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Transforming Society

Securing Rights

Restoring Dignity

Commissioner Malatji expresses concern at the continued discrimination of people with disability

12 November 2016

By Commissioner Bokankatla Malatji, SAHRC Commissioner responsible to Disability & Older Persons

In his address to the delegates at the First Meeting between NHRIs, National Independent Monitoring Mechanisms designated under article 33.2 of the UNCRPD and the Committee on the Rights of Persons with Disabilities, held in Geneva on 25 September 2014, Adv Malatji called on governments to do more to promote rights of people with disability

Systemic barriers to equal participation and equal access to opportunity have historically marginalised the rights of persons with disabilities quite significantly. It is, therefore, of considerable importance that, to date, 149 nation states have undertaken, through their ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), to advance the rights of these individuals through numerous complementary mechanisms. One of the little known facts about the CRPD, for example, is that, in the canon of international legal instruments, the CRPD is notable for containing the most references to the duty of States not only to protect rights but, also, to promote them.
Another important provision of the CRPD, and the one which brings us here today, is the duty to implement the Convention diligently and to monitor that implementation through the designation of independent monitoring mechanisms. This provision, contained in Article 33 of the CRPD is made all the more relevant to my work and the work of the South African Human Rights Commission by the inclusion of a proviso in subsection 2, which states the following:

‘States parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of rights.’

As a national human rights institution, the South African Human Rights Commission’s role in the implementation and monitoring of compliance with the CRPD is, therefore, inherent to the Convention, whether designated as such or not. I should mention that no formal designation has taken place, and that dialogue with relevant organs of state continues on the subject, though I would be remiss to suggest that this precludes us from doing the work of monitoring the rights of persons with disabilities in South Africa. On the contrary, the Commission ensures that this duty is diligently carried out, whether a formal designation has taken place or not.

The South African Human Rights Commission is a constitutionally established body, whose mandate requires that it protects, promotes and monitors the advancement of human rights in South Africa without fear or favour. With regard to disability, research is regularly conducted to consider the manner in which the rights of persons with disabilities are being realised or being violated through actions of the State or other actors. For example, in 2014, the Commission published its ‘Report on the Right to Access Sufficient Water and Decent Sanitation in South Africa: 2014’. The impact of the lack of human rights-based approaches to water and sanitation on vulnerable groups, including persons with disabilities, was noted as a significant area of concern. The Commission noted that infrastructure such as standpipes and communal taps were largely inaccessible to people with disabilities, and that budgeting for water and sanitation did not take into account the specific needs of persons with disabilities. Engagements with the Department of Water and Sanitation continue in this respect and the Commission intends ensuring that the right to access water and sanitation on an equal basis with others is realised for persons with disabilities.

As the Commissioner responsible for the rights of persons with disabilities, I have been active in holding consultative dialogues with relevant government departments and Disabled Peoples’ Organisations (DPOs). The stated objective of these dialogues is to assess the level of preparedness and compliance with the CRPD, particularly at the level of provincial government. At a provincial engagement in the North West province in 2013, for example, DPOs raised concerns about the fact that special needs schools were not appropriately accredited; while, during provincial engagement in Limpopo province, I was encouraged by the inclusion of disability forums in provincial government departments such as the Department of Agriculture. These annual dialogues are, therefore, an opportunity for the Commission and DPOs to engage substantively on areas of concern; as well as allowing participants the opportunity to reflect on progress towards the realisation of the rights of persons with disabilities. We will continue to hold such dialogues to ensure that constructive engagement continues and that we can monitor progress in advancing the rights of persons with disabilities, while also bringing attention to areas that require action on the part of State entities.

Each year, the Commission publishes an Annual Equality Report, with a chapter dedicated to the rights of persons with disabilities. Topics which have been included in the report in previous years include the rights of persons with disabilities to access decent work opportunities, inclusive education and livelihood assets. In the current financial year, the Commission has made a concerted decision to focus on Business and Human Rights as its Strategic Focus Area. In relation to disability, we will, therefore, be considering the role that businesses can play in the advancement of the rights of persons with disabilities, paying particular attention to issues of reasonable accommodation and universal design in the workplace.

