Changing the landscape: Core Curriculum on Disability Rights for Undergraduate Law Students in Africa

Pretoria University Law Press

Description

This Core Curriculum on Disability Rights for Undergraduate Law Students in Africa has been developed as part of a broader initiative to foster and strengthen knowledge and awareness about and interest in the rights of persons with disabilities among lawyers in Africa. This initiative, the ‘Disability Rights and Law Schools in Africa Project’ was supported by the Open Society Foundations, initially the Open Society Initiative for Southern Africa (OSISA) and later complemented by the Higher Education Support Programme (HESP) and the Human Rights Initiative (HRI). For the avoidance of doubt, the curriculum is written with the aim of being delivered to learners undertaking legal studies.It has been designed to assist law faculties in Africa to develop and teach undergraduate courses on disability rights in Africa. The Curriculum, which contains practical examples, notes for lecturers and student activities, may be adapted to suit the circumstances of particular law schools. It will be available as an online resource, to which interested persons may contribute, in order to to keep it updated and relevant.About the editors:The Pretoria University Law Press (PULP) is based at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2015
• Nombre de lectures: 0
• EAN13: 9781920538415
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Changing the landscape: Core Curriculum on Disability Rights for Undergraduate Law Students in Africa

2015

Changing the Landscape: Core Curriculum on Disability Rights for Undergraduate Law Students in Africa

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-41-5

© 2015

Contents

Introduction to the curriculum ................................................................................................................ 1

Module 1: Introduction to disability rights ...................................................3....................................

Module 2: Protection of disability rights - global framework .............................................................23

Module 3: Protection of disability rights under African regional and national law ................................37

Module 4: Non-discrimination against people with disabilities ..........................................................53

Module 5: Right to health ...........................................................................................................73

Module 6: Participation in political and public life ..........................................................................91

Module 7: Employment ............................................................................................................ 107

Module 8: The right to education ............................................................................................... 125

Module 9: Vulnerabilities and inter-sectionalites ........................................................................... 137

Module 10: Legal capacity law and policy ................................................................................... 145

Module 11: Access to justice ..................................................................................................... 163

Module 12: National implementation and monitoring of disability rights .......................................... 177

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Introduction to the Curriculum

This ‘Core Curriculum on Disability Rights for Undergraduate Law Students in Africa’ has been developed as part of a broader initiative to foster and strengthen knowledge and awareness about and interest in the rights of persons with disabilities among lawyers in Africa. This initiative, the ‘Disability Rights and Law Schools in Africa Project’ was supported by the Open Society Foundations, initially the Open Society Initiative for Southern Africa (OSISA) and later complemented by the Higher Education Support Programme (HESP) and the Human Rights Initiative (HRI). For the avoidance of doubt, the curriculum is written with the aim of being delivered to learners undertaking legal studies.

The Law Schools Project comprises support to a network of selected universities, particularly in Africa, with the Centre for Human Rights, Faculty of Law, University of Pretoria, playing a coordinating role. These faculties are:

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Chancellor College, University of Malawi Eduardo Mondlane University, Mozambique Makerere University, Uganda Midlands State University, Zimbabwe University of Botswana University of Dodoma, Tanzania University of Nairobi, Kenya University of Namibia University of Zambia

Collaborative process

Drafting a curriculum for a full undergraduate course is an ambitious undertaking. Its many iterations, reworking, and revisions span some four years, and include numerous authors, commen- tators and other contributors. It is therefore impossible to definitively allocate authorship. The following persons all contributed in significant ways: William Aseka; Natasha Banda; Luis Bitone; Enoch Chilemba; Helene Combrinck; Yvonne Dausab; Nadja Gomez; Ilze Grobbelaar-du Plessis; Thuto Moratuoa Hlalele; Hilda Kaluwa; Serges Kamga; Elizabeth Kamundia; Magnus Killander; Bernadette Malunga; Esau Mandipa; Lawrence Mashava; Orquidea Massarongo; Lungowe Matakala; Nkatha Murungi; Tshepiso Ndzinge Makhamisa; Charles Ngwena; Jehoshaphat Njau; Chipo Nkatha; Ruusa Ntinda; Ally Possi and Peter Shughuru.

