South Africa has followed suit and declared the same day as the National Day of Persons with Disabilities. The country has also signed and ratified the United Nation’s Convention on the Rights of the People with Disabilities (CRPD), which binds the nation to an international standard in the promotion and protection of the human rights of all persons with disabilities. Other regional instruments such as the African Charter on Human and People’s Rights further bind the country to provide special measures of protection in keeping with the physical needs of persons with disabilities.
The Constitution at section 9 provides for equal protection and benefit of the law and a right to non-discrimination to everyone. Section 9 provides that the state may not unfairly discriminate either directly or indirectly against anyone on one or more grounds including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
Section 9(4) further provides that no person may unfairly discriminate directly or indirectly on one or more grounds, including disability. While there are no comprehensive disability laws dealing exclusively with disability or with persons with disabilities, there are however, various laws that either mention people with disabilities or deal with matters pertaining to disabilities. For example, the Promotion of Equality and Prevention of Unfair Discrimination Act specifically includes discrimination against people with disabilities, as does the Labour Relations Act which regulates the right to fair labour practices while forbidding unfair discrimination on arbitrary grounds such as disability. The Mental Health Care Act regulates the manner in which the property of persons with mental illnesses and persons with severe or profound intellectual disability may be dealt with by a court of law. Policies in place such as the National Disability Strategy provide guidance for disability considerations in policy and legislative reform.
As such, it is apparent that the presence of these laws and policies indicates a nation that is largely aware that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person. However, a real, often ignored concept in the disability rights discourse is the notion of “ablesim”, which in effect discriminates against people with disabilities in favour of people who are not disabled.
Even the CRPD in its preamble recognises that “that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others”. “Ableist” societies tend to treat non-disabled persons as the standard of ‘normal living’. The result of this is that public and private spaces, and services are built to serve ‘normal living’ people and thus inherently excluding persons with disabilities.
The built environment, for example, places barriers for disabled people. While able-bodied persons assume free movement to be a right, access to transportation, easy movement on streets and through buildings are all the components of an accessible environment which may not always be the case for persons in wheelchairs. There may, from time to time, be prudent reasons for limiting access to some environments, such as construction sites, however the level of access referred to here, often inadvertently excludes many other persons. Even high counters and shelves in shops create a barrier in accessing products and services. This is also true of the lack of information in braille signs or audible announcements for visually and aurally impaired persons.
While there are advances on the medical front, a long held practice was to view disabled people as the problem, requiring disabled people to adapt to the word as is – or else being institutionalised. These outdated medical views saw disability as a problem to be both feared and patronised, with disabled persons having very little autonomy over their own lives. The media too can reinforce pervasive negative views of disability – which only adds to the narrative that disabled people are somehow tragic and to be pitied, a view which does not serve society in any way.
A society which views itself through “abelist” lens breeds isolation and paternalism amongst persons with disabilities whereas an inclusive society creates interdependency between the able-bodied and the disabled. In rethinking society’s inadvertently ablelist default position, something as simple as watching our everyday language can be a useful starting point. Abelist vocabulary refers to words or phrases which either intentionally or tacitly target persons with disabilities such as ‘crazy’, ‘lame’ or ‘retarded’. While they are arguably mild hyperboles, they can also be insulting to individuals with actual mental or physical disabilities.
The laws and policies indicate, at the very least, a political will for people with disabilities to enjoy the full spectrum of civil and political, economic, social, cultural and development rights. However, this political will by itself may be insufficient. Greater society needs to move towards an inclusive barrier-free approach in which all persons can achieve their fullest potential.
By Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights