• Justice Srem-Sai
  • BA, LLB, QCL (Ghana), LLM (Cardiff), LLM (Harvard)
  • Lecturer at the Faculty of Law, Ghana Institute of Management and Public Administration (GIMPA).

  • J Srem-Sai ‘The hugger-mugger of enforcing socio-economic rights in Ghana: A threat to the rights of persons with disabilities’ (2015) 3 African Disability Rights Yearbook 135-159
    http://dx.doi.org/10.17159/2413-7138/2015/v3n1a6
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  Research for this article was supported in part by the Disability Rights Scholarship Program, which is funded and administered by the Open Society Institute (OSI), New York. The opinions expressed herein are the author’s own and do not necessarily express the views of OSI. I am particularly grateful to Prof Luke Clements of Cardiff Law School for his useful comments.


Summary

At the heart of the Convention on the Rights of Persons with Disabilities (CRPD) is the reaffirmation of the universality, indivisibility, interdependence and interrelatedness of all human rights, and the open acknowledgement that civil and political rights alone cannot fully protect the inherent dignity and worth of persons with disabilities. Accordingly, the aims of the CRPD cannot be realised unless the socio-economic rights of persons with disabilities are rigorously enforced.Ghana, like most African signatories to the CRPD, operates a human rights regime that pays little attention to socio-economic rights. Socio-economic rights are contained in Chapter VI of Ghana’s Constitution (1992). The Chapter, titled the ‘Directive Principles of State Policy’, has been interpreted by its Supreme Court variously, making it impossible to discern, clearly, whether the rights listed in the Chapter are justiciable. These inconsistent interpretations pose a major challenge to the full implementation of the CRPD.This article seeks to achieve three broad objectives: to explain why socio-economic rights have been effectively unenforceable in Ghana; to show how the current situation poses a threat to the full performance of Ghana’s obligations under the CRPD; and to propose some ways of going round the impasse.The article is divided into five parts. Part 1 offers a brief description of the landscape of disability in Ghana. Part 2 unpacks the nature of the obligation that states undertake when they ratify the CRPD. It also explains how these obligations cannot be fully performed unless socio-economic rights are rigorously enforced. Part 3 takes a critical look at Ghana’s human rights regime under the 1992 Constitution.

Part 4 will conduct a brief international comparative analysis on how two countries - India and South Africa - have enforced socio-economic rights. The final Part will conclude by drawing on the experiences from other jurisdictions to suggest mechanisms for going round the impasse.

1 Disability and Ghana’s political economy

The disability landscape of Ghana, a lower-middle-income West African country,1 may not be very different from that of other countries within the sub-Saharan region. Even though the World Report on Disability estimates Ghana’s disability prevalence rate at 12,8 per cent,2 the 2010 census shows that there are 737 743 persons (3 per cent of the total population) with some form of disability, 52,5 per cent of whom are females. Of this figure visual or sight impairment constitutes 40,1 per cent, physical disability 25,4 per cent and emotional, behavioural, and intellectual disability 33,8 per cent. Visual or sight impairment is also the most common form of disability amongst both males (38 per cent) and females (42 per cent).3 The challenges that persons with disabilities face globally - disproportionately higher level of poverty, poor healthcare, low education and unemployment - applies to the 3 per cent of the population of persons with disabilities in Ghana. This is coupled with discrimination, exclusion and ill-treatment, factors which are deeply rooted in cultural and religious beliefs and practices.

In Ghana, especially in the rural areas, disability is believed to be caused by evil spirits or other supernatural forces. For example, a study conducted in the Brong-Ahafo region of the country4 reveals a common belief that parents use their children for ritual money, thereby making the parents rich while the children become intellectually disabled.5 Also, the practice in the upper regions, where disable babies are labelled ‘spirit child’ by witch-doctors and killed by poisoning is well documented.6 The belief is that such babies are a curse from the evil spirits to their parents; and unless killed, their parents will never attain any form of happiness.

Clements and Read observe that ‘the ways we define and theorize disability [including the causes we attribute to it] crucially determine how we approach matters bound up with it’.7 The Brong-Ahafo research reveals that 69 per cent of parents believed that intellectual disability could be cured. However, ‘God is mentioned as the source of cure in a lot of cases’, even though all of the parents who said they ‘went to all kinds of spiritual/miracle churches, prayer camps and to traditional priests for a possible cure of their children’ also reported that ‘their children were not healed after all the spiritual healing they sought after’.8 Also, in the upper regions, old women who seem to have behavioural or intellectual challenges are labelled as witches and thrown into ‘Witches’ Camps’.9 Modernity and democracy have helped to reduce the prevalence of these harmful cultural and religious practices; but they still persist.

The above notwithstanding, Ghana is touted as a leading example of a rising democracy in Africa.10 Certainly, there is a direct positive correlation between democracy and quality of human rights protection.11 Ghana’s strides in democratic governance in a continent struggling to come out of dictatorship and civil wars could therefore be explained by a reference to her human rights credentials. Whilst Ghana’s human rights records date back to pre-independence, its current human rights achievements cannot be explained without direct and extensive reference to the 4th Republican Constitution, 1992, which ended almost three decades of military dictatorship.12 Even though the 1992 Constitution contains both civil and political rights and socio-economic rights, it is only the former that could be pointed at with pride. The socio-economic rights are not just invisible, they are also inoperative.

Ghana is a state-party to the CRPD; and is expected to fully perform all the obligations thereunder. However, what are these obligations? And what is their nature? The next part of this article will unpack these obligations by discussing their form and content, more particularly those obligations that touch on socio-economic rights.

2 States parties’ obligations under the CRPD

In December 2006, the CRPD and its Optional Protocol were adopted by the UN General Assembly. By ratifying the Protocol, a state party

[R]ecognizes the competence of the Committee on the Rights of Persons with Disabilities (‘the Committee’) to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention.13

Approximately two years later, the CRPD and its protocol entered into force after the required number of states ratified them in accordance with their articles 45 and 13 respectively.

2.1 Content of obligation

The CRPD is unique in several ways. First; it is the only international instrument which comprehensively addresses the issue of disability rights,14 the subject having been ignored by almost all the seven15 preceding UN human rights treaties.16 Second; for decades, the social model, which asserts that environmental (rather than medical) factors are the real causes of disability, has been discussed and largely accepted.17 However, it is the CRPD that ‘formalizes [the] move away from treating people with disabilities through a medical lens and as objects of pity’.18

Further, article 4 sets out the broad tone for the CRPD’s implementation. The article requires state parties to take rigorous steps towards the full implementation of the rights and freedoms outlined in the CRPD. These steps include policy and legislative reforms (including repeals) based on consultations with disabled persons; and for the broader purpose of disability mainstreaming. Accordingly, Quinn notes that ‘in short, article 4 converts the Convention into a trigger for worldwide disability law reform’.19

However, it is article 3 which captures the overall purpose of the Convention. It outlines the principles upon which the entire Convention is mounted. Equality and non-discrimination, respect for differences, full and effective participation and inclusion in society; accessibility and recognition of capacity (including evolving capacity) leading to full autonomy and personal independence are stated as the ‘General Principles’ underlining the CRPD.20 These principles, like the purpose of legislation, may be justifiably treated as aids to interpreting the CPRD. Taken together, it may be clear that the principles are meant not just to undo the entrenched socially-constructed differences between Persons with disabilities and persons without disabilities. They are also meant to trigger concrete state actions that will afford durable compensation for the disadvantages that result from those socially-constructed differences. Of course, these principles are not new to human rights;21 and therefore could not be said to, by their mere statement, be unique in anyway. Their uniqueness however becomes apparent when they are read together with the history of disability human rights and the content of some particular provisions in the CRPD.

Under the CRPD, equality and non-discrimination is not to be taken merely on the formal level. Equality must be effective and substantive.22 Since the American with Disability Act, 1990, the anti-discrimination approach has formed the fulcrum around which disability rights protection has revolved.23 This approach gives prominence to civil and political rights and virtually no attention to socio-economic rights.24 It also treats equality as sameness,25 a premise which constitutes a major fault-line in the approach. This is because, persons with disabilities and persons without disability, though equal, are not the same. Indeed, the anti-discrimination approach brought about general awareness in the area of disability rights. That notwithstanding, the approach did not achieve much. It is evident that persons with disabilities still stand at a disproportionately disadvantaged position in relation to the general population. They form as much as 20 per cent of the world’s poorest population.26 They lack access to basic amenities like housing, healthcare, food (including clean water) and employment. They are still excluded from the society and are treated with stigma and disrespect. And in spite of the fact that they form probably the largest minority group,27 they are often ignored in policy. For example, the UN Millennium Development Goals, a concerted effort to fight global poverty, did not initially mention disability in any of the 8 Goals or the attendant 21 Targets or 60 Indicators, nor in the Millennium Declaration. 28

This disregard for socio-economic rights emanates from the ideological arguments that socio-economic rights are mere political statements which are not amenable to judicial enforcement;29 and that they could only be guaranteed by national policy (rather than law) and achieved progressively when resources are available.30 Ultimately, it is argued that judges lack the democratic legitimacy and the institutional capacity to enforce them.31 Civil and political rights on the other hand are seen as negative rights32 that do not require resources for their implementation. They are seen as automatically justiciable and therefore are rights.33

Several years after the Cold War, the dust is beginning to settle. It is now becoming abundantly clear that the distinction between civil and political rights and socio-economic rights is an exaggeration;34 and that the reluctance to include socio-economic rights in human rights legislation stems from this ‘historical construction of an artificial distinction’ between the two categories of right.35 There is now an emerging consensus ‘that reconciling the two categories of rights is an essential precondition for the realisation of socially embedded human rights’.36

The CRPD, being the first international human rights convention to be drafted following the adoption of the Vienna Declaration and Program of Action, 1993,37 reflects the ideals of that Declaration - a borderless body of human rights. The CRPD, therefore, reaffirms ‘the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms’.38 Thus, quite apart from the first generation rights, freedom of expression, of association, the rights to life, to fair trial, and so on, the CRPD also guarantees the second generation rights and does so with great sense of devotion. This striking devotion to socio-economic rights could be gleaned from articles 24 (right to Education), 25 (the right to health), 27 (the right to work and employment) and 28 (the right to adequate standard of living and social protection), amongst others.

Unlike the traditional human rights clauses, the CRPD clauses do not just list the socio-economic rights. The clauses come with a detailed outline of how states parties are expected to realise these rights. For example, with respect to the right to education, article 24(2) goes further to spell out the specific steps that the state shall take to realise its obligation. It requires an all-inclusive and unrestricted access to, at least, free compulsory basic education. The article even goes to the extent of listing ‘braille, alternative script, augmentative and alternative modes, means and formats of communication ...’ as some of the necessary facilities for realising this right.

With respect to the right to work under article 27, the state is specifically required to employ disabled persons in the public sector whilst creating conditions that will encourage the private sector to employ more disabled persons. The principle of reasonable accommodation is self-explanatory.39 Further, the state is to particularly promote ‘vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities’.40 This unprecedented specificity runs through the other articles that guarantee socio-economic rights. Comparing these clauses with those of the earlier instruments reveals a different approach to addressing socio-economic rights, namely, that states are no longer left on their own to determine the content of the socio-economic rights. So, when a state signs and ratifies the CRPD, it is clearly not into business-as-usual.

2.2 Nature of obligation

When states sign up to a treaty, the international obligation under the treaty are, by hypothesis, of international concern and no longer exclusively a matter of their domestic jurisdiction.41 This principle, however, does not mean or suggest, even remotely, that states parties should fold their arms and wait until complaints are brought against them at the international level before actions are taken. What it actually means is that ‘the principal responsibility for ensuring fulfilment of the obligations contained in human rights treaties rests with the government concerned’.42 Accordingly, Tunkin argues that:

[T]he principal field of struggle for human rights is the internal system of a state, and especially its socioeconomic system. The international protection of human rights, effectuated primarily by international legal means, is, although important, merely an auxiliary means of securing such rights. 43

Therefore, it is the state party (not the international community) which must adopt all appropriate domestic legislative, administrative and other measures for the implementation of the rights.44 It must take into account the protection and promotion of the human rights of persons with disabilities in all of its domestic policies and programmes. It has the imperative legal obligation to, in its policies and programmes, show clear and detailed commitment to marshalling its available resources towards ensuring that persons with disabilities are fully integrated into all aspects of society life.45 This obligation was echoed by the African Commission on Human and Peoples’ Rights, namely, that it is the obligation of ‘the states party to take concrete and targeted steps, while taking full advantage of its available resources, to ensure that the right to health is fully realised in all its aspects’.46 The CRPD obligations may thus be summed up as, to: repeal or adopt certain laws; mainstream concern for persons with disabilities; launch public awareness campaigns; build or adapt certain infrastructures; train specialised personnel; employ certain individuals; provide certain forms of services or assistance; and consult with the representative organisations of persons with disabilities.47

Ghana was one of the first countries to sign up to the CRPD and the Optional Protocol when they were opened for signature on 30 March 2007.48 Ghana subsequently indicated its total commitment to the obligations therein when it ratified both instruments on 31 July 2012.49 International law, treaty or customary, requires that states perform their international obligations in good faith.50 Clearly, it is not good faith for a country to say one thing to the whole world and then proceed to do quite another.51 The question then is whether Ghana is ready to perform its obligations under the CRPD in full and in good faith.

As explained above, a state party to the CRPD cannot perform its obligations fully without a legal system that respects, protects and fulfils socio-economic rights. Thus, for Ghana to be able to discharge its obligations, it must put in place (if it does not already have) a human right system that does not only protect civil and political rights, but also, and perhaps more essentially, that which protects economic, social and cultural rights. What is Ghana’s human rights system like? How does Ghana’s Constitution treat human rights in general and socio-economic rights in particular? Does Ghana’s Constitution, the source of its laws and legal system, support a full performance of the country’s obligations under the CRPD? The answers to these questions form the subject of the next part of this article.

3 Human rights in Ghana

Human rights under the 1992 Constitution is built around two main Chapters. Chapter V (articles 12-33), which is titled ‘Fundamental Human Rights and Freedoms’ and Chapter VI which is titled ‘Directive Principles of State Policy’.

3.1 The ‘Fundamental Human Rights and Freedoms’

Chapter V of the Constitution contains the traditional civil and political rights. The right to life (article 13), to personal liberty (article 14), to respect for human dignity (article 15), to protection from slavery and forced labour (article 16), to privacy (article 18), to fair trial (article 19), to ownership and protection of private property (article 20), to freedom of association, of movement (including assembly), of expression (including speech), to hold and practice culture, religion and politics (article 21); to equal access to education (including free compulsory basic education (article 25)). It also contains women’s rights (article 27), children’s rights (article 28) and the rights of persons with disability (article 29) and of the sick (article 30). This Chapter also contains some socio-economic rights, namely, the right to satisfactory, safe and healthy condition of work (including equal pay for equal work); the right to leisure and to paid public holidays; and the right to form and join trade unions (article 24). Free secondary education, technical and vocational training are to be introduced and realised progressively (article 25).

All these rights are to be enjoyed equally by all persons within the territory of Ghana and without discrimination on ‘ground of gender, race, colour, ethnic origin, religion, creed or social or economic status’.52 Article 17(4)(a) provides that nothing

shall prevent Parliament from enacting laws that are reasonably necessary to provide for the implementation of policies and programs aimed at redressing social, economic or educational imbalance in the Ghanaian society.

Clearly, this Clause, a mirror to the Rawlsian ‘difference principle’53 - permits the state to embark on affirmative action and programmes to redress socio-economic unevenness in the country.

Also, Chapter V has a clearly-outline enforcement mechanism. Where a person alleges that his or her rights under Chapter V have ‘been, or is being or is likely to be contravened ... that person may apply to the High Court for redress’.54 The remedies available to such persons includes (but are not limited to) ‘orders in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warranto’.55 In Awuni and Others v West African Examinations Council56 the Supreme Court held that ‘redress’ may include monetary compensation, even against the state. Fulfilling the charge in article 33(4), the Rules of Court Committee has enacted Order 67 of the High Court (Civil Procedure) Rules, 2004 (CI 47) to regulate the enforcement of the Chapter V rights.

Yet, the most encouraging provision is that which creates an opening for rights which, even though are not mentioned under Chapter V but which are nonetheless ‘considered to be inherent in a democracy and intended to secure the freedom and dignity of man’,57 to be enforced as if they were expressly mentioned in the Chapter. The implication of this is that the 1992 Constitution is open to the admission of new rights. This, indeed, is a bold acknowledgment of the fact that there are no limits to the lists of human rights. Accordingly, the Supreme Court in Ahumah-Ocansey v Electoral Commission; Centre for Human Rights and Civil Liberties (CHURCIL) v Attorney-General and Electoral Commission (Consolidated)58 had used the article 33(5) criteria to admit the right of prisoners to vote as a distinct right into the Chapter.

3.2 The Directive Principles of State Policy (DPSP)

The second Chapter which, together with Chapter V, forms the core of the human rights regime of the 1992 Constitution is Chapter VI (articles 34-41). The Chapter is titled ‘The Directive Principles of State Policy’. It contains the rights to ‘just and reasonable access by all citizens to public facilities and services’ (article 35(3)); to ‘economic development ... maximum welfare, freedom and happiness ... adequate means of livelihood and suitable employment and public assistance to the needy’ (article 36(1)); and to ‘fair and realistic remuneration’ (article 36(2)(a)). Also the state is required ‘as a fundamental duty’ to ‘assure the basic necessities of life for its people’ (article 36(2)(e)); to ‘safeguard the health, safety and welfare of all persons in employment’ (article 36(10)); and to ‘provide educational facilities at all levels’ (article 38(1)).

The entry of the DPSP into Ghana’s constitutional law could be traced to Chapter IV of the 3rd Republican Constitution, 1979, where they were primarily designed to achieve two main objectives. First, to ‘enumerate a set of fundamental objectives which a people expect all bodies and persons that make or execute public policy to strive to achieve’; and, second, to ‘constitute, in the long run, a sort of barometer by which the people could measure the performance of their government’.59 Quite apart from these two objectives, the DPSP also ‘elaborated the social and economic aspects of human right - aspects which are of particular relevance to the conditions of Africa and the developing world generally’.60 They also propose ‘specific provisions relating to the rights of categories of persons whose situation call for special guarantees and protection in the Constitution’.61 These purposes were again cited for the inclusion of the DPSP in the 1992 Constitution. According to the Committee of Experts, who deliberated and proposed the Constitution for acceptance, the DPSP are the:

[c]ore principles around which national political, social and economic life will revolve. This is precisely what the Directive Principles of State Policy seeks to do. Against the background of the achievements and failings of our post-independence experience, and our aspirations for the future as a people, the Principles attempt to set the stage for the enunciation of political, civil, economic and social rights of our people. 62

The DPSP, per the proposals of the drafter of the two Constitutions (1979 and 1992), were meant to follow the India approach.63 That the DPSP were not intended to be justiciable was very clear from the travaux preparatoires to the two Constitutions.64 However, unlike the Indian situation, this intention of non-justiciability was not written into either Constitutions. What is rather found in the 1992 Constitution is a provision that the DSPS

shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society. 65

This clearly leaves the status of the DPSP in a dilemma as to whether the rights contained in the Chapter could be enforced through a court action. It may be argued that not carrying the intention into the final Constitution is an indication that the intention was rejected and dropped; thus making them justiciable as any other provision of the Constitution.

It may equally be contended, on the other hand, that the DPSP are by tradition not justiciable; and that there was no need, in fact, that it would be mere superfluity, to state expressly in the Constitution that they were not justiciable. Be that as it may, it really does not matter now which view is superior. Suffice it to say that this dilemma continues to heavily afflict the Supreme Court of Ghana, even today and possibly into the foreseeable future.

3.2.1 Justiciability of the DPSP and the Supreme Court

The first time that the justiciability of Chapter VI came into question before the Supreme Court was in New Patriotic Party v the Attorney-General66 (31st December case), a case that had no link with human rights. In 31st December, the Plaintiff, a political party, complained that the use of public funds by the Government every year to commemorate the anniversary of a coup d’état on every 31st day of December was a violation of articles 3(3), (4), (5), (6), (7), 35(1) and 41(b) of the Constitution. Both article 35 and 41 are found in Chapter VI of the Constitution. The Attorney-General objected to the jurisdiction of the Supreme Court on the ground, inter alia, that the whole of Chapter VI was not justiciable and therefore articles 35 and 41 could not ground a cause of action. On this issue, the 9 judges on the panel were divided into all the three different positions possible - for, against and neutral.

Adade JSC took the position that the entire Constitution, including Chapter VI, was a legal document and thus was as justiciable as any other provision of the Constitution. He stated:

I do not subscribe to the view that chapter 6 of the Constitution, 1992 is not justiciable: it is. First, the Constitution, 1992 as a whole is a justiciable document. If any part is to be non-justiciable, the Constitution, 1992 itself must say so. I have not seen anything in chapter 6 or in the Constitution, 1992 generally, which tells me that chapter 6 is not justiciable. 67

Another Justice, Bamford-Addo JSC, took a contrary view. To her, the principles were to serve merely as a barometer to public authorities. She explained:

Now I come to the spirit of the Constitution, 1992. The plaintiff, apart from article 3, relied also on articles 35(1) and 34(b) of the Constitution, 1992, provisions under the ‘Directive Principles of State Policy’ to ground its claim. But the said principles are not justiciable and the plaintiff has no cause of action based on these articles. Those principles were included in the Constitution, 1992 for the guidance of all citizens, Parliament, the President, judiciary, the Council of State, the cabinet, political parties or other bodies and persons in applying or interpreting the Constitution, 1992 or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society. 68

It is worth mentioning here that both Justices based their two opposing conclusions on the traveaux preparatoire to the 1992 Constitution. The 7 remaining Justices did not offer any opinion on the issue. They think, and it appears so, that those articles under Chapter VI which were relied up on by the Plaintiff were irrelevant to the determination of the case. 69

It took four years, after 31st December, for the Supreme Court to have another opportunity to consider the issue whether or not Chapter VI of the 1992 Constitution was justiciable. This was in New Patriotic Party v Attorney-General70 (CIBA case). In CIBA, too, the same political party sued the Attorney-General, challenging the constitutionality of the Council of Indigenous Business Associations (CIBA) Law, 1993 (PNDCL 312 or the CIBA Law). The CIBA Law compels indigenous businesses of a kind to belong to an association which is basically controlled by the Government. The Plaintiff contends that the law was inconsistent with articles 21(1)(e), 35(1) and 37(2)(a) and (3) of the Constitution and consequently void. Article 21(1)(e) protects the right to freedom of association and is found under Chapter V of the Constitution. However, articles 35(1) and 37(2)(a) & (3) fall under Chapter VI.71 Unlike 31st December, CIBA has everything to do with human rights, particularly socio-economic rights. Accordingly, CIBA provides a much better context for the purposes of this discussion.

The Attorney-General, again, objected on the ground that articles 35 and 37, being part of Chapter VI, were not justiciable and therefore could not be enforced by a court action. This time, Bamford-Addo JSC, having a second bite at the cherry, took the opportunity to explain her earlier general position in 31st December, that no provision under Chapter VI is justiciable or enforceable. The learned Justice explained that:

... there are exceptions to this general principle. Since the courts are mandated to apply them [the DPSP] in their interpretative duty, when they are read together or in conjunction with other enforceable parts of the Constitution, 1992, they then in that sense, become enforceable. 72

The learned Justice, thus, proceeded on presumption that the provisions of Chapter VI are generally not justiciable; but may be only when they are read in conjunction with other enforceable provisions outside Chapter VI.73 In this regard, she specifically mentioned the ‘substantive guaranteed human rights and freedoms set out in Chapter V of the Constitution’. She subsequently applied this formula by reading article 35(1)(e) and 37(2)(a) & (3) (both under Chapter VI) in conjunction with article 21(1)(e) (under Chapter V) to find that the CIBA Law was an ‘erosion’ of the right to freedom of association.

With the exception of one Justice, Kpegah JSC, who did not think the Plaintiff had locus standi, 3 of the 5 Justices who sat on the case concurred with Bamford-Addo JSC’s position. In fact, one of the Justices, Atuguba JSC, put the position more clearly. He explained that the DPSP are ‘rules of construction to be applied when interpreting other provisions of the Constitution, 1992, just as at common law there is a great body of rules for the construction of statutes’ ... and that it is irrelevant that ‘some of the provisions of the Directive Principles of State Policy may after all pass for supplementary ‘rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned’.74 The overall implication of this formula is that no one may know beforehand that a provision under Chapter VI is enforceable.

In 2008, Chapter VI came up again for the Supreme Court’s consideration, in Ghana Lotto Operators v National Lottery Authority75 (Lotto case). A group of private lotto operators challenged the constitutionality of the National Lottery Act, 2006 (Act 722). The Act establishes the National Lottery Authority (NLA) to regulate, supervise, conduct and manage National Lotto. It also prohibits the operation of lottery by persons other than the NLA. The Plaintiffs’ plaint was that the regulation and prohibition offend article 36(2)(b), which falls under Chapter VI of the Constitution. Article 36(2)(b) requires the state to follow an economic objective by ‘affording ample opportunity for individual initiative and creativity in economic activities and fostering an enabling environment for a pronounced role of the private sector in the economy’. The Plaintiffs therefore argued that, to the extent that it excludes private persons from engaging in lottery business, the law violates the economic objective spelt out in article 36(2)(b). Again, the Defendant challenged the justiciability of article 36(2)(b) in particular and Chapter VI as a whole.

This time all the 9 Justices on the panel were unanimous on the issue of justiciability. The Court recounted Adade JSC’s position in 31st December that the entire Constitution as a legal document is justiciable. However, unlike Adade JSC, the Court did not think that all the clauses under Chapter VI were as justiciable as all the other clauses of the Constitution. The Court, speaking through Date-Baah JSC, stated:

The Constitution is a legal document containing the most important rules on political governance. The courts have the responsibility of ensuring that these rules are complied with. To my mind, therefore, the starting point of analysis should be that all the provisions in the Constitution are justiciable, unless there are strong indications to the contrary in the text or context of the Constitution. 76

The Court went on to state that some particular provisions under Chapter VI may, by their very nature, not lend themselves to judicial enforcement and that ‘[t]he very nature of such a particular provision would rebut the presumption of justiciability in relation to it’.77 However, perhaps, the most important statement that the Court made in the case is that:

The rights set out in chapter 6, which are predominantly the so-called ESC rights, or economic, social and cultural rights, are becoming, by international practice and the domestic practice in many jurisdictions, just as fundamental as the rights in chapter 5. The enforceability of these ESC rights is a legitimate purpose for this court to seek to achieve through appropriate purposive interpretation. We therefore think that the interpretation that we give to article 34 should take into account this purpose of achieving an expansion of the range of enforceable human rights in Ghana. 78

Clearly, this statement demonstrates the Court’s readiness to accord socio-economic rights in the Constitution their rightful place in the comity of human rights. Thus, even though the Court in this case did not find a violation of article 36(2)(b) by Act 277, it indicated strongly that where

a government introduces legislation which is flagrantly at odds with any of the objectives set out in the article, we believe that this Court has jurisdiction to strike down the provisions in the legislation which are incompatible with the objectives concerned. 79

Welcomed as this statement may be, it is clearly not enough. It is even no real step at all when viewed through the lenses of socio-economic rights in general and Ghana’s obligations under the CRPD in particular. Copious in the statement is the reference to ‘legislations which are flagrantly at odds’ with the DPSP. This makes it necessary to ask what actions the Supreme Court of Ghana in particular and the courts of Ghana in general may take when the measure is not a ‘legislation’; and more importantly when it is not ‘flagrantly at odds’ with a right.

The statement, we respectfully submit, seeks to treat socio-economic rights as civil and political rights, negative rights, with which the state cannot interfere. Indeed, it may be easy to envisage a situation where the government will put in place policies, programmes and legislations which may make it possible for persons to be evicted from homes without notice, thus violating a negative duty not to interfere in people’s right to housing. However, these are extremely rare and unlikely situations. What seems to be the obligation under the CRPD, as pointed out in the previous parts of this work, is for state parties to take specific positive steps towards ensuring progressive realisation of the rights to healthcare, food, housing, education and employment of persons with disabilities.

Viewed from this angle, the statement made by the Court could hardly be said to be friendly to the realisation of socio-economic rights in general and Ghana’s obligations under the CRPD in particular. But this is exactly the situation that the Supreme Court has put Ghanaians and, particularly, the about 1 million persons with disabilities in Ghana. It is necessary to turn and review how socio-economic rights are treated by courts in other jurisdictions.

4 Socio-economic rights enforcement in India and South Africa

Ghana is not entirely alone, and certainly not the first to be in this dilemma. The issues whether socio-economic rights are, first, justiciable; and second, how to enforce them, plague other national constitutions. It may not be true to say that other countries have completely resolved this dilemma. It is however true to say that some countries have made some remarkable progress in the area. Of particular mention are India and South Africa.

4.1 India

Like Ghana, the Indian Constitution has a chapter on DPSP - Part IV - also containing socio-economic human rights. Part IV sets forth ‘the humanitarian precepts that were ... the aims of the Indian Social Revolution.’80 Also, according to Robinson, the DSPS is an attempt ‘to create an ongoing, controlled revolution by laying an architecture in which massive social and economic transformation could take place within the limits of a liberal democracy’.81

Article 37 of the Indian Constitution, however, provides that ‘[t]he provisions contained in this Part shall not be enforceable by any court’; the principles are only to serve as a guide to ‘the State’82 in its functions. Essentially, the state is to have the DPSP in mind while determining the limits to place on the Fundamental Rights.

When matched against the civil and political rights listed in Part III (the Fundamental Rights) of the Constitution, the Indian courts originally took the position that the rights in Part IV ‘run subsidiary to the Chapter on Fundamental Rights’.83 However the decision of the Supreme Court in Kesavananda Bharati v State of Kerala84 altered this position and held that notwithstanding that they are not to be enforced, the DPSP enjoy the same status as the Fundamental Rights.85 In fact, one of the Justices, Mathew J, went a step further to hold that ‘[i]n building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles’.86

The express injunction in article 37 notwithstanding, the Supreme Court has, through interpretation, made orders that have resulted in effectively enforcing the socio-economic rights in the same manner as the civil and political rights.87 This is based on the understanding that:

The Fundamental Rights have themselves no fixed content; most of them are empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgement, curtailment and even abrogation of these rights in circumstances not visualised by the constitution makers might become necessary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV.88

Thus, today, one may safely argue that no court in India would cede jurisdiction on the sole ground that an alleged human rights violation is in respect of a socio-economic right. 89

Specifically in respect of disability rights, the Supreme Court of India has made some significant progress. This progress, one may argue, is attributable to the Court’s jurisprudence on the enforcement of socio-economic rights as outline above. For example, in Javed Abidi v Union of India,90 the Court ordered that ‘those suffering from the aforesaid locomotor disability to the extent of 80 per cent and above would be entitled to the concession from the Indian Airlines for travelling by air within the country’.The Court’s jurisprudence may be traced in line of cases, including BR Kapoor & Anrv Union of India & Others91(on access to healthcare), Amita v Union of India92(on employment rights), National Federation of Blind v Union Public Service Commission93 (on affirmative action), Bhagwan Dass & Another v Punjab State Electricity Board94 (on employment rights), and Sukhvinder Singh v Union of India & Others95 (on pension entitlements). Accordingly, it is suggested that the Indian Rights of Persons with Disability Bill, 2014, when passed into law, would have a substantial backing from the Supreme Court in particular and the judiciary in general.

4.2 South Africa

A review of the South African experiment presents slightly different regime from the Ghanaian and the Indian regimes. Unlike the latter two, the structure of the South African Constitution does not distinguish between the two categories of rights.96 Socio-economic rights are under the same Chapter II of the Constitution as the civil and political rights. This arrangement makes the South African Constitution unique in the sense that the question whether the socio-economic are justiciable cannot be advanced from the text of the Constitution - that question was answered before the coming into force of the Constitution. 97

This leaves only the issue of how to enforce the socio-economic rights to be addressed. Consequently, the Constitutional Court has over the years devised mechanisms of how to enforce socio-economic rights.98 This mechanism includes active court supervision of the enforcement socio-economic rights.

In respect of disability rights, specifically, much may not be said about the Constitutional Court. This is substantially due to the fact that the Court is pretty much younger; and is yet to see cases that touch specifically on socio-economic rights of persons with disabilities. Suffice it to say, however, that the Court’s foundational approach to the enforcement of socio-economic rights is more likely than otherwise to set it on the path that will, at least, not stifle disability rights, particularly those aspects that involve socio-economic rights.

5 Recommendations and conclusion

5.1 Recommendations

We have noted in the previous parts that justiciability of socio-economic rights involves two sub-questions. First, whether they could be enforced; and if so, second, how to enforce them.99 We have also established from the international comparative analysis in part 4 that the South African Constitutional Court in Re Certification100 had relieved itself of the first question by holding, even before the Constitution came into force, that socio-economic rights are justiciable. The Court had since been preoccupied with the second question relating to how to enforce these rights. In this regard, the Court has built, or perhaps, is in the process of building, for itself and for the international human rights community an enviable jurisprudence. 101

We have also considered a different situation, the Indian situation, where the Constitution expressly injuncts the courts from adjudicating upon the DSPS. In this second scenario, we have shown that the Indian Court has found three methods of going round the first hurdle: the expansionist approach, enforcement of legislation and enforcement of the DSPS by and of themselves. Accordingly, the Indian courts have enforce the DSPS in a manner that is almost the same as how they enforce the ‘Fundamental Rights’.

In particular, we have argued that the Indian Court’s jurisprudence on the enforcement of socio-economic rights is a chief contributory factor to its relatively progressive approach to the rights of Persons with disabilities. Based on the Indian experience, we have suggested that the South African Court, whose approach to the enforcement of socio-economic rights is acclaimed to be one of the most progressive, may be even more progressive with time.

We have pointed out in part 3 of this essay that Ghana’s Supreme Court started its journey by creating an avoidable hurdle for itself, namely, that the DSPS are not justiciable by and of themselves.102 We noted that the Court spent its first 15 years under the 1992 Constitution working its way round this hurdle. As explained, the current position of the Court is that the socio-economic rights under Chapter VI of the Constitution, the DSPS, enjoy a ‘presumption of justiciability’.103 This, we submitted, means that there are instances, which instances are yet to be spelled out, where the presumption may be rebutted in which case a socio-economic right may not be justiciable. Accordingly, the Court is yet to cross the first hurdle, after which it will have to start building its own processes with respect to how to enforce socio-economic rights.

