Seminar on Human Rights for Persons with Disabilities
from a North and South Perspective
Stockholm, Sweden 23 August, 1998
Jerry Nkeli, Human Rights Commissioner, South Africa
It is pleasure to be here to reflect on the achievements that we have obtained as people with disabilities. It is always a pleasure to see activists, leaders and colleagues in the disability rights movement who directly and indirectly have shaped to some extent our thinking in South Africa. Some of you were very supportive of us in our efforts against apartheid. Therefore, I am very pleased to be here for the purpose of looking at ourselves as a people and to talk about what have we achieved, what we have done wrong and what there is left to do.
In South Africa we have disabled people in leadership-roles and have achieved a lot but we have many problems to face in the field of human rights such as issues dealing with racial intolerance and a diversity of various issues that deal with colonialism. The problems in Africa often end up in South Africa as we are the last point of Africa. Everyone who has problems especially from Central Africa end up in our community. So we also have a problem with the large number of emigrants that come to our country.
In South Africa we are actually lucky that in a very early stage some of our activists were schooled with the principles of the international disability movement and the principles of equality of opportunity. These are principles that help us now to shape our views and policies. The question of affirmative action is still a source of debate in South Africa. We need to debate on disability in terms of race because if we do not do this we are not addressing reality. We are also developing a lot of skills and expertise on concepts that are espoused by our colleagues. We are beginning to tackle the issues in our Constitution. The concept of self- representation has actually helped us to get where we are now. We have managed to be part of the change because we believe very strongly that we must represent ourselves as people with disabilities.
I need to point out that while the movement was revolutionary and is currently advocating the rights of persons with disabilities, as a Human Rights Commissioner I am a bit concerned that the movement does not seem to assure disabled persons of their rights in South Africa either because of lack of understanding of what those rights which are enshrined in the Constitution are or sometimes because persons with disabilities have been so marginalised and oppressed that sometimes they do not even realise when they are oppressed.
At this stage the movement in South Africa is involved in a survivalist approach. The movement has been concerned with obtaining resources, recruiting members and setting up organisations. There is a gap in the sense that people that are young, well articulate leaders with profession do not seem to be drawn to the movement. I do not know what the reason for this is. There seems to be a lack of succession and processes. While the movement is growing in numbers, I do not see the qualitative growth that is necessary to begin to take the human rights and disability rights discourse to a higher level. In South Africa we have one of the best, most liberal constitutions in the world. For instance it has horizontal application where you can challenge a private citizen for violating your rights. But most importantly, it has an element of social economic rights that many constitutions do not have. It is liberal to the extent that it has been argumented that it is too far ahead of its time, that the Constitution actually is not supposed to be what it is. It sometimes makes it difficult for the politicians to govern because it is so liberal you can claim almost any right. Most of the rights are not only pronouncement but also are guaranteed in our Constitution’s Bill of Rights.
We have quite a number of Commissions set up to protect democracy and they are very important in South Africa. We have a Commission on Gender and Equality that deals with discrimination and violation based on gender. We have a Public Protector which is equivalent to your Ombudsman. We have an Auditor General. We have a Commission on Linguistic and Culture. The significance of these institutions is that they are independent from the Government and the Parliament, are supposed to be impartial and to conduct their activities without fear, favour and prejudice . They are set up in the Constitution as state bodies that protect good democracy, independent of the state and funded by the state. Fortunately these institutions were negotiated by all the political parties although sometimes the opposition parties when they are trying to score political points say that there are a proliferation of these institutions and that they cost a lot of money.
The strategy of people with disabilities in South Africa in positioning themselves and seeing that they were appointed by the powers that be in these institutions was significant because it came about when the disability rights movement was lobbying for a Commission on Disability Issues. The government thought that it was better to have an inclusive approach. At first I had my reservations, I thought that the issues of disability would be swamped and be isolated but in the last two years I have adopted a different view. I see that it is important for me as a Commissioner dealing with disability issues to influence my fellow Commissioner. I find that they are sensitive and beginning to understand how disability is defined and what the real issues are without me having to prescribe for them what they should do in their work. That is a significant inroad.
