International Disability Rights Monitor (IDRM) Publications - - Compendium - Sub-Saharan Africa
Sub-Saharan Africa
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RIghts of Persons with Disabilities
Introduction
This study examines national laws that protect the basic human rights of people with disabilities from a constitutional point of view. It also incorporates synoptic highlights of countries such as Lesotho, Malawi, Nigeria, Zambia, and Zimbabwe to determine whether they contain disability rights legislation. The illustrative example is the Zimbabwean Disability Act of 1992.
The study covers 31 Sub-Saharan African countries in English- and French-speaking Africa in regard to constitutional provisions that either directly or indirectly address the basic human rights of disabled persons. Other constitutions have general provisions that may be deemed applicable to people with disabilities.
The study provides examples from the national legislation governing the basic human rights of disabled persons of five English-speaking countries in Africa. Zimbabwe’s disability rights statute is described in more detail in the last portion of this study.
The study is sub-divided into three parts: constitutional provisions that protect the basic human rights of people with disabilities; an overview to determine which, among a selection of English-speaking countries in Sub-Saharan Africa, have a disability rights law or related national legislation; and the Zimbabwean Disability Act of 1992 as an illustrative example.
Constitutional Provisions Protecting the Basic Human Rights of People with Disabilities
Benin
The current Constitution of Benin took effect on December 11, 1990, as amended.452 Articles 7-40 of Title II pertain to the rights and duties of the individual. The African Charter on Human and Peoples’ Rights of 1981, in force since 1986, is incorporated into the national law of Benin in Article 7.453
Articles 2, 15, 16, and 19 of the Charter contain broad principles that may be applied to secure and guarantee the basic human rights of disabled persons. These principles include equal rights and freedoms without any discrimination or distinction, the right to work for anyone and to receive equal remuneration for equal work, and the right to enjoy physical and mental health. It is also noted that states will take measures to protect the health of their people. In addition, article 19 of the Charter states:
All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.
In Benin, these Charter provisions have found expression in article 26 of the Constitution, which states:
The state shall assure to everyone equality before the law without any distinction of origin, of race, of sex, of religion, of political opinion or of social position. Men and women are equal under the law. The state shall protect the family and particularly, the mother and the child. It shall take care of handicapped and aged persons.
Botswana
Article 15 of the Constitution of Botswana of 1966 as amended454 prohibits discrimination against any person. Furthermore, no law can contain any provision that is discriminatory either of itself or in its effect. Similarly, no person can use the law to justify such discriminatory practices. Article 15 (3) defines discrimination as:
affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinion, color or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
Burkina Faso
The Constitution applicable in this country is that of 1997 as amended.455 Chapters 1-4, articles 1-30 constitute fundamental human rights and duties. Article 2 of the Constitution stipulates that the protection of life, security, and physical integrity is guaranteed by the state. Furthermore, article 23 of the Constitution outlaws discrimination in all its forms against any person. This article also secures and protects the rights of the child.
Burundi
The Constitution of Burundi was approved by referendum on March 9, 1992. But, this Constitution was superseded on June 8, 1998, by the Constitution Act of Transition, signed on the same day by the President of Burundi who came into power through a bloodless coup on July 25, 1996.456
Title III, articles 12-54, constitutes fundamental rights and freedoms. Articles 15, 17, 34-36, and 47 could be applied to secure and protect the rights of disabled persons. These relate to a person’s rights to life, security, and physical integrity (art. 15); to equal dignity in rights and duties and to equal protection under the law (art. 17); to equal access to education and culture (art. 34); to equal work and equal pay (art. 35); and to a person’s duty to respect and value his/her fellow person without discrimination (art. 47).
Central African Republic
The Constitution applicable in the Central African Republic is that of 1994, effective 1995 as amended.457 Article 5 on equal protection under the law without any distinction could be used to govern and secure the rights of persons with disabilities.
