‘DISABLED PEOPLE’ AND THE SEARCH FOR EQUALITY IN THE WORKPLACE: AN APPRAISAL OF EQUALITY MODELS FROM A
COMPARATIVE PERSPECTIVE
THIS THESIS IS SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE LEGUM DOCTOR IN THE FACULTY OF LAW OF THE UNIVERSITY OF THE FREE STATE
CANDIDATE: CHARLES GIDEON NGWENA
PROMOTER: PROF JL PRETORIUS
Declaration
I, the undersigned declare that the work contained in this study for the degree of Doctor of Laws at the University of the Free State is my own independent work and that I have not previously in its entirety or in part submitted it to any university for a degree. I furthermore cede copyright of this thesis to the University of the Free State.
Signed at Bloemfontein on the 31st Day of December 2010
--- Charles Gideon Ngwena
DEDICATION
I dedicate this work to: the memory of my father, Gideon Sigcau Ngwena, and my mothers, Rosemary Rekai Ngwena, and Claudia Thokhozile Ndlela, who were all gone too soon but remain ever so present in my life; my wife, Patricia ‘PD’ for your boundless love, irrepressible optimism and unwavering faith in God and family; our children, Khosi, Gideon, and Claudia-Rose, for giving me free master classes on how to become an engaged parent; mighty Khanyisile ‘Omz’, our first grandchild, for accelerated grandparenthood; and Tata Mandela, the icon of the heroic resistance of the people of South Africa against the gigantic might of apartheid, for inspiring us never to walk away from the cause of imagining inclusive equality as part of reconstructing a country with a fractured and quintessentially bruised racial history.
SUMMARY
Disabled people constitute a historically disadvantaged and marginalized group that experiences discrimination in the workplace among other socio-economic sectors. In this thesis, my focus is on searching for an inclusive type of equality that could inform the interpretation and application the equality clause in the South African Constitution. My aim is neither to arrive at a mathematically constructed abstract type of equality, nor to produce a blueprint of equality that puts finality on the debate on equality. Rather, it is to engage with equality discursively with a view to contributing towards an ongoing development of a juridical as well as philosophical path for constructing the normative architecture of a type of equality that is more responsive to the equality needs of disabled people. The spotlight is on developing a type of equality that is normatively inclusive and transformative as to be capable of sufficiently meeting the quest for political, and more crucially, economic recognition of disabled people.
I use a repertoire of analytical techniques to explore and appraise the inclusiveness and responsiveness of contemporary approaches to equality. At a more general level, the discourse employs comparative analysis. However, whilst comparative analysis in this thesis includes comparing and contrasting the equality jurisprudence of different jurisdictions, and in this instance, comparing and contrasting South Africa with Canada and the United States, it is, nonetheless, a relatively small part of my comparative discourse. It is not the primary sense in which the thesis develops a comparative discourse. The greater part of my discourse employs a comparative approach to mean comparing and contrasting the underpinning moral compasses of formal equality and substantive equality with a view to revealing the capacities of each type of equality to be responsive to the equality aspirations of disabled people. Over and above comparative analysis, I use, in the main, the historicity of apartheid, the social model of disability, and feminist theory and practices as analytical techniques for interrogating the responsiveness of notions of formal equality and substantive equality. From insights drawn mainly from the social model of disability and feminism, I construct disability method as a syncretic and legal method for interrogating the normative sufficiency of equality laws and praxis. Disability method is the study’s principal interpretive method for ensuring that the appraisal of pertinent laws, policies or practices is always conscious of the status of disabled people as a disadvantaged and vulnerable historical community, and the imperative of transforming erstwhile culturally, and even more crucially, economically oppressive norms.
I contend throughout the study that law does not carry inherently neutral values that, as a matter of course, allow for searching for alternative paradigms of equality. Ultimately, it is the social construction of disability that holds the key to interrogating equality norms in a serious manner and not merely restating what the legislature and the judiciary proclaim about disability and equality. In this sense, by way of clarifying the methodological and philosophical orientation of this study, it bears stressing that the analytical approach that it adopts differs markedly from conventional legal discourses that only use an ‘internal critique’, as it were, to
critically evaluate legal norms by using norms derived from law in order to determine whether the law is living up to the standards which it professes to hold and whether the justice promised by those standards is being dispensed evenly across all social groups. Though ‘internal critique’ is part of how some of the arguments in this study are framed, it is only a small part. The greater part of my equality discourse derives from external critique. It derives from appraising the law using ethical or social values that are external to the law but which I argue ought to shape the law.
Using disability method, and drawing from the thesis of a heterogeneous civic public sphere, I situate the normative ethical framework for substantive equality within a type of participatory democracy in which equality is constructed dialogically and not unilaterally or hegemonically. I treat equality as a component of democratic ethics that result not from a given centre but from an egalitarian dialogue between disabled people and enabled people. I argue for inclusive heterogeneous equality as the operative equality template for eradicating disablism in an imagined participatory democracy in which respect for pluralism and the eradication of dominance and subordination among social groups are core foundational ethics. Key words: disabled people, equality, discrimination, workplace, formal equality, substantive equality, feminism, social model of disability, comparative approach.
OPSOMMING
Gestremde persone vorm ‘n histories benadeelde en gemarginaliseerde groep wat diskriminasie in die werkplek as sosio-ekonomiese sektor ervaar. In hierdie proefskrif word op die soeke na ‘n inklusiewe vorm van gelykheid gefokus wat die interpretasie en toepassing van die gelykheidsklousule in die Suid-Afrikaanse grondwet inhoud kan gee. Die oogmerk is nie om ‘n abstrakte matematies-gekonstrueerde vorm van gelykheid te ontwikkel of om ‘n bloudruk vir gelykheid daar te stel wat veronderstel is om die debat oor gelykheid tot ‘n einde te bring nie. Dit is eerder ‘n poging om diskursief met gelykheid om te gaan met die oog daarop om tot die voortgaande ontwikkeling van ‘n juridiese sowel as ‘n fislosofiese weg vir die konstruering van die normatiewe argitektuur van ‘n tipe gelykheid by te dra wat meer responsief op die gelykheids-behoeftes van gestremde persone kan reageer. Die soeklig val op die ontwikkeling van ‘n tipe gelykheid wat normatief inklusief en transformatief is ten einde voldoende in staat te wees om aan die uitdagings deur die politiese en veral die ekonomiese erkenning van gestremde persone gestel te kan beantwoord.
‘n Repertoire van analitiese tegnieke word aangewend ten einde die inklusiwiteit en responsiwiteit van kontemporêre benaderings tot gelykheid te ondersoek en te beoordeel. Op ‘n meer algemene vlak word ‘n vergelykende analise in die diskoers benut. Alhoewel die vergelykende analise wat in hierdie proefskrif aangewend word insluit die vergelyking en kontrastering van die regsposisie met betrekking tot gelykheid van verskillende jurisdiksies – in hierdie geval die vergelyking en kontrastering van die Suid-Afrikaanse regsposisie met dié van Kanada en die Verenigde State – vorm dit egter ‘n relatief klein deel van die vergelykende diskoers. Die grootste deel van die diskoers benut ‘n vergelykende benadering wat behels die vergelyking en kontrastering van die onderliggende morele rigtingwysers van formele gelykheid en substantiewe gelykheid met die oogmerk om die onderskeie vermoëns van elke tipe gelykheid om responsief op die gelykheidsaspirasies van gestremde persone te kan reageer, te beoordeel.
