"Legislation for Human Rights"
Stockholm, Sweden, 24 August 1998
by Jerry Nkeli, Human Rights Commissioner
Ladies and gentlemen and colleges, Today I will sketch for you the history of South Africa from the point of view of the Disability Rights Movement. In the 1970s we had no Disability Rights Movement in South Africa. Most disabled people were in institutions, they worked in sheltered workshops, they were not organized and they had no rights.
In 1976 on the 16th of June students demonstrated against the inferior education that was given to the majority of people in South Africa, mainly blacks through the Department of Education and the apartheid system. A lot of youths were shot, some died and some became disabled. Most of the people who became disabled found themselves lying in hospitals for up to three years without any proper rehabilitation services. When they were discharged they were actually taken to institutions and to sheltered and protected workshops, where they had no rights, or dignity. A group decided that they were not going to be told what to do nor be subjected to humiliation. They felt that they needed to sort things out themselves and created their own self- employment scheme. They established "The Self- Help Association of Paraplegics in Soweto". They started from scratch, raising funds and organizing themselves into a self-help group. They were saying they were going to be different from the charity and welfare institutions, and they were different because they were running their own institution. They became their own managers and even organized a scheme for disabled people who wanted to further their education.
In the early 1980s a few of our colleagues in South Africa attended an international conference organized by Rehabilitation International. The few people who attended that conference were quite privileged and all were from the white community. They came back with a lot of excitement. They had the theory, they knew that it is proper to reject charity and welfare, but they didn' t have the numbers. They met the self-help group in Soweto, who did not know how to philosophize, who didn't know how to contextualize their struggle, but who in a very simple way understood that they did not want charity and wanted to run their own life and who had the numbers.
When these two groups came together the philosophy of the civil rights movement which was prevalent at that time in the United States, came to the attention of the black paraplegics in Soweto. This mixing of the groups gave the movement strength, and encouraged other disabled people around the country to organize themselves into self- help groups. The groups began to be really revolutionary and saw that the struggle of people with disability cannot be disassociated from the struggle against apartheid. Through workshops the groups found that there were people supporting them all over the world.
In 1991 when the political parties were un-banned, we as disabled people began to make contacts with groups in the liberation movement. They were very interested in us because we were articulating our own rights. We asked our comrades in these revolutionary bodies what they had to offer us as disabled people and what they knew about disability. To our amazement they didn't know much. We took the opportunity to tell them about ourselves, disability issues and what we wanted.
We made it clear that we understood that a power shift was coming in the near future and that we knew our support was important for them in that we are a large constituency, about 10% of the population with families, friends, girlfriends, boyfriends, and children so that if they didn't listen to us, they were going to find themselves with serious problems. Firstly we said that when they draw up the Constitution and manifestos that disability needed to be included. We also demanded our rights, self-representation, and inclusion in all discussions. We managed to ensure that our demands were included in the Constitution and manifestos. In fact when the new Government came into being and the new Constitution was drafted in 1993, the clause which says that nobody should be discriminated against specifically mentions disability.
It was quite important for us as disabled people to make inroads into the legal protection institutions at an early stage. Even though the Constitution provides that every person is born equal and has the same rights to life and welfare, education, work and active participation in all aspects of society, we still have problems. We are not a very rich country, disabled persons still continue to experience multiple discrimination, directly and indirectly. Discrimination still prevents us from becoming full members of society who are enjoying all the benefits and the rights bestowed upon us as citizens. For instance we continue to be discriminated against by many pension funds and medical aid schemes, and many public amenities are not easily accessible.
When we sketch the situation for people with disability in South Africa, a country with one of the most liberal constitutions in the world, we see that we have legal and constitutional protection, but that the majority of our people are facing great difficulties. It is suggested that approximately 5 to 7% of South Africans are disabled. The Department of Health has recently carried out an in-depth survey to determine more accurate figures as to the prevalence of people with disabilities.
We have disability grants which are minor and meager but are very important to ordinary people in South Africa. The disability grant actually composes about 24% of the social security budget in our country, and it is paid to those with a physical or mental disability. The grant is the same as the old age pension which is about 490 Rand per month. Applications are assessed by a district surgeon who more often than not doesn't understand disability and it is subject to a means test so that people who are employed do not benefit from the grant.
The Government is spending a lot in terms of social security and welfare expenditure. Expenditure grants are paid to over 3 million beneficiaries and are a crucial source of income to poor households particularly in rural communities. The state expenditure on social security has increased over the last five years in order to achieve parity between racial groups in South Africa. During the apartheid era, whites were getting more than blacks, people of Asiatic origins were also getting more than blacks. The state budget increased from 1995 to the current year from 14 billion Rand to 19 billion Rand.
The Commissions on Human Rights and on Gender Equality together with a national coalition of non-governmental organizations conducted a survey among people in the rural communities and in the townships to identify the level of poverty in our country. In the survey there is an interview with a person who while arguing that disabled people need empowerment acknowledged how organized they already were when noting that they gate-crash meetings. This person was not arguing for special services for disabled people, but rather for non-exclusion. He argued that disabled people are treated as a special entity that people want to put us aside and we don't want that. He said, "don' t make us special, don't look at my disability, I am a person in a wheelchair, that is not my disability, nor my paraplegia. My disability is the stairs at the Department of Health and Welfare that disable me. Just give me an accessible environment that will make me part of South Africa."
Another person interviewed in the survey felt that the new Government was better than the old, said "the old Government, I cannot explain that Government. They had no respect for us, they treated us as the sick, they did not listen to our voice." But then he goes on to say "we still face discrimination when we start our income project and we go to financial institutions and we apply for capital. They all tell us to go to the welfare department because we are disabled and sick."
These scenarios put the issues in perspective, so that some of you can realize, especially in the northern hemisphere that you are very lucky to a certain extent, that you don' t have the same problems that we have. Yes it is true that you don' t have rights and your rights are not as wide as ours, but it is important to understand that in some ways you are in a better position.
The problems of the disability grant in South Africa have been a sore source of concern. For instance some people complained that the size of the grant was insufficient to meet their needs and those of their dependents. This places a particular burden on elderly persons who are expected to use their pension to support a wide net of relatives. For instance people complain about the reduced amount to be received for child maintenance and the fact that children over seven years will not qualify for the child support grants. One person said he saw a situation where there are few jobs and black people need to improve their skills in order to be able to get a shot at those few jobs that are available. He said that we all understand the macro-economy, the burden that the Government has, and that the Government must reduce it's deficit but felt strongly that the Government needed to slow down the reduction process so that we first have time to find ourselves. When we have found ourselves then they can make reductions, but not now.
A major problem in our country regarding social services is mainly in aspects of corruption and fraud. In a drive to uproot corruption and eliminate fraud the Department of Welfare has embarked upon a project to re-register about 3 000 000 beneficiaries. This process is frustrating but will enable the department to update and correct data and eliminate duplicate claims and beneficiaries where people who are non-existent are still receiving their disability grant. The Government is embarking on this program to ensure that this system will be more efficient.
There are measures that the Government has taken to address the needs of people with disabilities. Despite the shortcomings that are encountered by disabled people, policies to redress their problems have been put in place. A national consultative forum on disability in South Africa in the form of a national coordinating committee on disability has been established, and the White Paper on Employment Equity by the Department of Labor has been tabled and debated in the last few days. My information is that particular piece of legislation is now an act of Parliament.
One of the most important initiatives taken by the Government towards alleviating problems faced by disabled people is the Discussion Paper on the Integrated National Disability Strategy of the National Government Unit. This document was drafted by the minister of the Deputy President’s office, Mr. Chalken, director of that unit. This white paper seeks to introduce a framework that will facilitate the development of an integrated and coherent policy to address the needs of people with disability. There is also a draft paper for social welfare which makes provision for addressing the concerns of disabled people. This particular disability strategy endorses the world program of action concerning the disabled person. It improves on equalization of opportunity for people with disability, the UN charter of rights.