Republic of Chad
The Constitution of Chad is that of April 14, 1996, as amended.458 Title II, articles 12-59, deals with liberties, fundamental rights, and duties. Article 13 affords equal protection under the law for all persons deemed Chadians. Article 14 prohibits discrimination against any person on any ground. Articles 31-35 secure and guarantee employment without discrimination, the right to work for equal pay, and the right to education and culture.
Republic of Cote D’ Ivoire
In Cote D’Ivoire, article 6 of the Constitution of 2000 as amended459 states: “The State assures the protection of children, the aged and the handicapped.”
Democratic Republic of Congo (DRC) (Formerly Zaire)
Articles 12-31 of the Constitution of 1978 as amended460 enshrine the fundamental rights and duties of citizens. Article 12 proscribes all forms of discrimination. This article also accords equal protection under the law.
Eritrea
Articles 14-29 of the Constitution of Eritrea of May 23, 1997, as amended, 461 reflect fundamental rights, freedoms, and duties. Article 14 protects all persons from all forms of discrimination including for reasons of “disability.”
Republic of Gabon
The Constitution of Gabon of 1991 as amended462 in article 1(8) stipulates the following:
The state according to its possibilities guarantees to all, notably to the child, the mother, the handicapped, to the aged workers and to the elderly the protection of health and social security, a preserved natural environment, rest and leisure.
The Gambia
The Constitution of the Gambia of 1996, effective 1997 as amended,463 is a good example of the protection of the rights of minorities and the rights of people with disabilities. The African Charter on Human and Peoples Rights, also known as the Banjur Charter, was promulgated in Banjur, capital city of the Gambia. The African Commission on Human Rights is also based in this country.464
Article 28 secures and guarantees the rights of women while the rights of children and the rights to education and to culture are secured and protected in articles 29, 30, and 32 of the Constitution. Articles 31 and 33, respectively, deal with the rights of disabled persons and protection against discrimination. These two articles jointly state:
The right of the disabled and handicapped to respect and human dignity shall be recognized by the state and society. Disabled persons shall be entitled to protection against exploitation and to protection against discrimination, in particular as regards access to health services, education and employment. In any judicial proceedings in which a disabled person is a party, the procedure shall take his or her condition into account. All persons shall be equal before the law… No law shall make any provision that is discriminatory either of itself or in its effect… no person shall be treated in a discriminatory manner by any person acting by virtue of any law or in the performance of the functions of any public office or any public authority.465
Ghana
Ghana’s constitution also contains express provisions on the protection of the rights of people with disabilities. Articles 27-30 of the Constitution of Ghana of 1992 as amended466 contain guarantees and protection of these rights. Article 27 affords and protects the rights of women. Article 28 deals with the rights of children. Article 30 prescribes the rights of sick persons. Article 29 is the pertinent section that covers the rights of disabled persons. This article states as follows:
Disabled persons have the right to live with their families or with foster parents and to participate in social, creative or recreational activities. A disabled person shall not be subjected to differential treatment in respect of his residence other than that required by his condition or by the improvement that he may derive from the treatment. If the stay of a disabled person in a special establishment is indispensable, the environment and living conditions shall be as close as possible to those of the normal life of a person of his age. Disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature. In any judicial proceeding in which a disabled person is a party the legal procedure applied shall take his physical and mental condition into account. As far as practicable, every place to which the public have access shall have appropriate facilities for disabled persons. Special incentives shall be given to disabled persons engaged in business organizations that employ disabled persons in significant numbers. Parliament shall enact such laws as are necessary to ensure the enforcement of the provisions of this article.
This Ghanaian provision is important also from the point of view of the distinction between state policy provisions that are nonjusticiable even though they may contain similar provisions with respect to the protection of persons with disabilities.
Kenya
Article 82 of the Constitution of Kenya of 1969 as amended467 guarantees non-discrimination against any person including persons with disabilities. The definition of discrimination is identical to that encountered in the cases of Botswana and the Gambia.