Benewens die vergelykende analise, word hoofsaaklik die historiese gegewendheid van apartheid, die sosiale model van gestremdheid en feministiese teorie en praktyke as analitiese tegnieke vir die kritiese ondersoek na die resposiwiteit van die konsepte van formele gelykheid en substantiewe gelykheid benut. Uit die insigte wat hoofsaaklik van die sosiale model van gestremdheid en fiminsime verwerf word, word ‘n gestremdheidsmetode gekonstrueer synde ‘n sinkretiese en juridiese metode vir ‘n kritiese ondersoek na die normatiewe aanvaarbaarheid van gelykheidswetgewing en –praktyk. Gestremdheidsmetode is die belangrikste interpretasie-metode in hierdie studie ten einde te verseker dat die beoordeling van spesifieke wetgewing, beleide of praktyke deurentyd bewus bly van die status van gestremde persone as ‘n benadeelde en kwesbare historiese gemeenskap, asook die
plig om kulturele en - selfs méér belangrik – ekonomies-onderdrukkende norme te transformeer.
Deurlopend word geargumenteer dat die reg nie inherent neutrale waardes beliggaam wat voorsiening vir alternatiewe paradigmas van gelykheid maak nie. Ten diepste is dit die sosiale konstruk van gestremdheid wat die sleutel tot die kritiese ondersoek na gelykheidsnorme met die nodige erns benader en nie bloot die standpunte oor gestremdheid en gelykheid van die wetgewer en die regbank napraat nie. Ten einde die metodologiese en filosofiese oriëntasie van die studie duidelik te stel, word beklemtoon dat die analitiese benadering wat benut word in betekenisvolle opsigte verskil van die konvensionele diskoerse. Die konvensionele diskoerse wend slegs ‘n benadering van “interne kritiek” aan ten einde krities regsnorme aan die hand van norme wat van die reg afgelei is te gebruik om te bepaal of die reg voldoen aan die standaarde wat dit verklaar na te streef. Voorts word bepaal of die geregtigheid wat deur sodanige standaarde in die vooruitsig gestel word, indien dit gelyklik oor alle soiale groepe versprei word, haalbaar is. Alhoewel “interne kritiek” deel vorm van die wyse waarop sommige argumente in hierdie studie geformuleer word, vorm dit egter slegs ‘n klein deel daarvan. Die grootste deel van my gelykheidsdiskoers vloei uit eksterne kritiek voort. Dit ontspring aan die beoordeling van die reg aan die hand van etiese of sosiale waardes wat buite die reg staan, maar wat, soos geargumenteer word, die reg behoort te beïnvloed.
Deur die toepassing van gestremdheidsmetodiek en die benutting van die standpunt van ‘n heterogene burgerlike publieke sfeer, word die normatief-etiese raamwerk vir substantiewe gelykheid binne ‘n tipe van deelnemende demokrasie, waarin gelykheid dialogies en nie eensydiglik of hegemonies gekonstrueer is, geposisioneer. Gelykheid word as ‘n komponent van demokratiese etiek hanteer wat nie vanuit ‘n bepaalde sentrum vloei nie, maar voortkom uit ‘n egalitêre dialoog tussen
onbemagtigde en bemagtigde persone.
Daar word ten gunste van ‘n inklusiewe heterogene gelykheid, synde die operatiewe gelykheidstemplaat vir die uitwissing van onbemagtigdheid in ‘n geïdealiseerde deelnemende demokrasie geargumenteer met die oog op die uitwissing van onbemagtigdheid in sodanige demokrasie waar respek vir pluralisme en die uitskakeling van oorheersing en onderdrukking tussen sosiale groepe sleutel-grondleggende etiese waardes vorm.
Sleutewoorde: gestremde persone, gelykheid, diskriminasie, werkplek, formele gelykheid, substantiewe gelykheid, feminism, sosiale model van gelykheid, vergelykende benadering.
TABLE OF CONTENTS
ACKNOWLEDGMENTS xii
ACRONYMS xiii
CHAPTER 1 1
INTRODUCING DISABILITY, EQUALITY AND THE WORKPLACE
1 INTRODUCTION 1
2 RATIONALE 3
3 DISABLED PEOPLE AS A GLOBALLY MARGINALISED
GROUP 14
3.1Convention on the Rights of Persons with Disabilities 15 3.2Equality Orientation of the Convention: An Overview 24
3.3Global Size of the Disabled Population 33
3.4Disability and Poverty Nexus 37
3.5African Regional Human Rights Systems and Disability 44
4 SOUTH AFRICA 49
4.1Disabled People as a Marginalised Group in South Africa 49
4.2Why the Workplace Matters 55
5 AIMS AND OBJECTIVES 65
5.1Legislation 68
5.2International Human Rights 71
5.3Foreign Law 76
5.4Codes of Practice and Guidelines 81
5.5Policy 82
5.6Social Construction of Disability 84
6 STRUCTURE OF THESIS 88
7 LIMITATIONS 91
7.1Heterogeneous Nature of Disability and the Danger of
Solipsism 92
7.2Exclusion of Affirmative Action 94
7.3No Equality Blueprint 100
CHAPTER 2 102
CATEGORICAL DIFFERENTIATION: WHAT CAN THE
HISTORICITY OF APARTHEID TEACH DISABLISM? 102
2 A BRIEF HISTORY OF APARTHEID 107
2.1Apartheid as Apartness 108
2.2Apartheid as a Collaborative Project of White
Nationalism and Capitalist Exploitation 114
2.31948 and After: Afrikanerisation of Apartheid 121
3 ‘COMMON SENSE’ AS THE BASIS FOR RACIAL
CLASSIFICATION UNDER APARTHEID 142
4 APARTHEID AND DISABILITY INTERSECTIONS 153
4.1Using Difference To Stigmatise Citizenship 154
4.2Using Difference to Legitimise and Perpetuate a Wrongful
Stereotype and Inscript Normative Identity 163
4.3Using Difference To Create Disabled Citizenry 165
4.4Disabusing Apartheid: Difference is Relational and not
Categorical! 173
5 CONCLUSION 187
CHAPTER 3 195
DISABILITY METHOD AS TRANSFORMATIVE METHOD 195
1 INTRODUCTION 195
2 DISABILITY METHOD 209
2.1 Analytical and Transformative Tool 209
2.2 Practical Framework 211
3 A SOCIAL MODEL READING OF EQUALITY 215
3.1Individual Impairment Model: The Medicalised Model 219 3.2World Heath Organisations’ Catalytic Role in
Reinforcing the Individual Impairment Model? 221
3.3Medicalisation of Disability: The Equality Flaws 224
3.4Colonisation of the Body and Suppression of Agency 225
3.5Stigmatization of the Body 230
3.6Legitimisation of Exclusionary Citizenship 232
3.7Social Model 235
3.8Disabled People as an Oppressed Social Group 237
3.9What’s in a Name?: ‘Disabled People’ as Transformative
Lexicon 242
4 A FEMINIST READING OF EQUALITY 257
4.1Feminism and Critical Legal Theory 257
4.2Heterogeneous Domain of Feminism 266
4.3Liberal Feminism 267
4.5Cultural Feminism 274
4.6Postmodern Feminism 277
5 CONNECTING FEMINISM WITH DISABILITY METHOD 279
6 CONCLUSION 288
CHAPTER 4 292
EQUALITY, COMPARATIVISM AND THE HETEROGENEOUS