The above situation, we have argued, poses a major challenge, not just to the enforcement of socio-economic rights in general, but also to the successful implementation of the CRPD in particular. In other words, as it stands, the socio-economic rights that form the cutting edge of the CRPD is clamped ab initio by the Supreme Court of Ghana. The natural consequence of this clamping is that the about 1 million persons with disabilities in Ghana, notwithstanding the coming of the CRPD and all its positives attributes will continue to endure the disadvantages of disability. To avert this consequence, the following should be done:

5.1.1 Constitution amendment

The position of Ghana’s Supreme Court on the justiciability issue has been highly dependent on the composition of the panel of judges sitting on the cases. The implication therefore is that the current position may vary again, for better or for worse, depending on the orientation of the individual justices constituting the panel. This is because, the Supreme Court has the power to vary or depart from its own previous decisions.104 Thus, the first (and perhaps the most definitive recommendation) is that the Constitution be amended to expressly state that socio-economic rights in general and Chapter VI (the DSPS) are justiciable. This will require that Chapter VI of the Constitution, too, be assigned an enforcement mechanism just as Chapter V (the ‘Fundamental Human Rights and Freedoms’) has.

This will, firstly, put the matter beyond the discretion of any individual justice and ultimately beyond the Supreme Court. Secondly, such amendment will carry the Supreme Court swiftly across through the current impasse. This will then bring the Ghana Court closer to the Indian and the South African Courts, having only to deal with the second sub-question - how to enforce these rights.

It may be argued that such an amendment may open a floodgate for all sorts of claims to be brought, compelling the judiciary to veer off into the province of the executive and the legislative arms of government, which arms have the exclusive control over the state’s power to make policies and allocate resources. Genuine as this concern may be, we argue, it is an exaggeration of the situation. The practice is not novel.

In 2008, Langford concludes after analysing about 2 000 judicial and quasi-judicial decisions across 29 national and international jurisdictions that

courts have ordered the reconnection of water supplies, the halting of forced evictions, the provision of medical treatments, the reinstatement of social security benefits, the enrolment of poor children and minorities in schools, and the development and improvement of state programmes to address homelessness, endemic diseases and starvation. 105

The European Court of Human Rights had rejected an argument that seeks to draw a ‘water-tight’ distinction between the enforcement of socio-economic rights and civil and political rights.106 Also, the Inter-American Court of Human Rights in Acevedo Buendía et al v Peru,107 has reaffirmed that socio-economic rights under article 26 of the American Convention are justiciable. We have already stated the African Commission’s position on the subject.108All this points strongly to one direction that socio-economic rights are no more non-justiciable;109 and that the only question that may be asked is how they are enforced.

5.1.2 Expansionist approach

While awaiting a constitutional amendment, we recommend that the Court adopt the Indian expansionist approach. This approach involves the reading of socio-economic rights into civil and political rights, particularly the right to life. In Grootboom, the South African Court rejected the invitation thrown to it by the Applicants to adopt the expansionist approach of the Indian Court.110 The court did so on the reasoning that the Constitution had already provided for justiciable rights to health, for which reason there was no need to read the right to health care into the right of life. It is therefore quite clear that where the socio-economic rights are, by constitution, not justiciable, courts may read them into the civil and political rights, in particular the rights to life.

Ghana’s position, as we have showed in this work, leaves us in doubt whether socio-economic rights are really justiciable. In this sense, it is suggested strongly that Ghanaian courts adopt the Indian expansionist approach by reading the socio-economic rights in Chapter VI of the Ghanaian Constitution into their related civil and political rights in Chapter V. In any case, and as we have noted in the previous chapters of this work, it is now clearer that the distinction between the two category of rights is not ‘water-tight’.

5.1.3 Enforcement by legislation

Article 29 of Ghana’s Constitution provides for the right of persons with disabilities. There is also a National Policy on Disability, 2000. In August, 2006, about 6 months before the CRPD was adopted, Ghana’s Persons with Disability Act, 2006, (Act 715) came into force. These provisions, however, are largely anti-discriminatory in nature and focus largely on civil and political rights. That notwithstanding, they, Act 715 in particular, guarantee some socio-economic rights, namely the rights to employment,111 education112 and health. 113

The above provisions notwithstanding, Ghana’s Constitution Review Commission in its 2011 Report recommended that steps should be taken ‘without further delay in order to operationalize the rights of persons with disabilities in the Constitution and the Persons with Disabilities Act’.114A gap analysis commissioned by the Ghana Federation for the Disabled (GFD) and published in 2013 concludes that Ghana’s Persons with Disabilities Act is ‘lacking in certain vital provisions contained in the UNCRPD without which Ghana cannot boast of a robust regime for effectively protecting the rights of persons with disability’.115

Thus clearly, the provisions in the Persons with Disabilities Act are far from meaningful; the reason being that they remain largely unenforced and perhaps unenforceable. Indeed, it cannot be authoritatively stated that this situation is solely due to the unwillingness of the Ghanaian courts (the Supreme Court in particular) to enforce these rights. What however could be asserted is that the enforcement of these rights by the courts will make the provisions meaningful. It is therefore recommended that the Supreme Court adopt the approach of the Indian Court, where Acts are enforced in place of the non-justiciable Constitutional provisions. 116

5.1.4 Education and awareness creation

It is true that law, including court decisions, is a tool for social (including attitudinal) change. But it is also very true that law alone is not a panacea to social change. Deliberate efforts on the part of the state and civil society directed at positively affecting attitudes of people towards persons with disabilities is a strong accompaniment. The Ministry of Education and the Ghana Education Service should design a subject or, at least, a topic on disability rights. This topic if taught at the basic level of education throughout the country will go a long way to make the future generation of citizens understand disability.

6 Conclusion

The discussion has not been about whether socio-economic rights are enforceable in the same manner as civil and political rights, neither has it been about which of the two categories of rights takes precedence over the other. The central issue considered in this essay is whether socio-economic rights are justiciable in Ghana; if so, to what extent. If not, then, why and how to make them justiciable like in India, South Africa or elsewhere.

The discussion reveals that the question whether socio-economic rights are justiciable involves two ‘sub-questions’. First, whether they are enforceable, namely, whether they could form the basis of a court action at all. If so, then, how they may be enforced. Ghana’s current position on these issues is that there is a ‘presumption of justiciability’ in favour of socio-economic rights. This means that there are circumstances where some socio-economic rights may not be justiciable. This position, a product of about two decades of inconsistent jurisprudence of the Supreme Court, is an improvement over what used to be the case in prior to the Lotto case.

We have, however, also argued that this position is insufficient and not in line with current trends in the field. We demonstrated this by looking at

the CRPD, an instrument which highlights the current thinking,117 namely, that human dignity (of persons with disabilities) cannot be adequately protected without taking socio-economic rights, too, seriously. We argued further that Ghana’s current position on the enforcement of socio-economic rights poses a major challenge to the realisation of the aims of the CRPD in particular and the human rights enforcement in general.

To overcome this challenge, Ghana should amend its Constitution to make Chapter VI, which contains socio-economic rights, justiciable. This will put a definite answer to the first sub-question, whether socio-economic rights are enforceable. The courts of Ghana will then look to India, South African or elsewhere to adopt the best of the mechanisms that are being used to enforce socio-economic rights. This will supply the answer to the second sub-question, how to enforce socio-economic rights. This, we submit, will put Ghana on the way to meeting its obligations, fully, under the CRPD. Until this is done, we believe that Ghana’s human rights credentials, which already lags behind, cannot be advanced further.

 


1. World Bank ‘Data for 2012’ http://data.worldbank.org/country/ghana (accessed 14 July 2014).

2. WHO & World Bank ‘World report on disability (main report)’ (2011) 273. The Report combines both World Health Survey (2002 -2004) and Global Burden of Disease (2004) to arrive at the figures.

3. Ghana Statistical Service ‘Report on population and housing census, 2010 (Summary)’ 12-13.

4. Brong-Ahafo Region is one of the 10 regions of Ghana. The Region has the lowest proportion of persons with disabilities (2,3 per cent).

5. Inclusion Ghana ‘Report on the level of stigmatization and exclusion of persons with intellectual disability and their families in Ghana’ (July2011) 11.

6. Al-jazeera ‘Spirit child’ (Undercover Investigation) http://www.aljazeera.com/programmes/peopleandpower/2013/01/201319121124284358.html (accessed 14 July 2013).

7. L Clements & J Read ‘Life, disability and pursuit of human rights’ in L Clements & J Read (eds) Disabled people and the right to life: The protection and violation of disabled people’s most basic human rights (2008) 2.

8. Inclusion Ghana (n 5 above) 12.

9. See generally: ActionAid Condemned without trial: Witches camp in Ghana (2012).

10. USAID Ghana Ghana Democracy and Governance Assessment Report (2011) 11. The Report also cites a ranking by an organisation called Freedom House, which ranks Ghana as ‘1 out of 7 on Political Rights (with 1 being the best) and 2 out of 7 on Civil Liberties’.

11. C Davenport & D Armstrong II ‘Democracy and the violation of human rights: a statistical analysis from 1976 to 1996’ (2004) 48 American Journal of Political Science 538 538-39; R Lang et al ‘Implementing the United Nations Convention on the Rights of Persons with Disabilities: Principles, implications, practice and limitations’ (2011) 5 European Journal of Disability Research 206 211; also see H Fein ‘Life-integrity violations and democracy in the world, 1987’ (1995) 17 Human Rights Quarterly 170, where it was found that a full dictatorship too may result in human rights protection.

12. Republic of Ghana ‘Report of the Constitution Review Commission’ (2011) 626; Also see E Gyimah-Boadi Confronting the legacy of human rights abuse in Africa: Lessons from Ghana (2004) 10.

13. Art 1, Optional Protocol to the CRPD, 6 December 2006, UN GAOR, 61st Sess, Item 67 (b), UN Doc A/61/6111.

14. Clements and Read (n 7 above) 509.

15. International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (CESCR); the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT); the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention on the Rights of the Child (CRC) (except art 23(1)); and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICPMW).

16. A Lawson ‘The United Nations Convention on the Rights of Persons with Disabilities: New era or false dawn’ (2006-2007) 34 Syracuse Journal of International Law & Commerce 563 575-76; also, M Stein ‘Disability Human Right (2007) 95 California Law Review 75 79.

17. R Lang ‘The United Nations Convention on the right and dignities for persons with disability: A panacea for ending disability discrimination?’ (2009) 3 ALTER, European Journal of Disability Research 266 268.

18. M Waterstone ‘The significance of the United Nations Convention on the Rights of Persons with Disabilities’ (2010 - 2011) 33 Loyola of Los Angeles International and Comparative Law Review 1 2; also see J Lord & M 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 449 460.

19. G Quinn ‘The United Nations Convention on the Rights of Persons with Disabilities: Toward a new international politics of disability’ (2009-2010) 15 Texas Journal on Civil Liberties & Civil Rights 33 41.

20. Lang (n 17 above) 5.

21. Clements & Read (n 7 above) 509.

22. Lawson (n 16 above)590.

23. A Kanter ‘The United Nations Convention on the Rights of Persons with Disabilities and its implications for the rights of elderly people under international law’ (2009) 25Georgia State University Law Review 527 540-42.

24. See generally: A Satz ‘Disability, vulnerability, and the limits of anti-discrimination’ (2008) 83 Washington Law Review 513; also see M Stein ‘Same struggle, different difference: ADA accommodations as anti-discrimination’ (2004) 153 University of Pennsylvania Law Review 579, where it is argued that the anti-discrimination approach forms the theme for the Americans with Disability Act, 1990

25. M Stein ‘Disability human rights’ (2007) 95 California Law Review 75 92.

26. A Elwan Poverty and disability: A survey of the literature World Bank Social Protection Discussion Paper Series No 9932 (1999) 15.

27. T Degener ‘Disabled persons and human rights: the legal framework’ in T Degener & Y Koster-Dreese (eds) Human rights and disabled persons: Essays and relevant human rights instruments (1995) 9.

28. See generally: General Assembly Resolution 55/2, UN GAOR 55th Sess, UN Doc A/RES/55/2 (18 September2000). This grave omission compelled the UN General Assembly to subsequently adopt a new Resolution ‘Realizing the Millennium Development Goals for persons with disability’ (A/RES/64/131) to fill the gap.

29. M Cranston ‘Human rights: Real and supposed’ in D Raphael (ed) Political theory and rights of man (1967) 43-51.

30. L Sohn ‘The new international law: Protection of the rights of individuals rather than states’ (1982-1983) 32 The American University Law Review 1 18-19.

31. F Michelman ‘The constitution, social rights, and liberal political justification’ (2003) 1 International Journal of Constitutional Law 13 15-16.

32. F Cross ‘The error of positive duties’ (2001) 48 UCLA Law Review 857 863-65; S Bandes ‘The negative constitution: A critique’ (1990) 88 Michigan Law Review 2271 2272.

33. A Dhanda ‘The right to treatment of persons with psychosocial disabilities and the role of the courts’ (2005) 28International Journal of Law and Psychiatry 155 156.

34. T Campbell ‘Poverty as a violation of human rights: Inhumanity or injustice?’ in T Pogge (ed) Freedom from poverty as a human right: Who owns what to the very poor?(2007); Airey v Ireland [1979-80] 2 EHRR 305 316-17.

35. P Weller ‘Human rights and social justice: The Convention on the Rights of Persons with Disabilities and the quiet revolution in international law’ (2004) 9 Public Space: The Journal of Law and Social Justice 74 74.

36. P Weller (n 66 above) 82; Vienna Declaration and Program of Action 1993, Art 5; World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc A/CONF. 157/23 (1993).

37. World Conference on Human Rights, 4-25 June 1993, Vienna Declaration and Programme of Action, UN Doc A/CONF. 157/24 (July 12, 1993); A Dhanda ‘Legal capacity in the disability rights Convention: Stranglehold of the past or lodestar for the future?’ (2007) 34 Syracuse Journal of International Law & Commerce 429 432.

38. Preamble of the CRPD (n 13 above) para C.

39. CRPD (n 13 above) art 2(4).

40. CRPD (n 13 above) art 27(1)(k).

41. A Robertson ‘The implementation system: International measures’ in L Henkin (ed) The international bill of rights (1981) 332 333.

42. P Alston & G Quinn ‘The nature and scope of states parties’ obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156 162.

43. G Tunkin Theory of international law (1974) 83.

44. A Kanter ‘The promise and challenge of the United Nations Convention on the Rights of Persons with Disabilities’ (2006-2007) 34 Syracuse Journal of International Law & Commerce 287 314.

45. CRPD (n 13 above) art 4(2).

46. Purohit and Moore v The Gambia, African Commission on Human and Peoples’ Rights, CommNo 241/2001 (May 2003) para 84. The Commission, in this case, was dealing with the right to health, particularly mental health, under articles 16 & 18 of the African Charter on Human and Peoples’ Rights ( Organization of African Unity (OAU) African Charter on Human and Peoples' Rights (‘ACHPR or Banjul Charter’) 27 June 1981, CAB/LEG/67/3 rev 5, 21 ILM 58 (1982)).

47. F Megret ‘The Disabilities Convention: Human rights of persons with disabilities or disability rights’ (2008) 30 Human Rights Quarterly 494 506; Lord & Stein (n 18 above) 457-59.

48. United Nations Enable ‘Convention and Optional Protocol Signatures and Ratifications’ http://www.un.org/disabilities/countries.asp?id=166 (accessed 20 July 2013).

49. United Nations Enable ‘Convention and Optional Protocol Signatures and Ratifications’ http://www.un.org/disabilities/countries.asp?id=166 (accessed 20 July 2013) .

50. United Nations Vienna Convention on the Law of Treaties (VCLT), UN Doc A/Conf.39/27; 1155 UNTS 331(1969), art 31(1); G Schwarzenberger & E Brown A manual of international law (1976) 7.

51. J O’Connor Good faith in international law (1991) 124.

52. Republic of Ghana Constitution 1992, art 17(1); also see Hon Justice J Taylor ‘The scope of human rights in Ghana’ (1993-95) 19 Review of Ghana Law 84 92.

53. The ‘difference principle’ states that social and economic inequalities may be justifiable if they are meant to bring the least advantaged members of society at par with the other members of the society. See J Rawls On justice as fairness: A restatement E Kelly (ed) (2001) 42-43.

54. Art 33(1).

55. Art 33(2).

56. [2004] 1 Supreme Court of Ghana Law Reports 471.

57. Art 33(5).

58. [2010] Supreme Court of Ghana Law Reports 575 614.

59. See Republic of Ghana Report of the Committee of Experts on the 1992 Constitution (1992) para 95.

60. Republic of Ghana (n 59 above) para 139.

61. As above.

62. Republic of Ghana (n 59 above) para 94.

63. See Republic of Ghana Proposals for Draft Constitution of Ghana (1991) General Introduction para 7.

64. Republic of Ghana (n 59 above) para 95.

65. Art 34(1).

66. [1993-1994] 2 Ghana Law Reports 35.

67. 31st December (n 66 above) 66.

68. 31st December (n 66 above) 149.

69. For example, Abban JSC (as he then was) observed at 102 of the report that: ‘[T]he provisions of articles 35(1) and 41(b) of the Constitution, 1992 had no relevance, whatsoever, to the subject matter before the court. Reference to those articles, with due respect, was totally misconceived.’

70. [1997-1998] 1 Ghana Law Reports 378.

71. Article 35(1) declares Ghana as a ‘democratic state dedicated to the realization of freedom and justice’. Article 37(2)(a) directs the state to enact appropriate laws to assure the enjoyment of the ‘rights of the people to form their own associations free from State interference’. Article 37(3) requires that the state ‘be guided by international human rights instruments which recognize and apply particular categories of basic human rights to development processes’.

72. CIBA (n 70 above) 394.

73. J Mubangizi ‘The constitutional protection of socio-economic rights in selected African countries: A comparative evaluation’ (2006 -2008) 2 African Journal of Legal Studies 1 17.

74. CIBA (n 70 above) 442.

75. [2007-2008] Supreme Court of Ghana Law Reports 1088.

76. Ghana Lotto Operators (n 75 above) 1099.

77. (n 75 above) 1107.

78. (n 75 above) 1104-05.

79. (n 75 above) 1113.

80. G Austin The Indian Constitution: Cornerstone of a nation (1966) 75.

81. N Robinson ‘India and the rise of the good governance court’ (2009) 8 Washington University Global Studies Law Review 1 5.

82. ‘The State’ is defined in art 12 to include ‘the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India’.

83. State of Madras v Champakam Dorairajan (1951) SCR 525 531.

84. (1973) 4 SCC 225.

85. See para 672.

86. See para 1769.

87. Francis Coralie Mullin v the Administrator, Union Territory of Delhi (1981) 2 SCR 516; Chameli Singh and Others v State of UP and Another (1996) 2 SCC 549; Olga Tellis v Bombay Municipal Corporation (1965) 3 SCC 545; Shantistar Builders v Narayan Khimalal Toame (1990) 1 SSC 520; Daily Rated Casual Labour Employed under P & T Department v Union of India [1988] 1 SCR 598

88. Kesavananda Bharati v State of Kerala (n 84 above) para 1776.

89. Dharwad PWD Employees Association v State of Karnataka [1990] 1 SCR 544, 549-50.

90. (1998-1999) 1 SCC 467.

91. (1989) 2 SC 330.

92. (2005) 13 SCC 721.

93. (1993) 2 SCR 556.

94. (2008) 1 SCC 579.

95. Civil Appeal No. 5605 of 2010.

96. Mubangizi (n 73 above) 4.

97. Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa (Re Certification) (1996) 4 SA (CC) 744 para 77; see E Christiansen ‘Adjudicating non-justiciable rights: Socio-economic rights and the South African Constitutional Court’ (2006/7) 38 Columbia Human Rights Law Review 321 359.

98. Thiagraj Soobramoney v Minister of Health, KwaZulu-Natal (1998) 1 SA (CC) 765; Government of Republic of South Africa v Grootboom (2001) 1 SA (CC) 46; Minister of Health v Treatment Action Campaign (No 2) (2002) 5 SA (CC) 721.

99. D Landau ‘The reality of social rights enforcement’ (2012) 53 Harvard International Law Journal 189 196; also see Christiansen (n 97 above) 359.

100. Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa (Re Certification) (1996) 4 SA (CC) 744 paras 77-78.

101. Landau (n 99 above) 198-200; also see B Ray ‘Engagement’s possibilities and limits as a socioeconomic rights remedy’ (2010) 9 Washington University Global Studies Law Review 399 400.

102. CIBA (n 70 above) 394.

103. Lotto (n 75 above) 1107.

104. Republic of Ghana (n 52 above) art 129(3).

105. M Langford ‘The justiciability of social rights: From practice to theory’ in M Langford (ed) (2008) Social rights jurisprudence: Emerging trends in international and comparative law (2008) 3; also for similar findings see generally: V Gauri et al Courting social justice judicial enforcement of social and economic rights in the developing world (2010); R Gargarella et al Social transformation in new democracies: An institutional voice for the poor (2006).

106. Airey v Ireland [1979-80] 2 EHRR 305 31617.

107. 1 July 2009 Series C No 198 para 99.

108. See Purohit v The Gambia (n 46 above) .

109. N Robinson (n 81 above) 62-63.

110. See Soobramoney (n 98 above) para 19.

111. Sec 9.

112. Sec 18 & 19.

113. Sec 31 & 32.

114. Republic of Ghana (n 12 above) para 450.

115. LADA Group Gap Analysis Report on the Persons with Disability Act 2006 (Act 715) and the United Nations Convention on Rights of Persons with Disabilities (UNCRPD) (April 2013) 19 (A copy on file with writer).

116. See Bandhua Mukti Morcha v Union of India[1984] 2 SCR 67 103-04.

117. The UN Secretary-General Secretary-General's Message on the Adoption of the Convention of the Rights of Persons with Disabilities delivered by M Brown, Deputy Secretary General, UN Doc SG/SM!10797, HR/491 1, L/T/4400 (13 December 2006); where the CRPD was described as ‘remarkable and forward-looking document’.


  • J Nyanda

  • J Nyanda ‘Confronting the double marginalisation of girls with disabilities: Practical challenges for the realisation of the right to education for girls with disabilities under the Disability Act of Malawi’ (2015) 3 African Disability Rights Yearbook 109-133
    http://dx.doi.org/10.17159/2413-7138/2015/v3n1a5
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Summary

Girls with disabilities are subjected to multiple challenges due to their disabilities. They face discrimination that most women face. They are discriminated due to their disabilities. They encounter barriers that most children encounter. This is the double marginalisation that breeds and sustains the dehumanising problems experienced by girls with disabilities. This creates a vulnerable group within a vulnerable group. Most of the times, girls with disabilities are more likely than boys to encounter severe difficulties in accessing education. Fortunately, Malawi passed the Disability Act in 2012 which epitomises the social model approach to disability. The Act attempts - to a large extent - to domesticate the state’s obligations under the Convention on the Rights of Persons with Disabilities (CPRD). The hallmark of the Act is a myriad of rights including the right to education. This is an important right that can facilitate the elimination of most forms of discrimination that girls with disabilities face. However, the realisation of the right to education as provided in the Disability Act is hampered by several socio-legal and physical structural challenges. The Act, by failing to recognise that other persons with disabilities like girls with disabilities are multi-disadvantaged, fails to provide the reasonable accommodation that it purports to advance. The notion of dignity and equalisation of opportunities for persons with disabilities can only be realised if the right to education for girls with disabilities is properly articulated in the Act. Further, the remedial mechanisms provided under the Act and it is contended that the remedies it provides should be simplified to make them ‘user friendly’ to people that are multi-vulnerable - such as girls with disabilities. The paper proposes a more expansive formulation of locus standi in enforcement of the rights provided under the Act. It further appraises administrative penalties provided in the Disability Act.

1 Introduction

‘Education has a vital role in empowering women’ and it is ‘one of the best financial investments states can make’.1 Education is not only a right in itself but also indispensable for the exercise of other human rights.2 The Disability Act of 2012 provides the right to inclusive education to persons with disabilities. This is commendable because education is the primary vehicle by which economically and socially marginalised people can lift themselves out of poverty and obtain the means to participate fully in their communities.3 Unfortunately, Malawi has not been making progress in education. The total literacy rate for all adults fell from 64,1 to 61,3 per cent.4 Remarkable progress has been made in gross primary school enrollment but the same is not true for secondary schools.5 Primary school enrollment rose from 23,6 per cent in 1995 to 38,0 per cent in 1999 to 34,2 per cent in 2012.6 According to UNESCO, in 2007 the enrollment ratio for Malawi was about 1 per cent compared to 6 per cent for sub-Saharan Africa and 26 per cent for the world as a whole. Just like the rest of the world, the enjoyment of the right to education remains a distant goal for many people.7 Although Malawi adopted free primary education, many people cannot afford quality education due to other hidden costs such as school uniforms and transport costs.8

The realisation of the right to education remains a pipe dream for girls with disabilities because they face multifaceted problems over and above other people. These problems hinder the realisation of the right to education. They are subject to disability related discrimination and challenges. They face the vulnerabilities of being children and they encounter challenges that all females encounter. It is imperative that the double discrimination faced by girls with disabilities should be addressed by reasonable accommodation over and above that accorded to the rest of persons with disabilities. Unfortunately, the Disability Act of 2012 does not recognise girls with disabilities as a vulnerable group within a vulnerable group.9 Its articulation of the right to education for girls with disabilities is generalised and does not make special measures to ameliorate and compensate for the multifaceted challenges they face.10

This paper examines the normative content of the right to education with emphasis on the availability and accessibility of quality education to girls with disabilities. It discusses the core obligations of states vis-à-vis the positive realisation of the right to education for girls with disabilities. It establishes that the obligations of states in the realisation of the right to education are classified into core obligations and aspirational obligations.11 States should perform core obligations immediately that do not require the expenditure of resources.12 The state is obliged to take reasonable legislative and other measures to achieve progressive realisation of this right.13 ‘Progressive realisation’ requires states to continuously strive to strengthen the right to education.14 This requires clear legislative guarantees of the right to education embedded with affirmative action to address the peculiar predicament of girls with disabilities. There should be legislative provisions that mandate the government to progressively realise the right to education for girls with disabilities within the confines of available resources. In Malawi, there has been perpetual laxity in the allocation of resources towards education for girls with disabilities although the state is not obliged to go beyond available resources to realise it.15 Malawi wrongly attributes its failure to meet its minimum core obligations to lack of available resources without demonstrating that it has exhausted the available resources at its disposal to satisfy, as a matter of priority, those minimum obligations.16 This results in failure to realise the right to education which erodes human dignity, freedom and equality thereby rendering the aspiration to realise human rights having a hollow ring.17 Government policy should be rationally geared towards the realisation of this right.

2 The double marginalisation of girls with disabilities and the right to education in Malawi

Malawi is a poor country with more than half of the population living below the poverty line.18 Poverty is incompatible with human dignity which is the foundation stone of human rights.19 In Malawi, poverty is more manifest amongst persons with disabilities. Malawi has a population of 13.8 million,20 of which about 480 000 are persons with disabilities. This represents 4,18 per cent of the total population.21 The prevalence of disability amongst children is at 2,4 per cent22 as compared to 4,8 per cent for the general population.23 About 2,2 per cent24 of them are girls while 2,5 per cent are boy.25 Statistics demonstrate access to social services is a challenge for persons with disabilities. For example, 40 per cent of people with disabilities fail to receive education. For instance, more than twice as many of children without disabilities 41,1 per cent attended school.26

In Malawi, most girls with disabilities fail to access education due to their disabilities. They face peculiar hurdles to attend, and complete school.27 However, the just like the majority of children with disabilities, they face problems of access to education and other public services.28 Children with disabilities are not culturally accepted in education institutions due to a deep-seated prejudice and fear of disability, which is often viewed as a curse or punishment.29 Parents feel embarrassed to have children with disabilities and rarely send them to school in order to hide their ‘embarrassment’. Some parents do not send girls with disabilities to school in order to protect them from the stigma associated with education. Consequently, children with disabilities are isolated. The isolation of children with disabilities perpetuates such myths.30 The National Policy on Special Needs Education demonstrates that lack of sufficient funding,

environmental barriers, attitudinal barriers, limited capacity to train specialist teachers and the institutional structure impede the realisation of education for inter alia girls with disabilities.31 Further hurdles include distance to school, an inaccessible physical environment, physical and verbal abuse of children with disabilities.32 Girls with physical disabilities fail to attend and repeat classes due to difficulties in walking to school and home. Similarly girls with hearing impairments fail to participate in class activities.33 These problems contribute to a failure in examinations and repeating classes or sometimes dropping out.34 The attitude of the society is the main stumbling block to the realisation of the right to education for girls with disabilities. Lack of education affects the likelihood of girls with disabilities to acquire education that will enable them earn better incomes.35 Children with disabilities must have access to regular schools. Governments should prioritise policies and budgetary support to improve their education system to include all children regardless of individual difficulties.36 Girls with disabilities are not exempted from such challenges due to lack of clear legislation that addresses the plight of multi-disadvantaged groups like girls with disabilities and mandates systematic allocation of resources to address their cause.37

Further, most girls with disabilities fail to attain education due to gender related marginalisation. In Malawian society, the female gender is mostly perceived as ‘second class’, destined for wifely duties due to gender stereotypes. Consequently, girls are raised as ‘brides’, girls with disabilities are raised to become good wives and are not sent to school. Girls are encouraged to marry early and ridiculed if they continue with their education unlike boys.38 Sometimes, poverty forces girls to enter into early marriages and this results in teenage pregnancies.39 Additionally, girls with disabilities are burdened with domestic chores due to their gender. Boys with disabilities are exempt from this predicament. On the other hand, girls with disabilities face gender related violence which includes sexual violence. This is perpetuated by some customary beliefs that hold that having sexual intercourse with girls with disabilities is a cure for HIV/AIDS or is a charm. Mostly, girls are forced to marry or encouraged to stay at home and help look after the family while boys are supported financially to attain education. For instance, in a family, preference in attaining education is accorded to a boy child and not a girl child who is further laden with a lot of domestic work at the expense of her education.40 These are traditional beliefs and customs that reinforce gender inequalities in education and perpetuate women’s secondary status in society and invoke exploitative sexual relations.41 In schools, there are no remarkable affirmation actions that advance access to education for girls. For example, there are few places reserved for girls who make it at secondary school.42 This, over time, turns out to be discriminatory as more and more girls fail to get secondary school places.43 This is evident by low literacy rate for females.44 The state should specifically accommodate vulnerable people like persons with disabilities especially girls who suffer double marginalisation of being female and disabled. Paternalistic tendencies affect the positive realisation of the right to education for girls with disabilities.45 At a communal level, cultural biases which lead to preferential treatment and allocation of resources and opportunities to male children and children without disabilities.46 The entrenchment of widespread cultural attitudes and practices in homes, schools and the communities hinder the realisation of the right to education for girls.47

3 The normative content of the right to education

This section discusses the normative content of the right to education for girls with disabilities. It contends that education should be available, affordable and of good quality. For example, states are legally obliged to adopt domestic legislation which effectuates the international right to education obligations.48 It opines that despite key achievements in terms of the legal framework protecting the rights of disabled people, many girls with disabilities still fail to access education services that they require.49 This predicament should be addressed by reasonable accommodation of girls with disabilities.50 The 1995 Constitution of Malawi provides the right to education to everyone without specific provision for reasonable accommodation for persons with disabilities.51 Also, The Disability Act provides the right to education to persons with disabilities without specific reasonable accommodation to multi-disadvantaged groups like reference to girls with disabilities.52 These two instruments fail to adequately protect the right to education for girls through their vaguely articulated provisions.

3.1 Availability

The provision of quality and dignified life requires the availability of education to girls with disabilities.53 Education should be available to everyone with functioning educational institutions and programmes in sufficient quantity.54 This includes developed institutions, programmes, buildings or safety mechanisms, sanitation facilities for both sexes, safe drinking water, trained teachers receiving domestically competitive salaries, teaching materials, libraries, computer facilities and information technology.55 Further, education should be available to disadvantaged groups like girls with disabilities with the necessary social facilities that are accessible and secure.56 However, in Malawi most children with disabilities are likely to drop out of school due to the disability unfriendly environment.57 The government does not have the finance and structural capacity to carter for education facilities, infrastructure, education materials and trainers and infrastructure like school are not adequately available.58 Consequently, children with disabilities have traditionally been separated from other children and sent to special schools.59 These special schools are poorly funded which makes their survival and development is made difficult.60 This poses problems to many children with disabilities to develop to their fullest potential.61 However, some children with disabilities who pass their examinations are integrated in public secondary schools and universities.62 However, most schools are ill equipped and ill funded. For example, there are few secondary schools that can integrate vision impaired children.63 The Malawi Government’s Policy Investment Framework, states that government will commit to reducing inequalities in the schools across the social groups and regions by providing bursary schemes, increasing school enrolment of female learners, increasing community participation in management of local schools, and provision of enabling environments for learners with disabilities by 2012. The allocation of monetary resources is erratic. This can be addressed by amendment of legislation to compel the executive to make financial provision towards educational programmes.