Lesotho
The Lesotho Constitution (Commencement) Order of 1993 was published on March 16, 1993. The new Constitution of Lesotho became effective on April 2, 1993.468
The right to freedom from discrimination of any kind is found in article 18 of the Constitution as part of the fundamental rights of the individual. Article 19 constitutes the section on equal protection under the law. These two articles form a part of Chapter II of the Constitution that guarantees fundamental human rights of the individual in articles 4-24 of this instrument.
Chapter III of the Constitution of Lesotho is designated as “Principles of State Policy” enumerated in articles 25-36. Article 25 of the Lesotho Constitution states as follows:
The principles contained in this Chapter shall form a part of the public policy of Lesotho. These principles shall not be enforceable by any court, subject to the limits of the economic capacity and development of Lesotho, shall guide the authorities and agencies of Lesotho and other public authorities, in the performance of their functions with a view to achieving progressively, by legislation, or otherwise, the full realization of these principles.
Consequently, even though a policy exists on the rehabilitation, training, and social resettlement of the persons with disabilities, these are not rights that are enforceable in a court of law. Nonetheless, article 33 of the Lesotho Constitution states:
With a view to ensuring the rehabilitation, training and social resettlement of disabled persons, Lesotho shall adopt policies designed to (a) provide for training facilities, including specialized institutions, public or private; and (b) place disabled persons in employment and encourage employers to admit disabled persons to employment.
The Principles of State Policy in Chapter III of the Lesotho Constitution require that legislation give effect to these principles and render them justiciable not as a constitutional right within the framework of fundamental human rights, but rather as a legal right governed by statute as is the case in Zimbabwe, as described below. Lesotho has enacted such legislation in the Human Rights Act of 1983 as amended,469 but this law does not contain any enforcement mechanism.
Liberia
The Constitution of Liberia of 1986 as amended470 is similar to Lesotho’s in that it contains separate prescriptions of principles of state policy, on the one hand, and of fundamental human rights on the other. The policies are set forth in Chapter II of the Constitution and fundamental human rights are enshrined in Chapter III of this Constitution.
According to article 4 of the Constitution, the general principles of national policy act as guidelines to formulate legislative, executive, and administrative measures and directives. Even though the general principles are defined as fundamental under Chapter II of the Constitution, this instrument does not provide for any enforcement mechanism under these provisions. Chapter II on general principles of national policy contains principles of equal opportunities for all including non-discrimination in employment.
However, fundamental human rights as contained in Chapter III, articles 11-26, may be extended to specific instances governing the rights of persons with disabilities. These inter alia deal with the right to equal protection under the law and the right to equal opportunity for employment.
Madagascar
The Constitution of Madagascar of 1998 as amended471 has two titles. Title I constitutes the general principles of state policy, and Title II deals with the fundamental rights, better known in this country as “Freedoms, Rights and Duties.”
Articles 28 and 30, in Title II on freedoms, rights and duties, respectively state that:
No one may be discriminated against in his work or in his employment because of sex, of age, of religion, of opinions, of origins, of adherence to a union or of political convictions. The state strives to provide for the needs of every citizen who, by reason of his age or his physical or mental ineptitude, finds himself unable to work, notably through the institution of organisms of social character.
Malawi
Some sections of Malawi’s Constitution of 1994 as amended472 may be applicable to the rights of disabled people. In Chapter III, Principles of National Policy, the pertinent articles are articles 13 and 14. Chapter IV constitutes the fundamental human rights provisions of the Constitution.
Article 13(g) states that:
The State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving the following goals… to support the disabled through (i) greater access to public places; (ii) fair opportunities in employment; and (iii) the fullest possible participation in all spheres of Malawi society.
In addition, article 13 promotes progressive adoption and implementation of policies and legislation relating to the welfare of the people of Malawi, including gender equality, nutrition, health, the environment, rural life, education, children, the family, and the elderly.
