Paul Emong in his 2014 thesis The Realisation of Human Rights for Disabled People in Higher Education in Uganda: A Critical Analysis Drawing on the UNConvention on the Rights of Persons with Disabilities discusses the concepts of the human rights laws that support persons with diabilities (PWDs) in Uganda. What then are the mplications of concepts of equality to non-discrimination law? Emong begins by discussing the prohibition of direct discrimination:
Prohibition of direct discrimination outlaws discrimination which is intentional or overtly directed to particular individuals or groups and is usually grounded on prejudices or stereotypes labelled on those group(s) of individuals. It aims at bringing equal treatment of individuals in all aspects. On disability therefore, direct discrimination underlines the social model notion that disability is not the source of the discrimination disabled people experience but societal barriers erected against them as noted in The Social Model of Disability: Education in Uganda. In that way, prohibition of direct discrimination in equality law directly deals with visible barriers and overt form of prejudices causing arbitrary decision-making processes selectively disadvantaging disabled people on grounds of their disabilities. However, the limits of direct discrimination in bringing about genuine equality generally relates to it disregarding inherent collective dimension of people which are also sources of discrimination and another, relates to proving a breach of equality treatment norm, this is arguably problematic.
Inherent collective dimension of inequality
By dealing with only overt form of barriers, prejudices or stereotypes, direct discrimination leaves out other sources of discrimination among individuals other than intentional discrimination. This is the inherent collective dimension of inequality such as group membership and entrenched inequalities or societal realities. These factors appear neutral in nature but have adverse effects on individuals based on their group characteristics. This is very much true for disabled people because in addition to prejudices or stereotypes, they also encounter barriers to participation specifically relating to their disabilities. This observation does not centre the problems of disability within an individual with impairment- the individual/ medical understanding of disability, discussed in The Social Model of Disability: Education in Uganda, but strengthens the social model understanding of disability by the fact that, disability is a diverse concept. Therefore, every category of disabled person has unique requirements which often require specific way of intervention. The uniqueness of disability arguably makes it difficult relating the concept equality in service provision to disability. Consequently, as compared to other groups, disabled people are greatly excluded in society. The judicial interpretation on some of the disability cases attest to this uniqueness and are calling for a different interpretation of the equality legislation regarding discrimination on grounds of disability. The Supreme Court of Canada in the case of Eldridge v British Columbia [1997], the Great Britain Court of Appeal in the case of Aylott v Stockton and Tees Borough Council and EJC interpretation of the British case of Coleman v Attridge Law succinctly attest to uniqueness of disability in the interpretation of the equality law. In the Eldridge, the Court pronounced that avoidance of exclusion of or discrimination against disabled people frequently requires distinctions to be made to take into account of the actual characteristics of disabled people.
In Aylott, the Court starkly states that, disability is uniquely different from other grounds of discrimination in that disability is composed of diverse disabilities which are in their own ways are unique and particular to their respective impairments and thus requires a different interpretation of the equality legislation in respect of discrimination on grounds of disability.
In Coleman, ECJ interpreted that, in accordance with the Council Framework Directive 2000/78, protection under direct discrimination (then in the British DDA 1995) does not cover only disabled people but also extends to cover people who are not disabled but who are discriminated against because they are perceived to be disabled (perceived disability) or because of their association with a disabled person (discrimination by association).
The judicial interpretations regarding disability discrimination cited above and similar ones elsewhere are calling out for a rethink in the drafting, interpretation or enforcement of the equality laws in relation to disability. This means equality laws or sections of equality need to be redrafted to take account of how disability can cause discrimination. For example, the Coleman case extended the British equality law provision on direct discrimination to cover discrimination by association and perceived discrimination (detailed discussion on that matter is beyond the scope of this thesis).
Challenge in proving a breach of equal treatment norm
To prove a breach of equal treatment requires a claimant to prove that he/she has been treated less favourably than others on similar situation like the claimant. This is grounded on the understanding that discrimination is principally about equal rather than fair treatment. Proving a breach of equal treatment norm requires comparisons of treatments between individuals (use of a comparator). However, getting a suitable comparator is a hurdle to most claimants seeking remedy against direct discrimination as getting a suitable comparator is not an exercise of in identifying the one logical comparator but may often be a value judgement that courts have to make. In determining a suitable comparator under direct discrimination, who should a disability claimant compare his/her treatment with? Should a disabled person compare his/ her treatment with a non-disabled person who is not in the same material circumstances as the disabled person? Or should a disabled person compare his /her treatment with that of the non-disabled person who is otherwise in the same circumstances?
