Report of the CIB Expert Seminar
on Building Non-Handicapping Environments, Harare 1992

Constitutionalism and access legislation

Moses Masemene, SAFOD, Lesotho

Constitutionalism is a legal philosophy which pertains to the background of constitutional law. Constitutional law prescribes the structures or organs of the state, be it the executive or the government, the legislature as well as the judiciary. It also prescribes the objectives and the constitutional principles as well as the political system in any particular social formation for the purposes of protection of rights. Hence, constitutional law is always regarded as the principal law of the land. Most constitutions are written. I believe only the British constitution is not written. Constitutions reflect the ideologies of a particular country. Ideologies emanate from the social formations, for example, most constitutions are of two types: liberal democracies, which follow the British model of constitutionalism; and socialist constitutions, which follow the socialist mode of production, whereas the former follow the free enterprise economy. Hence, most constitutions in developing countries are replicas of the constitutions of their masters.

Constitutions enshrine fundamental human rights, therefore disability rights denote access to fundamental human rights as we who have disabilities have got to enjoy the same rights as other people. When you look at political systems, from time immemorial, it has been an issue of the majority or democracy. But democracy means different things to different people. It may mean a different thing to a capitalist, to a developing country or a socialist. Generally speaking, an orthodox democracy means a government of many people for the benefit of many people where they elect members of the executive or the government who have got a mandate from the people. There is a move also that even the rights of minorities must be protected. Therefore, for minority groups like us, when we speak of representation, a debate is started; democracy for minorities is different from democracy of a local constituency. So it will mean different things for disability rights, for minority groups, be it women or any others.

Access legislation refers to legislation that seeks to create and sustain a barrier-free and non-handicapping environment, for people with disabilities of all categories, namely: speech and hearing impaired, visually disabled, mentally disabled, and physically disabled persons.

As a matter of praxis and reality, most if not all developing jurisdictions have no access legislation, while most, if not all developed jurisdictions have access legislation in their law books. For the former, the main concern will be the preoccupation with the formulation of access legislation and ensuring enforcement mechanisms as an index of effectiveness. For the latter the primary issue is in implementation or enforcement of access legislation.

The object of this paper is to provide a useful basis for reference for developing and developed jurisdictions in the plane of access legislation. For example, it will be fascinating to analyze what obtains in Stockholm or Washington or Harare in the area of access legislation. The disparity and divergences in development of access legislation warrant a scrutiny for genuine partnership and collaboration between and amongst developing and developed countries. The question that arises is, what are the politics surrounding the emergence of access legislation? The history of men and women or that of communities and social formations? Clan struggle, domination or liberation?

The fulcrum is the individual conscience or attitude and community conscience or attitude. Attitudes emanate from consciousness to certify a drive, a need and aspiration or an interest. Hence individual interests or interest groups. These culminate in social formations and social settlements.

During a primitive mode of production the community conscience or attitude becomes primitive, so are mores and customs. At this stage of development the order of the day is the survival of the fittest, who would amass wild berries or crops and kill wild animals for food. The environment is rife with barriers and handicapping conditions for people with disabilities. As a result of primitive social attitude, people with disabilities were rejected as non-persons or creatures of doom who deserved extermination on the grounds that they were misfits in the world or environment that required physical fitness. The pattern of social settlement was nomadic and migratory in that game and vegetation were followed according to seasons and their availability. This state of affairs was regarded as acceptable and normal community attitude.

This stable situation negated itself under the feudal mode of production which reflects a feudal superstructure, mores, customs, laws as well as social attitudes or community conscience. Social settlements turned to be permanent as a result of pastoral farming, rearing of animals and tilling of the soil for production of crops for food. Society was now administered by feudal lords chosen by that society or community. The social attitude of extermination of people with disabilities was transformed to that of charity or care and over-protection as a consequence of the advent of Christianity. People with disabilities are viewed as objects of care and over-protection. The physical environment and surroundings were still able-bodied oriented.

