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Integrated National Disability Strategy

White Paper
Office of the President

CHAPTER FOUR

Legislation and Monitoring


INTRODUCTION

People with disabilities, like the majority of people in this country during the apartheid era, were denied fundamental human rights. However, people with disabilities as a group experience further discrimination on the basis of their disability. Changing this means that society as a whole needs to change its attitudes towards disabled people both at an individual and systemic level.

People with disabilities are marginalised and excluded from many aspects of life. Under the new Constitution, (Footnote 1) people with disabilities are entitled to substantive equality, which includes the right to corrective (affirmative) action to overcome the effects of past discrimination.

Equality and dignity are enshrined in the Constitution. However, the objectives enshrined in these principles must be met through the enactment of legislation, the scrutiny and, where necessary, amendment of existing legislation and the monitoring of constitutional and legislative provisions.

This work should be conducted in partnership with NGOsăboth in the disability and legal sector, the Human Rights Commission, the South African Law Commission and other appropriate institutions and organisations.

LEGISLATION

There is, at present, no coherent or comprehensive legislation pertaining to people with disabilities and their rights.

One of the legacies of apartheid is an inheritance of many pieces of fragmented legislation, much of which does not even cover the former TBVC states. It has also not been possible to use the common law to promote the rights of disabled people. This vacuum clearly needs to be filled by cohesive and integrated legislation.

Legislation, if correctly administered, can be used to promote the rights of people with disabilities. However, the enactment of law may not be sufficient to ensure the realisation of rights. Thus, national institutions and mechanisms have been established to promote and protect human rights. Legislation does however, provide an important reference point for redress and offers enforceable support.

POLICY OBJECTIVES

Legislation, whether it is stand-alone or whether it forms part of other legislation, must be based on the principles enshrined in the Constitution. It must ensure equality, non-discrimination and protection for people with disabilities. Existing legislation must be scrutinised for compliance with the constitutional principles.

Legislation must also take into account the present and future legislative environment of the disabled population. Anti-discrimination and other relevant legislation should take into account the requirements of the disabled sector.

The development of anti-discriminatory legislation must be two-pronged in its approach. First, it must seek to address past inequalities by means of equalising opportunities, while controlling any tendency towards further discrimination. At the same time, it must champion the principles of the Constitution and other international human rights instruments.

Hence, all new and amended legislation should not only aim at ending discrimination faced by many disabled people, but should also promote the fundamental rights enshrined in the Constitution.

The application of legislation should be vertical and horizontal (in other words, it should apply between state and citizen and between citizen and citizen). It should cover the diversity of people with disabilities, and also acknowledge service providers to this sector.

MECHANISMS
All legislation should be framed within the context of the agreed policy objectives relating to disability. In line with these objectives, it should:

  1. involve the disabled sector in discussions with regard to proposed legislation, and

  2. seek inter-sectoral co-operation amongst all public and private sector stakeholders.
Monitoring is an essential element in the upholding of human rights generally. Monitoring can be used as a corrective tool against the violated rights of disabled persons. It can also be used to measure trends and patterns of discrimination on the grounds of disability, both at an individual and systemic level.

The act of monitoring primarily investigates and records the violation of people's rights. The process itself often provides the impetus for addressing disability. Monitoring can also be used as an educative tool, to create awareness.

POLICY OBJECTIVES

The objective is to establish a system of monitoring at all levels, in the private, as well as all spheres of government in the public sector. It must be horizontal and vertical (between government and citizens, and between citizen and citizen).

SCOPE

Monitoring should encompass the full environment. However, particular groups should be targeted. These include:

  1. Women and girls with, particularly, intellectual disabilities; (Footnote 2)

  2. Disabled elderly people;

  3. Disabled women and rural disabled persons in the workplace;

  4. Abused children in institutes for disabled children;

  5. Parents with disabled children;

  6. Disability groups with specific needs.
MECHANISMS

Formal monitoring must be guided by key performance indicators. It must, in other words, be measured so that results can be assessed.

Monitoring must be done in interaction and collaboration with international agencies which have set norms.

Monitoring must include a systematic review of all national laws and policies.

Effective Monitoring

For monitoring to be effective, it requires:

  1. Gathering, co-ordination and collation of findings;

  2. Findings made available to civil society in an accessible and understandable format;

  3. Participation by disabled people in decision making, planning and evaluation at all levels. In other words, disabled people must collaborate in the monitoring. All stakeholders and consumers must be partners in the process;

  4. The act of reporting must be simple and sensitive to persons reporting violations;

  5. The monitoring agency should establish close links with people engaged in monitoring at community level.
The role of the South African Human Rights Commission (SAHRC)

The SAHRC, in terms of its mandate, is the body responsible for the monitoring of human rights violations in South Africa.

The South African Federal Council on Disability will work with the SAHRC and other bodies (Footnote 3) to monitor the equalisation of opportunities for people with disabilities, including human rights violations.


CHAPTER FOUR: NOTES

(1) People with disabilities are Constitutionally protected in terms clause 8(1) of the Bill of Rights.