3.2 Quality

The state should regulate the minimum quality of education provided. The Committee on Education stated that the form and substance of education, including curricula and teaching methods should be acceptable (for example, relevant, culturally appropriate and of good quality) to students and, in appropriate cases, parents.64 Unfortunately, in Malawi the quality of education available to girls is affected by poor funding. Quality education should be flexible in order to adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings.65 Interestingly, the Malawi government is revising the curriculum and developing instructional materials to cater inter alia for girls.66 Quality education can only be realised if educational opportunities of learners with disabilities are maximised when these learners receive classroom support, their teachers have the relevant skills, and funding is sufficient in order to provide appropriate teaching and learning resources.67

3.3 Accessibility

Educational institutions and programmes should be physically and economically accessible to persons with disabilities. Dejectedly, there has been little progress made in the area of access and equity, especially for children with disabilities.68 Even for those with some access, the infrastructure is not user friendly and most of the teachers are not trained to cater for children with disabilities.69 There are plans to continuously integrate children with special needs in conventional secondary schools and adopting the architectural design of new schools to take into account children with special needs.70 Education is not accessible if its cost threatens or compromises people’s enjoyment of other human rights.71 The government should facilitate free primary education for all. Primary education has been free in Malawi since the introduction of the Free Primary Education programme in 1994 which abolished the payment of tuition and all forms of charges and also abolished a school uniform requirement. However, secondary and higher education is not free. There are no plans to make them free despite states being obliged to progressively introduce free secondary and higher education.72

Education programmes should prioritise underprivileged people like girls with disabilities who are unable support themselves.73 It is imperative that there should be affirmative action like school fees waiver and special social protection programmes for girls with disabilities. Accessible education considers the specific needs of the disadvantaged and marginalised groups.74 States should ensure reasonable accommodation of persons with disabilities in education programmes.75 Education institutions should be located within short distance and should be physically safe.76 States should address the varying needs of different people across the society’s social strata in realising the right to education.

3.4 States’ obligations

The right to education imposes three types of obligations on the state: to respect, protect and fulfil.77 These obligations effectuate the realisation of education as a universal entitlement with programmed target. These targets include ensuring that by 2015 all children have access to good-quality primary education, with particular attention inter alia to girls. They include comprehensive early childhood education and care services, especially for the most vulnerable and disadvantaged children.78

3.5 Obligation to respect

The obligation to respect requires states to refrain from interfering, directly or indirectly with the enjoyment of the right to education.79 States should undertake positive steps to actualise the right to education.80 The obligation to respect requires states to avoid measures that hinder or prevent the enjoyment of the right to education. The state should not abduct its duty to respect the right to education by delaying the provision of learning materials.81

3.6 Obligation to protect

The obligation to protect requires states to take measures that prevent third parties from interfering with the enjoyment of the right to education.82 This obligation requires the state and its agents to prevent the violation of any the rights to education - by not only the state itself, but also individuals, private entities and other non-state actors.83 This protects the accessibility of education by ensuring that third parties, including parents and employers, do not stop girls with disabilities from going to school.84 The right to education can be protected from improper invasion.85 The obligation is to provide access to education health-care, sufficient food and water, and social security to those unable to support themselves and their dependants.86 Malawi should protect the right to education from cultural practices that hinder girls with disabilities from realising the right to education.

3.7 Obligation to fulfil

The obligation to fulfil imports the obligations to facilitate and to provide.87 States should take ‘whatever steps’ to fulfil their right to education obligations by taking positive measures that enable and assist individuals and communities to enjoy the right to education.88 States are also obliged to provide the right to education when an individual or group is unable, for reasons beyond their control, to realise the right.89 Arguably, this includes marginalised groups like girls with disabilities. Amusingly, pursuant to articles 2, 3, and 6 of the CRC, Malawi has made some effort to fulfil the provisions of article 4 of the CRC by prioritising budgetary allocations to ensure implementation of the economic, social and cultural rights of children, especially those belonging to economically and geographically disadvantaged groups.90 Further, the obligation requires states to give sufficient recognition to the right to education in the national political and legal systems, preferably by way of legislative implementation, and to adopt a national education policy with a detailed plan for realising the right to education.91 States need to maximise the available resources.92 Scarcity of resources forces government authorities to adopt policies that effectively prioritise social services.93 Further, the government should facilitate the acceptability of education by taking positive measures to ensure that education is culturally appropriate for minorities and indigenous people and of good quality for all.94 Furthermore, government should ensure the availability of education by actively developing a system of schools including building classrooms, delivering programmes, providing teaching materials, training teachers and paying them domestically competitive salaries.95

3.8 Core obligations

States have ‘minimum core obligations’96 to ensure the basic level of enjoyment of the right to education.97 They have a duty to positively realise educational rights by immediately fulfilling the core obligation and gradually implementing aspirational obligations over time tabled framework.98 The prohibition against discrimination is subject to neither progressive realisation nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination.99 States have a duty to ensure that no one is deprived of inter alia the most basic forms of education.100 The right to education would be largely deprived of its raison d’être without establishing such a minimum core obligation.101 A state can only attribute its failure to meet at least its minimum core obligations to lack of available resources if it can demonstrate that it has exhausted every available resource to satisfy, as a matter of priority, those minimum obligations.102 Malawi as a party to the ICESCR should meet certain minimum core obligations. This minimum core might not be easy to define, but includes at least the minimum decencies of life consistent with human dignity.103 At a minimum, the state is required to adopt and implement a national educational strategy which includes the provision of secondary, higher and fundamental education.104 This strategy should include mechanisms, such as indicators and benchmarks on the right to education, by which progress can be closely monitored.105 Girls with disabilities should not be deprived of education which can move them out of a life below the basic level of dignified human existence.106

States have core obligations which are minimum standards for the right to education.107 These include availability, quality and accessibility of complimentary services like health services.108 The services must be acceptable to the marginalised groups including girls with disabilities.109 The availability of the services to girls with disabilities must be attained by the adoption of relatively low-cost targeted programmes.110 The needs of girls with disabilities should be considered.111 The state is obliged to take the best interest of the child when dealing with any matter that involves her rights.112 The obligation falls upon the state where parental care is inadequate.113 This approach is rational since the education of a person later in life is the product of services invested in their childhood.114 A sustainable approach must be anchored in human rights and gender equality in order to tackle educational rights concerns while addressing the structural challenges to the realisation of the right to education.115 Malawi is obliged to remove gender and other stereotyping which impedes the educational access of girls with disabilities.116 The law should create conditions for human rights to flourish.117

4 Malawi’s international education rights obligations for girls with disabilities

The first international instrument that provided the right to education was UDHR in article 26.118 It provides for compulsory and free elementary education. It furthermore states that education is aimed at the full development of the person. Subsequently, the (ICESCR),119 articulated the right to education in articles 13 and 14. Article 13, inter alia imposes an obligation on governments to provide free and compulsory primary education. Article 14 places an undertaking that ‘within two years’ of becoming a party, the state will adopt a detailed plan of action for the adoption of free and compulsory education. Article 23 of CRC states that a disabled person has the right to special care, education and training to help him or her enjoy a full and decent life in dignity and achieve the greatest degree of self-reliance and social integration possible. Article 28 of the CRC stipulates that the right to education should be progressively realised. Article 29 of the CRC provides that children have equal rights to free education which must respect and promote the rights of children who receive it. Despite the right to basic education being subject to progressive realisation it is specifically stated that primary education, as a component of basic education, should be free and compulsory.120 Article 11 of the African Charter on the Rights and Welfare of the Child provides the right to education in order to promote and develop the child's personality, talents and mental and physical abilities to their fullest potential.121 Further, states are obliged to take measures that encourage regular attendance at schools and the reduction of drop-out rate.122 Additionally, there is a need to adopt special measures to ensure equal access to education for all female, gifted and disadvantaged children.123 State parties under CEDAW are obliged to take appropriate measures to eliminate discrimination against women in the realisation of the right to education.124 They should in particular ensure ‘the reduction of female student drop-out rates and the organisation of programmes for girls and women who have left school prematurely’.125 It is clear that girls with disabilities have the right to education as children, females and persons with disabilities but there are robust international obligations that can address this double marginalisation.

5 The conceptualisation of the double marginalisation of girls disabilities in the Convention of the Rights of Persons with Disabilities (CRPD)

The CRPD is an anti-discrimination convention which requires that government plans prioritise the most vulnerable groups to ensure the realisation of the right to education for everyone.126 It is a social model convention that uses a rights approach to disability.127 Article 1 requires states to promote respect for the inherent dignity of persons with disabilities.128 Article 9 requires states to adopt measures to identify and eliminate obstacles and barriers to access amongst others schools. This is attainable if states devise rights based legal institutions to effectuate legally recognised claims or demands.129 The CRPD recognises the double marginalisation faced by girls with disabilities and affords them additional protection as a disadvantaged group within a disadvantaged group. It protects them as disabled. Article 6 recognises that girls with disabilities are subject to multiple discriminations and obliges states to take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms; it protects them as females. Article 6(2) places a further duty on states parties to take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms. It protects them as children. Article 7 imposes a duty on states to take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.

Article 24 of the CRPD recognises the right of persons with disabilities to education without discrimination and equalisation of opportunities. Further, states should ensure an inclusive education to fully develop human potential and sense of dignity, self-worth, strengthening of respect for human rights, fundamental freedoms and human diversity.130 The gist is inclusive education, free and compulsory primary education via reasonable accommodation of the individual. States are obliged to take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille and to train professionals and staff who work at all levels of education.131 The training should 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.132 State parties should take positive steps to realise this aspiration.133 This includes the adoption of necessary legal, financial and operational means of ensuring steady progress towards achieving the goals.134 Further, states should identify specific national benchmarks designed to actualise the right to education.135 Also, states should maintain meaningful statistics on needs, resources and results.136 The CRPD does not adopt a ‘one-size-fits-all’ approach to education but makes positive discrimination of marginalised girls with disabilities.137

6 The domestic law, policy and practice

The right to education is promulgated in the Constitution and various legislative instruments. The Constitution of Malawi does not specifically provide disability rights.138 However, it obliges the state to actively promote the welfare and development of the people by progressively adopting and implementing policies and legislation that support persons with disabilities through greater access to public places, fair opportunities in employment and full participation in all spheres of the society.139 The government is indulged to provide adequate resources to the education sector and devise programmes in order to eliminate illiteracy in Malawi.140 Further, the government is obliged to make primary education compulsory and free to all citizens of Malawi and offer greater access to higher learning and continuing education.141 This is provided in principles of national policy rather than a bill of rights which dilute its significance.142 However, Section 25 of the Constitution grants every person the right to education and stipulates that primary education shall consist of at least five years. This provision is inadequate to the prescriptions of section 13(f) of the Constitution which requires primary education to be both compulsory and free.143 There is no social protection or any pro poor programmes to aid multi-advantaged groups like girls with disabilities. There is some saving grace in section 30 of the Constitution which states that children and persons with disabilities should be given special consideration on the application of the right to development. This compliments section 13(f) of the Constitution which requires the state to provide adequate resources for free and compulsory education.

Section 23 of the Constitution of Malawi encapsulates the right of children to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to be hazardous or interfere with their education. This read together with the anti-discrimination provisions in section 20 of the Malawian Constitution necessitates the adoption of special measures that include specially providing resources for education for persons with disabilities despite absence of express provision for the same.144 Further, section 24(2) invalidates any legislation that discriminates on the basis of sex or marital status. It also provides for the passing of legislation to eliminate customs and practices that discriminate against women. The Child Care, Protection and Justice Act requires district councils

to keep a register of children with disabilities within its area of jurisdiction and give assistance to them whenever possible in order to enable those children grow up with dignity among other children and to develop their potential and self-reliance.145

However, it does not specify what type of assistance the district councils should provide to such children.146 While the Act provides for all children, including those with disabilities, to fully enjoy their rights, implementation is incomplete.147 Section 22 of the Child Care Protection and Justice Act criminalises failure to provide for the education of the child for a person under a maintenance order.

The realisation of the right to education will depend upon a robust reasonable accommodation programme that provides financial support to the underprivileged. Educational programmes should be balanced and flexible and appropriately provide for crises, short, medium and long term needs.148 The programmes should be reasonable by not excluding a significant segment of society.149 The current Malawian development blue print, the MGDS II does not adequately provide for children with disabilities who are only mentioned in passing under education.150 Nonetheless, the government is obliged to be ‘promoting a conducive environment for girls and students with special education needs’.151 National Policy on Equalisation of Opportunities for Persons with Disabilities152 purports to promote the rights of persons with disabilities to enable them to fully participate in society. Furthermore, it seeks to guarantee that tangible steps are taken for disabled people to access the same fundamental rights and responsibilities as any other person in Malawi. The policy strives to streamline disability into all government development strategies, plans and programmes. This is congruent to National Education Strategic Plan and Policy Investment Framework153 which advocate for increased enrolment of special needs pupils and greater numbers of specialised teachers. It espouses that learners with special educational needs should receive support through among others improving the supply of teaching and learning materials for special needs education. In the Policy Investment Framework, the government seeks to promote the establishment of special schools for children with disabilities. However, as noted in National Policy on Special Needs Education,154 there are numerous barriers that affect the implementation of special needs education including inadequate funding, inadequate teaching and learning materials, inaccessible infrastructure, long distances to facilities and shortage of specialist teachers.155 However, most special-needs schools and resource centres facilities are in a state of disrepair, non-functioning water taps and children with disabilities depend on the goodwill of teachers to access health care.156 The government should adequately address these problems.157

The National Policy on Early Childhood Development (ECD),158 inter alia seeks to ensure that ‘[e]very child has the right to develop to his/her full potential’. This inevitably includes girls with disabilities. Further, it avers that ‘[n]o child shall be discriminated or abused on the basis of age, sex, race, tribe, health status, economic status, religious or political affiliation in the provision of ECD services by any organisation’. Disability is arguably covered although it is not specifically mentioned one of the grounds of discrimination. National Policy on Orphans and Other Vulnerable Children recognise that children with disabilities are vulnerable.159 There is an omission of children with disabilities despite including a child without a disability but living in a household headed by a person with a disability, but it excludes children with disabilities. These children too are generally abandoned, malnourished and abused and their needs should have been highlighted.160 There is need to have a clear legislative and policy framework for education for girls with disabilities.161

7 The conceptualisation of double marginalisation of girls disabilities in the Disability Act of 2012162

The Disability Act of 2012 seeks to equalise opportunities of persons with disabilities through the promotion and protection of their rights.163 It adopts the social model of disability which stresses on the legitimate claim to be accommodated by the society and not to be treated or rehabilitated.164 The government and relevant stake holders are obliged to ensure the enjoyment of these rights by persons with disabilities.165 Section 8 of the Act protects the right of persons with disabilities to inclusive education.166 This is to be attained by ensuring that persons with disabilities are not excluded from the general education system at all levels and have access to quality and compulsory primary education.167 This provision is defeated by the fact that Malawi does not have compulsory primary education despite having free primary education. Further, the government ought to be taking into consideration the special requirements of persons with disabilities in the formulation of educational policies and programmes including assistive devices, teaching aids and learning support assistants.168

In addition, the government should provide financial assistance to economically needy and deserving students with disabilities pursuing secondary and tertiary education.169 Section 10 of the Disability Act provides the right to social security, despite being passively worded and forms a basis for the enforcement of the right to social security for persons with disabilities. Girls with disabilities can utilise this right to realise their right to education. Affirmative action is a welcome tool to address disparities in different social strata.170 The government should adopt deliberate admission policies for girls with disabilities in education and training institution.171 However, the greatest weakness with respect to the right to education in the Disability Act is that it fails to recognise the double disadvantage of girls with disabilities. Further, the Disability Act is not fully operational as evidenced by the absence of a Disability Trust Fund which is meant to raise extra resources to support relevant programmes and services.172 The operation of the fund will be defined by the government and other stakeholders.173 The non-establishment of the disability fund is obviously affecting the realisation of the right to education.

The act is reluctant to fully engage with disability and provide full and proper recognition to the rights of disabled person who face multiple disadvantages.174 This demonstrates legislative vagueness causes marginalisation of girls with disabilities.175 The Disability Act adopts a ‘one-size-fits-all’ approach to education but makes positive discrimination of marginalised girls with disabilities.176 Section 8 of the Disability Act imports the core obligation of non-discrimination but neglects the aspirational respect of the right. The Disability Act should have specifically recognised the multiplicity of marginalisation that girls with disabilities encounter. It should have set a procedure to revise the right to education targets periodically to secure the rights through progressive realisation.177 Previously, there was an affirmative programme called Girls Attainment of Basic Education (GABLE) which sought to address gender imbalance. The programme sought to increase girls’ enrolment, achievements and persistence in schools. Its strategies included paying primary school fees for non-repeating girls, a social mobilisation campaign that emphasised the importance of girls education amongst girls themselves, parents and communities, and, thirdly, the development of gender-sensitive material.178 This is an example of programmes that should be adopted and legislated into the Disability Act to carter for girls with disabilities and other marginalised groups. There ought to be deliberate legislative provisions that effectuate the right to education rather than vague and inadequate provisions.

There are three ways of enforcing any right under the Disability Act. These are criminal prosecution, administrative penalties and civil action. The Disability Act creates different administrative penalties. The Disability Act creates the offences of discrimination in education institutions. Denying access or expelling a person due to disability is an offence.179 This is to ensure that persons with disabilities are not excluded from the general education system at all levels and have access to quality and compulsory primary education.180 The employment of criminal law to eliminate discrimination in education is welcome as it is cheap and prosecution is done by the state machinery.181 The greatest advantage of criminal prosecution of discrimination and associated offences that offend the right to education is that it is cheap since it is publicly funded. This means that poor victims do not have monetary resources unlike civil law which mainly relies on the proficiency of lawyers. However, the downside of this tool is that there has not been any criminal prosecution despite the prevalence of discrimination.

Administrative penalty is a discretionary monetary sum which is imposed flexibly under civil law rather than criminal law.182 This means that a person who violates the right to education for girls with disabilities is amenable to administrative panatelas. Administrative penalties have several advantages but their objectives are similar to criminal punishment.183 These are retribution, reformation of the offender, elimination of any financial gain or benefit from non-compliance, restoration of the harm and deterrence.184 The latter are easier to impose than criminal sanctions because the criminal procedure is complicated.185 This ensures the punishment of offenders with reduced burden on regulators to secure a successful prosecution and lessening the procedural costs associated with criminal litigation.186 Normally, a person who is punished by administrative penalty cannot be, subsequently, prosecuted on the original offence despite the fact that directors may still be prosecuted.187 The power to impose the administrative penalties is vested in the minister. These include a written warning,188 directing the person to do a specified act, or refraining from doing a specified act, restoration notices and enforcement undertakings to remedy the effects of the contravention or to compensate persons who have suffered loss because of the contravention;189 or to ensure that the person or institution does not commit further contraventions.190 Further, a direction may require the establishment of compliance programmes, corrective advertising or, in the case of a direction to a corporation, changes in the management of the institution.191 The administrative penalty is recoverable as civil debt but failure to comply with a penalty is an offence.192 The penalty is payable within thirty days.193 Criminal prosecutions should remain appropriate for serious breaches where there was evidence of intentional or reckless or repeated flouting of the law.194 Administrative penalties are user friendly and not technical too for the use of persons with disabilities but they are yet to be invoked.

The right to education is enforceable by judicial review as the Constitution did not sell people a dummy by providing unenforceable rights.195 The court has power to scrutinise any executive policy on the right to education for girls with disabilities without offending the doctrine of separation of power.196 The court would not be usurping the executive function by reviewing the executive policy since its duty is to review a policy whether it is reasonable or not.197 The state cannot deny an individual or group the ability to make Constitutional claims against it with respect and education and without any redress to the affected party.198 The duty of the court is confined to defining the framework of the government policy and delimiting its scope.199 The nature of the right infringed and the nature of the infringement guide the court as to the appropriate relief in a particular case.200 The courts can grant any orders which can remedy the violations actual or potential of human rights.201 A declaratory remedy may not suffice as an effective remedy. Under the Disability Act, the court may award equitable relief.202 This includes an injunction and specific performance.203 Further, the court may order the provision of auxiliary aid or services, modification of policies, practices and procedures or alternative methods.204 The court may also grant any other relief as the court may consider appropriate, including monetary damages to the aggrieved person.205

Practically, girls with disabilities may lack the knowledge and resources to bring court action to enforce the right to education. Sometimes organisations willing to pursue the public interest matter may not have the required sufficient interest. The enforcement of the right to education for girls with disabilities would be hindered by the rigid Constitutional provisions that confer locus standi to people interested in public interest litigation on behalf of disadvantaged groups. The relevant Constitutional provisions for an application for the protection of rights contained in the Bill of Rights are sections 15(2),206 41(3)207and 46(2).208 Accordingly, any person seeking to enforce any right should demonstrate sufficient interest in the protection and promotion of the rights in issue which is often difficult. The provisions have been interpreted narrowly presumably to avoid opening ‘flood gates’ for a variety of reasons pertaining to conflicting theoretical, historical and policy justifications.209 The courts have in a number of cases, interpreted the relevant provisions in two broad categories: the liberal and the restrictive approaches.210 Under the liberal approach, courts are more amenable to widening standing to litigants while under the restrictive approach they have employed more restrictive standards.211 The restrictive approach is epitomised by the Malawi Supreme Court of Appeal, which can properly be stated as the current stand of the law, and liberal approach characterises the High Court.

The conclusive position of locus standi was articulated in Civil Liberties Committee (CILIC) v Minister of Justice & Registrar General (CILIC case).212 The Supreme Court held that CILIC, a human rights non-governmental organisation whose objectives include the protection, promotion and enforcement of human rights and the rule of law lacked sufficient interest to enforce media freedom. It opined that organisations working in the area of press freedom could maintain an action.213 The litigant must demonstrate that the conduct or decision complained of adversely affects his legal rights or interests in order to establish sufficient interest.214 It held that, in determining ‘sufficient interest’, a court may consider the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other responsible challenger, the nature of the breach of duty for which relief is being sought, and the role of the applicants in giving advice, guidance and assistance.215 Section 20 of the Disability Act give the right to sue to any ‘person with a disability’ or ‘any aggrieved person’ may commence legal action against that person in any court. This would restrict some organisation from enforcing rights of girls with disabilities.216

Arguably, the amendment to section 15(2) of the Constitution by Constitutional Amendment Act Number 11 of 2010 opened a window for a better enforcement of human rights. The amended section 15(2) widens the category of public litigants to include persons, public or natural and organisations interested in the promotion, protection and enforcement of rights including the right to education. Nevertheless, the fact that the amended provision still requires proof of sufficient interest means that the argument of locus standi still exists. Consequently, it would be submitted that the present position on locus standi is not fully supportive to the protection of interests of vulnerable groups like girls with disabilities.

8 Conclusion

This paper has established that girls with disabilities face multiple disadvantages due to their age, sex and disability. Consequently, these increase the practical challenges which they face to realise the right to education. The paper explored the legal framework and its challenges for the realisation of the right to education for girls with disabilities. The principle legislation, the Disability Act is progressive but coy, the system, programmes and policies cracked and there is inadequate political will. Malawi fails its international obligations to improve the lives of girls with disabilities without a robust education legal framework and a properly implementable education programme.217 Human rights can uplift girls with disabilities to realise their right to education. The Malawian human rights system should continually change to increase the level of protection afforded to girls with disabilities to raise their standard of living.218 The right to education should be realised progressively but this should not be used as an excuse to indefinitely postpone its implementation but rather to establish clear obligations government for the full realisation of the right.219 The state should manage its resources by adopting a holistic approach to the larger needs of the society than focusing on specific needs of particular individuals within the society.220 This will attain dignity which is inherent basic right for all human rights regardless of disabilities.221

States have obligations to respect, protect and fulfil the availability, accessibility and adaptability of the right to education.222 All other entities and persons have a negative obligation to desist from preventing or impairing the right of access to education.223 The right to education must be protected from improper invasion.224 The programmes for the realisation of the right to education must be realisable within the available resources and states should not adopt unreasonable policies that negatively affect its realisation.225 It should specifically accommodate vulnerable people girls with disabilities who suffer double marginalisation. Consequently, the state has the duty to provide education to girls with disabilities where parental support is inadequate.226 The state has a duty to provide free education benefits to the poor.227 Malawi is wrongly failing to realise the right to education due to the absence of legal foundation and paucity of resources.228


1. Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No 13 ‘The right to education’ Doc E/C.12/1999/10 (8 December 1999) para 1.

2. As above.

3. As above.

4. P Zeleza ‘The persistent poverty of development and democracy in Malawi’ Essay specially written for presentation as Keynote Address at the 2014 Social Science Conference on ‘Towards Malawi at 50: Socioeconomic achievements and challenges’ Chancellor College, University of Malawi, 26-27 June 2014.

5. As above.

6. As above.

7. General Comment No 13 (n 1 above) para 2.

8. Most primary schools impose development fees.

9. AC Munthali ‘A Situation Analysis of People with Disabilities in Malawi’ (2011).

10. Price v United Kingdom (2002) 34 EHRR 53. Under sec 11(2)(2) of The Constitution of the Republic of Malawi foreign case law and principles of public international law are persuasive.

11. M Langford (ed) The juctiacibility of social rights: From practice to theory (2008) 24.

12. Purohit and Moore v The Gambia African Commission on Human and Peoples’ Rights Communication No 241/2001, Sixteenth Activity report 2002-2003, Annex VII (May 2003) para 84.

13. Cf sec 27(2) of the Constitution of the Republic of South Africa, 1996.

14. Purohit (n 12 above) para 84.

15. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).

17. Thiagraj Soobramoney v Minister of Health: Province of KwaZulu-Natal D&CLD 5846/97 (21 August 1997) (unreported).

18. It is ranked 170 on the UN human development index income (UNDP, 2008). UN Human Development Report 2012 www.undp.org.com (accessed 15 April 2013).

19. P Alston ‘Ships pebbling in the night: The and the debate seen through the lens of MDG’ (2005) 27 Human Rights Quarterly 755 786.

20. National Statistical Office,The 2008 Malawi Housing and Population Census Republic of Malawi’ Zomba National Statistical Office (NSO) (2008).

21. E Aide & M Loeb (eds) Living conditions among people with activity limitations in Malawi: A national representative survey (2004).

22. The 2008 Malawi Housing and Population Census 159,878.

23. The 2008 Malawi Housing and Population Census 498,122.

24. The 2008 Malawi Housing and Population Census 75,157.

25. The 2008 Malawi Housing and Population Census 84,721.

26. A Munthali et al ‘From exclusion to inclusion - Promoting the rights of children with disabilities in Malawi’ (2012) 40.

27. D Filmer ‘Disability, poverty and schooling in developing countries: Results from 11 household surveys’ (November 2005) 1.

28. Committee on the Rights of the Child ‘Malawi State Report Submitted under article 44 of the Convention on the Rights of the Child’ CRC/C/Add 43, 26 June 2001, para 78.

29. K Kallmann ‘Child poverty paper: Alliance for children’s entitlement to social security.’

30. Malawi State Report (n 28 above)paras 77-78.

31. Ministry of Education National special needs education policy Republic of Malawi Government: Office of Ministry of Education. Lilongwe, Malawi: Revised legislative document (2007).

32. H Rousso H Education for all: A gender and disability perspective (2007).

33. A Chavuta et al Shire Highlands Education Division - Malawi Baseline Study Report: Montfort Special Needs Education College and Leonard Cheshire Disability International Inclusive Education Project (2008) 31.

34. As above.

35. Filmer (n 27 above) 14.

36. The Salamanca Statement and Framework for Action on Special Needs Education, UNESCO, ED-94/WS/18,1994 in International Save the Children Alliance ‘Children’s rights: A second chance’ (2001).

37. Malawi State Report (n 28 above) para 81.

38. Malawi State Report (n 28 above) para 80.

39. Chavuta et al (n 33 above) 26.

40. Malawi State Report (n 28 above) para 79.

41. Human Rights Committee ‘Consideration of Reports submitted by States parties under article 40 of the Covenant Initial Reports of States parties, Malawi Report’ CCPR/C/MWI/1 (13 July 2012) para 76.

42. As above.

43. Zeleza (n 4 above) 13.

44. As above.

45. Malawi State Report (n 28 above) para 81.

46. Chavuta et al (n 33 above) 14.

47. Malawi State Report (n 28 above) para 81.

48. This includes repealing legislation that negatively affects the realisation of the right in question. See Purohit (n 12 above) para 84.

49. S Philpott ‘Vulnerability of children with disability - The impact of current policy and legislation: Child health’ in (2006) Health Review 271.

50. This requires private or public institutions to adopt certain measures on an individualised basis to accommodate specific needs of the individual with disability without imposing a disproportionate burden on the duty bearer. O De Schutter International Human Rights Law (2010) 641.

51. Sec 25 of the Constitution of Malawi.

52. Sec 8 of Disability Act 8 of 2012.

53. Poverty makes people more vulnerable to disability and disability reinforces and deepens poverty. See Ministry of Social Development and Persons with Disability National Policy on Equalisation of Opportunities for Persons with Disabilities Republic of Malawi, Lilongwe (2006) para 2.1.

54. General Comment No 13 (n 1 above) para 6.

55. As above.

56. General Comment No 13 (n 1 above) para 16(e).

57. As above.

58. Malawi State Report (n 28 above) para 78.

59. As above.

60. Malawi State Report (n 28 above) para 78.

61. Malawi State Report (n 28 above) para 79.

62. Malawi State Report (n 28 above) para 81.

63. As above.

64. The Commission on Human Settlements ‘Global strategy for shelter for the year 2000’ http://www.un.org/documents/ga/res/43/a43r181.htm (accessed 17 June 2013).

65. General Comment No 13 (n 1 above) para 8(d).

66. Malawi State Report (n 28 above) para 263(b).

67. P Farrell et al ‘SEN Inclusion and pupil achievement in English schools’ (2007) 7 Journal of Research in Special Educational Needs 172.

68. Malawi State Report (n 28 above) para 270.

69. As above.

70. Malawi State Report (n 28 above) para 263(a).

71. General Comment No 13 (n 1 above) para 8(c).

72. General Comment No 13 (n 1 above) para 14.

73. General Comment No 13 (n 1above) para 94.

74. As above.

75. General Comment No 13 (n 1 above) para 31.

76. R Dworkin ‘Is wealth a value?’ in R Dworkin A matter of principle (2005) 293.

77. Langford (n 8 above) 12. Some Constitutions like the South African Constitution contain these obligations. See also General Comment No 13 (n 1 above) para 44.

78. M Woodhead & P Moss (eds) Early childhood and primary education: Transitions in the lives young children (2007).

79. General Comment No 13 (n 1 above) para 47.

80. Grootboom (n 15 above).

81. Minister of Health & Others v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) para 50

82. General Comment No 13 (n 1 above) para 47.

83. Velàsquez Rodríguez v Honduras Judgment of 29 July 1988 Inter-Am.Ct.H.R. (Ser C) No 4 (1988).

84. General Comment No 13 (n 1 above) para 50. Comparatively, see also SERAC v Nigeria Communication No 155/96.

85. Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (10) BCLR 1253 (CC) para 78.

86. Soobramoney (n 17 above).

87. General Comment No 13 (n 1 above) para 47.

88. As above.

89. As above.

90. Malawi State Report (n 28 above) para 78.

91. General Comment No 13 (n 1 above) para 46.

92. R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129 (CA) 137cBd.

93. Minow, participating in an interdisciplinary discussion held at Harvard Law School in 1993, ‘Session I: Applying Rights Rhetoric to Economic and Social Claims, Economic and Social Rights and the Right to Health’ (Harvard Law School Human Rights Program, Cambridge MA 1995) 1, 3.

94. General Comment No 13 (n 1 above) para 50.

95. As above.

96. Treatment Action Campaign (No 2) (n 78 above) para 50.

97. General Comment No 13 (n 1 above) para 50.

98. Langford (n 11 above) 22.

99. General Comment No 13 (n 1 above) para 31.

100. General Comment No 13 (n 1 above) 16.

101. As above.

102. As above. See also: ‘The nature of states parties obligations’ in article 2(1) of ICESCR.

103. General Comment 3 (n 12 above).

104. General Comment 13 (n 1 above) para 52.

105. General Comment 3 (n 12 above).

106. Treatment Action Campaign (No 2) (n 78 above).

107. Treatment Action Campaign (No 2) (n 78 above) para 43.

108. General Comment 13 (n 1 above) para 13.

109. General Comment 13 (n 1 above) para 43.

110. General Comment 13 (n 1 above) para 12.

111. Treatment Action Campaign (No 2) (n 78 above) was partly based on secs 28(1)(b) and (c) of the Constitution, which provide that every child has the right to social services.

112. P Alston ‘The Legal Framework of the Convention on the Rights of the Child’ 91(2) Bulletin of H.A 1.

113. Grootboom (n 15 above) paras 76-77.

114. DF Alwin & LA Wray ‘A life-span developmental perspective on social status and health’ (2005) Journal of Gerontology: Social Sciences 7.

115. S Fried et al ‘Integrating interventions on maternal mortality and morbidity and HIV: A human rights-based framework and approach’ (2012) 14 Health and Human Rights 21.

116. General Comment No 13 (n 1 above) para 55.

117. E Cameron ‘What you can do with rights’ Law Commission on England and Wales, The Fourth Leslie Scarman Lecture, Middle Temple Hall, London (25 January 2012) 147-159.

118. 1948.

119. 1966.

120. Kallmann (n 29 above).

121. Art 11(2) of the African Charter on the Rights and Welfare of the Child (ACRWC) (1990).

122. Art 11(3)(e).

123. Art 11.

124. CEDAW, art 10.

125. Art 10(f).

126. GC Christie & PH Martin Jurisprudence: Text and readings on the philosophy of law 2nd ed (1999).

127. Disabled people International ‘Agreed statement’ Human Rights Plenary Meeting in Support of European day of Disabled persons 1991 1994://www.ecpp.co.uk/humanrights.htm (accessed 9 July 2015).

128. Human dignity, freedom and equality are achievable if everyone is provided with basic necessities. Grootboom (n 15 above) para 44.

129. Christie & Martin (n 126 above) 122.

130. Art 24(1)(a) of CRPD.

131. Art 24(4) of CRPD.

132. As above.

133. ERRC v Bulgaria Complaint No 31/2005, Decision on the merits of 18th October 2006, para 35.

134. International Movement ATD Fourth World v France Complaint No 33/2006, decision on the merits of 5 December 2007, paras 58-71.

135. Commission on Human Rights Resolution, 1993/14 in Economic, social and Cultural rights, Handbook for National Human Rights Institutions, professional Series No 12: United Nations New York and Geneva (2005) 22.

136. International Movement ATD Fourth World (n 134 above) paras 58-71.

137. ERRC v Bulgaria (n 133 above) para 35.

138. FEDOMA has submitted that there ought to be a section in the Constitution specifically providing disability rights including the right to education: Federation of Disability Organisations in Malawi Memorandum prepared by the Federation of Disability Organisations in Malawi for the Constitution of Malawi Review Commission (2004) Blantyre.

139. Sec 13(g)of the Constitution of Malawi.

140. Sec 13(f)(i) of the Constitution of Malawi.

141. Sec 13(f)(ii).

142. Many socio-economical rights boil to nothing more than an objective of social policy. See G Tomuschet Human rights: Between idealism and realism (2003) 92.

143. Malawi State Report (n 28 above) para 67.

144. Equality Minority Schools in Albania PCIJ Rep Ser A/B, No 64 (1935); Judgment of 6 April 1935. See also Steel Workers of America v Weber 443 US 193 (1979).

145. Sec 72 of the Child Care Protection and Justice Act.

146. Munthali (n 26 above) 40.

147. As above.

148. Grootboom (n 15 above).

149. As above.

150. Ministry of Development Planning and Cooperation ‘Malawi Millennium Development Goals Report’ Republic of Malawi, Lilongwe (2010).

151. There is no elaboration in the MGDS II as to what a ‘conducive environment’ might be, but the education and related policies provide some explanation. See Munthali (n 26 above) 40.

152. Approved by Cabinet in July 2006.

153. (NESP) 2008-2017.

154. The policy was developed by the Ministry of Education Science and Technology in 2007.

155. Ministry of Education and Vocational Training The National Policy on Special Needs Education (2007).

156. The policy developed by the Ministry of Education Science and Technology in 2007.

157. The ‘progressive realization’ clause imposes an obligation on states to move as expeditiously and effectively as possible towards realising fully the right to education. Cf Grootboom (n 15 above).

158. Approved in 2006, was developed by the Ministry of Gender, Children and Social Welfare.

159. Ministry of Gender and Social Welfare A Plan of Action for Orphans and Other Vulnerable Children 2010-2011 (2010). However, the definition in the policy does not include disability: a vulnerable child is said to be one ‘who has no able parents and guardians, staying alone or with elderly grandparents or lives in a sibling headed household or has no fixed place of abode and lacks access to health care, material and psychological care, education and has no shelter’.

160. Munthali A (n 26 above) 23.

161. There are good policies like the National Policy on Equalisation of Opportunities for Persons with Disabilities, the National Education Strategic Plan (NESP), the National Policy on Orphans and Other Vulnerable Children which advocate for an enabling environment for children with disabilities but these are rarely implemented.

162. Munthali (n 26 above) 40.

163. Disability Act 8 of 2012. I n particular it incorporates provisions of the CRC and the CRPD. See: Munthali (n 26 above) iii.

164. Disabled people International ‘Agreed statement’ Human Rights Plenary Meeting in Support of European day of Disabled persons 1991 1994://www.ecpp.co.uk/humanrights.htm (accessed 11 September 2015).

165. Sec 3 of the Disability Act.

166. Sec 2 of the Disability Act

167. Sec 8(1) of Disability Act.

168. Sec 8(1)(a) of Disability Act.

169. Secs 8(1)(a) and 8(1)(c) of the Disability Act. In the form of scholarship grants, student loan programmes, subsidies, and other incentives in public institutions and ensure that a minimum of ten per cent of the allocation for students’ financial assistance programmes as created by the local government is set aside for students with disabilities.

170. Cummings v Birkenhead Corporation [1972] Ch 12 37.

171. Sec 8(2) of the Disability Act proscribes discrimination in education or training institution on the basis of disability. In Balaji v State of Mysore [1963] Supp 1 SCR 439, it was held that college places may be reserved for marginalised candidates without stifling equal access to educational institutions for the more qualified candidates.

172. Sec 16 of Disability Act.

173. Munthali (n 26 above) 14.

174. J Rehman International human rights law - A practical approach 2nd ed (2010) 601.

175. The Standard Rules on Equalisation of Opportunity for Persons with Disability General Assembly Resolution 48/96 http://www.un.org/disabilities/default.asp?id =26 (accessed 27 July 2014) para 3.

176. ERRC v Bulgaria (n 133 above) para 35.

177. A Sengupta ‘The right to food in the perspective of the right to development’ in WB Eide & U Kratcht (eds) Food and human rights in development (2007) Vol II: Involving Issues and Emerging Applications 107 131.

178. Unfortunately the programme is now defunct.

179. Section 8(1) of Disabilities Act.

180. As above.

181. The objectives of criminal punishment are retribution, deterrence, rehabilitation, restoration and incapacitation Per Mwangungulu J in Gulumba v Republic Misc Criminal Application Case No 51 of 2003, High Court Principal Registry (unreported).

183. Macroy & Woods (n 182 above) para 2.18.

184. Macroy & Woods (n 182 above) para 2.11.

185. Cf M Faure, A Ogus & N Philpsen ‘Curbing consumer financial losses: The economic regulatory enforcement’ (2009) 31 Law and Policy 161.

186. C Abbot ‘The enforcement of pollution control laws in England and Wales: A case for reform?’ (2005) 22 Environmental Planning Law Journal 68.

187. But the Disability Act is unclear.

188. Section 21(1)(a) of Disability Act.

189. Section 21(1)(b) of Disability Act.

190. Section 21(1)(b)(i)(ii) of Disability Act.

191. Section 21(2) of Disability Act.

192. Section 21(3) of Disability Act.

193. Section 21(4) of Disability Act.

194. Macroy & Woods (n 182 above) para 3.6.

195. Treatment Action Campaign (No 2) (n 78 above) para 5. See also sec 20(1) of The Disability Act.

196. Soobramoney (n 13 above) para 36.

197. Grootboom (n 15 above) para 24 & 38.

198. S Scott & P Macklem ‘Constitutional ropes of sand or justiciable guarantees? Social rights in a New South African Constitution’ (1992) 141 University of Pennsylvanian Law Review 28.

199. Cruzan v Director, Missouri Department of Health 497 US 261, 302 (1990) 303.

200. Hoffmann v South Africa Airways 2001 (1) SA 1 (CC) para 45.

201. Maziko Sauti Phiri v The Privatisation Commission and Attorney General Constitutional Cause No 13 of 2005 (unreported).

202. Sec 20(2)(a) of Disability Act.

203. Treatment Action Campaign (No 2) (n 78 above) para 22.

204. Sec 20(2)(b) of the Disability Act.

205. Sec 20(2)(c) of Disability Act.

206. It now reads as follows:

‘Any person or group of persons, natural or legal, with sufficient interest in the promotion, protection and enforcement of rights under this Chapter shall be entitled to the assistance of the Courts, the Ombudsman, the Human Rights Commission and other organs of the Government to ensure the promotion, protection and enforcement of those rights and the redress of any grievances in respect of those rights.’

207. It now reads as follows:

‘Every person shall have the right to an effective remedy by a Court of law or tribunal for acts violating the rights and freedoms granted to him or her by this Constitution or any other law.’

208. It now reads as follows:

‘Any person who claims that a right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled -

(a) to make application to a competent Court to enforce or protect such a right or freedom; and

(b) to make application to the Ombudsman or the Human Rights Commission in order to secure such assistance or advice as he or she may reasonably require.’

209. L Stein (ed) Locus standi (1979).

210. FE Kanyongolo ‘Courts, elections and democracy: The role of the judiciary’ 115, 213-14 in FE Kanyongolo ‘Malawi Justice Sector and the Rule of Law: A Review by AFRIMAP and Open Society Initiative for Southern Africa’ (2006) 138-140.

211. MJ Nkhata ‘Public interest litigation and locus standi in Malawian constitutional law: Have the courts unduly fettered access to justice and legal remedies? (2008) 2 Malawi Law Journal.

212. MSCA Civil Appeal No 12 of 1999 (unreported).

213. AP Mutharika ‘The 1995 Democratic Constitution of Malawi’ (1996) 40 Journal of African Law 216.

214. Relying on Regina v Secretary of State for Foreign and Commonwealth Affairs, Ex parte World Development Movement Ltd [1995] 1 WLR 386.

215. As above.

216. As above. Unlike the CILIC these organisations were specifically concerned with the rights and freedoms relating to the press.

217. Burnip v Birmingham City Council EWCA Civ 629 447.

218. H Shue Basic rights subsistence, affluence and US foreign policy (1980) 55.

219. See General Comment No 3 (n 16 above) para 9.

220. Soobramoney (n 13 above) para 31.

221. Purohit (n 12 above) para 84.

222. General Comment No 13 (n 1 above) para 50.

223. Grootboom (n 15 above) para 254.

224. Certification of the Constitution of the Republic of South Africa (n 85 above) para 78.

225. Treatment Action Campaign (No 2) (n 81 above) para 50

226. Grootboom (n 15 above) para 76-77.

227. Cruz del Valle Bermudez v Ministry of Health and Social Assistance Supreme Court of Justice No 916 15 July 1999.

228. O Nnamuchi ‘Kleptocracy and its many faces: The challenges of justiciability of the right to health care in Nigeria’ (2008) 52 Journal of African Law 1.


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

  • D Msipa ‘How assessments of testimonial competence perpetuate inequality and discrimination for persons with intellectual disabilities: An analysis of the approach taken in South Africa and Zimbabwe’ (2015) 3 African Disability Rights Yearbook 63-90
    http://dx.doi.org/10.17159/2413-7138/2015/v3n1a3
  • Download article in PDF

  This article is adapted from D Msipa ‘Survivors of sexual assault with intellectual disabilities: Accommodating difference in the courtroom’ unpublished LLM thesis, McGill University, 2013


Summary

This paper examines the capacity to testify and access justice of witnesses with intellectual disabilities who have been sexually assaulted, focusing on the situation in South Africa and Zimbabwe. Through the rigid application of rules of criminal evidence and procedure to witnesses with intellectual disabilities, the criminal justice system sometimes perpetuates inequality and discrimination. The testimonial competence of witnesses with intellectual disabilities is often challenged due to the misconception that persons with intellectual disabilities do not make reliable witnesses in court. Using critical disability theory’s understanding of disability as resulting from the interactional process between a person with impairment and the environment, it is contended that incompetence to act as a witness is not inherent in the individual with impairment. The environment, which includes the rules of evidence and procedure, also plays a part yet it is often excluded from the assessment. It is argued that assessments of an individual’s ability should only be made for the purpose of determining what accommodations they need in order to give effective testimony in court.

1 Introduction

In recent years the vulnerability to and prevalence of rape and other forms of violence against women and girls with disabilities has been the subject of much concern as shown in a number of studies.1 The vulnerability of women and girls with disabilities to different forms of violence is also acknowledged in the Convention on the Rights of Persons with Disabilities (CRPD)2 which is a new international human rights treaty dealing specifically with the rights of persons with disabilities. The CRPD, which came to force on 3 May 2008, recognises that they are often ‘at greater risk, both within and outside the home of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation’.3 Research shows that women and girls with intellectual disabilities are especially vulnerable to rape and other forms of sexual abuse.4 One study indicates that individuals with intellectual disabilities are four to ten times more likely to be sexually abused than their non-disabled counterparts.5 It is unclear how many of these cases are reported to the police and how many go on to be prosecuted. What is known, however, is that there are some that reach the criminal courts for prosecution. This paper is primarily concerned with what happens when these cases reach the criminal courts. In other words, it is concerned with the interaction between complainants with intellectual disabilities with the criminal justice system focusing on the situation in Zimbabwe and South Africa.

According to the law in these two countries, only witnesses who are regarded as competent to testify may give evidence before the court.6 However, the testimonial competence of witnesses with intellectual disabilities is frequently challenged because of a misconception that their disability makes them incompetent and unreliable witnesses.7 A finding of incompetence means that the complainant does not get to testify or that the court does not accept her testimony, without which the chances of a successful prosecution may be seriously compromised.

This paper argues that the manner in which testimonial competence is assessed in South Africa and Zimbabwe reveals an approach characterised by a pre-occupation with the abilities of the individual to the exclusion of the environment. These assessments are concerned with asking whether a particular individual is competent to testify and they focus on the individual’s own innate abilities in order to answer that question. Consequently, incompetence has tended to be viewed as something which is inherent in the individual. This approach is inconsistent with the understanding that is relied on in Critical Disability Theory and in the CRPD of disability as the result of an interactive process between a person with impairment and his/her environment.8 In this paper, Critical Disability Theory is used to show how this understanding of disability as an interactional process can help to solve the problem of inequality caused by competency assessments which focus solely on the innate abilities of the individual. When witnesses with intellectual disabilities encounter the criminal justice system, the courtroom becomes a type of arena within which the interaction between impairment and environment can be seen. A criminal trial makes for a very formal, complex and highly stressful environment in which those who can communicate well orally may arguably fare better than those who cannot. Witnesses with intellectual disabilities, in particular, would face a much more difficult time in the courtroom than their non-disabled counterparts due to the nature of the impairment which may affect how they communicate. The interaction between the courtroom environment and the impairment is likely to result in the witness’s inability to effectively participate in the trial on an equal basis with others. Therefore, an approach to testimonial competence which ignores the disabling effect of the environment and treats incompetence as entirely inherent in the individual provides an incomplete understanding of the problem. In turn, an incomplete understanding of the problem prevents the formulation of an adequate response. Ultimately, the result is the perpetuation of inequality and discrimination as well as the violation of the right to access justice. 9

The utility of defining disability as an interactional process extends beyond enabling an appreciation of the disabling role which the environment can play and necessitates a response to the problem which also takes both the impairment and the environment into account. That is to say the impairment and the environment are not only part of the problem, but can also be part of the solution. The relevant question then becomes how can they be part of the solution? The answer to that is through the provision of procedural and age-appropriate accommo-dations.10 These accommodations formulate a solution which takes both individual impairment and environment into account by paying attention to individual needs and demanding a response in the environment. This makes the provision of accommodations the best method of addressing the problem with the approach to testimonial competence that is taken in South Africa and Zimbabwe. Instead of simply asking whether a particular individual is competent to testify, which is what the current assessments of competence effectively do, I propose that assessments to do with testimonial competence should be concerned with asking what supports an individual may require in order to participate effectively and on an equal basis with others. In other words, any assessment of the individual should be for the purpose of determining what supports that individual requires as opposed to whether or not that individual is competent to testify. It will therefore, be argued that without the provision of accommodations in a criminal trial involving a witness with intellectual disabilities, the ability to participate effectively on an equal basis with others may be gravely impaired or entirely lost. So important is the provision of accommodations in achieving equality that the CRPD extends the definition of discrimination to include the denial of reasonable accommodations. 11

This paper is divided into three parts. The first part demonstrates that the current approach to the assessment of testimonial competence in the two countries fails to take into account the impact of the environment and treats incompetence as inherent in the individual. The second part of the paper deals with how adding a Critical Disability Theory perspective can alter the way in which assessments of competence are thought about. Finally, the third part of the paper suggests the use of accommodations as a solution to the inequality problem created by assessments of competence.

2 Analysing competency assessments in South Africa and Zimbabwe

2.1 Testimonial competence under statute law in Zimbabwe and South Africa: Creating an additional barrier?

The statutes governing criminal procedure and evidence in Zimbabwe and South Africa contain some controversial provisions which create an additional barrier for witnesses with intellectual disabilities. These provisions declare persons with the requisite state of mind as incompetent to testify. In Zimbabwe the relevant statute contains a provision governing ‘[i]ncompetency from mental disorder or defect and intoxication’.12 A similar provision also exists within the South African statute.13 These provisions have in the past been applied to declare persons with intellectual disabilities incompetent to testify as is demonstrated in the South African case of S v Thurston.14 In an effort to remedy this problem with the then section 225, which is the predecessor of the current section 194 of the South African Criminal Procedure Act, the Botha Commission of Inquiry on Criminal Evidence and Procedure15 recommended changes to this provision16 including the removal of the words ‘idiocy’ and ‘lunacy’, the substitution of the term ‘insanity’ with mental illness and of the word ‘otherwise’ with ‘the like’ as well as the inclusion of the term ‘drugs’. The amended version of this provision is the current section 194.17 In spite of these changes, section 194 continued to be interpreted by the courts to exclude the evidence of persons with intellectual disabilities.18 However, the interpretation of section 194 was finally settled by the Supreme Court of Appeal of South Africa in S v Katoo.19 In this case the prosecution sought to call the complainant in a rape trial who was described by a psychologist as having ‘severe mental retardation’,20 as a witness. The evidence of the psychologist was to the effect that the complainant ‘could consequently be described as an imbecile’.21 The psychologist asserted that the complainant had a ‘very limited capacity to exercise her will and make choices, and that her mental age was that of a four-year-old child’.22 The trial judge interpreted section 194 to mean that due to her status as an ‘imbecile’, the complainant was not competent to testify. Consequently, the respondent was acquitted. On appeal the specific question which the Supreme Court of Appeal had to answer was ‘whether the court was correct in law in refusing the state an opportunity to present the evidence of the complainant on the charges preferred?’23 In disagreeing with the finding made by the trial court Jafta AJA clarified that ‘it is only imbecility induced by “intoxication, or drugs or the like” that falls within the ambit of the section (and then only when the witness is deprived of the proper use of his or her reason)’.24 He concluded that the evidence led did not suggest that the complainant was deprived of the proper use of her reason. It simply showed that she had ‘limited mental capacity’.25 Jafta AJA argued that evidence led at trial showed that she did not suffer from a mental illness, but that she was merely an ‘imbecile’ and that alone did not make her incompetent to testify.26 It was therefore, held that she did not fall within the ambit of section 194 and she was in fact competent to testify.

Following this decision, it is now settled in South Africa that section 194 need not necessarily apply to persons with intellectual disabilities but instead it applies to cases of mental illness or ‘imbecility’, that results from intoxication or drugs and which affects a person’s powers of reason. Even though section 194 does not per se apply to persons with intellectual disabilities, it may create an additional requirement that affects the equality of persons with intellectual disabilities. This is particularly because of the requirement it creates for the court to conduct an inquiry into the cause of ‘imbecility’.27 In holding that the trial court’s ruling in Katoo was an irregularity and a miscarriage of justice, Jafta AJA reiterated the duty of the trial court to conduct an inquiry in order to decide on the issue of competence.28

The duty of the court to properly investigate any assertion that a witness has the state of mind that falls within the ambit of section 246 of the Zimbabwean statute29 was also reiterated by the Supreme Court of Zimbabwe in the case of Ndiweni.30 In this case, the defence made an assertion at trial that a state witness was labouring under some ‘mental disorder’.31 This assertion was not challenged by the state32 and the trial court did not probe the assertion. The Supreme Court of Zimbabwe found that this was an irregularity.33 Once an assertion has been made by the defence that a witness is ‘afflicted with idiocy or mental disorder or defect’34 the court which has power to decide on the competency of such a witness and must look into that allegation by conducting an inquiry.35 This position is further reiterated in the professional manual for criminal defenders in Zimbabwe which states that:

Certain witnesses are not competent to give evidence according to the rules of evidence. For example, under s 246 CPE ... Where an allegation that a witness is mentally disordered is made during a criminal trial and the witness appears to be mentally disordered, the court must properly investigate whether the witness is incompetent in terms of this provision. 36

It would seem that all that is required is for an assertion to be made that a witness is incompetent and this is enough to trigger an inquiry into the mental state of the witness for purposes of assessing whether or not she is competent which constitutes an additional barrier and perpetuates inequality and discrimination for witnesses with intellectual disabilities.

Of particular concern however, for the purposes of this paper, is the manner in which the competency assessments themselves are conducted.

2.2 The dual approach to assessment of competence: Inherent incompetence?

The current approach to the assessment of testimonial competence in South Africa and Zimbabwe is problematic because it treats incompetence as inherent in the individual thereby overlooking the impact of the environment on the competence and credibility of a witness. There are currently two approaches that may be taken in the determination of the competence of a witness.37 Firstly, where a witness’s competence is challenged, this may be dealt with in a manner similar to that relating to issues of admissibility.38 Where it is necessary to do so, a trial within a trial will be held to decide the matter.39 But a trial within a trial is not always necessary. Secondly, the question of incompetence may be decided by putting the witness in the stand and allowing her to testify.40 A decision will then be made based on observing the witness in the stand.41 Whichever approach is taken, a psychologist is required to assess the witness and advise the court about whether or not the complainant is a competent witness. This can be seen in the South African cases of Kevin Goodall v the State and Chris Bindeman v the State.42

The courts place great weight on the evidence of a psychologist who will have conducted assessments focusing on the individual’s abilities and limitations.43 This means that the focus is on the individual being assessed to the exclusion of his/her surroundings or environment. In other words, the question that will be asked is whether or not this particular individual is incompetent. Incompetence is therefore, seen as inherent in the individual in the sense that it is regarded as a characteristic which is innate or intrinsic in the individual and is attributed to internal factors such as ‘mental illness, mental retardation, senility ... excessive use of drugs or alcohol’.44 Consequently, experts measure the competence of the individual using a variety of questionnaires and tests, all of which focus on the individual’s capabilities.45 This focus on the individual makes the law on competence unresponsive to the social and political dimensions that are at play when it comes to competence and the assessment of competence. 46

Even where competence is assessed by allowing the witness to testify and observing her in the stand, incompetence is treated as a characteristic inherent or innate in the individual. It is the individual’s innate abilities that are being assessed to the exclusion of the external environment or setting. Stefan rightly argues that competency assessments are about more than just determining the individual’s capabilities, but that they are about ‘interpersonal dynamics and social and political structuring of roles and communication’.47 She states that ‘determinations of competence cannot simply be the result of a series of observations or assessments and tests administered by an objective expert’.48 This is because competence or the lack thereof, is ‘perceived, assessed and judged’49 by other people.50 Stefan also argues that the contextual background for competency inquiries consists in a breakdown in communications and that these communications are about the values of the people doing the assessing as well as those who are being assessed. 51

Quite importantly, the author notes that the setting determines the quality of the interaction.52 In the courtroom setting, judges infer competence or incompetence from the way that the witness delivers her testimony. This is not a relationship between equals.53 These are relations of power and it is the powerful actor, in this case the judge, who is in control.54 The powerful actor is out of the picture and only the powerless actor’s capabilities are in question.55 Therefore, in these assessments, it is the individual’s capabilities that are taken account of to the exclusion of the environment.

In Zimbabwe and South Africa, the ability of a witness to provide sworn evidence is also part and parcel of the assessment of testimonial competence.

2.3 Truth and falsehood: Application of different standards?

A potential source of inequality lies in the requirement for the court to receive sworn evidence. The courts in Zimbabwe56 and South Africa57 can only receive testimony from a witness who has taken the oath, been affirmed or admonished. In order to demonstrate how this works, I will rely primarily on South African case law simply because the South African courts have dealt with this issue in relatively more detail compared to the Zimbabwean courts. Section 164 of the South African Act makes provision for witnesses who can neither take the oath nor testify under affirmation to be admonished to speak ‘the truth the whole truth and nothing but the truth’.58 A witness is admonished in circumstances where he/she ‘is found not to understand the nature and import of the oath or affirmation’59 due to ‘ignorance arising from youth, defective education or other cause’.60

Differential treatment arises from the fact that witnesses who take the oath are not required to demonstrate that they understand the meaning of the oath;61 whereas those testifying under admonition are required to demonstrate an understanding of the difference between truth and falsehood.62 All that is required of those who take the oath is that they repeat the words prescribed by the statute. Those who are admonished are, however, required to demonstrate an understanding of the difference between truth and falsehood. The South African Constitutional Court in DPP v Minister of Justice and Constitutional Development confirmed the position that it is a requirement for witnesses who are admonished to demonstrate an understanding of the difference between truth and falsehood.63 The Constitutional Court stated that:

The reason for evidence to be given under oath or affirmation or for a person to be admonished to speak the truth is to ensure that the evidence given is reliable. Knowledge that a child knows and understands what it means to tell the truth gives the assurance that the evidence can be relied upon. It is in fact a precondition for admonishing a child to tell the truth that the child can comprehend what it means to tell the truth. The evidence of a child who does not understand what it means to tell the truth is not reliable. It would undermine the accused's right to a fair trial where such evidence to be admitted. To my mind, it does not amount to a violation of s 28(2) to exclude the evidence of such a child. The risk of a conviction based on unreliable evidence is too great to permit a child who does not understand what it means to speak the truth to testify. This would indeed have serious consequences for the administration of justice. 64

Case law suggests that there are broadly two groups of people who give evidence under admonition; children and persons with intellectual disabilities.65 These are the ones who are more likely to be deemed to not understand the nature and import of the oath. I would contend therefore, that this is essentially a difference in treatment between persons without intellectual disabilities and persons with intellectual disabilities. Witnesses who are admonished may therefore, be held to a higher standard and this goes against the principles of equality set out in the CRPD which require that all persons with disabilities access justice on an equal basis with others. 66

It may be argued that in order to protect the fair trial rights of the accused person, the courts must ensure that the witness with an intellectual disability understands the difference between truth and falsehood. This is a concern based on the impact of the impairment where it is feared that due to the impairment, the witness can simply stand in court and speak lies. Whilst this is a valid concern, it is contended that the solution is not to ask the witness to define the difference between truth and falsehood before they can be allowed to testify because a witness’s failure to define the difference between truth and falsehood, which may be a result of the impairment, does not necessarily mean that they cannot actually tell the truth.67 This approach would be reflective of the approach generally taken by the courts in which the inability to demonstrate an understanding of the difference between truth and falsehood is seen as innate in the individual and therefore, it is up to the individual to remedy the situation by convincing the court through the provision of a definition of truth and falsehood that they do understand what it means to tell the truth. In other words, this approach assesses the innate abilities and limitations of the individual, in this case, the ability of the individual to define the notions of truth and falsehood.

The requirement for witnesses with intellectual disabilities to demonstrate the difference between truth and falsehood was recently examined in Canada and it is submitted that the approach taken by the Canadian Supreme Court on this issue is preferable, though their decision was based on principles of statutory interpretation. From the language in the Canada Evidence Act,68 it was possible for adults with mental disabilities whose competence was challenged to testify without having to take the oath provided they could communicate the evidence.69 They could testify on a promise to tell the truth.70 Nonetheless, the courts interpreted this provision by requiring the witness to demonstrate an understanding of the duty to tell the truth.71 In R v DAI,72 the Supreme Court of Canada rejected competency assessments requiring witnesses to demonstrate an understanding of the difference between truth and falsehood.73 The majority’s decision was based on principles of statutory interpretation and it was held that all that was required by section 16(3) of the Canada Evidence Act was for the witness to be able to communicate the evidence and they could proceed to testify on a promise to tell the truth.74 Reading any further requirement into those words would be adding to the legislation words that are not present therein.75 Benedet and Grant argue that the bar for competence must not be placed too high especially since the trier of fact is not obligated to accept the witness’s evidence.76 Rules regulating the admissibility and weight of evidence could be used to deal with the fair trial concerns for the accused person.77 Rather than being an empty gesture, testifying on a promise to tell the truth has the effect of underlining the seriousness of the occasion.78 After R v DAI, the competence assessment must focus on whether or not the witness can communicate the evidence as opposed to the previous position whereby the complainant had to demonstrate an understanding of the abstract notions of truth telling and falsehood.79 It is contended that requiring a witness to demonstrate the difference between truth and falsehood amounts to setting the bar higher for witnesses who are admonished to tell the truth. Furthermore, it perpetuates inequality and discrimination for witnesses with intellectual disabilities.

It is submitted that the approach taken in DAI is preferable and rather than ask the witness to define the difference between truth and falsehood in abstract terms, the witness should be accommodated to communicate the evidence effectively in court. Much in the same way that a non-disabled witness taking the oath (without demonstrating the difference between truth and falsehood) does not guarantee that they will tell the truth, a witness with disability’s inability to define the difference between the two notions does not mean that they will not tell the truth. In any case, the fact that a witness has been allowed to testify does not automatically mean that their evidence will be accepted. There are still other safeguards in place such as corroborating evidence, credibility of the witness and cross-examination which are there to ensure that the accused person’s fair trial rights are not violated. However, the key here is to ensure that the witness is properly accommodated to enable them to tell their story in court. This approach would be in line with Critical Disability Theory which, unlike the medical model of disability, recognises both the impact of the impairment by acknowledging that the impairment may make it difficult for the witnesses to define the notions of truth and falsehood and that the solution to this lies in accommodating the individual with impairment through the environment.

So far, it has been demonstrated that assessments of competence focus on the individual abilities and limitations of the individual to the exclusion of the environment. I now turn to address exactly what an application of the understanding of disability as an interactional process means for witnesses with intellectual disabilities.

3 Introducing a new perspective: Looking at assessments of competence through a Critical Disability Theory lens

Looking at assessments of competence through a critical disability theory lens is very important because of the potential it has to pave the way for more women with intellectual disabilities to testify in courts of law and thereby access justice. The approach taken in Zimbabwe and South Africa which is based on the assumption that incompetence is inherent in the individual with impairment is reflective of the paradigm that was dominant throughout the 20th century in which disability was understood as an ‘individual pathology’.80 This was sometimes referred to as the medical model of disability81 and according to this formulation, disability was seen as something that was inherent in the person with impairment because the main focus was on ‘individual functional abilities and capabilities’.82 Within this paradigm disability was a ‘personal misfortune’83 that attracted pity and charity and was to be prevented or treated.84 As a result of this model, the law’s response to and treatment of persons with disabilities was as objects of charity on whose behalf various social policies were implemented.85 Devlin and Pothier put it quite succinctly when they state that ‘[t]o start from the perspective that disability as misfortune is to buy into a framework of charity and pity rather than equality and inclusion’.86 This is contrary to the paradigm which has in recent years dominated disability rights discourse known as the social model.

According to this formulation, disability is understood not as something which is inherent in the individual but as a social construct.87 This means that disability is not necessarily a result of impairment, but is a result of the combined effect of impairment and the environment which does not accommodate the needs of persons with disabilities. This formulation of disability as a result of the interaction between an individual with impairment and the environment is the one that is relied on in the CRPD88 as well as in Critical Disability Theory. The CRPD recognises that ‘disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others’.89 In other words, it is the interaction between impairment and disabling attitudes and environments that potentially results in limited or ineffective participation of persons with disabilities.

What this all means for witnesses with intellectual disabilities is that the courts no longer need to look solely at the abilities and limitations of the individual in determining whether or not they can act as a witness. Understanding that the competence or credibility of a witness is influenced by the interaction between the individual impairment and the environment has the potential to pave the way for more witnesses with intellectual disabilities to be able to testify in court. This is especially so, when one considers the environment that prevails in a courtroom setting.

3.1 Adding the impact of the environment to the question of witness competence and credibility

The courtroom is generally stressful for any witness and this is why witness preparation is essential.90 Stress may result from the formality with which the proceedings are conducted and if a witness is not properly prepared, this may negatively impact how they testify. For complainants of sexual assault, the knowledge that they will have to re-live the experience by talking about it in court can in itself cause anxiety and in turn affect how they testify.91 The manner in which they testify in turn has a bearing on whether or not they are found to be competent as witnesses. Therefore, the external environment, in this case the courtroom, plays an important part in determining competency. The current approach to assessing testimonial competence does not take the environment into account and is therefore, not capable of adequately addressing inequality for witnesses with intellectual disabilities and ensuring access to justice. Only when the environment is seen as part of the equation can the full impact of the problem be understood. Testimonial incompetence ought to be regarded as resulting from the interaction between characteristics innate in the individual with impairment and the external environment or setting. The failure to take the external environment into account may result in a person being declared incompetent to testify. This has serious implications because in some cases, without the testimony of the complainant, the chances for a successful prosecution may be lost. However, it must still be emphasised that the impact of the impairment itself is still part of the equation.

3.2 Acknowledging the role played by and impact of the impairment

If incompetence, much like disability, is a social construct does this mean that impairment has no part to play in the disabling of an individual? Should individual differences resulting from impairment be taken into account or should they be overlooked, particularly in light of the fact that the inequality and discrimination to which persons with disabilities have been subjected has been said to be due to their being different from their non-disabled counterparts?92 Martha Minow refers to the difficulty in knowing when to ignore difference and when to take it into account as the ‘dilemma of difference’.93 For sometimes taking difference into account can be seen as perpetuating marginalisation, but at other times, ignoring the difference usually has the effect of marginalising the person.94

When it comes to disability, exclusion usually results from ignoring difference.95 This is because disability is so unique that the difference cannot be ignored without serious consequences. Consider, for example, a business establishment that claims that it does not discriminate because it opens its doors to everyone, yet its premises are physically inaccessible to some; the result for a person with a physical disability, despite the rhetoric of inclusion, is that they are necessarily excluded because the building is inaccessible. Taking difference into account however, means that the owner of that establishment would have to make the building accessible.

One of the critiques of the earlier version of the social model is that it claimed that impairment made no contribution to disability and that disability was entirely a social construct.96 It distinguished between impairment and disability and treated the two as entirely separate and distinct, treating disability as something that resulted only from the environment. Tremain rightly argues that impairment cannot be left out of the equation because, for example, it is not argued that black people are disabled because the environment causes them to experience social disadvantage.97 It would seem that the only people who can claim to be disabled are those with impairment, and therefore it is ‘implicit’98 that impairment also contributes to the disadvantaging.99

Part of the transformative power of Critical Disability Theory is that it values difference. The model that is relied on by Critical Disability Theory is a mixture of the medical model and the social model.100 This is why the social model relied on by Critical Disability Theory treats disability as a result of the interaction between a person with impairment and his/her environment. This approach is somewhat realistic because it acknow-ledges the role played, and contribution made, by impairment.101 When disability is understood as the interaction between the person and his/her environment, then necessarily, the person’s difference must be taken into account in order to understand the full impact of the social environment and the barriers it creates. As stated by Devlin and Pothier, ‘disability demands a coming to terms with difference’.102 Indeed Critical Theory in general subscribes to the notion that difference cannot be ignored. 103

Therefore, acknowledging the effect of the environment on the competence and credibility of a witness does not mean that the impairment itself has absolutely no impact on the competence of the witness. On the contrary, the impairment associated with intellectual disabilities does make it difficult for witnesses to follow the proceedings and participate effectively in the trial. For example, witnesses may have difficulty with concepts such as time, dates and space. They may also have difficulty communicating with others. All these would make it difficult for the witness to effectively participate in the trial. Therefore, the impact of the impairment does indeed play a role in making a witness incompetent and cannot and indeed should not be ignored or overlooked. Care does need to be taken, however, in order to ensure that the impact of the impairment is taken into account in a constructive manner.