Dialectical contradictions in feudalism culminated in the overthrow of the feudal mode of production. The capitalist mode of production became the successor. It is characterized by capitalist laws and attitudes. The industrial revolution catalyzed the emergence of free market economy in that cities, industry and commerce developed at an alarming rate. People with disabilities became self-assertive, articulate, and critical of the charity attitude. They organized themselves into disability rights organizations aimed at waging disability revolution for access, equality and full participation in the enjoyment of fundamental human rights in parity with their non-disabled counterparts in society.

How does access legislation come about? This process must be preceded by sensitization/politicization or conscientization of society or the community on access legislation which seeks to create a barrier-free and a non-handicapping environment, be it buildings, roads, pathways, leading to business, educational and industrial activities.

Public awareness campaigns or publicity of the implications of access legislation can be done through the mass media, seminars and workshops. The Disability Rights Movement and their supporters in the disability struggle must be in the vanguard of conscientization campaigns that seek to dispel negative social attitudes towards disability. Waging a disability struggle at the attitudinal level is a vital pre-legislation requirement. Furthermore, it is significant that seminars and workshops on design solutions for elimination of barriers in the handicapping environment be held.

The process of formulation of access legislation can be at the national and international level. The Disability Rights Movement must study a legal system within its area of operation. This means that identification of a ministry or department responsible for access directed legislation is essential for a tactical relationship. Analysis of existing allied legislation, for example, the Land Act, Town and Country Planning Acts, Building Act and the Utility Services Act, must be made in order to determine defects in the access provisions.

Legislation on access can be made by amending existing access-related legislation or by promulgation of comprehensible access legislation. How can access legislation be monitored and enforced? Monitoring presupposes and implies overseeing and facilitating implementation, while enforcement or implementation signifies imposing a sanction for non-observance or non-compliance with legislation.

Access legislation can be monitored by all actors who administer it as prescribed in such legislation. For instance, land administrators, town planners, surveyors, architects, engineers, and designers in the various duties of administering their respective, access-allied legislation can play a valuable monitoring role. In addition, the Disability Rights Movement together with educators in access related professions or vocations may also play a vital monitoring duty.

As for enforcement or implementation of access legislation, the relevant actors are the aggrieved parties, the law enforcement agents and policy makers and arbitrators or judicial officers. The question that arises is, how can enforcement be effective? Compliance of any legislation centers on the expediency and efficiency to bring violators to enforcement structures, court or arbitration tribunals. People will observe development directed legislation, if they would reap benefits and if the benefits of compliance exceed the utility of non-compliance. Political will is an inalienable requirement for meting out a sanction for violation of development oriented legislation. The policy makers must be willing to take urgent and appropriate political decisions in order to ensure enforcement.

Arbitrators or judicial officers must also be ready to deliver justice by giving priority to development related cases expeditiously. It stands to reason that access legislation as part of development oriented legislation falls within the stipulated criteria of enforcement. Furthermore, society will pay a high cost, if access legislation is not put into place/formulated and finally enforced. This will occur in the sense that the mobility of people with disabilities to points of social services, industry, employment and commerce will be frustrated. This means that employers will have to incur extra costs for employment of carriers of mobility impaired persons or consider non-placement of people with disabilities, because of handicapping environments. Ultimately, the high incidence of unemployment among people with disabilities constitutes a liability on society by way of welfare benefits or disability grants.

In conclusion, access legislation has to be formulated and enforced for the benefit of all members of society and in particular for creating equal opportunities for mobility of people with disabilities in the physical environment. Furthermore, the incidence of disability increases with the high rate of urbanization, motorization and modern, high-technology devices, nuclear development and militarism. Therefore, access legislation serves as pre-planning for the adjustment and adaptability of people with no disabilities, when they become disabled. For this reason, it is inevitable that the environment has to be barrier-free and non-handicapping.