPD a reality for persons with disabilities on the continent. The commentary further explores the implications for the African region, where the emerging jurisprudence of the CRPD Committee may offer guidance to state parties in the interpretation and implementation of rights.

2 HM v Sweden

HM v Sweden was the first communication brought against a state that was reviewed by the Committee.5 HM, a Swedish national suffering from a degenerative chronic connective tissue disorder, was refused permission by her local municipality to install a hydrotherapy pool for rehabilitation purposes on her property. The municipality refused to permit the building of the pool on the basis that the proposed pool would be in contravention of the Planning and Building Act. The pool would to a large extent be built on a zone of land that, per the town’s development plan, should not be built on. Even though HM’s debilitating condition made it difficult for her to leave her house to obtain treatment or rehabilitation at a hospital without great risk of injury, the municipality maintained that they could not permit an exemption in her case. HM’s appeals against the decision to several bodies, including the Administrative Court of Appeal, were refused. 6

In her communication to the CRPD Committee, HM alleged that the state had discriminated against her by failing to take into account her particular circumstances and needs in applying the Planning and Building Act.7 Furthermore, the state party’s refusal to grant HM permission to build the pool violated her right to enjoy the highest attainable standard of health without discrimination, her right to live independently and to be included in the community, and her right to attain and retain maximum independence and full inclusion and participation in all aspects of life through comprehensive rehabilitation, as provided for in articles 25, 19(b) and 26 of the Convention respectively.

Though HM v Sweden is a well-known case and the principles it sets out well established, two aspects of the Committee’s findings deserve mention considering their implications for African state parties to the Convention. The Committee in its findings emphasised that the failure to afford reasonable accommodation to persons with disabilities where such accommodation does not impose a disproportionate or an undue burden to the state constitutes discrimination under articles 2 and 5 of the Convention. 8

The principle of reasonable accommodation as set out in HM v Sweden has not yet found resonance on the African continent. The picture emerging from reports submitted by Tunisia, Kenya, Ethiopia, Gabon and Uganda to the CRPD Committee in accordance with state obligations under article 35 is that the concept of reasonable accommodation has not been fully incorporated in the legislations of many state parties to the Convention from the region. In countries such as Tunisia, where the concept is incorporated in national legislation, it is not defined and, consequently, there is a lack of clarity on its application.9 In South Africa, according to the Promotion of Equality and Prevention of Unfair Discrimination Act, all persons and entities have an obligation to reasonably accommodate persons with disabilities.10 However, reasonable accommodation is not explicitly defined in the definition section of the Act.11 In Ethiopia, the concept only relates to employment and not to the other areas covered by the Convention.12 For the principle of reasonable accommodation to take root, African state parties will first need to address the factors impeding the implementation of the principle. This requires them to incorporate the concept of reasonable accommodations defined in article 2 of the Convention in national legislation, explicitly recognising the denial of reasonable accommodation as disability-based discrimination. State parties should raise greater awareness of the concept of reasonable accommodation among the public and private sectors in their countries, in particular civil servants and members of the judiciary. Also, a comprehensive definition of reasonable accommodation that applies to all laws should be adopted nationally.

The CRPD Committee also recognised that a law enacted without any bias, which is applied in a neutral manner, may still have a discriminatory effect on persons with disabilities when their circumstances are not considered. The achievement of substantive equality requires that legislation and the way it is applied should not have either the purpose or effect of impairing or nullifying the recognition and enjoyment or exercise of any rights of persons with disabilities on an equal basis with others. The resounding message for African state parties is that, beyond ensuring equality in terms of outcomes in legislation, laws need to be applied to people with disabilities in a process which considers their individual circumstances.

