New Constitution disability friendly

opinion1Esau Mandipa
LET me first of all congratulate Zimbabwe for coming up with a new locally-crafted and progressive Constitution. It was indeed a job well done.
On Wednesday 22 May 2013, the new Constitution received presidential assent and some of the new Constitutional provisions are already in force. Such provisions include Chapter 4 on Declaration of Rights, Chapter 7 on Elections, Chapter 8 on jurisdiction and powers of the constitutional court, Chapter 9 on principles relating to public administration and leaderships and other chapters. The rest of the new Constitution will come into force on the day on which the President to be elected in the forthcoming elections assumes office.

There have been some concerns from the disability sector in Zimbabwe that the new Constitution does not extend any benefits to persons with disabilities. However, I beg to differ with such concerns and I am of the view that the adoption of the new Constitution in Zimbabwe signals the dawn of a new era for persons with disabilities.

What follows are some of the provisions in the new Constitution which address the concept of disability in a commendable and progressive fashion as opposed to previous provisions.

Prior to 2005, the non-discrimination clause in the “old” Constitution of Zimbabwe did not include disability as a ground upon which discrimination was prohibited. Following widespread campaigns by the National Disability Board and local non-governmental organisations which deal with disability, the Constitution was amended in 2005 so as to include physical disability as a prohibited ground of discrimination.

Whereas the Constitutional Amendment of 2005 was applauded for including physical disability as a prohibited ground of discrimination, questions were asked on whether or not those who formulated it thought carefully enough about the other types of disability recognised at international level.

Under the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which is the major law that addresses disability at international level, mental, intellectual and sensory disabilities are the other types of disability that are recognised and which the 2005 Constitutional Amendment apparently excluded.

The new Constitution specifically provides for disability as a prohibited ground of discrimination. What this means is that all the forms of disability have been included in the new Constitution by use of the term “disability” without an attempt to enumerate the forms of disabilities. This is largely commendable given the fact that persons with disabilities have endured untold discrimination on the basis of their disabilities in the Zimbabwean history.

Discrimination against any person with any form of disability is now unconstitutional and this will go a long way in ensuring that persons with disabilities are fully and effectively included in all the sectors of Zimbabwe, the critical ones being education, health, employment and political participation.

The new Constitution now provides for founding principles and values upon which Zimbabwe is built. These include fundamental human rights and freedoms, the recognition of the inherent dignity and worth of each human being, recognition of equality of all human beings, gender equality and more importantly, the recognition of the rights of persons with disabilities.

Founding values are very important in the sense that they are the foundation upon which Zimbabwe is built. They are non-derogable principles which give guidance to anyone interpreting and enforcing the Constitution.

Thus, the inclusion of the recognition of the rights of persons with disabilities among the founding values and principles is a highly commendable move in that there is at least recognition of disability rights and an appreciation of the equal worthy of all human beings in Zimbabwe as opposed to the “old” Constitution which did not provide for the rights of persons with disabilities in any section.  What this also means is that the Constitutional Court has guidance when making decisions in disability-related matters and such guidance is to recognise and uphold the rights of persons with disabilities.

Coming to official languages, sign language has been captured as one of the official languages of Zimbabwe. In addition, the new Constitution mandates the development of communication suitable for persons with physical or mental disabilities. By making provisions for the recognition of sign language as an official language, the new Constitution will go a long way in addressing the communication barriers that persons with speech functional and hearing disabilities have been facing in Zimbabwe.

As an example, I once paid a visit to a local state hospital and what I noticed was not pleasing at all.  Not even a single health official at the hospital could communicate in sign language. I then thought of how would persons with hearing and speech functional disabilities converse with the health officials given such a scenario.

This is just but one example indicating how persons with disabilities are marginalised by the way society conducts its business. Now with the new Constitution in place, persons who communicate in sign language are guaranteed to be served with the utmost dignity and inclusion they deserve.

The Constitution further provides in section 22 that all institutions and agencies of the Government at every level must recognise the rights of persons with physical or mental disabilities in particular their right to be treated with respect and dignity. This is a great improvement in that the provision reinforces the equal worthiness of all human beings, hence the need to treat persons with disabilities with dignity and respect.

In addition, the provision does not restrict the responsibility to recognise the rights of persons with disabilities in a single ministry as was the case under the previous setting in which disability issues were left to be dealt with by the Ministry of Labour and Social Welfare through the Department of Social Welfare (and the Ministry of Health and Child Welfare but to a limited extent).

It is an indisputable fact that disability is an evolving, highly contentious, knotty and a cross-cutting concept that cannot be adequately addressed by a single ministry. The new Constitution thus mandates all governmental departments to recognise the rights of persons with disabilities and to ensure the implementation of such rights in Zimbabwe. This is commendable.

Furthermore, section 22 mandates all government institutions and agencies to assist persons with physical or mental disabilities to achieve their full potential and to minimise disadvantages suffered by them. In the same vein, all state institutions and agencies have the obligation to develop programmes for the welfare of persons with physical or mental disabilities especially work programmes consistent with their capabilities and acceptable to them or their representatives.

All state institutions and agencies are also under a mandate to consider the specific requirements of persons with all forms of disabilities as one of the priorities in development plans. This appears to be a step forward in attempting to alleviate poverty among persons with disabilities in Zimbabwe and to ensure their inclusion and participation in society.

Persons with disabilities all over the world are among the poorest of the poor. Zimbabwe can then be commended for adopting a constitutional provision that gives priority to persons with disabilities in developments plans. Without doubt, this is one of the ways to overcome poverty among persons with disabilities.

