- Neel Raamandarsingh Purmah
- LLB (Bristol); LLM in Human Rights and Social Justice (Connecticut)
- Lecturer in Law, Middlesex University (Mauritius Branch)
- N Raamandarsingh Purmah ‘Inclusive education for learners with disabilities in Mauritius: The ‘rights’ way forward’ (2021) 9 African Disability Rights Yearbook 160-186
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It has become increasingly evident that progress towards inclusion in the realm of education for learners with disabilities in the small island nation of Mauritius has been inexplicably inconsistent, and so-called inclusive policies advocated by successive governments have had little tangible effects in practice. In order to break free from the chains of this segregationist approach, where the education of disabled learners developed in parallel to that of their non-disabled peers, a radical overhaul of our approach to education is warranted. Towards that end, adopting a rights-based approach to inclusive education can have profound implications for students with disabilities when they are provided with the same educational opportunities within mainstream settings on an equal basis with others. It is not the disabled student who should adapt to the school system, but rather it is for education providers to adapt to the particular needs of learners with disabilities.
This paper opens with a description of the education system of Mauritius before moving to a historical analysis of special educational needs in the country. The discussion will then turn to the salient features of inclusive education as conceived under international law. The final part will identify examples of good practices and provide recommendations to promote education opportunities for learners with disabilities in Mauritius, in particular to underline the legislative and policy measures that Mauritius can adopt with a view to ensuring that persons with mental or physical impairments can benefit from access to an inclusive and quality education on an equal basis with others; raise awareness as to the challenges that persons with disabilities are confronted with in both the public and private education systems; and assess to what extent inclusive education can prove to be beneficial to the Mauritian society and economy.
The education system for learners with disabilities in Mauritius has long been predicated on segregation. It is an unfortunate reality that disabled learners are not provided with equal access to all levels of education and vocational training which can ensure their full participation and inclusion in society. A close reflection on the nature of the education system in Mauritius reveals that there has been a litany of failures in the implementation of the right to an inclusive and quality education for children and adults with disabilities. Policies formulated under successive governments have clouded one’s perspective entirely about the negative consequences they have spawned on the robustness of the national educational structure. It is jarring to learners with disabilities in Mauritius who have been thrust into a world where they cannot enjoy the full extent of their right to an education on an equal footing with learners without disabilities. The ‘inclusive education’ advocated by policy-makers in Mauritius is regrettably not a child-centred pedagogy which enables learners with disabilities to be educated alongside their non-disabled peers. The term ‘inclusive’ has in reality been employed as a smokescreen to camouflage the perpetuation of a separate system of education for learners with disabilities.
In the light of this, it is important to address these inadequacies by adopting a human rights-based approach to the provision of education for learners with disabilities in Mauritius. It is all the more crucial to depart from the medico-social model of disability which places the burden on learners with disabilities to adapt to the mainstream education system. If they cannot adapt, they are placed in integrated or segregated settings by virtue of their impairment, sometimes at their own cost, when education should in fact be freely accessible as a fundamental right to every child in a country that values democratic ideals above all. The human rights-based approach to education recognises that children with disabilities are first and foremost rights-holders, whose individual rights and liberties should be respected on an equal basis with their non-disabled counterparts. It follows that their right to equal and quality education can hardly be overemphasised in the fight for disability justice.
While much ink has been spilled over the issue of education of students with special needs, there is still a need to assess the impact of human rights standards in the implementation of inclusive education.1 A human rights perspective in view of achieving systemic reforms to education will not only ensure that the right to education of learners with disabilities is being safeguarded, but will equally have a positive impact on their other fundamental rights. Insofar as it is not in contention that education helps to reduce inequalities, it is incumbent upon policy-makers and society at large to extend access to the mainstream education system to all people with disabilities, irrespective of any additional financial burden this entails for educational providers. If an inclusive education model is implemented effectively, this will have far-reaching impacts on the empowerment and promotion of the social, economic and political inclusion of persons with disabilities within Mauritian society.
This paper opens with a description of the education system in Mauritius before moving to a historical analysis of special educational needs in the small island nation of Mauritius. The discussion will then shed light on the salient features of inclusive education as conceived under international human rights law. The final part will identify examples of good practices and provide recommendations to promote education opportunities for learners with disabilities in Mauritius. The main recommendations are as follows: the legislative and policy measures that Mauritius can adopt with a view to ensuring that persons with mental or physical impairments can benefit from access to an inclusive and quality education on an equal basis with others; raising awareness as to the challenges that persons with disabilities are confronted with in the general public education system and society; and assessing to what extent inclusive education can prove to be beneficial to the Mauritian society and economy as a whole.
The education system in Mauritius is based on the British system as a result of colonial occupation from 1810 up to 1968, when the country became independent. The Education Act was enacted in 1957 to cater for matters relating to education in Mauritius.2 The structure of the education system is divided into pre-primary, primary, secondary and tertiary levels.3 Primary education has always been freely provided. Early on in post-independent Mauritius, the authorities pushed for reforms toward making education free and accessible to those in secondary educational institutions. Fees were as a result abolished for secondary schools and post-secondary schools in 1977 and 1988 respectively. Fast forward a few decades and there were subsequent amendments in 2004 to the Education Act and to the Education Regulations of 1957 in view of making education free and compulsory up to the age of 16 with the introduction of the 11-year schooling system.4
The education system has, however, experienced significant systemic reforms in recent years. The Nine-Year Continuous Basic Education was introduced in 2015 in order to establish a comprehensive basic education cycle aimed at providing the core competencies for empowering students with knowledge and promoting access to high levels of achievement.5 It was a missed opportunity to work towards real inclusion for students with disabilities in the mainstream education system. One specific objective of this reform was to ‘[p]rovide learning opportunities to all students, including those with special education needs, for them to attain high levels of achievement according to their abilities and strengths’.6 However, this objective had the effect of perpetuating a parallel education system for children without disabilities and those with special educational needs. Another significant reform related to post-secondary studies which since January 2019 is free for students who opt to study at a public tertiary education institution.7 The education playing field is however skewed from the outset for learners with disabilities, which renders it much more difficult for most of them to access higher education at a later stage in their academic life. The few scholarships available for students with disabilities do not moreover bring any significant game-changing results to their integration in society.
According to official statistics as at March 2020, there were 319 schools providing primary education (221 public schools; 53 run by religious education authorities; and 45 privately-funded schools).8 With respect to secondary education, there are 179 schools in all (69 state-run; 110 privately-run). For tertiary level, the statistics are presented in terms of enrolment: as at December 2019 the total number of students was 49 205 (including full-timers, part-timers, and distance education). Of significance is the number of Special Education Needs schools, which amounted to 71 in total as at March 2020 (21 state-run; 50 in all mostly run by non-governmental organisations and a few by a religious authority).9 The non-governmental organisations which run these specialised schools typically receive aid from the government in order to ensure better training and capacity-building for their staff. It should be highlighted, moreover, that there are reasonable accommodation measures that have been implemented for learners with disabilities such as providing them with additional time in national exams or retrofitting of schools with ramps in order to facilitate access to classrooms or restrooms. But these are the bare minimum required in terms of making it easier for all persons with disabilities to be included in the education system. And these measures are aimed mostly at students with a physical disability.
Insofar as training of special educators is concerned, a plethora of courses have been developed by the Mauritius Institute of Education operating under the aegis of the Ministry of Education and which engages in educational research, curriculum development and teacher education.10 The Mauritius Institute of Education has designed specific courses for the professional development of staff and instructors, including a Postgraduate Diploma in Special Education for lecturers of the Institute, educational psychologists and educational social workers; a Certificate in Special Education for teachers working in specialised schools for students with disabilities; a Teacher’s Diploma in Special Education Needs for primary school teachers who have to look after students with mild forms of disabilities in mainstream schools; a Teacher’s License in Special Education Needs for instructors already working in specialised schools; and a Foundation Course for instructors and staffs in specific specialised schools run by non-governmental organisations.
The List of Indicative Priority Fields of Study 2017/2019 recognises that education is one of the most important avenues through which social equality for learners with disabilities can be achieved in Mauritius.11 The list explicitly refers to the priority of Special Education Needs training courses at both undergraduate and postgraduate levels. These courses focus on developing teaching strategies for effective management of learners with disabilities in class. On that account, the training of education teachers is avowed as instrumental in building the strengths, skills and competencies of these students. Yet, seismic shifts in the education sector in the past decade have failed to take into proper consideration the real aspirations of learners with disabilities.
As will be explored later, the lack of a human rights perspective on the process is hampering the robustness of the whole educational structure. The approach adopted by education providers in Mauritius excludes most learners with disabilities from the mainstream education system. It can be highlighted at this juncture that learners with special education needs are more at risk of being denied the same educational opportunities than their non-disabled peers when they are placed in segregated settings.12 This eventually results in their exclusion from society. But in an attempt to have a fuller picture of the educational structure of Mauritius, a discussion is required of the parallel regime for special educational needs that was engineered specifically for learners with disabilities.
In the early 1950s, Chief Justice Earl Warren, then at the helm of the US Supreme Court, initiated a radical change in American society by rallying other Supreme Court Justices to declare unconstitutional state laws which had the object of racially segregating students in public schools.13 In these same years, however, a segregationist policy approach was endorsed by Mauritian authorities in order to prevent access to mainstream schools to learners with disabilities with the creation of Specialised Government Schools. This notwithstanding the fact that ‘Education for All’ was the slogan of the then ruling party.14 It would appear that the main characteristic that defined Mauritian society at that time was that the creation of specific schools that could satisfy the individual needs of persons with similar disabilities could be an equaliser in the education field insofar as success in the mainstream education system was excessively challenging for those with a disability. This is reflected in the establishment of the School for the Blind by the Society for the Welfare of the Blind in 1946, the School for the Deaf by the Society for the Welfare of the Deaf in 1965, and the School for Educationally Sub-Normal Children founded by the Mauritius Mental Health Association. 15
At the turn of the millennium, novel ideas about how to better guarantee access to education for persons with disabilities were starting to emerge in the policy-making arena. This led to the publication of a policy document entitled ‘Special Education Needs and Inclusive Education in Mauritius’ that was eventually embraced by the Ministry of Education and Human Resources in 2006 as a response to the growing need of giving effect to the special educational needs of children with disabilities.16 This policy and strategy document laid emphasis on the necessity of empowering young learners with disabilities to develop their full potential with the ultimate positive import that they become fully-fledged members of society, and accordingly contribute to the socio-economic wellbeing of the nation. Inclusive educational settings for children with disabilities was an ideal that was promoted in the document as a sine qua non condition for effective participation in socio-economic activities. Yet, there was a patent disregard to what really amounted to inclusion inasmuch as the understanding was that ‘children with special education needs should be included as far as possible within the general education environment commonly referred to as inclusive education’.17 The terms ‘as far as possible’ in the policy document has in practice been instrumentalised as a weapon in the arsenal of educational providers to limit as much as possible access to the general education system for learners with severe disabilities who could not conceivably adapt to the mainstream system without appropriate reasonable accommodation or financial and other support measures. While the rationale behind this policy document was to include children with disabilities into the educational system, it did not adequately capture the essence of what inclusion meant.
In its Initial Report submitted to the Committee on the Rights of Persons with Disabilities (the CRPD Committee) on the measures taken to give effect to state obligations under the Convention on the Rights of Persons with Disabilities (the Convention or the CRPD) and the progress made pursuant to article 35 of the CRPD, the State of Mauritius recognised that the 2006 policy adopted a three-pronged approach in order to provide access to education through a plethora of options for learners with disabilities.18 The first approach related to integration of learners with mild disabilities in mainstream schools; the second approach pertained to having separate classrooms for children with severe disabilities in mainstream schools; and the third approach related to having specialised schools for children who cannot be integrated in the mainstream education system by virtue of their specific educational needs. In the Education and Human Resources Strategy Plan 2008-2020, one of the strategic goals
identified by the Ministry of Education and Human Resources was to ‘[e]ncourage and support the inclusion of children with special needs’.19 This was touted as necessary towards their inclusion in the mainstream national education system. And it was reiterated that
the [special educational needs] policy guidelines and strategic framework move forward immediately along specifically defined goals for each year so that by 2020 all children with disabilities in Mauritius will be enjoying access to relevant high-quality education.20
The CRPD Committee has expressed serious concerns in its Concluding Observations on the Initial Report of Mauritius adopted at its 225th meeting on 1 September 2015 about the slow implementation of the 2006 policy on inclusive education with the consequence of ‘the education system remaining mostly segregated and many children with disabilities being completely deprived of any form of education’.21 Another international human rights treaty body, the Committee on the Rights of the Child, has advanced similar reservations in its Concluding Observations on the Combined Third to Fifth Periodic Reports of Mauritius at its 1983rd meeting on 30 January 2015 insofar as the medical model of disability was still perpetuated, with the continuous integration of young disabled learners in the education system based on their specific disability instead of eliminating the physical, socio-economic and cultural barriers that prevent their full inclusion in schools and participation in society.22 In addition, this Committee criticised Mauritian authorities for their lack of adequate measures to move towards a truly inclusive model of education for children with disabilities, with unfitting overreliance on civil society organisations to provide specialised services to learners with disabilities, when this burden should in fact be on the state.
These critical reviews from human rights treaty bodies can perhaps explain why the Government of Mauritius has in 2017 embraced another policy framework and strategy document entitled ‘Inclusive Education for Children and Youth with Special Needs in Mauritius: Concept to Reality’.23 The intended purpose of this national strategic document was to achieve inclusion by creating and providing a conducive environment to all learners in order to ensure equal access to quality education and training. Of particular importance was the application of this new operative framework envisioned to mark a shift to a rights-based model for learners with disabilities. On paper, the policies were a blueprint to be emulated by any active agent for positive change: they placed the spotlight on the fact that injustices and discrimination that have been perpetrated against learners with disabilities over decades cannot be fixed with tinkering or half-measures, as a result of which a paradigm shift was imperative towards the rights-based model recognising that learners with disabilities are rights-holders. In reality, however, the integrated approach to education was maintained insofar as there was mention in the strategic document of the establishment of a regulatory institution in order to guarantee good governance and effective oversight in the special education needs sector. This culminated in yet another law that was not in conformity with internationally accepted benchmarks regarding inclusive education.
The Special Education Needs Authority Act 2018 was enacted to cater for the setting up of a centralised regulatory framework for learners with special education needs.24 The status quo of keeping to specialised schools for disabled students was thus cemented by this 2018 legislation in view of centralising the process regarding curriculum development and assessment for Special Education Needs schools. What is more striking is the reference in section 5(j) of this Act which stipulates that one of the functions of the Authority is to ‘promote inclusive practices to facilitate [an] inclusive learning environment’.25 The very nature and purport of this statute is at odds with the aforementioned section. Indeed, it only pays lip service to the concept of inclusion. As Professor Parsuramen, Founder and President of the Mauritian non-governmental organisation Global Rainbow Foundation, puts it:
[T]he ongoing admission of learners with disabilities in special education needs schools and now the design and implementation of a curriculum for same in the Special Education Needs Authority (SENA) Act definitely do not correspond to the commitment of Mauritius to implement an inclusive mainstream education system alongside special education needs institutions. 26
Having taken the rigorous view that children with severe forms of disabilities - in particular those with severe mental or psychosocial impairments who are institutionalised against their will - cannot be integrated in the mainstream education system, authorities lacking the requisite political will quietly sat on the fence instead of actually fighting for a complete model of inclusion in this new legislation. On the face of it, guaranteeing education for learners with disabilities was the core objective of this law, be that in segregated or integrated settings. But this finally leads to the segregation of learners with disabilities from a very young age.
Another dimension of this law that has assumed enormous proportions in terms of discrimination against children with disabilities is that the onus is placed on children with disabilities to integrate the mainstream school system. Wherever the student cannot integrate the mainstream system, the Act empowers the Authority to devise and implement plans to facilitate the early identification and assessment of persons with special educational needs as well as the setting up of a database of persons with special educational needs. ‘Special education needs’ is defined as ‘the needs of a person with disability which makes learning harder for him than another person of the same age’.27 This in itself is seething with discriminatory undertones and is quite restrictive in scope. It fails to recognise the multiple and intersectional forms of discrimination that persons with disabilities may be subjected to, without reference to inclusiveness in that regard.
A striking example of the disingenuous use of the term inclusion relates to when a former Minister of Social Security, National Solidarity and Reform Institutions explained during parliamentary debates that the ambition was to move towards an inclusive education and ‘that our educational institutions should be ready to accommodate children with disabilities in the mainstream education system’. But in the same breath, the Minister indicated that ‘the Ministry of Education is in the process of creating more special integrated units in the mainstream education institution in an attempt to [enable] children with disabilities to benefit for an inclusive education’.28 The problem regarding inclusion must consequently take into consideration semantics insofar as confusion of terms may lead to confused thinking. The accurate meaning that can be ascribed to inclusive education under international human rights law will be explored in the following section.
[A] process of addressing and responding to the diversity of needs of all learners through increasing participation in learning, cultures and communities, and reducing exclusion within and from education. It involves changes and modifications in content, approaches, structures and strategies, with a common vision which covers all children of the appropriate age range and a conviction that it is the responsibility of the regular system to educate all children. 29
The history and development of inclusive education have been extensively researched and analysed elsewhere and this article will not delve into the intricate details thereof.30 Suffice to highlight that inclusive education should ideally be viewed through the lens of the CRPD. The Convention is the first international treaty which codifies in a single document all the human rights of persons with disabilities. It rejects the charitable and medical models of disability, and goes further than the social model of disability in favour of a human rights model.31 The human rights model acknowledges that disabled individuals are first and foremost right-holders and that this entails the protection, promotion and respect of their rights on an equal footing with others. A rights-based approach thus requires that the normative contents of the Convention are applied to the areas which have a considerable impact on the inclusive education of learners with disabilities.
Article 24 of the CRPD on the right to education does not per se provide a definition for inclusive education. Article 24(2)(b) of the CPRD states that, in the realisation of the right to education, states parties should guarantee that persons with disabilities ‘can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live’. It follows that states parties have a positive obligation to impose an inclusive education system at all levels and lifelong learning without discrimination and on the basis of equal opportunity. This signals the end of the exclusion of persons with disabilities from the general education system. Education providers are required to ensure that laws and policies incorporating disability-based discrimination against learners with disabilities are gradually scrapped and that reasonable accommodation measures are put in place to assist learners with disabilities towards that end. Crucially, article 24(2)(a) of the CRPD recognises that in view of realising the right to education for persons with disabilities, access to the general education system must not be denied on the basis of their impairment. It is not easy to establish a clear-cut definition for ‘inclusive education’ from a literal interpretation of article 24 of the CRPD. But the Committee has remedied this textual defect in its General Comment on article 24 of the CRPD by stating that inclusive education is to be understood as:
- A fundamental human right of all learners. Notably, education is the right of the individual learner and not, in the case of children, the right of a parent or caregiver. Parental responsibilities in this regard are subordinate to the rights of the child;
- A principle that values the well-being of all students, respects their inherent dignity and autonomy, and acknowledges individuals’ requirements and their ability to effectively be included in and contribute to society;
- A means of realizing other human rights. It is the primary means by which persons with disabilities can lift themselves out of poverty, obtain the means to participate fully in their communities and be safeguarded from exploitation. It is also the primary means of achieving inclusive societies;
- The result of a process of continuing and proactive commitment to eliminating barriers impeding the right to education, together with changes to culture, policy and practice of regular schools to accommodate and effectively include all students.32
It has further been observed that the CRPD has ‘reinforced the clause of non-exclusion from any educational level on the basis of disabilities’.33 By virtue of the postulation that economic, social and cultural rights can only be progressively realised, it is deemed reasonable that inclusive education policies cannot be implemented overnight. As a procedural obligation on state parties to international human rights instruments, progressive realisation requires the implementation of several measures in order to make effective the right of its intended beneficiaries.34 It entails effort and commitment from states parties to guarantee that there is an expeditious and effective move towards the full realisation of economic, social and cultural rights.35 In the context of international disability law, article 4(2) of the CRPD states in no uncertain terms that while economic, social and cultural rights should be implemented subject to the maximum available resources of states parties, this should be done ‘with a view to achieving progressively the full realisation of these rights’. In other words, there is a positive obligation upon states parties to design a framework conducive to the proper implementation of the CRPD even if this is carried out incrementally.
Progressive realisation does not minimise the obligation of states to redefine budgetary allocations that should not only aim at special education measures, but more importantly dismantle a segregationist education system in order to build a more inclusive one over time. The CRPD Committee has clamoured for states parties ‘to achieve a transfer of resources from segregated to inclusive environments.’36 This means that there should be a clear plan for the transition to an inclusive model. While the outcome in achieving inclusion is assuredly an integral part of the realisation of this right, it should be highlighted that there is a crucial need to consider more thoroughly the process leading to the outcome; in other words, more emphasis should be placed on the transformation of education systems.37 Realisation of the right to inclusive education dovetails in both a detailed scrutinisation of policies adopted and the budget allotted toward that end. It follows that a law providing for the rights of persons with disabilities may be ineffective and will never translate into reality without proper policies aimed at giving effect to these rights. For instance, the state of Mauritius allocates significant resources to NGOs involved in the provision of special education to disabled students. If these resources were instead redirected toward building inclusive models of education in the mainstream school environment with the critical help of NGOs, it is highly likely that students with disabilities will be able to develop the life skills necessary in order to be included into the community when they grow up to become adults. All of this would not be possible without a proper legal framework that along with adequate public resources ‘play a key role in ensuring equal access to education also through the adoption of positive and special measures in line with Article 24 of the CRPD’.38
Article 24 of the CRPD enshrines not only the value of inclusion but also of quality in education. Inclusion and quality are ‘integral, indissoluble parts of the right to education of all individuals, both being universal in character’ which is directly proportional insofar as true inclusion only exists when quality education is available to each and every student.39 What can be gleaned from this elaborate definition of ‘inclusive education’ from the CRPD Committee is that inclusion is first and foremost a process that involves the identification and elimination of barriers in the general education system in order to ensure that all students - irrespective of their disabilities or other socio-economic status - must have the same opportunity to access the education system. It follows that inclusion is
a process of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers with a vision serving to provide all students of the relevant age range with an equitable and participatory learning experience and the environment that best corresponds to their requirements and preferences. 40
The concept of inclusiveness has been contrasted with differing concepts such as exclusion, segregation and, in particular, integration. Even if the line between integration and inclusion is somewhat blurred, they are in reality distinct from each other. On the one hand, integration can be described as the process ‘of placing persons with disabilities in existing mainstream educational institutions with the understanding that they can adjust to the standardized requirements of such institutions’.41 The integration approach thus focuses ‘solely on enhancing the ability of the student to comply with the established standards’.42 On the other hand, inclusion is a process which recognises:
- [T]he obligation to eliminate barriers that restrict or ban participation, and
- the need to change culture, policy and practice of the mainstream schools to accommodate the needs of all students, including those with impairments.43
This offers a better window into the reality of integration being modelled on an assimilationist approach to require learners with disabilities to adapt and fit into the existing arrangements of the general education system. In effect, the general education system cannot be altered to a more inclusive one if the consequences of integration are to assimilate children with disabilities into the mainstream education system without providing them with the required level of support in terms of reasonable accommodation. As an example, a visually-impaired student could benefit from the same education in a mainstream setting. Yet, without the provision of notes in braille format or a braille machine, the student will not be able to learn on an equal basis with his or her non-visually-impaired peers in the general classroom. The CRPD Committee has stated in no uncertain terms that article 24 of the CRPD does not allow for sustaining two systems of education: a general education system; and a parallel and special education system.44 In the inclusive approach, the focus is on each individual disabled learner since educational planning must be suited for each learner with disabilities. What is certain is that inclusive education requires structural and systemic changes to the educational system and challenging teaching practices in view of accelerating the rate at which learners with disabilities can develop the acquisition of new skills and abilities in a mainstream school environment. The most important aspect regarding inclusive education revolves around the notion that it is not only access to existing facilities in the general education that must be given prominence, but the learning environment itself must be redesigned to support the learning process and other related needs of children with disabilities.
It should be pointed out that the drafters of the CRPD intended for inclusiveness to be an end in itself.45 The means to that end was still inconclusive, thus leaving unclear the scope of where inclusion must take place.46 This implies that article 24 of the CRPD does not explicitly place an onerous obligation on states parties to refrain from setting up special schools for learners with disabilities. But when Mauritius ratified the CRPD on 8 January 2010, it placed inter alia a reservation on article 24(2)(b) of the CRPD on the right to inclusive education of people with disabilities. The argument advanced for this reservation was that inclusive education will be progressively realised alongside special education.47 It follows that Mauritius in fact recognised that the normative contents of that particular article are based on an inclusive model of education where learners with disabilities have the same opportunities in the mainstream education on an equal basis with others. While Mauritius had initially adopted an integration approach, it has recently tried to turn the tide as there is now a move - albeit at a snail’s pace - towards an inclusive approach as demonstrated by the policy documents which have been endorsed by the government over recent years. But perennation of segregation will remain unchallenged unless radical policy changes are brought forward in a bid to promote and protect the right to an equal and quality education for people with disabilities in Mauritius.
The education system in Mauritius has failed to take an enduring whole-of-society approach towards fostering the inclusion and proper assimilation of persons with disabilities into the community. Disabled children are segregated from the very beginning of their education. This segregationist approach to education for learners with disabilities in Mauritius has meant that children with disabilities are denied the opportunity to be placed in the same setting as their non-disabled counterparts. This translates into additional barriers for non-disabled persons to appreciate that impairments are not an anomaly in the anatomy of the human body but also as part and parcel of the human condition insofar as imperfections in the human mind and body are what account for the uniqueness of each individual. Segregation is a discriminatory practice against both children with disabilities and their non-disabled peers. On the one hand, children with disabilities are treated differently on the basis of their disability insofar as it is believed that their physical and mental impairments are a barrier to their effective inclusion into the ‘normal’ and general education system. On the other hand, children without disabilities are denied the opportunity from a young age to appreciate that children with impairments are not so much out of the ordinary.