3 Szilvia Nyusti and Péter Takács v Hungary

The case of Szilvia Nyusti and Peter Takács v Hungary13 provided the CRPD Committee with the opportunity to analyse the scope of the duty of the state under article 9(2)(b) of the CRPD. The article obligates states to ensure that private entities that offer facilities and services to the public consider all aspects of accessibility for persons with disabilities. The case was brought by two Hungarian nationals with severe visual impairments who separately, in their individual capacities, concluded contracts for private current account services which included banking card services with OTP Bank.14 Despite paying the same annual fees for banking card services as other clients, the complainants were unable without assistance to use the bank’s automated teller machines (ATMs) as these were inaccessible, lacking braille fonts, audible instructions and voice assistance. The Committee found that Hungary was in violation of article 9(2)(b) of the Convention by failing to ensure that persons with visual impairments have unimpeded access to the services provided by the bank on an equal basis with other clients.15

Some research gas been done that establishes that financial services and products offered by many private and public banks operating in Africa are not accessible to persons with disabilities.16 Persons with disabilities in many parts of the continent continue to be denied the opportunity to open and operate bank accounts independently, and they have limited access to financial services, including online banking services and ATMs.17

The findings of the Committee in Szilvia Nyusti and Peter Takács v Hungary, together with the General Comment issued by the Committee on accessibility, help in clarifying the obligations of African state parties to ensure that all goods, products and services open or provided to the public, must be accessible to all, regardless of whether they are owned and/or provided by a public authority or a private enterprise.18 The Committee made it clear that disability rights have vertical as well as horizontal application in that they are binding on the state as well as on private individuals. States undertake in article 4(1)(e) of the Convention to take the necessary measures, such as legislative and administrative measures, needed to eliminate discrimination on the basis of disability by any person, organisation or private enterprise. If disability rights are conceived as binding only on the state, they will be of limited reach as private individuals will not be placed under an obligation to desist from discrimination and to treat disabled people equally.

The Committee in Szilvia Nyusti and Peter Takács v Hungary provided concrete guidelines on how states can make the right to access to banking services a reality for their citizens with disabilities.19 The Committee recommended, inter alia, that states:

(a) establish minimum standards for the accessibility of banking services provided by private financial institutions for persons with visual and other types of impairments;

(b) create a legislative framework with concrete, enforceable and time-bound benchmarks for monitoring and assessing the gradual modification and adjustment by private financial institutions of previously inaccessible banking services provided by them into accessible ones;

(c) have in place effective sanctions for non-compliance with accessibility standards;

(d) ensure that all newly-procured ATMs and other banking services are fully accessible to persons with disabilities; and

(e) provide for appropriate and regular training on the scope of the CRPD and its Optional Protocol to banks, judges and other judicial officials.

Increased financial inclusion of persons with disabilities is central to poverty eradication, sustainable economic growth and the achievement of the Sustainable Development Goals in Africa. By adopting the recommendations set out by the Committee in the above case and in its General Comment, African state parties will be able to pave the way for accessible financial services for persons with disabilities.

4 Zsolt Bujdosó & 5 Others v Hungary

In Zsolt Bujdosó & 5 Others v Hungary,20 the names of six complainants with intellectual disabilities under guardianship were automatically removed from the electoral register in accordance with article 70(5) of the Hungarian Constitution which was in force at the time. The Hungarian Constitution explicitly stipulated that only persons with full legal capacity could exercise their right to vote.21 Persons placed under partial or full guardianship were excluded from voting. Due to this restriction, the complainants could not vote in either the parliamentary or municipal elections held in 2010.

The CRPD Committee examined the state party’s obligation to ensure the rights of persons with disabilities to vote in elections on a non-discriminatory basis, guaranteed by article 29 of the CRPD, in a communication brought to it by Zsolt Bujdosó and five others. Broadly stated, article 29 affirms the obligation of state parties to the Convention to ensure that persons with disabilities can effectively and fully participate in the political and public affairs of their countries on an equal basis with others, which includes the right to vote.

In response to the complaint, Hungary argued that this automatic denial of the right to vote of persons under guardianship had been remedied through the passing of legislation which now required courts to individually assess on a case-by-case basis whether a person under guardianship has the capacity to vote. Hungary claimed that the new provision was in line with the landmark judgment of the European Court of Human Rights (European Court) in the case of Alajos Kiss v Hungary.22 In this case, the applicant had complained about his automatic disenfranchisement due to his mental health status. In a unanimous decision, the European Court held in paragraph 44 of the judgement that ‘[a]n indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote’.