Chapter IV, articles 15-40 on fundamental human rights, includes the same rights that are found in the principles of national policy such as the rights of the family and marriage, the rights of children, the rights of women, and the right to education. Under Chapter IV of the Constitution, it appears that these rights will be enforceable in a court of law. Discrimination in any form against persons is also prohibited under the fundamental human rights provisions and would be deemed justiciable. The definition of discrimination is the same as that encountered in the cases of Botswana and the Gambia, examined above.
Mali
The rights and duties of the human person are contained in articles 1-24 of the 1992 Constitution of Mali as amended.473 Article 2 prohibits all forms of discrimination and could be extended to people with disabilities.
Mauritius
The Constitution of Mauritius of 1968 as amended474 contains in articles 3-19 of Chapter II the fundamental rights and freedoms of the individual. Equal protection under the law is guaranteed in article 10 of the Constitution and may be deemed pertinent to the rights of disabled persons. Article 16 prohibits all discrimination by anyone against any person, including persons with disabilities. The definition of discrimination found in article 16(3) of the Constitution is identical to those of countries examined above.
Mozambique
Article 68 of the 1990 Constitution of Mozambique as amended 475 governs the rights of the persons with disabilities. The article states that:
Disabled citizens shall enjoy fully the rights enshrined in the Constitution and shall be subject to the same duties, with the exclusion of those rights and duties which their disability prevents them from undertaking.
Namibia
The Constitution of Namibia of 1990 as amended476 contains provisions on equality before the law while proscribing discrimination in all its forms against anyone including the persons with disabilities. The Constitution also defines extensive and detailed rights on the protection of children and the family and the right to education and culture, as well as specific provisions prohibiting apartheid, the extreme aspect of discrimination. Namibia is a former South African-administered territory under the auspices of the League of Nations Mandate. The previous minority regime in South Africa had extended the notions of apartheid to Namibia as practiced in South Africa itself. Therefore, article 23 of the Constitution of Namibia outlaws apartheid, but also ensures affirmative action where this form of racial discrimination may have occurred in the past.
Republic of Niger
Niger’s Constitution of 1996 as amended477 contains specific provisions on the rights of disabled persons. Article 19 of this instrument states that:
The state sees to the equality of opportunities for handicapped persons with a view to their promotion or their social reinsertion.
Federal Republic of Nigeria
Article 42 of the Constitution of Nigeria of May 29, 1999, as amended478 guarantees the right to freedom from discrimination in all its forms against any person and may be considered applicable to persons with disabilities.
Republic of Rwanda
Title II, articles 12-33 of the Constitution of Rwanda of 1991 as amended479 contains the fundamental human rights and freedoms in Rwanda, better known as “Public Liberties.” Article 16 secures and affords equal protection under the law while proscribing discrimination in all its forms against any person.
Seychelles
Chapter III of the Constitution of Seychelles of 1992, effective 1993, as amended480 sets forth the Seychellois Charter of Fundamental Human Rights and Freedoms. Equal protection under the law is enshrined in article 27 of the Constitution. Other articles pertain to the protection of families in article 32, the right to education in article 33, the right to shelter in article 34, and the right to work in article 35. Further articles include the right to social security (Article 37), the right to a safe environment (Article 38), and the right to cultural life and values (Article 39). These provisions could be applied to govern the rights of the disabled as well.
Article 36 of the Constitution of Seychelles directly governs the rights of the disabled and aged persons, specifically stating:
The state recognizes the right of the aged and the disabled to special protection and with a view to ensuring the effective exercise of this right undertakes (a) to make reasonable provision for improving the quality of life of and for the welfare and maintenance of aged and disabled and (b) to promote programs specifically aimed at achieving the greatest possible development of the disabled.
Sierra Leone
The Constitution of Sierra Leone, as amended in 1991,481 recognizes fundamental principles of state policy in Chapter II and fundamental human rights in Chapter III.