While most modules are the outcome of contributions by numerous authors, the last three (modules 10 to 12) were added towards the final stages of the Project. Different to other modules, these three were developed almost exclusively by a single author, Elizabeth Kamundia, whose professionalism and devotion to the Project is specifically recognised and appreciated.

The Curriculum benefitted considerably from the inspiration, support and critical comments of various experts of the Open Society Foundations, in particular Alison Hillman, Tirza Leibowitz, Patricia Mwanyisa, Boaz Muhumuza, Elena Naumkina, and Louise Olivier.

The African Law Schools Project forms part of a broader global network of law schools in Europe and the Americas. Some of these global partners, in particular the following persons have made significant contributions:

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Prof Luke Clements, Cardiff University Prof Arlene Kanter, Syracuse University Shivaun Quinlivan, National University of Ireland, Galway

The Contribution of Prof Michael Stein, Harvard University, and extraordinary professor in the Centre for Human Rights, is also acknowledged with appreciation.

It appears from the process described above that the curriculum writing process has been the product of extensive collaboration. While we cannot name everyone who contributed to the curriculum by name, we would like to express our appreciation to all who contributed in some way to this publication.

Overview

The curriculum comprises of the following modules:

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Module 1: Introduction to disability rights Module 2: Protection of the rights of persons with disabilities: Global framework Module 3: Protection of disability rights under African regional and national law Module 4: Non-discrimination against persons with disabilities Module 5: Right to health Module 6: Participation in political and public life Module 7: Employment Module 8: Education Module 9: Vulnerabilities and inter-sectionalites Module 10: Legal capacity law and policy Module 11: Access to justice Module 12: Strategies towards implementing disability rights

Adapting the master curriculum

Each partner institution should adapt the curriculum to suit local circumstances, taking into account several factors including the level at which the curriculum is being delivered and the time available for delivering the curriculum. Against this background, each partner institution is expected to

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develop its own local curriculum (complete with learning objectives, module content and reading list amongst other components) from the master curriculum with the necessary modifications.

General modifications may include:

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Incorporating, to the greatest extent possible, the domestic legal system of the locale so that learners can be acquainted with the application of disability rights in their own jurisdiction, including the disability laws, policies and courts decisions of the locale; Developing broad learning objectives. The lecturer will then have the flexibility to pursue these objectives through whatever content and teaching methods they feel are appropriate to meet the learner’s educational needs and in accordance with their own teaching style; Modifying language to reflect the extent to which a country is bound by the provisions of the UN Convention on the Rights of Persons with Disabilities. This of course depends on whether or not the country within which the institution is situated has ratified the CRPD, and in circumstances where the convention has been ratified by the country in question, whether the provisions of the convention have been domesticated (with regard to dualist states); and Selecting the most relevant modules to form part of the local curriculum, based on objective criteria. Module 1, the introductory module should ideally be part of the local curriculum.

Specific modifications include:

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Tweaking the balance between aspects of learning that require description and those that require application; if teaching disability rights at masters level, the focus should be more on application of disability rights, while undergraduate teaching can lean more towards describing the nature of disability rights. However, as written, the curriculum requires some level of application regardless of the level at which it is taught. Introducing learners to the nature of human rights before getting into disability rights in particular; this is especially relevant for lecturer’s teaching disability rights to learners in the first year of law studies. As written, most of the modules assume that the concept of rights is not new to learners.

Delivering the curriculum

Each partner institution should be cognisant of the fact that delivering the curriculum requires reflecting on appropriate and effective pedagogical approaches. As much as possible, the curriculum should be delivered using teaching methods that are conducive to interaction with learners and that accommodate the broad range of learning styles that exist amongst learners. To aid interaction, the curriculum makes use of class activities including debates, class discussions, group discussions and on

occasion suggests useful field trips that may further enhance learning. The curriculum also suggests films and online video clips that may assist students understand how abstract rights play out in the real world. In addition, lecturers should consider using current issues on disability in the country (such as news features) to enhance class activities and to ground disability rights in the specific context.