3.3 Taking the impact of the impairment into account in a constructive manner using an equality framework

Both the medical model of disability and Critical Disability Theory take the impact of impairment into account though in different ways and to different extents. The medical model states that a person is disabled because of their impairment whilst Critical Disability Theory subscribes to the view that a person is disabled in part because they have an impairment and also because they are in a disabling environment. It is indeed true that impairment plays a part in the disablement of a person. The challenge, as Devlin and Pothier put it, is ‘to pay attention to difference without creating a hierarchy of difference - either between disability and non-disability or within disability’.104 Therefore, the question is how can difference (impairment) be taken into account in a constructive manner? The answer is through the use of an equality framework.

I would contend that difference in and of itself need not be problematic because diversity is one of the main characteristics of humanity. The CRPD recognises this when it calls for ‘[r]espect for difference and acceptance of persons with disabilities as part of human diversity and humanity’ in article 3(d). Discrimination arises from the fact that difference has been equated with ‘inferiority’.105 It is this equation of difference with inferiority that equality measures are designed to challenge.106 Regardless of how different persons with intellectual disabilities may be, they are born free and equal in dignity and rights.107 Quinn puts it aptly when he states that ‘all persons not only possess inestimable inherent self-worth but are also inherently equal in terms of self-worth, regardless of their difference’.108 This means that they are ‘entitled’109 to respect and equal treatment ‘even if that equality does not entail identical treatment under the circumstances’.110 This leaves no room for a response of pity which according to Gill, ‘jeopardizes respect’.111 Treating people with intellectual disabilities as equals forces us to take cognisance of the inherent dignity and worth of persons with intellectual disabilities, regardless of how different they may be.112 It is therefore crucial that the principles of equality and non-discrimination be at the forefront when it comes to victims of sexual assault with intellectual disabilities. When equality and respect for persons with intellectual disabilities are at the forefront, ‘difference need not mean legal difference’.113 This means that if the law responds appropriately, there is no need for it to create or perpetuate differences in treatment between disabled and non-disabled people.

This however does not mean that witnesses with intellectual disabilities and non-disabled witnesses should be treated exactly the same as the formal equality model suggests, for this is a model of equality which focuses on ‘even-handedness’114 and in effect ignores difference.115 Seeking an equality agenda does not mean that difference should be ignored, neither does it mean that we should seek to eradicate difference - for this would not be possible.116 Rather, it means that a ‘genuinely equal society is one that has a positive approach to and positively accommodates human difference’.117 Instead, the equality of opportunity model which is based on the premise that everyone is entitled to equally access opportunities and participate in the social, economic and cultural spheres of life and which is a guiding principle of the CRPD itself under article 3(e), is more appropriate.118

Therefore, the impact of the impairment has to be taken into account along with the impact of the environment within a framework of equality in order to fully understand the dynamics which contribute to the competence and credibility of a witness with an intellectual disability and to formulate an appropriate response to the problem.

4 Formulating an appropriate response through the use of accommodations

The application to assessments of competence of Critical Disability Theory is more than just an academic exercise; it is also about informing the process of bringing about change and formulating a more appropriate response to the problem. Like all Critical Theory, Critical Disability Theory seeks not only to be explanatory, but to effect change. Devlin and Pothier aptly describe Critical Disability Theory in the following terms: ‘Its goal is not theory for the joy of theorization, or even improved understanding and explanation; it is theorization in the pursuit of empowerment and substance, not just formal equality.’119 If disability is viewed as a problem entirely inherent in the individual with impairment, then it might be argued that the responsibility to eliminate the social disadvantage of disability lies chiefly with the individual.120 However, if disability is understood as a social construct, then the responsibility shifts from the individual with impairment to the community.121 However, simply identifying where the responsibility to formulate a response lies is not enough. There is still a need to take this a step further, and clarify the exact nature of the response which is appropriate. This is because there are several responses to difference that are open to the community and these include ‘pity, charity, surgical intervention, accommodation, and transformation’.122 What then is the appropriate response? Recognising the problems arising from the interaction between impairment and environment allows for adjustments to be made in the environment in response to the impairment in a way that will ensure effective participation of persons with intellectual disabilities as witnesses in a criminal trial. In other words, if the environment is understood as part of the problem, then it is necessarily part of the solution.

The CRPD addresses the unduly burdensome nature of the interaction between witnesses with intellectual disabilities and the criminal justice system by requiring the making of procedural and age-appropriate accommodations.123 The impact of assessments of competence goes beyond the outcome of a case and affects what has been described as ‘the most basic “human right”’,124 the right to access justice.125 Usually framed in International Human Rights Law as the right to an effective remedy126 the right to access justice, which appears for the first time in the CRPD as a substantive right, is crucial for the protection of human rights because it has a bearing on the enjoyment of other rights.127 Cappelletti and Garth effectively summarise the importance of this right by noting that ‘the possession of rights is meaningless without mechanisms for their effective vindication’.128 The inclusion of a substantive right of access to justice in the CRPD was therefore, not fortuitous, but was a response to the ‘specific rights experience of persons with disability’129 in particular, the numerous barriers they face to accessing justice. For this reason the CRPD expressly includes a requirement for states parties to take measures to ‘facilitate their effective role as direct and indirect participants, including as witnesses’130 in the legal system in order for them to access justice on an ‘equal basis with others’131 through the provision of procedural and age-appropriate accommodations. Furthermore, the CRPD in article 5(3) makes it a requirement to provide reasonable accommodation by providing that states parties ‘shall take all appropriate steps to ensure that reasonable accommodation is provided’. However, there are other measures which have been employed at the domestic level in an effort to address this problem. One such measure is the use of protective measures for vulnerable witnesses.

4.1 Protective measures for vulnerable witnesses versus accommodation

Witnesses with disabilities, including intellectual disabilities, are frequently dealt with in accordance with the measures for the protection of vulnerable witnesses. Legislation governing criminal evidence and procedure in Zimbabwe and South Africa contain measures dealing with vulnerable witnesses. The category of ‘vulnerable witness’ encompasses a number of witnesses, not just witnesses with disabilities.132 Though not expressly included within the definition of vulnerable witness, persons with intellectual disabilities may and do frequently fall under the ambit of this provision. The measures may be applied by the court mero motu133 or after an application by either of the parties.134 However, the measures do not apply automatically. The court decides whether or not to take any of the measures, and in reaching that decision, has to consider a number of factors including:

(a) the witness’s age, mental and physical condition and cultural background;

(b) the relationship, if any, between the vulnerable witness and any other party to the proceedings; and

(c) the nature of the proceedings; and

(d) the feasibility of taking the measure concerned; and

(e) any views expressed by the parties to the proceedings; and

(f) the interests of justice.135

The South African Act on the other hand specifically includes persons with disabilities within its definition of vulnerable witness.136 In South Africa, the ‘special arrangements’ which may be made include the ‘relocation of the trial’,137 the rearrangement, removal, or addition of furniture in the court room or a change in the positions where the parties sit or stand,138 the appointment of a support person,139 giving evidence behind a screen or giving in a different room via closed circuit television140 and the ‘taking of any other steps that in the opinion of the court are expedient and desirable in order to facilitate the giving of evidence by the vulnerable witness concerned’.141

Protective measures amount to provisions that are already laid down and the only consideration that the court has to make is firstly, whether a witness falls within the category of ‘vulnerable witness’ and secondly, which of the array of measures to avail to that witness. There is no room for the assessment of individual needs on a case-by-case basis. What is the desirability of having fixed measures that are already set out?

Lawson recognises that the duty to reasonably accommodate under the UK Disability Discrimination Act entails a reactive element as well as an anticipatory element.142 The reactive element ‘embraces those duties which are entirely individualized and reactive in nature, simply requiring duty-bearers to take reasonable steps to accommodate the needs of a particular disabled person with whom they are confronted’.143 The anticipatory element entails a requirement to ‘anticipate what barriers such people are likely to encounter and to take reasonable steps to remove them in advance’.144 Lawson notes that there is a possibility that states can create ‘anticipatory duties’145 especially since that ‘possibility ... was not clearly contemplated in any of the pre-CRPD discussions’.146

However, protective measures for vulnerable witnesses may not be adequate. This is recognised in a thematic study carried out by the UN on violence against women and girls with disabilities. The study states that:

Furthermore, the justice system may fail to accommodate her physical, communication or other specific needs. Victim protection measures and other measures to support victims may be inadequate for women with disabilities. 147

This is especially the case for women with intellectual disabilities because the ‘spectrum of intellectual, psychosocial and communication disabilities is broad and highly varied’.148 Primor and Lerner go on to conclude that:

creating accommodations requires maximum flexibility in order to provide every person with accommodations that meet their specific needs in accordance with the characteristics and severity of their particular disability. Thus, some people may require moral support and reassurance, some will require simplification of the questions. Others need to be able to take a short recess during the testimony for whenever they are unable to concentrate and some individuals may require the use of an interpreter or speech-to-speech transmittal in order to testify. Thus the law should not restrict itself to a limited set of accommodations but rather allow court discretion on individual basis. 149

Therefore, whilst set measures for vulnerable witnesses may be useful, they should not exclude the possibility of providing further accommodation which a particular witness may require. As Lawson puts it, it is ‘beyond doubt ... that states will be required to introduce individualized reasonable accommodation duties which are responsive to the circumstances of the particular case’.150 The wording in the South African legislation may leave it open for the South African courts to do just that. It permits the court to take ‘any other steps that in the opinion of the court are expedient and desirable in order to facilitate the giving of evidence by the vulnerable witness concerned’.151 This is, however, not the case with the Zimbabwean legislation. There is a need for an approach that assesses and accommodates the individual needs of the witness in question. This is exactly what the duty to accommodate does and this is why the CRPD itself in article 13 expressly states that the provision of procedural and age-appropriate accommodations is required.

4.2 The duty to accommodate: Offering flexibility in the legal system

The concept of accommodations is an approach that is flexible in responding to the needs of witnesses with disabilities. It is instructive to examine the historical development of the concept in order to demonstrate that it is indeed a concept intended to introduce flexibility in the application of norms.

The concept of reasonable accommodation existed prior to the coming into effect of the CRPD.152 As Anna Lawson puts it, ‘even before the CRPD, there was an understanding that the human rights of disabled people would be effectively enjoyed and protected only if their different circumstances and needs were recognized and, where reasonable, accommodated’.153 The concept has been defined outside the CRPD as a ‘legal notion’154 that stems from ‘jurisprudence in the realm of labor and indicates a form of relaxation aimed at combating discrimination caused by the strict application of a norm’.155 The concept’s application to persons with disabilities can be traced as far back as 1982 when the World Programme of Action Concerning Disabled Persons was adopted by the UN General Assembly. In the World Programme of Action Concerning Disabled Persons there was a particularly strong emphasis placed on appropriate responses to the individual ‘needs and circumstances’ of persons with disabilities. It stated that:

[t]he principle of equal rights for the disabled and non-disabled implies that the needs of each and every individual are of equal importance, that these needs must be made the basis for the planning of societies, and that resources must be employed in such a way as to ensure, for every individual, equal opportunity for participation. 156

The jurisprudence of international bodies also reveals an application of the duty to accommodate to persons with disabilities. In Hamilton v Jamaica157 the Human Rights Committee found that the Jamaican state was in breach of the provision of the ICCPR dealing with the humane treatment of detainees158 because the state had failed to hold a prisoner with paralysed legs in a place that was adapted to meet his needs. The inability to adapt a place of detention to a person’s individual needs was also found to constitute a breach of the provision in the European Convention on Human Rights159 on degrading treatment.160 What these decisions show is that the addressing of a person’s individual needs and circumstances is central to the duty to accommodate. The continuing prominence given to individual difference can be seen in the definition of reasonable accommodation in the CRPD, which is defined as the provision of, ‘necessary and appropriate modification and adjustments ... where needed in a particular case ...’161

Implicit within the concept of reasonable accommodation is the prominence of individual difference. The response is made manifest in the environment, but it is a response to the individual difference. The role of the environment is therefore simultaneously recognised in that it is the failure of the environment to adapt to the needs arising from individual needs that result in discrimination. Lawson puts it this way:

Reasonable adjustment in essence requires that relevant difference in circumstance be identified and that it be responded to in the form of appropriately different treatment. 162

This highlights the importance of taking difference into account, along with the environment. In this sense, the understanding of disability as an interactional process between individual and environment is neatly encapsulated within the concept of reasonable accommodation. Both elements have to be considered in order to appropriately respond to the individual needs of persons with disabilities in achieving equality. An approach that does not take into account individual differences may allow certain persons with disabilities to fall through the cracks, so to speak. This focus on individual needs and circumstances is what makes the concept flexible enough to respond to the needs of witnesses with intellectual disabilities. It is therefore, not surprising that the concept was specifically referred to as an appropriate response in article 13 of the CRPD.

At this juncture, the question might arise whether or not the fact that a witness requires extensive support is in fact not an indication that the witness is not competent to testify. The issue of support is dealt with in article 12 of the CRPD.

4.3 Article 12 of the CRPD: Requiring the provision of supports

Article 12 of the CRPD requires the provision of supports. The construction of legal capacity under article 12 of the CRPD challenges the dominant societal and legal norms to such a great extent that it has been described as ‘“emblematic of the paradigm shift” in the approach to disability for which the CRPD as a whole has been hailed’.163 During the drafting of the CRPD, the exact construction of legal capacity was subject to much debate.164 At issue was the question whether legal capacity involves both the capacity to have rights (identity) and the capacity to act (agency). This question was analysed by a group of experts in 2008 who drew up a legal opinion concluding that article 12 embodies both elements of identity and agency.165 The element of identity is seen in the subparagraph that reads:

States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 166

The term ‘as persons before the law’167 embodies the identity element showing that legal capacity means the capacity to have rights. In order to have rights, one must be recognised as a person before the law.

The agency element can be seen in the following subparagraph:

States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 168

The phrase ‘enjoy legal capacity on an equal basis with others’169 embodies the element of agency, meaning effective capacity to act. In that respect therefore, article 12 is similar in construction to article 15 of the Convention on the Elimination of All Forms of Discrimination against Women170 which embodies both elements of identity and agency. But why is this important?

I would contend that the elements of identity and agency necessarily have to be simultaneously present in any concept of legal capacity that is capable of enabling the real realisation of rights. If legal capacity refers to a ‘person’s power or possibility to act within the framework of the legal system’,171 then legal capacity is necessarily about legal personhood.172 Indeed it is only through this personhood that one can act. One must have rights and be able to act, for having rights when one cannot act may undermine those rights and one cannot act without a recognised identity that enables one to hold rights in the first place. The unification of both elements of identity and agency in article 12 is to be applauded.

The element of agency embodied within legal capacity under article 12 challenges dominant perceptions about the role of support. Capacity to act does not become a problem until one is dealing with the capacity to act of a person who requires a lot of support, such as a person with a severe intellectual disability, in order to exercise their legal capacity.173 Article 12 deals with this situation by stating that:

States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 174

This provision is in line with the statement in the Preamble which:

recognize[es] the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support.175

Article 12 therefore, recognises the reality that we all need support and requires the provision of support.176 It does, however, go on to require states parties to have in place safeguards which ensure:

that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence ... 177

Nonetheless, cognisance must be taken of the fact that this is a challenge to dominant societal and legal norms. The dominant norm is that the more support a person needs in order to exercise their legal capacity, the more likely they are to be regarded as lacking capacity. Similarly the more support a witness with an intellectual disability requires to testify, the more likely they are to be regarded as incompetent witnesses. However, under the construction of legal capacity in article 12, no longer is requiring support seen as an indication of lack of legal capacity, but a necessary part of enabling one to exercise one’s capacity. Not only does article 12 require the provision of support, it also reinforces the understanding of disability as the result of the interaction between a person with impairment and his/her environment.

4.4 Article 12 of the CRPD: Recognising the interactional process that is disability

The recognition of the role of supports is also an indication that article 12 looks beyond the individual and acknowledges the role played by the environment in exercising legal capacity.178 In other words it recognises that incapacity is not inherent in the individual with impairment. The recognition of the importance of support is an example of the requirement to alter the environment rather than trying to ‘fix’ the individual.179 Dinerstein puts it succinctly when he says:

The salience of support is a concrete expression of the social, interactive model of disability that animates the entire Convention and sees disability as not a thing in and of itself but rather as a product of the interaction between an individual and his or her built and attitudinal environments. 180

The recognition of the role of the environment challenges the dominant conception that incapacity inheres in the individual. Legal capacity as it is constructed under article 12 indeed represents a paradigm shift. This paradigm means that all people including those who need a lot of support have both the capacity to have rights and the capacity to act. Furthermore, it recognizes that incapacity is not inherent in the individual. It is contended that the paradigm shift in article 12 is crucial for the realisation of the equality rights of persons with disabilities, including intellectual disabilities. They are persons before the law, just like everyone else and they have the capacity to enforce their rights just like everyone else, even if they need support. This challenges prevailing societal and legal norms. This construction of legal capacity requires a lot of reform in order to bring domestic provisions in line with the paradigm shift in article 12. As one scholar aptly puts it, ‘the issue of legal capacity reform is probably the most important issue facing the international legal community at the moment’.181 One of the important areas that are affected by legal capacity reform is the area of competence to act as witnesses in criminal proceedings for people with intellectual disabilities. Specifically, what it means is that a person’s abilities should only be assessed for the purposes of determining the supports that they will need in order to give effective testimony in court, not for the purpose of deciding whether or not they are competent witnesses. As Michael Bach rightly points out, ‘the question is no longer: does a person have the mental capacity to exercise his/her legal capacity? The question is instead: What types of support are required for the person to exercise his or her legal capacity?’182 In the criminal trial setting, the question should not be whether a person is competent to testify; rather it should be what types of accommodations are required to enable the person to give effective testimony?

5 Conclusion

The manner in which assessments of testimonial competence are carried out in South Africa and Zimbabwe takes two approaches. The first approach is to deal with testimonial competence in much the same manner as issues of admissibility. This means that a trial within a trial will be held in order to determine the issue. In this approach, the opinion of a psychologist is relied on by the courts in order to decide on the testimonial competence of the witness. The psychologist will give his/her opinion about whether or not the witness is competent to give evidence by conducting assessments on the innate abilities of the individual. This approach treats the lack of competence as something which is inherent in the individual with impairment. The impact of the environment is often left quite out of the picture. The second approach to the assessment of competence involves allowing the witness to testify and having the court decide on whether or not the witness was a competent witness after having observed the witness give evidence in the witness stand. Similarly, this approach also treats incompetence as something which is inherent in the individual. The assessment normally leaves out the impact of the environment in the assessment of the witnesses’ testimonial competence. The fact that the impact of the environment on the competence of a witness is not taken into account means that the environment is not seen as part of the solution. The assessments therefore, do not involve the provision of accommodations. The fact that assessments of competence as they are carried out in Zimbabwe and South Africa fail to take into account the impact of the environment on the competence of a witness with an intellectual disability and do not involve the provision of reasonable accommodations means that these assessments perpetuate inequality and discrimination.

The utility of applying Critical Disability Theory to the assessment of testimonial competence lies in that not only does it allow for the taking into account of the impact of the environment on testimonial competence, but also that it takes into account the impact of the impairment on testimonial competence. Once it is understood that external environments play a part in causing the problem of disability, then it follows that the solution to disability based discrimination lies partly in the appropriate adjustment of the external environment. The other part of the solution lies in acknowledging the fact that the impairment does play a part. Impairment does indeed make it difficult for women with intellectual disabilities to effectively participate in a criminal trial as witnesses.

Most domestic jurisdictions respond to this through legislative provisions containing protective measures for vulnerable witnesses. Which of these is the most efficient method of addressing this problem? It has been argued that protective measures for vulnerable witnesses, unlike accommodations, may be inadequate in meeting the needs of witnesses with intellectual disabilities.

The concept of reasonable accommodation is particularly useful in meeting the needs of witnesses with intellectual disabilities. Reasonable accommodation is effective because it takes into account both the individual’s difference and the role played by the environment. This is consistent with Critical Disability Theory’s understanding of disability as a result of the interactional process between an individual with impairment and the environment. I argue that an essential feature of reasonable accommodation is the flexibility to respond to the individual needs of each witness and this is something that protective measures for vulnerable witnesses fail to do. This is because such measures are specific in offering what courts can choose from and can therefore be unduly rigid. For that reason therefore, they may fall short of the reasonable accommodation standard that is provided for in the CRPD. Nevertheless, they remain useful, albeit to a limited extent.

Therefore, the adjustment in the environment should be a response to the internal; a response to the impairment itself. In the absence of reasonable accommodation in a criminal trial involving a witness with intellectual disabilities, the ability to participate effectively on equal basis with others may be lost. Finally, it is contended that a person’s abilities should only be assessed for the purposes of determining the supports that they will need in order to give effective testimony in court, not for the purpose of deciding whether or not they are competent witnesses. In the criminal trial setting, the question should not be whether a person is competent to testify; rather it should be what types of accommodations are required to enable the person to give effective testimony? So, the question that remains to be pondered is whether there is still a place for assessments of competence.

 

1. Report of the Special Rapporteur on Violence against women, its causes and consequences A/67/227 3 August 2012; Thematic study on the issue of violence against women and girls with disability, Report of the Office of the United Nations High Commissioner for Human Rights A/HRC/20/5(30 March 2012).

2. 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.

3. CRPD, Preamble, para q.

4. F Sampson ‘Beyond compassion and sympathy to respect and equality: Gendered disability and equality rights law’ in D Pothier & R Devlin (eds) Critical disability theory: Essays in philosophy, politics, policy and law (2006) 279.

5. D Sobsey Violence and abuse in the lives of people with disabilities: The end of silent acceptance? (1994) 34.

6. M Hannibal & L Mountford Criminal litigation (2007) 301.

7. GH Gudjonsson et al ‘Assessing the capacity of people with intellectual disabilities to be witnesses in court’ (2000) 30 Psychological Medicine 307.

8. CRPD, Preamble, para e.

9. CRPD, art 13.

10. CRPD, art 13(1).

11. CRPD, art 2.

12. Criminal Procedure and Evidence Act [Chap 9:07] sec 246. It provides that: ‘No person appearing or [proven] to be afflicted with idiocy or mental disorder or defect or laboring under any imbecility of mind arising from intoxication or otherwise, whereby he is deprived of the proper use of reason, shall be competent to give evidence while under the influence of any such malady or disability.’

13. Criminal Procedure Act 51 of 1977, sec 194. It provides that: ‘No person appearing or [proven] to be afflicted with mental illness or to be labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby deprived of the proper use of his reason, shall be competent to give evidence while so afflicted or disabled.’

14. 1968 (3) SA 284 (A).

15. Botha Commission ‘Commission of Inquiry into Criminal Procedure and Evidence’ RP 78/1971 Government Printer, Pretoria.

16. The Botha Commission of Inquiry is responsible for the drafting of the Criminal Procedure Act 51 of 1977 that is currently in force in South Africa.

17. Criminal Procedure Act (n 13 above) sec 194.

18. S v Katoo 2005 (1) SACR 522 (SCR).

19. As above.

20. Katoo (n 18 above) para 6.

21. As above.

22. As above. The equation of an adult with a mental disability with a child has negative implications for the respect of persons with intellectual disabilities. It gives a false picture that they are like children when in fact they are not at all like children.

23. Katoo (n 18 above) para 3.

24. As above.

25. As above

26. Katoo (n 18 above) para 11.

27. Criminal Procedure Act (n 13 above) sec 194.

28. Katoo (n 18 above) para 12.

29. Criminal Procedure and Evidence Act (n 12 above) sec 246.

30. Ndiweni S-149-89.

31. As above.

32. Generally, assertions that are not challenged are assumed to be accepted.

33. Ndiweni (n 30 above).

34. Criminal Procedure and Evidence Act (n 12 above) sec 246.

35. Criminal Procedure and Evidence Act (n 12 above) sec 245.

36. G Feltoe Criminal defender’s handbook (2009) 103.

37. Dladla v the State AR483/09 para 12.

38. As above.

39. As above.

40. As above.

41. As above.

42. Kevin Goodall v the State, Case No A392/10 (Goodall); Chris Bindeman v the State A359/12 (Bindeman).

43. S Stefan ‘Silencing the different voice: Competence, feminist theory and law (1992-1993) 47 University of Miami Law Review777.

44. Stefan (n 43 above) 776.

45. Stefan (n 43 above) 777.

46. Stefan (n 43 above) 776.

47. Stefan (n 43 above) 779.

48. As above.

49. As above.

50. As above.

51. As above.

52. Stefan (n 43 above) 781.

53. Stefan (n 43 above) 782.

54. Stefan (n 43 above) 783.

55. As above.

56. Criminal Procedure Act (n 13 above) sec 164(1).

57. Criminal Procedure Act (n 13 above) sec 164.

58. Criminal Procedure Act (n 13 above) sec 164(1).

59. As above.

60. As above.

61. Sikhipha v the State 2006 SCA 71 (RSA) para 14 (Sikhipha).

62. Motsisi v the State 513/11 2012 ZASCA 59 (Motsisi).

63. DPP v Minister of Justice and Constitutional Development 2009 4 SA 222 (CC) para 166 (DPP v Minister of Justice).

64. As above.

65. Motsisi (n 62 above) (persons with intellectual disabilities); Sikhipha (n 61 above) (children).

66. CRPD, arts 5(1) & 13.

67. N Bala et al ‘A legal and psychological critique of the present approach to the assessment of the competence of child witnesses’ (2000) 38 Osgoode Hall Law Journal 409. A distinction between the ability to tell the truth and the ability to define the difference between truth and falsehood has been recognised in relation to child witnesses.

68. Canada Evidence Acts, 16(3).

69. J Benedet & I Grant ‘More than an empty gesture: Enabling women with mental disabilities to testify on promise to tell the truth’ (2013) 25 CJWL 35.

70. As above.

71. Benedet & Grant (n 69 above) 36.

72. R v DAI 2012 SCC 5, [2012] 1 SCR 149.

73. As above.

74. DAI (n 72 above) paras 43 & 59.

75. As above.

76. Benedet & Grant (n 69 above) 44.

77. As above.

78. DAI (n 72 above) para 36.

79. Benedet & Grant (n 69 above) 33.

80. MH Rioux & F Valentine ‘Does theory matter? Exploring the nexus between disability, human rights, and public policy’ in D Pothier &R Devlin (eds) Critical disability theory: Essays in philosophy, politics, policy and law (2006) 49.

81. L Hosking ‘Critical disability theory’ Paper delivered at the 4th Biennial Disability Studies Conference at Lancaster University (2008) unpublished 6.

82. Rioux & Velentine (n 80 above) 50.

83. Hosking (n 81 above) 6.

84. Rioux & Valentine (n 80 above) 50.

85. As above.

86. As above.

87. R Traustadottir ‘Disability studies, the social model and legal developments’ in OM Arnardottir &G Quinn (eds) The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives (2009) 116.

88. CRPD, Preamble, para e.

89. As above.

90. T Menaker & RJ Cramer ‘The victim as witness: Strategies for increasing credibility among rape victim-witnesses in court’ (2012) 20 Journal of Forensic Psychology Practice 424.

91. As above.

92. HH Koh & LO Gostin ‘Introduction: The human rights imperative’ in SS Herr et al (eds) The Human Rights of persons with intellectual disabilities: Different but equal (2003) 3.

93. Martha Minow Making all the difference: Inclusion and exclusion in American law (1990) 20.

94. Hosking (n 81 above) 11.

95. As above.

96. S Tremain ‘Foucault, governmentality, and Critical Disability Theory: An introduction’ in S Tremain (ed) Foucault and the government of disability (2005) 9-10.

97. As above.

98. As above.

99. As above.

100. Hosking (n 81 above) 7.

101. As above.

102. R Devlin & D Pothier ‘Introduction: Toward a critical theory of dis-citizenship’ in D Pothier &R Devlin (eds) Critical disability theory: Essays in philosophy, politics and law (2006) 12.

103. As above.

104. As above.

105. R Kayess & P French ‘Out of darkness into light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 8.

106. As above.

107. Universal Declaration of Human Rights, GA Res 217 (III), UNGAOR, 3d Sess, Supp No 13, (1948) art 1.

108. G Quinn & T Degener Human Rights and disability: The current use and future potential of United Nations Human Rights instruments in the context of disability (2002) 15.

109. Koh & Gostin (n 92 above).

110. As above.

111. M Gill ‘Rethinking sexual abuse: Questions of consent and intellectual disability’ (2010) 7 Sexuality Research & Social Policy 206.

112. ML Perlin ‘A change is gonna come: The implications of the United Nations Convention on the Rights of Persons with Disabilities for the domestic practice of constitutional mental disability law’ (2008-2009) 29 N III University Law Review 483-84.

113. Perlin (n 112 above) 20.

114. Quinn & Degener (n 108 above) 15.

115. As above.

116. As above.

117. As above.

118. As above.

119. Devlin & Pothier (n 102 above) 8.

120. Devlin & Pothier (n 102 above) 12.

121. As above.

122. As above.

123. CRPD, art 13.

124. M Cappelletti & B Garth ‘Access to justice: The newest wave in the worldwide movement to make rights effective’ (1978) 27 Buffalo Law Review 185.

125. CRPD, art 13.

126. See eg the International Covenant on Civil and Political Rights 19 December 1966, 999 UNTS 171, art 2(3)(a).

127. Cappelletti & Garth (n 124 above) 185.

128. As above.

129. F Mégret ‘The Disabilities Convention: Human rights of persons with disabilities or disability rights?’ (2008) 30 Humans Rights Quarterly 512.

130. CRPD, art 13(1).

131. As above.

132. Criminal Procedure and Evidence Act (n 12 above) sec 319B. In Zimbabwe, a vulnerable witness is any ‘person who is giving or will give evidence in proceedings [who] is likely- (a) to suffer emotional stress from giving evidence or (b) to be intimidated, whether by the accused or any other person or by the nature of the proceedings or by the place where they are conducted, so as not to be able to give evidence fully and truthfully’.

133. Of the court’s own free will.

134. Criminal Procedure and Evidence Act (n 12 above) sec 319B(b).

135. Criminal Procedure and Evidence Act (n 12 above) sec 319C(1)(a-f).

136. Criminal Procedure and Evidence Act (n 12 above) sec 158A(3)(d).

137. Criminal Procedure Act (n 13) sec 158(2)(a).

138. Criminal Procedure Act (n 13) sec 158(2)(b).

139. Criminal Procedure Act (n 13) sec 158(2)(c).

140. Criminal Procedure Act sec 158(2)(d).

141. Criminal Procedure Act sec 158(2)(e).

142. United Kingdom Disability Discrimination Act 1995 c50.

143. A Lawson Disability and equality law in Britain: The role of reasonable adjustment (2008) 63.

144. Lawson (n 143 above) 64.

145. Lawson (n 143 above) 31.

146. As above.

147. Report of the UN High Commissioner for Human Rights Thematic Study on the Issue of Violence Against Women and Girls and Disability UNGAOR, 20th Sess, Supp No 2 & 3, UN Doc A/HRC/20/5, (2012) para 41.

148. S Primor & N Lerner The right of persons with intellectual, psychosocial and communication disabilities to access to justice: Accommodations in the criminal process (2005) 7.

149. As above.

150. Lawson (n 143) 31.

151. Criminal Procedure Act (n 13 above) sec158(2)(e).

152. The term ‘reasonable accommodation’ was first introduced in disability law in the United States in the Rehabilitation Amendments of 1973 and the regulations which were issued under that statute, though these were delayed until 1977.

153. Lawson (n 143 above) 24.

154. G Bouchard & C Taylor Building the future: A time for reconciliation abridged report (2008) 23.

155. As above.

156. World Programme of Action Concerning Disabled Persons, General Assembly Resolution 37/52 (1982) para 25.

157. Hamilton v Jamaica Communication No 616/1995, Views adopted by the Committee on 28 July 1999 (CCPR/C/66/D/616/1995).

158. ICCPR, art 10.

159. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 & 14, 4 November 1950, ETS 5 art 3.

160. Price v UK App No 33394/96 (2001) 34 EHRR 1285.

161. CRPD, art 2.

162. Lawson (n 143 above) 296.

163. G Quinn ‘Personhood and legal capacity: Perspectives on the paradigm shift of article 12 CRPD’ (Paper delivered at Harvard Law School, 20 February 2010), (unpublished) 4.

164. A Dhanda (2006-2007) 34 Syracuse Journal on International Law & Commerce 438.

165. Leeds Legal Opinion on art 12 of the CRPD http://disability-studies.leeds.ac.uk/files/library/legal-opinion-LegalOpinion-Art12-FINAL.pdf (accessed 1 September 2015).

166. CRPD, art 12(1) (emphasis added).

167. As above.

168. CRPD, art 12(2) (emphasis added).

169. As above.

170. Convention on the Elimination of all Forms of Discrimination against Women, GA res 34/180,34 UNGAOR Supp (No 46) at 193, UN Doc A/34/46 (entered into force 3 September 1981).

171. A Nilsson ‘Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities’ Commissioner for Human Rights Issue Paper (2012) 12 7 www.commossioner.coe.int (accessed 1 September 2015).

172. As above.

173. R Dinerstein ‘Implementing legal capacity under article 12 of the UN Convention on the Rights of Persons with Disabilities: The difficult road from guardianship to supported decision-making’ (2012) 19 Human Rights Brief 9.

174. CRPD, art 12(3).

175. CRPD, Preamble, para j.

176. Nilsson (n 171 above) 19.

177. CRPD, art 12(4).

178. Nilsson (n 171 above) 12.

179. As above.

180. Dinerstein (n 173 above) 9.

181. As above.

182. Nilsson (n 171 above) 19.


  • Marina Mendez Erreguerena
  • LLM, Human Rights Law, Cardiff University
  • Researcher, Centre of Research and Teaching on Human Rights ‘Alicia Moreau’ – Law School, National University of Mar del Plata, Argentina.

  • M Mendez Erreguerena ‘Unpaid carers of persons with disabilities in Africa and Latin America: Gender, human rights and invisibility’ (2015) 3 African Disability Rights Yearbook 91-108
    http://dx.doi.org/10.17159/2413-7138/2015/v3n1a4
  • Download article in PDF

Summary

Care is a complex issue that may be analysed using different perspectives and theories. It is also a biological imperative for human beings. For many people with disabilities, assistance and support are prerequisites to perform daily tasks and participate in society. In most cases, family is the primary provider of care and support and, within families; care is a role that falls disproportionally on women.