The fundamental principles of state policy outlined in Article 8(3)(f) include the following provision:
The state shall direct its policy towards ensuring that the care and welfare of the aged, young and disabled shall be actively promoted and safeguarded.
As in countries described above, the fundamental principles of state policy are not justiciable. Article 14 of the Constitution of Sierra Leone stipulates that the provisions on state policy shall not confer any legal right on its citizens and shall not be enforceable in any court of law. The principles contained in Chapter II are nonetheless considered fundamental in the governance of the state. It shall be the duty of Parliament to apply the principles in enacting any laws.
Fundamental human rights provisions in Chapter III of the Constitution are outlined in articles 15-30. Article 27 proscribes discrimination in any form against any person. The definition of discrimination is identical to those of other countries examined above. Article 23 on equal protection under the law could possibly be extended to govern the rights of the persons with disabilities.
South Africa
The Constitution of the Republic of South Africa as amended took effect on February 4, 1997.482 Considering its experience with apartheid, the extreme form of racial discrimination, the South African Constitution is a model among African constitutions in its prescription and protection of fundamental human rights.
Articles 1 and 3 of the Constitution deal with the establishment and constitution of the Republic of South Africa including matters pertaining to citizenship. Article 1 prohibits racial discrimination and sexism. Article 3 on citizenship declares that all citizens of South Africa enjoy a common citizenship and are equally entitled to the rights, privileges, and benefits of this citizenship. These two provisions equally apply to protect the rights of disabled persons.
Chapter II, articles 7-39 of the Constitution, contains the South African Bill of Rights. Article 9 outlines the underogated right to equality of all persons before the law without any discrimination. The definition of discrimination is similar to those of countries examined above. Under article 10, the right to human dignity and the right to have this dignity respected and protected cannot be derogated. The same applies to the right to life under article 11 of the Constitution, consistent with the provisions of article 37(5). Provisions in other areas such as labor relations, trades, occupations and professions, the environment, housing, health care, food, water, and social security are included under the Bill of Rights in articles 22-27 of the Constitution.
Other provisions that may also protect persons with disabilities include the right to education; the right to language and culture; the right to belong to cultural, religious, and linguistic communities; and the right of access to information, courts, and other administrative agencies in accordance with articles 29-34 of the Constitution. Article 28 constitutes an extensive provision on the rights of the child.
United Republic of Tanzania
The Constitution of the United Republic of Tanzania of 1977, as amended in 1998,483 apportions fundamental objectives and directive principles of state policy in Part II, articles 6-11, and sets forth the Tanzanian Bill of Rights in Part III, articles 12-32.
According to article 7(2) of the Constitution, fundamental objectives and directives principles of state policy are not enforceable in a court of law. Notwithstanding the dichotomous nature, the unenforceable principles of state policy and the enforceable Bill of Rights are intertwined and also reinforce each other under the Constitution of Tanzania.
Articles 9 and 11 constitute fundamental objectives and directive principles of state policy on human dignity, equal protection under the law, the right to work, non-discrimination, and the right to education. Fundamental human rights under Part III, articles 12-24 for example contain similar provisions on the rights to human dignity, equality before the law, non-discrimination, and the right to work.
It is conceivable, therefore, that while they may not be enforced as principles in a court of law, they are enforceable as fundamental human rights. This dichotomy may cause confusion in addressing the rights of individuals, including those of persons with disabilities.
Republic of Uganda
The 1995 Constitution of Uganda as amended484 has specific provisions recognizing and protecting the dignity of persons with disabilities according to Objective 16 of the Constitution as part of state policy, but also in articles 32 and 33 of the Constitution as part of the provisions on enforceable fundamental human rights.
As in Tanzania and other countries discussed above, two sections of the Constitution of Uganda contain provisions related to the rights of disabled persons. The portion on National Objectives and Directive Principles of State Policy in Objective 16 (XVI) recognizes the dignity of persons with disabilities. Chapter IV, articles 20-58, of the Constitution deals with fundamental human rights.
