Aspects of disability law in Africa

Ilze Grobbelaar-Du Plessis, Tobias Van Reenen

Description

In Africa, exclusion, prejudice and discrimination remain common experiences for millions of people with disabilities. Poverty, malnutrition, low school enrollment rates for children with disabilities, inadequate or inaccessible health care, and lower employment rates are shared features of the daily lives of persons with disabilities. Fragile states, post-conflict countries and natural disasters often exacerbate the conditions in which people with disabilities exist. As do negative cultural beliefs about disabilities and attitudes toward persons with disabilities which remain very real and deeply entrenched.Despite these physical, structural and attitudinal barriers, we are beginning to make progress. The past 15 years, have witnessed some major achievements. Perhaps the most important is the supplanting of the medical model of disability by the social model. The social model conceptualises disability as arising from the interaction of a person’s functional status with their physical, cultural and policy environments. This in my view impelled the development of and the entry into force of the UN Convention on the Rights of Persons with Disabilities. It has bolstered an unprecedented growth of Disabled People’s Organisations throughout the Continent. It has also increased political space for persons with disabilities evidenced by an increasing number of Disabled African Parliamentarians and finally it has wedged its way into constitutional and legislative frameworks recognising the rights of persons with disabilities.Creating an enabling environment, with good laws, inclusive development policy and practice means understanding inequality in a complex way, and developing ways of working which acknowledge difference, rather than suppressing it. It means practicing as we preach, by transforming our own perceptions and stepping out of our comfort zones. This entails confronting issues of power, culture and inequality, acknowledging that disability is part of the human condition, and planning for more inclusive societies. Each one of us lives life as a carrier of multiple identities – including disability, race, gender, class and age. All these add up to determine our opportunities in life, to empower or disempower us, depending on our context. This book through the various chapters focuses on the implications that this has for disability, development and human rights.About the editors:Ilze Grobbelaar-du Plessis is a senior lecturer and holds the degrees BIuris LLB LLM LLD from the University of Pretoria.Tobias van Reenen is Professor of Law, University of the Western Cape.

Sujets

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

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2012
• Nombre de lectures: 1
• EAN13: 9781920538026
• Langue: English

Extrait

Aspects of disability law in Africa

Aspects of disability law in Africa

Ilze Grobbelaar-du Plessis and Tobias van Reenen (editors)

Pretoria University Law Press PULP

2011

Aspects of disability law in Africa 2011

Published by Pretoria University Law Press (PULP). 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.

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

The contents of this book was peer reviewed prior to publication.

To order, contact:

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

ISBN 9781920538026

© The authors 2011

Design and typography: HOND CC, Pretoria Printed and bound: ABC Press, Cape Town

THE WORLD BANK Washington, D.C.

Aspects of disability law in Africaforms part of the Rule of Law in Africa Project funded by the World Bank

Contents

Foreword Charlotte McLain-Nhlapo

The contributors

Introduction to aspects of disability law in Africa Ilze Grobbelaar-du Plessis & Tobias van Reenen

vii

PART I:Humanitarian assistance, human rights and developments in African jurisdictions

Human rights and humanitarian assistance for refugees and internally displaced persons with disabilities Michael Ashley Stein & Janet E. Lord

The promotion and protection of disability rights in the African human rights system Japhet Biegon

Protecting the disabled in Botswana: An anomalous case of legislative neglect Jimcall Pfumorodze & Charles Fombad

PART II:The rights of children with disabilities in Africa

From pillar to post: Legal solutions for children with debilitating conduct disorder Trynie Boezaart & Ann Skelton

Domesticating international standards of education for children with intellectual disabilities: a case study of Kenya and South Africa Lorenzo Wakefield & Nkatha Murungi

ix

xv

31

53

85

107

133

PART III:Labour law, social security, development and policy

The right to equality in the workplace for persons with physical disabilities in Malawi: Does the Convention on the Rights of Persons with Disabilities offer any hope?” Victor Jere

The social security rights of caregivers of persons with disabilities Kitty Malherbe

International financial institutions and the attainment of the UN Millennium Development Goals in Africa – with specific reference to persons with disabilities Tobias van Reenen & Helene Combrinck

Protection of disabled employees in South Africa: An analysis of the Constitution and labour legislation Ilze Grobbelaar-du Plessis & Stefan van Eck

The rights of people with disabilities in Botswana: Legal, institutional and policy framework Bonolo Ramadi Dinopila

