This section also expressly protects the rights of disabled persons by providing that the state must take whatever steps necessary “to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination”. These steps are inclusive of the enactment of national legislation, as well as the monitoring of the development of such vulnerable groups. It is noteworthy that the rights of people with disabilities are not necessarily expressly protected in an equal manner by the constitutions of other democratic nations. Many jurisdictions have had to enact legislation to strengthen and give effect to any non-discrimination clauses their constitutions may possess.

South Africa does not have specific legislation pertaining to the rights of people with disabilities, but rather, one may find protection for people with disabilities in legislation such as the Employment Equity Act, as well as the Promotion of Equality and Prevention of Unfair Discrimination Act.

In 2010, the Open Society Initiative for Southern Africa (OSISA) together with the Open Society Foundations’ Disability Rights Initiative and the Open Society Foundation for South Africa, conducted research into disability rights in nine southern African countries. The research found that whilst the state of affairs varies from country to country, in general, people with disabilities are the most marginalised persons in southern Africa. Investigations show that people with disabilities experience the highest rates of poverty, malnutrition and child mortality – amongst other challenges – in societies and economies that are already struggling. It seems that in all these countries, people with disabilities are not treated with the necessary priority by their governments. In addition, since most countries do not have a dedicated ministry or department taking responsibility for the needs of people with disabilities, the latter are addressed as incidentals of other national departments.

Kenya, on the other hand, has specific legislation addressing the rights of people with disabilities – the Persons with Disabilities Act which aims to “achieve equalisation of opportunities for persons with disabilities; to establish the National Council for Persons with Disabilities; and for connected purposes”. The Act is currently under review to align it with the Kenyan Constitution of 2010, the Convention on the Rights of Persons with Disabilities and other international human rights treaties and conventions. Arguably, this is indicative of a government committed, at least in principle, to protecting the rights of people with disabilities. Australia has the Disability Discrimination Act, which is implemented by the Australian Human Rights Commission (AHRC). Complaints about discrimination and infringements of human rights can be made to the AHRC. The institution also monitors the development of people with disabilities and assists in legal proceedings in this regard. The United Kingdom protects the rights of people with disabilities by means of the Equality Act and the Convention on Disability Rights. The Equality and Human Rights Commission performs similar tasks to its counterpart in Australia.

South Africa has made some attempts at addressing the rights of people with disabilities. For instance, the government has implemented social security mechanisms to help alleviate the challenges faced by disabled persons in the country through the South African Social Security Agency (SASSA). There are, of course, certain conditions to be met prior to qualification for a disability grant. One must be over 18 and a citizen or permanent resident of South Africa. Grants are also available to refugees. However, if one is living in a state institution such as an old age home or a psychiatric hospital, that person is disqualified from application. Whilst these efforts are admirable, the grants are often insufficient in meeting the needs of people with disabilities.

These attempts at meetings the needs of people with disabilities are, however, inadequate. Not only has the state failed to meet its self-imposed standards, it has also failed to fulfil its international obligations as contained in the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights as well as the Convention on the Rights of People with Disabilities. No comprehensive legislation or framework exists to monitor and alleviate the challenges faced by people with disabilities. This has prompted the formation of the South African Disability Alliance (SADA), which is a body comprising the 13 national organisations representing disability in South Africa, such as Disabled People South Africa (DPSA). These bodies have taken it upon themselves to assist each other when and where they can.

The gap created by the lack of legislation aimed at addressing the needs of people with disabilities has also resulted in the proliferation of a number of documents being developed by people with disabilities in South Africa. These documents express the demands and needs of people with disabilities in terms of equal rights and mechanisms to address their challenges. Documents such as the Disability Rights Charter of South Africa assert the rights of people with disabilities in South Africa who have experienced discrimination and marginalisation. There are other charters which address specific disabilities – be it physiological or intellectual. These documents can be used by the legislature when it eventually considers legislation to protect this group of people.

Discrimination can also result from legislation that is enacted to protect the rights of people with disabilities, but which is ineffectively and inappropriately administered or monitored. This means that, where there is no legislation, a culture of human rights abuse can and most probably will flourish. Even if the state is not actively infringing these rights, the inability to protect, promote and fulfil the rights of people with disabilities (and to prevent unfair discrimination against them) is equally a violation of human rights and of section 7 and section 237 of the Constitution. The approach to protecting the rights of people with disabilities in Kenya, Australia and the United Kingdom can be of inspiration to South Africa. While the Constitution recognises the need to protect vulnerable groups, the legislative gap suggests that the state can do much more to protect and promote the rights of people with disabilities. 

 By Rebecca Sibanda: Intern, Centre for Constitutional Rights

[Photo credit:]