Objective 16 obligates society and the state to recognize the rights of persons with disabilities as part of the respect of human dignity. However, Objective 16 is not enforceable in any court of law.
Articles 30-34 and 36-39 on fundamental human rights deal with the rights to education, the right to the family, affirmative action in favor of “marginalized groups,” the rights of women, the rights of children, the rights of minorities to participate in decision-making processes, the rights to culture, and the rights to a clean and healthy environment.
Articles 32 and 35 on fundamental human rights directly impact the rights of disabled persons. These rights may be deemed enforceable in a court of law. The articles jointly state that:
Notwithstanding anything in this Constitution, the state shall take affirmative action in favor of groups, marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purposes of redressing imbalances which exist against them. Parliament shall make relevant laws, including laws for the establishment of an equal opportunities commission, for the purpose of giving full effect to this article. Persons with disabilities have a right to respect and human dignity and the state and society shall take appropriate measures to ensure that they realize their full mental and physical potential. Parliament shall enact laws appropriate for the protection of persons with disabilities.
Though not contradictory, the unenforceable Objective 16, which acts as a guideline as a matter of state policy in matters pertaining to the rights of disabled persons, could be considered redundant in the light of the comprehensive and enforceable provisions on the disabled found in articles 32 and 35 of the Constitution.
Republic of Zambia
The Constitution of Zambia integrates the text of the Constitution of Zambia of 1991 and the text of the Constitution of Zambia Act of 1996.485 Fundamental human rights provisions are set forth in articles 11-32 of the Constitution. Article 23 proscribes discrimination in any form against any person and could be used to govern the rights of the disabled.
Zimbabwe
The Constitution of Zimbabwe of 1979 has been in force since 1980 with a revised edition in 1996 as amended.486 The Constitution of Zimbabwe (Amendment) Act, No. 14 of 1996 and the Constitution of Zimbabwe (Amendment) Act, No. 15 of 1998487 significantly changed the original version enacted in 1979.
Article 23 protects everyone from discrimination on any grounds. The definition of discrimination under this article is the same as that found in other parts of this study.
Summary
It is evident from the discussion above that provisions of law under the various constitutions of Sub-Saharan Africa, directly or indirectly, might be utilized to regulate the rights of disabled persons. Also evident is the dichotomy between the fundamental principles of state policy that cannot be enforced in a court of law and the fundamental human rights provisions that are enforceable.
Benin, Burundi, Cote D’Ivoire, Gabon, the Gambia, Ghana, Madagascar, Mozambique, Niger, Seychelles, and Uganda all have direct enforceable rights under their Constitutions that guarantee and secure the protection of the rights of persons with disabilities.
In Lesotho, Malawi, and Sierra Leone, the rights of disabled persons as contained in the constitutional instruments constitute part of state policy, but are not enforceable in any court of law. Tanzania (indirectly) and Uganda are hybrid systems that address the rights of disabled persons as part of their state policies and as an integral component of enforceable fundamental human rights.
An Overview to Determine Which Countries Have Disability Rights Laws: National Legislation in Selective Countries
A sample of national legislation in Lesotho, Malawi, Nigeria, Zambia, and Zimbabwe is provided below. Only Zimbabwe, as indicated in the last portion of this study, has specific legislation that is somewhat similar to the U.S. ADA-type statute.488
Lesotho
The Human Rights Act of 1983 as amended has been alluded to earlier in the discussion on constitutional provisions.489 Section 16(4) and (5) of this Act states that:
The state shall ensure the elimination of every discrimination against the woman and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. The aged and the disabled shall have the right to special measures of protection in keeping with their physical or moral needs.
As seen earlier, this section amounts only to an unenforceable declaration of intent by the state even though enforceable legislation has been enacted to prescribe the legal rights of women, children, disabled and aged persons.
