SOUTH AFRICA COUNTRY PRESANTATION By: Looks Matoto: Deputy Chair Human Rights, Disabled People South Africa (DPSA)
, “For centuries, people with disabilities have been ... isolated, incarcerated, observed, written about, operated on, instructed, implanted, regulated, treated, institutionalised and controlled to a degree probably unequal to that experienced by any other minority group.” (Davis 1997)
Situational analysis • 1. The 1994 elections heralded a new era for South African society built on the principles of non-discrimination, democracy and equality for all, including disabled people. The African National Congress (ANC), while preparing to govern, held extensive consultations with the Disability Rights Movement
Situational analysis continue… • represented by Disabled People South Africa (DPSA), to determine how the incoming government should approach protection and promotion of the rights of disabled people. Consensus was reached that the principle of self-representation of disabled people in all matters affecting their lives,
Cont. • as well as mainstreaming disability across government machinery, was non-negotiable. This consensus translated into, among other things: • The establishment of the Disability Programme within the former Reconstruction and Development Programme (RDP) in the Presidency in 1995,
Cont. • evolving into the Office on the Status of Disabled Persons (OSDP) established in the Presidency in 1997, and eventually into the Department of Women, Children and People with Disabilities, established in 2009;
Cont. • self-representation by disabled persons in Parliament, provincial legislatures, municipal councils, human rights instruments such as the SA Human Rights Commission (SAHRC), the Commission on Gender Equality,
Cont. • the Public Service Commission, as well as development agencies such as the former National Youth Commission, later restructured into the National Youth Development Agency, as well as the Office on the Status of Disabled Persons established in the Presidency and in the majority of provinces; and
Cont. • South Africa as such became a leading force in the campaign for, and eventual development of the UN Convention on the Rights of Person with Disabilities (CRPD) which, in its final format, embodies the principles of the South African process set in motion in 1994
Cont. • to advance the progressive realisation of the rights of disabled persons as equal citizens. Implementation of the CRPD in South Africa therefore actually commenced in 1994 and not in 2007, when the Convention was officially ratified by South Africa, or in May 2008, when it came into force.
Cont. • As a result of self representation, Some disabled people enjoy high status and high visibility in South Africa. There are, for example, a number of disabled Members of Parliament and the most prominent among these is the current, Deputy Minister of Women, Children and Persons with Disabilities, the Hon. Hendrietta
Cont. • Bogopane-Zulu, who was formerly the Deputy Minister of Public Works. • The most recent appointment of the hounarable MICHAEL MASUTHA also an activist of note, for the rights of disabled People, under the umbrella of DPSA, as Deputy Minister of Science and Technology,
Cont. • indicates the strong resolve by the president of South Africa to recognize that disabled people can add value in society, only if they are given space and opportunity to play their role without hindrance.
We have been able to grow self-representation by disabled activists in our national, provincial and local legislatures from 1 national representative in 1994 to 16 Members of Parliament, 8 Members of the Provincial Legislatures and 72 councillors who are disabled.
Cont. • Despite the few mentioned above, disabled people remain poverty stricken. • Employment is a major challenge
It is important to mention that, we are delighted by the leadership shown by the Ministry of Women, Children and Persons with Disabilities in this regard. Their current figure of 5.5% is a beacon of hope.
Cont. • The interrelatedness of disability and poverty is articulated in South Africa’s National Development Plan (NDP) adopted in 2012, which states that:
Cont. • “Disability and poverty operate in a vicious circle. Disability often leads to poverty and poverty, in turn, often results in disability. People with disabilities face multiple discriminatory barriers. Disability must be integrated into all facets of planning, recognising that there is no one-size-fits-all approach.”
Normative framework and implementation • Emphasis fell more on popularising the Convention across government and civil society, without this process merging into a co-ordinated domestication programme of action with clear targets.
Cont. • Priority areas for implementation of the CRPD for the period 2009-2014 were as incorporated into the national priorities of Government i.e. education, employment, health, safety and security as well as, to a lesser extent, rural development.
Normative framework and implementation continue… • The interpretation of, among others, equality and non-discrimination as well as reasonable accommodation has been tested in a number of legal actions, and examples are discussed here below
Cont. • The Constitutional Court determined in Prinsloo v Van der Linde & Another 1997(3) that human dignity constitutes a criterion to determine unfair discrimination.
Cont. • The Court endorsed the view that “at the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.”