PUBLIC SPHERE 292
1 INTRODUCTION 292
2 IDEA AND IDEAL OF EQUALITY 301
3 EQUALITY TYPOLOGIES 310
4 FORMAL EQUALITY 312
4.1An Overview of Main Shortcomings 312
4.2Formal Equality and the Disabled Body: The Paradigm of a
Monologic Discourse 318
4.3Formal Equality as the Antithesis Dialogic Equality: Insights from Iris Young’s Critique of the Ideal of
Impartiality and the Civic Public 330
5 SUBSTANTIVE EQUALITY: APPROACHES OF SOUTH
AFRICA, CANADA AND THE UNITED STATES 337
6 SOUTH AFRICA AND THE HETEROGENEOUS PUBLIC
SPHERE: HOPES AND IMPEDIMENTS 341
6.1South African Equality and Non-discrimination
Schema as Summarised in Harksen v Lane 341
6.2President of the Republic of South Africa v Hugo:
Ambivalence in Celebrating a Heterogeneous Public Sphere 346 6.3National Coalition for Gay and Lesbian Equality v Minister
of Justice: Celebration of a Heterogeneous Public Sphere 365
7 COMPARATIVE LAW AND EQUALITY PARADIGMS 382
7.1Canada: Substantive Equality Lessons from Andrews v
Law Society of British Columbia 383
7.2United States: The Equal Protection Clause and Sameness 399
8 CONCLUSION 411
CHAPTER 5 415
COMBATING DISABLISM THROUGH ANTI-DISCRIMINATION
LAW: WHO FALLS WITHIN THE PROTECTED CATEGORY? 415
1. INTRODUCTION 415
2. WHY AN INCLUSIVE DEFINITION IS
3. INDIVIDUAL IMPAIRMENT AND SOCIAL
MODELLING IN DEFINITIONAL CATEGORIES OF THE
UNITED STATES AND CANADA 429
3.1United States: Americans with Disabilities Act of 1990
as Amended 430
3.2Canada: Section 15(1) of the Canadian Charter of Rights and
Fundamental Freedoms 442
3.3South Africa: Section 6(1) of the Employment Equity Act and
IMATU and Another v City of Cape Town 445
4. DEFINITIONAL CONSTRUCTION OF DISABILITY
UNDER THE CONVENTION ON THE RIGHTS OF
PERSONS WITH DISABILITIES 454
5. CONCLUSION 455
CHAPTER 6 460
ACCOMMODATING DISABLED PEOPLE THE WORKPLACE: 460
THE SCOPE AND LIMITS OF ‘REASONABLE ACCOMMODATION’
1. INTRODUCTION 460
2. CONSTITUTIONAL FOUNDATIONS OF THE DUTY TO
PROVIDE REASONABLE ACCOMMODATION 464
3. COMPARATIVE OVERVIEW 472
3.1United States 472
3.2Canada 475
4. INTERFACE BETWEEN REASONABLE ACCOMMODATION
AND INTERNATIONAL HUMAN RIGHTS 483
5. APPLYING REASONABLE ACCOMMODATION UNDER
THE EEA 485
5.1Whether the Job Applicant or Employee is Suitably Qualified 485
5.2Choosing Reasonable Accommodation 493
5.3Limits of Reasonable Accommodation 496
6. CONCLUSION 499
CHAPTER 7 503
CONCLUDING REMARKS 503
1. INTRODUCTION 503
2. SUMMARY 503
ACKNOWLEDGMENTS
I am exceedingly grateful to:
• Loot Pretorius, my supervisor, for introducing me to the science of substantive equality, guiding me throughout this study, and patiently awaiting the results of my slow keyboard
• Rebecca Cook for introducing me with characteristic modesty to the richness of feminist thought and not least the philosophy of the ‘woman question,’ for reading and commenting on the drafts of this study, and, above all, for being a wonderful mentor and the living face of integrity
• Daniel Mekonnen and Sille Matela for your sacrifice in reading and commenting on various drafts of this study in the name of friendship
• Andries Raath for generously translating the summary of this study into Afrikaans
• The Faculty of Law of the University of the Free State and the Department of Constitutional Law and Philosophy of Law for providing me with generous study leave and support to complete this study
ACRONYMS
ADA Americans with Disabilities Act ANC African National Congress BCM Black Consciousness Movement
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
CESCR Committee on Economic, Social and Cultural Rights CLS Critical Legal Studies
COIDA Compensation for Occupational Injuries and Diseases Act DALY Disability Adjusted Life Year
EEA Employment Equity Act
EEOC Equal Employment OpportunityCommission
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic Social and Cultural Rights ICF International Classification of Functioning, Disability and Health ICIDH International Classification of Impairments, Disabilities and Handicaps
ILO International Labour Organisation INDS Integrated National Disability Strategy PAC Pan African Congress
UN United Nations
CHAPTER 1
INTRODUCING DISABILITY, EQUALITY AND THE
WORKPLACE
Throughout the ages, the treatment of people with disabilities has brought out some of the worst aspects of human nature. Too often, those living with disabilities have been seen as objects of embarrassment, and at best, of condescending pity and charity.1
1
INTRODUCTION
This study is a discourse at the intersection between equality and disability in the workplace. It seeks to develop normative standards for realising the constitutional right to equality and non-discrimination at the intersection of entry into, and advancement in, employment of disabled persons2 under South African law. The study draws from comparative approaches to equality. The idea of a comparative approach in this thesis is conceived not only in terms of drawing from comparative law but even more significantly in terms of drawing from competing notions of equality. In terms of comparative law, the study examines the disability-related equality and non-discrimination laws of the United States
1 Statement by the then United Nations Secretary General, Kofi Annan, welcoming the adoption of the Convention of the Rights of Persons with Disabilities, 13 December 2006 ‘Secretary General Hails the Adoption of Landmark Convention on the Rights of People (sic) with Disabilities’ <http://www.un.org/News/Press/docs//2006/sgsm10797.doc.htm> (last accessed 2 January 2007).
2 It will be explained later, especially in Chapter 3, that in this study the term ‘disabled persons’ is used in a specific sense to implicate not so much physical or mental impairments, but to imply the construction of the phenomenon of disability as something that is created by a socio-economic environment that does not accommodate physical or mental impairments.
and Canada with a view to drawing pertinent lessons for South Africa. In terms of competing notions of equality, the study uses formal equality (de jure equality) and substantive equality (de facto equality) as the main counterpoints that are ultimately anchored in socially constructed norms.