Children with disabilities are not disabled because of their respective impairments, but instead by the way they are treated by society. As underlined in the CRPD, they are disabled as a result of the environmental and attitudinal barriers that hinder their full and effective participation in the community on an equal footing with their non-disabled counterparts.48 These barriers are reflected in the law and policies related to education, employment and health that deny equal opportunity for disabled persons in the enjoyment of their fundamental rights. Environmental barriers may include physical obstacles regarding access to public buildings such as schools, transportation and other facilities. Attitudinal barriers encompass the mistaken perception that disabled children must constantly be treated differently by virtue of their impairment. This reinforces the negative stereotype that children with disabilities are less intellectually or physically competent than their non-disabled counterparts.
In relation to special education needs students, there is a negative impact associated with how these children develop low self-esteem and how their life opportunities are more often than not profoundly shaped by the experience of segregated education.49 Children with disabilities are thus caught in an intricate web of causal chains, giving them the wrong impression that they should underestimate their abilities, as a result of which they seldom have the impetus to expect, aspire and achieve more in terms of education. The policies adopted by successive governments in relation to the education of learners with disabilities have been nothing but an elaborate façade. What then are the policies and other measures that can be implemented to move from an education system that amplifies oppression and inequality toward a more inclusive one for learners with disabilities in Mauritius?
Sections 3 and 16 of the Constitution of Mauritius of 1968 are the operative provisions on discrimination. However, disability is not listed as a ground for discrimination.50 There have been calls for decades to amend the Constitution in order to enshrine disability as a basis for discrimination, but after many public debates, it has unfortunately been left in limbo.51 The Minster of Social Integration, Social Security and National Solidarity has recently declared that sections 3 and 16 of the Constitution of Mauritius will have to be amended first in view of ensuring that the fundamental rights and freedoms of Mauritian citizens with disabilities are fully respected.52 This is characteristic of decision-making in Mauritius: an unwonted attitude to initiate radical changes that takes into consideration the aspirations, rights and will of the people insofar as this never materialises. A key recommendation is therefore for the state of Mauritius to amend the Constitution in view of bringing it into line with internationally accepted standards relating to the protection of persons with disabilities from discrimination. Accordingly, it is crucial to amend the Constitution before enacting any comprehensive law relating to disability discrimination.
If there is another thing that characterises the law-making process in Mauritius, it is related to the discrimination embedded in the laws already in place. There are a number of laws that directly or tangentially deal with the educational rights (or lack thereof) of persons with disabilities. More often than not, these laws are applied to their full extent so much so that Mauritian citizens with disabilities are treated as second-class citizens. One such law, the Equal Opportunities Act 2008, provides in its section 17(3), that an educational institution may discriminate against learners with disabilities who require special services or facilities to participate or to derive substantial benefit from the educational program of the institution, or even when learners with disabilities could not participate in the program or derive a substantial benefit thereof after these services have been provided.53 Further, as examined above, the Special Education Needs Authority Act 2018 cemented specialised schools as a main pillar of the education system in Mauritius. These laws should subsequently be amended at the same time that the Constitution is being amended to ensure that no derogation on the right to education of learners with disabilities is permissible and that discrimination in the education sector on the basis of disability is purely and simply proscribed.
Another key recommendation for policy-makers to consider would consequently be the enactment of a law designed specifically to protect and promote the rights and interests of persons with disabilities in Mauritius. Since Mauritius ratified the CRPD in 2010, there has been an awakening of national consciousness on the need to enact a comprehensive disability law. Mauritius being a dualist state, the rights contained in the CRPD do not have any direct legal effect unless they are incorporated into a national legislation.54 But it is worth stressing that a comprehensive law on the rights and freedoms of Mauritians with disabilities can only be effective when the necessary preconditions are met for the promotion and protection of these rights and freedoms. Put differently, if the Constitution itself does not recognise disability as a ground for discrimination, it follows that a subsequent law providing for protection against disability-based discrimination may be stifled in a constitutional void. Yet, successive governments have all been complicit in perpetuating the present state of affairs by consistently and utterly failing to articulate an alternative vision for the constitutional and legal entrenchment of the rights of persons with disabilities, which could have positive effects in terms of empowerment and inclusion for the latter in Mauritian society. The law should thus explicitly provide for the right to education of learners with disabilities to be included in the mainstream education system.
Moreover, the elaboration of national action plans is vital in marking a decisive alteration for current institutions and societal initiatives to be imbued with a rights-based philosophy so as to enable persons with disabilities to be treated as people who can exercise their civil and political as well as socio-economic rights on an equal footing with others. The CRPD Committee has stressed the importance of ‘comprehensive and co-ordinated legislative and policy framework for inclusive education must be introduced, together with a clear and adequate time frame for implementation’.55 These measures should not be introduced in a vacuum, without considering exactly how the goals should be attained in order to improve accessibility, expanding support provision and fostering awareness-raising. The promise of national action plans in the realisation of the rights of persons with disabilities cannot be converted into reality without a planning exercise that sufficiently addresses immediate and consistent actions toward the larger goal of empowering persons with disabilities with an appropriate education. It would be desirable to incorporate any national action plan regarding inclusive education into the overall scheme designed for education in the country. Under the guise of inclusive education, the 2017 action plan touched upon earlier in this article did nothing to improve a more inclusive model of education in the general education system nor was there any real inclusive education in the classroom for those who were integrated in the mainstream education system. Without plans designed to provide proper support provisions and teacher training for including students with disabilities into the mainstream education system, the vision of inclusion will remain an unattainable goal.
It follows that current laws and policies that fail to take a rights-based approach to the inclusion of learners with disabilities into the general education system require a sweeping review from top-down processes. In other words, it is incumbent upon state actors to propose laws and policies that give effect to the right of inclusive education as developed under international human rights law for learners with disabilities in Mauritius. This would not mean that civil society organisations will become less meaningful and less relevant to the needs of learners with disabilities in Mauritius. Much to the contrary, NGOs can still play a significant role in the success of including every child in the general education system, to the maximum extent possible. The solutions are simple but there is a patent lack of political will to implement straightforward and unchallenging policies. One simple policy would be to reallocate budgets currently earmarked to special education to guarantee that special educators are trained to be assistants in mainstream schools. Considering the local context, it would be rather difficult and impractical to prevent employees of NGOs from being involved in the education of learners with disabilities. There should be recognition of their prior knowledge in the field that is transferable to their potential role as inclusive education teachers into the general education system. The first step would be to ensure that mainstream schools accommodate students with disabilities irrespective of their physical or intellectual impairments. A second step would then be to train teachers on how to handle students with disabilities in class. NGOs would therefore have a well-defined role in supporting children with disabilities in the mainstream classroom.
In relation to the development of specific transitional measures from the parallel special education model to a more inclusive one, Mauritius can seek inspiration from the US experience in relation to free and appropriate public education for disabled students. Individualised Education Plans (IEPs), although mandated under special education law, are a perfect example of inclusive education planning. As a written document prepared for a named student which specifies the learning goals that are to be achieved by the student over a set period of time, and the teaching strategies, resources and supports necessary to achieve those goals, the IEP is a key instrument that is tailored to the specific needs of the disabled student.56 IEPs have the potential to ensure that the unique needs of every student with disabilities is fulfilled in order for them to reach their full academic potential, while developing life skills within an environment that provide them with an appropriate education and equal opportunities to succeed in life. It is important, however, for the IEPs to identify learning goals and objectives as well as the services necessary in smoothing the learning process for the student.
It has been observed earlier that there is a manifest disregard for what amounts to inclusive education under the CRPD notwithstanding the fact that more than a decade has passed since Mauritius ratified the Convention. Insofar as Mauritius maintains the reservation it placed on article 24(2)(b) of the CRPD, which caters specifically for the right to inclusive education of persons with disabilities, it will not be surprising to attest that the status quo will remain unchallenged. This is why it is of utmost importance that civil society organisations, and disabled persons organisations in particular, take it upon themselves to challenge the siloed thinking that in the third decade of this new millennium needs to be actively resisted in order for persons with disabilities to get in the driving seat to reclaim their inherent dignity as human beings. Particular attention should also be paid to awareness-raising of personnel within the education system. Closely related to the issue of awareness-raising is that of categorisation processes that represent a significant hurdle in accepting and adopting inclusive learning environments. If students with disabilities are to be truly included in the general education system, ‘this cannot involve special education thought and practice’.57 In categorising and naming students as special, the wrong perception that these students are different from others is perpetuated in the mind of the reasonable person so much so that these students are not valued in present mainstream schools and society. 58
As correctly expressed, ‘upholding a segregated education system would be in clear contradiction with the prohibition of discrimination, and would resuscitate the principle of ‘separate but equal’ for a particular group of disabled people.59 However, considering the local context of the deeply entrenched system of special education in Mauritius, it would be unrealistic to expect the dismantlement of this deeply prejudicial system overnight. In other words, it would not be possible to close all special education schools at once. That would paradoxically have the unintended effect of discriminating against children with disabilities who are currently placed in special education schools inasmuch as they would no longer be in a position to receive an education. Children with disabilities are already subjected to negative stereotypes and stigma attached to their supposed unsuitability to the mainstream education system. The most significant obstacle to inclusion of learners with disabilities in mainstream education lies at the systemic level, as a culmination of decades of policies and structures that has shaped an attitude and disposition resistant to change.60 Awareness-raising therefore becomes an important tool in enabling a paradigm shift in the mindset of people to accept incremental changes leading ultimately to the desegregation of special schools in view of including all learners with disabilities in a single education system.
While the Sustainable Development Goal 4 of the UN Department of Economic and Social Affairs aims to ensure access to all levels of education and vocational training with regard to the most vulnerable persons by the year 2030, it may in reality be highly difficult to enable every child with disabilities to participate in the mainstream education system.61 For students who have severe forms of intellectual, behavioural and psychosocial impairments, the provision of reasonable accommodation and support measures may not effectively enable them to receive quality education on an equal basis with their non-disabled counterparts. It should be noted that, as mentioned earlier, article 24 of the CRPD does not expressly prohibit states from resorting to special schools on this matter. Nor does it require states to adopt special schools for students with severe forms of impairments. States parties to the CPRD thus have leeway in prolonging recourse to special education for learners with disabilities. Raising awareness on segregation in the education system can however enable contemporary society to start looking at special education in a less favourable light.
The barriers erected by society in not recognising and respecting the rights of all learners to participate in the public-school education system are unlikely to be dismantled unless profoundly- and culturally-rooted perceptions of disability are addressed in any meaningful way. It is of crucial importance to reshape attitudinal and cultural barriers that hinder the participation of persons with disabilities in the general education system.62 If negative perceptions regarding persons with disabilities are to be reviewed, there is an urgent need to craft an inclusive vision which promotes understanding of how persons with disabilities have the right to participate in the socio-economic affairs of the country. Awareness-raising in terms of identification of the various means and reasons for accessing the education system may lead to better and more far-reaching outcomes for children with disabilities. Insofar as a radical shift is not fashioned in the general psyche of the population about the acceptance of persons with disabilities in all aspects of social, economic and cultural life, it will be a near impossible task to develop an inclusive society that takes the aspirations and needs of every citizen on the basis of access to equal opportunities, and in particular in the realm of education.
Acceptance of the role of persons with disabilities within the socio-economic activities of the country can become a reality if awareness-raising campaigns are not only directed to those in society who are deeply concerned about the chronic and systemic deficiencies to which persons with disabilities are subjected to, but directed in particular to multiple audiences who are not necessarily aware of the weight of suffering associated with being a disabled person in a blinkered society. Awareness-raising campaigns must thus focus on how to breakdown stereotypes and stigma associated with persons with disabilities. In the context of education, this means that these campaigns should explicitly target children and teachers in the general education system in view of generating a radical shift in the mindset of people toward better understanding and acceptance of those with disabilities. As has been observed, the development of more inclusive educational environments ‘confronts traditional discriminatory attitudes towards disabled people within society and facilitates a fundamental shift in social perspectives’.63
The way forward in empowering learners with disabilities to exercise their right to education on an equal basis is in the adoption of incremental processes in doing away with the special education system. Negative perceptions on the inability of learners with disabilities to successfully integrate the general education system cannot be altered overnight. It is only by educating the population about the rights-based philosophy espoused in the Convention that it will be possible to generate more inclusive ways of thinking about difference and making an effective contribution toward the upliftment of the educational potential of disabled learners. There should thus be a gradual transition to an inclusive model of education while enabling special education to operate until it is completely phased out from the current education system. The role of campaigning is instrumental in that regard.
It is beyond doubt that Mauritius has more to gain by using the enormous untapped potential of its disabled population, with the spillover effect of creating prosperity by providing equal opportunity and access to wealth for people with disabilities. Specialised and separate education systems ‘often provide a lower standard of education and decrease their pupils’ future chances of life’.64 There is thus an economic argument that can be raised to convince policy-makers leery of the costs associated with the financial burden that veering toward an inclusive education system could impose on the state. This argument does not rest on the premise that inclusive education will be immensely beneficial to society in the long term. Yet, both UNICEF and the OECD have ascertained that inclusive education systems are less costly than segregated school systems.65 The extensive funding of special education schools will arguably never achieve the desired outcome of an inclusive model of education for all students alike. It is incumbent upon policy-makers to invest into more inclusive models of education for learners with disabilities in Mauritius. However, if these funds are redirected in view of implementing the right to inclusive education for students with disabilities in the mainstream education system, it is likely that these funds will be insufficient, for which more investment may be required in the short term. In other words, this will bring additional costs to placing students with disabilities in the general education system. But, while states may not recoup these investments in the near future, it is highly likely that inclusive education will become profitable in the long term. 66
There are clear indications from research around the globe that inclusive educational settings confer both considerable short-term and long-term benefits for learners with and without disabilities.67 Students with disabilities placed in the mainstream educational settings tend to develop stronger social and academic skills, and are less likely to develop behavioural problems and drop out of school.68 As the wheel in the machinery of the education system grinds at a faster pace with the inclusion of all children, students with disabilities are more likely to continue their education to high school, tertiary levels and beyond. These students are thus empowered to contribute to their community when they have the means through employment to live independently. The need to grapple with the disconnect between the general education system and the inherent unequal nature of separate educational facilities will yield to long-term positive results for the socio-economic well-being of the country. It is therefore absolutely necessary to desegregate the parallel special education system into a single inclusive education system for every citizen.
Poverty is closely linked to disability and is both a cause and consequence of disability. The World Bank has maintained that 15 per cent of the world’s population have some form of impairment and are more likely to experience the adverse socio-economic disadvantages associated with the discrimination they face on the basis of their disability.69 One fifth of the poorest people around the globe live on less that one dollar daily. They lack access to basic necessities such as adequate shelter and clean drinking water. This cycle of poverty will not be broken until these people are provided with adequate healthcare and education facilities which are in fact essential amenities for ensuring a decent survival in this context characterised by intense cut-throat competition. The inextricable link between poverty and disability constitutes an autocatalytic process that feeds itself. With these additional challenges, persons with disabilities are caught up in a process that increases and disseminates the scourge of poverty. But access to an inclusive education system can remedy the disparities that have been entrenched in the socio-economic structure of society since independence. Public education can thus act as a bridge to provide disabled students with the foundational tools to enter into the job market and effectively compete on an equal footing with their non-disabled counterparts.
It is important to further consider the long-term effects of special education on society. Insofar as students with disabilities placed in special educational settings are not afforded with the same opportunities for post-secondary and tertiary education, it would be logical to conclude that it will be much more difficult for them to access the job market when they become an adult. Among the people with disabilities who are 16 years and above in Mauritius as of 2011, 82.8 per cent were economically inactive, out if which 50 per cent of them have given ‘disability’ as the reason for their unemployment status.70 The International Labour Organisation explored how the exclusion of persons with disabilities from the labour market has profound negative implications for the economic development of countries around the world.71 One empirical study has even found that ‘the ways to access the job market [are] determined by levels of education among persons with disabilities’, with ‘lower average education levels [being] one of the specific features inherently related to employment of persons with disabilities’.72 In yet another study on the economic costs of exclusion of people with disabilities from low and middle income countries, evidence led toward a finding that ‘[e]xclusion from education may lead to lower employment and earning potential among people with disabilities’.73 This results in increasing the likelihood of falling into the poverty trap while also limiting national economic growth.74
In order to be in a position to measure the progress in the implementation of the right to inclusive education, the use of human rights indicators can be helpful in monitoring the ongoing measures that are implemented over a set period of time. Human rights indicators provide specific and practical tools in the enforcement of human rights and evaluating their implementation. They can be defined as
specific information on the state or condition of an object, event, activity or outcome that can be related to human rights norms and standards; that addresses and reflects human rights principles and concerns; and that can be used to assess and monitor the promotion and implementation of human rights.75
Following the approach devised by the UN High Commissioner for Human Rights, a three-pronged assessment of the structural, process and outcome indicators can help inform the status of implementation and enforcement of the right in question, including the right to inclusive education.76 With particular regard to inclusive education, the structural indicators could focus on the law, financial planning and observing institutions; the process indicators could focus on accessibility of the education system, support and reasonable accommodation measures available to students, adaptable curricula, teacher training and capacity-building, and awareness-raising campaigns; and the outcome indicators could rely on attendance, completion of studies and drop-out levels, while also taking into consideration the various social and environmental attitudes in general schools.
It has become increasingly evident that progress toward inclusion in the realm of education for learners with disabilities in Mauritius has been inexplicably inconsistent, and so-called inclusive policies advocated by successive governments have had little tangible effects in practice. In order to break free from the chains of this segregationist approach where the education of disabled learners developed in parallel to that of their non-disabled peers, a radical overhaul of our approach to education is warranted. Towards that end, adopting a rights-based approach to inclusive education can have profound implications for students with disabilities when they are provided with the same educational opportunities within mainstream settings on an equal basis with others. It is not the disabled student who should adapt to the school system, but rather it is for education providers to adapt to the particular needs of students with disabilities.
The series of measures that have been recommended in this paper require the collective participation of every stakeholder in the provision of education in Mauritius. First, the authorities have to amend the Constitution and discriminatory laws that are acting as a significant barrier for learners with disabilities to be treated as equals under the law. Law-makers should design a comprehensive law that gives effect to the right to inclusive education of disabled learners, setting out the proper framework that will best ensure the transition to an inclusive system. But enacting a new law should be followed by clear action plans setting out clear timelines for the transition to, and implementation of, an inclusive education system. The role of civil society organisations in that process must not be underestimated. Second, this paper has argued that siloed thinking must be challenged by more actively educating the population on the rights of persons with disabilities through awareness-raising campaigns. Finally, the economic argument that inclusive education may be socio-economically more beneficial for both the state and for learners with disabilities has been advanced insofar as the current system is not providing genuine remedies for the empowerment of persons with disabilities.
This paper has offered recommendations in view of weeding out the inefficiencies deeply-rooted in the parallel special education system in Mauritius, with the hope of a long-term establishment of a more inclusive model of education. Informed by a rights-based approach whereby learners with disabilities are entitled to their right to education on an equal basis with others, policy-makers have the ethical and moral responsibility to develop an appropriate set of legal and policy tools for these learners to be in a position to vindicate their right to education. Current thinking and practice on the defunct charitable model of disability prevalent in society must be vehemently opposed. Challenging the status quo will have a broad impact on the empowerment and promotion of the social, economic and political inclusion of persons with disabilities within society. Disabled persons should first and foremost be considered as rights-holders, rather than second-class citizens who are the subject of pity and charity. This is the ‘rights’ way forward.
1. See G Chung Kim Chung & C Dalais ‘Inclusive Education: A Mauritian approach to the inherent rights of the child’ in M Garcia et al (eds) Africa’s future, Africa’s challenge: Early childhood care and development in Sub-Saharan Africa (2008); S Grech & K Soldatic (eds) Disability in the global south: The critical handbook (2016); N Phasha et al (eds) Inclusive education in African contexts: A critical reader (2017).
2. Government of Mauritius, Education Act 1957 https://supremecourt.govmu.org/HighlightDoc/THE%20EDUCATION%20ACT%201957.pdf (accessed 19 May 2021 ).
3. See The Ministry of Education, Culture and Human Resources ‘National report of Mauritius: The development of education’ (2008) http://www.ibe.unesco.org/fileadmin/user_upload/archive/National_Reports/ICE_2008/mauritius_NR08.pdf (accessed 19 May 2021) ; AR Foondun ‘Private tuition in Mauritius: The mad race for a place in a “five-star” secondary school’ IIEP research and studies programme: Increasing and improving the quality of basic education Monograph 8 (1992) https://unesdoc.unesco.org/ark:/48223/pf0000092320/PDF/92320eng.pdf.multi (accessed 19 May 2021) (See Chapter II for a thorough description of the education system in post-independent Mauritius).
4. See website of The Ministry of Education of Mauritius for the various amendments https://education.govmu.org/Pages/Legislations/Legislations.aspx (accessed 19 May 2021).
5. The Ministry of Education of Mauritius ‘Inspiring every child: Nine year schooling’ https://education.govmu.org/Documents/educationsector/nys/Documents/NYCBE%20Booklet.pdf (accessed 19 May 2021).
7. The Ministry of Education and Human Resources, Tertiary Education and Scientific Research ‘Free education in tertiary education institutions’ (2019) https://education.govmu.org/Documents/educationsector/Documents/2019/Communique %20250119.pdf (accessed 19 May 2021).
8. Statistics Mauritius ‘Detailed statistics relating to education in the pre-primary, primary, secondary and post-secondary sectors’ (2020) https://statsmauri tius.govmu.org/Documents/Statistics/ESI/2020/EI1543/Edu_Yr20.pdf (accessed 19 May 2021).
10. The Mauritius Institute of Education website http://portal.mie.ac.mu/ (accessed 19 May 2021 ).
11. The Tertiary Education Commission ‘List of indicative priority fields of study 2017/2019’ (January 2017) http://www.tec.mu/pdf_downloads/pubrep/LIPFS_070317.pdf (accessed 19 May 2021).
14. Think Mauritius ‘Rethinking the education system in Mauritius’ (14 March 2019) 9 https://www.thinkmauritius.mu/documents/rethinking-education-system.pdf (accessed 19 May 2021).
15. See The Ministry of Social Security, National Solidarity and Senior Citizens Welfare & Reform Institutions ‘National policy paper & action plan on disability: Valuing people with disabilities’ (2007) https://www.mindbank.info/item/2675 (accessed 19 May 2021).
16. The Ministry of Education and Human Resources ‘Special education needs and inclusive education in Mauritius: The policy and strategy document’ (2006) https://education.govmu.org/Documents/educationsector/Documents/Special%20Educa tion%20Needs/sen.pdf (accessed 19 May 2021).
19. The Ministry of Education, Culture and Human Resources ‘Education and human resources strategy plan 2008-2020’ (October 2009) https://education.govmu.org/Documents/Documents/Publications/EHRSP%202008-2020.pdf (accessed 19 May 2021).
23. The Ministry of Education and Human Resources ‘Inclusive education for children and youth with special needs in Mauritius: Concept to reality’ (27 October 2017) https://education.govmu.org/Documents/educationsector/Documents/Special%20Educa tion%20Needs/Salient%20Features%20Startegy%20Doc%20(1).pdf (accessed 19 May 2021).
24. Special Education Needs Authority Act 2018 https://mauritiusassembly.govmu.org/Documents/Acts/2018/act1818.pdf (accessed 19 May 2021).
26. A Parsuramen ‘Pathway to integration or segregation’ L’Express (Mauritius) 21 December 2018 https://www.lexpress.mu/idee/344808/pathway-integration-or-segregation (accessed 19 May 2021).
28. Republic of Mauritius Parliamentary Debates, Sixth National Assembly: First Session 16 of 2016 (12 July 2016) 15 https://mauritiusassembly.govmu.org/Documents/Hansard/2016/hansard1616.pdf (accessed 19 May 2021).
30. K Ballard (ed) Inclusive education: International voices on disability and justice (1999); G Thomas & M Vaughan Inclusive education: Readings and reflections (2004); R Slee The irregular school: Exclusion, schooling and inclusive education (2011).
33. MS Cisternas Reyes ‘Inclusive education: Perspectives from the UN Committee on the Rights of Persons with Disabilities’ in G de Beco, S Quinlivan & JE Lord (eds) The right to inclusive education in international human rights law (2019) 408.
46. G de Beco ‘Comprehensive legal analysis of article 24 of the Convention on the Rights of Persons with Disabilities’ in G de Beco et al (eds) The right to inclusive education in international human rights law (2019) 66.
50. Disability is not a recognised ground for discrimination under the Constitution of Mauritius: Section 3 of the Constitution on Fundamental Rights and Freedoms of the Individual provides: ‘It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex’; Sec 16 on Protection from Discrimination provides: ‘In this section, “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of origin, political opinions, colour or creed ...’.
52. Republic of Mauritius Parliamentary Debates ‘Seventh National Assembly − First Session 27 of 2020’ (28 July 2020) 48 https://mauritiusassembly.govmu.org/Documents/Hansard/2020/hansard272020.pdf (accessed 19 May 2021).
53. Equal Opportunities Act 2008 http://eoc.govmu.org/English/Downloads/Documents/EQUAL%20OPPORTUNITIES%20ACT.pdf (accessed 19 May 2021).
54. A Budoo & RA Mahadew ‘The golden jubilee of the Mauritian Bill of Rights: A milestone to celebrate or time for reflections?’ in M Addaney, MG Nyarko & E Boshoff Governance, human rights, and political transformation in Africa (2020) 91.
56. See L Kupper (ed) ‘A guide to the individualized education’ Programme Office of Special Education and Rehabilitative Services, US Department of Education (July 2000) https://www2.ed.gov/parents/needs/speced/iepguide/iepguide.pdf (accessed 19 May 2021).
60. UNICEF Innocenti Research Centre ‘Promoting the rights of children with disabilities’ (2007) 33 http://www.un.org/esa/socdev/unyin/documents/children_disability_ rights.pdf (accessed 19 May 2021).