The Harvard Law School Project on Disability submitted a third-party intervention in support of the complainants.23 The interveners requested that the Committee in its decision decide on the broader question raised by the communication, namely, whether subjecting persons with disabilities to individualised assessment of their voting capacity is consistent with article 29 of the CRPD. The interveners submitted that article 29 of the CRPD required states to ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, including by adapting their voting procedures to facilitate the exercise of the right to vote by persons with disabilities.

The Committee found Hungary to be in violation of article 29 of the CRPD.24 The Committee concluded that excluding the right to vote based on actual or perceived intellectual or psychosocial disability was discriminatory and inconsistent with article 29. The Committee endorsed the view that article 29 of the CRPD did not envisage any reasonable restriction or exception on the right to vote for any group of persons with disabilities. In addition, the Committee stressed that article 12(2) required state parties to recognise and uphold the legal capacity of all persons with disabilities ‘on an equal basis with others in all aspects of their lives’, which includes their political life and, in this case, the right to vote. State parties are obligated by article 12(3) to take the necessary measures to ensure that persons with disabilities can exercise their legal capacity.

At the regional level, the African Commission on Human and Peoples’ Rights (African Commission) has made important comments on the right of persons with mental disabilities to vote under the African Charter on Human and Peoples’ Rights (African Charter). The Commission, in the case of Purohit,25 held that, according to the Charter, the right to political participation was extended to every person, including persons with mental disabilities. In its decision, the Commission found that the exclusion by The Gambia of persons with mental disabilities in a Gambian psychiatric hospital from voting was a violation of their rights under the Charter. The Commission in paragraph 76 of the judgement stated that ‘[i]t is very clear that there are no objective bases within the legal system of the respondent state to exclude mentally-disabled persons from political participation’.

The Gambian and Hungarian cases cited above are examples of the situation in most countries. The constitutions, electoral codes and legal capacity provisions in most African countries continue to permit the disenfranchisement of persons with intellectual or psychosocial disabilities based on a perceived lack of capacity to vote arising from their disability status. Section 11(1)(b) of the Tanzanian Elections Act of 1985, for instance, restricts persons with intellectual and mental health problems from registering as voters and participating in political affairs. In Gabon, per article 26 of the Law on common rules for all political elections in the Gabonese Republic of 1996, adults under guardianship and curatorship cannot be registered to vote. Article 83(1)(b) of the Constitution of Kenya prohibits a person declared to be of unsound mind from registering as a voter.

The CRPD Committee’s views in Zsolt Bujdosó and its Concluding Observations to the African state parties whose reports it has to date reviewed, such as Uganda and Gabon, provide some guidance to African state parties on interpreting and implementing the right to vote of persons with disabilities protected in article 29.26 In order to fulfil their obligations under the Convention, African state parties to the Convention need to repeal discriminatory constitutional provisions, provisions in electoral laws and regulations as well as legal capacity provisions that restrict the right to vote of persons with disabilities on an equal basis with others. State parties need to provide in their laws an unconditional right to vote to all persons with disabilities with no restriction based on real or perceived inability to vote. This means that states should abolish any existing individual assessments of the voting capacity of persons with disabilities. African state parties must, however, be aware that recognising the right to vote of persons with disabilities in their constitutions or legislation will not in itself guarantee the enfranchisement of citizens with disabilities. Ensuring that voters with disabilities can exercise their right to vote requires states to adopt a number of positive measures to overcome the obstacles that may prevent persons with disabilities from voting.

5 Liliane Gröninger v Germany 

Liliane Gröninger27 brought this case against Germany on behalf of her son on the basis that integration subsidies under the German social legislation were discriminatory and prevented the inclusion of persons with disabilities in the labour market and, thus, violated her son’s right to work. The integration subsidy was an affirmative measure put in place by Germany to assist persons with disabilities to integrate into the labour market.28 According to the Social code if an employer who made an offer of employment to a person with a disability whose full working capacity could be restored in three years’ time was eligible to apply to the employment agency for an integration subsidy. The agency would evaluate the application and decide on the duration and amount of the subsidy to be allocated. The complainant submitted that the administration of the scheme was complicated, and that potential employers found it difficult to gain access to the integration subsidy. The process excluded the participation of the person with the disability and, furthermore, the outcome and duration of the process were uncertain. The administration of the scheme deterred employers from employing persons with disabilities, including her son, who, despite being qualified, had never been employed. The scope of the scheme did not support those persons with disabilities whose full work capacity would never be restored.