South Africa cannot be measured by standards of the northern hemisphere. It is important that the northern countries understand that we have poverty to tackle with. It is good to have these grand documents, but we cannot be subjected like school children, where we are measured against these standards. It is important for people to understand the difficulties that Africa is facing. There is anarchy in certain parts of Africa which has a direct bearing on the resources in South Africa. There is malnutrition in Africa which also has a direct bearing on our country. Despite all this, we are hopeful. The Office on the Status of Disabled Persons in the Deputy President’s Office seeks to ensure that disabled people are enabled to develop optimally. The office is responsible for policy development, and is responsible for the overall co-ordination of the strategy. It also has the following responsibilities:
As you know, South Africa is a unilateral state with some elements of federation. We have nine provinces, and each and every province is led by a Premier. In one province, an office has been established to deal with disability issues.
Despite that the right to equality is guaranteed by the Constitution, there are many statutes that deny disabled people their rights and discriminate against them, and need to be amended. For instance the Mental Health Act is still very problematic; the Electoral Act is still very problematic; the Public Service Act which authorizes the Public Service Commission to restrict any person who fails to meet the health requirements from gaining permanent employment is also problematic. But I need to say that sometimes this particular piece of legislation has been ignored. I know for instance that there are a few disabled people who have gained employment.
There are also progressive statutes such as The National Building Regulation and Building Standard Acts, which, unfortunately are not properly implemented. The most significant piece of legislation is the Labor Relations Act, which began to incorporate the concept of putting responsibility on the employer to make an employment atmosphere conducive for people with disabilities. However, much still needs to be done by way of legislation to meet the needs and the Constitutional rights of the disabled person.
We have a section in our Constitution that gives the right to equal protection and benefit of the law. Disability is one of the grounds on which the state may not unfairly discriminate, directly or indirectly. This section goes further to cover horizontal discrimination as well. The section specifically provides that to promote the achievement of equality, legislative and other measures designed to protect or advance persons disadvantage by unfair discrimination may be taken. Affirmative action in the context of a deeply divided society such as South Africa is essential for the advancement of people with disabilities. It is important to note that there is an outcry from most white opposition parties who are alleging that such measures are reverse discrimination. However the majority of disabled people do not agree to this. Disabled people are very supportive of this bill, to the extent that they were staging demonstrations outside Parliament to indicate and to show to the world that they want this particular piece of legislation to be a reality.
Lastly I will tell you about the Commission on Human Rights and other similar institutions. These institutions are called "state institutions" and are supposed to support democracy. The constitution provides for the establishment of such institutions. We have the Public Protector which deals with corruption and complaints about the Government, which is an equivalent of what you call an ombudsman. There is also a Commission on Gender Equality which deals with violations in regard to sex and gender. There is also an Auditor General and an Independent Electoral Commission. These institutions are independent and they are only subject to the Constitution and the Law. They must be impartial, they must exercise their powers and perform their function without fear, favor or prejudice. The Constitution also provides that no person or organ of state may interfere with the function of these institutions. These institutions are accountable to the legislative branch of Government, and we feel that this is a proper, because of the role that is played by the institutions in monitoring the respect, protection, promotion and fulfillment of the Bill of Rights, particularly by the executive branch of the Government.
The fact that we, as disabled people, negotiated and strategically positioned ourselves to take political positions has resulted in disabled persons being involved actively in the government, for example on the Commission on Gender Equality, on the Youth Commission, in the Office of the Deputy President, in the Department of Land Affairs and as members of Parliament.
Colleges, it is important that we as disabled people have rights, but, still, if you don't have something to eat you have problems. By the same token, your country is fortunate that you have the resources, you have a national health policy.
I want to close with the words of a disabled person, who was a native of Zimbabwe, "If by giving me a wheelchair you are taking away my dignity, you might as well have your wheelchair back, and let me have my dignity, my respect, my rights, and nothing more but my rights."
Thank you so much.