In the course of delivering the curriculum, lecturers should consider including activities such as inviting guest speakers, for example, having people with disabilities speak to the learners about what the various rights mean to them from an experiential perspective.

In addition, lecturers should be cognisant of the fact that some learners taking the disability rights course will be learners with disabilities. As such, lecturers should adopt teaching methods that are inclusive of learners with disabilities. For example, some modes of presenting information may be completely inaccessible to students with disabilities; an example is visual presentation for students who are vision impaired.

Underlying this section on pedagogy is the concept of Universal Design for Learning which emphasises multiple means of presenting information, multiple means for students’ expression of knowledge and multiple means of engagement in learning (National Centre on Universal Design for Learning 2006).

Way forward

With this publication, the Centre for Human Rights aims to bring more academic attention to the rights of persons with disabilities in Africa. The aim is to post the curriculum on the Centre for Human Rights’ website and to invite all interested persons to contribute by adding relevant content to the curriculum. In this way, the curriculum would be continuously updated and kept relevant.

As far as practicable, each partner institution should regularly update the master curriculum in the light of new developments. To facilitate this exercise, the Centre for Human Rights will convene an annual curriculum development meeting as a forum for the review of disability rights curricula.

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Module overview

Module 1: Introduction to disability rights

The systemic exclusion and marginalisation of people with disabilities from equal participation in all major sectors of our societies is a well documented global phenomenon (World Health Organization & World Bank 2011). As the United Nations Convention on the Rights of Persons with Disabilities (CRPD) attests,

despite various instruments and undertakings, people with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world (CRPD, para (k) of preamble)

Undoubtedly, denial of the equality and human dignity of people with disabilities is a palpable, deep- seated injustice. It should not be allowed to persist unchallenged, including in the African region. In the age of human rights, ‘rights’ are an essential currency for challenging the pervasive denial of the equal citizenship of people with disabilities across the whole gamut of our socioeconomic sectors.

The field of disability rights is experiencing a period of relative growth. In last two decades or so, a steady trend of rising global awareness about disability rights and the imperative of eliminating disability-related discrimination through a rights- based approach has been emerging and taking root (Kanter, 2003). In more recent years, the trend has been galvanised with the adoption of the CRPD by the United Nations Assembly 2006 as well as by more concerted international and domestic advocacy efforts to promote the human rights of people with disabilities since the adoption of the CRPD. The African region is part of this trend partly through efforts that preceded the CRPD. The most notable regional development in this regard was the adoption by the African Union of the Continental Plan of Action for the African Decade of Persons with Disabilities in 1999 and the establishment of the Secretariat for the African Decade of Persons with Disabilities (African Union, 2009: 2). From the outset, the focus of the Continental Plan of Action was decidedly on achieving the ‘full participation and equality’ of people with Disabilities’ (African Union. In recent years, the promulgation of disability rights-specific legislation in a number of countries, including Kenya, Malawi, Tanzania, Uganda, Zimbabwe and Zambia is serving to consolidate this trend (Banda & Kalaluka, 2014; Chilemba, 2014; Kindiki, 2011; Kamundia, 2014; Mandipa & Manyetera, 2014; Oyaro, 2014; Shuguru, 2013). At a rhetorical level, at least, the signs are that the winds of disability rights are blowing across the African region.

The shift from relating to disability as a predominantly charity issue which, at best, engenders state and private benevolence to a rights- based approach that gives rise to vertical and

horizontal obligations has been given human rights imprimatur by the adoption of the CRPD. As will be highlighted in Module 2 (on Protection of PWDs Rights: Global Frameworks), more than two-thirds of African states have ratified the CRPD. This is not to say that the disability-rights struggle has been won and that we can be complacent. Indeed, in the preponderant of African jurisdictions, conspicuous gaps in the formulation and domestication of disability rights remain. Furthermore, greater challenges lie ahead in the implementation and actual fulfilment of disability rights. Rather, it is to highlight that the opportune historical time for the growth and advocacy of disability rights on the African continent appears to have arrived.