61. UN Department of Economic and Social Affairs ‘Sustainable Goal 4’ https://sdgs.un.org/goals/goal4 (accessed 19 May 2021).
63. M Shevlin ‘Moving toward schools for all: Examining the concept of educational inclusion for disabled children and young people’ in G de Beco et al (eds) The right to inclusive education in international human rights law (2019) 108.
65. UNICEF The right of children with disabilities to education: A rights-based approach to inclusive education (2012) 38-39 http://www.unicef.org/ceecis/UNICEF_Right_ Children_Disabilities_En_Web.pdf (accessed 19 May 2021); OECD Inclusive education at work: Students with disabilities in mainstream schools (1999) 22 http://www.oecd-ilibrary.org/education/inclusive-education-at-work_9789264180383-en (accessed 19 May 2021).
69. World Bank ‘Disability inclusion’ (1 October 2020) https://www.worldbank.org/en/topic/disability (accessed 19 May 2021).
70. Statistics Mauritius ‘2011 housing and population census: Analytical report, volume vii -disability’ (June 2015) https://statsmauritius.govmu.org/Documents/Census_and _Surveys/HPC/2011/HPC_AR_Vol7_Disability_Report_Yr11.pdf (accessed 19 May 2021).
71. S Buckup 'The price of exclusion: The economic consequences of excluding people with disabilities from the world of work’ International Labour Office, Employment Sector, Skills and Employability Department, Employment Working Paper No 43 (14 December 2009) https://www.ilo.org/wcmsp5/groups/public/---ed_emp/---ifp_skills/documents/publication/wcms_119305.pdf (accessed 19 May 2021).
73. L Morgon Banks & S Polack ‘The economic costs of exclusion and gains of inclusion of people with disabilities: Evidence from low and middle income countries’ (2015) International Centre for Evidence in Disability, London School of Hygiene & Tropical Medicine https://disabilitycentre.lshtm.ac.uk/new-report-economic-costs-exclusion-gains-inclusion-people-disabilities/ (accessed 19 May 2021).
75. OHCHR ‘Human rights indicators: A guide to measurement and implementation’ UN Doc HR/PUB/12/5 (2012) https://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf (accessed 19 May 2021).
- Khetsiwe P Masuku
- PhD (University of Pretoria), MPH (MEDUNSA); BCommunication Pathology (University of Pretoria)
- Lecturer, University of the Witwatersrand
- Juan Bornman
- PhD (University of Pretoria); M (Communication Pathology) (University of Pretoria); BLogopaedica (University of Pretoria)
- Professor, Centre for Augmentative and Alternative Communication, University of Pretoria
- Ensa Johnson
- PhD (University of Pretoria), MA (University of Pretoria), BA Hons (University of Pretoria), BPrim Ed (University of Pretoria)
- Senior lecturer, Centre for Augmentative and Alternative Communication, University of Pretoria
- KP Masuku, J Bornman & E Johnson ‘Access to healthcare for persons with disabilities in Eswatini: A triadic exploration of barriers’ (2021) 9 African Disability Rights Yearbook 138-159
- Download article in PDF
Eswatini ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol in 2012, subsequently developing the National Disability Policy. Regardless of this ratification and the best intentions of the National Disability Policy, healthcare disparities still exist between persons with and without disabilities. This study aims to describe the barriers experienced by persons with disabilities when accessing healthcare services by focussing on the accounts of persons with disabilities themselves, caregivers of persons with disabilities and healthcare professionals. A further aim was to propose recommendations to address these identified barriers. A qualitative case study approach utilising focus groups was employed. Participants for the three focus groups were purposively selected. Data was analysed using a framework approach, employing Nvivo 1.5 qualitative analysis software. Findings revealed that access to healthcare for persons with disabilities was a challenge in Eswatini due to the unavailability of resources in the form of rehabilitation healthcare practitioners and assistive devices; lack of reasonable accommodation especially for persons with visual and communication impairments; stigma and discrimination; transportation costs as a result of the distance of healthcare services; and the lack of social support grants. Recommendations from this study propose an urgent need for Eswatini to be deliberate in implementing initiatives such as disability conscientisation programmes to address stigma and discrimination and to create an awareness of especially communication and visual disabilities. Intersectoral involvement, community engagement projects as well as addressing policy gaps are essential if Eswatini intends to mitigate these barriers.
Persons with disabilities account for approximately 15 per cent of the global population with almost 80 per cent of all persons with disabilities living in low-and-middle income countries (LMICs).1 In Eswatini the prevalence of disability is 16 per cent.2 Women constitute the majority of persons with disabilities in Eswatini as they make up 58 per cent of the population of persons with disabilities. In total, 82 per cent of persons with disabilities in Eswatini reside in rural areas. Despite having the same healthcare needs as persons without disabilities, persons with disabilities may require additional healthcare as a result of their impairments or the consequences of their impairments.3 However, access to healthcare continues to be a challenge for this population.4 As a result, persons with disabilities experience unmet healthcare needs.5 LMICs such as Eswatini account for the majority of persons with disabilities who experience unmet healthcare needs.6 These unmet healthcare needs are further compounded in persons with disabilities who reside in rural areas, engulfed by poverty and who have limited access to information, education and healthcare.7
Access to healthcare is a broad and complex phenomenon with no single generally acceptable definition.8 Hence it is unsurprising that various scholars interpret access to healthcare differently. It could be argued that the interpretation of access to healthcare is also influenced by context. For the purpose of this study, access to healthcare is defined using Peters et al’s four dimensions framework, as it was developed within the LMIC context. In Peters et al’s 9 framework it is proposed that access to healthcare is the judicious use of amenities according to the needs of the individual and that access encompasses four dimensions, namely availability, acceptability, financial accessibility and geographical accessibility. Peters et al10 further emphasise that quality of care is a fundamental element of each of the four dimensions of their framework.
Access to basic healthcare is an essential and non-progressive human right that every living human being should enjoy throughout their lifespan, regardless of race, gender, religion, political beliefs, economic and social conditions.11 This declaration by the World Health Organisation therefore creates a legal obligation for global, regional and national structures to ensure that the right to healthcare for everyone - most importantly those who have been previously excluded from such services - is protected and upheld. It was thus inevitable that the focus on access as a human rights’ issue would be actioned through the development of copious global policies and conventions. For example, in the eighties, the United Nations12 through the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities declared that disability should be approached from a human rights perspective. Subsequently, access to healthcare for all African citizens is advocated for and emphasised in several articles of the African Charter on Human and People’s Rights on the Rights of Persons with Disabilities.13 Articles 15 and 16 of the Draft Protocol of the African Charter on Human and People’s Rights14 provide for access to healthcare and rehabilitation for persons with disabilities. It is also declared in the draft protocol of the African Charter on Human and People’s Rights that, every person with a disability has the right to healthcare and it further mandates states to ensure that appropriate and effective measures are put in place to ensure that persons with disabilities have access to these services on an equal basis with others.15
The development of the Convention of the Rights of Persons with Disabilities (CRPD) in 200616 was a momentous landmark in the recognition of human rights for persons with disabilities globally. The CRPD is arguably the most important international human rights’ document ever ratified on behalf of persons with disabilities.17 This is partly because the CRPD outlines and delineates the complete array of human rights that apply to all human beings and centres them in the context of the core existence of persons with disabilities.18 The purpose of the CRPD is to ‘promote, protect and ensure the full enjoyment of all human rights and fundamental freedoms by persons with disabilities and to further promote respect for their inherent dignity’.19 Articles 25 and 26 pertain to the rights of access to health and rehabilitation for persons with disabilities respectively.20
Eswatini ratified the CRPD and its Optional Protocol in 2012.21 To enforce the CRPD, Eswatini developed the National Disability Policy of Eswatini in 2013.22 Subsequently, the National Disability Bill of Rights and the National Disability Plan of Action were developed in 2014 and 2015 respectively.23 It is important to mention that to date, the National Disability Bill of Rights is yet to be passed as law which has direct implications for the implementation of the National Disability Policy.24
Access to healthcare for persons with disabilities is specifically addressed in sections 4.9 and 4.10 of Eswatini’s National Disability Policy.25 In an analysis of the National Disability Policy,26 it was established that the policy document had promised access to healthcare to persons with disabilities at primary, secondary and tertiary levels of care. A detailed analysis and findings on the policy analysis is described in Masuku et al.27 In particular, the policy is committed to ensure the availability of free comprehensive healthcare, assistive devices, rehabilitation and counselling by qualified healthcare personnel at all levels of state healthcare to persons with disabilities and their families, with reference to affordable healthcare in private healthcare facilities.28 In the National Disability Policy, specific emphasis was placed on the availability of sexual and reproductive health services for persons with disabilities because historically persons with disabilities in Eswatini have not had access to information and accessibility to services which would enable them to make informed decisions on their sexuality and reproductive health.29 Community awareness and community mobilisation regarding health promotion to prevent disabilities was further promised in the National Disability Policy. Acceptability was also pledged in the National Disability Policy through advocating for accommodating persons with disabilities such as making alternative communication methods such as sign language available, providing health information in accessible formats and ensuring physical access, for example, wheelchair ramps to buildings.
Prior to Eswatini’s ratification of the CRPD, the protection of the rights of every citizen of the country was committed to in the Constitution of the Kingdom of Eswatini.30 Section 30 of the Constitution particularly focuses on the upholding of the rights of persons with disabilities. Moreover, in section 60 the provision of basic healthcare for every citizen of the country was committed to.31 Although Eswatini’s Constitution does not necessarily make specific reference to access to healthcare for persons with disabilities, it does, however, commit to establishing laws that will ensure that persons with disabilities live productive and meaningful lives in Eswatini.32
There is evidence to suggest that globally, there are compliance challenges with the mandates of the CRPD as domestic laws and policies developed and implemented by signatory states in an attempt of domesticating the CRPD, are often not transferred into practice. Ultimately, the vision of the CRPD for persons with disabilities is currently not fulfilled in Eswatini. This challenge is not unique to Eswatini, as other LMICs such as South Africa33 and Malawi34 are also struggling with achieving access to healthcare for persons with disabilities. There has been a call for global research targeted towards the CRPD implementation process in LMICs.35 The results of the lack of implementation of disability legal frameworks in LMICs are observed in healthcare challenges. Therefore, despite the ratification of the CRPD, healthcare accessibility remains a challenge for persons with disabilities in Eswatini. To our knowledge, the experiences of persons with disabilities when accessing healthcare services in Eswatini from their own perspective, have not been previously explored. As such, it is important to determine how persons with disabilities, caregivers of persons with disabilities and healthcare professionals experience the access to healthcare for people with disabilities in Eswatini in order to create a triadic understanding of the barriers faced by persons with disabilities.
Consistent with the aim of determining the experiences of persons with disabilities when they access healthcare services in Eswatini, a qualitative case study research design was employed.36 Three focus groups comprising of participants from a range of backgrounds and with varied experiences of disability - specifically in relation to healthcare - were utilised. Focus groups were deemed appropriate to achieve the aim as it encourages engagement, explanations and reasoning about the subject at hand. In this case, access to healthcare for persons with disability, bringing both agreements and differences to the fore.37 The current study was approved by the Research Ethics Committee of the Faculty of Humanities, University of Pretoria (reference GW20160721HS). The research team comprised of the first author and a MSc student (research fieldworker) who had training in qualitative methods and has experience of living and working in Eswatini.
Participants were eligible to participate in the study if they were 18 years and older, were either persons with disabilities, caregivers of persons with disabilities or healthcare professionals who had knowledge and/or experience with healthcare access for persons with disabilities. Participants were purposively recruited from three different groups, namely persons with disabilities, caregivers of persons with disabilities and healthcare professionals to allow for a diversity of views (Table 1). Moreover, these diverse groups were purposely selected as it was believed that their experiences, understanding and interpretation of access to healthcare for persons with disabilities may differ. In total, 25 participants (15 females and 10 males) with a mean age of 40.6 years (range 30-50 years) were recruited to participate in one of the three focus groups (see Table 1). The first focus group comprised of five persons with disabilities; the second group comprised of six caregivers of persons with disabilities who cared for and accompanied persons with disabilities to healthcare facilities; and the third group of 14 healthcare professionals who treated persons with disabilities on a day to day basis at healthcare facilities. In order to accommodate the large number of healthcare professionals, two separate, but similar focus groups were conducted. The research team which conducted the focus groups were not acquainted with any of the participants.
After ethics approval and permission from the relevant authorities were obtained, persons with disabilities and caregivers of persons with disabilities were recruited using the data base of the national disability organisation and healthcare professionals via a public tertiary state hospital. The study information letter which included an invitation for participants to take part in the study, was shared with the president of the national disability organisation as well as the director of health and the superintendent of the hospital. Potential participants then directly contacted the research assistant telephonically to indicate their interest to participate in the study.
The focus groups with persons with disabilities and caregivers of persons with disabilities were conducted at a dedicated space at the Mbabane National Library, while the focus group with healthcare professionals was conducted in the hospital boardroom. The first author acted as the moderator and facilitated each of the focus groups. Each group began with the participants’ completion of a consent form and a demographic questionnaire. Participants were then issued name tags and given an option to use a pseudonym. The moderator welcomed participants and introduced herself and the research fieldworker. Participants were asked to introduce themselves. The researcher gave a detailed background of the study and explained the purpose of the focus groups. The rules of the discussion were outlined and agreed upon by all participants. The researcher used a self-developed focus group script, asking one question at a time. Each participant was afforded an opportunity to respond. The research fieldworker used a project chart to highlight key discussion points. After the discussion of each question, the researcher captured and summarised the main points and asked participants to confirm the correctness of their responses (namely, member checking). After all the questions had been completed and participants agreed that they had nothing further to add, the moderator thanked the participants for their time and constructive participation and the focus groups ended. Transport and lunch stipends were provided to the two groups of participants comprising of persons with disabilities and caregivers of persons with disabilities, while lunch was offered to the healthcare professional participants. A focus group procedural checklist was followed for all groups to ensure procedural reliability. Reliability was checked by the research fieldworker and was found to be 98 per cent across all three focus groups. Each focus group lasted approximately one hour (ranging between 51.43 minutes and 125 minutes). Focus groups were audio-recorded and transcribed verbatim by the first author and checked by the research fieldworker.
A framework approach to data analysis was employed in this study,38 using NVivo 1.5 qualitative data analysis software to manage the data and to label and explore themes.39 In accordance with the framework approach, the data analysis steps proposed by Gale et al40 were employed to identify, analyse and report on patterns that existed within the data, ultimately described as themes. The first step involved the first author familiarising herself with the data through replaying and re-reading the transcripts to immerse herself in the data. In the second step, the transcripts were subjected to line by line collaborative coding by the first and last author in order to identify patterns in the data. Ultimately a code book was developed. The third step involved searching for themes by combining codes with similar contents. The fourth step entailed refining themes and further dividing them into sub-themes, with excerpts from participants to support the themes. The fifth step involved relabelling themes using short phrases. A theme was accepted if it had several quotes from the data to support it. The final step involved mapping the themes obtained from the data onto the Peters et al41 access to healthcare framework, namely: availability, acceptability, geographical accessibility and financial accessibility.
This study applied the trustworthiness strategies proposed by Shenton,42 namely credibility, transferability, dependability and confirmability. Furthermore, to ensure trustworthiness, triangulation of data from three data sources was used and member checking was done by going through participants’ responses after each question to check for accuracy of reporting. Collaborative coding also ensured credibility as did peer scrutiny via online and onsite PhD forums as well as through a conference presentation where a part of the findings of the study was presented. Trustworthiness was further ensured through providing an in-depth description of the study methodology, which is also available through an audit trail and a detailed reflection journal as well as through representation of a specific inclusion and exclusion criteria facilitated transferability. The three groups recruited from diverse backgrounds ensured that multiple perspectives were obtained.
The findings and discussion of the study are presented according to the four dimensions of the access to healthcare framework as described by Peters et al.43 The specific themes conceptualised under each of the four dimensions are discussed below.
In Eswatini, there appears to be inconsistency with the issuing and maintenance of assistive devices. With the lack of a budget dedicated to the procurement and maintenance of assistive devices by state hospitals, persons with disabilities acquired assistive devices from various sources. Assistive devices were received from donations arranged by community members, donations from non-governmental organisations and sometimes from the national health fund (the Phalala fund), as explained by Caregiver #3: ‘I eventually got courage to speak up [at a community meeting] and I got help because they gave me a wheelchair, even though the wheelchair is not in use now’. Healthcare professional #2 stated: ‘[P]ersons with disabilities do receive assistance from the Phalala fund to get prosthetic limbs from South Africa once-off. The challenge comes when the prosthetics need to be repaired’. However, Healthcare Professional #11 painted a bleaker picture: ‘There are no assistive devices and other communication aids’.
The distribution of healthcare professionals varied across the different healthcare facilities, with the majority of comprehensive healthcare services located in tertiary hospitals. The location of rehabilitation services in referral hospitals presented with access challenges due to the fact that referral hospitals are situated in major cities, far removed from the rural areas where the majority of persons with disabilities reside. Healthcare Professional #6 explained it as follows: ‘Mbabane is probably the only hospital that has all the health services together under one roof, if you would go to hospitals in the periphery, you would find maybe medical and nursing with a physio being the only rehabilitation professional’. Caregiver #4 expressed the same concern: ‘ They [healthcare professionals] say that they have these services, but the problem is that these services are centralised to referral hospitals, yet the people who need these services are [on] the outskirts of town and it’s not easy for them to come through to town’.
Of specific concern was the reported shortage of rehabilitation services due to the general shortage of professionals in this sector as highlighted by Healthcare Professional #11: ‘ There is a limited number of allied professionals especially speech language therapists’. Healthcare Professional #6 attributed this to the fact that rehabilitation posts are not prioritised or budgeted for: ‘ Basically, there is no budget line allocated towards rehab services and this facility has to find a way of making or being able to procure stuff for their department’.
Although it appears as if the Department of Healthcare in Eswatini has made significant strides in making physical access to healthcare facilities through the enactment of wheelchair ramps and wider waiting area passages, this was not consistent across all healthcare facilities. Person with Disabilities #3 explains: ‘At the dispensary, there is a step that makes it difficult for [a] person on a wheelchair to get closer to the medicine counter when one wants to collect medication. When I get my medication sometimes, I need to shout for the attention of the person at [the] dispensary window’.
Communication and health information consideration were also lagging behind. As a result, persons with communication and visual difficulties still experience challenges when consulting with healthcare professionals as well as when they attempt to make sense of health information given to them as can be seen in the following statements from 2 respective participants: ‘When you get to the dispensary, sometimes you find that the tablets that are given to you have instructions that are not written in braille’ (Person with Disability #1); and ‘[t]hey just give you the medication without asking and knowing whether you can read or not or whether you understand what is written on the pills or not’ (Person with Disability #2). Healthcare Professional #3 was also aware of this fact: ‘There are no braille signs for the visually impaired to be able to navigate around the facility’.
Futhermore, Healthcare Professional #6 noted similar challenges for deaf persons: ‘There are nurses and some of us here that have been trained in sign language, but the challenge, I am sure my colleagues will agree with me, that you attend the sign language training, but when you come back you do not use it and then lose it’.
Discrimination was the challenge most frequently mentioned by participants across all three groups. Stigma and discrimination seemed to be prevalent within families of persons with disabilities and their communities, mostly as a result of how communities understand disability and its causes. Healthcare professionals could be seen as an extension of the community that still views disability from a negative perspective. Furthermore, some healthcare professionals harbour negative stereotypes which ultimately influence how they treat persons with disabilities in healthcare facilities, as explained by Healthcare Professional #10: ‘Lack of knowledge of all disability conditions amongst us’, and Healthcare Professional #11: ‘Lack of awareness and experience of healthcare workers/professionals with persons with disabilities’.
Participants particularly mentioned self stigma, wherein caregivers of children with disabilities hid their children away from their communities for fear of judgement as evident in the following statement by Caregiver #4: ‘Some of us hide our children with disabilities because we don’t want our communities and community health workers to know about them. They lock the children in the houses’. Caregiver #1 confirmed barriers related to stigma: ‘So, you don’t want people to know that you had the bad luck of having a disability or having a child with a disability so because you don’t want the community to know, you just hide the child’.
Participants also mentioned that persons with disabilities were excluded by healthcare professionals from certain health programmes, especially those related to sexual and reproductive healthcare as mentioned by Caregiver #4 in the following statement: ‘Even if you do get there [hospital], there is now the struggle with attitude. They will ask you “Mummy how many children do you have?” You will say that this is my fourth. They will tell you that the reason why you ended up with a child with a disability is because you kept giving birth’. Person with Disability #5 further confirmed this finding: ‘Yes, the nurse will ask you what you were doing when you fell pregnant. You feel embarrassed because you feel like nothing, like you have committed a sin’.
Persons with disabilities often depend on social support grants which they normally receive on a monthly basis for their livelihood. In Eswatini, the allocation of social support grants is not a consistent standard procedure as is the case in other LMIC countries. It was reported by participants that some persons with disabilities were receiving social support grants while others did not. In cases where persons with disabilities were receiving these grants, they did not receive the grants consistently. Caregiver #1 explained it as follows: ‘We [persons with disabilities] have been placed under the public assistance [social grant] as a by the way, because it has always been a secret and not everyone has been aware of it. It [social grant] has been a hidden thing and the criteria for receiving is still not clear’.
Apart from the inconsistency of the provision of social grants, there was also a lack of clarity on whether or not healthcare services were free for persons with disabilities despite being promised as such in the National Disability Policy. This was explained by Healthcare Professional #5 in the following statement: ‘Persons with disabilities would not pay for health services, I heard that the ministry would provide free healthcare services’. Healthcare Professional #6 also confirmed this: ‘Free health services for persons with disabilities has not yet been implemented’.
As a result, persons with disabilities experience financial challenges when accessing healthcare as can be seen in the following statements from Caregiver #5 and Healthcare Professional #11: ‘Because we live under difficult financial conditions, we don’t have the money to go up and down to and from the hospital because as a mother I also have other children to look after’ (Caregiver #5); ‘Inaccessibility to public transport, such as having to pay extra for wheelchairs, or paying for the person accompanying the disabled person’ (Healthcare Professional #11).
Due to specific impairments experienced by persons with physical disabilities which render them unable to walk to healthcare facilities, the majority of participants reported the need for transportation to access healthcare. Furthermore, participants stated that rehabilitation healthcare services in primary and community healthcare were not easily accessible to them as most were far from their place of residence as reported by Caregiver #5 in the following statement: ‘ You will go to the hospital and after assessing your child, they will tell you to come once or twice a month for review, but because the hospital is far you can’t keep appointments’.
It was also mentioned that outreach services were not available to persons with disabilities. Transportation is costly for persons with physical disabilities because they have to pay transport for themselves and for their caregivers. Furthermore, they have to pay extra for their wheelchairs to be transported. Negative attitudes of public transport drivers unfortunately do not make the process of taking public transportation easier for persons with disabilities and their families. The following statements from Caregiver #5 explain this more clearly: ‘As mothers, these children become heavy and it becomes a challenge to have to carry them on your back. Especially when you have one with cerebral palsy such as mine’; and ‘Because even with the wheelchairs, you have to leave it at home sometimes because it causes a problem on the bus. You have this insensitive bus conductor complaining about your wheelchair’.
This study aimed to describe the barriers experienced by persons with disabilities when they access healthcare services from a triadic perspective and also aimed to propose recommendations to address these identified barriers. Findings from this study indicate that, despite it having been eight years since the inception of the National Disability Policy of Eswatini, persons with disabilities still experience substantial barriers that hinder them from accessing healthcare services adequately. A large scale study conducted by Eide et al44 in four LMICs, namely Sudan, Namibia, Malawi and South Africa with the aim of identifying the magnitude and impact of specific barriers for persons with disabilities to accessing healthcare, obtained similar findings to those of the current study. Eide et al45 specifically revealed that 10-40 per cent of persons with disabilities do not get to access general healthcare when they need it.
Findings from the study at hand reveal that barriers to accessing healthcare in Eswatini were as a result of the unavailability of healthcare resources - in particular human resources and assistive devices. Human resources, specifically, rehabilitation healthcare professionals such as occupational therapists, speech language therapists, audiologists, physiotherapists and social workers do not have a dedicated budget for their posts. As a result, Eswatini has a limited number of rehabilitation professionals, with the majority of services located in referral hospitals which are in larger towns which are situated far away from rural areas where many persons with disabilities reside - a finding also reported by Bright et al.46 In 2011, the World Health Organisation reported that only a small percentage of persons with disabilities had access to basic rehabilitation services when they needed them, a finding confirmed by the research of Sherry47 and Hussey et al,48 respectively. It is concerning that a decade later similar experiences are still being reported by persons with disabilities. Health rehabilitation is regarded as an important prerequisite for access to all other rights.49 Therefore, the significant contribution of rehabilitation healthcare professionals in addressing and overcoming participation barriers through different interventions which can be focussed on the environment, and on individuals and/or their families, cannot be over emphasised.50
Consistent with findings from studies conducted in similar LMIC contexts such as Malawi, South Africa, Namibia and Sudan by Eide et al;51 Harrison et al;52 and Matter and Eide,53 the findings from the current study also revealed that Eswatini did not have a dedicated budget for the issuing and maintenance of assistive devices. As such, persons with disabilities have no option but to seek assistive devices from community members or from non-governmental organisations. A national fund called ‘Phalala fund’ was mentioned as having been instrumental in assisting with assistive devices. However, it was stated that these assistive devices referred to are devices such as prosthetics which could only be obtained in South Africa. Where devices were obtained through this fund, maintaining them remained a constant challenge due to the lack of a dedicated budget for this purpose.
