‘We've moved away from disability as a health issue, it's a human rights issue’: reflecting on 10 years of the right to equality in South Africa

Abstract

The South African Constitution (no. 108, 1996) enshrines the rights of disabled people to equality – an almost unprecedented attainment achieved by disabled people. Ten years on this paper reflects on what this has meant for disabled people in South Africa. It uses secondary sources and draws on the work and research experience of the authors. Human rights are viewed as a bundle of interrelated, interdependent and mutually supporting civil and political, as well as socio‐economic, rights. A brief description of the context introduces the body of the paper. The paper demonstrates that legislative and administrative measures have been put in place to protect the rights of disabled people but these have yet to be experienced at the everyday level of social life. The scale of the inequality that still exists requires disabled people to move beyond the courts of law and to adopt a human rights approach. However, this approach will require reviving the successful strategies and the spirit of collective action that realised disabled people's constitutional right to equality.

Keywords:

• disability
• human rights
• socio‐economic rights
• equality
• South Africa

Acknowledgements

Our thanks are due to the disabled people with whom we worked and to our colleagues in the School of Health and Rehabilitation Sciences and in Health and Human Rights, especially Leslie London and Maria Stuttaford.

Notes

1. Respondent quoted in Thomas and London (2006, 34).

2. Albie Sachs, South African Constitutional court judge, anti‐apartheid and disability activist, is himself disabled. He was injured in a car bomb explosion while in exile in Mozambique.

3. 9. Equality

 (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

 (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievements of equality, legislative and other measures designed to promote or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

 (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age disability, religion, conscience, belief, culture, language and birth.

 (4) No persons may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination

 (5) Discrimination on one or more grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. (Government of South Africa 1996, ch. 2)

4. For a recent (past 20 years) history of disabled people in South Africa and the DPSA see Howell, Chalklen, and Alberts (2006).

5. We use pseudonyms throughout and even though here the case report is available.

6. A pterygium is a benign growth of the conjunctiva (http://en.wikipedia.org/wiki/Pterygium).

7. £1 (GBP) equals 15.09 Rand (ZAR), €1 (EUR) equals 13.02 Rand (ZAR) as at 6 December 2008 (http://www.southafrica.co.za/forex/index.html#International).

8. See, for example, the Basic Income Group Coalition (http://www.sacc-ct.org.za/BIGCoal.html).

9. The SAHRC, established by the Constitution, has a national mandate to protect and secure the rights of all citizens, especially vulnerable groups including disabled people (Nhlapo, Watermeyer, and Schneider 2006, 99).