The issue of unpaid carers (sometimes referred to as ‘caregivers’) may be analysed in terms of the gender equality impact that this role has as well as its social equality and human rights implications. Due to the fact that caring relationships involve carers as well as those they care for, public policies face the challenge of addressing the needs and claims of two groups which are different but related.

In developed countries such as the United States, Spain and Australia, governments have developed policies to address this issue. In contrast, Africa and Latin America show that it is still an invisible concern. Family caregivers provide care in conditions of fragility and lack of resources that allow situations where the rights of persons with disabilities are violated and rights of their family are ignored.

1 Introduction

‘Care’ is a multifaceted1 and complex concept as it can be used in various contexts, and its meaning and significance may differ through different societies, cultures, families and individuals.2 Shakespeare asserts that ‘giving and receiving care is a biological imperative for human beings’3 because at some point in the life cycle, almost all people may be involved in it. Caring can be expressed in different ways such as giving practical assistance, advice, emotional and social support. This paper is focused on informal carers (caregivers), people who provide unpaid assistance to members of their family, friends or neighbours who are elderly and/or have a physical, sensory or intellectual disability.

Caring is a role that falls disproportionately on women, it ‘is seen to be culturally appropriate to women’. Although caring is not an exclusively female activity ‒ across the world, women and girls commit substantially more time than men to provide informal care.4 It is this factor combined with a general lack of other support services provided by states that ‘encourages women to take on the role of carer’.5 As result, the issue of informal care involves notions about gender inequalities. At the same time, it is inextricably intertwined with other structures of inequality, especially race and social class. 6

In the domain of human rights, the UN Special Rapporteur on extreme poverty and human rights has highlighted the relational nature of care - in which ‘the rights of caregivers are symbiotically intertwined with the rights of care receivers’. It is a dynamic relationship where the well-being of the caregiver ‘has an impact on the quality of the care they are able to provide’.7 Therefore, if informal care is not adequately recognised, supported or valued by the state, the rights of those who rely on care provision for their health, life and well-being may also be violated. In such a ‘caring relationship’ the rights of both caregiver and the carer receiver are inextricably linked. This paper focuses on these complexities and at a macro level, it explores the historical difficulties in the relationship between the emerging disability rights movement and the carers’ movement.

1.1 The human rights context

Informal care has been positioned as a human rights issue because its heavy and unequally borne responsibilities create a barrier to gender equality and to women’s equal enjoyment of human rights. It also has significant impact on the health and well-being of the informal carers. As result, the rights and well-being of people they care for may be threatened. It would appear to follow that a failure by a state to adequately provide, fund, support and regulate care would contradict their human rights obligations, by creating and exacerbating inequalities and threatening rights enjoyment for those involved in the caring relationship.

The UN Special Rapporteur on extreme poverty has been emphatic on her arguments: States’ actions or inactions define who has access to quality care and who assumes the costs of its provision. Thus, ‘when the State fails to adequately regulate, fund or provide care, the burden shifts to families who have to make their own arrangements’, it may lead in an arrangement that threatens the rights of enjoyment for both informal carers and people with disabilities. Therefore ‘[s]tates must adopt all necessary policy measures in order to achieve the recognition, reduction and redistribution’ of informal care. Public policies should position care as a social and collective responsibility rather than a private and familiar issue, ‘and treat unpaid caregivers and those they care for as rights holders. A transformative approach is clearly required under human rights law’. As the causes and consequences of informal care inequalities are multi-layered, multiple and complementary,8 it is central to develop complex policy interventions that asserts the rights and need of both parts involved without benefiting one above the other.

Research on informal care in developed nations is well established and extensive. States have conducted surveys in order to gather reliable information about who carers are, where they live, how they live and how many there are. Using this information, states have applied comprehensive public policies to address the rights of informal carers of people with disabilities. Spain, Australia, UK, New Zealand and United States are examples of this. 9

However, the issue of informal care has received very little attention in Latin America and Africa where statistical information is scarce. Malherbe states that in Africa families have the duty to care for family members with disabilities, but ‘this preference does not translate into sufficient statutory assistance, or into significant practical assistance to caregivers’.10 The same situation occurs in Latin America where many countries have laws that oblige family members to provide assistance or help (also the economic obligation) for their relatives but make little or no provision for compensatory support for such carers.11 As Clements notes, in much the same way that the English Poor Law obligation to care for family members was exported to its colonies, the Spanish Civil Code obligation (the duty on family members to provide ‘alimentos’) was exported to much of South America.12

The social organisation of care in Latin America varies depending on different family dynamics, labour markets, economic structures and traditions. Nonetheless, current data show a number of common features that characterise the social organisation of care in the region, including the fact that care continues to be a function mainly of families, and women within families. It is therefore a matter that is considered to be mainly private. 13

The dearth of carer specific information; carers’ rights legislation and policies; and a carer specific research and literature in Africa and Latin America have the effect of making caregiving an invisible issue: one where carers are not seen as rights holders. Therefore, in these regions, informal carers face multiple obstacles: unemployment, weak health systems, inadequate social protection services and policies, and fragile economies. As result, informal carers and the people they care for frequently live in a situation of extreme vulnerability.

The first part of this paper addresses the concept of care and tackles the development of the carers’ rights movement and its theorists. Moreover, this section analyses the gendered nature of informal caregiving and deals with the conflicting relationship between the carers’ movement and the disability rights movement.

The second part of this paper goes deeper into the issue of informal caregivers of people with disabilities and the human rights approach. This section analyses examples of public policies that other states have implemented in order to protect the rights of both parts involved in the caring relationship.

The last two sections focus on the situation of informal caregivers of people with disabilities in Africa and Latin America. Due to the fact that these regions are vast, and bibliography about this subject is scarce, this paper compares the policies implemented in selected countries.

2 Care: Complexity, gender and debate

There are very many dimensions to the concept of ‘care’: public and private; practical and emotional; commodified and uncommodified - and so on. This paper considers the position of those people who provide unpaid care for family or friends: in academic literature such individuals are variously referred to as ‘informal carers’, ‘unpaid care workers’, ‘caregivers’ and ‘family carers’.

During the 1980s the rights of caregivers of people with disabilities attracted the attention of researchers and academics in Europe and North America. Feminist scholars in particular focused their analysis on making visible the nature and extent of this work carried out by women in the private domains of the family and home and the cultural and jurisprudential assumptions that this labour was somehow ‘natural’.14 As result, the issue of informal care was identified as a women’s issue because caring is a role that falls disproportionately on women. It has an important impact in terms of their equality of opportunities with men. Many time-use studies15 have demonstrated that women spend more hours than men in caring for members of the family. Discriminatory gender stereotypes, culture practices and the lack of public policies contribute to the perpetuation of this structural inequality. Thus, the carers’ rights movement that emerged in the eighties, demands that governments take direct action to challenge this discrimination by developing measures that recognise, reduce and redistribute informal care. Caring policies include health protection and services, provide information, and support carers to balance their work, life and caring roles.

The ‘World Report on Disability’ states that many persons with disabilities need assistance and support to achieve a good quality of life and to be able to participate in society; most assistance and support comes from family members. State supply of formal services is generally underdeveloped, not-for-profit organisations have limited coverage, and private markets rarely offer enough affordable support to meet the needs of people with disabilities.16 As a result, members of the families (generally women) have to assume the role of informal carers. This situation has led to a debate between the carers’ movement and the disability rights movement.

The aim of this paper is not to develop an explanation of this debate but to clarify aspects of how the differences between the two movements arose and the role governments have played in creating these tensions. First, any state policy designed to address the issue of informal care of people with disabilities should address the needs and preferences of both parts in the caring relationship. This paper argues that in order to protect the rights of informal carers and the people they care for, states have an obligation to develop comprehensive and inclusive carers’ strategies/legislation. As Rogero García explains, public policies should establish rights and duties around the care and also promote freedom of the people involved (carers and people with disabilities). A proper distribution of care responsibilities requires, firstly that a ‘voice’ is given to those who receive care and that their rights are respected, and secondly that the rights of those who provide the care (and the context in which that care is provided) are fully addressed. 17

Feminist researchers have led the debate and discussion about care and carers’ rights. Arguably, however, they have failed to include the experience of those ‘cared for’ and as a consequence limited the scope of analysis and as a consequence the potential for compensatory strategies. This paper seeks to argue that supporting informal carers does not necessarily result in less rights or protection for people with disabilities: that the relative impacts do not amount to a zero sum game. This claim is most obliviously demonstrated by the fact that the well-being of informal carers has a major impact on those who receive care. As Twigg and Atkin have asserted, caring takes place in a relationship in which both parts are important. Caring cannot be examined separately from the needs and wishes of those they care for. At the same time, it is not possible to focus only on the person with disabilities, ignoring the existence of the informal carer and excluding them from concern.18 Both, carers and service users, struggle with issues such as dependency versus independence, freedom versus obligation, and symbiosis versus oppositional interests. Consequently, the only way to deal with these struggles is by addressing the needs of both equality and avoiding the prevalence of one above the other. 19

On another hand, Shakespeare states that debate on care and support should recognise that people are different so they have different support needs, aspirations, and values. Consequently, they need different forms of care in order to support them in ways that enable them to flourish and achieve their projects; whatever form of care and support is adopted, it needs to be based on respect for both parties - those who deliver care and support and those who receive it. Because the majority of humanity receives and gives care at different points of life and in different relationships, it is wrong to think in terms of opposed interests and separate groups. 20

The rights of carers and the rights of persons with disabilities they care for are inextricably linked. For example, for people with psychosocial or intellectual disability, there may be circumstances where they need support from their carers to make decisions and exercise their rights. Article 12 of the Convention on the Rights of Persons with Disabilities provides that states parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. In terms of supported decision-making, family and other relatives (carers) may be central.21 A policy that only assesses the needs of one part of this relationship has the potential to leave the other in an inferior position - which in turn may negatively impact on the other party. A failure to fully address the needs of carers risks therefore undermining relationships, creating dependency and denying autonomy for both, carers and people with disabilities. 22

This analysis does not however deny the complexities and tensions that arise between those involved in this relationship. According to Shakespeare,

some voices in disability studies have failed to embrace the challenge of care, regarding it as an aspect of social oppression that can be eliminated, and replaced by the concept of independent living which can liberate all disabled people.23

This author agrees that care has often been the site of oppression and disempowerment since many caregivers (including families) do not recognise the autonomy, self-determination and even dignity of the people with disabilities they care for. As a result, states should develop systems of care and support that maximise independence and choice, and minimise abuse and paternalism. However, it is central to recognise that care and support relationships are complex, just as the people who receive care are diverse. Many people with disabilities have needs that will inevitably generate forms of ongoing dependency and have a strong preference for informal care. Across the range of options, the important values should be accessibility, affordability, variety, choice, quality, flexibility and control; and developing public policies with this aim is central. In other words, it is unrealistic to claim that informal caregivers respect the autonomy, self-determination and dignity of people with disabilities, if they provide care without any training and without any form of compensatory support.

Public policies should not, as a general rule, subordinate the needs and wishes of one category of persons to those of another. In relation to dependency work, achieving this balance may not be easy but that should be the aim. It is central to develop a shared agenda and to adopt an approach that takes into account the relationship and common interests of both parties.24 A good informal carer assessment is not about denying self-advocacy to people with disabilities because it should go along with an approach that enables those who receive care to speak up for themselves and be listened to. At the same time, the informal carer assessment may enable the carer to consider her or himself as a person with needs of her/his own. 25

In 2001 Fiona Williams summarised a number of the above propositions when she noted that ‘writers on the ethics of care, on independent living and disability, point to the need to link their strategies to a participatory democracy’26 of giving people voice and choice. Those involved in care practices may begin to voice their claims and dialogues between unpaid carers and people with disabilities are central. These practices recognise ‘different perspectives and identities, and aims towards a common vocabulary of values’ because ‘from each positioning the world is seen differently’. A comprehensive policy involves dialogue in which ‘differences are seen as important, but not in hierarchical terms; they should encompass rather than replace equality; there is a recognition of the differences in identity and values’.27

3 Informal carers, rights and public policies

The main aim of human rights is transforming power dynamics between individuals in society, in order to challenge oppression, subvert the subordination and marginalization of certain groups and individuals, and promote individual agency, autonomy and respect of the inherent dignity of every human being.

The unequal distribution of informal care is a human rights concern because it reflects and determines power relations between women and men; between families and relatives of people with disabilities and other families; and between those who can pay care services and those who cannot. States have a duty to act because theses inequalities are obstacles to full human rights enjoyment. It follows that when any state fails in its duty and its public policies are inadequate ‘either the cost of care is borne by the caregiver alone or the recipient of care suffers’.28 Addressing the issue of informal carers is central because ‘support systems and interventions can meet their needs, and local and national organisations can provide them with vital support in order to continue to provide care’29 for their children, husbands, fathers and mothers.

The Convention on the Rights of People with Disabilities sees support and assistance as a means to preserving dignity and enabling individual autonomy and social inclusion. Equal rights and participation are thus to be achieved, in part, through the provision of support services for people with disabilities but also their families.30 The World Report on Disability addresses the adverse consequences for informal caregivers when they performed this task without any support. Stress, disruptions to sleep and the emotional impact of care affect the caregiver’s personal health. Moreover, informal care may result in loss of economic opportunities, as caregivers either reduce their paid work or refrain from seeking it.

To address these issues, policy responses should be comprehensive. Policies to address these deficiencies should not be seen as competing with the demands of people with disabilities - either in the context of independent living or of ‘participation’. The needs and rights of the informal caregiver may be different from the needs and rights of the persons with disabilities so a balance must be found, so that each person has independence, dignity, and quality of life.31 ‘Across the range of options, the important values should be accessibility, affordability, variety, choice, quality, flexibility and control’.32

On another hand, the lack of policies to address the issue of informal care may lead to situations of discrimination. The landmark case Coleman v Attridge Law33 confirmed, for the first time, the existence of (a European) concept of transferred or ‘associative’ discrimination. It is important to highlight that this concept was applied in a case that involves an informal carer.Sharon Coleman worked as a legal secretary, and was the mother of child with disability. She alleged that, when she returned from maternity leave, her former employer refused to allow her to return to her existing job; she was treated less favourably than other employees in comparable positions because she was the primary carer of a child with a disability. Moreover she was not allowed the same flexibility regarding her working hours as parents of non-disabled children; she was described as ‘lazy’ when she requested time off to care for her child, whereas parents of non-disabled children were allowed time off. In addition, she claimed that abusive and insulting comments were made about both her and her child. No such comments were made when other employees had to ask for time off or a degree of flexibility in order to look after non-disabled children. Having occasionally arrived late at the office because of problems related to her son’s condition, she was told that she would be dismissed if she came to work late again. No such threat was made in the case of other employees with non-disabled children who were late for similar reasons.

In its judgment, the European Court of Justice held that she suffered discrimination by association: that the prohibition of direct discrimination is not limited only to people with disabilities.

Where an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination. 34

This case provides an example about one aspect of informal care: they may face discrimination in their workplaces because of their caring role.

In political terms, Fiona Williams suggests an alternative to address the issue of informal care. She argues that an ethic of care needs to be developed: one that ‘must drive our democratic practices deeper’. It has to involve dialogues between informal carers and people with disabilities. She suggests that the practices of transversal politics may be helpful because ‘it recognises different perspectives and identities, and aims towards a common vocabulary of values.’35 In public policies, the practice involves dialogue between informal carers and people with disabilities, in which differences are recognised and seen as important but not in hierarchical terms. 36

Kittay is seen as an early and highly influential voice in identifying the need of informal carers for the support of others to ensure that their own needs are met (as well as those of the person they care for). They, who are predominantly women, can experience inequalities, disadvantage, and they run the risk of poverty. Thus, Kittay argues that informal carers’ efforts should be reciprocated by society.37 In addition, applying a rights discourse, West addresses their disadvantaged position by proposing a more substantial demand. She states that informal carers should have the right to care and to be supported in this activity. This support may improve informal carers’ well-being and provide some security while caregiving.38 Furthermore, it may help to reduce women’s disproportionate discrimination in terms of economic activity and gendered role differentiation. 39

Given the challenges that informal care provision raises in terms of human rights (for informal carers and people with disabilities), some countries have made significant legal and regulatory changes in relation to care provision.

As a result, there are now laws and even constitutional norms that recognize care and the need to find a more equitable way of distributing responsibilities, both within the family and between public institutions.40

These provisions assume that caring for people with disabilities is an important contribution to their societies, help to reduce the dependence on long-term paid care systems and enable those living with health issues or disability to participate more fully in their communities.41 In addition, by valuing and supporting informal carers, these provisions contribute in the development of strong healthy families that are able to help their members (those who receive care) to reach their full potential as participating members of society. This includes considering the impact of their role on carers’ lives and the lives of those they support if carers’ well-being is compromised. Caring policies include health protection and services, provide information, and support carers to balance their work, life and caring roles.

Countries that have enacted laws and public strategies to protect carers, have accepted caring as a shared social responsibility. These are focused on improving health and well-being of carers, economic security, information and access, services for carers (for example, emotional support), education and training. The meeting of such needs extends beyond income maintenance benefits and social services provision to equal access to public space and transport, and to anti-discriminatory and anti-poverty policies. In addition, these kind of policies argue against inequalities in care giving and care receiving.

Williams argues that initiatives of this kind challenge the false dichotomy of carer and cared for, and asserts the fundamental importance of an inclusive citizenship where all those involved in the social processes of care have a voice, particularly those whose voice has historically been marginalised. Therefore, she states that care is not only personal; it is an issue of public and political concern whose social dynamics operate at local, national and transnational levels.42 The main objective is to support carers, from the communities in which they live, in the planning and provision of the services that they and the person they are caring for need, and to develop policies to help them to combine employment with caring.

However, in many countries, the situation is different because carers’ rights remain an invisible issue and public policies are inadequate or non-existent. Africa and Latin America are continental examples of this.

4 Informal carers in Africa

Research examining the needs and situation of informal carers of people with disabilities is not common in the African context. Thus, there is a need for more qualitative studies to provide rich insights into the realities of care. 43

In South Africa, the White Paper for Social Welfare exhibits a clear preference for family care of persons with disabilities. It recognises that: ‘the family is a significant support system in meeting the needs of people with disabilities. Appropriate support must be provided for families involved in care-giving’.44 The White Paper provides that

home care-givers will be given emotional support in caring for their family members as well as financial support; training in home nursing and how to access the services of organisations providing complementary services, such as psycho-social and spiritual counselling, transport to hospital and home visits. 45

Moreover, it specifies that women are the key providers of unacknowledged social care to people with disabilities and their needs should be addressed. Malherbe has referred to this policy preference for family care for persons with disabilities and highlighted the fact that its provisions do not translate into sufficient statutory assistance, or into significant practical assistance, to caregivers. 46

South African social assistance legislation provides for a grant payable to the family caregiver. For both grants, it is the fact that the person with disabilities receives home care that leads to the payment of the grant. On one hand, the care dependency grant is payable to the parent, foster parent or primary caregiver of a child with disabilities. The purpose of the care dependency grant is to assist the parent, foster parent or guardian to care for children with disabilities in their family home. Malherbe explains that the grant discontinues if the child receives 24-hour care in a state funded institution for longer than six months. Thus, it illustrates the link between family homecare of the child with disabilities and the payment of the care dependency grant.47 On another hand, the disability grant is a social grant intended to provide for the basic needs of people with disabilities (adults). In addition, the grant-in-aid is provided as an additional grant to adults who are already receiving the disability grant and it allows them to live at home instead of receiving institutional care. Currently, no grant is payable directly to caregivers while they are providing care for adult family members with disabilities.

As it has been explained in previous sections, support for informal carers goes beyond an economic provision. Other issues such as information and access, services for carers (for example, emotional support), education and training are central. Moreover, a social insurance system that excludes family caregivers or pays them minimum benefits only, cannot be regarded as a reasonable measure to provide access to social security as required by section 27 of the South African Constitution.48 Thus, states should step in to remove barriers to the realisation of their social security rights.

In Uganda, the National Policy on Disability states that

the family is the basic unit for providing care and support to people with disabilities (PWDs). PWDs should benefit from the family and community care and protection. It is therefore, the responsibility of the parents or caregivers to PWDs to provide food, clothing, housing, love, care, education, health and other basic services that promote and protect the rights of PWDs.

The policy unquestionably places specific duties on informal caregivers. It does so however in the context of acknowledging that caregivers may themselves be the recipients of services. It provides that ‘the objectives of this policy are ... (ii) to promote effective friendly service delivery to PWDs and their caregivers; (iii) to ensure that resources for initiatives that target PWDs and caregivers are mobilised and efficiently utilised'.49 Strengthening and empowerment of people with disabilities and their caregivers is one of the strategies mentioned by this policy. Moreover, it provides that support will include provision of basic, physical and psychosocial needs of PWDs AND their caregivers.

Objectively, however, the National Policy only addresses the claims of informal carers as one to be addressed by ‘soft’ rights without providing any specific entitlement or clarity over provision about which services they may receive and what kind of support that should be available. Hartley et al in their analysis of the situation of informal carers of disabled children in Uganda found that informal carers (parents) who participated in their study were coping with their children’s disabilities without interaction with national community-based rehabilitation (CBR) programmes. ‘Several informants expressed the view that more information would assist them in caring for their children and reducing their own stress levels.’50 The lack of such support had a negative impact on both the informal caregivers and the carers of children with disabilities. For carers, because they did not receive any support in their task and for children with disabilities, because they did not receive services of quality. Hartley mentions that carers of children with hearing or speech deficits faced particular challenges of the breakdown in communication because of inadequate knowledge in the use of signing and that this was a clear example of the importance of training family caregivers.

Studies about informal caregivers in Kenya indicate that

‘because of a lot of care-giving strain and lack of rehabilitation services in the community, carers had to learn new skills to cope with child’s disability. They improvise materials for exercises at their homes in order to maintain continuity of therapy’. 51

In addition, information given was scanty or sometimes non-existent and external support was from almost invariably from non-governmental organisations or charitable organisations. Finally, family caregivers identified poverty as a central impediment to the caring process.

5 Informal care in Latin America

In Latin America, despite the progress made on gender equality policies, economic, social and political institutions still operate under the assumption of a sexual division of labour that leads women as primary informal caregivers of people with disabilities. Moreover, there is an absence of policies focused on supporting informal caregivers.

In Colombia, researchers have been addressing this issue and building awareness and there appears to be a general consensus that there is a lack of services to help informal carers on their tasks, and information about the available facilities. This situation may change if the Project of Law 33 of 2009 finally becomes law. This Project recognises family caregivers and establishes their rights; it provides that they will have access to instrumental, emotional and social support. Moreover, caregivers should receive training about the disease or condition of the person in their care, as well as techniques for home care, first aid and medication management. They will have access to health protection and services, and social security. However, currently, this Project has not been enacted as a law. A study conducted to meet the needs of informal carers of people with disabilities revealed that even though the participants considered that there had been some progress in developing public policies related to the needs of people with disabilities, they did not consider that any progress had been made in relation to the needs of informal carers.52 The study highlighted the severe need for the development of integrated programmes focused on both the welfare of people with disabilities as well as their informal carers.

Argentina and Chile (like South Africa) provide pensions for parents with a son or daughter with a disability and for married couples when one partner has a disability. However, the laws and programmes of these two nations on disability make no provision for the support of caregivers. In most cases, NGO’s provide psychological support, information and even training for informal caregivers.

In the case of Chile, the programme ‘Chile Crece Contigo’

is an integrated system of social interventions and benefits that aim to provide comprehensive support for children and their families, from the stage of gestation until they enter the school system at four years of age, by providing the tools needed for them to develop their potential to the maximum. Modular implementation of the social-protection system should activate an increasingly wide-ranging welfare system that would include all citizens. 53

However, this programme is only focused on childhood so it may produce a positive impact on family caregivers of children with disabilities.

Uruguay is in the process of developing a National System of Care (NSC). The programme results from a deep study (in which it is asserted that civil society was central and all the relevant actors involved had a voice) about the situation of caring in the country and it seeks to address the gender nature of care providing. The NSC is focused on four population groups: childhood, people with disabilities, older people and carers (formal and informal). It provides support and counselling for family caregivers, special permissions at work, training and access to formal care. The NSC is currently in its first phase of implementation and testing.54 The first action has been to allow people with severe disabilities to choose and hire personal assistants (who cannot be members of their family). It is too soon to make a judgment about the success of this new policy but it definitely implies an important step forward.

In 2010 the strategy of the Costa Rican government (2010-2014) sought to strengthen care options within its social policy, by creating a network of care and development services for children and older adults, and for workers of both sexes and their families. This policy recognised the urgent need to provide care for the most vulnerable sectors and to promote the exercise of a rights-based citizenship. The National Care Network is an institutional network of care services for children and older adults; itis based on an expansion of existing services and also promotes new services and care modalities.55 However, this programme does not address the issue of people with disabilities and their informal caregivers: the specific needs of this population group have not been included.

Finally, in Ecuador, article 47(9) of its National Constitution recognises that family of people with disabilities have the right to psychological assistance and to receive support in their productive projects. Moreover, article 49 states that family caregivers will be covered by social security and will receive training. Family caregivers receive a grant and the National Plan called Plan Nacional para el BuenVivir (PNBV) provides to support them in their caring role: psychological assistance, health services and training. This Plan is being implemented gradually and its goals must be met by 2017.

6 Conclusion

This paper has shown that discussions about caring engage multiple dimensions - principally human rights, social protection, gender and socio-economic inequalities. It has argued that in consequence social protection measures should address the rights of caregivers as a core concern and through normative principles. Informal caregivers require consideration as the ‘subjects’ of policies on an equal footing to those they care for and that by acknowledging these factors and by improving their access to social welfare support services, employment support and training - will improve not only the well-being caregivers but also that of the people for whom they care.

According to the CRPD and the social model, disability results from the interaction between persons who have long-term physical, mental, intellectual or sensory impairments and an environment filled with physical, attitudinal, communication and social barriers that hinders their full and effective participation in society on an equal basis with others. Thus, disability is socially constructed by our societies. These are the same societies in which informal care is seen as an exclusively female activity and a private issue inside families. At the same time, the CRPD and the social model provide different principles such as: respect for dignity; individual autonomy; independence; non-discrimination; full and effective participation and inclusion in society; between others. These principles are central in caring relationships however, informal carers need to be trained and supported in order to fulfil with these principles.

Although legislation in Africa and Latin America reflects the view that families have the primary duty to care for family members with disabilities, there is a growing awareness that states should provide protection to these families and support in their care role. Firstly, because care is a gendered activity since women are far more likely than men to be engaged in providing care within home, and to provide care for longer periods of time. Therefore, a neglect of this crucial question creates multiple inequalities that states have the obligation to address. Secondly, because if informal caregivers do not receive support their difficulties may be articulated in the language of ‘associative’ or indirect discrimination. Thirdly, because the provision of rights and services for caregivers has a positive impact in those they care for.

This paper asserts that in Africa and Latin America, in developing regions, there is a shortage of studies about informal care in terms of national statistics and needs assessment. The dearth of such materials has been an obstacle for this paper and it is evidence of how marginalised this topic is: evidence of the relative invisibility of family caregivers and of how their lives are characterised by conditions of fragility and the lack of resources. In Latin America it is possible to identify a step forward to address these issues. However, the progress made in Chile and Uruguay only impact in a small part of the regional population since the position in the more populated countries (Colombia, Argentina or Brazil) is significantly less. It follows from this analysis that in Africa and Latin America ‘one of the most neglected areas of disability law is the protection of family members providing care to people with disabilities’.56

Thinking about reciprocity and yet taking dependency seriously means acknowledging the importance of reciprocating the efforts of those who do the labour of caring. Thus, another (the state) must be available to support and help informal carers. Kittay has chosen to name this notion of reciprocity as ‘doulia’ which is a term she has adapted from the postpartum caretaker, the ‘doula’, who assists the mother who has just given birth, not by caring for the infant but by caring for the mother so that the mother can herself care for the infant. From this insight she argues that we have all benefited from the care of another, who has seen us as worthy of an investment of care and attention merely to survive, much less thrive, as we grow into adults. If each is worthy of care, then caregivers, too, deserve care when they are in need.

Even as I care for another, I, too, am worthy of care. This is a notion of fairness and reciprocity that involves at least a third ... This conception provides a theoretical framework that needs specification through explicit programs and policies. It calls for a collective, social responsibility for care, but one that doesn’t dilute relationships 57

between the person who need care and the caregiver. Society has a collective responsibility to support caregivers that must accompany calls for personal responsibility and address gender inequality.

 


1. J Swainet Controversial issues in a disabling society (2003) 141.

2. JD Joubert ‘A profile of informal carers in South Africa’ unpublished MA dissertation, University of Pretoria, 2005 1 http://hdl.handle.net/2263/30044 (accessed 10 March 2015).

3. T Shakespeare Disability rights and wrongs (2006) 135.

4. See D Budlender Time use studies and unpaid care work (2010); United Nations The world's women 2010: Trends and statistics (2010); World Health Organization World report on disability(2011); V Esquivel The care economy in Latin America: Putting care at the centre of the agenda (2011).

5. E Begley & S Cahill ‘Why women?’ (2003) 92 An Irish Quarterly Review 163.

6. S Razavi The political and social economy of care in a development context: Conceptual issues, research questions and policy options (2007) iii.

7. M Sepúlveda Carmona ‘Report of the Special Rapporteur on extreme poverty and human rights’ A/68/293, 9 August 2013.

8. Sepúlveda Carmona (n 7 above) 69-71.

9. See S Yeandle et al ‘Voice and choice for users and carers? Developments in patterns of care for older people in Australia, England and Finland’ (2012) 22 Journal of European Social Policy 432; H Arksey & M Morée ‘Supporting working carers: Do policies in England and the Netherlands reflect “doulia rights”?’ (2008) Health and Social Care in the Community 16.

10. K Malherbe ‘The social security rights of caregivers of persons with disabilities’ in I Grobbelaar-du Plessis & T van Reenen (eds) Aspects of disability law in Africa (2011) 183.

11. L Clements ‘Does your carer take sugar? Carers and human rights: The parallel struggles of disabled people and carers for equal treatment’ (2013) 19 Washington and Lee Journal of Civil Rights and Social Justice 397.

12. As above.

13. K Batthyány Dighiero Policies and care provision in Latin America: A view of regional experiences (2015) 16.

14. M Fine & C Glendinning ‘Dependence, independence or inter-dependence? Revisiting the concepts of care and dependency’ (2005) 25 Ageing and Society 603.

15. See R Antonopoulos The unpaid care work ‒ Paid work connection (2009); United Nations(n 4 above).

16. WHO World report on disability (2011) 137 http://www.who.int/disabilities/world_report/2011/report.pdf (accessed 19 March 2015).

17. J Rogero García Los tiempos del cuidado: El impacto de la dependencia de los mayores en la vida cotidiana de sus cuidadores [The time of caring: The impact of adults’ dependency on carers’ daily life] (2010) 330-331.

18. J Twigg & K Atkin Carers perceived: Policy and practice in informal care (1994) 6.

19. Fine & Glendinning (n 14 above) 617.

20. Shakespeare (n 3 above) 151.

21. Usually people involved in supported decision-making systems want their families to participate in it. See ‘Supporting decision making: A guide to supporting people with a disability to make their own decisions’ http://www.dhs.vic.gov.au/__data/assets/pdf_file/0011/690680/dsd_cis_supporting_decision_making_0212.pdf (accessed 15 September 2015).

22. J Morris Independent lives: Community care and disabled people (1993) 156.

23. Shakespeare (n 3 above) 135.

24. V Williams & C Robinson ‘More than one wavelength: Identifying, understanding and resolving conflicts of interest between people with intellectual disabilities and their family carers’ (2001) 14 Journal of Applied Research in Intellectual Disabilities 31.

25. Williams & Robinson (n 24 above) 45.

26. F Williams ‘In and beyond New Labour: Towards a new political ethics of care’ (2001) 21 Critical Social Policy 483.

27. As above.

28. A McNally & H Mannan ‘Perception of caring for children with disabilities: Experiences from Moshi, Tanzania’ (2013) 2 African Journal of Disability 1.

29. As above.

30. WHO (n 16 above) 138.

31. As above 142.

32. Shakespeare (n 3 above) 146.

33. Coleman v Attridge Law (2008) 722 IRLR para 26.

34. Coleman (n 33 above) para 56.

35. F Williams ‘In and beyond New Labour: Towards a new political ethics of care’ (2001) 21 Critical Social Policy 483.

36. N Yuval-Davis ‘What is transversal politics?’(1999) 12 Soundings 94 94-95.

37. EF Kittay ‘A feminist public ethic of care meets the new communitarian family policy’ (2001) 111 Ethics 523.

38. R West ‘A right to care’ (2004) April/May issue Boston Review http://new. bostonreview.net/BR29.2/west.html (accessed 15 July 2015).

39. H Arksey& M Morée ‘Supporting working carers: Do policies in England and The Netherlands reflect doulia rights?’ (2008) 16 Health and Social Care in the Community 651.

40. Batthyány Dighiero (n 13 above) 13-14.

41. Ministry of Social Development ‘The New Zealand carers’ Strategy Action Plan for 2014 to 2018’ http://www.msd.govt.nz/about-msd-and-our-work/work-programmes/policy-development/carers-strategy/ (accessed 15 September 2015).

42. Williams (n 26 above) 487.

43. McNally & Mannan (n 28 above) 1.

44. White Paper for Social Welfare (1997) para 1 http://www.gov.za/sites/www.gov.za/files/White_ Paper_ on_Social_Welfare_0.pdf.(accessed 3 November 2014).

45. White Paper for Social Welfare (n 44 above) para 88.

46. Malherbe (n 10 above) 183.

47. Malherbe (n 10 above) 187.

48. Malherbe (n 10 above) 195.

49. Ministry of Gender, Labour and Social development ‘National Policy on Disability in Uganda’ January 2006.

50. S Hartley et al ‘How do carers of disabled children cope? The Ugandan perspective’ (2004) 31 Child: Care, Health & Development 174.

51. JK Gona et al ‘Caring for children with disabilities in Kilifi, Kenya: What is the carer’s experience?’ (2011) 37 Child: Care, Health & Development 180.