The accommodation of persons with physical disabilities with the provision of wheelchair ramps and the widening of waiting area spaces - even though this was not the case for all hospitals - was noted in Eswatini. Regrettably, findings revealed that the needs of persons with communication, hearing or visual impairments were not accommodated when accessing healthcare in Eswatini. This could be attributed to the fact that communication disorders, including hearing impairments, are viewed as invisible disabilities.54 In a South African audit, Hanass-Hancock and
Alli55 confirmed these findings where it transpired that half of the facilities in South Africa’s KwaZulu-Natal province had essential features such as ramps, doors and toilets that provided wheelchair access, but almost none provided information in braille or offered sign language interpretation. The lack of reasonable accommodation for these populations, not only impacted on persons with disabilities’ right to access healthcare with autonomy, dignity, privacy and confidentiality, but also had the potential to have life-threatening consequences especially where instructions pertaining to medication were not adequately explained to persons with disabilities in understandable ways. It is not possible to address a person’s right to healthcare without considering the important role of language in fulfilling this right.56 Therefore, it is proposed that healthcare information should be provided in a simplified format and where necessary with visual support or in an auditory format. These findings are echoed in studies conducted by Masuku et al;57 and Orrie and Motsohi.58
With regard to geographical accessibility, there was a general dissatisfaction with the distance of healthcare services in Eswatini, especially the concentration of rehabilitation services in referral hospitals situated in major towns. This finding is supported by Bright et al,59 who revealed that in LMIC’s such as Eswatini, healthcare facilities were mostly situated in urban areas making it difficult and expensive for most people especially those residing in rural areas to access these services. Transportation to healthcare facilities from where persons with disabilities reside, to the facility is thus inevitable. The further the distance is from the healthcare facility, the higher the transportation fare for public transport. As confirmed by Hussey et al,60 the distance to healthcare facilities does impact on persons with disabilities’ financial accessibility of these services. The negative attitudes of public transport drivers towards persons with disabilities further compounded transportation difficulties. In a study titled ‘“You must carry your wheelchair” - Barriers to accessing healthcare in a South African rural area’, the challenges of transportation as they relate to both cost and attitudes was also stressed.61
The fact that, globally, persons with disabilities still do not experience the same access to work opportunities, could lead to a large proportion of them being unemployed.62 With a national unemployment rate of 41 per cent and a poverty rate of 63 per cent in Eswatini,63 the unemployment rate for persons with disabilities in Eswatini is further compounded. This therefore implies a need for social support from the state to support persons with disability financially in their quest to access healthcare services. However, it was found in the current study that there is an inconsistency with the allocation of social support grants in Eswatini, with some persons with disabilities receiving social support and some not. One of the participants mentioned that the social grant: ‘Has always been a secret and not everyone has been aware of it’ (Caregiver #4). Where social support grants were received, they were not on a month-to-month basis. This inconsistency of providing social support grants in Eswatini is contrary to findings from other countries. For example, in South Africa grants are allocated to persons with disabilities to improve their financial situation.64 Although social grants may be offered to persons with disabilities in other countries, it is also important to keep in mind that these grants may not be sufficient, considering that in some cases it may be the only source of income as a result of high unemployment and poverty.65
To conclude this discussion, the South African Human Rights Commission (SAHRC)66 argues that discrimination remains the biggest disability. The statement of the SAHRC also rings true for Eswatini as negative beliefs and stereotypes about the causes of disability continue to perpetuate stigma and discrimination of persons with disabilities when they access healthcare services. Stigma and discrimination are experienced at a personal and a community level as well as at healthcare facilities. Negative attitudes from healthcare professionals, in part because of the lack of knowledge on disability, was confirmed by Eide67 as well as in a study by Hussey et al,68 where all participants cited stigma and negative perceptions towards persons with disabilities in South African society as being the major underlying barrier to health and rehabilitation. Trani et al69 argued that negative stereotypes regarding disability and towards persons with disabilities by healthcare professionals and members of the community, for example public transport providers, stemmed from socialisation and cultural factors resulting in how they treated persons with disabilities. It is therefore important to propose some recommendations to address access for persons with disabilities in Eswatini.
Whether conscious or sub-conscious, stigma and shame are the core catalysts in societies that impede persons with disabilities’ ability to access their rights, including their right to basic healthcare. Stigma and shame regarding disabilities are rooted in the manner in which our cultures and contexts have socialised individuals to perceive disability and ultimately view persons with disabilities and how the community judge what they are capable and incapable of. It tends to manifest itself in the way in which persons with disabilities are viewed and how their value in society is perceived by others. Stigma ranges from the subtle forms of rejection that persons with disabilities experience - sometimes from their own families, such as being hidden from the public eye - to more crude forms of discrimination experienced within communities - such as exclusion from opportunities enjoyed by persons and families without disabilities. As alluded to earlier in this study, healthcare professionals are socialised in holding similar beliefs to those of communities, which results in the perpetuation of stigma and discrimination in healthcare facilities too. Ndlovu70 terms the African view of disability as ‘ambivalent’ in that it depicts disability and persons with disabilities in both a positive and negative light. On the one end, disability is portrayed as burdensome and as a result of an affliction, a punishment, an embodiment of sin, as the works of witchcraft and/or as ancestral anger. While on the other end the African principle of Ubuntu that encapsulates ‘humanness’ dictates that everyone, regardless of social standing should be treated with the dignity that they deserve.71 Initiatives to address access to healthcare for persons with disabilities therefore cannot be done independently of addressing stigma and discrimination.
There is a need for disability conscientisation amongst communities in Eswatini, if attitudes and perceptions about disabilities are to change. Programmes aimed at conscientising communities on disability rights need to be implemented at community level. Communities need to be made aware of the rights of persons with disabilities. At a healthcare level, healthcare practitioners need to be trained on disability rights with specific reference to healthcare rights. Likewise, McConkey et al72 recommend that communities should be educated to understand what causes disability, how to assist persons with disabilities and also highlights that persons without disability should spend time with persons with disabilities, in order for them to realise how similar they are - so called ‘heart knowledge’.
Figure 1 is an example of access to healthcare guidelines that were developed to highlight the core rights to healthcare for persons for disabilities in Eswatini.73 These guidelines were developed for display in healthcare settings to empower persons with disabilities on their right to access healthcare.
Figure 1: Access to healthcare guidelines from Masuku et al74
Persons with disabilities are amongst the poorest in most LMIC,75 yet social influences play a significant part in perpetuating poor and decreased quality of healthcare services. Access to healthcare for persons with disabilities across the lifespan is a systemic challenge that is influenced by social determinants of health. It therefore becomes imperative to address social determinants such as access to early life experiences, education, employment, social support, shelter, employment security and community engagement for persons with disabilities76 if healthcare is to be an achievable goal.
Addressing social determinants of healthcare implies the need for an intersectoral involvement as it cannot be the responsibility of the Department of Healthcare or the Department of Social Development alone. For example, to address the geographical and financial accessibility barriers brought about by the location of rehabilitation services in referral hospitals, the government of Eswatini may want to consider a service delivery model whereby such services are brought closer to communities. The principles of community-based rehabilitation propose that persons with disabilities are able to receive healthcare and rehabilitation services within their communities.77 The World Health Organisation defines community based healthcare workers as members of the very same community who are trained by the department of health in this case, rehabilitation healthcare professionals to provide basic rehabilitation techniques. As such, h ealthcare professionals may conduct community and home visits, while at the same time train community based healthcare workers and families on how to conduct basic rehabilitation or how to implement home programmes in between their visits. Strengthening community programmes might mitigate some of the challenges related to geographical and financial accessibility, while at the same time improve attitudes of community members towards disability and persons with disabilities. This strategy has been implemented in certain parts of South Africa in order to address the shortage of healthcare workers. Mulumba et al 78 posit that community participation is not only a human right, but an essential underlying determinant for realising the right to access health.
It is imperative to determine and communicate the shortcomings of the National Disability Policy of Eswatini in systematic research studies, so that these findings can be considered during the policy evaluation stages. A policy brief was developed to communicate the fact that the policy document has not considered the role of geographical access to services,79 as this is significant in whether persons with disabilities access healthcare or not. The lack of clarity of policy on whether or not the policy was implemented has also been brought to the attention of policy makers. Policy makers have been urged to consider fast tracking the passing of the National Disability Bill of Rights as law. The National Disability Bill of Rights is an integral part of the implementation of the national disability policy. By implementing the bill, the state government of Eswatini would in essence, be committing itself to the realisation of disability rights, including the basic right to healthcare.
The right to healthcare is acknowledged in various international and regional human rights instruments and laws. Eswatini being a signatory to most of these human rights instruments, the CRPD in particular, has committed to the realisation of the right to healthcare. Eswatini’s commitment to the right to healthcare was discernible through the development of the National Disability Policy, the National Disability Bill of Rights and the National Disability Plan of Action. Regardless of the development of these local instruments, the right to healthcare for persons with disabilities in Eswatini is yet to be realised as noticeable in the challenges that persons with disabilities still experience when they attempt to access healthcare.
Human rights legislation serves no purpose if states do not commit to implementing these laws. Eswatini needs to recommit to the process of implementation of the National Disability Policy as there is evidence of significant gaps in the process, particularly related to human, skills and financial resources. The passing of the National Disability Bill of Action is key to the process and should thus be prioritised. Policy implementation should be done in the context of social determinants of health.
The implementation of disability legislation should be done parallel to disability conscientisation, starting at community level. Eswatini should therefore be deliberate in adopting programmes aimed at dismantling negative stereotypes regarding disabilities within communities.
3. See generally T Shakespeare et al ‘Access to healthcare for persons with disabilities’ (2018) www.ohchr.org%2Fdocuments%Issues%2FDisability%@FStandardHealth%2F BackgroundDoc_EGM_Righttohealth (accessed 12 November 2020).
6. World Health Organisation ‘Human rights and health’ (2017) https://www.who.int/en/news-room/fact-sheets/detail/human-rights-and-health (accessed 27 December 2021).
7. J Neille & C Penn ‘Beyond physical access: A qualitative analysis into the barriers to policy implementation and service provision experienced by persons with disabilities living in a rural context’ (2015) 15 Rural and Remote Health 3332.
8. See generally B Jacobs et al ‘Addressing access barriers to health services: an alytical framework for selecting appropriate interventions in low-income Asian Countries’ (2012) 27 Health Policy and Planning 288.
12. UN Department of Economic and Social Affairs ‘Standard rules on the equalisation of opportunities for persons with disabilities’ (1993) https://www.un.org/development/desa/disabilities/standard-rules-on-the-equalization-of-opportunities-for-persons-with-disabilities.html (accessed 27 December 2021).
16. UN General Assembly, Convention on the Rights of Persons with Disabilities (2007) UN Doc A/RES/61/106 (24 January 2007) https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html (accessed 27 December 2021).
33. See generally M Hussey, M MacLachlan & G Mji ‘Barriers to the implementation of the health and rehabilitation articles of the United Nations Convention on the Rights of Persons with Disabilities in South Africa’ (2017) 6 International Journal of Health Policy and Management 207.
35. See generally B O’Hare, D Devakumar & S Allen ‘Using international human rights law to improve child health in low income countries: A framework for healthcare professionals’ (2016) 16 BMC International Health and Human Rights 11.
55. J Hanass-Hancock et al ‘“These are not luxuries, it is essential for access to life”: Disability related out-of-pocket costs as a driver of economic vulnerability in South Africa’ (2017) 6 African Journal of Disability 280
56. HJ Haricharan et al ‘Can we talk about the right to healthcare without language? A critique of key international human rights law, drawing on the experiences of a Deaf woman in Cape Town, South Africa’ (2013) 28 Disability and Society 54.
57. KP Masuku, N Moroe & D van der Merwe ‘“The world is not only for hearing people - It’s for all people”: The experiences of women who are deaf or hard of hearing in accessing healthcare services in Johannesburg. South Africa’ (2021) 10 African Journal of Disability 1.
58. S Orrie & TS Motsohi ‘Challenges experienced by healthcare workers in managing patients with hearing impairment at a primary health care setting: A descriptive study’ (2018) 60 Official Journal of the South African Academy of Family Practice/Primary Care 39.
62. S Bonaccio et al ‘The participation of people with disabilities in the workplace across the employment cycle: Employer concerns and research evidence’ (2020) 35 Journal of Business and Psychology 135.
- Adetokunbo Johnson
- BSC (Nigeria); MA (Kent); MPHIL, DPHIL ((Pretoria)
- Postdoctoral Fellow (University of the Free State)
- A Johnson ‘The voiceless woman: Protecting the intersectional identity under section 42 of Nigeria's Constitution’ (2021) 9 African Disability Rights Yearbook 88-116
- Download article in PDF
This article is part of the author’s thesis submitted at the Faculty of Law, University of Pretoria.
This paper asks: Is intersectional discrimination experienced by women with disabilities or 'disabled' women recognised under section 42 of the 1999 Constitution of the Federal Republic of Nigeria (Nigerian Constitution as amended)? This question is essential for two reasons. First, by asking this question, attention is drawn to the unacknowledged intersectional discrimination experienced daily by ‘disabled women’. Academic writings and research on disability issues have gained momentum in Nigeria. Nevertheless, most research has paid little attention to the plight and the intersectional discrimination encountered by the ‘disabled Nigerian woman’. Consequently, the question is whether the human rights of ‘disabled’ women are adequately protected in Nigeria, where there is a lack of acknowledgement of this kind of discrimination. Second, I explore the prohibited grounds for discrimination encapsulated in section 42 of the Nigerian Constitution. I argue that the listed or related ‘grounds’ perspective adopted by this anti-discrimination section is limited because it fails to accommodate the multiple and intersecting forms of oppression that ‘disabled’ Nigerian women encounter. More importantly, I discuss the decision of Uzoukwu v Ezeonu to demonstrate a possible threefold analysis and implications of a narrow and restrictive interpretation of the section for disabled Nigerian women.
This paper interrogates how section 42 of the 1999 Constitution of the Federal Republic of Nigeria (Nigerian Constitution as amended) addresses intersectional encounters of ‘disabled’1 women or women with disabilities. This interrogation is vital for two reasons. First, I draw attention to the voicelessness of women with disabilities because of the unacknowledged intersectional discrimination they experience in the country. Second, I explore how section 42 of the Nigerian Constitution, as amended, has approached intersectional discrimination by analysing the prohibited grounds for discrimination encapsulated in the section. More importantly, I discuss the decision of Uzoukwu v Ezeonu2 to demonstrate three possible implications of a narrow and restrictive interpretation of the anti-discrimination section for disabled Nigerian women. This analysis underscores how discrimination based on a recognised ground or characteristic is limited in capturing the intersectional discrimination3 encountered by disabled Nigerian women.
In terms of structure, this paper has six sections. Section one is the introduction. Section two attempts to answer the question: who qualifies as a woman with disabilities or a ‘disabled’ Nigerian woman? Section three defines intersectional discrimination, particularly concerning ‘disabled’ Nigerian women. This definition lays a good background for section four. Section four offers a brief analysis of the prohibited characteristics and grounds for discrimination encapsulated in section 42 and the implications of using a perspective that focuses on individual characteristics and grounds in protecting ‘disabled’ Nigerian women. This analysis exposes the limits of section 42 of Nigeria's Constitution as amended and its approach to ‘disabled’ women's intersectional discrimination experience.
Section five discusses how two international human rights treaties approach intersectional discrimination. This discussion focuses on the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) and the African Charter on Human and Peoples' Rights (African Charter) for two reasons. First, the CRPD adopted in 2006 is the first legal and human rights treaty applicable to persons with disabilities globally.4 Second, the African Charter is a regional human rights treaty adopted in 1981 and forms part of Nigeria's local law.5 Section six offers conclusive arguments.
A woman with disabilities is subjected to discrimination at a greater severity in Nigeria. 6 The discrimination encountered by women with disabilities can be linked to deeply rooted sexist, social, cultural and religious beliefs, stereotypes and misconceptions about womanhood and disability prevalent in Nigeria and most African countries.7 Referring to African countries generally, Grobbelaar-du Plessis confirms how the discrimination and violence that women with disabilities experience links to patriarchal tendencies that discriminate against them.8 Popular negative stereotypes usually associated with women with disabilities, namely ‘sick, helpless, childlike, dependent, in need of care and incompetent’, increase this discrimination.9 These negative stereotypes bear a striking resemblance to the traditional ones usually associated with women without disabilities as ‘dependent, passive and needy’.10 False beliefs, assumptions and misconceptions also reinforce the negative stereotypes ascribed to women with disabilities in Africa. One common misconception is the idea that women with disabilities are either asexual11 or hyper-sexual.12
With these misconceptions, women with disabilities in most African countries are considered unsuitable for marriage and motherhood.13 Yet, although paradoxically labelled asexual, women with disabilities are increasingly susceptible to suffer sexual violence.14 This paradox is evident in Nigeria. Narratives describe how men are hypocritically willing to have sexual relations with women with disabilities in private but unwilling to be publicly associated with them.15 Such actions reinforce the increased levels of negative attitudes and violence targeted at women with disabilities that are socially acceptable and commonplace.16 Literature documents how women with disabilities are twice as likely to suffer increased gender-based violence,17 including sexual violence18 and state-sanctioned violence such as forced sterilisation,19 coerced abortion20 and tend to be victims of ritual killings.21
Consequently, literature that connects the severity of discrimination to the intersection between gender and disability is accurate.22 The woman with disabilities is uncomfortably seated at the intersection of gender and disability identity categories while rendered voiceless. Despite the foregoing, the truth is that the plight of and the intersectional discrimination encountered by the Nigerian woman with disabilities has been mostly unacknowledged, downplayed and trivialised. Therefore, the significance of the question raised in this paper becomes clear.
In this section, I attempt to answer the question: Who is the woman with disabilities or the ‘disabled’ Nigerian woman? Understanding disability is essential, considering the linkage between how the term is understood and the legal responses in Nigeria. In other words, if there is no proper understanding of who the disabled Nigerian woman is, it will be difficult, if not impossible, to protect her.
Admittedly, there are no easy answers to this question. This difficulty is perhaps because the question is ambiguous and contentious. For instance, is the disabled Nigerian woman born or made or both? To understand who qualifies as the disabled Nigerian woman, I begin by unpacking and underscoring the ambiguities that such a question invokes.
The ambiguity that characterises the definition and understanding of disability has been widely documented and is undeniable.23 By not explicitly defining disability, the CRPD drafters, for instance, amplify and confirm the ambiguity of the term.24
When writing about women with disabilities or the ‘disabled’ woman in Nigeria, there is a misleading assumption that there is clarity on who this woman is. For instance, when defining disability and determining who qualifies as a woman with disabilities, the concept of disability has been dominated by assuming that she is ‘born’ exemplified by the controversial medical versus social contentions.25 Underlying this contention is whether a Nigerian woman is ‘disabled by her body or society’.26 Bearing these contentions in mind, I outline three interrelated definitions and understandings of who qualifies as a ‘disabled’ Nigerian woman as documented by research.
First, when referred to as the woman with disabilities, this woman is usually portrayed as a victim of a flawed body or mind.27 This portrayal, for instance, traces disability in Nigeria to biology and medicine.28 The International Classification of Impairments, Disabilities and Handicaps (the ICIDH) developed by the World Health Organisation (WHO) in 1980 inspires this portrayal.29 The ICIDH reasoning associates disability with a threefold understanding, namely: impairment, handicap and disability.30 Understood from this perspective, a triple interrelated definition of disability is evident: disability as a product of a medical diagnosis,31 a personal tragedy,32 and an affliction caused by an impairment that requires a form of treatment and cure.33 From this perspective, one can immediately assume that being ‘disabled’ has something to do with and is limited to having a form of impairment. A traditional impairment-based approach of identifying disability in Nigeria is, therefore, apparent. This traditional impairment-based approach of identifying disability, according to Silvers, is where disability relates to being physically, sensorily, or cognitively impaired.34 Yet, this kind of impairment-based approach to identifying disability has been widely criticised, mainly for failing to acknowledge society's role in disablement.35
Second, when viewed as a woman with disabilities, the woman is portrayed as a victim of a flawed society.36 Although the CRPD drafters do not explicitly define disability, its social dimensions are acknowledged.37 With article 1, the CRPD's drafters seemed to suggest that although an individual might be physically, sensorily, or cognitively impaired, disability does not occur until society's lack of access hinders the individual's wheelchair-enhanced body.38 Thus, with this reasoning, the woman is believed to be ‘disabled by her society’.39 However, this position has suffered criticism: for misconstruing disability as something that does not necessarily involve the body but is a consequence of social oppression.40
Third, the ‘disabled’ woman is not necessarily disabled solely by her body or society.41 This portrayal traces disability to the Mercier understanding.42 Here, a disability could be the consequence of a ‘physical limitation, a sickness, a social construct, a perceived limitation or a combination of these factors’.43 In Mercier, the Court found that ‘a person may have no limitations in everyday activities other than those created by prejudice and stereotypes.’44 This understanding provokes contemporary and historical interpretations.
First, a Nigerian woman can be disabled because she has a form of impairment. Second, a woman who has no limitation or any form of impairment may be considered ‘disabled’ because her rights are limited and truncated. These truncated rights could be simply because of the prejudice associated with being a woman. This kind of reasoning is not farfetched. Tracing the original meaning and understanding of disability, Silvers, for instance, mentions how to be ‘disabled’ historically related to when certain groups of persons, particularly women, were given limited and truncated rights.45 Insight shows how historically, to be labelled ‘disabled’ had served as a convenient means to justify inequality and discrimination.46 To say that a person is ‘disabled’ meant that the person was undeserving and consequently deprived of the law's protection. This deduction is obvious from Silvers' point that labelling persons with physical, sensory, or cognitive impairments as ‘the disabled’ also paints the picture that they are ineligible to be equally protected by the law.47 Her point suggests that a woman can be considered ‘disabled’ not only because she has physical, sensory, or cognitive impairments but also because law and tradition deem her incompetent.48
Using the example of citizenship in the United States, Baynton cites how historically, women were considered ‘disabled’ to disqualify, exclude and deny their voting rights.49 He explained how, compared to the male standard, women's presumed physical, mental and psychological defects and deficits were often portrayed in a disabling manner. For example, women expressing emotions and feelings of hysteria was considered irrational and used as an excuse to disqualify them from acquiring citizenship.50 Consequently, women similar to persons with impairments suffered discrimination because of the ‘disability’ attributed to them.
Unfortunately, the above situation is not purely historical but has a contemporary basis for Nigerian women today.51 As scholarship proves, the reality is that Nigerian women are still subject to limited and truncated rights.52 This situation inevitably introduces the thought that Nigerian women can be considered ‘disabled’. As suggested elsewhere by the author, claiming that a Nigerian woman is ‘disabled’ does not necessarily indicate that all Nigerian women might have physical and mobility impairment.53 The inference is that even though Nigerian women might not necessarily have any physical, sensory, or cognitive impairments that entitle them to the ‘disability’ label as used today, the label is earned by prejudice towards women. This prejudice is evident in limited and truncated rights and unequal legal protection in Nigeria.
Nonetheless, these three interrelated definitions and understandings of who qualifies as a ‘disabled’ Nigerian woman discussed above possibly bring to the fore the futility of the question. The insight proves that the question might be potentially unanswerable or as confusing as questions about any identity category.54 Thus, it just might be enough to admit that a woman is disabled if she accepts that she is.
The disabled woman is in a dilemma. This dilemma occurs because mainstream feminist and disability perspectives have ignored the multiple and intersecting identities that a disabled woman embodies in defining who she is.55 On the one hand, in determining who the disabled woman is, disability narratives tend to focus solely on the disability identity category. This situation means that disabled women tend to be defined exclusively by their disability to the detriment of other identities that they possess. The consequence of such a narrow definition that focuses solely on the disability identity category for disabled women is evident.
First, with a definition that focuses solely on the disability identity category, preference is usually accorded to men with disabilities. This preference stems from a patriarchal culture and masculine hegemony, which bestows certain privileges on men with disabilities in Nigeria.56 Several commentators trace this male preference to ‘white middle-class men in wheelchairs’ who introduced the social understandings of disability.57 This argument could explain the disregard for the sex/gender identity category and the resultant disregard of women's specific concerns.
Second, a narrow definition hinged on the disability identity category alone disregards the specific experiences of women with disabilities. This disregard occurs because the disabled women's experience tends to be lumped together as part of the experiences of a perceived homogenous disability group in Nigeria.58 Yet, the truth is that persons with disabilities are not homogenous. One could speculate that regarding persons with disabilities as a homogeneous group is tied to a concern that raising the gendered nature of disability could divide and weaken the strength of the dominant disability narrative.59 This situation could explain why existing research regards ‘gender’ in the dominant disability narrative and ‘disability’ in the dominant gender narrative as irrelevant, resulting in genderless and gender-blind research.60 Such an approach fails to acknowledge the unique experiences and realities that women with disabilities face, resulting in the complete disregard of their experiences and lived realities
On the other hand, the feminist movement tends to focus solely on the sex/gender identity category to the detriment of the disability identity. The consequence of such a narrow definition that focuses on gender as the sole identity category is significant. By such definition, other characteristics and identities such as disability, race, class etc, that disabled women embody are overlooked. This disregard happens where the emphasis is on ableism and powerful images of womanhood.61 Literature has compared the invisibility of women with disabilities to a ‘glass wall’ that needs breaking.
Similarly, a narrow definition of disabled women that relies on gender as the sole identity category assumes a stable and ‘universal woman’ experience and disregards the ambiguities that the concept of womanhood invokes. Nonetheless, this argument does not deny recent efforts by feminists to debunk dominant cultural narratives about disability in the quest for change.62 Feminists have started to explore how the social understanding of disability and feminism can be synergic to tackle disability-based discrimination.63 However, the challenge with feminist disability narratives becomes the tendency to essentialise disability in a way that suggests a false universal experience of gendered disability.64
From the above, the dilemma of disabled women who sits at the intersection of both gender and disability identity categories, therefore, becomes evident. The dominant disability and feminist narratives fail to fully address the multiple and intersecting identities that disabled women embody. This dilemma occurs because these two narratives wrongly assume that identity categories of sex/gender and disability are stable and can be fragmented or separated.