But what are disability rights to begin with? What does ‘disability’ mean? What social, cultural or philosophical meanings or understandings shape the normative content of disability rights? Do current societal meanings and understandings of disability and disability rights accord with the goals of inclusive equality? The importance of raising these questions is not so much because we do not know what rights are or that we have no idea, at all, what disability means or should mean. The reason for raising these questions is primarily because disability is far from being a simple concept that engenders consensus. Instead, it is ‘complex, dynamic, multidimensional and contested’ (World Health Organization & World Bank, 2011: 3). The other reason for raising the question is that simply describing something as a ‘right’ does not guarantee its responsiveness to unmet needs. It is possible to have rights which might turn out to be merely token or even regressive. Ultimately, disability rights will only serve a worthwhile purpose if they are transformative in the sense to being substantively responsive to the legacy of disability-related inequality which is structural in nature.

When interrogating the link between disability and structural inequality, especially, disability raises questions about whether justice can be achieved if we continue to remain firmly attached to the body and biological notions of ‘impairment’ as the main and intuitive explanation for the inequalities that people with disabilities experience. Do we not have a better prospect of achieving justice and building an inclusive if we abandon preoccupation with the body and intellectual status and begin to treat disability as much more than what is intrinsic to the body and mind? Should we not also admit into the equation of disability our socioeconomic environment in order to see the disabling effects of the barriers it poses for people with disabilities? Indeed, disability-rights struggles in the last two more decades have been precisely about freeing disability from a paradigm that prizes the body, its anatomy and physiology, as the main explanation in favour of an explanation that attributes disability to the barriers that people with disabilities experience in a society constructed on an unstated norm of ablebodiedness. If rights are to be protective and

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reparative juridical instruments in respect of policymakers, legislators, courts, human rights institutions, civil society and NGOs; disability, then, they also need to be formulated and implemented in ways which acknowledge the the emergence of disability rights as understand environment as a causative and aggravating link in human rights as an outcome predominantly influenced by the ‘social model’ of disability, the creation of disability. And this is precisely what which has served as a counterweight to a ‘medical the CRPD has achieved. model’ of disability; and In its preamble and substantive provisions, the  understand disability rights as primarily human rights that serve to combat the exclusion, CRPD seeks to capture that the normative inclusion marginalisation and stigmatisation of people with of people with disabilities is firmly anchored in disabilities in order to protect their inherent substantive equality. The goal of securing equality dignity and ensure their participation in all and human dignity is the glue that holds the CRPD socioeconomic sectors on an equal basis with together. The chief purpose of the CRPD is to others. ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to Module content promote respect for their inherent dignity’ (CRPD, article 1). An important juridical modality through The main components which the CRPD seeks to ensure the achievement of equality and respect for human dignity is in its consistent emphasis on the duty to accommodate The module is divided into two main parts. The first people with disabilities in all sectors of our socio- part seeks to promote understanding about the economic life. The CRPD conceives failure to nature of rights in general and the importance of provide ‘reasonable accommodation’ as constituting having rights that we describe as disability rights. As discrimination. There is a duty, therefore, to part of building a rationale for disability rights, it reexamine our socio-economic environment to explains that in all cultures people with disabilities render it accessible to disabled people so that the have been at the receiving end of human rights environment does not continue to be disabling. violations and that disability-related discrimination is a reality. In promoting an understanding of The main objective of this module is disability rights in the African region, it is suggested foundational. It serves to provide learners with a that African communitarian traditions and philosophical and socio-cultural base for critically philosophies provide a base upon which to develop understanding the normative value and content of positive conceptions of human rights in ways that disability rights as human rights that are contingent are synergic with the CRPD. To this end, the first upon first understanding the concept of disability part highlights that in the African context, culture through unmasking its various permutations. The needs not have a negative relationship with module seeks to provide learners with a foundation disability. for understanding the multiple dimensions and the contestation that attends the concept of disability as The second part is the greater part of the precursors for understanding that disability rights module. It explores the concept of ‘disability rights’ are an outcome of competing social or cultural but with the accent on the ‘disability’ component of constructions of disability. To this end, the module the concept. It seeks to clarify the concept of will focus on interrogating or deconstructing the ‘disability’ and the normative implications of any meaning of ‘disability’ so that learners acquire a such clarification. It highlights the challenges, and comprehensive and nuanced understanding of indeed pitfalls, of attempting to define disability disability as a concept that is used as an adjective to exhaustively. Furthermore, it uses ‘models’ of describe rights that are intended to protect the disability to explain how disability is social human rights of people with disabilities. The main constructed but highlighting that models of focus is on enabling learners to appreciate the disability are in fact overlapping approaches to underlying social meanings that influence how as disability which do not exist in isolation from one societies we think about disability and how these another. Whilst acknowledging that there is no meanings intersect with the formulation, consensus on what constitutes disability, it is interpretation and application disability rights. suggested that the conceptualisation of ‘persons with disabilities’ in article 1 of the CRPD could be used as a pragmatic base from which to build and promote a Learning objectives domestic understanding of disability in a human rights context, notwithstanding that this conceptualisation it is not without its own critics On completing this module, learners should be able ((World Health Organisation & World Bank to: 2011: 8).  understand ‘disability’ as both an evolving and contested concept whose permutations can be very broad and whose meaning depends on the Lecturer’s notes context and objectives of the interpreter;  understand the various approaches to disability or It serves well to explain at the outset that throughout ‘models’ of disability as socially constructed the module contains parts that are described as meanings of disability which have implications for lecturer’s notes. The lecturers’ notes areitalicised. the formulation of individual rights and They are directed to the lecturer rather than the corresponding duties by stakeholders, including learners. The notes should be understood as suggestions rather than prescriptions to rigidly _________________________________________________________________________________________________________________ D ISABILITYRIGHTS  4