Through the course of regular complaints handling during the last financial year, 72 cases were handled by the Commission in which the complainants argued that they were unfairly discriminated against on the basis of their disability. These included issues such as discrimination on the basis of disability by a private bank. The Commission has since intervened and the bank has agreed to undertake efforts to make its facilities more accessible to persons with disabilities. The Commission has recently received another matter of significant importance in relation to the CRPD. It relates to the rights of persons with psychosocial disabilities to vote. At present, the matter is being investigated and the Commission is engaging with all relevant stakeholders, including the Independent Electoral Commission to ensure full compliance with national and international human rights norms and standards. These initiatives represent just a small portion of the work of the South African Human Rights Commission in the area of disability, but they are illustrative of the fact that we remain active in the pursuit of the realisation of the rights articulated by the CRPD.

The brief I was given for this panel was to discuss some of the needs and challenges with regard to our work in ensuring the implementation of the CRPD and the monitoring of that implementation. This is a complex proposition, because our needs extend not only to physical and material resources but also, to an enabling environment, characterised by policies and practices which foster an optimal climate for the work of a national human rights institution. While it may be suggested that there is sufficient political will to advance the rights of persons with disabilities in South Africa, as manifested by the ratification of the CRPD, the fact that an independent body has not been designated by the State in compliance with Article 33 (2) remains a considerable challenge. A similar difficulty exists with regard to a lack of clarity in terms of the positioning of the national focal point for disability. As delegates may be aware, in 2009, a Ministry for Women, Children and People with Disabilities was established in South Africa. Earlier this year, and following the country’s fifth general election, this Ministry was renamed the Department of Women and its disability functions were transferred to the National Department of Social Development. Without pronouncing on the logic or rationality of such a decision, I do wish to make it clear that this has made it difficult to engage with appropriate persons at the most senior level of government. Consistency and clarity going forward would ease the process of constructive engagement considerably.

In the course of conducting research into the rights of persons with disabilities at the South African Human Rights Commission, we regularly face constraints in respect of data quality and the unavailability of accurate statistics. These render the assessment of progress difficult, and they illustrate pointedly how the work of a national human rights institution dovetails with that of the United Nations system and, to a large extent, with that of the State as well. Thankfully, the completion of South Africa’s Baseline Country Report on the CRPD may alleviate some of these difficulties. Nonetheless, I note with concern the fact that this report has not yet been deposited to the Committee. These represent some of the most immediate challenges we face and regarding which I hope to engage constructively with the State and with delegates here today in order to propose lasting solutions.

I recently attended a training initiative in Kampala, Uganda, hosted by the Network of African National Human Rights Institutions, on best practice in monitoring the rights of persons with disabilities in line with the Convention. This was a very thought-provoking journey through some of the methodological and political challenges that might be associated with such a large task. Nonetheless, it was also a clear indication that this is a thematic area that must be pursued with the necessary rigour. I am confident that it can be done and that our work will be enriched significantly through the adoption of an approach that is participatory, that reflects critically on shortcomings and opportunities for improvement and that encourages the inclusion of multiple perspectives.

In seeking complementarity between our work and that of the Committee on the Rights of Persons with Disabilities and the international community, it is through engagements such as these that we can consider best practices and potentialities for cooperation, collaboration and knowledge transfer.

I would, therefore, like to congratulate the Committee for having convened this meeting and for actively providing the platform for national human rights institutions to be a part of what is both a vital and a very exciting step in the CRPD’s progression. I wish to conclude by again thanking you for the opportunity to be a part of this dialogue and I look forward to further robust interaction as this historic meeting continues.
sioner Malatji expresses concern at the continued discrimination of people with disability

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