Crenshaw introduced the term ‘intersectionality’.65 In her earliest work, she used the term to describe the unique discriminatory experiences of African American women that the United States’ anti-discrimination law did not anticipate.66 She provides a threefold insight as follows.67
First, she rejects the idea that there is a universal woman experience of discrimination. Using African American women as an example, her insight teaches how individuals such as the disabled women with multiple and intersecting identities can be discriminated against based on several grounds or characteristics simultaneously rather than one or two separate grounds.68 Although the emphasis in her study is on two categories, namely race and gender, she does not discount the fact that there are other categories of identities, such as sexuality, disability, ethnicity and class.69 However, scholars have pointed out a bias to categories of identities, such as race, gender, sexuality, and class, to the detriment of other identities such as disability and age.70
Crenshaw used the experiences of African American women to illustrate how when both race and gender intersect, they create discrimination that is greater than the sum of its parts.71 An intersectional lens draws attention to women's encounters, such as the disabled woman who sits at the intersection of more than one identity category. The disabled woman, because of her multiple and intersecting identities, therefore, experiences intersectional discrimination. Consequently, using Crenshaw's guidance, it is possible to speculate that intersectional discrimination happens when women with disabilities experience discrimination based on their gender and disability, which cumulatively result in oppression that is far greater than if the two identity categories of gender and disability were considered separately
Second, Crenshaw used the experiences of African American women to draw attention to a significant flaw in anti-discrimination law. This flaw forces women with multiple and intersecting identities and the resultant discrimination to depend on a law that adopts a single-issue approach.72
Like many countries globally, Nigeria adopts a liberal singular focus to its anti-discrimination legal and human rights framework.73 Yet, precisely because one cannot be sure on what ground a disabled woman has suffered discrimination, the inadequacies of a law that relies on a single issue to protect individuals, particularly women with multiple identity categories, become evident. The need to shift from the conservative notion that discrimination can be understood only from one viewpoint to the realisation that discrimination against any individual can be based on several individual identities is apparent.
The outcome of Mahlangu v Minister of Labour74 provides some guidance on intersectional discrimination. The experience of a domestic worker who encountered multiple intersecting grounds of discrimination in the workplace was the subject of this recent South African Constitutional Court case. Here, the Constitutional Court employed an intersectional lens to address the constitutional dilemma that section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) presented.75 In the case, the Constitutional Court employed ‘an intersectional approach to discrimination’ and acknowledged the unique vulnerabilities of the complainant with multiple grounds of discrimination. The case involved a domestic worker who drowned in her employer's swimming pool while discharging her duties. Following the victim's death, her daughter, financially dependent on her mother, approached the Department of Labour seeking compensation. Unfortunately, her unemployment compensation application for her loss was denied because domestic workers, primarily black women, were not covered under the COIDA.76
Although a South African case, a threefold lesson can be drawn with respect to the disabled woman in Nigeria. First, similar to disabled women in Nigeria, the case demonstrates the susceptibility of domestic workers to intersectional discrimination because of the intersecting identities they embody. In reaching its decision, for instance, the Constitutional Court noted how the marginalisation of domestic workers rests on the intersecting and multiple grounds of race, class, gender and other grounds.77 Moreover, drawing heavily on the intersectional lens, the court explored the structural and dynamic consequences of the interaction between these multiple forms and grounds of discrimination.
Second, as evident in the case, domestic workers who are mostly poor black women in South Africa are excluded from the definition of an employee in the COIDA perhaps because of their intersecting identities as black, woman and poor. Additionally, a parallel can be drawn with the situation of disabled women in Nigeria with the non-existent and, in some cases, narrow definitions of disability that either accommodate men with disabilities alone or the meaning of disability that is defined solely in the medical sense in Nigeria.
An example is the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018 (2018 Disability Act).78 Section 1 of the 2018 Disability Act provides that ‘a person with disability shall not be discriminated against on the ground of his disability by any person or an institution in any manner or circumstance whatsoever’.79 The use of the male pronoun ‘his’ creates doubts as to whether women with disabilities are included in the protection. This kind of narrow definition of disability potentially hinders and limits legal protection for disabled women.80
Third, one can assume that the same way that domestic workers were invisible and excluded from the COIDA because of their multiple and intersecting identities, disabled women in Nigeria also possess multiple and intersecting identities that potentially render them invisible to the law.
Having established the disabled Nigerian woman's intersectional identity, the argument presented in the next section demonstrates how the lived multidimensional and intersectional realities of disabled women pose distinct challenges to Nigeria's liberal vision of law. Therefore, in the next section, I argue that Nigerian law, by its liberal singular focus, is limited in protecting women, primarily when they, similar to disabled women, encounter intersectional discrimination because of their multiple and intersecting identities.
Non-discrimination and equality are the two foundations of law and, specifically, human rights.81 Equality is the outcome of the right to non-discrimination and the direct opposite of any unfair treatment encountered based on specific unique features.82 Most, if not all, human rights documents acknowledge this definition. The Nigerian Constitution, as amended, is no exception. Its Preamble outlines the Nigerian Constitution's authority and superiority as the supreme law of the land by which everyone is bound.83 As the supreme law, the Nigerian Constitution includes provisions on non-discrimination and equality. However, unlike other constitutions and international human rights treaties, there is no clear definition of discrimination in the Nigerian Constitution.84
With this lack of a definition of discrimination, it is unsurprising that there is no clear and consistent approach to understanding and interpreting section 42 of the Nigerian Constitution.85 The lack of discrimination definition provides an avenue and leeway for inconsistencies and confusion on interpretations of discriminatory actions.
Appropriate interpretation of discriminatory actions should ideally answer three main questions raised by Durojaye and Owoeye.86 First, what should the starting point be in determining whether unfair discrimination has occurred? Second, when will an act amount to unfair discrimination under the Nigerian Constitution? Third, what determines whether there has been a violation of section 42 of the Nigerian Constitution? Unfortunately, precedence from court decisions proves an unwillingness by the Nigerian courts and the Supreme Court as the highest court of the land to offer a clear and consistent approach to interpreting section 42, even where there has been ample opportunity to do so.87 Consequently, where the discrimination is not adequately articulated, appropriate resolutions and remedies might be difficult for the woman who encounters discrimination, much less a disabled woman with a tendency to face intersectional discrimination.
Nonetheless, in trying to understand the right to non-discrimination in Nigeria, scholars agree that there is a leaning and inclination towards liberal or formal roots. Durojaye and Owoeye attest to how the Nigerian courts, in making their decisions, still rely significantly on a formal or liberal perspective in explaining and interpreting section 42.88 In elaborating upon what a formal or liberal perspective on equality signifies, Cain suggests that, as a principle of justice, formal equality easily manifests in a situation where like cases, are treated alike.89 The opposite is also true in that unlike cases are then treated differently or in an unlike fashion.90 Therefore, a liberal or human rights understanding of equality is rooted in an Aristotelian philosophy, which emphasises that likes must be treated alike. In contrast, unlikes should be treated in an unlike fashion.91
- A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion, or political opinion shall not by reason only that he is such a person: a. be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions, or political opinions are not made subject; or b. be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions.
- No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.92
Scholarship has made a threefold assumption concerning the right to this non-discrimination section.93 Durojaye and Owoeye argue as follows:94 One is the understanding and interpretation that likes should be treated in a like or similar fashion. Undeniably, this confirms the narrow, restrictive and formal approach to discrimination. Second is the well-documented gender insensitivity reinforced by section 42. This insensitivity is exemplified in the pronoun usage ‘he’, exposing the patriarchal tendencies inherent in the section.95 Third, there is a notion of a distinction between the public and private domains. This distinction manifests in the Uzoukwu v Ezeonu96 case, where the Nigerian Court of Appeal limited the prohibited acts of discrimination to only those of public actors.97 Such limits ignore Nigerian women's reality that demonstrates that private actors often perpetuate discriminatory acts.98 Arguably, these threefold assumptions and understanding do not necessarily contemplate the intersectional encounters of the disabled woman.99
4.1 Recognising intersectional discrimination: The prohibited grounds in section 42 of Nigeria's Constitution
The significance of the oft-cited case of Uzoukwu v Ezeonu100 lies in its approach to the right to non-discrimination as encapsulated in section 42 of the Nigerian Constitution. In Uzoukwu,101 the Nigerian Court of Appeal, concerning the right to non-discrimination in section 42, referred to the idea that a violation of this section can be applied only where the discrimination falls within the protected grounds. The court mentions that the section cannot be invoked if there are other reasons why a person is discriminated against in addition to the protected grounds. In other words, the decision states that an infringement of section 42 happens only where the discrimination falls within the protected grounds. Therefore, the question that needs answers is what this narrow and restrictive interpretation of discrimination used by Uzoukwu102 implies for the disabled Nigerian woman. It is possible to speculate a threefold analysis as follows.
4.1.1 Recognising intersectional discrimination: Disability as a missing ground in section 42 of Nigeria's Constitution
Section 42 of the Nigerian Constitution and its interpretation indicates that non-discrimination in the Nigerian context has been narrowly defined solely based on the listed grounds. These grounds include the individual's membership of a particular community, ethnic group, place of origin, sex, religion and political opinion.103 Thus, disability is missing as a prohibited ground of discrimination.104 Because of this omission, the Nigerian Constitution, unlike several constitutions in Africa, fails to protect and makes human rights implementation for persons with disabilities difficult.105 What this could mean is that while section 42 of the Nigerian Constitution ostensibly guarantees the right to non-discrimination to all its citizens,106 at the same time, it anticipates that these citizens must have specific characteristics before they can qualify for protection from discrimination.107 In other words, an individual deserves protection only to the extent that the individual embodies certain recognised traits.
The word ‘only’ in section 42(1) supports this claim. The term ‘only’ as used in the section suggests that discrimination is forbidden only on the sole basis of the listed grounds.108 It means that before the section's infringement, it must be clearly shown that the discrimination occurred because of one of the listed grounds.109 Additionally, it could imply that there should be a recognised correlation between the causes of discrimination and the prohibited grounds before an unfair discriminatory act can be deemed to have occurred. Simply put, there must be a connection in the anti-discrimination law between the cause of the discrimination and the aftermath by using the listed grounds.
The above problem is evident in the outcome of Simeon Ilemona Akubo v Diamond Bank.110 In this case, the judge argued that the claimant could not claim that discrimination had occurred because of the non-recognition of disability as a discrete ground for non-discrimination in Nigeria. In other words, the judge's opinion confirms the narrow interpretation that if discrimination occurs on any ground other than those explicitly mentioned in section 42, discrimination cannot be said to have occurred. The assertion is also evident in Festus Odafe v Attorney-General of the Federation.111 This case involved the realisation of the rights of persons living with HIV-AIDS (PLWHA). As argued elsewhere, the court applied a narrow and restrictive interpretation.112 The Court reasoned that ‘the applicants did not qualify for freedom from discrimination because health status is not a ground covered in the section’.113 Such a restrictive understanding and closed, one-dimensional, perspective makes it more difficult for the law to recognise the disabled woman's intersectional discrimination. Intersectional discrimination might occur based on two or more intersecting grounds, particularly when one ground, such as disability, is not even recognised.
We can speculate about the implications of this outcome for a disabled Nigerian woman. She can only be said to be discriminated against if she can prove that an act of discrimination was committed or falls within the characteristics in the protected list in isolation. In a case of discrimination, this situation means that it would be sex/gender that would be considered separately, leaving behind her disability.
Nevertheless, Durojaye and Owoeye argue that section 42's interpretation should be purposive.114 This approach could find support in the European Court of Human Rights case of Glor v Switzerland.115 In this case, the Court held that even though disability is not explicitly mentioned, the grounds on which discrimination is forbidden under the European Convention on Human Rights are not exhaustive. In other words, the Convention includes disability as a prohibited ground. In addition, the progressive ruling in Simeon Ilemona Akubo v First City Monument Bank,116 with similar facts but a different outcome where the judge relied on foreign jurisprudence, can be used to support this claim.
Consequently, bearing in mind this purposive reasoning, the phrase ‘the circumstances of his birth’ in section 42(2) has been interpreted to include disability.117 However, as argued elsewhere, even if disability can be read into this phrase as suggested, disability portrayed in this way limits disability to merely a consequence of the circumstances of birth, when it is clear from Mercier’s definition that disability cannot be limited in this way.118Additionally, the use of ‘his’ in the phrase is distracting because it confirms the gender bias and insensitivity in the section. With such insensitivity and gender bias, it is challenging to read sex discrimination, much less the reading of intersectional discrimination based on the intersecting grounds of sex/gender and disability.119 Therefore, section 42(2)’s reference does not represent a reading of an intersectional approach to non-discrimination for disabled women.
Nevertheless, it is challenging to overlook Simeon Ilemona Akubo v First City Monument Bank's progressive ruling. 120 It is plausible that the progressive order was an exception rather than the rule made because the judge relied on foreign jurisprudence. Unlike the South African Constitution, there is no specific obligation in the Nigerian Constitution that demands deference to international law.121
Similarly, the omission of open-ended phrases like ‘other status’ reveals how an intersectional lens is underdeveloped in Nigeria's anti-discrimination law. A cursory look at section 42 supports this claim. Unlike non-discrimination provisions in most human rights instruments, section 42 does not include the phrase ‘other status’.122 Although grounds of (non)discrimination are usually listed in international instruments, they make room for other emerging grounds by including the ‘other status’ phrase.123 The ‘other status’ phrase has been interpreted broadly by some treaty monitoring bodies to ensure that potential and new categories of prohibited grounds of discrimination are accommodated and systematically considered.124 This interpretation includes recognising the combination and intersectionality of grounds as possibly another protected ground against discrimination. Therefore, scholarship finds that this oversight evident in section 42 contradicts and directly opposes international instruments.125 Thus, the absence of such open-ended phrases like ‘other status’ leads to a limited perception of identity. Such limited perception ensures that the intersectional individual, such as the disabled woman, who cannot place herself neatly into one of the listed and accepted grounds or categories, finds herself voiceless and unprotected by Nigerian anti-discrimination law.
Moreover, the absence of disability from the list of protected grounds in section 42 of the Nigerian Constitution is quite revealing. It makes one question how the characteristics that should and (should not) be included in its list of grounds are determined. This question is relevant because the selection of grounds mirrors, according to Iyer, the dominant narrative about which social features are pertinent (and which are not) when distinguishing between individuals.126 This question is apparent in Nigerian anti-discrimination law. It appears to be unacceptable to mistreat individuals on the grounds of sex, ethnic group and religion, but acceptable to differentiate on the grounds of gender and/or disability. Therefore, this situation suggests that what is included or excluded in the protected list of categories of Nigeria's anti-discrimination law is a matter of politics. Iyer succinctly summarises the argument that I make: once a list of characteristics has been set out in legislation, the list itself begins to appear neutral and permanent. It becomes part of the way things are; it seems as though everyone would agree with this list and no other, for all time.127
Finally, unlike section 42 of the Nigerian Constitution, several African countries like South Africa are beginning to adopt constitutions that recognise multiple and intersecting discrimination following constitutional review and amendments. For example, section 9(3) of the Constitution of the Republic of South Africa, 1996 forbids unfair discrimination on one or more of the listed grounds.128 Such progressive provision creatively interprets and incorporates intersecting grounds into anti-discrimination laws, which is difficult with an archaic provision like section 42.
4.1.2 Recognising intersectional discrimination: Disability as a (non)additive ground under section 42 of Nigeria's Constitution
Recently, disability has been recognised as a prohibited ground of discrimination in Nigeria. Accordingly, on 23 January 2019, the Nigerian Government enacted the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018 (Disability Act).129 Section 1 of the Disability Act stipulates that ‘a person with disability shall not be discriminated against on the ground of his disability by any person or an institution in any manner or circumstance whatsoever’. Although from this provision, disability is now one of the protected grounds of non-discrimination, a twofold issue is evident. First, the traditional impairment-based approach of identifying disability evident in the Disability Act is limiting. It is limiting because it restricts the understanding of disability to functional abilities when insight from the Mercier understanding suggests that this is not necessarily the case. Second, the court's reference in Uzoukwu130 that section 42 cannot be invoked if, in addition to protected grounds, there are other reasons why a person has been discriminated against is interesting.131 Upon a cursory look at this reasoning, one can speculate that the court indicates that it cannot address additive thinking about discrimination. In other words, the court cannot handle the disabled woman's sex discrimination and then, on top of that, deal with another reason, which could be disability-based discrimination.
We can speculate about the implications of this. First, although disability is now a recognised prohibited ground of discrimination in Nigeria, it is possible to assume that the one-dimensional legal approach to interpreting the section still reinforces a medical or functional impairment approach to disability. Moreover, this one-dimensional legal approach leaves no room for other interpretations of disability, such as the one invoked in Mercier. As a result, this understanding does not consider the multiple, complex and intersectional discrimination that disabled women encounter in Nigeria.
Additionally, the Nigerian legal approach to disability as an identity perspective perceives the disabled woman's identity as singular, unitary and stable. This perception could explain why, once a woman is considered disabled in Nigeria, she is de-sexed.132As far as Nigerian law is concerned, this de-sexing means disabled women are either disabled or women and cannot be both at the same time. Yet, identifying only a single ground of discrimination will not adequately represent the lived realities of disabled women since it is usually not clear on which ground the discrimination occurred, whether based on sex/gender or disability or both. Thus, where discrimination is not adequately articulated, appropriate resolutions and remedies become a challenge for disabled women. The limits of the law in speaking to her lived, and intersectional reality is therefore apparent.
Similarly, although Nigeria's Disability Act now recognises disability as a prohibited ground of discrimination, it exposes and makes the invisibility and voicelessness of the disabled woman more apparent. The Disability Act's lack of reference to disabled women illustrates this point. The mere enactment of the Disability Act has proven the tendency of Nigerian anti-discrimination law to categorise and compartmentalise, which does not necessarily tell the entire story for the disabled woman. The woman cannot neatly categorise or compartmentalise herself to fit into the discrete grounds of discrimination that the new Disability Act has neatly laid out for her. This compartmentalisation is challenging because even if it is assumed that only one ground of discrimination seems relevant, it is nearly impossible to prove that a disabled woman was discriminated against solely because of her disability. If disabled women are oppressed because of disability, they are also oppressed because they are women and vice versa. For example, disabled Nigerian women are much more than a ground. The truth is that disabled women are more than several grounds. Disabled women are people who may be inter-subjectively formed and defined, but who is also more than that.133A disabled woman in Nigeria cannot encounter gender discrimination other than as a person with a disability. At the same time, the woman cannot experience disability discrimination other than as a woman.
Further, although disability is now recognised as a prohibited ground of discrimination in the Disability Act, complications emerge from Nigeria's federal legal structure. For instance, in this federal structure, each state in Nigeria has the legislative powers to enact its laws. This legislative power means that states can decide whether to pass their laws regarding disability or domesticate and take on board this newly enacted disability law. Yet, at the same time, states can choose to do neither. These complications make an intersectional analysis difficult, if not impossible, to achieve.
4.1.3 Recognising intersectional discrimination: Disability as a non-interactive and contextualised ground under section 42 of Nigeria's Constitution
The court's reasoning in Uzoukwu134 that section 42 can be infringed only where the discrimination falls within the protected grounds makes an unreasonable assumption. This assumption is that discrimination occurs solely based on prohibited grounds. The problem is evident in Simeon Ilemona Akubo.135 In this case, the judge focused on abstract categories and generalisations rather than on a contextualised approach to discrimination that underlies specific experiences and consequences. For instance, the judge identified the respondent's actions (Diamond Bank) as lacking initiative, untactful and insensitive. Yet, the judge still reasoned as follows: ‘I am very doubtful that it can be reasonably be regarded as one offending the applicant's right to human dignity or discrimination.’136
Specifically, the judge's reference to human dignity in the above case is interesting, considering Pothier's claim that the actual limitation of non-discrimination for disabled claimants might not necessarily stem from the requirement of grounds but its impact discrimination, that is, a human dignity element.137 Unfortunately, the problem with this is that human dignity is a malleable term that can be made to mean anything the judge wants it to mean.138 Therefore, there is justification in asking what human dignity or its absence means for the judge. One can easily speculate that the judge's reasoning stems from a narrow understanding of discrimination far removed from reality. Yet, as shown from the Mercier139 understanding, discrimination does not necessarily occur because of the characteristics of disabled women, for instance, disability or sex, but because of what society thinks disabled women represent as individuals who do not necessarily fit into Nigerian society.
Perhaps this is why disabled women continue to encounter discrimination in Nigerian society. Take, for example, the rape of a disabled woman whose case was not taken seriously.140 The narrative indicates that a disabled woman suffers discrimination because of how society treats her and not necessarily because of any inherent characteristic. The negative attitude that disabled women are not expected to have sex and to have children, yet they can be raped fuels discrimination. From the scenario, it is possible to speculate on two things. First, when disabled women are raped, it is not only because they are women but also because they are both disabled and women simultaneously.
Consequently, the lived encounters of disabled women show that discrimination does not always occur due to the acts of one person against disabled women based on an individual ground. Second, the implication is that disabled women have most likely been discriminated against because Nigerian society thinks she does not fit in and not because of any identifiable grounds. This point is reinforced by the fact that in the cited rape case above, the police did not take the rape seriously - even the family members did not want to pursue it.141 Nigerian society's general approach appears to be that if a disabled woman is raped, she should be grateful that someone wanted to have sex with her.142 From this misleading perception, one can infer that the discrimination that disabled Nigerian women encounters stem from complex structural, systemic and institutional factors instead of inherent characteristics or grounds.
Therefore, we can speculate about the uphill battle that disabled women will face in translating the complexities of the discrimination she has suffered into the discrete, protected categories Nigerian anti-discrimination law recognises. This monolithic legal mindset dictates that related forms of oppression, such as sexism and disability, become mutually exclusive grounds and categories. Such an approach of Nigerian anti-discrimination law means it is almost impossible for an individual to claim discrimination based on simultaneous and intersecting grounds such as sex/gender and disability. Thus, Nigerian law's approach renders disabled women at the intersection of several identity categories voiceless.
In making the above point, I draw inspiration from the Supreme Court of Canada's reasoning in Egan v Canada.143 The Supreme Court of Canada confirmed that discrimination would never be entirely tackled if the focus continues to be on abstract grounds, categories and generalisations, rather than on specific consequences or the aftermath of the discrimination. The court emphasised that:
When the focus is on the grounds for the distinction instead of the impact of the distinction, there is the danger of undertaking an analysis that is distanced and desensitised from real people's real experiences ... More often than not, disadvantage arises from the way in which society treats particular individuals rather than from any characteristic inherent in those individuals.144
The importance of Egan v Canada lies in its striking reasoning concerning Nigeria's anti-discrimination law. Referring to Egan, where the focus is on grounds as exemplified in Nigerian anti-discrimination law rather than on the impact of the discrimination, it cannot speak to lived experiences. The narrow approach to discrimination emphasises the characteristics of a disabled woman rather than society's treatment of her.
With no recorded court cases dealing with disabled women,145 lessons can be drawn from the Mojekwu case in Nigeria.146 The complainant's point was that he was entitled to inherit property under a Kola tenancy land tenure system as the only surviving male relative. The complainant claimed the property was his because of the Oli-Ekpe tradition,147 which prevents daughters in a household from inheriting their father's property. One of the issues that were brought before the Court of Appeal was whether this tradition was discriminatory. The court held that this tradition was discriminatory on the grounds of sex. Although this case is widely celebrated as progressive and successful, it exposes Nigeria's anti-discrimination law's narrow and restrictive stance. The case was won based on procedural matters and legal technicalities, that is discrimination on the grounds of sex is unconstitutional without investigating and overlooking the underlying social inequality and oppression of Igbo women, which are at the root of the case. Pothier makes the exact point: Even where cases are won and expected to engender some kind of social change, what happens instead is that these moments play a role in naturalising the status quo by magnifying one form of legally recognisable and prohibited discrimination.148
The most relevant point here is the court's failure to identify the intersectional positioning of the women that suffered discrimination. In other words, how did sex interact with culture and ethnicity to cause discrimination? This means that the result is still unsatisfactory because it has failed to reflect upon and recognise the woman's lived realities and the extent of the oppression encountered. This argument is validated by Durojaye and Owoeye's description of how the court was preoccupied mainly with ensuring that men and women are treated equally in customary law, without having regard to the consequences of differential treatment.149 The court still relied on a formal perspective on equality without clearly reflecting on women's lived encounters subjected to discrimination daily.
The example clearly shows that Nigerian law does not entirely resolve sexism and ableism because it focuses on observable legally forbidden discrimination and the relatively isolated acts of individuals - the kind that commentators have described as narrow acts of ‘objective discrimination’.150 It is, therefore, crucial to reiterate how discrimination cannot be resolved entirely if the focus remains on abstract and isolated categories rather than specific consequences.151 The danger of exploring the grounds for the distinction instead of examining the impact and aftermath of the distinction is that it does not reflect the lived realities and sensitivity to the actual experiences of disabled women.
5 Recognising intersectional discrimination: Disability as an intersectional ground under international law
Unlike previous human rights treaties, the CRPD is the first human rights treaty to recognise the intersectional discrimination that disabled women face daily explicitly.152 Literature abounds that supports this assertion.153 In its Preamble, for example, the CRPD drafters acknowledged
the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination based on race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status.154
Specifically, General Comment 3 issued by the Committee on the Rights of Persons with Disabilities (CRPD Committee) recognises intersectional discrimination faced by disabled women and girls.155 The CRPD Committee explained the susceptibility of disabled women and girls to intersectional discrimination because of their multidimensional identities.
However, although it is clear that the CRPD considers the intersectional discrimination experienced by disabled women, Ribet points out that this intersectional consideration is weak. For her, the intersectional lens adopted by the CRPD Committee is weak because it is a response to law's essentialist identity tendencies alone.156
The Nigerian government ratified the CRPD and its Optional Protocol.157 Its ratification makes it safe to assume the government has expressed commitment to protect disabled women and girls from intersectional discrimination in Nigeria. However, this commitment can be rightly questioned. These doubts are valid given that since the ratification of the instrument, Nigeria is yet to domesticate the CRPD into local law and fulfil its reporting obligations. Furthermore, there is no provision in the Nigerian Constitution like section 233 of the South African Constitution, allowing courts to defer to international law when making decisions.