Using the workplace as a pivot for discussion, the study seeks not only to apply equality standards to disabled persons in the workplace according to existing judicial and legislative understandings. Even more importantly, the study seeks to critically evaluate the adequacy of existing equality and non-discrimination standards as part of constructing normative standards that South Africa ought to adopt when respecting, protecting, promoting and fulfilling the equality rights of disabled persons. From this perspective, and against the backdrop of disability as a social construct, the study seeks to advance an interpretation that is not only maximally coterminous with a transformative notion of substantive equality under the South African Constitution,3 but is also maximally responsive to the discrimination that is experienced by disabled persons as an historically marginalised and oppressed social group. In the final analysis, the study is intended as a contribution towards advancing, in a normative sense, a plausible transformative interpretation of the right to equality and non-discrimination for disabled people in post-apartheid South Africa.
This chapter serves to introduce the study, and has three main objectives. Firstly, and foremost, it expounds the rationale of the study so as to justify the desirability or even compellability of a study of this nature. As part of articulating the rationale, and, in particular, the focus on the intersection between disability, equality and non-discrimination, the chapter explores the global as well as domestic position of disabled people as a marginalised social group. The chapter also discusses the emergence of disability as an international human
rights issue. In this connection, the significance and potential of the Convention on the Rights of Persons with Disabilities (the Convention)4 as the first global treaty dedicated to the protection and promotion of the human rights of disabled persons, are acknowledged and to some extent explored.
Secondly, the chapter elaborates on the aims and objectives that were stated at the beginning of this chapter so as to clearly delineate the parameters as well as limitations of the study. The third and final objective is to explain the structure of the study by way of giving a synoptic view of subsequent chapters.
2
RATIONALE
In addressing the rationale, the main question must be whether there is need for a study at the intersection between disability and equality. The short answer would be ‘Yes’. Disabled persons are a social group that from historical and contemporary perspectives, constitute a marginalised, vulnerable and disadvantaged group. In a compelling sense, they merit scholarly attention in post-apartheid South Africa where the Constitution decidedly puts a premium on the achievement of equality. In an introduction to a book – Disability and
Social Change: A South African Agenda, Brian Watermeyer and Leslie Swartz,
appositely begin by articulating the invisibility of disability consciousness in the South African political economy. In this regard they say:
If one approached a South African in the streets of Cape Town, Soweto or Polokwane, and asked him or her to provide associations to the notions of ‘race’, the answers one would gather would be rich, layered and heavily imbued with personal and political signification. The painful legacy of institutional racial discrimination shared by all South Africans, and the remarkable emergence of
our nation from decades of conflict, have left an awareness of the oppressive appropriation of the race paradigm indelibly etched on the national psyche. Similarly, though more latterly, an awareness of gender as a potentially oppressive marker of differentness has grown amongst the South African populace…The idea of ‘oppression’ is firmly attached within South African colloquial culture to the idea of race; however, the marker of disability has yet to achieve this status. When confronted with the notion of ‘disability’, our minds do not turn instinctually (sic) to an exploration of possible modes of systematic discrimination and disadvantage. Rather we remain strongly attached to modes of attribution which prize the explanatory system of the body, in accounting for the inequalities we see.5
What Watermeyer and Swartz are highlighting is that, as a marker of difference and socio-economic disadvantage, disability is neither as historically privileged nor as well understood as race or gender, and that it is time that disability entered public discourse and consciousness in South Africa. In contrast to race and gender, the notion of disability as systemic disadvantage and social oppression does not immediately strike rapport with current national understandings of equality. The equality entitlements of disabled people under the Constitution have yet to be adequately tested and applied by the courts. Moreover, academic commentaries that, in a juridical sense, specifically address the intersection between disability and non-discrimination in post-apartheid South Africa are still few and far between.6 In terms of a specific focus on
5 B Watermeyer & L Swartz ‘Introduction and Overview’ in B Watemeyer et al (eds) Disability and Social Change: A South African Agenda 1-6 at 1. Emphasis added.
6 JL Pretorius et al Employment Equity Law (eds) (2001) § 7; CG Ngwena & JL Pretorius ‘Code of Good Practice on the Employment of People with Disabilities: an Appraisal’ (2003) 24 Industrial Law Journal 1816; CG Ngwena ‘Equality for People with Disabilities in the Workplace: An Overview of the Emergence of Disability as a Human Rights Issue’ (2004) 29 Journal for Juridical
Science 167; CG Ngwena ‘Interpreting Aspects of the Intersection between Disability,
Discrimination and Equality: Lessons for the Employment Equity Act from Comparative law: Part I (Defining Disability)’ (2005) 16 Stellenbosch Law Review 210; CG Ngwena ‘Interpreting Aspects of the Intersection between Disability, Discrimination and Equality: Lessons for the Employment Equity Act from Comparative Law: Part II (Reasonable accommodation)’ (2005) 16
Stellenbosch Law Review 534; CG Ngwena ‘Deconstructing the Definition of ‘Disability’ under the
Employment Equity Act: Social Deconstruction (2006) 22 South African Journal on Human Rights 622; CG Ngwena ‘Deconstructing the Definition of ‘Disability’ under the Employment Equity
historically disadvantaged and/or vulnerable groups, post-apartheid discourse on equality has, on the whole, been dominated by discourses on race, gender, HIV/AIDS and sexual orientation. To reach a point where we can accord disability adequate hearing in our equality discourses, we must begin by consciousness-raising.7 We must begin by exploring and interrogating what disability means, what it means to be a disabled person in South Africa particularly in terms of the socio-economic impact of exclusion and disadvantage, and what equality and human dignity mean for disabled people in terms of juridical obligations on the state and private individuals. In this way, we can, in a participatory manner, begin to contribute towards the development of a jurisprudence that is specifically responsive to disability, and is apt to yield additional insights to the understanding of equality under the South African Constitution as an expansive and transformative universe that does not privilege any protected social group.
If our goal is to transform old paradigms of inequality so that disability is on parity with, say, race, gender or sexual orientation in terms of achieving full and
Act: Legal Deconstruction (2007) 23 South African Journal on Human Rights 116; CG Ngwena & JL Pretorius ‘Conceiving Disability, and Applying the Constitutional test for Fairness and Justifiability: A Commentary on IMATU v City of Cape Town’ (2007) 28 Industrial Law Journal 747; Marylyn Christianson ‘Disability Discrimination in the Workplace’ in E Strydom (ed) Essential
Employment Discrimination Law (2007) 154-188; CG Ngwena ‘The New Disability Convention:
Implications for Disability Equality Norms in the South African Workplace’ in O Dupper & C Garbers Equality in the Workplace (2010) 181-203.