In the view of the CRPD Committee, the integration subsidy scheme used by Germany to help lower the costs of employing a person with a disability for private sector employers did not effectively promote the employment of persons with disabilities.29 This was evident from the low absorption in the labour market of persons with disabilities. The way in which the scheme was administered was not consistent with the state’s obligation under article 27.

The Committee in its findings noted that article 27 of the CRPD required governments to ‘take all appropriate measures to eliminate discrimination on the basis of disability by any person, organisation or private enterprise’, which includes providing for reasonable accommodation measures,30 and to promote policies and programmes, including affirmative action,31 that encourage employers to recruit persons with disabilities.32 The article, according to the Committee, implies an obligation on the part of state parties to create an enabling and conducive environment for employment, including in the private sector, for persons with disabilities who have a right to benefit from measures such as placement services and assistance in obtaining employment.33

What may be understood by African state parties from the comments made by the Committee is that they have an obligation to promote the right to employment of persons with disabilities in the private sector; that measures to include persons with disabilities in the labour market must be effective; that incentives geared at encouraging the private sector to employ persons with disabilities should not be seen as a right of the employer, but that of persons with disabilities; and that the state is under a positive obligation to take a number of measures to ensure the inclusion of persons with disabilities in the work place. Without such positive measures, the right to employment of persons with disabilities may turn out to be merely token or even regressive. These positive measures are what will make the right transformative. The Committee’s findings also highlight the need for states to regularly assess whether policies or measures chosen to increase employment opportunities for persons with disabilities are in practice effective.

It should be noted that Germany’s existing social legislation predated the ratification of the CRPD. The case reflects the importance of revising the legislation after ratification to ensure that it complies with international obligations and that programmes guarantee real inclusion and avoid both direct and indirect discrimination.

6 Marie-Louise Jungelin v Sweden 

The CRPD Committee in 2014 adopted its views on this case brought against Sweden by Marie-Louise Jungelin, a visually-impaired citizen.34 Ms Jungelin had applied to work as an assessor at the Social Insurance Agency, a public entity. Following the interviews, she was told that, although she was an ideal candidate for the work, they could not consider her for the post because their internal computer system could not be adapted to her visual impairment, as adapting the whole information technology system and other computer systems to enable her to carry out her duties would be very expensive and time-consuming.35

Ms Jungelin reported the matter to the Swedish Disability Ombudsman, who took to the matter to the Labour Court. The Labour Court ruled that Ms Jungelin’s right to reasonable accommodation and, consequently, her right to employment had not been violated as the accommodation she needed would constitute an undue burden on the agency.

In their findings, the CRPD Committee for the first time stated that, when assessing the reasonableness and proportionality of accommodation measures and undue burden, state parties enjoy a certain margin of appreciation.36 The margin of appreciation, a doctrine developed by the European Court in assessing whether a member state has breached the European Convention on Human Rights, means that a member state is

afforded a degree of discretion when it takes judicial, administrative and legislative decisions in the area of a right afforded in a convention. 37 The reason for this was that state authorities, because of their intimate knowledge of their country, are better placed to interpret what a right means in a certain context when weighing competing public and individual interests. It is important to note that the Committee was not saying that states have unlimited discretion in deciding whether accommodations requested cause an undue burden. Rather, it indicates that, because assessments of reasonable accommodation often involve the weighing of competing interests, the Committee will respect the decision if the domestic courts used an objective criterion in reaching its decision.

Five committee members issued a joint dissenting opinion asserting that the courts did not sufficiently assess the reasonableness of her request.38 In the dissenting opinion, the committee members stated that reasonable accommodation must be analysed on a case-by-case basis, and that the reasonableness and proportionality of the measures of the accommodation proposed must be assessed in view of the context in which they are requested. The committee members were of the opinion that, while reasonable accommodation was in principle an individual measure, the benefit of other employees should also have been considered when assessing reasonableness and proportionality.