follow. They serve to assist the lecturer in thinking about effective ways for imparting vital knowledge to learners and adapting the module to suit the exigencies of the curriculum at the partner institution, including the unique developments in the jurisdiction where the partner institution is located.

The lecturer’s notes are best treated as food for thought for the lecturer to use when developing or even experimenting with teaching methods that are conducive to interaction with learners. The notes, which are often accompanied by questions to reflect upon, serve to facilitate a closer integration of a learner participatory approach in the module so that interaction between learners and the lecturer or amongst learners need not wait for the formal class activities that are located in the boxes. The lecturer’s notes may also serve to explain any assumptions that are built into the module. The assumptions may not always hold true as much depends on the level at which the module is offered and its duration. Where the assumptions do not hold true, the lecturer will need to make commensurate adjustments.

Student activities

The module containsstudent activities. Class activities are designed not just to promote basic understanding but also to encourage critical thinking so that learners can appreciate the complexities of disability as a discourse. All the activities are in boxes so that they stand out more easily. Because the curriculum is offered at different levels, it is better for the lecturer to determine the appropriate time for assigning class activities. Also, the lecturer is at liberty to design the methods for addressing the class activities, including whether to assign the activities to individual learners or to groups. In general, because there are often two sides to any argument in disability discourses, group exercises serve a better purpose.

Terminology: ‘people (or persons) with disabilities’ and ‘disabled people (or persons)’

It will be highlighted in the second part of the module (§ 3.4.4.5) that the terminology we use to describe people who we see as having disabilities is important. It must serve to affirm rather than undermine the equality and human dignity of people we are describing. For now, however, it can be noted that the modules uses the terms ‘people (or persons) with disabilities’ interchangeably with ‘disabled people (or persons)’ to reflect current accepted usage in different countries and contexts.

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What are disability rights?

Lecturer’s notes

The module assumes that the concept of rights is not new to learners and that it has already been introduced elsewhere in a foundation course in the first year of studying law. Therefore, after an elementary statement about the notion

of rights, and highlighting the cross-cultural nature of the phenomenon of disability, the spotlight should be on explicating the concept of ‘disability’ and ultimately its link with, and implications for, the formulation, interpretation and application of disability rights. If this assumption is not true, such as when the curriculum is offered to learners in the first year of study at the same time as other introductory law courses, then the lecturer will need to adapt the module accordingly, say, by first providing learners with more than an elementary introduction on the nature of legal rights.