Nigeria ratified the African Charter in 1983.158 Unlike the CRPD, the African Charter is part of Nigerian local law by the African Charter on Human and Peoples’ Rights (Enforcement and Ratification) Act.159 By this domestication, some commentators have pointed to Abacha v Fawehinmi160 to argue that this Treaty can be enforced in the same way as Chapter 4 of the Nigerian Constitution. For instance, in that case, the Supreme Court, the highest court of the land, had decided that the African Charter, having been domesticated into local law, could be used by Nigerian courts to apply and grant remedies to human rights infringements under the instrument. This judgment makes the rights under the Treaty justiciable.161
If the previous argument is to be trusted, it makes sense to briefly analyse how the African Charter approaches the intersectional encounters of the disabled Nigerian woman. Article 2 of the African Charter, for instance, provides that:
Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as ... sex.... or other status ... Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law.162
This provision is significant. It stipulates that rights are to be enjoyed without any distinction of any kind, such as sex. Simply put, the provision can be interpreted to mean that Nigeria must ensure that all individuals, including women with disabilities, are equal before the law and that discrimination against women because of their sex/gender is forbidden. In addition, with the other status163 phrasing, although ‘disability’ is not explicitly mentioned in the prohibited list, it has been included implicitly. Thus, it is possible to speculate that the African Charter has allowed some form of intersectional analysis as the phrasing; other status provides for a degree of leeway to accommodate new forms of discrimination that could include intersectional discrimination.164
Another article that deals specifically with equality and non-discrimination of women is article 18(3). It provides that Nigeria as a state party shall prohibit every form of discrimination against women - and the child.165 Article 18(4) provides that: ‘The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.’166
This article is significant because it represents the first time the ‘disabled’ is mentioned in the Treaty. Unfortunately, since it does not define disability, there is an assumption that there is a consensus understanding of the ‘disabled’. Section two shows that this is misleading as disability is still a highly contested and fluid term. In addition, this provision accords the ‘disabled’ special measures of protection. It is possible to speculate that the disabled are viewed from what Oyaro refers to as a rudimentary medical understanding of disability from the language choice.167 As he explains, the use of the language ‘special care’ and ‘special measures of protection’ in the article indicates a medical understanding of disability almost to the exclusion of inherent rights.168 By this article, the specific and intersectional encounters of the woman who could be disabled in multiple ways other than just the medical sense are obscured from view. It is not just about the obscurity of her encounters, but she practically disappears, and her intersectional encounters, unvoiced. Finally, the article also glaringly lumps the needs of the aged and the disabled together to suggest that one can only be disabled when one is aged, or one cannot be aged without being disabled.
Nonetheless, it is essential to note that the intersectional discrimination of disabled women is likely to remain unrecognised. This situation is likely to occur because the African Charter's domestication hardly holds any promise if critics, pointing to the same case of Abacha, argue that the supremacy of the Nigerian Constitution and particularly section 42 is to be upheld over every other law, including international treaties.169
The above analysis demonstrates the problems that Nigeria's formalistic perspective has presented for disabled women. Because it focuses on the prohibited grounds of discrimination, section 42 is limited to addressing and responding adequately to the complex and intersectional forms of oppression and discrimination that disabled women encounter. The anti-discrimination section's problem is its failure to recognise the disabled woman's intersecting grounds of discrimination. I have demonstrated that disability is overlooked in the Nigerian Constitution or reduced to a liberal conception of discrimination, where acknowledging discrimination is only a matter of recognising difference. The argument developed in the paper shows that although disability has now been recognised as a ground for non-discrimination in Nigeria, an approach that focuses on grounds will reinforce the poor use and representation of identities relative to the complexity of identities and experiences.
Therefore, the question is whether Nigeria's anti-discrimination law has any value at all. Nigeria's legal approach is not necessarily useless,170 but it becomes a problem when used in a formalistic manner that Nigeria adopts. Without a careful understanding of the grounds in anti-discrimination law, an analysis of discrimination is limited. An understanding of the dynamics of the grounds is needed to foster a relational understanding of discrimination. This position is consistent with Pothier's point that an understanding of the variety of ways in which discrimination functions will lead to the emergence of a more complex and comprehensive appreciation of equality.171
Some suggestions can be made from the preceding arguments for developing an intersectional analysis concerning the right to non-discrimination in section 42. First, significant research supports the idea that intersectional discrimination should be a separate analogous category on its own. The Supreme Court of Canada's decision in Law v Canada172 supports this claim. The significance of the Law case lies in its reasoning, as suggested by Aylward. In her analysis, she notes that an intersectional discrimination claim by disabled women and their sexual assault and rape encounters could be expressed as a distinct form of discrimination based on stereotypes about disabled women's sexuality.173 According to her, for intersectional claims, the starting point should be a discourse of the various forms of discrimination, followed by an intersectional analysis of the particular form(s) present in the case at hand, rather than as additions to the discrimination encountered by heterosexual, non-disabled, middle-class women, for example.174
In the Nigerian context, an intersectional analysis helps formulate an anti-discrimination law that addresses the reality of different women's lives while helping the courts produce a suitable solution in the circumstances. An intersectional analysis also assists with an increased understanding and revelation of oppression in Nigerian society, its underlying roots and the roles individual Nigerians could play in perpetuating oppression. The counter-argument to this suggestion might be that it still relies on categories, which have been challenged. However, the critical thing to note is that while there is still value in categorisation, disabled women do not fit into rigid categories. Therefore, the categorisation needs to be fluid, open-ended and allowed to intersect. Thus, the list of grounds in section 42 must become more open-ended in a manner that pays attention to the fact that discrimination can occur based on more than one ground and can occur based on several intersecting grounds.
Finally, part of the crucial attention to grounds/characteristics involves recognising the importance of the intersection of grounds/characteristics and resisting the legal bias that concentrates on a single ground/characteristic. Such tendency will lead to falling into the traps of categorisation and compartmentalisation. Moreover, intersecting grounds bring to the fore the idea that discrimination can occur in multiple directions simultaneously.
1. I use the term ‘disabled women’ and ‘women with disabilities’ interchangeably in this article. I use the term ‘disabled’ women to demonstrate and reveal a potential intersectional insight and meaning to disability where a woman in Nigeria is not necessarily ‘disabled’ solely by her body or society as the term ‘women with disabilities’ seems to suggest. See A Johnson ‘Hush woman! The complex “disabled” woman in Nigeria’s legal and human rights framework: A deconstruction’ (2020) 8 African Disability Rights Yearbook 4.
3. The argument that a grounds’ approach is limited in capturing intersectional discrimination is not necessarily a new one. However, what is arguably new is the focus on how section 42 of the Nigerian Constitution tackles the intersectional discrimination experienced by the disabled Nigerian woman.
4. UN General Assembly, Convention on the Rights of Persons with Disabilities: Resolution/adopted by the General Assembly (24 January 2007) UN Doc A/RES/61/106 (2007), adopted by the UN General Assembly on 13 December 2006 and came into force on 3 May 2008.
6. See generally: GE Afolayan ‘Contemporary representations of disability and interpersonal relationships of disabled women in south-western Nigeria’ (2015) 29 Agenda 54 at 58. E Etieyibo & O Omiegbe ‘Religion, culture and discrimination against persons with disabilities in Nigeria’ (2016) 5 African Journal of Disability 192. CJ Eleweke & J Ebenso ‘Barriers to accessing services by people with disabilities in Nigeria: Insights from a qualitative study’ (2016) 6 Journal of Educational and Social Research 113 at 118.
12. T Meer & H Combrinck ‘Invisible intersections: Understanding the complex stigmatisation of women with intellectual disabilities in their vulnerability to gender-based violence’ (2015) 29 Agenda: Empowering women for gender equity 1.
13. Grobbelaar-du Plessis (n 7) 410; J Morris Feminism, gender and disability (1998) 8. Morris shares evidence that shows disabled women get married and have children which dispels this misconception.
15. NSRP & Inclusive Friends ‘What violence means to us: Women with disabilities speak’ (2015) http://www.nsrp-nigeria.org/wp-content/uploads/2015/09/What-Violence-Means-to-us-Women-with-Disabilities-Speak.pdf (accessed 12 May 2021).
17. L Hershey ‘Pursuing an agenda beyond barriers: Women with disabilities’ (1996) 24 Women’s Studies Quarterly 61; See also, S Kamga ‘The rights of women with disabilities in Africa: Does the Protocol on the Rights of Women in Africa offer any hope?’ Barbara Faye Waxman Fiduccia Papers on Women and Girls with Disabilities 2011, Center for Women Policy Studies (February 2011) 9 at 12.
19. AI Ofuani ‘Protecting adolescent girls with intellectual disabilities from involuntary sterilisation in Nigeria: Lessons from the Convention on the Rights of Persons with Disabilities’ (2017) 17 African Human Rights Law Journal 550.
26. VI Umeasiegbu & DA Harley ‘Education as a tool for social justice and psychological wellbeing for women with disabilities in a developing country: The challenges and prospects in Nigeria’ (2014) 14 The African Symposium 121.
32. DFID ‘Scoping study: Disability issues in Nigeria’ (2008) www.ucl.ac.uk/lcccr/downloads/scopingstudies/dfid_nigeriareport (accessed 12 February 2021); K Olaiya ‘Commodifying the “sacred”, beatifying the “abnormal”: Nollywood and the representation of disability’ (2013) 7 The Global South 137 at 139.
36. This point is often made by scholars who argue for the social understanding of disability. For more information on the social understanding of disability. For example, T Shakespeare & N Watson ‘The social model of disability: An outdated ideology’ (2002) 2 Research in Social Science and Disability 9 at 12.
41. See generally scholarship that make this same argument include JS Beaudry ‘The vanishing body of disability law: Power and the making of the impaired subject’ (2018) 31 Canadian Journal of Family Law 7 at 46. Johnson (n 1) 4.
42. For more information on the Mercier case and its potentially intersectional insight, see: Quebec (Commission des droits de la personne et des droits de la jeunesse) v Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v Boisbriand (City)  1 SCR 665 (Mercier). Johnson (n 1) 4.
51. The patriarchal nature of Nigerian society has been well documented in scholarship. See for example, GA Makama ‘Patriarchy and gender inequality in Nigeria: The way forward’ (2013) 9 European Scientific Journal 115. E Durojaye ‘Woman but not human: Widowhood practices and human rights violations in Nigeria’ (2013) 27 International Journal of Law, Policy and the Family 176 at198. NO Odiaka ‘The concept of gender justice and women's rights in Nigeria: Addressing the missing link’ (2013) 2 Afe Babalola University: Journal of Sustainable Development Law and Policy 191.
62. Ngwena (n 54) 613. C Ngwena ‘Developing juridical method for overcoming status subordination in disablism: The place of transformative epistemologies’ (2014) 30 South African Journal on Human Rights 275 at 278.
65. K Crenshaw ‘Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics’ (1989) University of Chicago Legal Forum 139 at 151.
73. E Durojaye & Y Owoeye ‘“Equally unequal or unequally equal”: Adopting a substantive equality approach to gender discrimination in Nigeria’ (2017) 17 International Journal of Discrimination and the Law 73.
81. RE Howard & J Donnelly ‘Human dignity, human rights, and political regimes’ (1986) 80 American Political Science Review 801 at 802; J Donnelly ‘Human rights and human dignity: An analytic critique of non-western conceptions of human rights’ (1982) 76 American Political Science Review 303.
99. Arguably, threefold liberal strand ie universality; atomism and public/private distinction are inherent in Nigeria’s liberal legal and human rights framework. With such a legal mindset, the intersectional encounters of the disabled woman are difficult to contemplate.
102. Uzoukwu v Ezeonu (n 2) 798. The court made other assumptions, such as: the discrimination must be on the basis of law; the discrimination must be seen as an act of government or its agencies; that the discrimination complained against does not apply to other Nigerians.
104. As above. See generally scholarship that also mentions this omission. For example, I Imam & MA Abdulraheem-Mustapha ‘Rights of people with disability in Nigeria: Attitude and commitment’ (2016) 24 African Journal of International and Comparative Law 439 at 440. See also, NC Umeh ‘Reading disability into the non-discrimination clause of the Nigerian Constitution’ (2016) 4 African Disability Rights Yearbook 53 at 73.
128. Sec 9(3) of the South African Constitution provides that; ‘Neither the state nor any person can unfairly discriminate against someone, either directly or indirectly. It is against the law to discriminate against anyone on any of the following grounds: race and colour, sexual orientation, marital status, gender, pregnancy, age, disability, ethnic origin, culture, language, religion and birth’.
153. G de Beco ‘Intersectionality and disability in international human rights law’ (2020) 24 The International Journal of Human Rights 593 at 596. G Beco ‘Protecting the invisible: An intersectional approach to international human rights law’ (2017) 17 Human Rights Law Review 633 at 638.
155. CRPD Committee General Comment 3: Article 6: Women and girls with disabilities (2016) UN Doc CRPD/C/GC/3 dated 2 September 2016 para 5. It recognises that disabled women themselves are not homogenous.
156. B Ribet ‘Emergent disability and the limits of equality: A critical reading of the UN Convention on the Rights of Persons with Disabilities’ (2011) 14 Yale Human Rights and Development Law Journal 155 at 159 & 178.
158. ACHPR ‘Ratification table’ https://www.achpr.org/ratificationtable?id=49 (accessed 20 September 2021).
170. In another article, I discuss Nigeria’s anti-discrimination law fully and how it protects disabled women. The scope of this paper is limited to an analysis of sec 42 of Nigeria’s 1999 Constitution.
- Jorge Manhique
- Marie Curie Research Fellow at Instituto Superior de Ciências Sociais e Políticas (ISCSP), University of Lisbon
- ‘“The devil is in the details”: Ensuring participation and ownership of development programmes for persons with disabilities in Mozambique’ (2021) 9 African Disability Rights Yearbook 117-137
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This study received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement 814249. The content of this publication represents the views of the author only and is solely his responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.
In recent years, the issue of ownership of development cooperation programmes has gained centre stage among donors and recipient governments. This interest has been driven by a concern shared among donor and recipient countries for making aid more effective. Previous research on disability and development has exposed the precarious conditions under which persons with disabilities live, revealing the systemic inequalities between those with and without disability. This research supported the case for increased funding for persons with disabilities through international cooperation, aimed specially at the poorest regions of the world. Nonetheless, we know from previous research that international cooperation may produce perverse results by weakening democratic processes in recipient countries. Still unexplored in the literature of disability and development are the conditions necessary for international cooperation to support the flourishing of a democratic culture in recipient countries. The present paper contributes to this important debate by examining the extent to which those programmes support a dialogue between civil society organisations (CSOs) in general (particularly organisations for persons with disabilities) and state institutions. Primarily, this paper focuses on two ongoing projects in the domain of gender-based violence and social protection, both funded by the European Union (EU) and implemented in Mozambique. The paper draws upon the perspective of the key stakeholders involved in the implementation of those programmes, through semi-structured interviews, to highlight the centrality of the political economy analysis and data disaggregation to ensuring participation and ownership of development programmes by persons with disabilities in Mozambique.
One of the guiding principles in international cooperation is the ownership of development programmes.6 However, in practice, international cooperation can produce perverse results. For instance, studies that assessed the participation of persons with disabilities in national Poverty Reduction Strategy Papers (PRSPs) suggest that their involvement was limited, and in general they remained invisible.7 While in theory the PRSP process aimed to enhance ownership participation and accountability, its design and implementation suggest that governments were more concerned with satisfying donor requirements and deadlines than genuinely committed to meaningful involvement and accountability towards their citizens.8 In this respect, international cooperation may contribute to the democratic deficit.9 Conversely, development agencies can leverage their influence by establishing bridges between civil society organisations construed more broadly, and the recipient government. The history of the PRSP process in Africa and Asia evinces examples of development agencies acting as facilitators, by bringing together government and local civil society organisations (CSOs) including OPDs to work alongside.10 As such, it is important to question the very nature of international development cooperation programmes and discuss explicitly the type of cooperation and conditions that support the development of a democratic culture. The present paper contributes to this important debate by examining the extent to which those programmes support dialogue between CSOs in general, and DPOs in particular, with state institutions.
This paper proceeds as follows. The first section presents the context of the emergence of ownership, emphasising its importance in ensuring aid effectiveness. Additionally, it discusses the centrality of participation in ensuring ownership. The second section, focusing on the General Comment 7 of the Committee on the Rights of Persons with Disabilities (the Committee), articulates specific state party obligations to closely consult and actively involve persons with disabilities in decision-making processes related to the Convention, and clarifies the role of international cooperation. Critically, the section presents a framework for the inclusion and participation of persons with disabilities, which informs this paper. The third section presents and discusses the findings. The paper concludes by highlighting its contribution to the debate on aid effectiveness, ownership and participation within the field of disability and development.
Aid effectiveness has gained centre stage over the past 15 years since the adoption of the Paris Declaration on Aid Effectiveness in 2005. Preoccupation with aid effectiveness grew from the realisation that aid is heavily driven by donors, resulting in deficiencies in the way it is delivered. Chief among these hindrances is the fact that aid programmes were poorly designed for the local context, competing donor agendas in a single country, leading to limited impact of development efforts.11
At the turn of the millennium, in the framework of the Millennium Development Goals (MDGs), donor and recipient countries came together to address the issue of aid effectiveness, that is, how to maximise the impact of aid in recipient countries. For the first time in Rome in 2003, developing countries, donor countries, and the heads of multilateral and bilateral development institutions, came together in the framework of the Development Assistance Committee (DAC) to outline the principles of aid effectiveness.12 The Rome Declaration paved the way to the 2005 Paris Declaration on Aid Effectiveness. The Paris Declaration is built around five core principles, namely: Ownership, Alignment, Harmonisation, Managing for Development Results, and Mutual Accountability.13 Each principle is operationalised by a set of indicators (12 in total).14 Thus, the principle of Ownership, arguably the cardinal principle of aid effectiveness, states that:
- Exercise leadership in developing and implementing their national development strategies through broad consultative processes.
- Translate these national development strategies into prioritised results-oriented operational programmes as expressed in medium-term expenditure frameworks and annual budgets (Indicator 1).
- Take the lead in co-ordinating aid at all levels in conjunction with other development resources in dialogue with donors and encouraging the participation of civil society and the private sector.
- Respect partner country leadership and help strengthen their capacity to exercise it. 15
The Rome and Paris Declarations succeeded in galvanising both donors and recipient countries to introduce reforms aimed to make the aid industry more effective. For instance, recipient countries embarked on a process to draft national development plans or PRSPs, one of indicators of ownership according to the Paris Declaration. The PRSP was employed in low-income countries to operationalise the MDGs, constituting a condition for those countries to qualify for debt relief.16 The aim of PRSP was to foster local ownership of development programmes; participation of local actors, specifically groups in a vulnerable situation; and accountability and transparency, through a functional and capable governance system.17 Despite the new dynamics created by the new discourse on aid effectiveness, critics pointed out the excessive focus on procedures to promote ‘harmonization and alignment’ between donors and recipient countries.18 While acknowledging its importance, its critics maintain that the excessive focus on procedure may overlook the fact that ‘aid Effectiveness is a political issue’.19 In this connection, due prominence must be granted to ‘the factors on both sides of the aid relationship that can work against more effective delivery and put in place incentives that support it’.20
Furthermore, others have criticised the assumptions contained in the blueprint of the Paris Declaration. Faust argues that the ‘vision’ that supports the Paris Declaration ‘ignores the political, iterative [competitive] and experimental character of governance endogenous to democratic settings, which leave little room for encompassing ownership with regard to far-reaching policy reforms’.21 Instead, he argues, the focus must be on ‘procedural ownership - a consensus about core institutional features of democracy and individual rights regarding the basic institutions that guide the political process’.22 However, while stable democracies might be in better position to achieve ‘encompassing ownership’ - the ability to reach consensus of policy content - most emerging democracies (a description that characterises the bulk of recipient countries) are still struggling to set up and agree on the rules of the game.23
As ownership, participation in the design and implementation of development programmes has emerged as a crucial principle of aid effectiveness24 and process indicator of ownership. This stems from the belief that ‘aid will be most effective if its ultimate beneficiaries are consulted and engaged in defining its priorities’.25 Critics have pointed out that the process that led to the Paris Declaration was ‘state centric’, did not engage the ‘full range of stakeholders’, notably CSOs.26 Critically, they pointed out that the ownership indicator, ‘which requires countries to have “operational development strategies”’, was linked to the World Bank’s assessment of countries’ PRSPs, a process which ‘had been accused of taking a tokenistic approach to civil society engagement’.27
This lack of inclusiveness has reverberated at the national level, where CSOs grew increasingly sceptic about the process of drafting the national development plans. Accordingly, critics contend that the process was still primarily driven by donors, and less by a genuine motivation to meaningfully include the most marginalised groups.28 Empirical evidence corroborates the lack of facilitating conditions in recipient countries, namely, limited technical capacity among OPDs to influence the process, tight timelines for consultation, lack of coordination among government departments, and clarity about responsibilities to implement disability policy.29
The Accra Agenda for Action (2008) attempted to redress some of these critical issues in at least two ways. First, the Accra Agenda for Action sought to ‘broaden country-level policy dialogue on development’ by explicitly calling on recipient governments to work more closely with parliaments, local authorities and CSOs in preparing, implementing and monitoring national development policies and plans.30 Concertedly, the Accra Agenda called for donors’ commitment to support efforts to increase the capacity of development actors (mentioned above) including ‘research institutes, media and the private sector - to take an active role in fostering dialogue on development policy’.31 Second, the Accra Agenda for Action emphasised the need to create ‘strong institutions, systems, and local expertise’, as the necessary conditions to enable recipient countries to ‘fully own and manage their development processes’.32
The Accra Agenda for Action introduced several additional commitments. Crucially, it enjoined both recipient and donor’s countries to ‘ensure that their respective development policies and programmes are designed and implemented in ways consistent with their agreed international commitments on gender equality, human rights, disability and environmental sustainability’.33 The latter commitment provides the basis for mainstreaming disability issues in development cooperation programmes. In this connection, the CRPD provides further guidance in relation to the inclusion and participation of persons with disabilities in international cooperation programmes (article 32), as discussed in the next section.
The present section articulates the obligations attached to specific state parties to closely consult and actively involve persons with disabilities in decision-making processes as related to the Convention, and clarifies the role of international cooperation. Outlined below is the relevant framework, formulated on the basis of General Comment 7 of the Committee (GC7),34 to ensure that persons with disabilities are meaningfully consulted and actively participate in public decision-making process.
Although article 4(3) and the GC7 deal primarily with the inclusion of persons with disabilities at the national level, I argue that their remit extends to the context of international cooperation (see article 32). In this respect, the focus is on the extent to which international cooperation supports the given framework, and ultimately the realisation of objectives of the Convention (article 32(1)). Accordingly, in reading GC7, four main pillars can be identified.35
First, state parties must create an enabling legal framework, conducive to the inclusion and participation of persons with disabilities. As such, state parties must draft and approve laws that enable persons with disabilities to create, register and run their own association; moreover, the legal framework must safeguard the rights of associations to represent their constituency, in the design, implementation, monitoring and evaluation of policies and laws. The relevant laws must also ensure that organisations of persons with disabilities have access to funding from different sources, without compromising their autonomy in deciding their advocacy agenda.36 Moreover, the laws must bind state authorities to consult and actively involve persons with disabilities, including women, girls and children with disabilities. Lastly, the law must grant persons with disabilities seats in institutionalised bodies, including temporary ones, at the local and national level.37
Second, state parties are enjoined to prohibit practices likely to discriminate against the rights of persons with disabilities to be closely consulted and actively involved in the decision-making processes related to the Convention.38 State parties must adopt and implement legal and regulatory frameworks and procedures to ensure full and equal involvement of persons with disabilities, through their representative organisations, in public decision-making processes;39 and must put in place measures (through policy and other legal means) ensuring that persons with disabilities are not deterred from participating, and are adequately consulted by third parties (family members, service providers, etc).40 The latter requirement entails, among other consequences, the raising of awareness in the general public concerning the rights and capabilities of persons with disabilities to participate. It also entails that OPDs must be trained to increase their advocacy competences and human rights knowledge.41 Moreover, state parties must provide necessary accommodation and support to ensure all persons with disabilities, including women, girls and children with disabilities, are able to participate in the design and implementation of laws and policies and other decision-making processes that affect their lives. This includes, for instance, the provision of sign language and braille for those with hearing and visual impairment, as well as disability and age assistance. At the heart of this dimension is the concept of inclusive equality elaborated by the CRPD Committee in its General Comment 6. Accordingly, inclusive equality embraces a substantive model of equality, which ‘seeks to address structural and indirect discrimination and takes into account power relations’.42 The concept of inclusive equality encompasses:
(a) a fair redistributive dimension to address socioeconomic disadvantages; (b) a recognition dimension to combat stigma, stereotyping, prejudice and violence and to recognize the dignity of human beings and their intersectionality; (c) a participative dimension to reaffirm the social nature of people as members of social groups and the full recognition of humanity through inclusion in society; and (d) an accommodating dimension to make space for difference as a matter of human dignity.43
Third, state parties must ensure that the venues where consultation processes take place are inclusive and accessible to persons with disabilities. As mentioned above, the consultation process must enable meaningful engagement with established groups, as well as marginalised groups who might not be formally organised. Therefore, state parties must adopt creative strategies to reach out to diverse constituencies of persons with disabilities, including marginalised groups, not merely relying on traditional generic and online consultations. In circumstances where the unavailability of transport might prevent persons with disabilities from participating, state parties must provide financial support to cover those and other consultation expenses.44 Moreover, state parties must provide ‘meeting assistance and support’ to persons with psychosocial and intellectual disabilities to be able to participate substantially.45 Finally, state parties must ensure access to information (CRPD article 9 and 21, as a pre-condition for participation) in accessible formats, including through Information and Communication Technology for persons with disabilities.46
Fourth, it is important to ensure the transparency and accountability of consultation processes. The first requirement includes the allocation of sufficient time for consultation, considering that many of the organisations of persons with disabilities have limited human, material and financial capacities. Moreover, state parties are exhorted to engage in good faith with organisations of persons with disabilities, according to the demands of mutual respect and giving due weight to their contribution.47 Critically, public consultations with OPDs should ‘aim to reach collective agreement’ [that] ‘respond[s] to the diversity of persons with disabilities’.48 Finally, it is important to ensure proper accountability. As such, the law must create mechanisms that enable persons with disabilities to seek redress and challenge decisions adopted without their meaningful involvement. This includes both administrative and judicial mechanisms, which must be embedded in ‘the legal frameworks governing the consultation and involvement of organisations of persons with disabilities, and national anti-discrimination legislation, at all levels of decision-making’.49 Moreover, these mechanisms must also compel state parties and other entities to explain the rationale of certain decisions, and the extent to which the views of person with disabilities were considered. 50
The figure presented below sums up the framework from a CRPD perspective. In this framework, the role of international cooperation is construed more broadly, according to the extent to which it supports the goals and purposes of the Convention. On a narrower construal, it shows the extent to which the different dimensions are enabled to operate independently, highlighting their articulation into a system intended to ensure the meaningful participation of persons with disabilities in development programmes.