Bibliography

159

181

197

231

261

281

Foreword

In Africa, exclusion, prejudice and discrimination remain common ex- periences for millions of people with disabilities. Poverty, malnutrition, low school enrollment rates for children with disabilities, inadequate or inaccessible health care, and lower employment rates are shared features of the daily lives of persons with disabilities. Fragile states, post-conflict countries and natural disasters often exacerbate the conditions in which people with disabilities exist. As do negative cultural beliefs about disabilities and attitudes toward persons with disabilities which remain very real and deeply entrenched. Despite these physical, structural and attitudinal barriers, we are begin- ning to make progress. The past 15 years, have witnessed some major achievements. Perhaps the most important is the supplanting of the medical model of disability by the social model. The social model conceptualises disability as arising from the interaction of a person’s functional status with their physical, cultural and policy environments. This in my view impelled the development of and the entry into force of the UN Convention on the Rights of Persons with Disabilities. It has bolstered an unprecedented growth of Disabled People’s Organisations throughout the Continent. It has also increased political space for persons with disabilities evidenced by an in- creasing number of Disabled African Parliamentarians and finally it has wedged its way into constitutional and legislative frameworks recognising the rights of persons with disabilities. Creating an enabling environment, with good laws, inclusive develop- ment policy and practice means understanding inequality in a complex way, and developing ways of working which acknowledge difference, rather than suppressing it. It means practicing as we preach, by transforming our own perceptions and stepping out of our comfort zones. This entails confronting issues of power, culture and inequality, acknowledging that disability is part of the human condition, and planning for more inclusive societies. Each one of us lives life as a carrier of multiple identities – including disability, race, gender, class and age. All these add up to determine our opportunities in life, to empower or disempower us, depending on our context. This book through the various chapters focuses on the implications that this has for disability, development and human rights.

vii

Today, we are poised to build a more inclusive society and make new progress toward our ultimate goal of creating the conditions where people with disabilities will be able to participate and contribute to society. This is our time. And it is upon us to seize this historic opportunity and chart a new course for persons with disabilities in Africa. Our success in operationalising this will depend on our ability to move forward together, as partners and as a collective, and to cultivate the political will required to elevate disability. We need to leverage the symbiotic relationship between development and rights, and empower persons with disabilities to claim their full rights and take full advantage of development processes and be active citizens. Building policy capacity for evidence-based development and laying the foundations for the enjoyment of rights must be more than a notion. It must become our reality. To make smart, informed decisions, we need an ever expanding body of work that is relevant to the specific contexts in which we operate. Knowledge is integral to any successful endeavor, but it is especially critical for understanding disability inclusive development where the level of complexity is so high and so under researched. This book does precisely that. It contributes to a knowledge foundation for change. Highlighting cultural norms and practices from Botswana to Kenya as well as legal theory, this book is a resource that will be important to students, researchers, practitioners and policy makers interested in disability, rights and development in Africa. This work explores the issue of disability and rights in a variety of African contexts and succinctly highlights areas where continued work is needed to better the lives of persons with disabilities in Africa. There is much to be done to get us to where we need to be. Change is best achieved by breaking the silence around exclusion and providing voice, so that people with disabilities can be part of the solution and not seen as the problem. That will be our challenge. The scale of the challenge remains significant, but so too is the scale of our ambition. I believe we can make the difference between inclusion and exclusion for millions of people with dis- abilities in Africa. The contributing authors of this book can be proud of their contribution in being part of this. I am more convinced than ever that we can, and must, address these important issues covered in this book that affect millions of Africans with disabilities and their families.

Ms Charlotte McClain-Nhlapo Head of Disability & Inclusive Development, USAID, Washington DC, United States of America. 27 September 2011.

viii

CONTRIBUTORS

Japheth Biegonis a researcher and doctoral candidate at the Centre for Human Rights, Faculty of Law, University of Pretoria. He holds an LLM degree in Human Rights and Democratisation in Africa from the University of Pretoria and an LLB degree from Moi University, Kenya. He also holds a diploma in International Protection of Human Rights from the Institute for Human Rights, Abo Akademi University, Finland. He has served as a co- consultant (on the feasibility and desirability of an African disability rights treaty) to the Secretariat of the African Decade on Persons with Disabilities, engaged in organising a disability training workshop in Kampala, Uganda, and served as a rapporteur of a disability rights roundtable in Maputo, Mozambique.