When breaking the ice and introducing the topic of rights, learners can be asked whether we can do without rights if our goal is to respond to structural inequality and build an inclusive society. Learners can be asked to reflect on why the biggest historical event in modern Africa – decolonisation and the independence of African countries – was marked by the adoption of constitutions containing a Bill of Rights. Learners can be asked to reflect on the significance of what was contained in the equality clauses of the Bills of Rights of their own country. It is also important to ask learners whether ‘disability’ is featured in independence constitutions, expressly or impliedly? If disability did not feature, learners can be asked to reflect on the possible explanations? As most African countries have since reviewed the independence constitutions, learners can be asked to reflect on what has changed, in new constitutions in respect of disability. If disability is now expressly included in the equality clauses, learners can, likewise be asked to reflect on the significance of this development and its connection with disability rights.

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Some basic premises about rights

We can begin by refreshing our memory about the nature of rights in general. We can start by recalling what is common to all rights. We can recall a common understanding of the place of rights in African jurisdictions that under the provisions of their own domestic constitutions, regional instruments and United Nations instruments are committed to respect for democratic principles, human rights, rule of law and good governance. We can approach disability rights as any other rights to highlight that they are not a special or exceptional category of rights. In highlighting the ordinariness of disability rights, our point of departure should be to note that:

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Though disability rights are sometimes described as new or it can be argued that some rights are formulated in new ways (Dhanda, 2008; Mégret, 2008), ultimately, disability rights are not new rights in a human rights sense. Rather, they bring poignancy to human rights thatalready exist but have been historically denied, neglected or marginalised. Disability rightsreaffirmthat people with disabilities are entitled to the respect of their inherent dignity and of all human rights and fundamental freedoms on an equal basis with others (Preamble to, and article 1 of, the CRPD). When conceived as human rights which already inhere in individuals by reason of being human, disability rights become also moral rights and not merely legal claims or entitlements. There are more than whatisfound in positive law and there are whatoughtto be found in positive law. As human rights, disability rightsmay be protected by existing domestic law ormay not be

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protected by existing domestic law. There is frequently a gap between rights that are proclaimed and rights that are in fact protected by domestic legal regimes, or even international legal regimes (Viljoen, 2012: xv). Attaching the language of rights to something gives it normative force. It translates rights into something more than a mere desire or aspiration. Like any other juridical instruments, disability rights areclaim rights1913). They give (Hohfeld, rise to correlative duties which are enforceable. In the age of constitutionalism and human rights, disability rights ought to be taken seriously precisely because they come with juridical obligations (Dworkin, 1977). When rights are not taken seriously, the expectations of the rights- holders are disappointed and injustices persist. Disability rights havevertical as well ashorizontal application (Scheinin, 2012) in that they are binding on the state as well as on private individuals. If disability rights are conceived as only binding the state, then, they will be of limited reach as private individuals will not be placed under an obligation to desist from discrimination and treat disabled people equally. As part of its vertical obligations, the state has an obligation to regulate the conduct of natural and legal persons to ensure that they respect, protect and fulfil the rights of people with disabilities. The state as a duty to adopt measures such as legislative and administrative measures that require private individuals to respect the rights of disabled people to human dignity and equality in the provision of services. Inaction on the part of the state or impediments which are posed by the state or its organs in the implementation of legal entitlements, or constraints which are the outcome of varying economic, social or cultural circumstances of rights-holders, including ignorance about rights and lack of means, serve to seriously undermine the capacities of people with disabilities to assert and realise their human rights. The state bears a constitutional and human rights responsibility to ensure that rights guaranteed to citizens in domestic constitutions, legislation and in ratified human rights treaties, are not mere tokens. Rights-holders, especially vulnerable and historically disadvantaged groups such as people with disabilities, must be able to derive benefits from rights in practice, including the rights that are guaranteeing in the CRPD. In order to transform the history of exclusion and material deprivation of people with disabilities, in their human rights form, disability rights subscribe to the indivisibility, interdependence and interrelatedness of all fundamental rights and freedoms (Preamble to the CRPD, para (c)). Disability rights are holistic rights that conflate rather than maintain a dichotomy between civil and political rights on the one hand and socioeconomic rights on the other. The substantive provisions of the CRPD are replete with examples of a holistic approach to human rights that combines both civil and political rights and socioeconomic rights. Article 19 on independent living serves as an example. The state has an obligation to not only recognise the equal right of persons with disabilities to live and participate in the community and to exercise choice over their place of residence and living arrangements, but also to take positive steps to facilitate the realisation of this right, including ensuring that persons with disabilities have access to residential and other community support