Now I will speak about my work as Commissioner on Human Rights. The work of the Commission is complaints driven. I do not know if we are reaching our colleagues, people with disabilities because they are not lodging enough complaints. In the last few months we have had some success. Often when there is a violation we usually we do not reach the point that we take the case to court. or public hearing. The issues are often solved through negotiations over the phone or with letters. There was a significant case recently when a person who was injured in an motor vehicle accident was denied access to his school. When we first intervened the principle was very hostile and antagonistic. He did not understand how he was going to deal with the disabled person. We did a lot of awareness raising, it was very a emotional experience for this principle. He did allow the person back into the school and after six months he called us. He said that he wanted us to forgive him because he had acted out of ignorance. and reported that the fellow did not give him any problems and that he was prepared to gladly accept students with disabilities in the future.
There was another case involving a person with disability without limbs who often flew to Johannesburg. When the airlines were privatised the airline who had the contract for the route he used refused to fly this particular person. We were very keen to take this case to court and challenge a major corporation . But we were disappointed because the company did not afford us this opportunity, they to settled out of court and actually said that if this person wanted to fly that they would pay for his personal attendant.
Our Constitution has a equality clause which says that no one is to be discriminated against and it specially mentions categories of people that can not be discriminated and disability is one of these categories. Others are sexual orientation, race, colour, gender and ethnic origin and so on. In terms of this clause if you can prove clearly that there was discrimination you can take your case to court. There was case that was very interesting that dealt with social economic rights, more exactly the right to health care. A chronically ill person who needed renal dialysis to survive actually took the Department of Health to court when he was denied medical treatment. That case went to the Constitutional Courts. Unfortunately the constitutional court ruled against his favour.He took the Department of Health to court on the basis of the right to emergency treatment and lost on that basis. The Court said that everyone has the right to emergency treatment but for this patient because he was suffering from other serious diseases the treatment was not considered emergency treatment. This case was discussed widely and it would have been an interesting judgement for us to see how the Constitution would be interpreted but due to the grounds it was based on it did not serve this purpose. Many people thought that the man had brought the case to court on the wrong principles
The Commission on Human Rights also has a promotional mandate. We do this through pamphlets, brochures, radio and TV programs and posters. We have problems with the radio and TV because time is so expensive and when we do get time it is late at night or in the middle of the day when nobody is actually able to listen to the radio or watch TV. We utilise community radio stations which are less expensive to spread our promotional issues.
A question that I will now take up is where South Africa is going to as a country? I think that as a country we have serious problems but we are making some inroads. There is a bill that has recently been passed called the Employment Equity Bill which laid the foundation for the employment of disabled people It actually says that companies must do affirmative action and actually laid the ground rule that a company that employs 50 people must ensure that they employ people with disabilities, woman and people from disadvantaged communities. The opposition parties have been vehemently opposed to this piece of legislation. It was quite exciting to see disabled people demonstrating their support outside of parliament when this bill was debated. It is a quota bill. It has some punitive measures for companies that do not comply, companies must have an equity plan where they show how they are going to address and employ disabled people, woman and people from disadvantaged communities. They have to negotiate the details with the labour forces. and they have to publish their plan. We have borrowed a concept from the Americans where companies that do not comply are not eligible to tender for government work.
Another piece of legislation is coming that is considered anti-discrimination legislation. The Constitution itself it says there shall not be any discrimination but this legislation goes further to say that means shall be taken to ensure that there is no discrimination. This bill must be passed before the year 2000. We are going to ensure that people with disabilities will be well protected by this bill. It will be something equivalent to the civil rights act in the States. There after work will begin with a white paper where we are going to try to come with an omnibus type legislation that deals with all disability issues in a broader sense.
During the past years we have seen exciting legislative progress but a problem is that because of the of lack skills among the majority of people with disabilities we are still bedevilled by poverty and until we begin to address this problem we will find that we still have difficulties.
I remember an activist from Zimbabwe who said to some social workers that he would rather have his rights and crawl than have a wheel chair. if by giving him a wheelchair they wanted to take away his rights. I think it is important for us to see that the Northern countries have opportunities for services and technical devices but do not seem to have constitutional rights where as we in South Africa seem to have rights but do not have the services. We are still discriminated against by the insurance companies and medical fraternity, we do not get sufficient support from our government. South Africa is an exciting country, we have a lot of problems and we are dealing with our problems and learning in the process.