7 SC v Brazil 

In SC v Brazil,39 a Brazilian woman working for a national bank, and who had been demoted in her employment in accordance with company policy after having taken more than three months ‘medical leave, lodged a complaint before the CRPD Committee. The prolonged medical leave had been necessitated by a series of motorcycle accidents in which she had been involved, which left her with several injuries and permanent impairment of her knee. She alleged that the bank’s internal policy providing for the demotion of staff who take medical leave of more than three months had the effect of discriminating against persons with disabilities.40 The state in response to the allegation argued that the complainant did not fall within the definition of a person with a disability as set out in article 1 of the Convention, as she had been diagnosed by professionals of the National Institute of Social Security, an agency charged with certifying disability for purposes of granting monetary benefits to persons with disabilities unable to work or live independently as having a temporary incapacity to work. Therefore, she did not comply with the aspect of long term as stated in article 1.

Although the Committee found the complaint inadmissible because the complainant had not exhausted domestic remedies and, therefore, did not consider the merits of the case, it nevertheless explored whether the complaint fell within the scope of the Convention. The Committee commented that the author did fall within the ambit of article 1 as her physical impairment, in interaction with various barriers she experienced, did in fact hinder her full and effective participation in society on an equal basis with others.41 The Committee concluded that the difference between illness and disability was a difference in degree and not a difference of kind, because a health impairment which initially starts out as an illness can develop into an impairment that constitutes a disability as a consequence of its duration and its chronic nature.42

The CRPD, to allow the concept of disability to evolve over time, does not provide a definition of disability. However, the Preamble to the Convention states:

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

The CRPD opted to explain who persons with disabilities are rather than define disability. Countries, however, often must define disability, for instance to allocate social security benefits. To protect the rights of persons with disabilities, states often need to first clarify who falls in this category.

The decision of the Committee is a reminder to African state parties that the CRPD adopts a broad categorisation of persons with disabilities and reaffirms that all people with all types of disabilities must enjoy the rights and fundamental freedoms guaranteed by the CRPD. It also confirms that the definition of disability that states adopt must be understood in the context or purpose for which the definition was adopted.

8 Conclusion

It is encouraging to note that a number of African countries, such as Malawi, Kenya, Tanzania, Uganda, Zambia and South Africa, are making an effort to domesticate the provisions of the CRPD through measures which include promulgating disability-specific legislation, revising existing legislative provisions to make them compliant with the CRPD and the drafting of inclusive policies.43 That being said, in a preponderance of African jurisdictions, conspicuous gaps remain in the formulation, domestication and implementation of disability rights. This negatively impacts on the actual fulfilment of disability rights. The CRPD Committee’s jurisprudence under the Optional Protocol reflects the views of the Committee in relation to the CRPD. The views issued by the Committee on communications brought before it consists of the Committee’s collective assessment of the communications and recommendations for the enhanced implementation of the rights under the Convention. The value of the Committee’s jurisprudence for African countries who are party to the CRPD as they seek to domesticate the CRPD is that, even though the findings of the Committee are not legally binding, they have great interpretative import. They help to clarify the legal obligation of state parties and constitute important guidelines in the practical implementation of rights to ensure conscientious implementation of the CRPD.

The findings of the Committee on communications brought before it to date, discussed in the commentary, provide guidance to African state parties not only on the scope of specific obligations in the Convention, such as the duty to provide reasonable accommodation, but also on how to create an enabling environment for the rights of people with disabilities to flourish. African state parties can refer to the Committee’s jurisprudence in revising their legislation to ensure that it complies with the CRPD. The Committee throughout its jurisprudence stresses the importance of affirming the rights of persons with disabilities in the main provisions of law. The Committee, however, cautions states that the mere constitutional and legislative recognition of the rights of persons with disabilities, though imperative, does not automatically guarantee that persons with disabilities will enjoy these rights. There is a need, particularly in the context of historically-marginalised groups such as persons with disabilities, for states to dismantle the underlying systems and structures that continue to perpetuate the unequal enjoyment of rights through positive measures that ensure that persons with disabilities can enjoy their rights.

 

1. Adopted on 13 December 2006, entered into force on 3 May 2008.

2. Eg Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.

3. CRPD (n 1 above) arts 3 & 5.

4. For a list of countries that have signed, ratified and acceded to the Optional Protocol, see https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15-a&chapter=4&lang=en (accessed 30 April 2016).