According to the preamble of this legislation, the purpose of the statute is to guarantee and safeguard the rights of individuals and “to ensure that conduct of persons administering the laws of the country conform with the provisions of this Act.” The statute does not contain any enforcement mechanisms to address the prescribed rights, nor does it indicate remedies in case of infringement.
The conflict arises from the fact that principles of state policies as formulated in the constitutional provisions examined above require that legislation be enacted to enforce the stated policies, including those that affect the rights of women, children, disabled, and aged persons. The policies and rights set forth in Chapter III of the Constitution are unenforceable in any court of law according to article 25 of the Constitution of 1993 as amended. Among these nonjusticiable principles of state policy are the protection of children and young persons and also the rehabilitation, training, and social resettlement of disabled persons in keeping with articles 32 and 33, respectively. To the extent that it cannot be enforced, the statute has limited utility and minimal force of law for disabled persons and other minorities.
Malawi
The Handicapped Persons Act of 1972 as amended490 contains provisions to improve the care, assistance and education of disabled persons in the country. This law also establishes a Council for the disabled, provides for voluntary registration of disabled persons, and also provides for the registration, direction, control, and regulation of associations whose objectives incorporate working for people with disabilities. Both the disabled persons and the corporate bodies responsible for their welfare must be registered under sections 19-20 of the Act.
If a person is no longer certified by a medical practitioner as disabled, this person will no longer maintain the status of a recognized and registered disabled person. Penalties under this legislation are imposed on associations responsible for the welfare of people with disabilities in case of noncompliance with the mandate of the law according to section 23 of the Act.
The Malawian statute is similar to the Zambian statute discussed below in that they both contain identical mechanisms that focus more on the corporate bodies that look after the welfare of the disabled persons, rather than on the express prescription of legal rights and also imposing penalties in case of their infringement as these affect the well being of the disabled person.491
Nigeria
Chapter X of the national laws of the Federal Republic of Nigeria492 re-enacts the African Charter on Human and Peoples’ Rights of 1981 in its entirety. The Charter has no specific provision on disabled persons, but articles 15-19 deal with the right to work, the right to enjoy the best attainable state of physical and mental health, the right to education, non-discrimination against women, the right of the child, and equality before the law. These provisions could be extended to secure the rights of disabled persons.
Zambia
Zambia also has a specific legislation on the rights of disabled persons. As indicated above, it is contained in the Handicapped Persons Act of 1968 as amended.493 The Zambian statute mirrors the Malawian legislation. It establishes a Council of the disabled, which provides for voluntary registration of disabled persons and of associations that maintain their welfare. A commissioner of the disabled is responsible for the administration of the Act.
Illustrative Example: The Zimbabwean Disabled Persons Act of 1992
The Zimbabwean Disabled Persons Act of 1992, as amended494 is used as the illustrative example of a country with a national law protecting the rights of disabled persons.
According to section 2 of the Disabled Persons Act, a disabled person is one with:
a physical, mental or sensory disability which includes visual, hearing or speech functional disability, which gives rise to physical or social barriers inhibiting him from participating at an equal level with other members of society in activities, undertakings or fields of employment that are open to other members of society.
