THIS week’s focus is on Section 83 of the Zimbabwe Constitution, which deals with the rights of persons with disabilities. Many people define disability as a condition that is inherent in the person — this condition can either be of a mental or physical nature.
BY KUDA HOVE
It is viewed as the reason that causes a person to be confined to a wheelchair or for the person to seek medical attention.
However, the human rights-based concept of disability perceives disability as an interaction between an individual’s personal condition (such as being in a wheelchair or having a visual impairment) and environmental factors (such as negative attitudes or inaccessible buildings) which together lead to disability and affect an individual’s participation in society.
The paradigm shift in the perception of disability came in the form of the Convention on the Rights of Persons with Disabilities adopted in 2006. It however came into force in 2008. Zimbabwe acceded to the Convention on September 23, 2013. This Convention, along with Section 83 of the Constitution, gives effect to a human rights-based approach of looking at, or defining, disability.
Some societies approach disability from a charity perspective. The charity model reduces persons with disabilities to passive objects of kind acts or donations rather than as empowered individuals with rights to participate in political and social life and in their individual development. This approach disempowers persons living with disabilities and leaves them with little control over their lives and they have little or no voluntary participation in social and political activities. Instead of becoming self-reliant as advocated for in Section 83(a), under this model, persons with disabilities are dependent on society’s welfare.
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On the other hand, some sections of society treat disability as a primarily medical condition. Under this model, disability is viewed as a medical condition that has to be “fixed”. The person’s impairment is represented as the source of inequality and the needs and rights of the person are often identified with the medical treatment provided to the patient and little else.
In the medical model, individuals can be “fixed” through medicine or rehabilitation to get back to society and in those situations where complete rehabilitation is not possible, persons with disabilities will not be able to go back to society and will remain in institutions. This can result in forced institutionalisation or hospitalisation because of disability. Persons with disabilities have the right to liberty on an equal basis with others, and deprivation of liberty cannot be justified based on disability.
The social approach is modern and introduces a very different thinking: disability is recognised as the consequence of the interaction of the individual with an environment that does not accommodate that individual’s differences. This lack of accommodation impedes the individual’s participation in society. Inequality is not due to the impairment, but to the inability of society to eliminate barriers challenging persons with disabilities. Disability is perceived as an element of society’s diversity.
Disability is a social construct the result of the interaction in society between personal factors and environmental factors. Disability is not an individual problem, but the outcome of a wrong organisation of society. As a result, society should restructure policies, practices, attitudes, environmental accessibility, legal provisions and political organisations and, therefore, dismantle the social and economic barriers that prevent full participation of persons with disabilities.
This view opposes the charity and medical approach by establishing that all policies and laws are designed with the involvement of persons with disabilities. The social approach is expressed in section 83 (b) which calls for the involvement of persons with disability in a manner that allows them to live with their families and participate in social, creative or recreational activities.
A rights-based approach to disability, such as the one found in section 83, is not one based on pity for the person with disability, but based on the acknowledgment of that person’s dignity and freedom. It seeks ways to respect, support and celebrate human diversity by creating the conditions that allow meaningful participation by a wide range of persons, including persons with disabilities. Instead of focusing on persons with disabilities as passive objects of charitable acts, it seeks to assist people to help themselves so that they can participate in society, in education, at the workplace, in political and cultural life, and defend their rights through accessing justice. The human rights approach is an agreement and a commitment by persons with disabilities, States and the international human rights system to put into practice some primary aspects of the social approach.
The human rights based interpretation of disability prohibits the abuse and exploitation of persons with disability, as stated in section 83(c). States that have ratified the Convention have a duty to eliminate and prevent discriminatory actions against persons with disability. The State is the main duty bearer when it comes to ensuring that policies and laws take the welfare of persons living with disabilities into consideration and, where necessary, the State must provide State-funded education and training. The educational needs of persons with disability are dealt with in section 83(e) which says the State can provide for the special facilities for their education.
The idea of special schools for persons with disability have of late been criticised because of their segregated nature. The argument against segregated schools is that persons with disability are forced to live a situation that is not realistic since it does not reflect the diversity of society. Problems are discussed among “special” students and “specialised” teachers, whose thinking is continually influenced by a setting focused on disability. Does this benefit persons with disabilities or persons without disabilities? Human beings are naturally social beings, and children have the right to study and play together.
Diversity and inclusion must be the norm and as such education policies aimed at helping persons with disability must reflect this.
l Kuda Hove is a legal officer at Veritas, he writes in his personal capacity. E-mail: kudathove@gmail.com