7 I am borrowing the term ‘consciousness-raising’ from feminism where it has been employed as a tool for deconstructing a patriarchal society and reconstructing an inclusive society. In feminism, consciousness-raising describes a process of collaborative and interactive engagements between women to tell personal stories of their experiences not only as a politically oppressed group, but even more significantly, as a politically conscious group in a society that is organized around the normalcy of patriarchal dominance; IM Young Justice and the Politics of Difference (1990) 153; KT Bartlett ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829, 831, 863-864; CA MacKinnon Toward a Feminist Theory of the State (1982) 242. Catherine MacKinnon goes as far as treating consciousness-raising as ‘the major technique of analysis, structure of organization, method of practice, the theory of change of the women’s movement’: CA MacKinnon ‘Feminism, Marxism, Method and the State: An Agenda for Theory’ (1983) 8 Signs 515 at 519. It is important to see consciousness-raising as a methodology that operates beyond the confines of the particular group at the receiving end of oppression as to enter the public realm through the media, politics and, indeed, the law and its institutions: Bartlett ibid 864-865.
socio-economic participation, then part of interrogating disability requires us to engage with standpoint epistemology.8 As commentators from feminist perspectives have argued,9 such an approach is a necessary step in the process of not only understanding the equality claims of disabled people, but also imagining inclusive equality. Apartheid’s ideology of racialism, its mechanisms of domination and their deleterious effects on the subordinated and oppressed could not be uncovered and transformed by merely inquiring from the privileged ‘race’ about its vision of equality and its own alternative to apartheid, if any, in a reconstructed South Africa without risking reactionary formalism. Hearing the voices of the dominated and oppressed ‘races’ and their vision of equality and human dignity was a necessary democratic enterprise in reforming apartheid in a participatory way.
8 I use the term ‘standpoint epistemology’ in the manner it has been used in feminist discourse to mean not merely the desirability, but more significantly, the necessity of building knowledge and understanding about equality norms though integrating the lived experience of those that have been at the receiving end of exclusionary social practices. In feminism, epistemology is a science for privileging, as reality, women’s understandings about the experience and pain of subordination in a world that has hitherto been over-determined by patriarchy: Bartlett (note 7 above) 872. What epistemology does is to supplant the ‘objective’ viewpoint of the distant observer with the viewpoint of one who is proximal and engaged: Bartlett ibid 873. For present purposes, it suffices to adopt, with necessary modification for disability, Abigail Brooks’ definition of feminist standpoint epistemology as ‘a unique philosophy of knowledge building that challenges us to (1) see and understand the world through the eyes and experiences of oppressed women and (2) apply the vision and knowledge of oppressed women to social activism and social change: A Brooks ‘Feminist Standpoint Epistemology: Building Knowledge and Empowerment Through Women’s Lived Experience’ in SN Hesse-Biber and P Leavy (eds) An Invitation to Feminist Method (2007) 53-82 at 55. At the same time as arguing for the use of standpoint epistemology, I am alive to its limitations, not least the limitation of the underpinning assumption that it is possible to ascertain the typical position of the oppressed group: S Harding The Science Question in Feminism (1986). I accept that group identities are multi- rather than uni-dimensional, and flux rather than static or essential. Consequently, it would be a distortion to imagine, for example, that there is a typical standpoint or perspective of a woman or a disabled person on a given question. I reinforce this concession about the essentialist limitations of standpoint epistemology in Chapter 3 of this study.
Transformation and transformative constitutionalism10 would be not so much rendered meaningless, but manifestly incomplete for disabled people, if they failed to integrate the standpoint of disabled people in their enterprise. To argue that the voices of disabled people ought to be an essential part of how we construct the universe of equality is not to argue for normative anarchy or separatism. Rather it is to argue, as Iris Young does, that if normative reason is dialogic, then just norms have a better prospect of being inscribed into our political and legal economy if there is more than token interaction between different interest groups, and, especially, if the dominant group is compelled to hear the voice of the marginalised group.11 If democracy means a process of communication across differences, and decision-making to determine collectively the conditions of our lives in the republic, then communicative ethics require that all citizens be accorded an opportunity to participate as peers.12 That way, we are able to avail ourselves of the opportunity to check systemic dominance and subordination.13
It bears stressing, though, that to argue for standpoint epistemology is not to assume that only those that are excluded from citizenship have a unique insight into the truth about exclusionary citizenship and the remedial responses. It is not to silence the voice of non-victims on the assumption that they do not know about oppression or to elevate the voices of the victims above reproach so as to render them the only authentic voices. Catherine Bartlett puts it neatly when she says that ‘although victims know something about victimization that non-victims
10 In Chapter 3, especially, terms ‘transformation’ and ‘transformative constitutionalism’ and their relevance to this study are discussed.
11 Young (note 7 above) 116.
12 N Fraser Justice Interruptus (1997) 173; Young (note 7 above) 101, 106-107; J Habermas The Theory of Communicative Competence Volume 1: Reason and Rationalization of Society (1983); J Habermas The Theory of Communicative Competence Volume 2: Lifeworld and System (1987).
13 Fraser ibid; Young ibid; Habermas The Theory of Communicative Competence Volume 1 ibid; Habermas The Theory of Communicative Competence Volume 2 ibid.
do not, victims do not have exclusive access to truth about oppression’.14 Rather it is to argue for dialogue in the construction of equality so that all stakeholders participate in the making of equality that is grounded in concrete as opposed to abstract reality as to be inclusive.
In a plural society, we must not only become conversant with the social histories of disadvantage and marginalization that have been visited upon disabled people. Equally important, we must critically engage with historically privileged social constructions of disability and determine the extent to which the underpinning assumptions and old power relations between enabled people15 and disabled people are reconcilable with, or oppositional to, the equality imagined by disabled people. That way, we are able to determine the remedies as well as ascertain the distance that has to be travelled in order to fulfil the equality of disabled people.
In both political and legal senses, what Watermeyer and Swartz are also saying in their introduction to Disability and Social Change in the quotation cited above is that we have choices when constructing our equality universe. In the final analysis, disability is not an objective term. Rather it is a social construct that is shaped by power relations. In our search for equality, we must be cognizant of the fact that there are not so much best practices for equality but rather competing practices. In the final analysis, subjective choices must be made but within a democratic paradigm. We must begin by conceding that some understandings of disability are more restrictive of equality and human dignity
14 Bartlett (note 7 above) 875; See also Martha Fineman who addresses the same substantive point but from a perspective of the ‘question of representation’ in feminism. Fineman’s point is that one does not need to be a member of a social group in order to have a view on the experiences including equality aspirations of that group: ML Fineman ‘Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship’ (1990) 42 Florida Law Review 25 at 41-42. 15 It will be explained in Chapter 3 that, like ‘disabled people, ‘enabled people’ is also a term used to denote a social construction of disability and to mean people whose physical and mental capabilities are assumed, or better still, affirmed by the socio-economic environment.
than others. It makes a substantive difference to our equality and non-discrimination standards whether we treat disability as a private misfortune and the logical outcome of impairments that are visited upon individuals by the force of nature or happenstance – the individual impairment model of disability16 - where the cost of disability is borne by the individual, or whether we treat disability as something that goes beyond individual bodily impairment and misfortune so as to implicate the manner in which our social environment systematically assumes certain bodily norms and thus systematically disables those we perceive as having an impairment - the social model of disability.17 If we choose the latter, then, disability becomes something that happens to a social group rather than to individuals as a consequence of how our society is organised. Unless we fully accommodate what we perceive to be bodily difference, disability becomes a form of social exclusion and, indeed, oppression. If we accept, as Ronald Dworkin has argued, that in a liberal society each human being is of equal worth and is deserving of equal respect,18 our response ought to be to desire to effectively eradicate disablism,19 through not only proscribing aversive attitudes, but also bearing the cost of disability.