Cont. • The importance of human dignity was also emphasised in W H Bosch v The Minister of Safety and Security & Minister of Public Works, Case no. 25/2005 (9) when the Equality Court in Port Elizabeth held that “there is no price that can be attached to dignity.
Cont. • There is no justification for the violation or potential violation of the disabled person’s right to equality and maintenance of his dignity that was tendered or averred by the respondent…the Court therefore found the discrimination to have been unfair.”
Cont. • The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, stipulates that all high courts are equality courts.
Designation of magisterial courts as equality courts by the Minister of Justice and Constitutional Development takes place only once presiding officers and staff for such courts have received appropriate training. There are currently 386 equality courts in South Africa.
Equality Courts should in principle provide easy access to persons who believe they have been discriminated against, on among other things, the basis of disability
It is important to note that a complainant only needs to make out a prima facie case of discrimination after which the burden of proof shifts to the respondent, who must prove that such discrimination did not take place or, if it did, that it was not unfair.
It is recognised that there is a persistent disjuncture between the theoretical framework and the lack of effective implementation of such rights. So while disabled persons are, in principle, able to harness the law to protect and pursue interests on an equal basis with others,
Cont. • a number of obstacles, including persistent harmful traditional beliefs, ingrained stigmatisation and consequent discrimination on the one hand, and the interrelatedness of disability and poverty on the other, the inability to afford legal fees,
Cont. • lack of information in the use of equality courts, accessibility of equality courts, communication barriers, lack of a disability-sensitive judiciary and court staff, inaccessible buildings and transport, detract from the equality provided for in law.
Cont. • The court process as such has generally remained under-utilised, which can be seen in the dearth of disability-related legal judgments produced annually.
Cont. • The South African Human Rights Commission (SAHRC) has a constitutional mandate as an independent body to promote, protect and monitor the rights of all South Africans.
Cont. • It is, however, acknowledged that capacity challenges within the commission cause significant delays in the effective investigation and finalisation of complaints.
Role of the government and policy mainstreaming • The South African Government remains committed to implementing the outcomes of relevant UN conferences, summits and reviews.
Cont. • South Africa participated in the first five Conferences of States Parties to the CRPD. Participation in the conferences received high-level support and was led by the respective ministers and/or deputy ministers of Women, Children and People with Disabilities in 2008, 2009, 2010, 2011 and 2012.
Cont. • Awareness campaigns peak during Disability Rights Awareness Month, which is launched on 3 November every year and culminating in the commemoration of the International Day of Persons with Disabilities on December 3.
Cont. • All organs of the State participate in the Disability Rights Awareness Month programme in collaboration with organisations of and for disabled persons.
Cont. • The W H Bosch court judgment in 2005, which directed that all police stations be made accessible, and the Esthe Muller out-of-court settlement of 2004 which focused on accessibility of court buildings, resulted in the creation of a dedicated programme within the Department of Public Works
Cont. • to renovate existing public service buildings. The SAHRC was directed to monitor the accessibility of courts following the out-of-court settlement.
South Africa prides itself on the partnership between the Reserve Bank, responsible for producing banknotes and coins, and organisations of disabled persons, which has ensured that South African money can be identified by people with visual as well as intellectual disabilities through a range of specially-designed features
the dominant model of inclusion • Rights-based • The impact of this model has already been illustrated in my previous slides, but it is safe to say, there are various systems in place, to assist with the employment of disabled people, but implementation is still a challenge.
Recommendations • The biggest challenge in any society, were a particular sector of society is oppressed, it is the very sector that is oppressed. • Disabled people are not angry enough to be vigorous in their fight against injustice • Disabled people still have low self regard.
We are not assertive enough and still have this mentality of separate approach to challenges, Blind people fighting in their own little corner, deaf people also, etc.
There are no strong monitoring , evaluation and enforcement tools, so these need to be developed. • Identify needs and activities to strengthen capacities in data collection and disability data management. • Obtain progress reports, analyse data and produce reports.
Evaluate reports to determine the impact of programs aimed at empowering disabled people. • Ensure that the performance appraisal of HODs is linked to disability • Determining activities to establish baselines and track progress. • Identify research activities for addressing critical knowledge gaps
Why is it necessary to do Monitoring and Evaluation? • It helps with Accountability purposes. • Provides an early warning system • Provide a mechanism to respond speedily to problems as they arise. • To improve the performance of government systems and quality of outputs
In conclusion • What we need is leaders with a heart, we need to go back to the basics, let Ubuntu be the foundation of our governments. • Attitudes are the biggest barrier, we need to change attitudes. Here is a story I want to relate