Trynie (CJ) Boezaart(previously Davel) is Professor in, and Head of the Department of Private Law at the University of Pretoria. She was in- strumental in the founding of the Centre for Child Law in 1998. She specialises in Child Law, the Law of Persons and Delict. Her publications include textbooks such asLaw of Persons(5th edition in 2010) and various chapters in books such asChild Law in South Africa(2009),Commentary on the Children’s Act(2008) andChildren’s Rights in Africa: A Legal Perspective(2008). Currently her research focuses on the rights of children with disabilities.

Helene Combrinckis a senior researcher at the Centre for Disability Law and Policy, which forms part of the Law Faculty at the University of the Western Cape. She previously worked as the coordinator of the Gender Project at the Community Law Centre, also at the University of the Western Cape. She has published in both the areas of women’s rights and disability rights and she recently completed her doctoral studies on women’s right to freedom from violence. Although her research focuses on disability rights broadly, she has a particular interest in intellectual and psychosocial disability and the development of disability law in Africa.

ix

Bonolo Ramadi Dinokopilawith an LLB degree from the graduated University of Botswana and is a practicing and duly admitted attorney of the Courts of Botswana. He holds a Master of Laws degree (cum laude) from the University of Pretoria, Faculty of Law, Centre for Human Rights, South Africa specialising in Human Rights and Democratisation in Africa. After completing his LLM degree, he was appointed an academic tutor for the same LLM programme and started his doctoral degree with the Centre for Human Rights further specialising in international human rights law. He is currently a doctoral candidate with the University of Pretoria and a Lecturer in the Department of Law, University of Botswana where he teaches, among other subjects, Constitutional Law, Customary Law, and Human Rights Law. He is also an Associate Attorney with Duma Boko & Co., a leading law firm in human rights litigation in Botswana.

Charles Manga Fombadthe Department oflaw and Head of is Professor of Public Law, Faculty of Law, University of Pretoria. He holds a Licence en Droit (University of Yaounde), LLM and PhD (University of London) and a diploma in Conflict Resolution (University of Uppsala). He is the author/ editor of 8 books and has published more than 50 articles in international refereed journals, more than a dozen book chapters as well as numerous other publications and conference papers. His research interests are in comparative constitutional law, international law, legal history and media law.

Ilze Grobbelaar-du Plessisobtained the degrees B Iuris LLB, LLM and LLD from the University of Pretoria, South Africa and was admitted as a attorney of the High Court of South Africa in 1998. She is a Senior Lecturer in the Department of Public Law in the Faculty of Law at the University of Pretoria, South Africa. The title of her doctoral thesis wasDisability Law: An International and Legal Comparative Analysis.

x

Victor JereMalawi andholds an LLB (Hons) degree from the University of an LLM in Human Rights and Democratisation in Africa from the University of Pretoria. As part of his LLM, he did a 3 months internship with the AIDS and Human Rights Research Unit at the University of Pretoria and attended the 42nd Ordinary Session of the African Commission on Human and Peoples’ Rights in Abuja, Nigeria. In 2009, he contributed a chapter titled ‘The right to health and access to medicines in Africa: An analysis of the jurisprudence of the African Commission on Human and Peoples’ Rights’ in Casebook Three (3) of the African Human Rights and Access to Justice Programme (AHRAJ). He also worked as an in country research facilitator for the Disability and Law School Project in Southern Africa which is a project being run by the Open Society Initiative for Southern Africa. Cur- rently, he is partner at Churchill & Norris Law Consultants, a vibrant, fast growing and prestigious law firm in Malawi.

Janet E. Lordis a senior partner at BlueLaw International, LLP, where she directs the human rights and inclusive development practice. She participated in all of the negotiating sessions during the drafting of the UN Convention on the Rights of Persons with Disabilities, serving as legal advisor to Disabled Peoples’ International, several lead governments and as technical expert to the United Nations. She has worked on disability law and policy in more than 30 countries and is a Research Associate at the Harvard Law School Project on Disability and Adjunct Professor of Law, University of Maryland School of Law. She holds degrees from the University of Edinburgh (Scot- land), the George Washington University Law School and Kenyon College.

Kitty Malherbethe Western Cape.is a Senior Lecturer at the University of She teaches Social Security Law and Labour Law on undergraduate and postgraduate level. Her research interests include social security benefits available to older persons and persons with disabilities, as well as to their caregivers. She is currently supervising LLM and LLD theses and mini- theses on topics related to social security benefits for persons with disabilities.

xi