In the old dispensation, the colonial discourse, and, latterly, the ideology and practice of apartheid assured that race would become the overarching vector of inequality. However, race was, by no means, a lone vector in the creation and sustenance of inequalities. Ensconced in, or juxtaposed with, apartheid’s legal and political economy was a political and legal economy that also created, perpetuated or entrenched other types of inequalities. Gender is a case in point. Patriarchy was entrenched for all racial groups, albeit, differentially, marking
16 The individual impairment model of disability is explained in Chapter 3, especially. 17 The social model of disability is explained in Chapter 3, especially.
18 R Dworkin Taking Rights Seriously (1977) 180-183.
19 I use the term ‘disablism’ to mean disability-related discrimination. The normative implications of significance of using the term ‘disablism’ are explained in Chapter 3.
gender inequality, and women as the prime objects of gender oppression. Women’s equality rights were a casualty on account of systemic subordination. For African women, especially, there were intersecting vectors of inequality. Racial discrimination and the paterfamilial traditions of African customs operated as a double yoke. Furthermore, the racialised and distorted type of legal pluralism spawned by the colonial project compounded the gender oppressive effects of African customs.20 Indeed, the distortive effect of colonially moulded African customary norms on property rights, for example, received its highest judicial recognition in Bhe v Magistrate, Khayelitsha and Others, where the Constitutional Court echoed Thandabantu Nhlapo in saying:
The identification of the male head of the household as the only person with property-holding capacity, without acknowledging the strong rights of wives to security of tenure and use of land for example, was a major distortion. Similarly, enacting the so-called perpetual minority of women as positive law when in the pre-colonial context, everybody under the household was a minor (including unmarried sons and even married sons who had not yet established a separate residence), had a profound and deleterious effect on the lives of African women. 21
20 F Kaganas & C Murray ‘Law and Women’s Rights in South Africa’ in T Bennett et al (eds) Acta Juridica 1; Y Mokgoro ‘Constitutional Claims for Gender Equality in South Africa: A Judicial Response’ (2003) 67 Albany Law Review 565; T Nhlapo ‘African Customary Law in the Interim Constitution’ in S Liebenberg (ed) The Constitution of South Africa from a Gender Perspective (1995) 157-166; A McClintock “’No Longer in Future Heaven”: Women and Nationalism in South Africa’ (1991) 51 Transition 104 at 113.
21 Bhe v Magistrate, Khayelitsha and Others (Commission for Gender Equality as amicus curiae), Shibi v Sithole and Others, SA Human Rights Commission v President of the Republic of South Africa and Another 2005 (1) BCLR 1 (CC) para 89; Nhlapo (note 20 above) 162. See also: Gumede v President of the Republic of South and Others (2008) ZACC 23, para 17 where the Constitutional Court said: Whilst patriarchy had always been a feature of indigenous society, the written or codified rules of customary unions fostered a particularly crude and gendered from of inequality...it [patriarchy] was nurtured by fossilised rules and codes that displayed little of no understanding of the value system that animated customary law of marriage’. On colonial and Apartheid misrepresentation of African customary law, see also: A Claassens ‘Women Customary Law and Discrimination: The Impact of the Communal Land Rights Act’ in C Murray & M O’Sullivan (eds) Advancing Women’s Rights (2005) 42-81, 48-51.
Thus, colonial and apartheid legal discourses served to reinforce, but also construct patriarchal cultural traditions resulting for millions of women in overlapping vectors of oppression. The overlap between apartheid and gender inequality often reduced African women to the position of minors in public and private spaces. The outcome was significant impediment in access to socio-economic spheres and the feminisation of poverty, with rural black women faring the worst.22
Sexual citizenship was another domain of attenuated equality.23 Sexuality was heavily policed not only across the racially demarcated boundaries,24 but also across sexualities.25 As part of racialising citizenship, ‘unlawful carnal intercourse between a white person and a member of any other racial group’ was criminalised.26 Heterosexuality was the privileged norm, with ‘sodomy’ officially
22 Nhlapo (note 20 above) 157, 159-163.
23 D Bell & J Binnie ‘Sexual Citizenship: Law, Theory and Practice’ in J Richardson & R Sandland (eds) Feminist Perspectives on Law &Theory (2000) 167-186.
24 Jeremy Martens is right in noting that, contrary to what is conveyed in many commentaries, the prohibition of sexual intercourse between white and black people did not start with the Immorality Amendment Act No 21 of 1950, but rather with the Immorality Act No 5 of 1927: J Martens ‘Citizenship, Civilization and the Creation of South Africa’s Immorality Act, 1927’ (2007) 59 South African Historical Journal 223 at 225.
25 Section 20A of the Sexual Offences Act No 23 of 1957 and the common law crime of sodomy criminalised sex between males. Sex between males also attracted additional sanctions under various pieces of legislation, including a schedule to Criminal Procedure Act of No 51 of 1977 and a schedule to the Security Officers Act No 51 of 1987; National Coalition for Gay and Lesbian Equality v Minister of Justice and Others 1998 (12) BCLR 1517 (CC).
26 Commentators have advanced different reasons for the criminalisation of inter-racial sex. Some have argued that the criminalisation of inter-racial sex was part of ‘scientific racism’ and, as such, a response to the threat of miscegenation and ‘race hybridisation’ that would contaminate ‘white civilization’. Others see the criminalisation as a constituent part of shoring up white supremacy though maintaining notions of ‘middle-class respectability’ that included not breaching racial boundaries and, thus, not undermining racial hierarchy, respect and dominance: Martens (note 25 above); S Dubow Scientific Racism in Modern South Africa (1995) 180-190; A Stoler Race and the Education of Desire: Foucault’s History of Sexuality and the Colonial Order of Things (1995) 104-106. A McClintock Imperial Leather: Race, Gender and Sexuality in the Colonial Context (1995); For a discussion on ‘respectability’ as a behavioural norm in racism, sexism, homophobia and other prejudices, see Young (note 7 above) 136-141.
tainted with ‘deviance and perversion’.27 However defiant, gay men realised their sexuality at the margins of society, in secrecy and fear and as ‘unapprehended felons’.28 The list of cross-cutting and overlapping vectors of inequality is long and includes relatively more recent vectors such as HIV/AIDS where authoritarianism, racism and homophobia shaped early government policy and legal responses.29 When glimpsing at the past, it suffices to note that prior to the new constitutional dispensation, the construction of difference so as to exclude other groups from full citizenship, went beyond racial groups to include several other groups of which disabled people were one.