5. Communication 3/2011, HM v Sweden, CRPD Committee (19 April 2012), UN Doc CRPD/C/7/D/3 (2011).

6. HM (n 5 above) paras 2.1-2.7.

7. HM (n 5 above) paras 3.1-3.4.

8. HM (n 5 above) paras 8.1-10.

9. Concluding Observations of the CRPD to Tunisia, UN Doc CRPD/C/TUN/1 (2011) paras 12-13.

10. Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, sec 9.

11. PEPUDA (n 10 above) sec 1.

12. Concluding Observations of the CRPD to Ethiopia, UN Doc CRPD/C/ETH/1 (2016) paras 8-9.

13. Communication 1/2010, Szilvia Nyusti & Péter Takács v Hungary, CRPD Committee (16 April 2013), UN Doc CRPD/C/9/D/1 (2010).

14. Szilvia Nyusti (n 13 above) paras 2.1-2.17.

15. Szilvia Nyusti (n 13 above) paras 9.1-11.

16. O Jared-Omari & O Bosire-Zachary ‘Investigating ATM system accessibility for people with visual impairments’ (2013) 15 IOSR Journal of Computer Engineering 13-18.

18. CRPD Committee, General Comment 2para 25.

19. Szilvia Nyusti (n 13 above) para 10(2).

20. Communication 4/2011, Zsolt Bujdosó& 5 Others v Hungary, CRPD Committee (2-13 September 2013), UN Doc CRPD/C/10/D/4 (2011).

21. Zsolt Bujdosó (n 20 above) para 2.

22. (2010) ECHR 38832/06.

23. Zsolt Bujdosó (n 20 above) paras 5.1-5.11.

24. Zsolt Bujdosó (n 20 above) paras 9.1-11.

25. Purohit& Another v The Gambia (2003) AHRLR 96 (ACHPR 2003).

26. Concluding Observations of the CRPD to Uganda, UN Doc (CRPD/C/UGA/1) (2016) paras 56-59; Concluding Observations of the CRPD to Gabon, UN Doc (CRPD/C/GAB/1) (2015) paras 62-63.

27. Communication 2/2010, Liliane Gröninger v Germany, CRPD Committee (4 April 2014) UN Doc CRPD/C/11/D/2 (2010).

28. Liliane Gröninger (n 27 above) paras 2.1-2.11.

29. Liliane Gröninger (n 27 above) para 6.2.

30. Art 27(1)(i).

31. Art 27(1)(h).

32. United Nations From exclusion to equality: Realising the rights of persons with disabilities: Handbook for parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol (2007) 87.

33. Liliane Gröninger (n 27 above) para 6.3.

34. Communication 5/2011, Marie-Louise Jungelin v Sweden, CRPD Committee (3 October 2014), UN Doc CRPD/C/12/D/5 (2011).

35. Marie-Louise Jungelin (n 34 above) paras 2.1-2.9.

36. Marie-Louise Jungelin (n 34 above) para 10.5.

37. Open Society Justice Initiative ‘An overview of the Strasbourg Court’s margin of appreciation doctrine’ April 2012 https://www.opensocietyfoundations.org/sites/.../echr-reform-margin-of-appreciation (accessed 12 March 2016).

38. Marie-Louise Jungelin (n 34 above) Appendix 1.

39. Communication 10/2013, SC v Brazil, CRPD Committee (28 October 2014), UN Doc CRPD/C/12/D/10 (2013).

40. SC (n 39 above) para 2.2.

41. SC (n 39 above) para 6.3.

42. As above.

43. Eg, Malawi repealed its Handicapped Persons Act of 1971 and enacted the Disability Act 8 of 2012. In 2010 Tanzania enacted the Persons with Disabilities Act 9 of 2010. Zambia enacted the Persons with Disabilities Act 6 of 2012. South Africa in 2016 introduced the White Paper on the Rights of Persons with Disabilities 39792. The Persons with Disabilities Act 2003 of Kenya is currently undergoing review. The new Persons with Disabilities Bill 2015 seeks to repeal and replace the Act.

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