Figure 1: Framework on the inclusion and participation of persons with disabilities in international development cooperation. 51
The inner circle represents the first level of analysis, depicting the relationship between state institutions and persons with disabilities through their representative organisations. When necessary, state institutions may directly engage persons with disabilities to ensure diversity (illustrated by the dotted lines). Here, disability identity intersects with other identities (shown by the left column). The four pillars or dimensions of participation that enable this relationship to occur are presented at the centre of the circle (Enabling legal framework; Equality and non-discrimination; Inclusion and Access; and Transparency and Accountability). The second level represents inputs from international cooperation programmes, with the view to ensuring that the process runs smoothly at the national level, therefore contributing to strengthening the four pillars, and ultimately to the achievement of the CRPD goals and objectives.
It is important to reiterate that the figure above encapsulates a bare-bones theoretical version of the framework, which, although inspired from the General Comment 7 and CRPD jurisprudence, does not attempt to be exhaustive. In practice, however, the framework is far more complex. As noted in article 32(1) of the CRPD, international cooperation may include a range of stakeholders, such as ‘international and regional organisations’, but also UN agencies and the private sector. The latter actors (and not state institutions) may be the ones who implement development programmes, and are therefore responsible for ensuring inclusion and participation for those with disabilities. Nevertheless, regardless of the practical circumstances of implementation, the four dimensions highlighted above create the necessary regulatory framework for the inclusion and participation of persons with disabilities in development cooperation programmes. The present paper, therefore, presupposes the normative framework outlined in Figure 1.
This paper is subsumed under my ongoing PhD research project focusing on the inclusion and participation of persons with disabilities in international cooperation development programmes. Primarily, the research focuses on two EU funded development projects in the domain of gender-based violence (the Spotlight Initiative) and social protection in Mozambique.
The Spotlight Initiative is a multiyear programme covering 28 countries across five regions of the globe.52 Mozambique is one of the beneficiary countries in the African region. The African programme focuses on ‘sexual and gender-based violence (SGBV), early marriage (with linkages to the eradication of harmful practices) and sexual and reproductive health rights (SRHR)’.53 The programme is implemented by five UN Agencies54 in collaboration with government agencies and CSOs. In Mozambique, the programme covers three provinces, namely Gaza, Nampula and Manica. It is also implemented at central level (capital), covering, principally, related legislative work. With EU seed funding totalling 500 million euros for a period of four years (2019-2022), the Spotlight Initiative is thought to be the ‘largest global effort to end all forms of violence against women and girls’.55
The second project, Monitoria Comunitária Independente (MCI) ao Programa de Subsidio Social Básico (PSSB) is a five-year project (2018-2023), implemented by a consortium led by Plataforma da Sociedade Civil Moçambicana para Proteção Social (PSCM-PS).56 The project’s objective is to improve the quality and impact of social protection programmes, and promote their transparency through awareness raising, access to information, and active citizen participation in the accountability of social protection programmes, with emphasis on the PSSB. The project has three interrelated components: a Citizen Report, where beneficiaries of PSSB express their views of how the programme is being implemented; Focal Groups, where the main concerns raised by citizens are discussed; and an Action plan, which consists of discussion forums where citizens’ concerns are presented to local leaders and service providers. With funding of 2.5 million euros from the EU through the Support Programme of Non-State Actors (PANNE II), the project is implemented in six provinces and a total of ten districts.57
These projects have an explicit commitment to the foundational principle of ‘leaving no one behind’ (LNOB) in common, meaning ‘ending extreme poverty in all its forms, and reducing inequalities among both individuals and groups’.58 To operationalise this commitment, ‘explicit and pro-active attempts are needed to ensure populations at risk of being left behind are included from the start’. 59
As indicated above, the present paper is part of an on-going PhD research project. The preliminary data in this article was collected through semi-structured interviews. Purposive sampling was used to recruit research participants. Stakeholders involved in the implementation of programmes under review were recruited through email invitation to participate in the study. Those include EU Delegation representatives in Mozambique, UN agencies, a network of local CSOs implementing the projects, and government officials. In addition, representative of OPDs were also recruited to participate as research informants (the table below shows in detail the demographic of research informants). Stakeholders were asked to reflect on the strengths and challenges of the programmes under review, including factors affecting the inclusion and participation of persons with disabilities, and the extent to which those programmes contribute to support dialogue between CSOs in general (and DPOs in particular) with state institutions. By ‘state institutions’, we mean all parts of the executive, legislature and judiciary. In total, 24 interviews were reviewed for this paper. All research informants where anonymised, to deter immediate or potential risks. The quotations appearing in this paper reflect patterns emerging from data, rather than individual responses. In addition to interviews, this paper draws from CRPD jurisprudence, as well as documents pertaining to the programmes under review (programme reports, budget reports, etc).
PwD60 not affiliated in OPDs
The data analysed to date reveals several factors that limit the participation of people with disabilities, preventing them from owning the policies and laws that development cooperation programmes aim to influence. These obstacles are clustered around two major themes; to which I now turn.
Freedom of association and assembly are constitutionally guaranteed in Mozambique. The exercise of the right to assembly is subject to prior notification to authorities, a loophole which the government has taken advantage of to misinterpret the rights as contingent upon authorisation, and effectively ‘disallow protesters on the basis of errors in the organizers’ official applications’.61 While most NGOs can operate without significant legal restrictions, human rights defenders and members of groups perceived as critical of the government policies are systemically the target of severe intimidation. Journalists and researchers are harassed, intimidated, arrested, and detained for reporting on the conflict in Cabo Delgado - a region in the north of the country, which has been targeted by terrorist groups since 2017.62 OPD leaders have reported difficulties in obtaining legal registration, owing to the high fees involved. While the exact fee is dependent on the size of the organisation statute, one of the leaders interviewed mentioned that his organisation must pay the equivalent of 300 USD. The lack of registration impairs OPDs’ ability to operate and obtain funding, additionally affecting small and community-based organisations.
While disability issues are not, as yet, perceived as sensitive issues, OPDs are relatively willing to challenge government policies. Nevertheless, the general climate of intimidation, the lack of legal frameworks enabling CSO groups to participate in public policies debate, and the limited access to information (impacting disproportionately those with hearing impairment), make it difficult for OPDs to participate in and own development programmes, public polices and legislative processes, even when a commitment to LNOB exists. The ongoing process of drafting the Law on the Rights of Persons with Disabilities in Mozambique illustrates this predicament.
In 2014, the government launched the process of drafting the Law on the Promotion and Protection of the Rights of Persons with Disabilities (the Disability Law), with the aim of domesticating the CRPD. For this purpose, a technical committee was established, tasked with the formulation of a legal draft. The Forum of the Mozambican Association of Persons with Disabilities (FAMOD) was initially invited to be part of the Technical Committee in representation of OPDs. After an initial consultation with OPDs that took place in 2014, the process moved on, without gathering significant input from persons with disabilities. A draft of the Disability Law was considered and approved by the Cabinet in May 2017 and forwarded to Parliament for final approval. However, FAMOD sought to halt the process, on the basis that the proposed law had significant gaps, including limited inclusion and participation of person with disabilities in its diversity.63 Eventually, Parliament sent back the proposal to its proponent for review, a process which is still underway.
Owing to this intractable situation, CSO groups demand clear procedure and rules to govern public policy making. For instance, the former representative of the Mozambican Bar Association called for a ‘law of laws’ to be passed:
[T]hat is, a law that more clearly defines the process of drafting laws, which ... clearly defines the way in which civil society participates in the process, establishes a mandatory period in which proposals must be available to the public for consultation and contributions, and imposes the obligation to explain the rational of policy choices. Only then will the recipients of the laws [the citizens] be able to own them [policies].64
The review of programmes, documents and related materials (project reports, attendance sheets, budget reports, etc.), as well as the stakeholders’ interviews, suggest that, despite the commitment to ‘leave no one behind’ (LNOB), there is nothing in those programmes to ensure the fulfilment of this principal commitment. For instance, the programmes under review do not address the manner in which the problems identified, affect persons with disabilities, including women, girls and children. Nor do they demonstrate how the proposed actions will address the problems faced by persons with disabilities. As a result, there are no specific indicators or budget lines for support and accommodation, and the monitoring and evaluation tools do not reflect the disability dimension. The stakeholders involved in the implementation of the Spotlight Initiative (UN agencies and CSOs) do recognise these serious limitations. Yet they explain these deficiencies by stressing that the main donor (the EU) did not emphasise disability issues in the call for proposals:
UN agencies are usually good in complying with donors’ conditions. So, I think that these issues [disability inclusion] were not highlighted in the EU call. Rather the emphasis was on GBV.65
Irrespective of donor requirements, UN agencies have an institutional obligation to ensure disability inclusion. The UN Disability Inclusion Strategy provides guidance to agencies within the UN system to advance disability rights, as promoted in the CRPD and other agreed international legal and policy commitment.66 When asked how the UN Disability Strategy informs the implementation of the Spotlight Initiative, the stakeholder demonstrated a basic unfamiliarity with the Strategy.
These findings also show how political commitments turn out to be empty buzzwords, devoid of meaningful and tangible measurable content. The following statement (from one research informant) clarifies this point:
The problem is that LNOB is just a commitment and not a target ... yes it would be good if it was a target. But in the real world, it would be difficult to materialize in a project with two years of implementation ... So, what I’m saying is, yes, but we would have to leave something out.67
This statement illustrates, moreover, the difficulties of designing and implementing a programme aimed at including all the perceived marginalised communities, in a context where both expertise and resources are limited. For instance, the Spotlight Initiative is dominated by women and feminist organisations with relatively little expertise on disability rights. They tend to work together to the exclusion of other population groups. When asked about how the leading organisation went on to form a consortium to implement the Spotlight Initiative, their response was ‘because they have been working on the same issue and know each other for long time’.68 In this relation, it is difficult for outsiders - OPDs who are traditionally marginalised - to be invited to join such a platform.
The governance and implementation structure of both programmes include representatives of groups considered marginalised. The Spotlight Initiative has at the governance level (National Civil Society Reference Group) a woman with disability, who was deliberately recruited to represent persons with disabilities (representatives of other groups, such as LGBTIQ, were also recruited). These representatives, among others, are tasked to provide advice on their areas of expertise. The presence of a person with disability in the Reference Group is frequently presented as evidence of the programme’s commitment to disability inclusion and LNOB. Yet in practice, her appointment amounts to tokenism representation, as the person is limited in what she can do to further disability inclusion, given the lack of awareness, resources, and space to advance the cause.
This holds true of the MCI project, also. Despite having a FAMOD delegation as its implementing partner in Niassa province, persons with disabilities are not adequately represented within the committees. Among eight existing committees in Niassa province, only one has a member who identifies himself as person with disability - the Mepapa Committee. There are several reasons for this disproportional lack of representation. First, the Committees were originally established by the District Services for Women Health and Social Action as Children’s Protection Committees; and others were established as Water Committees (Comités de Agua). The Children’s Committees were originally tasked with addressing issues of early and forced marriages, attending to children in a vulnerable situation, among others, while the Water Committees were tasked with addressing issues of Water Sanitation and Hygiene (WASH). Membership of these Committees ‘was volunteer based ... there was no precondition attached, except that there must be representative of children’, as observed by one representative of the District Social Services, reflecting on the Children’s Committee. The MCI project capitalised on the existing structures - instead of creating new committees - and expanded them (to avoid duplication) to include aspects of social protection. Yet in doing so, the project did not pay sufficient attention to the configuration of these committees, so that their members remain largely the same, and persons with disabilities are seen only as beneficiaries that ‘must be taken care of’,69 not as active participants in project implementation. Second, there is a lack of understanding of social protection from a disability rights perspective among Committee members who were trained only on aspects of PSSB - eligibility criteria, and target group, among others. Finally, MCI does not collect disaggregated data on disability, making it difficult to know objectively which groups of persons with disabilities are beneficiaries and participate in the project implementation.
Although implemented by local CSOs, there is no specific role for OPDs in the implementation of the Spotlight Initiative. Implementing organisations were recruited through a call for proposals put forward by UN Women. The requirement and the process itself proved to be exclusionary towards most local organisations, including those with disabilities. To begin with, the call was published in English, and the proposal also had to be submitted in English (the official language in Mozambique is Portuguese). Moreover, the proponents had to be legally registered to be eligible.70 There was a possibility to apply as a consortium, and indeed at least one group - led by Women and Law in Southern Africa (WLSA Mozambique) - applied, which enabled small organisations, including community-based organisations, to participate. Yet, owing to the fact that the guidance arising from the call for proposals did not go far enough to address issues of disability representation (as it did in relation to community-based organisation), coupled with the putative proponents’ lack of awareness, the consortiums did not include OPDs. As result there is no OPDs among the implementing organisations belonging to the Spotlight Initiative. Stakeholders recognise this gap in stating that there ought to have been, in the call for proposals,
specific indication to include representative organisations of persons with disabilities, because what happens in the implementation is that because there is so many things to consider in the project of this nature, these issues [disability] are usually excluded.71
Owing to these factors, both projects under review here failed to address existing unequal power relations not only within the disability movement, but more generally. For instance, persons with physical disability, largely ex-combatants with disabilities, or land-mines survivors, are likely to be the beneficiaries of the PSSB. As observed by a representative of Instituto Nacional de Acção Social (INAS), ‘Niassa is a land of ex-combatants’. Ex-combatants with disability are relatively privileged within the disability community, because they have received specific protection and benefits, derived from their contribution in the colonial and civil wars. Thus, those who participate are individuals of relatively greater privilege in the community. Even a person with a disability, who is member of the Committee, is on that Committee because he is as local leader. As he puts it, ‘I had to be part of the Committee because I’m a local leader, which means I have to know what is being discussed and represent the community’.
Both projects achieved impressive results. Over the past three years (except for 2020), the MCI project contributed to consecutive increases of subsidies to PSSB, raising the share of GDP, from 0.3 in 2015 to 0.7 in
2019, and increasing the number of beneficiaries with disabilities from 4 per cent in 2014 to 5.3 per cent in 2019.72 Moreover, the project established local and national forums where government, donors and CSOs came together to discuss social protection issues. Likewise, the Spotlight Initiative, ‘strengthened partnerships with civil society government institutions and the EU Delegation, bringing these diverse stakeholders together’ at provincial and national level, as well as facilitated ‘consultations that led to the passage of key legislation such as law on child marriage’.73
These developments have contributed to ownership of the law on child marriage by some groups, mainly women and feminist organisations who directly participate in the project implementation (in the case of the Spotlight Initiative). Conversely, because representative organisations of person with disabilities are not included in the project implementation, they are likely to be left out of ownership of the policies and laws that the projects seek to influence. Although there is no desegregated collected data on this phenomenon, both programmes include certain persons with disabilities mostly as beneficiaries.74 However, it seems that only those that require minimum or no accommodation are more likely to participate, as one informant put it:
Communication is a major obstacle to work with person with visual and hearing impairments ... We are working with the Ministry to develop some material in braille and sign language in the scope of GBV prevention ... now, people with albinism, [physical disability] in principle, are easy to communicate with ... whereas a person with intellectual disability is difficult to know how to interact with them.75
Three things need to be considered to ensure participation of persons with disabilities, and ultimately ownership of the very laws and policies that these programmes seek to influence. First, the findings highlight, on one hand, the centrality of a political economic analysis in development cooperation and ownership, as highlighted in relevant literature.76 For instance, the political economy analysis of the CSO is apt to single out the fact that given the history of exclusion of and stigma towards disability, the disability movement is still somehow disconnected from the mainstream CSOs. It is apt likewise to point to the heterogeneity and internal divergence within the disability movement, and to the fact that there are
groups that are more marginalised than others.77 This critical realisation might have led (in the contexts under discussion) to specific strategies and incentives to engage persons with disabilities through their representative organisations or other means. The lack of these crucial insights perpetuates the domination of mainstream groups who are more organised and claim to ‘speak for those without voice’.78 In this sense, development programmes perpetuate, rather than challenge, the status quo by not addressing power relations within CSOs and society more broadly.
Second, these findings highlight the centrality of data disaggregation if the development community is to take seriously the commitment to LNOB. LNOB needs to be more than a simple nominal commitment. There must be concrete activities and indicators on disability, and a system of monitoring and evaluation able to capture and make sense of the collected data.
Third, there is the need to move beyond awareness of disability to more concrete actions aiming to support disability inclusion in practice. This includes setting up mechanisms and tools to support disability inclusion. This may involve rethinking the typical framework of personnel working in traditional development agencies by including disability focal points, with the aim of bringing in the expertise needed on these issues. Typically, these professionals are ‘highly qualified ... trusted and valued by both international agencies and national authorities, and act as important interlocutors between international and national policy elites, and as gatekeepers to both’.79 More importantly, it is essential that development agencies and mainstream CSOs open themselves up to engage with persons with disabilities and their representative organisations, as they are the prime sources of knowledge on disability. Fortunately, the new EU Disability Strategy 2021-27 seems to be moving in the right direction, although the details are yet to be pinned down. For instance, through this Strategy, the EU commits ‘to support CSOs to ensure that representatives of persons with disabilities can participate in all relevant processes through specific and inclusive structured dialogues, at EU, partner countries and global level’.80 But as the age-old wisdom has it, the devil is in the details - as ever, something that in theory seems simple, might in reality be far more complex.
This paper seeks to examine the extent to which development cooperation programmes contribute to supporting the dialogue between CSOs in general, and DPOs in particular, with state institutions, as an indication of the level of ownership by persons with disabilities of these programmes, or the policies and laws they seek to influence. The findings suggest that the programmes under review do promote greater collaboration between CSOs and state institutions, therefore contributing to the ownership of those programmes, policies and laws that these programmes seek to influence. However, despite the existence of a commitment to LNOB, persons with disabilities continue to be excluded, mostly seen as mere beneficiaries, and not as active participants fully able to contribute to the public debate.
The preliminary analysis of the data enabled the identification of two sets of issues that place conditions on the participation of those with disabilities, preventing them of owning the very policies and laws that development cooperation programme aim to influence. This includes the lack of proper legal frameworks and the programme design, which is severely deficient from a disability rights perspective. The findings corroborate previous research that acknowledges the centrality of data and political economy analysis in the practice of participation and ownership. The interest and value of the present paper reside in its contribution of a theoretical framework, based on the CRPD, to understand inclusion and participation of person with disabilities - a key indicator of ownership of development programmes, and ultimately of aid effectiveness.
1. N Groce et al ‘Bridging the gap examining disability and development in four African countries’ (2018) https://reliefweb.int/report/world/bridging-gap-examining-disability-and-development-four-african-countries-0 (accessed 10 May 2021); UN Department of Economic and Social Affairs ‘Realization of the rights of persons with disabilities by, for and with persons with disabilities, UN flagship report on disability and development’ (2018) www.un.org/development/desa/disabilities/publication-disability-sdgs.html (accessed 10 May 2021).
2. N Groce & M Kett ‘The disability and development gap’ Leonard Cheshire Disability and Inclusive Development Centre Working Paper Series: No 21 (2013) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3385372 (accessed 15 May 2021).
3. D Walton ‘Fact sheet: Disability-inclusive ODA: Aid data on donors, channels, recipients’ (3 July 2020) https://devinit.org/resources/disability-inclusive-oda-aid-data-donors-channels-recipients/ (accessed 12 May 2021).
4. CANDID & HRFN ‘Advancing human rights: Annual review of Global foundations grantmaking - 2018 key findings’ (2021) www.issuelab.org/resources/38475/38475.pdf (accessed 24 May 2021).
5. International Disability Alliance ‘Preliminary results of the first Global Survey - December 2018 to January 2019’ (2019) www.internationaldisabilityalliance.org/global-survey-preliminary-results-2019 (accessed 28 May 2021).
6. OECD ‘Paris Declaration on Aid Effectiveness’ (2005) www.oecd.org/dac/effectiveness/parisdeclarationandaccraagendaforaction.htm (accessed 30 December 2021).
7. A Dube ‘Participation of disabled people in the PRSP/PEAP process in Uganda’ (2005) Disability Knowledge and Research Programme https://gsdrc.org/document-library/participation-of-disabled-people-in-the-prsppeap-process-in-uganda/ (accessed 24 May 2021).
9. See, for instance, a report commission by the UK Department for International Development. It found that international development cooperation bolstered the influence of donors to the ‘detriment of Parliament and CSO’, therefore undermining government accountability towards its citizens. E Macamo ‘Political governance in Mozambique: Final report’ (June 2006) www.open.ac.uk/technology/mozambique/sites/www.open.ac.uk.technology.mozambique/files/pics/d70313.pdf (accessed 30 December 2021).
16. The Heavily Indebted Poor Countries (HIPC) Initiative was launched in 1996 by the International Monetary Fund and World Bank ‘with the aim of ensuring that no poor country faces a debt burden it cannot manage’; see IMF ‘Factsheet: Debt Relief Under the Heavily Indebted Poor Countries (HIPC) Initiative’ (23 March 2021) www.imf.org/en/About/Factsheets/Sheets/2016/08/01/16/11/Debt-Relief-Under-the-Heavily-Indebted-Poor-Countries-Initiative (accessed 10 May 2021).
34. CRPD Committee General Comment 7 on the participation of persons with disabilities, including children with disabilities, through their representative organisations, in the implementation and monitoring of the Convention (2018) UN Doc CRPD/C/GC/7 dated 9 November 2018.
35. General Comment 7 presents a complex framework, which includes state party obligations, as well as specific operational guidance and exemplification to ensure inclusion and participation of persons with disabilities. The list presented in this paper is not exhaustive. Rather, I propose identifying its main elements clustered into viable categories to fit the framework of the present paper.
51. Adapted from: A Cote ‘The unsteady path - Towards meaningful participation of organisations of persons with disabilities in the implementation of the CRPD and SDGs’ (2020) & the CRPD Committee General Comment 7.
52. Africa (8), Asia (4), Caribbean (6), Latin America (6) and Pacific (4) https://spotlightinitiative.org (accessed 14 April 2021).
55. Spotlight Initiative https://spotlightinitiative.org (accessed 14 April 2021).
56. The consortium includes the Forum of Mozambican Association of the Disabled (FAMOD); Associação dos Aposentados de Moçambique (APOSEMO); Ação para o Desenvolvimento Comunitário (ASADEC); CEPCI; and APITE.
61. Freedom House ‘Report freedom in the world 2021: Mozambique’ https://freedomhouse.org/country/mozambique/freedom-world/2021 (accessed 4 January 2022).
62. US State Department ‘2020 Country reports on human rights practices: Mozambique’ www.state.gov/reports/2020-country-reports-on-human-rights-prac tices/mozambique/ (accessed 4 January 2022).
64. Cerimónia de Abertura do Ano Judicial 2019 - Intervenção do Bastonário, Flávio Menete www.oam.org.mz/cerimonia-de-abertura-do-ano-judicial-2019-intervencao-do-bastonario-flavio-menete/ (accessed 14 April 2021 ).
80. European Commission ‘Union of equality: Strategy for the rights of persons with disabilities 2021-2030’ (2021) https://ec.europa.eu/social/main.jsp?catId=1484 (accessed 4 January 2022).
- Paul Ochieng Juma
- Paul Ochieng Juma is a doctoral candidate at the University of Pretoria. He holds a Bachelor of Laws Degree from the Catholic University of Eastern Africa, a Postgraduate Diploma in Law from the Kenya School of Law and a Master of Laws Degree in Disability Rights from the University of Pretoria
- Beryl Orao
- Beryl Orao is a doctoral candidate at the Institute for International and Comparative Law in Africa, University of Pretoria. She also holds a Bachelor of Laws Degree from the Catholic University of Eastern Africa, a Postgraduate Diploma in Law from the Kenya School of Law and a Master of Laws Degree in Diplomacy and International Law from the University of Lancaster.
- PO Juma & B Orao ‘To what extent is global and regional jurisprudence on the right to health for persons with disabilities reflected in Kenyan courts?’ (2021) 9 African Disability Rights Yearbook 72- 87
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The integration of international jurisprudence into the interpretation of the right to health of persons with disabilities by domestic courts is an important way of enhancing protection of the right at the national level. However, it is not always that decisions of international human rights bodies will find their way into domestic courts. This article maps the extent of engagement of Kenyan courts with international and regional jurisprudence on the right to health of persons with disabilities. It analyses the approach taken by Kenyan courts to determine whether it aligns with the principles espoused in the cases decided at the international and regional level. The article singles out two communications or cases that were decided by the Committee on the Rights of Persons with Disabilities and one case that was decided by the African Commission on Human and Peoples’ Rights and assesses the extent to which Kenyan courts have given effect to its obligations under the Convention on the Rights of Persons with Disabilities. The paper concludes that global and regional jurisprudence on the right to health for persons with disabilities is rarely used by Kenyan courts to interpret persons with disabilities’ rights. The paper recommends that Kenyan courts should entertain and apply a broad range of international and regional jurisprudence when interpreting the normative content of the right to health of persons with disabilities and corresponding state obligations.
