Ugandan Law: Enforcing Disability Legislation

In Ugandan Law: Persons With Disabilities Act and Education it was shown that the Persons With Disabilities Act 2006 (PWDA) is the foundation of human rights legislation in Uganda. This post will discuss the organizations that enforce the PWDA.

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, gives a good introduction to the organizations that promote and enforce disability legislation in Uganda. In the thesis he explores how disability rights are promoted and enforced in courts:

Generally, the Ugandan disability legislation has not been subjected to judicial interpretation and enforcement because cases exclusively on disability discrimination are not brought to court, except one case concerning accessibility at the Bank, discussed shortly. Lack of litigation on disability in Uganda, in my own experience is due to various factors among others:

Firstly, the general culture in Uganda of preferring conciliation to legal action makes people prefer informal mediation to litigation. This is also evidenced by the Human Rights Watch (HRW) study on the rights of disabled women in Northern Uganda.

Several women with disabilities interviewed for this report said that they had tried to seek justice for sexual and gender based violence but failed. Sometimes local councillors discouraged them from reporting incidents to police and instead pressed for informal mediation, which did not result in changes in behaviour and allowed the violence to continue.

Secondly, prior to the establishment of Legal Action for Persons with Disabilities (LAPD), an NGO established by disabled lawyers in 2005 and government Equal Opportunities Commission in 2009, there was no organ / organisation exclusively supporting disabled person to bring their cases to courts.
Thirdly, in Uganda most people, including disabled people, are rarely made aware of their legal rights. For disabled people, this contributes to the lack of legal enforcement of the disability legislation.
Lastly, in Uganda, generally for all citizens, the professional costs involved in litigation discourage those who may wish to litigate.

As pointed out above, it appears that only one case, challenging the physical inaccessibility of a bank, has appeared in Ugandan courts, the case of Santo Dwoka and Nyeko Okellov. Centenary Rural Development Bank - Gulu Branch.  However, it is doubtful whether it set any precedents as might have been hoped for a test case of that nature, as it was settled out of court. Moreover, the claimants were not compensated as the Judge reasoned that there was no substantial proof that the lives of the claimants were affected when they were enduring the Bank‘s stairs. The key facts of the case were as follows.

Both Santo and Nyeko were disabled people due to polio. Both moved with the aid of callipers, crutches and wheelchairs. Both were clients of Centenary Rural Bank - Gulu Branch as signatories to their group account - Gulu Disabled Cooperative Society. The physical accessibility of the bank excluded them from access to the banking hall on an equal basis with other clients. They had been pleading with the bank management for 2 years about this difficulty but they were ignored, so they took legal action against the bank. The Judge advised settling out of court as, while the case was in progress, the bank began putting accessibility structures on the premises.

While it appears challenging to enforce the disability law through individual litigation the constitution provides in article 50 and 137 for the bringing of a case through public interest litigation (PIL). PIL is seeking to precipitate change through court-ordered decrees. Article 137 provides for PIL to be brought to the Constitutional Court to challenge unconstitutionality of the provision(s) of an Act of Parliament or a customary practice. Through Article 50 PIL may be brought to a competent court to challenge the infringement of rights of individuals or groups of individuals by any practices and force the institution to comply with the existing law. In particular, article 50(2) provides that ―Any person or organisation may bring an action against the violation of another person‘s or group‘s human rights. Therefore, a case challenging the inaccessibility of institutions of higher education merits being brought through PIL under article 50. In Uganda PIL has been used on political rights, unconstitutionality of the death penalty, and right of access to information, the right to freedom of worship, smoking in public places and challenging the paying of a dowry.

In India, in the PIL case of Javed Abidi v Union of India and Others, the Indian government was compelled by the Supreme Court to establish institutional structures envisaged in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 of India. In Uganda, a similar approach can also use to litigate on the matter of public physical accessibility for disabled people. The outcome such PIL has the potential of generating awareness about accessibility needs among the Ugandan public even if the case is lost. If the case is decided in favour of disability, the PIL could arguably bridge the gap between the legislation and enforcement, help interpret the accessibility provisions and set minimum standards of enforcement.

Emong next discusses the scope of powers of  the National Council for Disability (NCD or the Council), the Equal Opportunities Commission (EOC or the Commission) and the Uganda Human Rights Commission (UHRC):

The NCD, is established by the National Council for Disability Act (the NCDA) 2003. The NCDA establishes three levels of the Councils, namely, at national level, district or municipal, subcounty or division or town council. This places the Council in a position to monitor any policy on equalisation of opportunities for disabled people. It is a body through which the needs, problems, concerns, potentials and abilities of disabled people can be communicated to government and its agencies for action. The Council is mandated to carry out monitoring and evaluation of both government and non-government policies for the inclusion of disabled people, and to coordinate and advocate for this inclusion. It is also to carry out research and investigations into violations of rights of disabled people or non-compliance with laws relating to them. With these mandates, the Council is empowered to determine the level of equal opportunities disabled students are accorded in higher education. However, the Council has not been able to execute its functions effectively, including at the institutions of higher education due to limited resources and management challenges.

The EOC, is established by the Equal Opportunities Commission Act (EOCA) 2007 and was launched in 2009. The Commission is established to give effect to the State‘s constitutional mandate to eliminate discrimination and inequalities against any individual or group of persons on grounds such as disability and take affirmative action in favour of those groups for the purpose of redressing imbalances that exists against them.The Commission is empowered with the comprehensive and complimentary roles of monitoring and evaluation and with the enforcement of compliance with the equality laws. Stated as follows:

The functions of the Commission are to monitor, evaluate and ensure that policies, laws, plans, programmes, activities, practices, traditions, cultures and customs of—

(a) organs of state at all levels; 

(b) statutory bodies and agencies; 

(c) public bodies and authorities; 

(d) private businesses and enterprises; 

(e) nongovernmental organisations, and 

(f)social and cultural Communities, are compliant with equal opportunities and affirmative action in favour of groups marginalised on the basis of sex, race, colour, ethnic origin, tribe, creed, religion, social or economic standing, political opinion, disability, gender, age or any other reason created by history, tradition or custom.

In executing its functions, the Commission has statutory powers similar to the powers of the Judicial Court, therefore has powers to hear and determine complaints and may resolve them through mediation, conciliation, negotiation, settlement or other dispute resolution mechanism. That power places it in a position to enforce the PWDA and other equality Acts.

EOC can undertake research-related activities on the inclusion of disabled people to highlight the extent to which they are accorded equal opportunities in higher education It has powers to ensure recommendations arising out of such research are put into action as it can refer any matter to any other institution, body, tribunal or authority which, in the opinion of the Commission can best handle that matter. This means the Commission can refer such recommendations to the Commission for Higher Education or to the National Council for Higher Education for appropriate action.

Another role of the Commission that places it in a good position to bring disability equality into higher education is its function to ―prepare and publish guidelines for implementation of equal opportunities and the avoidance of acts, that undermine equal opportunities. This could lead to the development of codes of practices for disability inclusion for institutions of higher education. In Uganda, these guidelines are clearly absent. This research argues that the Commission has powers to ensure that codes of practice are developed as it is invested with powers to 'recommend to or order any institution, body, authority or person to adopt or take particular steps or action which, in the opinion of the Commission will promote equal opportunities'. In this particular case, the Commission can recommend developing the codes of practice to the NCHE whose role is to streamline the operation of higher education.

Finally, there is the Commission‘s role to 'monitor the compliance, in Uganda, with the provisions of international and regional conventions that relate to or are relevant to the functions and objects of the Commission'. This has the potential to ensure Ugandan disability legislation on education complies with the Convention on the Rights of Disabled People (CRPD).

The UHRC is the national human rights institution, established in accordance with the Constitution, to promote and protect human rights as well as monitor them in the country in line with international human rights instruments.  UHRC‘s competence and responsibilities is in tune with the international standards, spelt out by the Paris Principles relating to the status of national institutions for the protection and promotion of human rights.

In summary, the breadth of the mandate of UHRC includes human rights promotion and outreach, investigation and resolution of complaints, commenting on the Bills before parliament, monitoring Uganda‘s compliance with international treaties and the Constitution on matters of human rights and performing any other human rights matter as may be provided by law. It also publishes periodic reports on the status of human rights in the country and submits those reports to Parliament annually. In the performance of its functions, UHRC assumes the powers of the Judicial Court. On the investigation of the violation of rights of disabled people, there has been a general improvement in the way disability features in UHRC reports to parliament since 2000. In particular, the 2009 annual reports highlights the situation of disabled people in the country, challenges faced by disabled people in enjoyment of their rights and recommendations for the improvements of the human rights situation for disabled people. It appears the UHRC has done much on the issues relating to access to primary and secondary education, but little on higher education. This is the gap in the work of UHRC that needs to be filled to ensure that UHRC ensures a right to education for disabled people in higher education.

DPC Aron Baguma talks to one of the disgrantled disabled persons, Aisha Amooti, sitting in the middle of the road along Saidi Bare Avenue during a protest over a land title

How are these organizations measuring up. Are they performing well defending the rights of PWDs? This 2013 article, Persons with disabilities need access to justice in Uganda, highlights the problems PWDs are having accessing justice. It is clear that though all the mechanisms are in place, and all the laws are sound, there is still great difficulty accessing Justice:

UGANDA: Have you ever taken time to reflect on what the term justice means in its real sense? Ordinarily, one would imagine that it refers to fairness, impartiality, righteousness, reasonableness, even-handedness, honesty, integrity and uprightness.

The list is endless. Suffice it to note that the inference of the term is largely general, but its application may fall short of its reality, depending on an individual’s interests.

For instance, while most of the interpretations may favour persons without disabilities, it does not apply to those with disabilities. Experience from National Union of Disabled Persons of Uganda (Nudipu), as an umbrella organization of persons with disabilities, has shown that the term Justice is farfetched as far as people with disabilities are concerned, and may not hold water by any standard.

A baseline survey commissioned by Nudipu early this year to assess the legal aid needs of people with disabilities in Uganda indicated that 54 per cent of people with disabilities whose rights were violated did not report to any authority for various reasons, including lack of awareness of their rights to access justice.

Of those who took violation of their rights to court for redress, only 34 per cent were satisfied that they had received justice while 66 per cent were unhappy with court verdicts.

The survey was conducted in the districts of Lira, Gomba, Kampala and Iganga to inform the implementation of the Access to Justice Project (AJP), funded by Democratic Governance Facility (DGF).

It also revealed that there were few cases of public interest litigation on disability handled by courts. Three cases— electoral democracy for people with disabilities 2010, physical inaccessibility to public infrastructures 2010 and mental health petition on abusive laws 2012, are still pending. It is not even clear when these could probably be handled.

The survey notes further that human rights violations against people with disabilities were majorly on aspects such as freedom from exploitation (31.7 per cent) and against equality and non-discrimination (23 per cent). The right to education was equally reported to have been violated.

It notes the non-implementation of the existing laws and policies as a major reason why people with disabilities’ rights continuously get violated without or with minimal redress. For instance, the survey generally revealed that across the country, district service commissions had not considered employment of people with disabilities.

Those who find their way into the employment are denied promotions.

“I have been in public service in my ministry for 20 years and was denied promotion to senior position on grounds of disability,” the survey quotes a respondent from Kampala, as saying.

The leadership of people with disabilities at the district unions, said sexual abuse against women with disabilities accounted for 80 per cent of the injustices faced.

Where perpetrators are arrested, they are hardly prosecuted because it has become a tradition for parents of the victims to prefer settling such cases out of court with or without the victims’ consent.

Interestingly, it is the local council leaders who often convince the parents of the victims to settle the matter out of court. One other interesting issue to note is that confinement of people with disabilities as a means of protection by their caregivers is equally rampant.

This often causes the person to develop other disabilities. With such despondency, it is rather unlikely that the term justice applies in the life of a PWD. In fact, in every bit of their life, there is an element of injustice— be it in mobility, education, economic rights, let alone a right to have a family.

It is these scenarios that prompted Nudipu to develop a project ‘Access to Justice by people with disabilities,’ geared at helping people with disabilities realise the practical meaning of the term ‘justice’. And already, there are some results.

A number of advocates have been trained in disability equality and management. It is our prayer that a number of the advocates will appreciate and support disability related cases.

We would, therefore, like to call upon government to, among others ensure that the judicial system recognises the challenges faced by people with disabilities in their quest for justice and find appropriate strategies to address the bottlenecks.

Some of the strategies could include orienting the judges, lawyers and police on disability rights, reform the laws to be disability-friendly, ensure physical accessibility to courts of law, access to court information and decisions in friendly formats, among others.

It is only then that people with disabilities will receive appropriate legal support, hence making the term justice more meaningful to every Ugandan.

Disability rights laws are often not enforced because people do not know their rights. It is the right of any individual to make a court case if it is in the public interest, however there are very few such cases despite the benefits to the whole community. Besides individual legal actions there are organizations like the NCD, EOC and UHRC that can take action to demand equal rights. These organizations are often hampered by lack of funds and resources.