table of contents - home page - text-only home page Interview with Charlotte McClain, Commissioner, South African Human Rights Commission By Kay Schriner (kays@uark.edu) South Africa recently adopted Act No. 4, 2000 (Promotion of Equality and Prevention of Unfair Discrimination Act, 2000). What is your opinion about its potential effectiveness for protecting the human rights of disabled people? This piece of legislation is very important. The Act is clearly committed to a vision of equality and non-discrimination. It is important to note that the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 was passed in February 2000 but has not yet come into operation in full. This Act was passed in order to give effect to section 9(4) of the Constitution that national legislation be enacted to prohibit or prevent unfair discrimination. The Act also strengthens the Constitutional provisions of non-discrimination, non-racism, and goes a long away in supporting human dignity. It is noteworthy that the Act has three main themes, which are identified historically as being sights of particularly pernicious discrimination in South Africa; race, gender and disability. I think once this Act takes effect it will address the deep set inequalities and the discrimination people with disabilities continue to experience in South Africa. Many of these inequalities are linked to structural inequalities like income distribution, poverty and gender discrimination. The Act in addition to the general prohibition of unfair discrimination, in chapter 2 contains more specifically unfair discrimination on the grounds of disability amongst other grounds. Section 9 prohibits unfair discrimination on the ground of disability, including: denying or removing from any person who has a disability, any supporting or enabling facility necessary for their functioning in society; as well as failing to eliminate obstacles that unfairly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons. The Act also address remedies for unfair discrimination. The equality courts are empowered to make positive orders and can require respondents to make specific opportunities and privileges unfairly denied in the circumstances, available to the complainant in question. Another important aspect of the Act is that it is far reaching in application. It binds both the State as well as all private parties. It is my view that the Act will or rather has the potential to protect people with disabilities from unfair discrimination in accessing and rightfully enjoying their economic and social rights. The Act goes further to include positive measures to promote equality in all spheres both in public and in the private sphere. This is critical for disabled people because much of the discrimination takes place in the latter sphere. What will be the role of the South African Human Rights Commission in implementing this act? The role of South African Human Rights Commission is manifold. The Act recognises that effective equality cannot be won by litigation alone. It therefore takes on proactive measures such as review of laws and policies. National institutions like the South African Human Rights Commission may request information on measures taken to achieve equality, which will include legislative and executive action. It can also seek information on compliance with legislation, social programmes and codes of conduct. The Act also recognises the current limitations of our justice system and the Human Rights Commission is one of the organisations which may play the role of resolving disputes alongside the conventional courts. Although it is not yet clear how the SAHRC's role as an alternate dispute resolution forum will unfold, the Act is clear in its identification of the SAHRC as one of the organisations accessible to many South Africans, who may ordinarily find the court system costly and inaccessible. The Act requires Ministers to submit equality plans to the South African Human Rights Commission within two years of after the commencement of the Act. The Act also mandates the South African Human Rights Commission to chair the Equality Review Committee. The role of the Commission is primarily one of monitoring the implementation of the Act. But perhaps as critical is its role in educating people with disabilities about the Act and how best they can make it work for them What role did the disability community have in securing passage of the law? The disability community played a significant role in securing the passage of this Act. However, it is my opinion that the Act could have been stronger in regard to disability related issues. However, having said that it is my contention that the efficacy of this Act and its prescribed visions will only be effective if people with disabilities are aware of the Act and have access to the equality courts and alternate dispute forums. This places a serious challenge on the disability movement in terms of educating the mass base of disabled people and ensuring that people are made aware of both their rights and the mechanisms in place to enforce their rights. In your opinion, how effective is the South African disability community in influencing in a positive way the laws and policies of the nation? I think the disability community has influenced and continues to influence many of the new laws and policies that are emerging in South Africa today. This happens at various levels. At the level of government co-ordination, an Office on the Status of Disabled Persons has been established in the Presidency. The function of this Office is to ensure the co-ordination of the national integrated disability strategy [white paper] and to ensure that Departments implement the recommendations found in the White Paper. Similar offices exist in the Premiers Offices at a provincial level. At the level of the legislature it is important to note the role of Parliamentarians. Currently there are least 4 disabled members in the National Parliament. In addition to this recently we saw the establishment of a Portfolio Committee namely , the Joint Monitoring Committee on Improvement of Quality of Life and Status of Children, Youth and Disabled Persons. A disabled member of Parliament chairs this Committee. The Parliamentary committee system is one of the most important mechanisms for ensuring efficient, transparent government and allowing public input in the law-making process There is also representation of disabled persons at a provincial parliamentary level. Finally, civil society in the form of Disabled People South Africa and the Federal Council continue to play a vital role in influencing and participating in law reform and shaping of new polices. table of contents - home page - text-only home page