The Act establishes the office of Director for Disabled Persons Affairs and constitutes a National Disability Board as required by sections 3 and 4. The Director formulates proposals and other measures that are submitted to the Board and also coordinates the activities of various institutions, associations, and organizations that deal with the welfare of disabled persons. The Board develops measures and also policies that concern people with disabilities in the country. Under section 5(b)(i)–(xiii), these include the following:
to achieve equal opportunities for disabled persons by ensuring, so far as possible, that they obtain education and employment, participate fully in sporting, recreation and cultural activities and are afforded full access to community and social services; to enabled disabled persons, so far as possible, to lead independent lives; to give effect to any international treaty or agreement relating to the welfare or rehabilitation of disabled persons to which Zimbabwe is a party; to prevent discrimination against disabled persons resulting from or arising out of their disability; to encourage and put into operation schemes and projects for the employment of or generation of income by disabled persons who are unable to secure employment elsewhere; to encourage and secure the rehabilitation of disabled persons within their own communities and social environment; to encourage and secure the establishment of vocational rehabilitation centers, social employment centers and other institutions and services for the welfare and rehabilitation of disabled persons…
The Board is responsible for the registration of disabled persons as well as associations, institutions, and organizations including state institutions dealing with the welfare of people with disabilities. The Board provides, as far as reasonably practicable, orthopedic appliances and access to relevant information, supplied to these applicable entities. The Board must provide skilled staff for the successful implementation and enforcement of measures and activities that pertain to disabled persons. It is required by this statute to generally improve the conditions, social and economic status of disabled persons, and to advance their interests. The Board submits its reports to the responsible Minister according to section 6 of the Act.
Section 7 of the Act is a bridge between formulation and enforcement of measures and activities pertaining to the protection of the rights of disabled persons. Under this section, if any premises to which members of the public are ordinarily admitted for a fee, and if any places, services, or amenities that are ordinarily provided to the members of the public (including those that are state-owned) are discovered by the Board to have barriers or be inaccessible for disabled persons, the Board will require any such entity to rectify the inaccessibility. The Board will also stipulate the period of time within which such remedial action must be accomplished. An appeal process is available under this section in cases of noncompliance.
However, this section, ordering compliance in terms of impediments and other barriers to accessibility by disabled persons, is not applicable to state hospitals and nursing homes, unless the responsible Minister of Health consents. It also does not apply to any state schools or educational and training institution without the consent of the Minister of Education.
Denying disabled persons access to public places, services, and other amenities is strictly prohibited under section 8, while section 9 proscribes discrimination against disabled persons in employment. These two sections jointly state in part:
No disabled person shall on the ground of his disability alone be denied (a) admission into any premises to which members of the public are ordinarily admitted; or (b) the provision of any service or amenity ordinarily provided to members of the public, unless such denial is motivated by a genuine concern for the safety of the disabled person concerned. The proprietors of premises referred to above shall not have the right on the ground of a person’s disability alone to reserve the right of admission to his premises against such a person. A disabled person who is denied admission… shall be deemed to have suffered an injury and shall have the right to recover damages in any court of competent jurisdiction… No employer shall discriminate against a disabled person in relation to advertisement and/or recruiting for employment; or creation, classification or abolition of jobs or posts or the determination or allocation of wages, salaries, pensions, accommodation, leave or other such benefits or the choice of persons for jobs or posts, training, advancement, apprenticeship, transfers, promotion or retrenchment or the provision of facilities related to or connected with employment or any other matter related to employment.
However, it is not discrimination on the part of the employer if his action was not predicated on the disability of the aggrieved person or if the disability in question was a relevant consideration with respect to the particular requirements of the employment concerned. Finally, it is not discrimination on the part of the employer if special facilities or modifications, whether physical, administrative, or otherwise, are required at the workplace to accommodate the disabled person, which the employer cannot reasonably be expected to provide.
Section 10 constitutes the enforcement provision of the statute prescribing offences and penalties. Any person who fails to comply with any order issued under section 7, better known as Adjustment Orders; or willfully denies to a disabled person, on the ground of his disability alone (i) admission to any premises and facilities to which members of the public are ordinarily admitted or (ii) the provision of any service or amenity ordinarily provided to members of the public for any reason other than one motivated by a genuine concern for the safety of the disabled person involved; or discriminates against a disabled person in relation to matters of employment under section 9 notwithstanding the defenses under this same section, this person shall be guilty of an offense liable to a fine not in excess of $4,000 or to imprisonment for a period not exceeding one year or a combination of both such a fine and imprisonment.
Rule-making powers are vested in the responsible Minister following consultations with the Board to promulgate any rules and regulations for the better protection of the rights of disabled persons.