Generally, the domestic effect of international human rights jurisprudence on individual countries is to limit state behaviour. The right to health of persons with disabilities has been interpreted in different ways in both the international and regional realms. The main human rights institution tasked with the protection of persons with disabilities’ right to health at the global level is the United Nations Convention on the Rights of Persons with Disabilities Committee (CRPD Committee).1 At the regional level, the main mechanisms used to guarantee the right to health of persons with disabilities are the African Commission on Human and Peoples’ Rights (African Commission), the African Court on Human and Peoples’ Rights, and the African Committee of Experts on the Rights and Welfare of the Child.
This article analyses the extent of engagement of Kenyan courts with international and regional jurisprudence on the right to health of persons with disabilities. It begins by briefly setting out the scope of the right to health under the Convention on the Right of Persons with Disabilities (CRPD).2 This is followed by an analysis of three global cases on the right to health of persons with disabilities. These are the CRPD Committee’s views in Munir Al Adam and ADHRB v Saudi Arabia (Munir),3 HM v Sweden (HM)4 and the African Commission’s decision in Purohit v The Gambia (Purohit).5 The paper then considers the jurisprudence of Kenyan courts on persons with disabilities’ right to health and determines to what extent they apply international jurisprudence.
International law may be linked to the Foucauldian notion of productive power. According to Michael Foucault:6
The law [as a social phenomenon] is not solely a preventive mechanism but maintains some form of creative and productive aspect ... [I]t not [only] singularly control[s] individuals but produces particular subjects and in turn is the result of these particular subjects.
It means that international law may be justified in several ways. First, it has been rationalised as a form of government; whereby legal norms and legal entities are characterised not in opposition to state power but rather as a means for government by dominant states.7 Secondly, it highlights the significance of collective thought as a means of identifying the ‘rule of law’ not in opposition to politics but rather as a powerful ordering rationality and hence a means for government.8 Lastly, it can be used to check state power and provide even-handed accountability. 9
The Constitution of Kenya 2010 (2010 Constitution) transformed Kenya from a dualist state to a monist state. Under the monist approach, Kenya’s legal system regards both international and national law as part of a single legal order. Therefore, Kenyan courts can directly apply international human rights law when interpreting domestic laws. Nevertheless, the status of international law in the hierarchy of Kenyan laws has received varying interpretations by Kenyan courts. One argument is that international law forms part of Kenyan law and where there is a conflict between statute and obligations under international law, the latter takes precedent.10 The alternative argument, which has a significant impact on the application of international jurisprudence, is that international laws rank below the 2010 Constitution, statutes and decisions of domestic courts. This was stated in the case of Mitu-Bell Welfare Society v Kenya Airports Authority11 by the Supreme Court of Kenya. The implication of this decision is that progressive interpretations of obligations under international law by international treaty bodies may be of no consequence in the Kenyan legal system if they conflict with statutes or domestic judicial decisions.
The 2010 Constitution makes provision for persons with disabilities’ right to health which is enshrined under article 43(1)(a) and provides for the highest attainable standard of health, which includes the right to healthcare services, including reproductive healthcare. This paper argues that in Kenya the impact of international human rights jurisprudence in relation to health for persons with disabilities is negligible. The Kenyan legal process which is tasked with the function of interacting, interpreting and internalising international law into the domestic system has largely ignored both international and regional jurisprudence when interpreting persons with disabilities’ right to health.
Both outside and inside the courtroom, the CRPD has proved to be a uniquely powerful tool in advancing persons with disabilities’ right to health. Kenya ratified the CRPD on 19 May 2008 and as a result is bound by its provisions. The state cannot invoke its domestic laws as a justification for a failure to meet its treaty obligations under the CRPD. 12
The CRPD provisions call for states parties to take all appropriate measures to promote persons with disabilities’ right to health. Article 25 addresses a number of the issues relevant to the jurisprudence reviewed in this study. It requires states to recognise the right of persons with disabilities to the highest attainable standards of health and further requires them to take measures to ensure that persons with disabilities have access to appropriate health services. It provides, in part, that states parties shall:
- Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons....;
- Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimise and prevent further disabilities...;
- Provide these health services as close as possible to people’s own communities, including in rural areas;
- Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent...;
- Prohibit discrimination against persons with disabilities in the provision of health insurance...;
Like other international law provisions, article 25 is widely viewed as having normative force independent of its embodiment in national laws.13 States parties’ national courts should invoke article 25 of the CRPD to urge the relevant states to comply with their human rights treaty commitments on persons with disabilities’ right to health.14 In Kenya, the judiciary when engaging in rights review is legally authorised to look to international law and jurisprudence for guidance provided it is consistent with the 2010 Constitution.15 Therefore, it is important for the courts to advance persons with disabilities’ right to health within the parameters of article 25 of the CRPD.
The CRPD Committee has for nearly two decades reviewed states parties’ efforts to implement the CRPD, looking at whether national laws, policies and practices align with international standards. As of August 2020, the CRPD Committee had made decisions or adopted views in 34 individual communications.16 Two of those, Munir and HM are discussed in this paper. The African Commission’s decision in Purohit is also discussed. These decisions are useful because they promote uniformity in the application of international rules on persons with disabilities’ right to health.17
The author, Munir Al Adam, was a 23-year-old Saudi man with a partial hearing impairment acquired in childhood.18 On 8 April 2012, Saudi security agents arrested him and took him to a police station where he was tortured.19 As a result, the pre-existing hearing impairment worsened.20 The author requested medical assistance but his requests were ignored for four months after which he was taken to a military hospital for a routine health check.21 The doctor who examined him recommended urgent surgery on the author’s affected ear in order to prevent permanent hearing loss. The author was, however, not treated for another six months, by which time his impairment had worsened so much that surgery could no longer fix the problem. 22
In his submission to the CRPD Committee, the author claimed that the torture he went through while in detention worsened his disability.23 He therefore alleged a violation of his rights under articles 15, 16 and 25(b).24 As regards the alleged violation of article 25, the Committee noted that article 25(b) of the Convention requires states parties to ‘provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimise and prevent further disabilities’.25 The Committee further stated that states parties have a special responsibility to uphold human rights when prison authorities exercise significant power over persons with disabilities who have been deprived of their liberty.26 In Munir, the Saudi authorities did not enable him to access the surgery he needed to prevent complete loss of hearing despite having been informed by a doctor of the need for an urgent intervention. The Committee found that the state party violated article 25(b) of the CRPD.27
The decision of the CRPD Committee in Munir was an affirmation of the positive obligation of states parties to the CRPD to address the health needs of persons with disabilities in a manner that not only addresses their immediate health requirements, but also prevents further disabilities. In addition to recognising the absolute prohibition of torture and ill-treatment, the CRPD Committee emphasised that in relation to persons with disabilities in custody, states have a special responsibility to uphold their human rights. The use of the term ‘special’ suggests a more compelling level of responsibility required of states. This acts as an added layer of protection for persons with disabilities. Hence, states will be held to a higher standard of accountability should a person with disabilities’ disability worsen as a result of the failure of the state to intervene early enough.
While this case relates to the health needs of a person with disability in custody, similar standards would apply to persons with disabilities generally since article 25(b) contemplates early identification and intervention for all persons with disabilities to prevent further disabilities. Certainly, given the inequality of resources amongst states, a question may be raised about holding less-resourced states to a standard considered ‘impossible’. One factor that would be taken into account is whether the state knew or ought to have known that a persons with disabilities’ condition could worsen unless an early intervention is made. Secondly, it would be necessary to consider what reasonable steps a state took to accommodate the health needs of the person with disability to ensure that their rights are realised. The duty of reasonable accommodation is expressly provided for under the CRPD as a vital factor in enabling persons with disabilities to enjoy and exercise their rights on an equal basis with others.28 Reasonable accommodation is an incidental right which means that it is essential in realising other existing rights.29 Policies, practices and premises should be reasonably adjusted in order to ensure the health of persons with disabilities. It is important to ask the question whether persons with disabilities have greater difficulty in accessing health services that the rest of the population can easily access. States parties to the CRPD are under the obligation to consider the particular circumstances and needs of persons with disabilities in order to identify, intervene and offer appropriate services designed to minimise and prevent further disabilities. If that is not the case, then, in accordance with the reasoning in Munir a state can be said to be in breach of its obligations under both articles 2 and 25(b) of the CRPD.
HM had Ehlers-Danlos Syndrome, a disorder that severely interfered with her mobility.30 Due to her fragility, she could not be safely transported to hospital, and her specialists recommended hydrotherapy, which would improve the quality of her life.31 HM applied to the local authorities for permission to extend her house in order to build an indoor pool for use during hydrotherapy but was denied permission on the ground that a part of the extension would be situated on land where building is not permitted.32An appeal to the County Council was rejected but a further appeal to an Administrative Court was successful, with the court finding that HM’s interests should be given priority over the public interest to have the land used in accordance with the County Council’s development plan.33
The County Council appealed to the Administrative Court of Appeal which overturned the decision of the Administrative Court.34 An appeal by HM to the Supreme Administrative Court of Stockholm was unsuccessful.35 The CRPD Committee had to consider whether the CRPD had priority over Sweden’s Planning and Building Act, whose neutral application by Swedish authorities had, according to HM, infringed her right to equal opportunity for rehabilitation and improved health. 36
The CRPD Committee noted that applying the Planning and Building Act equally to all, without having regard to the particular circumstances of some individuals with peculiar needs, could lead to discriminatory outcomes for persons with disabilities.37 It also recalled that according to article 2(3) of the CRPD, the denial of reasonable accommodation is a form of discrimination.38 Having regard to the meaning of reasonable accommodation under article 2(4) of the CRPD, the Committee concluded that Sweden had failed to provide reasonable accommodation to HM.39 In relation to the claim for violation of HM’s right to health, the Committee noted that Sweden failed to take into account HM’s unique circumstances and her disability-related needs when the authorities denied HM the permission to deviate from the development, and that the refusal was ‘... disproportionate and produced a discriminatory effect that adversely affected the author’s access, as a person with disability, to the health care and rehabilitation required for her specific health condition’.40
HM is a progressive decision which demonstrates the length the Committee is prepared to go to, to give effect to the right to health of persons with disabilities. The CRPD Committee addressed how a neutral application of laws may have discriminatory consequences for certain vulnerable groups such as persons’ with disabilities. It recalled that the meaning of ‘discrimination on the basis of disability’ under the CRPD is
any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms.41
Essentially, discrimination on the basis of disability may be direct or indirect. In HM’s case, the discrimination was indirect since the Swedish authorities’ strict interpretation of the Planning and Building Act failed to take into account the significant challenges HM had. On the face of it, and as argued by Sweden, the Planning and Building Act applied to everyone equally, whether the person has a disability or not. However, the effects of the neutral application of the law defeated the objects of the principle of reasonable accommodation as envisaged in the CRPD.
This decision affirmed that equality must be substantive. According to Du Plessis and Nienaber, in relation to persons with disabilities, substantive equality means that ‘...the physical and social environment must be adjusted to accommodate them, so ensuring equality of outcomes’.42 Thus, authorities must ensure that persons with disabilities suffer no disadvantage from legislative, governmental, or other action because of their disability. They should not be discriminated against on the basis of their disability. In HM’s case, since her health and the quality of her life depended greatly on the construction of the hydrotherapy pool within her home, it behooved the local authorities to fully accommodate her needs, even if that meant easing the application of planning regulations. Only by doing so would HM have been in a position to enjoy her rights on an equal basis with others.
The complainants were mental health advocates who submitted a complaint to the African Commission on behalf of patients of a psychiatric unit of the Royal Victoria Hospital in the Gambia.43Among other complaints, they alleged that the principal mental health law then in force in the Gambia, namely, the Lunatics Detention Act (LDA) did not define a ‘lunatic’, nor did it contain any safeguards concerning the diagnosis, certification and detention of patients.44 Generally, ‘lunatics’ is a derogatory term that has been used historically to refer to persons with psychosocial disabilities. They also alleged that the psychiatric unit was overcrowded and there was no requirement of consent to treatment.45
On the question of the definition of a ‘lunatic’ and the practice of detention of mental health patients, the African Commission found the LDA to be incompatible with articles 2 and 3 of the African Charter.46 The African Commission also considered Gambia’s argument that a decision to institutionalise a patient could be reviewed and took note of the fact that legal aid could only be provided to persons charged with capital offences. The Commission observed that in practice, the right of review could only be exercised by the wealthy and therefore the LDA did not comply with articles 2 and 3 on equal protection of the law and non-discrimination. 47
The Purohit decision affirmed the right to health of persons with mental disabilities. The African Commission not only recognised the torture and inhuman treatment faced by persons with mental disabilities in places of detention but it also highlighted the extent to which mental health needs were generally neglected. In relation to the question of discrimination in access to health services for persons with mental disabilities, the African Commission affirmed that the right to health
is vital to all aspects of a person's life and well-being, and is crucial to the realisation of all the other fundamental human rights and ... includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination of any kind.48
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 without discrimination of any kind.49
The Commission did recognise that resources may be a challenge for some African states. However, it emphasised that the utilisation of the available resources should not be done in a discriminatory manner. For example, a state should not be heard to argue that they do not have resources to ensure access to mental health services by persons with mental disabilities yet the rest of its population can easily access other health services.
In accordance with article 1 of the CRPD, Kenya has an obligation to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities’. This obligation is to be discharged through various organs of the state, including the judiciary. In this regard, when interpreting rights under the CRPD, Kenyan courts should adopt the interpretation that best favours the realisation of the rights of persons with disabilities. Kenya has not ratified the Optional Protocol to the CRPD, hence its citizens cannot submit individual complaints with the CRPD Committee. Therefore, the application of international jurisprudence by Kenya’s courts is an important means through which the CRPD Committee’s interpretation of rights under the CRPD can be felt at the domestic level. However, a review of various cases on the right to health of persons with disabilities decided by Kenyan courts reveals that the influence of international jurisprudence is extremely limited. What follows is an examination of three approaches in which international human rights jurisprudence, and particularly on persons with disabilities’ right to health, is applied in Kenya.
The avoidance approach refers to the use of certain judge-made doctrines in order to relieve domestic courts of the duty to enforce norms of international law in some politically sensitive situations.50 There are different avoidance techniques used by the courts especially when dealing with economic and social rights.51 It may take various forms, for instance when a court of law declines to entertain a matter by denying cert or dismissing a writ or refusing an appeal.52 A matter may also be decided on other grounds while avoiding a hotly contested issue or simply choosing to deal with an apparently more straightforward legal argument.53 The avoidance approach to international human rights jurisprudence on persons with disabilities’ right to health largely manifests itself in Kenya’s courts. Using the avoidance approach, national courts have rejected the application of international and regional jurisprudence on persons with disabilities’ right to health as will be seen in the Kenyan cases that follows.54 However, the main problem with the avoidance approach, particularly in Kenya’s legal system is that it greatly hinders the effectiveness of article 25 of the CRPD. This approach relies solely on domestic legal concepts without reference to international jurisprudence.55 The judgment in Kenya Society for the Mentally Handicapped56 (Kenya Society) which was delivered on 18 December 2012 serves as an example.
In Kenya Society, the petitioner accused state authorities of violating the rights of persons with disabilities by discriminating against them in terms of the provision of support and services.57 The petitioner alleged that persons with disabilities’ right to health was violated by the state’s failure to implement various policies under the national health programme aimed at preventing disability and early identification of disability of persons with mental or intellectual disability.58 Further, it was alleged that the state’s failure to establish sufficient, reliable and comprehensive structures to promote adequate provision of mental healthcare in public health institutions violated persons with disabilities’ right to health. The state responded by outlining in general terms the measures which it had taken to ameliorate the position of persons with disabilities. The Court dismissed the petitioner’s claims with much sympathy. In doing that, the Court stated that it is not its function to prescribe certain policies but to ensure that policies followed by the state meet constitutional standards and that the state meets its responsibilities to take measures to observe, respect, promote, protect and fulfil fundamental rights and freedoms of a party who comes before the Court.59 That view fails to provide the people with any recourse in situations where state authorities decline to make the relevant policies and laws to observe, respect, promote, protect and fulfil fundamental rights and freedoms of the people.
The Kenya Society verdict was followed in the High Court case of Matthew Okwanda60 which was delivered on 17 May 2013. Although Matthew was not about disability, it is relevant because the Court employed the reasoning in Kenya Society and failed to uphold the petitioner’s right to health. In Matthew Okwanda, the High Court dismissed the petitioner’s application to have the state provide him with reasonable care and assistance after being diagnosed with diabetes mellitus, an illness that requires proper care, diet and medication. 61
By the time these decisions were made, the CRPD Committee had already adopted views in the HM and therefore the respective courts could have relied on the reasoning in HM to aid in its interpretation of Kenya’s obligations in relation to persons with disabilities’ right to health. The African Commission’s decision in Purohit had also been made and it would have been particularly useful for the Court in the Kenya Society case. That the Court in Kenya Society argued that it was not its duty to prescribe policies is an indication of the Court’s avoidance approach. The Court was in fact called upon to address a failure by the state to implement its own policies, a failure which had led to discrimination against mental health patients in the sense that they could not access healthcare services on an equal basis with others. Had the court considered the reasoning of the CRPD Committee in HM and the African Commission’s reasoning in Purohit, it would possibly have made a decision that better protects the rights of persons with mental disabilities. The Court’s argument was an abdication of its duty to enforce the constitutional standards it was referring to. The 2010 Constitution prohibits discrimination on the ground of disability, and it also guarantees the right to health for all. Therefore, if persons with mental disabilities cannot access health services specific to their disabilities, then it means the constitutional standards are not being met and the judiciary should intervene, as the African Commission and the CRPD Committee did. The Court in the Matthew case could have also paid greater attention to the particular circumstances of the petitioner in the case, as was done by the CRPD Committee in HM.
The Munir case emphasised the obligation of states to ensure that persons with disabilities have access to health services, including early identification and intervention to prevent further disabilities. This decision is also important in the context of both the Kenya Society case and the Matthew case. Persons with mental disabilities usually have varying degrees of disorders whose effects may be mitigated by early intervention. In the absence of appropriate health care services, their conditions are bound to worsen. The Court in both Society and Matthew should have followed international law to hold the Kenyan government accountable for its failure to ensure the right to health of persons with disabilities. The decisions in Society and Matthew unintentionally established the avoidance approach towards international jurisprudence on persons with disabilities right to health.
However, there are some progressive cases that have given prominence to the CRPD but not related to health. In Juliet Mwongeli Muema v Smollan Kenya Limited62 the Employment Court found that the respondent had violated articles 5 and 27 of the CRPD when it failed to install or provide the claimant with a screen reader, voice command, or any other technology to help her overcome her disability. The claimant was suffering from low vision caused by a genetic condition known as retinitis pigmentosa. In this case, the court used the CRPD against a private entity in order to ensure the labour rights of a person with disability.
The 2010 Constitution adheres to a monist approach which requires the application of international and domestic law as part of the same legal system.63 However, in practice the application of international law in Kenya is dualistic and requires international law to be incorporated into domestic law to be applicable.64 Laws and policies are formulated by the state.65 The court’s duty is to ensure that the state’s policies meet constitutional standards.66 The court is also mandated to ensure that the state meets its responsibilities to take measures to observe, respect, promote, protect and fulfil fundamental rights and freedoms of the people of Kenya.67 Without the will of the legislature, the executive and the judiciary, opportunities for national courts to address questions of persons with disabilities’ rights in accordance with international law and jurisprudence are very limited.
Better education in international law is key in ensuring persons with disabilities’ right to health.68 There is need for both state and non-state actors to study regional and international decisions on persons with disabilities’ right to health.69 Judges when interpreting Kenya’s Bill of Rights should not only consider international law, but also specifically research international jurisprudence on the relevant rights. Landmark decisions such as HM and Purohit should be used to promote persons with disabilities’ right to health in similar situations and identify ways to enhance their protection further through legislation and governmental action.70
Although Kenya is one of Africa’s strongest economies, it is still beleaguered with several challenges, including poverty, inequality and vulnerability of the economy to internal and external factors.71 Applying international human rights jurisprudence may require great financial commitment which the Kenyan economy cannot sustain. Therefore, courts will not insist on the state’s duty to fulfill its mandate where the state proves that it lacks adequate funds to provide for persons with disabilities’ right to health.72
The alignment approach uses international human rights jurisprudence to effect change in the national legal system.73 According to Rao, national courts should ‘act more as agents and instruments for the unity and integrity of international law than as sources of its fragmentation’.74 This article argues that national legal systems should be aligned with international human rights jurisprudence. With regards to the cases of Munir, HM and Purohit, their invocation in Kenya’s national courts will lead to the expansion of judicial constitutional review of persons with disabilities’ right to health.75 This is in line with the presumption that legislation should be construed to avoid a conflict with international law.76 As seen in Kenya Society and Matthew, national courts in Kenya are to a very limited extent conscious of the need to align national jurisprudence on persons with disabilities’ right to health with the well-established norms as developed by the CRPD committee. The decisions puts in place restraints that inhibit the full application of international law by national courts.
The CRPD is very much a living legal instrument. In this regard, the contesting approach aims to ensure that national courts offer strong, effective means to ensure that persons with disabilities’ rights progress from laudable aspirations to binding obligations.77 The contesting approach in this instance occurs when the court departs from the decision of an international tribunal.78 There are several factors that justify national courts departing from the international precedents on certain occasions.79 For instance, where international jurisprudence undermines the dynamic and evolving nature of the treaty or where the particular international jurisprudence is wrong or less protective than that of a state’s constitution.80 Such an approach threatens the uniformity of interpretation of the CRPD and could seriously hinder the evolutionary process of national jurisprudence which would achieve international conformity in the interpretation of the CRPD.81 In Kenya Society and Matthew, no reasons were given regarding why the High Court failed to apply the CRPD Committee’s jurisprudence on persons with disabilities right to health which was absolutely relevant.
Kenyan courts need to become part of the ‘international judiciary’ when dealing with and interpreting persons with disabilities’ right to health.82 It means that Kenyan judges should consider applying international human rights jurisprudence in order to reinforce the state’s obligations under article 25 of the CRPD.83 The CRPD Committee has already made decisions which have influenced the development of persons with disabilities right to health. Therefore, the international human rights jurisprudence on article 25 of the CRPD has the potential to increase the effectiveness of the Kenyan legal system. The best use of the CRPD’s jurisprudence in Kenya would be through mainstreaming it. This would be the most effectual way to incorporate international human rights jurisprudence and for this, the Kenyan legal system would fare better.
In line with the alignment approach, national courts may adopt the ‘wine and bottle’ method when applying international human rights jurisprudence. The wine would be the international human rights jurisprudence on persons with disabilities right to health. On the other hand, the bottles in this case would be Kenya’s legal landscape or structure. It means that Kenyan courts can use global and regional jurisprudence to modify national law and to have local decisions fit the doctrines which have been established by international tribunals. International human rights jurisprudence would therefore be used to fill the spaces left by the legislature. In other words, the CRPD’s jurisprudence will be used to change the ‘game’ rather than changing the ‘players’.
According to Hedley Bull, ‘order in social life is very closely connected with the conformity of human behaviour to [normative] rules of conduct, if not necessarily to [binding] rules of law’.84 Simply put, international human rights jurisprudence should be applied by national courts not because it is binding but because it is useful.85 Therefore, there is need for mainstreaming international human rights jurisprudence in Kenya’s national legal order.86 The mainstreaming process would involve examining the provisions of national jurisprudence (bottles) to see if they are compatible with international human rights jurisprudence. The wine would be the international human rights jurisprudence. This would involve analysing existing national provisions on the right to health and determining if it is indeed possible to adapt the doctrines of global and regional human rights jurisprudence and expect them to function accordingly.
1. UN Human Rights: Office of the High Commissioner ‘Committee on the Rights of Persons with Disabilities’ https://www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDIndex.aspx#:~:text=The%20Committee%20on%20the%20Rights%20of%20Persons%20with,Committee%20on%20how%20the%20rights%20are%20being%20implemented (accessed 15 October 2021).
6. TE Aalberts ‘Book review: Leonard M Hammer A Foucauldian approach to international law: Descriptive thoughts for normative issues Aldershot: Ashgate, 2007’ (2008) 19 European Journal of International Law 859 https://academic.oup.com/ejil/article/19/4/870/349387 (accessed 24 April 2021).
10. See for example, Re The Matter of Zipporah Wambui Mathara  eKLR, where the High Court of Kenya found a statute that permitted the imprisonment of civil debtors to be in conflict with Kenya’s obligations under the International Covenant on Civil and Political Rights.
16. OHCHR ‘Jurisprudence database’ https://juris.ohchr.org/search/results/1?typeOf DecisionFilter=0&countryFilter=0&treatyFilter= 0(accessed 7 November 2020).
42. I Grobbelaar-du Plessis & A Nienaber ‘Disability and reasonable accommodation: HM v Sweden Communication 3/2011 (Committee on the Rights of Persons with Disabilities)’ (2014) 30 South African Journal on Human Rights 366 at 376.
51. KG Young ‘The avoidance of substance in constitutional rights’ (2015) 5 Constitutional Court Review 233 http://www.saflii.org/za/journals/CCR/2015/8.pdf (accessed 7 September 2021).
63. JN Maina ‘Do articles 2(5) and 2(6) of the Constitution of Kenya 2010 transform Kenya into a monist state?’ (2013) 13 https://papers.ssrn.com/sol3/papers.cfm? abstract_id=251670613 (accessed 5 October 2020).
71. The Word Bank ‘Country overview: Kenya’ https://www.worldbank.org/en/country/kenya/overview (accessed 7 November 2020).