Governance and Legislation in South Africa: a contemporary overview
By Charlotte Vuyiswa McClain
South Africa is an emerging constitutional democracy. Our Constitution is billed as one of the most progressive Constitutions in the world. It is a Constitution that reflects the struggles faced by the majority of South Africans. A wonderful document that outlaws discrimination on grounds of race, gender, sex and disability. A constitution that is founded on the fundamental values, of equality, freedom and non-racism.
The inclusion of disability in the equality section of the Constitution is a result of the relentless struggle that people with disabilities waged during the oppressive apartheid regime. It is a result of organised disabled people who fought to be heard and who mobilised to achieve this victory.
The Bill of Rights lists equality as a substantive right, which, together with principles of human dignity and freedom influences the interpretation of all the other rights in the Bill of Rights.
In addition to the Constitution and more specifically section 9, the equality clause, we have a range of enabling pieces of legislation that protect and promote the rights of people disabilities.
Overarching Policy
The overarching policy in South Africa on disability issues is the Integrated National Disability Strategy. This policy was arrived at in 1997 after a very participatory process in which people with disabilities were consulted throughout the country. The Integrated National Disability Strategy (White Paper) provides a blueprint for integration and inclusion of disability into every aspect of governance. Another very important feature about the INDS is that it articulates a paradigm shift from dealing with disability related issues as solely health and welfare issues to a rights- based integrated approach.
This landmark policy document makes the point that people with disabilities should not be seen as objects of pity, but rather as capable individuals who are and can contribute immensely to the development of society. It also underscores the importance of the transformation of attitudes, perceptions and behaviour towards people with disabilities. This is perhaps one of the greater challenges to overcome as people in general have an ingrained mindset as to what and what not people with disabilities can do.
Employment
In addressing this the enactment of the Employment Equity Act is widely welcomed. This Act outlaws discrimination on the basis of disability during the recruiting process as well as within the workplace. In addition to the Employment Equity Act, the Public service is bound by statutory provisions to employ a minimum of 2% people with disabilities by the year 2005. This has recently has been complemented by a Code of Good Practice on the Key Aspects of Disability in the Workplace.
Education
Education for children with disabilities is still ravaged by the legacy of apartheid. Apartheid " special schools" were premised on two segregating criteria, race and disability. This in essence meant that " white special schools" were much better resourced than schools for black children with disabilities. There was very rigid application of criteria resulting in only 20% of children with disabilities being accommodated in special schools. Current statistics show that only about 64, 200 learners with disabilities or impairments are accommodated in about 380 special schools. This indicates that, potentially, 280, 000 learners with disabilities or impairments are unaccounted for .
The South African Schools Act of 1996 provides for the inclusion of learners with special educational needs. Public schools are required by law to admit all learners and provide the necessary educational requirements without discrimination. Last year the Department of Education published a White Paper on building an inclusive education and training system. The White Paper defines inclusive education and training as:
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Acknowledging that all children and youth can learn and that all children and youth need support;
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Enabling education structures, systems and learning methodologies to meet the needs of all learners;
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Acknowledging and respecting differences in learners, whether due to age, gender, ethnicity, language, class, disability, HIV or other infectious diseases;
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Broader than formal schooling and acknowledging that learning also occurs in the home and community, and within formal and informal settings and structures;
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Changing attitudes, behaviour, teaching methods, curricula and environment to meet the needs of all learners; and
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Maximising the participation of all learners in the culture and curriculum of educational institutions and uncovering and minimising barriers to learning.
At the level of implementation these laws and policies have experienced many difficulties. The most apparent are the lack of resources both financial as well as human particularly in the form of trained educators. This has meant that children with disabilities are still not fully integrated into the public school system.