Fredman, generally observes that, a choice of a suitable a comparator is usually based on value judgment as to which of the myriad similarities and differences among people should be treated as relevant and which irrelevant. To disability, the choice a suitable comparator must be made in a way which is sensitive to social meaning and context as disability has differing meanings espoused by the models of disability-the social and medical models, discussed in The Social Model of Disability: Education in Uganda. Therefore, on disability, as Fredman observes, the choice of a suitable comparator should be guided by the question; is the reason for the less favourable treatment the individual's disability or not. If it‘s individual‘s disability, then disability in this context is viewed as a limitation to participate (medical model of disability‘s view). If not, then the social or practical consequences of a person‘s disability are the reasons for the less favourable treatment (social model of disability‘s view).
Evidence from case law shows that, such differing understanding of disability reflected in the two models is also reflected in the choice of a comparator and results to providing differing judicial interpretation of the meaning of the comparator in relation to disability. The consequence so far arising from differing meanings of a comparator is that, it makes the equality law appear to be seen to be guaranteeing disabled people equality on one hand and removing the same on the other hand. The British cases of Clark v Novacold and of Lewisham London Borough Council v Malcolm provides such evidence (detailed discussion of these cases is outside scope of this thesis). However, it suffices to say that, the Novacold established that the comparator is not the person in a materially similar situation as the complainant; but another person to whom the reason for the treatment in question (i.e. the disability in question) would not apply; the disabled person needs to compare their treatment with a non-disabled person who is not in the same material circumstances as the disabled person. The strength of this interpretation is that disabled people would be able to challenge various discriminatory treatments by linking these treatments to a disability. In this context, the Novacold case nearly established meaning of a comparator in respect to disability on social model of disability approach. But this understanding was outlawed by the House of Lords ruling in the Malcolm case. It held that the correct approach is to compare the treatment of the disabled complainant with that of the non-disabled person who is otherwise in the same circumstances. This argument is largely based on the equal treatment norm and undermines the social context of disability and as such promotes the medical model understanding of disability.
The challenge above raises a need to solve the inherent weakness of a model of equality which depends so heavily on the choice of comparator by reconciling the two tensions between the understandings of disability in the two models. The British equality law is attempting do this by regulating discrimination 'because of‘ disability and discrimination 'arising from' disability (detailed discussion of two are outside the scope of this thesis). In this distinction, the former retains the narrow basis of comparison reflecting a medical model and the latter focuses on the social consequences of the disability rather than the disability itself.
In addition to a challenge related to a suitable comparator, a claimant with a disability has another hurdle to prove first in a disability claim. He/she has to prove a disability in accordance with meaning of disability provided in the given equality law. Proving a disability, according to commentators on equality law is greatly challenging for most disability claimants because the meaning of disability is largely based on the medical meaning of disability. Because of this handle, evidence exists pointing out that, at one point in the Great Britain experience, 26% of the disability cases that failed to go through the courts were due to a failure by the claimant to prove their disability and similar cases even reach to the Court of Appeal to determine whether a person has a disability.
From the discussion above, it can be concluded that, the uniqueness of disability as presented by the judicial interpretations calls for scrutiny of direct discrimination model in order to protect disabled people from direct discrimination acts. Also, avoiding direct discrimination alone is inadequate in ensuring the broader aims of equality for disabled people as the principle formal equality is short of addressing other causes of discrimination related to disability other than prejudices. These causes include institutional practices, historical backgrounds, structural and physical or environmental inaccessibility and are deeply rooted in society. They cause disparate effects on disabled people as they appear apparently neutral but with discriminatory effects. To overcome such disadvantages, require treating disabled people more favourably in some instances applicable, dealing with neutral institutionalised practices or undertaking the principle of positive action in some prescribed circumstances.
Indirect Discrimination
Indirect discrimination concerns with prohibiting non-intentional discrimination arising from practices which are neutral in nature but discriminatory in effect. These practices as mentioned before are embedded in institutional policies, norms and standards. The origin of indirect discrimination is traced to the US case of Griggs v Duke Power Co. In this case; the Supreme Court determined that treatment of people which is equal in form and discriminatory in effect should be outlawed. That understanding of non-intentional discrimination but with discriminatory effect is the basis of the understanding of the concept of indirect discrimination.
In some jurisdictions, the concept indirect discrimination has since been developed to provide a broad scope of protection based on provision, criterion or practice. The concepts provisions, criterion, or practice provide wide interpretation in relation to how higher education should handle a disabled student. Arguably, it means all arrangements the institution has with a student, the way higher education offers benefits or its services to students, one-off decisions, proposals or direction to do something in a particular way should not be discriminatory to a disabled person.
From that interpretation, it can be implied that, the scope of protection under indirect discrimination is broad to bring about identification of specific institutional policies, norms, standards and practices with discriminatory adverse effect (barriers) to disabled people; unless such barriers are justifiable. If they are not, they should be replaced with a policy framework that does not have discriminatory adverse effects. If the institutional neutral policies are justifiable, such policies can be retained. But, the justification to retain such policy should be that, the purpose of the policy is rationally connected to the fulfilment of a legitimate aim and such a policy is reasonably necessary in achieving that legitimate aim. This means that a fairly probing analysis must be done to justify the validity of standards, rules or policies that cause adverse effects discrimination. It can be argued that such an analysis, if undertaken with a view of accommodating diversity, it leads to institutional transformation towards substantive equality through an institution developing more proactive ways of eliminating indirect discrimination. In that context, the development of protection under indirect discrimination is viewed to be the major milestone in getting an important tool for dismantling systemic discrimination and towards achieving substantive equality. From the discussion above, it can be noted that, indirect discrimination acknowledges the fact that problems of inequality are both systemic and simply individual in nature and therefore provides a picture how groups are affected. However, in practice, it tackles discrimination from the perspective of the single perpetrator and the single victim alone. This approach alone, without the systematic approach of transforming society to bring about the desired goal of equality especially in relation to disability discrimination is itself limited in bringing genuine equality. Therefore in advancing equality for disabled people in higher education, protection under indirect discrimination needs to be buttressed by a duty to accommodation disability.
Conclusion
The discussion in this chapter has shown that through everyday social relations amongst members of the human family and in a bid to achieve non-discrimination amidst their diverse differences, the concept equality is evolving diverse meanings arising from different interpretations. So far, as Sheppard usefully explains, both legal and non-legal meanings of equality are shifting from:
Therefore the meaning of equality is beyond the traditional understanding grounded on intentional discrimination arising from open stereotyping and prejudices; and non-intentional discrimination arising from apparently neutral rules, standards, practices, or policies to how pervasive cultural or institutional contexts discriminates. Therefore, legal remedies alone cannot deliver non-discrimination in its fullest sense, but rather, proactive approaches aimed at preventing discrimination and social exclusion. To disabled people, how impairment also interacts with the environment to cause their exclusion is critical in designing reasonable accommodation measures.
- Viewing discrimination as predominantly an individual problem linked to exceptional and discrete incidents; to understanding discrimination as systemic, embedded in a complex interplay of institutional relations, practices and policies.
- A focus on the discriminatory attitudes of individual perpetrators; to a focus on the experiential effects of inequality and exclusion.
- Viewing discrimination as differential treatment; to acknowledging adverse effects discrimination resulting from the differential effects of apparently neutral policies and similar treatment.
- Individual remedies and accommodation; to systemic remedies and institutional transformation.
- Understanding problems of discrimination in terms of distinct, homogeneous social groups, to recognition of overlapping inequalities linked to complex, intersecting, and multiple identities.
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| Med Ssengooba |
As a counterpoint to the above discussion Med Ssengooba describes his own education in Uganda (see Living with Disabilities in Uganda: A Legal Approach). (Ssengooba is a disability rights lawyer. You can see more of him in this blog post, If you think disability is not inability, think again...):
Who is Med Ssengooba?
I was born in 1981 in Uganda when polio was prevalent. The situation was further exacerbated by political unrests. In 1984, at three years old, I contracted polio, suffered the resultant paralysis and became a wheelchair-dependent PWD.
After years of treatment, I began my education late at seven years old, because there were few nursery schools that would accept young PWD. I later attended a special needs school for young PWD for my primary education. Studying in a specialized school was better because the physical environment was more accessible, and I didn't receive questions from fellow students, as we were all PWD. Receiving a secondary and university education was very challenging, as I had to cope with a very disability-unfriendly environment. I experienced disability discrimination, including almost losing a year of high school because schools weren't interested in admitting a PWD with better grades than many of their students.
Access to school facilities has always been difficult and sometimes impossible for me because most schools don't have handicap-accessible amenities, including toilets. I'd have to restrain myself for the day. Classrooms, libraries and dormitories weren't any better. I also faced negative behavioral attitudes through my undergraduate education, which carry financial and psychological costs. I cannot measure the impact such situations like writing exams without being given extra time, and being lifted on steps by kind but untrained people and the associated injury risks, have had on my academic grades. The inconveniences caused by very limited accommodation of PWD questions the saying, "Disability is not inability," because they directly impact one's grades, which are subsequently used to measure one's intellectual abilities.
Being a PWD and disability rights advocate has exposed me to numerous unchallenged human rights violations PWD endure. Our society excludes and construes PWD in a demeaning way. Changes are occurring to positively impact African PWD—they have allowed few PWD like me to acquire an education and assume leadership positions—but improving the lives of PWD at the family, society, state and national levels is still needed.
My parents sponsored and facilitated my education up until high school. I then received a government scholarship for my undergraduate degree and a Ford Foundation Fellowship for my masters of law degree. This shows the relevance of coordinated efforts among different actors, which, if adopted by all sectors, including the employment and health sectors, will lead to more independence and positive societal impact for PWD.
The realities of PWD in Africa
As an attorney in Uganda, I am an exception. In Africa, disabilities are often associated with evil spirits, curses and punishment for ancestral wrong doings. There's little understanding that PWD are human beings, equal to everyone else and entitled to the same rights, privileges and opportunities. PWD are often totally dependent on others who often mistreat them, with no means to effectively manage their disability and related needs, such as with mobility devices, medication and regular medical treatment. Many PWD have no capacity to decide their fate and are abandoned in the rural areas and stay poor, helpless, neglected, and betrayed by family and community members.
Generally, PWD in Africa lack access to public and government facilities, including health centers, schools, and legal centers like police stations and courts. Many are left homeless, live on the streets where they are more vulnerable, and endure unwanted conflicts and assaults. Female PWD also endure sexual exploitation. Due to rape and defilement, many have contacted HIV/AIDS, and unwanted pregnancies have resulted. The additional burden of raising fatherless children alone increases their difficulties. Many are unemployed because they are uneducated and vocationally unskilled. Many with employment opportunities are destined for menial jobs. This partly explains the large numbers of disabled beggars on the streets of many African countries' capital cities.
Current African disability trends
Fortunately, international civil society organizations have prioritized PWD, targeting the issue either directly or indirectly in African programs they support. The current trend is associations and partnership formation, such as disabled-persons organizations, community-based organizations, and international partnerships with donors, the community and advocacy-based agencies. The nonprofit organization at which I'm an administrator, Legal Action for Persons with Disabilities (LAPD), was receiving financial and technical support in its legal aid service provision to PWD in Uganda from different actors from the United States, United Kingdom and Denmark.
Legislative and disability policy measures are underway. Uganda, South Africa, Ghana and Tanzania have either enacted laws on disability or restructured their domestic laws to reflect disability needs. Numerous policies and strategies have been generated to guide disability work in several African countries. Many have included and captured disability performance data for Millennium Development Goals, and to report to groups including human rights committees.
International conventions like the U.N. Convention on the Rights of PWD (UNCRPD) have guided laws on disabilities in countries like Uganda and Tanzania. Much still needs to be done to implement and fine-tune these laws to reflect the authors' real intentions, but there's now a ray of hope. The CRPD has led to the creation of numerous disability rights agencies sponsoring African disability work, including Disability Rights Fund, Open Society Institute's Disability Rights Initiative, and International Disability Alliance's CRPD Forum, all of which are targeting effective and full implementation of rights enhancement for PWD worldwide, based on the UNCRPD, with some offering technical support. There are now enhanced conceptualizations of disabilities from a human-rights perspective, and national human-rights commissions have established units on disabilities in Uganda, Nigeria, South Africa and Ghana.
Effects of wars on PWD in Uganda
There have been several political unrests, including the recent Lord Resistance Army-led conflict in northern Uganda, which lasted from 1987 to 2007 and created almost a million internally displaced persons who were subsequently constantly raided by rebels.
One of the greatest effects of this war was the increase in the number of PWD. Many victims suffered physical, sensory, psychological and emotional trauma, including loss of limbs, sight and hearing, due to attacks with weapons and land mines. Physical trauma is often addressed first; however, mental trauma, if untreated, may lead to mental illnesses and post-traumatic stress syndrome disorders. Unfortunately, people with mental illness aren't often deemed victims of war because their scars aren't visible.
In camps, lack of mobility devices like wheelchairs, white canes and hearing devices restricts mobility and access to service providers, so it is very complicated or impossible for some. Some can't walk to where food is being shared to get their portions. A female PWD I encountered said she can't go to receive the portions she should for her and her 10 kids. Even when she does, it's not enough.
Many female PWD were sexually assaulted. While coping with their disabilities, they were impregnated and raised children by unidentified rapist fathers alone in a war zone with no means to. Many acquired HIV/AIDS, with access to medicine being difficult for them. They experienced triple marginalization as women PWD with HIV/AIDS, in a war-torn developing country.
Organizations like CARE, AVIS, World Vision and CARITAS are providing support such as food and basic necessities. Resettlement programs haven't clearly addressed the needs of PWD, especially from a gendered perspective. Interacting with victims in Northern Uganda made me realize that the resettlement efforts may not be productive because they can't go home. No thought or effort is being put into what they will go home to. For example, water, wheelchairs, schools and healthcare facilities aren't being provided. Also, confiscated lands, destabilized families, deserted spouses and a significant aging population that's hastening their marginalization are also issues faced.
On the horizon
I attended President Obama's town-hall meeting with African youth at the White House. My attendance was to highlight the plight of PWD. Also, LAPD, one of the first nonprofit organizations providing legal assistance for African PWD, is dealing with employment, accident claims, child neglect, land and property confiscation, accessibility, discrimination, and education. Mediation and out-of-court settlements, especially in civil cases, is our preference. We also conduct public awareness campaigns, electoral sensitization, and we are helping to revise Uganda's laws to match the U.N. Convention on the Rights of PWD, which Uganda signed and ratified.Legislating for discrimination is neither simple nor straightforward. Discrimination is a complex interplay of both individual disability and institutional practices, policies and relations. For the ordinary man on the street non discrimination requires a balanced approach to providing reasonable access. Discrimination my not be straightforward, it may be indirectly caused by the structure of an organisation. Much still needs to be done to appreciate the complexity of the issues involved in discrimination and to improve the anti discrimination laws of Uganda.
African countries must enact, repeal, amend, revise and implement disability laws. They should also design workable regulations and guiding policies, utilizing the CRPD model. Many countries have no definition or understanding of disabilities. Disability concerns are often sidelined during policy making. Consequently, the resultant service delivered is inadequate or inappropriate. Specialized policies must be generated and introduced in international environments for the policies to be effected. In Uganda there is a National Policy on Disability and the PWD Act, but implementation is challenging. Affirmative action is also required by law, and statutes should be enacted for special groups and PWD. The state should lead in employing PWD, and organizations that employ significant numbers of employees should be required to hire members of special groups.
PWD are often isolated, and conditioned to accept and not question anything, even things done to them. Therefore they must be empowered and encouraged to speak up for themselves and speak out against negative occurrences. For example, a female PWD told me, "There's a man who comes and rapes me daily, but who can I tell?" This happens because often PWD are not considered human, so crimes against them are ignored by law enforcement. Crimes against PWD should be challenged, and their inclusion in mainstream society should be made essential. Also, education and vocational skills training should be available to enable PWD become independent, self-sustaining and productive members of society.
Solution providers must be aware that Africa's environment is different from the West's and solutions must be tailored. I had a wheelchair made in the United States that didn't last because it's not designed for Africa's rugged terrain, and if it breaks, there aren't replacement parts readily available to repair it.
If people want to help, they can promote, protect and respect the rights of PWD, and teach future generations to ensure continuity. Everyone can make contributions towards the fulfillment of the rights of PWD.
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