52. MT Buitrago-Echeverri et al ‘Necesidades generales de los cuidadores de las personas en situación de discapacidad’ [Overall Requirements in Caregivers of People Experiencing Disability] 12 Investigación en Enfermería: Imagen y Desarrollo 60.

53. Batthyány Dighiero (n 13 above) 27.

54. R Aguirre & F Ferrari ‘La construcción del sistema de cuidados en el Uruguay: En busca de consensos para una protección social más igualitaria’ [Building a system of care in Uruguay: Insearch of consensus for a more egalitarian social protection] (2014) http://repositorio.cepal.org/bitstream/handle/11362/36721/S2014269_es.pdf?seque nce=1 (accessed 20 March 2015).

55. Batthyány Dighiero (n 13 above)32.

56. Malherbe (n 10 above) 181

57. E Feder Kittay ‘A feminist public ethic of care meets the New Communitarian Family Policy’ (2001) 111 Ethics 532.



  • Shale ‘Sexual and reproductive health rights of women with disabilities: Implementing international human rights standards in Lesotho’ (2015) 3 African Disability Rights Yearbook 31-62
    http://dx.doi.org/10.17159/2413-7138/2015/v3n1a2
  • Download article in PDF

Summary

Lesotho is party to a number of international human rights instruments including those which provide for equality and non-discrimination of women as well as those that guarantee the rights of persons with disabilities. This article discusses how Lesotho may fulfil its international human rights obligations to realise sexual and reproductive rights of women with disabilities. It explores the international legal framework on sexual and reproductive rights; in particular the standards and obligations contained in the UN Convention on the Rights of Persons with Disabilities (CRPD). It assesses the extent to which the legal and policy frameworks in Lesotho adhere to international standards and argues that alignment of the national legal framework with international standards is the starting point towards fulfilment of the state’s obligation to ensure that women with disabilities enjoy sexual and reproductive rights.

1 Introduction

The World Programme of Action of 1982 recognises women and girls with disabilities as a marginalised group.1 History reflects that women all over the world have for a long time been discriminated against simply because of being women and that such discrimination continues to exist.2

Similarly, persons with disabilities have suffered from discrimination and marginalisation based on their disabilities. This resulted in women with disabilities suffering multiple discrimination based on their sex as women and secondly on account of their status as persons with disabilities.3 This notwithstanding, most national laws and policies, to date fail to address the injustices suffered by women with disabilities in their entirety. Laws and policies that address gender fail to address prejudices suffered by women and girls with disabilities, and those that address disability have forgotten gender.4 As a result, women with disabilities are less likely to exercise or even access education and information about sexual and reproductive rights.5 Furthermore, women with disabilities who have children sometimes face rejection and scorn by both members of their families and the communities in which they live.6

Developments at the international level such as participation of women with disabilities in the International Year of Disabled Persons in 1981, the UN Decade of Disabled Persons 1983-1992, and in the World Conferences on Women culminated in the adoption of instruments such as World Programme of Action 1982,7 Standard Rules on the Equalization of Opportunities for Persons with Disabilities 1993.8 The United Nations also adopted the Convention on Elimination of all Forms of Discrimination against Women (CEDAW) 19799 and Convention on the Rights of Persons with Disabilities (CRPD) 2006.10 These instruments have led to a confirmation of women with disabilities as rights-bearers and important members of society.11 However, of the international instruments adopted, the CRPD is the only one which has a legally binding provision that outlaws discrimination on the basis of both gender and disability.12

Lesotho has joined the move of viewing women with disabilities as rights-bearers by ratifying a number of international human rights instruments including CEDAW and the CRPD.13 Amongst rights recognised in these instruments are sexual and reproductive rights of all, including women with disabilities.14 Sexual and reproductive rights are broadly defined as basic human rights to which every human being is entitled and include having a safe and satisfying sexual life, and being able to decide over one’s body without coercion, violence or discrimination. World Health Organisation (WHO) has adopted several definitions of sexual health but the most current defines 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.15

In its Draft General Comment on women with disabilities under article 6, the Committee on the Rights of Persons with Disabilities (CRPD Committee) which is a body established under the CRPD to oversee implementation of its provisions, has identified violation of sexual and reproductive rights of women and girls with disabilities as one of the three main areas of concern, which states parties have to focus on when implementing the CRPD at the national level.16 There has not been extensive research on sexual and reproductive rights of women and girls with disabilities in Lesotho. Available literature which is very limited, can be divided into two: being studies that focus on sexual and reproductive rights of women in the context of gender based violence and HIV on the one hand and studies that focus on persons with disabilities in general on the other. Lesotho National Federation of the Disabled (LNFOD),17 together with other research partners has undertaken various research projects on persons with disabilities generally but none on sexual and reproductive rights of women with disabilities. Relevant to this article are a study on the living conditions of persons with disabilities,18 baseline study on disability mainstreaming19 and the situational assessment study on HIV/Aids and people with disabilities.

The objective of this article is to consolidate findings in previous research done. It uses data from other similarly placed countries to fill the gap on implementation of Lesotho’s obligations towards sexual and reproductive rights of women with disabilities. In this regard, the article uses the UN Economic and Social Council definition of implementation which is:

[M]oving from a legal commitment, that is, acceptance of an international human rights obligation by ratification of, or accession to, a treaty, to realization by the adoption of appropriate measures and ultimately the enjoyment by all of the rights enshrined under the related obligation.20

To achieve the objective of filling the gap on implementation of Lesotho’s obligations towards sexual and reproductive rights of women with disabilities, the article reviews the national legal and policy frameworks of Lesotho and the extent to which they are compliant with the provisions of CRPD relating to sexual and reproductive rights of women with disabilities. It is divided into three sections. Section one gives background information on Lesotho and the status of women with disabilities in Lesotho. Section two discusses sexual and reproductive rights of women with disabilities as contained in various international human rights instruments and makes an assessment of the legal and policy frameworks of Lesotho against the standards contained in the international human rights instruments. Section three concludes the article by summarising states’ obligations towards sexual and reproductive rights of women with disabilities as contained in the CRPD and makes recommendations on how to overcome challenges which inhibit their full implementation in Lesotho.

1.1 About Lesotho

Lesotho is a small mountainous country located in Southern Africa totally surrounded by the Republic of South Africa. Being one of the least developed economies in the Southern African Development Community (SADC) region, its economy is dependent on sale of water, wool, mohair and most recently diamonds.21 According to the 2006 Population and Housing Census, the population of Lesotho was about 1 880 661 while the most recent estimates calculate the figure to be slightly over two million.22 As at 2012, Lesotho had a Human Development Index (HDI) value of 0.461 and was ranked 158th out of 187 countries on the HDI.23 According to the 2006 Population and Housing Census, 51,4 per cent of the total population is female.24 Seventy-seven per cent of the total population resides in rural areas while 23 per cent resides in urban areas.25 The unemployment rate in Lesotho is very high as the Integrated Labour Force Survey conducted by the Bureau of Statistics (BOS) in 2008 indicated that 22,7 per cent of the economically active population is unemployed, out of which 14,6 per cent are females.26 Although these are not the most recent statistics, what they indicate however is that women constitute the highest number of the poor and unemployed in Lesotho, a factor which affects their ability to exercise most of the basic human rights.

Studies to determine the population of persons with disabilities in Lesotho were conducted for the first time after the turn of the Millennium.27 According to studies undertaken by the Ministry of Education in 2002 and the then Ministry of Health and Social Welfare in 2008, between 4,2 and 5,2 per cent of the population has one form of disability or another.28 At the time of the 2006 Population and Housing Census, the figure was 3,7 per cent, 2,1 per cent of which were males, while 1,6 per cent constituted females.29

1.2 Women with disabilities and the barriers they face in Lesotho

Women with disabilities constitute about 1,6 per cent of the population of Lesotho (about 32 000 people),30 yet despite these significant figures, their rights are often overlooked, neglected and violated. In Lesotho and many other countries, they face barriers to information and services required for fulfilment of sexual and reproductive needs.31 It is important to note that challenges which they face in accessing sexual and reproductive health rights are not raised by the disabilities themselves but are precipitated by historic as well as current barriers imposed by the environment in which they live.32 Whereas all persons with disabilities in Lesotho face challenges in their fight for equality, the plight of women with disabilities is made worse by the fact that they face the double disadvantage of disability and womanhood. They suffer the scourge of discrimination as women, and isolation and exclusion within their families, in public services and within the society because of their disabilities.33 As a result, most women with disabilities in Lesotho live lives characterised by poverty, illiteracy and joblessness.

According to a 2013 baseline study on disability, the barriers which inhibit persons with disabilities from exercising their rights, including sexual and reproductive rights can be categorised into physical and institutional, communicational as well as attitudinal barriers.34 Physical barriers are caused by the infrastructure such as inaccessible healthcare buildings, lack of disability - friendly transportation facilities as well as absence and or inaccessibility of roads to some healthcare centres.35 Institutional barriers on the other hand include laws and policies that do not accommodate the needs of women with disabilities,36 as well as absence of laws or non-implementation of laws that regulate and guard against practices such as forced or coerced sterilisation,37 forced abortion and forced marriages. Persons with disabilities are at higher risk of HIV and other sexually transmitted infections (STIs) yet they are often left out in prevention and treatment programmes.

According to the situational assessment study, as at 2011, about 27,5 per cent of persons with disabilities had not heard about HIV/Aids and its modes of transmission.38 This is attributed to communicational barriers in as much as most information materials on sexual and reproductive health including HIV are not accessible to persons with hearing and visual impairments.39 Non-recognition of sign-language as an official language and failure to provide such in essential services such as healthcare institutions and police stations also negatively affects the ability of women with hearing impairment to access information that is vital to their sexual and reproductive rights including obtaining relevant information or reporting sexual offences in privacy.40

Attitudinal barriers imposed by the non-disabled members of society are often influenced by stereotypical beliefs about women and persons with disabilities as well as sentiments. As a result of these beliefs and sentiments, women with disabilities are dehumanised, called mocking names or viewed as objects of charity.41 Amongst the barriers associated with attitudes, are that women with disabilities are denied the right to take part in making important decisions about their lives including establishment of sexual relationships, deciding who to marry and found a family with, whether or not to have children and the number and spacing of children if they decide to have them.42

Research on forced sterilisation of women living with HIV has unearthed a practice of forced, coerced and uniformed consent to sterilisation of women living with HIV in Lesotho.43 In some of the cases parents, relatives and caregivers impose their own decisions relating to sterilisation of women whom they view as vulnerable or as being burdens to the families. Although this study did not focus on women with disabilities, the practice of forced or coerced sterilisation has implications on sexual and reproductive rights of women with disabilities whether living with or without HIV.

Attitudinal barriers also result in women with disabilities being subjected to physical, emotional and sexual abuse as well as other forms of gender based violence which also increases the risk of HIV and other STIs.44 The belief that persons with disabilities are asexual is entrenched in most Basotho including healthcare professionals which affects access of persons with disabilities to information relating to sexual health, family planning, treatment of STIs and access to HIV/AIDS counselling and testing services.45 Because of these beliefs, where a woman with a disability has fallen pregnant and attempts to access prenatal services she is not given services of the same quality as other non-disabled women.

The effects of these barriers include overlooking, denying or violating sexual and reproductive rights which result in high maternal and infant mortality ratios which according to United Nations Children’s Fund (UNICEF) remain unacceptably high in sub-Saharan Africa.46 As at 2013, Lesotho had very high maternal mortality ratio of 490 deaths out of every 100 000 live births ranking at an almost similar level with Malawi which has the ratio of 510 and Zimbabwe which is 470 while other countries in the region had lower ratio such as Swaziland at 310, Botswana 170, South Africa 140 and Namibia 130.47 In Lesotho, the bulk of these deaths occur in rural areas where women have limited access to quality sexual and reproductive health services.48

The Living Conditions study also found that incidents of infant mortality amongst women with disabilities aged 15 years and above, at the time of research were 53 per cent higher compared to women without disability of the same age.49 Although due to limited information the Living Conditions study could not explain the difference of infant mortality between women with disabilities and those without disabilities, one can attribute this difference to the fact that the bulk of deaths occur in rural areas where there are limited resources and that a large number of persons with disabilities live in the rural areas.50 Therefore women with disabilities who reside in rural areas are at a higher risk of maternal and infant mortality because of lack of healthcare facilities that accommodate their needs.

The foregoing discussion has illustrated a dire status of sexual and reproductive health rights of women with disabilities in Lesotho. Based on this, below is a discussion of how things ought to be in terms of international human rights standards on sexual and reproductive rights of women in general and women with disabilities in particular. These standards are used in the article as a yardstick against which Lesotho’s laws and policies are measured.

2 Using international human rights standards on sexual and reproductive rights of women with disabilities to assess national laws and policies

By definition, sexual and reproductive health rights carry with them a number of freedoms including:

  • Equality and non-discrimination;
  • Right to marry and found a family;
  • Right to reproductive healthcare;
  • Right to give informed consent to all medical procedures; and
  • Freedom from sexual abuse and exploitation.
2.1 Equality and non-discrimination
2.1.1 International standards on equality and non-discrimination

Equality is a basic human rights principle on the basis of which freedom from discrimination is guaranteed as the most fundamental human right that lays a foundation for enjoyment of all other human rights,51 hence this article dwells more on discussion of equality and non-discrimination than other rights, as it forms a foundation for implementation of the other rights and freedoms that relate to sexual and reproductive rights. Principles of equality and non-discrimination are enshrined in both international human rights instruments and in customary international law. The right to freedom from discrimination is provided for in virtually all human rights instruments as a guiding principle for implementation of all other human rights.52 Under customary international law, the obligation not to discriminate has attained the status of a peremptory norm from which no derogation is allowed.53 State’s acceptance of equality as a grund norm in relation to women with disabilities is reflected in several binding and non-binding instruments such as the Declaration on the Rights of Persons with Disabilities,54 The Standard Rules on Equalisation of Opportunities for Persons with Disabilities (Standard Rules),55 and Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (MI Principles).56 With specific reference to women and girls with disabilities, the Beijing Declaration provides that:

[States] are determined to intensify efforts to ensure equal enjoyment of all human rights and fundamental freedoms for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as ... disability,57

... while the Beijing Platform for Action urges states to:

strengthen and encourage implementation of the recommendations contained in the standard rules on equalisation of opportunities for persons with disabilities, paying special attention to ensure non-discrimination and equal enjoyment of all human rights and fundamental freedoms by women and girls with disabilities including their access to information and services in the field of violence against women ...58

CRPD, which is the first and by far the only binding international instrument that focuses entirely on protection of the rights of persons with disabilities is premised on the principles of equality and non-discrimination. It recognises that persons with disabilities face difficult conditions because of being subjected to multiple and aggravated forms of discrimination on the basis of ‘race, colour, sex, language, religion, political or other opinion ...’59 It emphasises the need for gender mainstreaming60 and articulates its purposes as ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.61 It also stipulates that equality between women and men shall be considered as one of the core principles of the Convention,62 and demands that state parties combat sex-based stereotypes, prejudices and harmful practises related to persons with disabilities.63

Article 6 of CRPD contains state parties’ obligation to ensure gender equality for women and girls with disabilities. In its Draft General Comment on article 6, the CRPD Committee, notes that women and girls with disabilities are often confronted with intersectional discrimination. That is, several forms of discrimination based on various layers of identity which may intersect and produce new forms of discrimination which are unique and cannot be correctly understood by describing them as double or triple discrimination.64 This multiple and intersectional discrimination may be direct or indirect discrimination, in the form of denial of reasonable accommodation or structural or systemic discrimination.65 That is, a woman or girl with disability may be subjected to intersectional discrimination in a situation where some of her rights such as the right to non-discrimination, freedom from torture and ill-treatment, protection of personal integrity, right to legal capacity, right to family, right to health and others are violated as a result of the intersection of more than one of her identities being her sex, age, disability, social class, the perception that she is innocent, weak, passive, unable or unlikely to speak out, or unlikely to be believed by others to be the object of a sexual assault.66

The challenge that faces women and girls with disabilities is that most international and national legal frameworks focus on single dimension discrimination on the basis of which courts provide remedies that do not take into account the magnitude of the discrimination suffered.67 Hence article 6 read with other provisions of CRPD requires states parties to adopt a twin-track approach: gender mainstreaming in disability laws and policies as well as disability mainstreaming in gender laws and policies.68

When interpreting the right to health as contained in article 12 of CEDAW, the CEDAW Committee, which is a committee established under CEDAW to oversee its implementation emphasised that ‘special attention should be given to the health needs and rights of women belonging to disadvantaged and vulnerable groups such as ... women with physical or mental disabilities’.69 The need for ‘special attention’ to be given to women with disabilities is also reiterated in the 1993 Vienna Declaration and Program of Action which asserts that ‘special attention’ must be given in order to eliminate discrimination and to ensure equal enjoyment of all human rights and fundamental freedoms by persons with disabilities.70 The CRPD refers to this as the principle of reasonable accommodation.71 It defines ‘reasonable accommodation’ and the extent to which it has to be provided as:

necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms ...72

In setting forth the duty for reasonable accommodation in the area of sexual and reproductive rights, article 9 of CRPD mandates state parties to ensure to all persons with disabilities, access on an equal basis with others, to the physical environment, transportation, information and communication, including information and communications technology and systems as well as other facilities and services that are open or provided to the public. States’ obligations contained in this article are further elaborated by the CRPD Committee General Comment No 273 wherein it stated that accessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society. That is, Lesotho as a state party, has a duty to ensure that clinics, hospitals and other healthcare facilities are designed or redesigned in a manner that make them easily accessible to women who have any form of disabilities and failure to do so amounts to discrimination on the basis of disability. Appropriate measures in this regard include ensuring that buildings have ramps for independent access by a woman on a wheelchair and that there are no obstacles that inhibit access by a woman who has visual impairment and uses a cane. Because of the mountainous terrain in Lesotho that makes most places inaccessible on foot, it is also essential to ensure that the budget for the Ministry of Health includes enough emergency vehicles to transport expectant mothers to health centres at the time of delivery and that the said vehicles accommodate women with any form of disability.

The same obligation is imposed in relation to offering reproductive health information in a language and or manner understood by all women. For instance, offering of printed information by Braille and oral information by Sign Language for the benefit of women with vision and hearing impairments respectively or allowing women with visual impairments to handle and feel products essential for sexual and reproductive health such as condoms.74

2.1.2 National standards on equality and non-discrimination

Currently there is no disability specific law in Lesotho. However, efforts for its enactment are in the pipeline as there is a Disability Equity Bill. The purpose of the Disability Equity Bill is stipulated as to establish a Disability Advisory Council (DAC) and to provide for equalisation of opportunities for and recognition of rights of persons with disabilities.75 Implementation of the CRPD is amongst the functions of the DAC.76 Enactment of this Bill into a law would therefore be one of the greatest steps towards fulfilment of freedom from discrimination for persons with disabilities in Lesotho.

The 1993 Constitution of Lesotho and other Acts of Parliament namely: the Building Controls Act 1995, Sexual Offences Act 2003, Youth Council Act 2008, Education Act 2010, Penal Code Act 2010, Children’s Protection and Welfare Act 2011 and National Assembly Elections Amendment Act 2011, have provisions that directly address non-discrimination on the basis of disability while some indirectly address the issue as discussed below.

The Constitution guarantees freedom from discrimination as a fundamental human right in sections 4 and 18. Section 4 provides that:

[E]very person in Lesotho is entitled, whatever his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to fundamental human rights and freedoms.

Discrimination in this context is defined in section 18(3) as:

[A]ffording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

The non-discrimination provisions of the Constitution and their interrelation with Lesotho’s international human rights obligation not to discriminate were discussed in the case of Fuma v Commander Lesotho Defence Force (LDF),77 by the Constitutional Court of Lesotho. Fuma, a member of the LDF was retired on medical grounds in terms of section 24 of LDF Act 1994 by the medical board having reached a conclusion that he is legally blind because of inter alia HIV. Fuma contended that the board’s decision to retire him was discriminatory on the basis of his HIV status because there were still other officers in the army who were visually impaired but instead of being retired; they were given other duties in the institution that befitted their condition. He stated that the only factor that influenced the medical board’s decision to retire him was his HIV status. In deciding the case, the Court held that:

[The Court] primarily takes a view that the unreservedly ratified United Nations Convention on the Rights of Persons with Disabilities stands not only as an aspirational instrument in the matter but that by default, it technically assumes the effect of municipal law in the country.78

The court went further to consider other international human rights instruments and concluded that the Applicant had been discriminated against on the basis of his disability as well as HIV status. The court did not only condemn discrimination against the applicant as a violation of the CRPD but went further to determine the status of the CRPD in Lesotho by holding that it ‘assumes the effect of municipal law in the country’.79

Despite the Court having read disability into the phrase ‘other status’ in section 18 of the Constitution, it is imperative to note that neither section 4 nor section 18 lists disability as a prohibited ground of discrimination. This omission, it is argued, is detrimental to protection of persons with disabilities from discrimination.80 It fails to facilitate for the implementation of the general principles contained in article 3 of the CRPD which include respect for the inherent dignity and acceptance of persons with disabilities as part of humanity and human diversity.81

The only provision in the Constitution which refers to persons with disabilities is section 33 which provides for rehabilitation, training and social resettlement of persons with disabilities as part of Directive Principles of State Policy (DPSPs). Ngwena argues that laws that focus on rehabilitation of persons with disabilities and not adjustments of the environments which impose barriers to their enjoyment of human rights reinforce the outdated medical model of disability by categorising disability as a social welfare issue.82 In this regard, Zimbabwe is one of a few countries in the SADC region which Lesotho can learn from. The 2013 Zimbabwean Constitution has a provision on disability which recognises the rights of persons with disabilities, in particular the right to be treated with respect and dignity.83 It mandates the state to assist persons with disabilities to achieve their full potential and to minimise the disadvantages suffered by them.84 It sets out activities that the state and all institutions and agencies of government must do to achieve equality85 and to take appropriate measures to ensure persons with disabilities equal access to public buildings and amenities.86

Apart from the Constitution, the other pieces of legislation mentioned earlier also have provisions aimed at eliminating discrimination against persons with disabilities. For instance, the Buildings Control Act provides for physical access for persons with disabilities, in all public buildings.87 This provision gives ‘special attention’ to the rights of women with physical disabilities and ensures that they have access to public buildings including healthcare facilities as is mandated by article 9 of CRPD. The challenge with this Act however, is highlighted by the Lesotho Disability Baseline Study in which it is remarked that this section is not complied with in as much as many public buildings, including the Government Complex (where most government offices are located) remain inaccessible.88 The same is true for a number of healthcare facilities such as clinics and hospitals.

The Sexual Offences Act makes it a criminal offence to engage in a sexual act with a person who has a form of disability that makes it impossible for him or her to consent to the said sexual act. This Act is discussed in detail under freedom from sexual abuse and exploitation. The Youth Council Act of 2008 mandates that youths with disability must be represented in the Youth Council, while the National Assembly Elections Amendment Act 2011 mandates political parties to ensure persons with disabilities equal participation within their political parties. Education Act 2010 provides for inclusive education of children with disabilities in line with the principle of reasonable accommodation in article 9 of CRPD. One of the guiding principles in the Children’s Protection and Welfare Act (CPWA) is non-discrimination.89 Furthermore, the CPWA has a provision which specifically prohibits discrimination of children on the basis of their disability.90 It provides further that a child with disability has a right to dignity, special care, medical treatment and the like91 The challenge however is with its implementation which has been criticised in that the Ministry of Social Development, under its Children’s Unit, does not have specific programmes for children with disabilities, as a result of which children with disabilities are often referred to the Disability Unit thus failing to include them in mainstream children’s programmes in violation of the CRPD.92

While the national laws discussed above, generally prohibit discrimination, none adopts a twin track approach as mandated by CRPD by specifically prohibiting discrimination against women with disabilities as a group because of their particular vulnerability to discrimination, abuse and exploitation. This omission in wthe legal framework has been noted by the CEDAW Committee in its concluding observations on Lesotho’s combined initial, second, third and forth report to CEDAW.93 The Committee urged the state to have a specific provision in the Constitution which prohibits discrimination against women as defined in article 1 of CEDAW and that the challenges facing women with disabilities should be given particular attention.94

Over and above the laws discussed above, Lesotho also has a number of policies geared towards both gender equality and equality for persons with disabilities. The major policy document on disability is the National Disability and Rehabilitation Policy of 2011(Disability Policy). The objectives of this policy are stated as, amongst others, to create an environment in which persons with disabilities can realise their full potential while being included in the mainstream society. In particular it provides for inclusion of persons with disabilities in education, health, employment and social services. The overarching objective of inclusion in the Disability Policy is thus guided by the principle of non-discrimination and acceptance of disability as one form of human diversity. There is also a National Strategic Development Plan (NSDP) 2012/2013-2016/2017. The NSDP approaches disability as a cross-cutting issue and sets out access to quality healthcare services and prevention of causes leading to disability through provision of quality health services.95 The two policies can therefore guide the proposed Disability Equity Bill as they are aligned with the principle of non-discrimination as stipulated in CRPD as illustrated above. What remains crucial is implementation of the policies in practice, in particular de-stigmatisation of disability.

2.2 The right to marry and found a family
2.2.1 International standards on the right to marry and found a family

International human rights instruments recognise the rights of two consenting people to marry and found a family. For instance, article 16 of Universal Declaration provides that:

(1) Men and women of full age, without any limitation due to race, nationality or religion have the right to marry and found a family.

(2) Marriage shall be entered into with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 22(3) of CCPR provides for similar rights. This article was interpreted by the Human Rights Committee (HRC) in its General Comment No 19 to ‘imply in principle, the possibility to procreate and live together’.96 The HRC also emphasises equality of spouses prior, during and at the time of dissolution of marriage.

Article 16 of CEDAW provides for parties’ right to marry and equality of spouses within the marriage and at its dissolution. In its General Comment on this article, the CEDAW Committee revisited the general comments by other treaty bodies such as the HRC General Comment No 28 and No 19.97 The CEDAW Committee re-emphasised equality and non-discrimination as far as the right to marry is concerned and the state parties’ obligation to ensure formal as well as substantive equality.98

The African Charter does not specifically provide for the right to marry but provides for protection of the family as the natural unit and basis of society.99 Likewise, the African Women’s Protocol provides for free and full consent of intending spouses as well as equal rights of spouses during, and at the time of dissolution of marriage but does not specifically provide for the right to marry and found a family and prohibition of discrimination and or barriers to exercise such right.

With specific reference to persons with disabilities, principle 5 of the ICPD Program of Action provides that:

Governments should take effective action to eliminate all forms of coercion and discrimination in policies and practices ... assistance should be given to persons with disabilities in the exercise of their family ... rights and responsibilities.

The CRPD provides extensively for the rights of persons with disabilities to marry and found a family. It particularly urges states parties to take effective and appropriate measures to eliminate discrimination against persons with disabilities ‘so as to ensure that the right of all persons with disabilities, who are of marriageable age to marry and found a family on the basis of free and full consent of the intending spouses, is recognised’.100 In addressing this issue of legal capacity, article 12 of CRPD mandates states to recognise that persons with disabilities enjoy legal capacity on an equal basis with others.101 That is, to have rights and to act on the basis of such rights without discrimination on the basis of disability. In General Comment No 1, the Committee reaffirmed that the existence of an impairment must never be a ground for denying legal capacity or any of the rights contained in article 12. That is, persons with disability have the right to marry and national laws that purport to deny them same on the basis of lack of legal capacity violate article 12 of CRPD.

It follows therefore that as far as the right to marry and found a family is concerned, the underlying principle in international law is that states may neither restrict adults from marrying nor sanction marriages without consent of any of the spouses. As interpreted by the HRC, the right to marry carries with it, the right of the spouses to choose to procreate. That is, where a woman with disability has decided to marry the question relating to children remains the decision of the woman and her husband. Where the couple has made a decision to have children, the state then has an obligation to fulfil the couple’s right to reproductive healthcare as discussed in the next section.

2.2.2 National standards on the right to marry and found a family

At the national level, the Constitution of Lesotho does not provide for the right to marry and found a family but provides for the right to respect for private and family life.102 Marriage in Lesotho is regulated by both Sesotho Customary Law and Marriage Act of 1974. Neither of the two systems have provisions affirming or denying persons with disabilities the right to marry and found a family. Of relevance to the disability discourse is section 29 of Marriage Act which provides that ‘no insane person who is incapable of giving consent to marriage may marry’. The section uses the terms ‘insane person’ and ‘capacity to give consent’. The question that comes to one’s mind is compatibility of this section with article 12 of CRPD and CRPD Committee General Comment No 1 which are clear that denial of legal capacity on the grounds of disability constitute discrimination. By denying persons with psychosocial disability the right to marry on the basis of lack of legal capacity, section 29 of the Marriage Act therefore violates article 12 of CRPD.

With the exception of section 29, the laws do not place any barriers to women with disabilities’ right to marry. However, in practice women with disabilities experience problems arising from attitudes of members of their families and the society. These attitudes are influenced by the belief that women with disabilities are asexual and therefore unable to marry and or have and raise children.103 As a result of these misconceived beliefs, generally women with disabilities, as compared to non-disabled women and men with disabilities are more likely to be unmarried, married later or divorced earlier.104 A similar situation in Lesotho can be inferred from the findings of the Living Conditions Study which made an enquiry as to the extent to which persons with disabilities participate in family activities and decision making in relation to activities such as weddings, funerals, child-welcoming ceremonies, conflict resolution within families and others. The study reflects that 58 per cent of persons with disabilities are excluded from these activities and decision making in the families including decisions about their own lives.105

2.3 The right to reproductive health
2.3.1 International standards on the right to reproductive health

As illustrated in the definition of sexual and reproductive rights, reproductive healthcare is a component of the right to health.106 The right to health was first articulated in article 25 of the Universal Declaration which provides for the right to adequate standard of living including amongst others health and medical care. It was later provided for in article 12 of CESCR which provides for ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. The UN Committee on Economic, Social and Cultural Rights (CESCR Committee) when interpreting article 12 warned that CESCR does not confine itself to the definition of health as contained in the WHO constitution.107 It went further that the right to health must not be understood as a right to be healthy but it should be understood that it carries with it freedoms and entitlements including the right to control one’s health and body, as well as sexual and reproductive freedom.108 The CESCR committee emphasised that the right to health contains the following interrelated essential elements: availability, accessibility, acceptability as well as quality.

Succinct reference to the right to reproductive healthcare is made in both CEDAW and African Women’s Protocol. In CEDAW, states undertake to ensure that family education includes proper understanding of maternity as a social function,109 and to ensure that women receive appropriate services in connection with pregnancy, confinement and post-natal period.110 CEDAW specifically urges states to ensure the right to family planning information, counselling and services,111 as well as a woman’s right to determine the number and spacing of her children.112 When interpreting this article, the CEDAW Committee in its General Recommendation on Disabled Women requests states to report on measures taken to ensure that women with disabilities have equal access to health services.113 In another General Recommendation on Health the CEDAW Committee mandates states to ‘take appropriate measures to ensure that health services are sensitive to the needs of women with disabilities and are respectful of their human rights and dignity’.114

Article 14 of the African Women’s Protocol provides that ‘states parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted.’115 The African Women’s Protocol is the first human rights instrument to explicitly address women’s reproductive rights and HIV.116 When interpreting this article, in its General Comment No 1 the African Commission on Human and Peoples’ Rights (African Commission) observed that women and girls face a disproportionate risk of HIV infection in sub-Saharan Africa, as they make up 59 per cent of people living with HIV in the region.117 The African Commission noted further that this disparity is occasioned by a number of societal issues including social barriers that inhibit access to healthcare, gender inequalities as well as discrimination against women and girls.118 In General Comment No 2 on the same article, the African Commission noted that the right to health includes women’s freedom to decide on maternity, the number and spacing of births and the right to choose contraception method. It noted that this article mandates states parties to remove impediments to health services such as ideology or belief-based barriers.119

At the sub-regional level, article 9 of the SADC Protocol on Gender and Development provides that states parties shall in accordance with the SADC Protocol on Health and other international human rights instruments to which SADC members are parties, adopt legislation and related measures that take into account their particular vulnerabilities, to protect persons with disabilities.

Non-binding consensus documents and resolutions which relate to Sexual and Reproductive health include the Program of Action adopted at the 1994 International Conference on Population and Development (ICPD) in which the world agreed that ‘population is not just about counting people but making sure that every person counts’.120 The ICPD was set out amongst others to ‘provide universal access to family planning and sexual and reproductive health services and reproductive rights’.121 Furthermore, the Fourth World Conference on Women held a year later in Beijing adopted a Declaration and Platform for Action which identified women and health as well as human rights of women as two of the twelve critical areas of concern.122 Although not binding in nature, these instruments provide guidelines as to how states may fulfil their obligations under the binding international human rights instruments and are also persuasive in courts of law.

2.3.2 National standards on the right to reproductive health

At the national level, protection of health is contained in section 27 of the Constitution of Lesotho. However, it is not recognised as a fundamental human right but as one of the Directive Principles of State Policy (DPSPs).123 Section 25 of the Constitution declares economic, social and cultural rights (categorised as DPSPs in the Constitution) non-justiciable in the courts of law. Section 25 was interpreted in the case of Baits’okoli v MCC and Others124 in which both the Constitutional Court and the Court of Appeal of Lesotho affirmed the non-justiciability of DPSPs. It follows from the Court’s ruling in the Baits’okuli case that in as much as section 27 provides for protection of health, the government cannot through a civil suit be called to account for failure to protect health as mandated in the international human rights instruments. Neither international human rights instruments nor section 27 of the Constitution can be relied upon in courts of law to compel the government to fulfil the right to reproductive health under the legal system of Lesotho.

CPWA provides that a child has ‘a right to sexual and reproductive health information and education appropriate to his age’. The CPWA should thus be commended for providing for sexual and reproductive health education which, according to the CPWA needs to be provided to all children regardless of their disability.

Lesotho has the National Disability and Rehabilitation Policy (NDRP) 2011 which is aimed at promoting inclusion of people with disabilities in education, health, accessibility, employment, and social services.125 There is also the National Strategic Development Plan (NSDP) 2005/15 in which disability has been adopted as a cross cutting issue. One of the strategic objectives in this plan as far as disability is concerned is to ensure that people with disabilities access quality health services and that causes leading to disability are prevented through provision of quality health services. The National Reproductive Health Policy 2008 considers special needs of different target populations and the need to abide by conventions guarding against discrimination on the basis of amongst others, disability. That is despite the shortfalls identified in the legal framework, the policy framework complies with the provisions of article 9 of CRPD which requires reasonable accommodation of persons with disabilities.