Discrimination
The Constitution requires that enabling legislation be promulgated to further substantiate the equality clause. To this end, the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 [PEPUDA] has been promulgated. While not in force in its entirety this Act is of critical importance for people with disabilities. PEPUDA addresses issues around environmental accessibility as well as reasonable accommodation in the workplace. Chapter two of PEPUDA section 9 speaks specifically to prohibition of unfair discrimination on the ground of disability. PEPUDA is undoubtedly an important tool for combating discrimination against people with disabilities.
Additional Legislation
Another important piece of legislation that has a particular bearing on people with intellectual disabilities is the Mental Health Care Act. This Bill will be put before Parliament in the very near future. The Bill speaks volumes, it sets out the spirit and legislative intent. The bill promotes the rights and the interests of mental health care users. Chapter three of the Bill is dedicated to the rights and duties relating to mental care users . There are other pieces of legislation like the Child Care Act and the Social Assistant Act that also make provision for people with disabilities. Also most departments have developed policy documents that include people with disabilities, the Department of Transport, the Department of Social Development and the Department of Housing to mention but a few.
Structures & Governance
It is quite clear that the South African government has nurtured and fostered a healthy partnership with the disability sector. This has been achieved by ensuring that disabled people themselves are part of the interventions and integral in terms of developing legislation, mechanisms, policies and an institutional framework that seeks to take positive steps towards ensuring that people with disabilities are affirmed and can enjoy their human rights.
Representation
The Office on the Status of Disabled Persons in the Presidency serves to facilitate, co-ordinate, monitor and evaluate all government programmes and projects that seek to mainstream disability issues. Offices on the status of disabled people have been established in the Office of the Premier throughout the country. These offices play a coordinating role at provincial government level in terms of the policies and their inclusion of the interests of disabled people.
Politically there has been much advancement of people with disabilities. The ANC led government deliberately included people with disabilities on to their election lists. This has resulted in the national legislature having 10 disabled members. This has had a trickle down effect with members with disabilities also represented at a provincial government level. Civil society remains active and this is important. There has been some thinking around initiating a disability budget, which in essence investigates how government is allocating and spending for disability related issues. Similar budgets have been initiated for children and for women. This initiative has been driven by civil society and has proven to be a very useful monitoring tool.
In pursuance of Constitutional democracy, the South African Human Rights Commission [SAHRC] was established. The SAHRC is an independent and impartial body and reports to Parliament. The SAHRC is mandated to promote and protect human rights in South Africa and thus ensure that the provisions of the Bill of Rights are effectively effected. In this context, some of the functions of the SAHRC include developing a culture of human rights, monitoring and assess the observance of these rights, educating, investigating and reporting on the observance of the rights and taking steps to secure appropriate redress where human rights have been violated. The SAHRC has had a Commissioner responsible specifically for disability issues and has an advisory committee that assists the Commission with policy directions in terms of disability issues.
International Level
At an international level, South Africa has ratified a number of International Conventions that directly or indirectly protect the rights of people with disabilities, for example, the Convention on the Rights of the Child. The UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities have certainly been useful as an instrument in assisting in the policy making process. Notwithstanding that our Government supports the move towards a Convention for people with disabilities. .
A very important initiative taken by the African Union was to declare the first decade of the new millennium as the African Decade of Disabled People. This decade will be marked by a process of designing programmes for the development of disabled people on the Continent.
Basic Challenges Remain
Having presented a brief overview of the legislative frameworks and governance structures. The question still begs - How do we translate these universally accepted standards into concrete realities for people with disabilities? It is clear that legislation cannot on its own change mindsets and transform the social landscape to capture the true spirit of our Constitution. In South Africa I believe that we are moving rapidly in the right direction. Particularly with the political will that has been exhibited by the highest office in the land and the integration of people with disabilities into the political sphere, we are off on a good footing.
And yet, while as a country we have come a long way, there is still much that needs to be done. The intersection between poverty, race, disability and gender discrimination still remains with us and can only be addressed by ensuring that there is nothing about us without us.
The critical question that we need to ask ourselves is now that we a have a constitutional provision that prohibits discrimination on the basis of disability, has life changed for people with disabilities in South Africa?
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