Section 27 of the new Constitution provides for education as a national objective. It has been reported that one in three children with disabilities is out of school and that 75 percent of children with disabilities never complete primary school in Zimbabwe. Other than making education a founding value and principle upon which Zimbabwe is built, the Constitution further provides for free and compulsory basic education, within the resources available to the State.

The provision on free and compulsory education is therefore important in addressing the right to education of children with disabilities who do not normally receive education for various reasons ranging from negative attitudes at family level up to an education system that do not adequately accommodate the needs and entitlements of such children.

At the same time, the new Constitution further provides that girls should be offered the same opportunities as boys to obtain education at all levels. In disability circles, girls with disabilities suffer double discrimination as compared to boys with disabilities, firstly as girls and secondly as persons with disabilities.

Now the Constitution guarantees equal access to education no matter one’s gender and no matter one’s disability!
In another respect, the new supreme law provides for a constitutional mandate on the State to take appropriate measures to ensure that buildings and amenities that are open to the public are accessible to persons with disabilities.

In Zimbabwe, many government workplaces, courts of law and state recreational facilities are inaccessible to persons with disabilities.
As an example, it is very difficult if not impossible for persons with disabilities to access government offices housed at the Government Complex in Gweru given the fact that there are no guiding rails, the elevators (if there are working elevators at all) have no recorded voices for persons with visual impairments and are too narrow to accommodate wheelchairs, and the toilet cubicles are too high for persons with physical disabilities.

Thus, the State duty to ensure accessibility to buildings and amenities that are open to the public will go a long way in assisting persons with disabilities to realise their right to full and effective participation in society.

This is also in line with the Convention on the Rights of Persons with Disabilities (CRPD) which provides for equal access to the physical environment, transportation, information and communications and other facilities so as to enable persons with disabilities to live independently and participate fully in all aspects of life.

The new Constitution further contains a dedicated section on the rights of persons with disabilities in section 83. Under the section, the State has an obligation to take appropriate measures, within resources available, to enable persons with disabilities to become self-reliant, to live with their families and participate in social, creational or recreational activities, to protect them from all forms of exploitation and abuse, to give them access to medical, psychological or functional treatment, to provide special facilities for their education and to provide State-funded education and training.

It is thus an improvement in itself to have a specific constitutional provision on the rights of persons with disabilities for the first time in the constitutional history of Zimbabwe. It appears that major causes of concern like lack of access to education and health facilities and the problem of exploitation and abuse of persons with disabilities have been addressed to an extent.

Persons with disabilities normally face abuse, especially sexual abuse perpetrated mostly against women with mental disabilities since they may not be in a position to positively identify the perpetrators and they may not also in positions to be competent and compellable witnesses before courts of law.

This is a gap that the new Constitution tries to bridge. Also by advocating for self-reliance on the part of persons with disabilities, it means that disability is no longer taken to be a welfare or a charity issue but is now a human rights issue where every person, be it with or without disability, has rights and obligations.
The same section also gives a State duty to provide special facilities for the education of persons with disabilities.

However, before special measures are taken for the education of persons with disabilities, it should be emphasised that the starting point must be inclusive education. Inclusive education means the education of children with disabilities (or persons with disabilities) in the mainstream schools where children with disabilities and other children learn together.

The approach focuses on the school environment and its barriers. It perceives the impediments in the mainstream education system and school environment as the cause of the challenges faced by children with disabilities in education. It aims at identifying and eradicating such hindrances to enable all children, including children with disabilities, to attain education.

Therefore, the inclusive schools approach seeks to “fix” the school system to accommodate the learning of children with disabilities. This is an ideal concept and a starting point before attempting to provide specialised education to children with disabilities.

Section 155 on elections states that the State is now under a constitutional obligation to ensure that every citizen who is eligible to vote in an election or referendum has an opportunity to cast a vote and the State must facilitate voting by persons with disabilities.

Unlike in the past years in which a myriad of factors like lack of accessible polling stations, lack of voting materials in accessible formats, lack of accessible campaign literature and inaccessible transportation to and from polling stations rendered the right to vote by persons with disabilities hollow, now the Constitution explicitly provides a right to vote by persons with disabilities.

Other than voting, political representation of persons with disabilities has been clarified and concretised by the Constitution which provides that the Senate shall consist of two representatives for persons with disabilities. What this means is that persons with disabilities will have two representatives in the Upper House of Parliament.

Even though the Constitution is silent on whether or not the two representatives have to be persons with disabilities, the fact still stands that persons with disabilities are now guaranteed political representation in Zimbabwe. The representatives of persons with disabilities may influence policies and laws in favour of persons with disabilities to an extent (and of course, if they are dedicated persons without ambitions to further personal interests while in the Senate).

All the arguments raised indicate that with the adoption of the Constitution, disability is now viewed as a human rights issue in Zimbabwe unlike the previous years in which it was taken to be a medical and charity issue.

However, like any negotiated instrument that is people driven, the Constitution has its own flaws.  For example it simply states that governmental institutions and agencies have to render assistance to persons with physical and mental disabilities without necessarily indicating the nature of assistance to be provided.

Also by providing for the development of welfare programmes, especially work programmes, for persons with physical or mental disabilities, it can be submitted that the Constitution apparently excludes persons with intellectual and sensory disabilities and disfigurement.

Esau Mandipa is a lawyer and lecturer in the Faculty of Law at Midlands State University.  He teaches disability rights, among other modules and his Master of Law thesis was on disability in Zimbabwe [LLM (Human Rights and Democratisation in Africa), University of Pretoria]. He can be contacted at mandipae@msu.ac.zw <mailto:mandipae@msu.ac.zw> or cell number 0773 429 047.

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