To say that disabled people were a marginalised group in the old dispensation is, however, not to claim that disabled people were somehow a novel creation of colonialism or apartheid. Rather, it is to highlight that equality for disabled people is not a new need. At the same time, it would be remiss to overlook apartheid’s own imprint on the creation and accentuation of disability. As an all encompassing social engineering project, apartheid applied in equal measure to disabled people so as to maintain racial dichotomies between, and hierarchies among, disabled people.30 Disabled people attest, for example, to a state disability grant system that faithfully adhered to the imperatives of apartheid’s racial pyramid, with ‘White’ disabled people receiving the highest amount,
27 National Coalition for Gay and Lesbian Equality v Minister of Justice and Others (note 25 above) para 23.
28 M Gevisser & E Cameron (eds) Defiant Desire: Gay and Lesbian Lives in South Africa (1995); E Cameron ‘Sexual Orientation and the Constitution: A test Case for Human Rights’ (1993) 110 South African Law Journal 450 at 455; National Coalition for Gay and Lesbian Equality v Minister of Justice and Others (note 25 above) para 23.
29 CG Ngwena ‘Legal Responses to AIDS: South Africa’ in S Frankowski Legal Responses to AIDS in Comparative Perspective (1998) 117-167, 125-131; L Grundlingh ‘Government Responses to HIV/AIDS as Reported in the Media 1983-1994’ (2001) 45 South African Historical Journal 124; CG Ngwena ‘Responses to AIDS and Constitutionalism (2003) 24 Obiter 299 at 305-306.
30 C Howell, S Chalklen & T Alberts ‘A History of the Disability Rights Movement in South Africa’ in B Watermeyer et al (eds) ‘Introduction and Overview’ in Disability and Social Change: A
South African Agenda 46-84, 48; South African Human Rights Commission Towards a Barrier-Free
‘Africans’ the lowest and ‘Coloureds’ and ‘Indians’ an amount somewhere in between.31 The extreme socio-economic disparities between black and white meant that the repercussions of disability would be commensurately experienced along colour lines, with the poorer black group bearing highest costs. The apartheid superstructure also meant that knowledge and experience about disability by, for example, the health care and rehabilitation systems privileged the cultural knowledge and experience of professionals who were not necessarily aware of, or even empathic about, the life and welfare of black disabled people. Kathryn Jagoe captures apartheid’s racial imprint on disabled people in the following way:
We have additional problems in South Africa: extreme overcrowding of black hospitals, insufficient training in basic nursing techniques related to long term disabilities, the inappropriateness of knowledge and experience of White therapists taught in "white" medical schools working in "black" hospitals, and the environment of the majority of black people. For example, of what use is it to learn to transfer sidewards from a wheelchair to an accessible toilet if you only have a corrugated iron privy in the back yard into which you can't get a wheelchair. But how many white therapists have intimate knowledge of that community? We are separated, by color, from the time we are born, yet they are supposed to teach their "patients" useful skills.32
The propagation of racial supremacy apart, apartheid-related violence had a hand in creating disabilities. Violence to shore up apartheid as well as violence to counter it created their fair share of physical impairments and disabilities.33 But
31 K Jagoe ‘The Disability Rights Movement: Its Development in South Africa’. Available at <http://www.independentliving.org/toolsforpower/tools6.html> (last accessed on 26 January 2005). The use of ‘Africans’, ‘Coloureds’, ‘Indians’ and ‘Whites’ to denote racial groups under apartheid is explained in Chapter 2.
32 Jagoe ibid; S Berry ‘Overview of Awareness Raising about Disability in South Africa’. Available at < http://www.riglobal.org/publications/media_report/barry.html> (last accessed on 13 August 2008).
33 For example, the demonstrations in June 1976 by black youth against the compulsory introduction of Afrikaans in ‘African’ schools were quelled by maximum state force, including
leaving aside apartheid’s own imprint on disability, the historical marginalisation of disabled people in South Africa can be said to be unexceptional to the extent that it generally mirrors the experience of disabled people in other parts of the world and the developing world, especially. From a post-apartheid transformative perspective, notwithstanding that the lives of disabled people under apartheid conformed to a racial pyramid, the more salient point to grasp, as Colleen Howell et al emphasise, is that all disabled people, black and white, were marginalised.34 All had very limited access, however, differential, to social goods such as employment, education, health services and welfare services.35 It is vitally important, therefore, to ensure that the new constitutional dispensation becomes a transformative vehicle not only for marginalised ‘races’, genders or sexualities, but also for other less visible social groups with equally compelling equality needs such as disabled people.
3
DISABLED PEOPLE AS A GLOBALLY MARGINALISED
GROUP
The marginalisation of disabled people is a universal experience. The recent adoption of the Convention on the Rights of Persons with Disabilities underscores both the global nature of disability-related discrimination, as well as the urgency of protecting and promoting equality for disabled people. South Africa was one on the countries that avidly supported the adoption of the
live ammunition, resulting many youths being shot dead or being left maimed and disabled. After discharge from hospital, many such disabled youths found themselves without any meaningful access to rehabilitation services or employment, and were later to form self-help disability groups as part of reclaiming their dignity: J Nkeli ‘How to Overcome Double Discrimination of Disabled People in South Africa’ (1998). Available at <http://www.independentliving.org/docs1/hr5.html> (last accessed on 28 July 2005); W Rowland Nothing About Us Without Us (2004) 7; Howell et al (note 30 above) 50. See also Chapter 2 of this study, § 2.3.
34 Howell et al (note 30 above) 48. 35 Ibid.
Convention.36 South Africa has signed and ratified the Convention as well as the Optional Protocol to the Convention, thus, evincing a clear intention to be bound by the duties imposed by the Convention.37 In any event, irrespective of any signing or ratification, the South African Constitution requires courts to consider international law when interpreting constitutional provisions.38 A sense of the Convention’s equality orientation is, therefore, an important and essential aid to thinking constitutionally about disability and ultimately constructing normative responses to unmet equality needs at the domestic level.
3.1
Convention on the Rights of Persons with Disabilities
On 13 December 2006, the United Nations (UN) adopted the Convention on the Rights of Persons with Disabilities.39 On 3 May 2008,40 the Convention, and the Optional Protocol to the Convention, which opened for signature on 30 March 2007, came into force after the 20th ratification. In its preamble, the Convention acknowledges fulsomely the plight of disabled people as a globally marginalized group. By way of a response, the Convention, through a rights-based approach, seeks to make a significant contribution towards redressing the profound social
36 Address by Dr EG Pahad, Minister in the Presidency, Republic of South Africa, at ‘Towards a Barrier Free Europe for Citizens with Disabilities’ Expert Meeting, 25-27 April 2001, Linkoping Concert Hall, Sweden, 25 April 2001. Available at <http://www.info.gov.za/speesches/2001/0106061245p1001.htm> (last accessed on 28 July 2005).
37 South Africa signed the Convention and the Optional Protocol to the Convention on 30 March 2007 and ratified the same on 30 November 2007: http://www.un.org/disabilities/countries.asp?navid=17&pid=166 (last accessed on 25 July 2010). In § 3.2 (below) the status of international law in South Africa is briefly discussed.