(2) Research has shown that this group is particularly vulnerable to sexual and physical abuse.

(3) See Appendix A.


CHAPTER FIVE

Progress to Date

OFFICE ON THE STATUS OF DISABLED PERSONS, OFFICE OF THE DEPUTY PRESIDENT

An Office on the Status of Disabled Persons was established as a directorate in the Office of the Deputy President in June 1997.

The Office, which previously existed as a Disability Unit, is responsible for policy development, and will undertake the overall co-ordination of the Integrated National Disability Strategy. It will, in addition, undertake certain specific duties as recommended in this document.

Some other government and para-statal initiatives include:

COMMISSION ON GENDER EQUALITY

An important first step has been taken in highlighting and redressing the problems faced by women with disabilities through the inclusion of a disabled woman on the Commission on Gender Equality.

DEPARTMENT OF HEALTH: REHABILITATION POLICY

The Department of Health has established a Technical Committee on Rehabilitation Policy whose purpose is to work with all interested parties to develop a comprehensive policy on rehabilitation.

DEPARTMENT OF HOUSING: SUMMIT ON HOUSING AND PEOPLE WITH DISABILITIES

The Department of Housing organised a Summit in May 1997 with a special focus on housing as it affects people with disabilities.

DEPARTMENT OF LABOUR: NEW EMPLOYMENT SERVICES DIVISION

The Department of Labour is in the process of restructuring traditional career guidance and placement services into a more coordinated New Employment Services Division. One of its many functions is to assist, among others, people with disabilities to acquire the basic capabilities required to take advantage of other support services: for example, to equip people with disabilities with interview skills, job search skills, time management, communication skills, etc.

DEPARTMENT OF TRANSPORT: PILOT STUDY

The Department of Transport has agreed to commission a pilot study on the inclusion of people with disabilities in the public transport system.

DEPARTMENT OF EDUCATION: NATIONAL COMMISSION ON SPECIAL NEEDS IN EDUCATION AND TRAINING

The National Commission on Special Needs in Education and Training (NCSNET) and the National Committee on Education Support Services (NCESS) will report to the Minister of Education on 1 October 1997.

The reports are expected to provide more detailed recommendations for the transformation of the education system to accommodate learners with special education needs (into which category learners with disabilities fall) more effectively.

GOVERNMENT DEPARTMENTS: FUNDING ALLOCATIONS

The successful integration of people with disabilities in the mainstream of society is dependent on the optimal rehabilitation of people with disabilities. This, in its turn, requires a multi-disciplinary approach in government. It is noted that very few departments make provision for specific disability related programmes. Those which do include the Departments of Health, Welfare and Population Development, Education, Labour, Environmental Affairs and Tourism, and Public Works. (Footnote 1)

PREMIER'S OFFICE, MPUMALANGA

The Premier of Mpumalanga has established a Disability Programme whose functions include the advising of the various provincial departments on the implementation of the Integrated National Disability Strategy.

NATIONAL PLAN OF ACTION FOR CHILDREN IN SOUTH
AFRICA

The National Plan of Action for Children in South Africa (NPA) has identified children with disabilities as a particularly vulnerable group. In addition to developing inclusive programmes aimed at and protecting the rights of all children, the NPA is in the process of developing specially targeted programmes for disabled children.

NATIONAL YOUTH COMMISSION

The Government has taken the important step of facilitating the development of disability sensitive youth strategies and programmes through the appointment of a disabled youth commissioner on the National Youth Commission.

PEOPLE WITH MENTAL AND/OR INTELLECTUAL DISABILITIES

The Declaration of Rights for Persons affected by Mental Handicap (adopted at the Africa Now Conference in 1996), and the United Nations Principles for the Protection of People with Mental Illness and for the Promotion of Mental Health Care provide clear guidelines for the protection and promotion of the human rights of people with mental and/or intellectual disabilities.

SOUTH AFRICAN BROADCASTING CORPORATION

Parliament has appointed a person representing the disability sector to the SABC Board.

THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION

The South African Humans Rights Commission has proposed a special unit to monitor human rights violations against people with disabilities. A disabled commissioner is appointed to the Commission.

SOUTH AFRICAN QUALIFICATIONS AUTHORITY

The South African Qualifications Authority includes a representative from the South African Federal Council on Disability.

TASK GROUP ON GOVERNMENT COMMUNICATIONS
(COMTASK) (Footnote 2)

The Report of the Task Group on Government Communications makes recommendations on the recognition of the communication needs of people with disabilities and proposes mechanisms to ensure that government communication is inclusive of people with hearing and visual disabilities.


CHAPTER FIVE: NOTES

(1) Departments that need to include disability related programmes in their functions are the Departments of Arts Culture, Science and Technology, Housing, Sport and Recreation, Justice, Public Service and Administration, Trade and Industry, Communications, Transport and Provincial Affairs and Constitutional Development.

(2 ) These recommendations were accepted by Cabinet and, following acceptance of an implementation plan submitted to Cabinet in October 1997, the Government Communication and Information System (GCIS) will begin work in early 1998.

National Disability Strategy Contents