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services such as personal assistance that is necessary to support living and inclusion in the community. To fulfil disability rights, states should adopt positive measures, including legislative, administrative and programmatic measures, to establish an enabling environment in which to realise the rights that are guaranteed. For rights to be meaningful in any democracy, rights-holders should have the means with which to realise their rights. At a minimum, rights-holders should have information about their rights as well as knowledge about how to exercise the rights. The now well-established mantra of the obligations to respect, protect and fulfil, apply equally to disability rights (Scheinin, 2012). Courts (and tribunals) are well positioned constitutionally and institutionally to interpret and apply disability rights, including holding the executive accountable where there has been a violation of commission or omission. However, the promotion of effective realisation of disability rights requires a multi-sectoral approach which includes but is not confined to the role of the courts. Even with generous rules for recognisinglocus standi, nonetheless, courts depend on disputes being brought to them. They cannot intervene on their own. When courts decide cases, they tend to intersect with the rights of the parties before the court rather than to the broader community. Courts are, therefore, limited in their capacity to develop comprehensive standards and best practices for respecting, protecting and promoting disability rights. Because of the constitutional doctrine of separation of powers, courts cannot generally be proactive in advocating for transformation of all socioeconomic sectors that impact on the life of people with disabilities with a view to building an inclusive society. As part of democratic participation, human rights institutions, equality and disability commissions, civil society, NGOs, people with disabilities, disabled peoples’ organisations, human rights activities, and other pertinent stakeholders all have role in giving life to disability rights and not just the courts.

Cross-cultural nature of disability discrimination

Lecturer’s note:

We need disability rights that are grounded and rather than rights that merely remain in the CRPD as an absract document. It would be incomplete, therefore, to discuss the notions of disability rights and disability without at the same time reflecting on their intersections with ‘culture’. Ultimately, the concept of disability is anchored in culture. However, when introducing the intersection between culture and disability discrimination, the lecturer should guard against promoting simplistic, stereotypic, racist, colonial notions that are denigrating to the dignity of Africans. On reading Western anthropolocial accounts, or some press releases in the Global north, practices that are in fact derogations from contemporary African cultures are sometimes purveyed as marking the norm even when the majority of African communities are unambiguosuly against the practices because it harms others.At the same time, critical thinking which eschews cultural or political correctness must be encouraged amongst learners. Culture