38 Section 39(1)(b) of the Constitution.
39 UN Resolution A/RES/61/06; Convention on the Rights of Persons with Disabilities. Available at
< http://www.un.org/disabilities/default.asp?navid=12&pid=150> (last accessed on 27 May 2008).
40 Secretary General Welcomes Entry into Force of Convention on the Rights of Persons with Disabilities and its Optional Protocol. Available at <http://www.un.org/News/Press/docs/2008/sgsm11494.doc.htm> (last accessed on 2 January 2007).
disadvantage of disabled people and promoting their equal participation and opportunities in the civil, political economic, social and cultural spheres.41
When compared with other historically marginalised groups such as racial or ethnic minorities42, women43, or children,44 for whom the UN General Assembly has long adopted dedicated binding instruments,45 the Convention is certainly an overdue recognition that disabled people are quintessentially a historically disadvantaged group that is entitled to equal efforts and attention in the protection and promotion of human rights. It is hard to overlook the momentous nature of the Convention in providing, for the first time ever, a binding treaty that is dedicated to global protection of the human rights of disabled people.46 Until the adoption of the Convention, article 23 of the Convention on the Rights of the Child remained the only disability-specific provision in a UN treaty. The Convention marks the culmination of a global struggle to raise global consciousness about disability and to transform disability from a paradigm of welfare and rehabilitation, as was the orientation with the early UN declarations on disability, to a universal rights-based approach with equality at its centre.
41 Preamble to the Convention.
42 Convention on the Elimination of All Forms of Racial Discrimination. Adopted and opened for signature, ratification, and accession by the General Assembly resolution 2106 (XX) of 21 December 1965 and entered into force on 4 January 1969.
43 Convention on the Elimination of All Forms of Discrimination against Women. Adopted and opened for signature, ratification, and accession by the General Assembly resolution 34/180 of 18 December 1979 and entered into force on 3 September 1981.
44 Convention on the Rights of the Child. Adopted and opened for signature, ratification, and accession by the General Assembly resolution 44/25 of 20 November 1989 and entered into force on 2 September 1990.
45 T Degener & G Quinn ‘A Survey of International, Comparative and Regional Disability Law Reform’ in Breslin Ml & Yee S (eds) Disability Rights Law and Policy (2002) 3-125 at 17-19; AS Kanter ‘The Globalization of Disability Rights Law’ (2003) 30 Syracuse Journal of International Law and Comparative Law 241 at 265-266; Ngwena ‘Equality for People with Disabilities in the Workplace’ (note 6 above) 173-178; L Manderson ‘Disability, Global Legislation and Human Rights’ (2004) 47 Development 29.
46 Prior to the Convention on the Rights of Persons with Disabilities, the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities A.G. Res. 1608, 29th Sess., O.E.A. Doc. OEA/Ser. P AG/doc.3826/99 (1999), a regional treaty, was the only dedicated treaty on disability.
In the early years, especially, the disability orientation of UN revolved around prevention and rehabilitation of impairments. This is illustrated, for example, by the adoption by the Economic and Social Council of the United Nations in the 50s of programmes on ‘Social Rehabilitation of the Physically Handicapped’ and ‘Social Rehabilitation of the Blind’.47 In the 70s, the UN began to modify its orientation and shift towards a human rights approach. It adopted the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons to address disability as a human rights concern.48 However, though the UN declarations were intended to mark a shift from a focus on welfare and rehabilitation to a human rights-based approach,49 they, nonetheless, failed to capture the role played by society in creating disability. The origins of disability were still posited as primarily residing in the physical body.
A major limitation with the UN declarations was in conceiving disability as individual impairment that is disconnected from the physical and social environment.50 The focus was on rehabilitating the disability and the disabled person to render the affected person as ‘whole’ as possible so that they could fit into the existing normal environment. The declarations had no real insight into
47 ‘The United Nations and Disabled Persons – The First Fifty Years’. Available at < http://www.un.org/esa/socdev/enable/dis50y20.htm> (last accessed on 27 August 2008); MS Stein ‘Disability Human Rights’ (2007) 95 California Law Review 75, 88.
48 The Declaration on the Rights of Mentally Retarded People (1971) United Nations General Assembly Resolution 2856 of 1971; and the Declaration on the Rights of Disabled Persons (1971), United Nations General Assembly Resolution 3447 of 1975: Degener & Quinn (note 45 above) 12; Kanter ‘The Globalization of Disability Rights Law’ (note 45 above) 253-254; Ngwena ‘Equality for People with Disabilities in the Workplace’ (note 6 above) 173.
49 G Quinn & T Degener Current Use and Future Potential of the United Nations Human Rights
Instruments in the Context of Disability, Chapter 2. Available at
<http://www.sre.gob.mx/discapacidad/ paperunhchr02.htmp> (accessed 4 May 2005).
50 For example, the Declaration on the Rights of Disabled Persons defined the term ‘disabled person’ as ‘any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or not, in his or her physical or mental capabilities’: Ngwena ‘Equality for People with Disabilities in the Workplace’ (note 6 above) 173-174; Kanter ‘The Globalization of Disability Rights Law’ (note 45 above) 254.
the normative importance of bringing under the spotlight, the physical and social environment as a major disabling factor. The declarations were conspicuously assimilationist in that they sought to treat everyone by the same rules with a view to integrating disabled people into a supposedly ‘normal life’.51 Doing little to accommodate diversity but insisting on the ideal of equality as sameness and the elimination of all differences is, paradoxically, repressive as it serves to give legitimacy to ableist institutions52 and behaviour and thus maintain the status quo.
The 80s and 90s laid the building blocs for a substantive equality approach towards disability. This period saw the UN gradually abandon an assimilationist approach to remedying disability to become receptive towards a more expansive notion of equality for disabled people. In 1982, the General Assembly adopted the World Programme of Action Concerning Disabled Persons53 which in turn was to guide the UN Decade of Disabled Persons (1983-1992).54 The cardinal goal under the World Programme of Action was securing ‘equal opportunities’ for disabled people. For the first time in a UN initiative, the term ‘equality of opportunities’ was conceived as ‘the process through which various systems of society such as the physical and cultural environment, housing, and transport, social and health services, educational and work opportunities, cultural and social life, including sports and recreational facilities, are made accessible to all’.55 Implicating the social and economic environment as barriers and requiring
51 For example, over and above using the term ‘retarded’ that clearly draws a boundary between what is ‘normal’ and what is ‘abnormal’ and has the capacity to stigmatise, insult, and lower equality expectations, the Declaration on the Rights of Mentally Retarded Persons, inter alia, sought to promote the ‘integration as far as possible in normal life’ of mentally retarded persons. 52 It will be explained in Chapter 3 that I am using ‘ableist’ to mean socio-economic arrangements that cater for people that are not disabled.
53 United Nations General Assembly Resolution 37/52 of 3 December 1982; Degener & Quinn (note 45 above) 12; Ngwena ‘Equality for People with Disabilities in the Workplace’ (note 6 above) 175.
54 United Nations General Assembly Resolution 37/52 of 3 December 1982; Degener & Quinn (note 45 above) 12; Ngwena ‘Equality for People with Disabilities’ (note 6 above) 175.