The challenge however remains with implementation of these policies to eradicate the barriers that inhibit women with disabilities from accessing reproductive health services. The failure to implement constitutes violation of the CRPD and other international human rights instruments referred to above. The effects of the violation of this right include high rates of maternal and infant mortality which are occasioned by neglect and low quality of healthcare services include having an undesired number of children because of lack of knowledge about family planning and susceptibility to HIV/AIDS and other STIs due to lack of knowledge about modes of transmission and prevention. Women with disabilities are even at greater risk as they have less access to public health information and care during the prenatal stage of pregnancy which is likely to result in a greater risk of long-term complications.126

2.4 The right to give informed consent to all medical procedures
2.4.1 International standards on the right to give informed consent to medical procedures

Many international human rights instruments contain provisions that guarantee all human beings autonomy over their own bodies. For instance, the basic premise of human rights protection under the Universal Declaration which influenced many other international human rights instruments is that ‘all human beings are born free and equal in dignity and rights’.127 Imposition of medical treatment on people without consent has been categorised as an infringement on one’s dignity, the worse form of which amounts to torture.128 Article 5 of the Universal Declaration bans torture and inhuman or degrading treatment.

The right to freedom from torture is also protected by article 7 of CCPR which explicitly bans torture and inhuman or degrading treatment including scientific experimentation without one’s consent. In interpreting article 7 of CCPR, the Human Rights Committee emphasised that this article carries with it, the duty to protect individuals against forced abortion as well as forced sterilisation.129

The right to health is provided for in article 12 of CESCR. This article was interpreted by the Committee on Economic Social and Cultural Rights (Committee on ESCR), which is a body established to monitor implementation of CECSR in its General Comment No 14 of 2000,130 to be closely related to and also include the right to privacy, quality care as well as freedom from discrimination, torture and cruel, inhumane or degrading treatment.131 According to this general comment therefore while in the custody of healthcare givers, patients have a right to be treated with respect which included amongst others, the right to be informed about and be given a chance to consent to or refuse any medical treatment.

CEDAW provides for the rights of women to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.132 It further requires involvement of both spouses in sexual and reproductive health issues and their right to be informed in order to make informed choices about the reproductive rights.133

Article 3 of African Women’s Protocol provides for the right of all women to dignity which is inherent in all human beings and to the recognition and protection of their human and legal rights. In article 4 of the Protocol, states parties undertake to ensure that every woman shall be entitled to respect for her life and the integrity and security of her person and to ensure that all forms of exploitation, cruel and inhuman or degrading treatment or punishment are prohibited. In relation to health and reproductive rights, the Protocol mandates state parties to ensure that women’s right to health, including sexual and reproductive rights are respected and promoted.134 The Protocol elaborates further that this guarantee includes the right for a woman to control her own fertility,135 the right to decide whether to have children, the number of children and the spacing of children,136 the right to freely choose any method of contraception137 as well as the right to have family planning education.138 Read together, all the rights contained in the Protocol favour the right to give informed consent to any medical treatment and disfavour forced sterilisation or abortions.

The Beijing Platform for Action and the ICPD Program of Action reiterates the reproductive health rights of women. The ICPD Program of Action further illustrates this issue by pointing out that, reproductive health implies that people are able to have a satisfying and safe sex life, and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.

Article 3 of the CRPD lays down the general principles of CRPD which include amongst others respect for the inherent dignity and individual autonomy - including the freedom to make one’s own choices and independence of his or her person. Article 14 protects the right to personal liberty thus outlawing forced institutionalisation of women with disabilities. The CRPD also guarantees the right to freedom from torture and inhuman or degrading treatment or punishment including medical or scientific experimentation without one’s consent,139 freedom from exploitation, violence and abuse140 as well as integrity of the person.141 As far as consenting to medical treatment is concerned the CRPD mandates states parties ‘to require health professionals to provide care of the same quality to persons with disabilities as others, including on the basis of free and informed consent ...’142

Common and explicit in all the above international human rights instruments is the right of women to be informed of and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of regulation or control of their fertility with due regard to their dignity and integrity and free from discrimination, coercion and violence.143

While the international human rights instruments are clear on the right to give informed consent, the challenges faced by women and girls with intellectual and psychosocial disabilities cannot be ignored. ‘Incapacity’ is often used in laws and in practice as a valid justification to violate the rights of women and girls with intellectual and psychosocial disabilities. These violations include focus on sexual and menstrual suppression and forced or coerced abortions and sterilisation.144 Often doctors, parents and guardians substitute their own decisions for women and girls with disabilities.145 As illustrated under the right to marry and found a family, article 12 of CRPD is clear that denial of legal capacity on the ground of disability amounts to discrimination. Therefore, laws that give doctors, parents or guardians the right to substitute their own decisions for people with disabilities violate article 12.146 Conversely from substituted decision making, article 12 provides for supported decision making.147 Hence arbitrary control of a woman’s fertility, despite of her disability is a violation of multiple provisions of the CRPD.148

2.4.2 National standards on the right to give informed consent to medical procedure

Lesotho does not have a specific law on informed consent to procedures such as sterilisation. However the Constitution protects a number of rights which are violated when medical treatment is imposed without one’s consent. For instance, section 6 of the Constitution provides for the right to personal liberty which includes amongst others, the right not to be detained save as may be authorised by law. This section thus protects women with disabilities from compulsory institutionalisation for purposes of medical treatment without their consent. Section 8 provides for the right to freedom from torture or inhuman or degrading treatment thus protecting against arbitrary imposition of medical treatment in a manner that is degrading to the woman with disability. Section 11 provides for the right to respect for private and family life; thus guaranteeing amongst others, individual autonomy over one’s own body and would be violated by arbitrary control of a woman’s sexuality and fertility. Sections 18 and 19 of the Constitution protect freedom from discrimination as well as equality before the law. Furthermore, at common law, all competent adults can consent to or refuse medical treatment.149 If consent is not established, there may be legal consequences for health professionals who administered the treatment without consent.150

The international and national standards concerning the right to give informed consent to medical treatment notwithstanding, due to the barriers imposed by societal beliefs about sexuality and disability, many women with psychosocial disabilities are subjected to control by the state, health professionals and relatives.151 Their sexuality is controlled by amongst others, compulsory institutionalisation, forced abortions as well as sterilisation.152 Although there is no research that proves forced sterilisation of women with disabilities in Lesotho, the research on forced sterilisation of women living with HIV raises a possibility of the same being done on other marginalised women including women with disabilities. Research in other jurisdictions which has revealed forced sterilisation of women with disabilities, in particular those with psychosocial disability also mandates legal safeguards against this practice.

2.5 Freedom from sexual abuse and exploitation
2.5.1 International standards on freedom from sexual abuse and exploitation

In protecting the sexual and reproductive health rights of women in general and women with disabilities in particular, the international human rights instruments discussed in the preceding sections of this article also denounce sexual violence, abuse and exploitation as a cruel and inhuman treatment and a form of torture.153 In this regard sexual abuse is defined as ‘the actual or threatened physical intrusion of a physical nature, whether by force or under unequal coercive condition’,154 while sexual exploitation is defined as ‘any actual or attempted abuse of a position of vulnerability, differential power, or trust for sexual purposes, including, but not limited to profiting monetarily, socially or politically from the sexual exploitation of another’.155 These two acts are also categorised as violence against women which is defined in the Declaration on Elimination of Violence against Women as:

[A]ny act of gender-based violence that results in, or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.156

While gender based violence in the form of sexual abuse and exploitation can be suffered by both sexes, because of being subordinated to men, it disproportionately affects women and girls. Women and girls with disabilities are at an even greater risk157 as perpetrators take advantage because a woman will not be able to run away if she has physical disability, nor scream if she has hearing and speech impairment while a women with visual disability may not be able to identify the rapist.158 According to Kotze, vulnerability of women and girls with disabilities to sexual abuse and rape is also aggravated by a myth so called ‘virgin cure’.159 The misconception is that having sexual intercourse with a virgin provides a cure for AIDS. This myth is coupled with yet another misconception that women with disabilities are not sexually active and therefore presumably virgins provide motivation for rapists to target women and girls with disabilities with the hope that they shall be cured from HIV/AIDS.160 This exposes women with disabilities to the risk of HIV infection. Because the link between violence and HIV is not acknowledged in many jurisdictions Lesotho included, survivors of violence fail to get timely health services to reduce the risk of infection.161 Furthermore, due to fear of stigmatisation, cases of sexual abuse and exploitation are under-reported.162 Because people living with HIV already face stigma discrimination in many societies,163 people with disabilities who are infected with the virus face stigmatisation, discrimination and exclusion from the society. According to the HIV Situational Assessment Study, persons with disabilities in Lesotho who live with HIV or are diagnosed with other STIs do not disclose their status to their sexual partners due to fear of stigma and discrimination. This undermines national efforts to combat HIV.

In order to protect women with disabilities from sexual abuse and exploitation, the CRPD mandates states parties to take appropriate measures including legislative, administrative and other measures to protect persons with disabilities both within and outside the home from all forms of exploitation, violence and abuse including gender based violence.164 States also undertake to prevent all forms of exploitation and abuse by amongst others providing age and gender sensitive assistance and support to all persons with disabilities and their families by amongst others providing information on how to avoid, recognise and report instances of exploitation, violence and abuse.165 In the same vein, the SADC Protocol on Gender and Development mandates states parties to ensure that perpetrators of gender based violence, rape, femicide, sexual harassment, female genital mutilation and all other forms of gender based violence are tried by courts of competent jurisdiction.166

2.5.2 National standards on freedom from sexual abuse and exploitation

At the national level, section 8 of the Constitution provides for freedom from torture and inhuman and degrading treatment or punishment. Over and above the constitutional protection, the Sexual Offences Act 2003 criminalises all sexual conduct which takes place under coercive circumstances.167 The Sexual Offences Act defines ‘coercive circumstances’ to include inter alia circumstances in which the complainant is affected by ‘physical disability, mental incapacity, sensory disability, medical disability, intellectual disability, or other disability, whether permanent or temporary’.168 The Act also criminalises commitment of a sexual act in relation to or in the presence of a person with disability.169 In so doing it distinguishes between consensual and non-consensual sexual conduct in relation to persons with disabilities by defining a person with disability for its purposes as:

[A] person affected by any disability of a physical, intellectual, sensory, medical or mental nature or other disability irrespective of its cause, whether temporary or permanent, to the extent that a person is unable to appreciate the nature of a sexual act, or is unable to resist the commission of such an act, or is unwilling to communicate his unwillingness to participate in such an act. (emphasis added)

As an administrative measure, there has also been established within the Lesotho Mounted Police Service, Child and Gender Protection Unit (CGPU) whose main aim is to deal with cases involving children and victims of gender based violence. This is a general unit that does not exclusively deal with persons with disabilities. However some people with disabilities face barrier including accessibility of CGPU offices as well as communication with the police officers stationed therein all of whom are not trained in sign language. As a result, a woman with a hearing disability will have to rely on third parties, friends or relatives to report the offence at the police station. The danger of reliance on a third party is that the story may end up being distorted or not adequately captured.

3 Conclusions and recommendations

The discussion in this article has established that women with disabilities in Lesotho suffer double discrimination based on sex and disability, and that their access to public services including healthcare services is inhibited by physical, communicational and attitudinal barriers. These barriers are insulated by the legal system itself, which does not fully implement the provisions of international human rights instruments to which Lesotho is a party, in particular the CRPD, CEDAW, African Women’s Protocol and SADC Protocol on Gender and Development. While the international human rights instruments are indicative of the fact that the international community is moving towards a more robust recognition of both human rights of persons with disabilities and sexual and reproductive rights of all women,170 this intersection is however not given full attention in the legal system of Lesotho.

The specific obligations contained in the CRPD include ensuring that women with disabilities access services related to their sexual and reproductive rights on equal basis with other women, on the basis of non-discrimination and in accordance with the principle of reasonable accommodation.171 While the Constitution of Lesotho provides for the right to freedom from discrimination and equality before the law,172 it does not include disability as a prohibited ground for discrimination thus not fully acknowledging the fact that people with disabilities in Lesotho disproportionately face discrimination based on multiple and intersectional grounds. Furthermore, absence of disability specific law and disability mainstreaming policy makes it impractical to implement the principle of reasonable accommodation, this is because the specific needs of women with disabilities are not adequately captured in the national sexual and reproductive health policies and programmes and disability policies do not cater for gender mainstreaming.

The CRPD further mandates states parties to take all measures to eliminate discrimination against persons with disabilities in all matters relating to marriage,173 and to recognise the right of all persons with disabilities to marry on the basis of free and full consent.174 The legal system of Lesotho being the Sesotho Customary Law and the Marriage Act, 1979 do not impose any barriers against persons with disabilities who wish to marry, the requirement of legal capacity as a basis for exercise of this right does not comply with article 12 of CRPD. Further barriers are imposed by attitudes of families and the society which deny persons with disabilities the right to participate in decisions relating to important aspects of their lives including marriage.175 This thus leaves the government with the obligation to root out such attitudes by amongst others raising awareness that people with disabilities are as valuable members of the society as everyone else.

The CRPD emphasises equality, non discrimination and reasonable accommodation of persons with disabilities in accessing reproductive health services.176 The legal system of Lesotho does not fully implement this obligation. The Constitution does not recognise the protection of healthcare as a fundamental human right, the violation of which can be vindicated in a court of law.177 Furthermore due to absence of disability specific laws and disability mainstreaming policy, the current Reproductive Health Policy does not fully accommodate the specific needs of women with disabilities including dissemination of related information in a manner accessible to all women regardless of the type of their disability.

Regarding medical procedures related to sexual and reproductive rights such as control of women’s fertility, the CRPD provides for the right to give informed consent to medical procedures and disfavours substituted decision making for women with psychosocial disabilities.178 There is no specific law in Lesotho which provides guidelines in this regard and therefore Common Law is relied upon. Although there is no research that indicates that women with disabilities in Lesotho are subjected to forced control of their fertility through institutionalisation and sterilisation, the research conducted by WILSA and CW-Lesotho has however unearthed the practice amongst women living with HIV, thus reflecting that there might be a possibility of the same being done in relation to women with disabilities.

While guaranteeing the sexual and reproductive rights of women with disabilities in positive terms, CRPD also takes cognisance of the particular vulnerability of women and girls with disabilities to exploitation, violence and abuse.179 It therefore mandates states parties to protect women and girls with disabilities from all forms of exploitation, violence and abuse including of a sexual nature.180 The legal framework of Lesotho through the Sexual offences Act 2003 complies with this obligation.181 However, the problem lies with implementation of the Act in as much as inaccessibility of police stations and courts of law, communicational barriers as well as the rules of criminal procedure and evidence affects access to justice by women with disabilities who have fallen victims of sexual abuse and exploitation.

On the basis of the foregoing conclusion, this article makes the following recommendations:

  • that the Constitution of Lesotho be amended to include disability as a prohibited ground of discrimination and that health, including sexual and reproductive health be protected as fundamental human rights of all people in Lesotho;
  • that the already existing disability friendly laws such as Buildings Control Act 1995, Education Act 2010, Children’s Protection and Welfare Act 2011 be implemented so as to ensure reasonable accommodation of persons with disabilities;
  • that government speeds up the process of adopting a Disability Mainstreaming Policy and enacting Disability Equity Bill with the aim of ensuring equality, reasonable accommodation and also providing guidelines on implementation of other obligations such as ensuring informed consent to marriage, medical procedures and supported decision making of women with psychosocial disabilities;
  • that the government adopt other measures such as equitable allocation of available resources to cater for the basic needs of women and girls with disabilities, involve organisation of persons with disabilities in programme designs, their monitoring and evaluation, so as to ensure that their specific needs are fully accommodated in all national programmes including those related to sexual and reproductive health; and
  • that government promotes more research on persons with disabilities, their needs, expectations and expertise; how they can be addressed, accommodated, utilised and included in the legal and policy frameworks.

 


1. World Programme of Action concerning Disabled Persons, Report of the Secretary General, 15 September 1982, A/RES/37/351/Add.1, para II/2/45, 30.

2. United Nations Convention on Elimination of All forms of Discrimination Against Women (CEDAW), adopted by United Nations General Assembly (UNGA) on 18 December 1979, Preamble, para 6.

3. SAD Kamga ‘The rights of women with disabilities in Africa: Does the Protocol on the Rights of Women in Africa offer any hope?’ 2011 Centre for Women Policy Studies Barbara Faye Waxman Fudicia Papers on women and girls with disabilities. See also E Mandipa ‘A critical analysis of the legal and institutional frameworks for the realisation of the rights of persons with disabilities in Zimbabwe’ 2013 (1) African Disability Rights Yearbook 73.

4. CRPD Committee, Draft General Comment No 3: Article 6 ‘Women with disabilities’ UN Doc CRPD/C/14/R.1 (22 May 2015) para 2.

5. WHO 2009 ‘Promoting sexual and reproductive health for people with disabilities’ WHO/UNFPA Guidance Note 1. See also Centre for Reproductive Rights ‘Reproductive rights and women with disabilities: A human rights framework’ Briefing Paper 1.

6. Centre for Reproductive Rights Briefing Paper 1 (n 5 above).

7. World Programme of Action concerning Disabled Persons, 1982 (n 1 above).

8. Standard Rules on the Equalization of Persons with Disabilities, adopted by the United Nations General Assembly, forty-eighth session, resolution 48/96, annex, of 20 December 1993.

9. CEDAW (n 2 above).

10. United Nations Convention on the Rights of Persons with Disabilities, adopted by UNGA on 13 December 2006 (CRPD).

11. Mandipa (n 3 above) 73.

12. Draft General Comment No 3 (n 4 above) para 3.

13. Lesotho ratified the CEDAW on 22 August 1995 and acceded to the CRPD on 2 December 2008.

14. For instance art 12(2) of CEDAW creates a positive obligation for states to lay a foundation for women’s reproductive choice. See also the statement of the UN Committee on elimination of all forms of discrimination against women (CEDAW Committee) at its fifty-seventh session 10-28 February 2014 in which states parties are urged to ensure the full respect, protection and fulfilment of sexual and reproductive rights, in line with human rights obligations available on www.astra.org.pl/.../243-cedaw-statement (accessed 14 August 2014). Article 25 of CRPD provides for Persons with disabilities’ right to health on an equal basis with others, ‘including in the area of sexual and reproductive health and population-based public health programs’.

15. WHO 2006 ‘Defining sexual health’ http://www.who.int/reproductivehealth/topics/sexual /Health/sh_definitions/en/ (accessed 29 March 2015).

16. CRPD Committee Draft General Comment No 3 (n 4 above) para 5.

17. An umbrella body of organisations of persons with disabilities (DPOs).

18. Y Kamaleri & AH Eide ‘Living conditions among people with disabilities in Lesotho: A national representative study’ SINTEF Technology and Society Global Health and Welfare (Living Conditions Study).

19. Communities of practice in disability advocacy for mainstreaming (COPDAM) Baseline Study: Lesotho 2013 Report (Disability Baseline Study 2013).

20. UN Economic and Social Council ‘Report of the High Commissioner on Human Rights on implementation of economic, social and cultural rights’ UN Doc E/2009/90, para 3.

21. T Masimba ‘Lesotho’s economy catches flu - from big brother’s sneeze’ African Renewal Online December 2011 www.un.org/africarenewal/.../Lesotho’s (accessed 14 August 2014).

22. Statistics http://countryeconomy.com/demography/population/lesotho (accessed 16 February 2015). See also World Population Review 2014 ‘Lesotho Population 2014’ www.worldpopulationreview.com/countries/lesotho-population (accessed 16 February 2015).

23. UNDP 2014 Lesotho - Human Development Reports http://www.hdr.unpd.org/sites/all/themes/...LSO (accessed 14 August 2014).

24. World Population Review 2014 (n 22 above).

25. As above.

26. Lesotho Integrated Labour Force Survey 2008 www.bos.gov.ls/.../2008_ILFS_report (accessed 14 August 2014).

27. Living Conditions Study (n 18 above) 14.

28. World Population Review 2014 (n 22 above).

29. As above.

30. Living Conditions Study (n 18 above).

31. WHO 2009 (n 5 above). See also LNFOD 2011 ‘Situational assessment analysis study of HIV/Aids and persons with disabilities in Lesotho’ (HIV Situational Assessment Study 2011) 11 which reflects that while persons with disabilities are more exposed to HIV/Aids risk factors, they are often excluded from prevention and treatment programmes.

32. Living Conditions Study (n 18 above) 16.

33. As above.

34. Disability Baseline Study 2013 (n 19 above) 7.

35. Disability Baseline Study 2013 (n 19 above) 8.

36. As above.

37. Women and Law in Southern Africa, Research and Education Trust (WILSA) & Community of Women living with HIV (CW) 2014 ‘Forced sterilization of women living with HIV: Lesotho case study’ Unpublished research report (Study on forced sterilization of women living with HIV) 1.

38. HIV Situational Assessment Study (n 31 above) 33.

39. As above.

40. L Chipatiso et al ‘The Gender-based violence indicators study: Lesotho’ Gender Links (GBV indicators study) (2015).

41. Disability Baseline Study 2013 (n 19 above).

42. WHO 2009 (n 31 above) 3 illustrates the general problem and the Living Conditions Study (n 18 above) 16 reflects the same in Lesotho.

43. Study on Forced Sterilization of Women Living with HIV 2014 (n 37 above).

44. HIV Situational Assessment Study 2011 (n 31 above).

45. As above.

46. UNICEF http://www.unicef.org (accessed 14 September 2015).

47. World Population Review 2014 (n 22 above).

48. As above.

49. Living Conditions Study (n 18 above) 53.

50. Living conditions Study (n 18 above) 16.

51. Universal Declaration of Human Rights (Universal Declaration) 1948 article 1 which provides that ‘all human are born free and equal in dignity and in rights’.

52. For instance, art 2 of Universal Declaration on Human Rights (Universal Declaration) 1948, arts 2 and 26 of International Covenant on Civil and Political Rights (CCPR) 1966, art 2(2) of the International Covenant on Economic, Social and Cultural Rights (CESCR) 1966, art 2 of the Convention on the Rights of the Child (CRC) 1989 and art 2 of the African Charter on Human and Peoples’ Rights (African Charter) 1981 all prohibit discrimination on several grounds such as sex or ‘other status’. The term ‘other status’ has been interpreted to include disability. However its inclusiveness has been discarded by other disability academics and activists in that it does not make the injustices that persons with disabilities suffer visible and therefore makes it less likely for governments to address them. Over and above the general prohibition of discrimination, CEDAW and the Protocol to the African Charter on the Rights of Women in Africa (African Women’s Protocol) 2003 prohibit discrimination against women in particular. In its art 23(b), the African Women’s Protocol specifically prohibits discrimination against women with disabilities on the grounds of their disability.

53. N Lerner Group rights and discrimination in international law (2003) 2.

54. Declaration on the Rights of Persons with Disabilities 1957 art 10 provides that ‘disabled persons, whatever their origin, nature and seriousness of their handicaps and disabilities have the same fundamental rights as their fellow citizens’. It goes on to protect persons with disabilities against all exploitation, regulation and treatment of a discriminatory nature.

55. United Nations Standard Rules on Equalisation of Opportunities for Persons with Disabilities provide that the needs of each and every individual are of equal importance and that all resources must be employed in such a way as to ensure that every individual has equal opportunity for participation.

56. Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health. Adopted by the UN General Assembly in 1991, principle 1(4) provides that there shall be no discrimination on the grounds of mental illness.

57. Fourth World conference on Women, Beijing 1995 Declaration para 32.

58. Fourth World conference on Women, Beijing 1995 Action for Equality, Development and Peace Platform for Action.

59. CRPD, Preamble, para (p).

60. CRPD, Preamble, para (s).

61. CRPD, art 1(1) (emphasis added).

62. CRPD, art 3(g).

63. CRPD, art 8(b).

64. Draft General Comment No 3 (n 4 above) para 8.

65. Draft General Comment No 3 (n 4 above) para 20.

66. As above.

67. Draft General Comment No 3 (n 4 above) para 9.

68. Draft General Comment No 3 (n 4 above) para 14.

69. UN Committee on the Elimination of Discrimination Against Women (CEDAW Committee) General Recommendation No 24: Article 12 of the Convention (Women and Health) 1999, UN Doc A/54/38/Rev.1, chap 1 http://www.refworld.org/docid/453882a73.html (accessed 29 March 2015).

70. Vienna Declaration and Programme of Action 1993.

71. J Lord & R Brown ‘The role of reasonable accommodation in securing substantive equality for persons with disabilities: The UN Convention on the Rights of Persons with Disabilities’ (2010) SSRN http://ssrn.com/abstract=1618903 (accessed 14 September 2015).

72. CRPD, art 2.

73. CRPD Committee, General Comment No 2 UN Doc CRPD/C/GC/2 (2014).

74. NE Groce et al ‘Guidelines for inclusion of individuals with disability in HIV outreach efforts’ The World Bank Global AIDS Program (2008) 11.

75. Government of Lesotho Disability Equity Bill 2014.

76. Disability Equity Bill, sec 6.

77. Fuma v Commander LDF (Fuma) LSHC 68. Judgment of 10 October 2013.

78. Fuma (n 77 above) para 22.

79. Section 2 of the Constitution places the constitution above all laws, including international law. Therefore, it is unwarranted to assume that Fuma’s case provides conclusive evidence of applicability of the CRPD in Lesotho in the absence of an Act of Parliament that domesticates the CRPD.

80. G Quinn & T Degener Human Rights and disability: The current use and future potential of United Nations human rights instruments in the context of disability (2002) 10.

81. CRPD, art 3(a) & (d).

82. C Ngwena ‘Deconstructing the definition of disability under the Employment Equity Act: Social deconstruction’ (2006) 22 South African Journal of Human Rights 620.

83. The Constitution of Zimbabwe (Amendment No 20) Act of 2013, sec 22(1).

84. Constitution of Zimbabwe, sec 22(2).

85. Constitution of Zimbabwe, sec 22(3).

86. Constitution of Zimbabwe, sec 22(4).

87. Buildings Control Act 1995, sec 19.

88. Disability Baseline Study 2013 (n 19 above).

89. Children’s Protection and Welfare Act (CPWA) 2011 sec 6.

90. As above.

91. CPWA, sec 13.

92. Disability Baseline Study (n 19 above).

93. CEDAW Committee Concluding Observations adopted at the Committee’s 50th Session on 21 October 2011.

94. As above.

95. National Strategic Development Plan (NSDP) 2012/2013-2016/2017 sec 6.3.

96. CCPR General Comment No 19: Article 23 (The family) Protection of the family, the right to marriage and equality of spouses 27 July 1990, para 5 UN Doc HRI/Gen/1/Rev.6 at 149 (2003).

97. UN committee on Elimination of Discrimination Against Women (CEDAW) CEDAW General Comment No 24: Article 12 of the Convention (Women and Health), 1999 UN Doc A/54/38/Rev.1 chap 1 para 7.

98. As above, para 8.

99. African Charter, art 18.

100. CRPD, art 23(1)(a).

101. CRPD Committee General Comment No 1 (2014).

102. Lesotho Constitution 1993, sec 11(1).

103. Kamga (n 2 above).

104. E Naidu et al ‘On the margins: Violence against women with disabilities’ Centre for the study of violence and reconciliation (2005) 4 http://www.csvr.org.za/docs/gender/onthemargins.pdf (accessed 15 August 2014).

105. Living Conditions Study (n 18 above) 9.

106. WHO 2006 ‘Defining sexual health’ (n 15 above).

107. UN Committee on Economic Social and Cultural Rights (CESCR), General Comment No 14: ‘The right to highest attainable standard of health (Art 12 of the Covenant)’ E/C.12/2000/4 (11 August 2000) http://www.refworld.org/docid/45388838d0.html (accessed 17 August 2014) (General Comment No 14) para 4.

108. General Comment No 14 (above) para 9.

109. CEDAW, art 5(b).

110. CEDAW, art 12(2).

111. CEDAW, art 10 (h).

112. CEDAW, art 16(1)(e).

113. CEDAW, General Recommendation 18, Disabled Women (Tenth Session, 1991) UN.Doc.A/46/38 available on http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Recommendations.aspx (accessed 17 August 2014).

114. CEDAW General Comment No 24 (n 97 above) para 25.

115. African Women’s Protocol, art 14(1).

116. African Commission on Human and Peoples Rights, General Comment No 1 on article 14(1)(d) and (e) of the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, adopted at the African Commission’s 52nd session from 9-22 October 2012 para 6.

117. As above

118. As above.

119. African Commission GC No 2, para 25.

120. See also the opening statement of Mr Babatunde Osotimehin Executive Director of United Nations Population Fund (UNFPA) Addis Ababa, 3 October 2013 www.uneca.org/.../opening-statement (accessed 6 August 2014).

121. https://www.unfpa.org./public/icpd (accessed 6 August 2014).

122. Beijing Declaration 1995 (n 51 above) and Beijing Platform for Action 1995 (n 52 above).

123. Constitution of Lesotho 1993, sec 27.

124. Baits’okoli v MCC & Others (Baits’okoli case) (2004) AHRLR 195 (Lesotho Court of Appeal 2004).

125. LP Leshota ‘Reading the National Disability and Rehabilitation Policy in the light of Foucault’s technologies of power’ (2013) 2 African Journal of Disability 7.

126. NE Groce 2011 ‘Disability and the Millennium Development Goals: A review of the MDG process and strategies for inclusion of disability issues in Millennium Development Goal efforts’ United Nations Publications 25.

127. Universal Declaration, art 1.

128. CEDAW Committee General Recommendation No 19 (11th Session, 1992) Violence against women. See also UN General Assembly (2010) Report of the Special Rapporteur on torture, and other cruel, inhuman or degrading treatment or punishment A/HRC/13/39/Add.5 www2.ohchr.org/english/bodies/hrcouncil/docs/13session/AHCR (accessed 15 September 2015).

129. Human Rights Committee, General Comment No 28 ‘Equality of rights between men and women (article 3)’ UN Doc CCPR/C/21/Rev.1/Add.10 (2000) para 11.

130. ECSCR, General Comment No 14 ‘The right to the highest attainable standard of health (art 12)’ (22nd Session, August 2000) (UN Doc E/C.12/2000/4) paras 3 & 8.

131. L Beletsky et al ‘Advancing human rights in patient care: The law in seven transitional countries’ Open Society Foundations (2013). See also Open Society Institute ‘Health and Human Rights: a resource guide’ Open Society Foundation (2013). See also WHO The right to health available www.who.int/mediacentre/factsheets/fs323/en/ (accessed 15 September 2015).

132. CEDAW, art 16(1).

133. As above.

134. African Women’s Protocol, art 14.

135. African Women’s Protocol, art 14(1)(a).

136. Africa Women’s Protocol, art 14(1)(b).

137. Africa Women’s Protocol, art 14(1)(c).

138. Africa Women’s Protocol, art 14(1)(f).

139. CRPD, art 15.

140. CRPD, art 16.

141. CRPD, art 17.

142. CRPD, art 25(d).

143. Global Commission on HIV/AIDS and the Law (GHL) Risks, rights and health (2012) 65.

144. C Frohmader ‘Submission to the National Inquiry into Equal Recognition before the Law and Legal Capacity for People with Disabilities’ Women With Disabilities Australia (2014) 5.

145. As above.

146. World Network of users and survivors of psychiatry ‘Implementation manual for the united national convention on the rights of persons with disabilities’ (2008) art 12.

147. CRPD, art 12(4).

148. ICW in Focus ‘Forced sterilization of women living with HIV must stop now’ 2014. Available at the Global Coalition of Women and AIDS.

149. S Fovargue & J Miola ‘One step forward, two steps back? The GMC, the common law and informed consent’ 2010 36 Journal of Medical Ethics 494.

150. As above.

151. P Block ‘Sexuality, parenthood and cognitive disability’ (2002) 20 Journal of Sexuality and Disability 8.

152. As above.

153. Yakin Ertürk 2010 ‘Integration of the Human Rights of Women and the Gender Perspectives: Violence against women’ in Fifteen years of thee United Nations Special Rapporteur on Violence Against Women, its Causes and Consequences (1994-2009) - Critical Review. Available on http:www.ohchr.org/.../Issues/women/... (accessed 15 September 2015 ) See also UN General Assembly ‘Special Rapporteur on Violence Against Women, its causes and consequences: Integration of the human rights of women and the gender perspectives: Violence against women, intersections of violence against women and HIV/AIDS’ E/CN.4/2005/72 (2005). See also CEDAW Committee General Recommendation No 19 (n 107 above). See also UN General Assembly Report of the Special Rapporteur on torture, and other cruel, inhuman or degrading treatment or punishment (2010) (n 107 above).

154. UN Secretary General’s Bulletin on protection from sexual exploitation and abuse (PSE) (ST/GB/SGB/2003/13) www.un.org/en/pseatask (accessed 14 September 2015).

155. As above.

156. Declaration on Elimination of Violence Against Women (DEDAW) 1993, art 1.

157. CRPD, Preamble, para (q).

158. Kamga (n 3 above).

159. H Kotze ‘A situation analysis of the stat and status of disability rights and issues in Southern Africa’ OSISA Project on disability rights and Law Schools (2010) 4.

160. As above.

161. GCHL (n 123 above) 64.

162. Chipatiso (n 40 above).

163. Groce (n 74 above).

164. CRPD, art 16(1).

165. CRPD, art 16(2).

166. SADC Protocol on Gender and Development art 20.

167. Sexual Offences Act sec 3.

168. Sexual Offences Act, sec 2(f)(i).

169. Sexual Offences Act, sec 15.

170. Centre for Reproductive Rights discussion paper (n 5 above).

171. CRPD, art 9.

172. Constitution 1993, secs 4, 18 & 19.

173. CRPD, art 23(1).

174. CRPD, art 23(1)(a).

175. Living Conditions Study (n 18 above).

176. CRPD, art 25 read with art 9.

177. Constitution sec 25.

178. CRPD, art 25.

179. CRPD, Preamble, para (q).

180. CRPD, art 16.

181. Sexual Offences Act, 2003, sec 3.

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