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should be approached with a view to avoiding  Equally disconcerting, today, in some parts of Africa, people with disabilities live a precarious overgeneralisations that obscure nuance or promote existence not only on account of material exceptions to become the rule. Discussion on the deprivation, discrimination and social isolation, intersection between culture and disability should not only but also because of real threats to their lives. seek to uncover the negative elements (of which there is an People who are born with albinism are a case in abundance of), but also the positive aspects. point. In some parts of Africa, they have been murdered in ritual killings to obtain body parts by Some of the questions that can be put to learners in those who believe that albinism has magical order to introduce the cultural dimensions and to promote powers (Shout Africa, 2010). critical thinking about culture as something that is  Historically, especially in countries in the Global dynamic and not hermetically sealed can be along these North, institutionalisation of persons with lines: What is African culture? What is a traditional disabilities, especially persons with intellectual African society? Does culture change? Is everything that is disabilities, has been part of the response to the done in the name of African culture part of African culture? need to provide care and assistance. However, institutionalisation of persons with disabilities has Does African culture have something to say about come with its fair share of serious and gross disability? What are the negatives and what are the human-rights violations of persons supposedly in positives in African culture in its interaction with care. Institutionalisation has become for many disability? Can we pass laws to discipline culture? people with disability synonymous with neglect, mistreatment and abuse (Kanter, 2015: 65-66). Though institutionalisation of persons with 1.3.2 Culture and negative relationship with disabilities has not been nearly as prevalent in the disability African region, nonethless, it exists and raises the same human rights concerns. Article 19 of the CRPD on the right to independent living is The fact that the UN General Assembly conceded, specifically intended to respond to the flight of albeit after many years of delay and prevarication, to coerced institutionalisation of persons with adopt the CRPD global instrument to protect the disabilities by requiring states not only to rights of people with disabilities across the world in recognise that persons with disabilities have a 2006, underscores the reality of the global nature of right to live and participate in communities but to the phenomenon of disability-related discrimi- also facilitate this choice by providing material nation. It underlines the cross-cultural nature of the and other support. bane of disability-related discrimination. Though the plight of people with disabilities is more In capturing these extreme violations of the human accentuated in the Global South on account of rights of people with disabilities, the intention is not relative material differences and poverty, to portray them as the average societal reaction to nonetheless, disability is not the preserve of a disability or to claim that people with disabilities are particular culture. It an age-old bane. In making this alwaysperceived in a negative light and arealways point we may use the following premises as points of subject to discrimination. Rather, it is to highlight departure: that cross-cultural fixation with the myth of bodily and intellectual perfection is a historical truism that  Disability exists throughout the world, without is generalisable to a large extent. At the same time, respect for national, ethnic or cultural boundaries it is also equally important to enter important (Ingstad & Whyte, 1995; Anderson, 2004: 4). caveats as a way of also capturing that culture can  Whether disability is viewed as bodily, intellectual also relate positively to disability. or physiological impairment, or failure by society to accommodate ‘impairment’ or a combination 1.3.3 Culture and positive relationship with of the two, disability is present in all societies whether in the Global north or south (Barnes, disability 1996: 43-49).  Across cultures, there has been a clear historical When reflecting on the intersection between culture tendency to perceive people with disabilities in and disability, especially in African communities, negative light as misfortunes and dependants and we can also note that: as people that are intrinsically incomplete and imperfect.  Across cultures, there are also positive historical  Historically, people with disabilities have not only portrayals of people with disabilities, including in endured exclusion and isolation. In some cases, African societies (Groce, 1985; Scheer & Groce, society has also gone as far as visiting official as 1988; Talle, 1990; Kisanji, 1995; Kisanji, 1998). well as unofficial annihilation upon people with  In his study of community attitudes towards disabilities. For example, the Greeks abandoned people with disabilities in Tanzania, for example, disabled babies to the hillsides to die, while the Kisanji found that negative attitudes were Chinese drowned disabled people in rivers. The juxtaposed with positive attitudes which exhibited Christian church in the 15th century was a spirit of accommodation and relations of superstitious about disabled people, perceiving equality and respect for human rights (Kisanji, them as punishment for sin or incarnations of the 1995). ‘devil’ (Barnes, 1996).  While African societies are diverse, there are  Across cultures, including in some African certain generalisable traditions and philosophies traditional societies, infanticide has historically which we can tap into to establish a cultural been sanctioned for certain categories of disabled archive that impacts positively on promoting the babies (Chimedza & Peters, 1999). human rights of people with disabilities in African  In modern times, the Third Reich took eugenic societies even if the traditions and the thinking to the ultimate extreme when it philosophies may not have specifically addressed sanctioned, amongst other murderous acts, the disability (Cobbah, 1987). More specifically, the killing of disabled people (Müller-Hill, 1988). _________________________________________________________________________________________________________________ D ISABILITYRIGHTS  7

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