Persons with Disabilities Bill

The Bill can be accessed on the Veritas website [link], and so can the existing Act [link].

Importance of the Bill

The prevalence of disability in Zimbabwe is estimated to be 9.5%, according to the Zimbabwe 2022 Population and Housing Census Report, so persons with disabilities (PWDs) are a significant portion of the total population and they must not be excluded from participating fully in society.

The Constitution and International Law on Disability

The Constitution

According to section 22 of the Constitution, the State and all agencies of the government have an obligation to recognise the rights of PWDs, in particular their right to be treated with dignity and respect.

Section 83 of the Constitution goes on to oblige the State to take appropriate measures, within the limits of its resources, to ensure that PWDs realise their full mental and physical potential, including measures:

·        enabling them to become self-reliant

·        enabling them to live with their families and participate in social, creative or recreational activities

·        protecting them from exploitation and abuse

·        giving them access to medical, psychological and functional treatment

·        providing them with special facilities for their education and, if they need it, with State-funded education and training.

International law

Zimbabwe is a party to two international instruments dealing specifically with PWDs:

The UN Convention on the Rights of Persons with Disabilities, which obliges State parties to modify and abolish existing laws, regulations, customs and practices that constitute discrimination against PWDs.

The African Charter on the Rights for Persons with Disabilities, which mandates State parties to modify, outlaw, criminalise and campaign against, as appropriate, any harmful practice applied to PWDs.

We now turn to the Bill, to see how far it conforms with the Constitution and meets our international obligations.

Scope of the Bill

The definition of “person with a disabilities” (sic) in clause 2 gives the Bill a wider scope than the existing Act, covering people with long-term physical, mental, intellectual or sensory impairments that hinder them participating fully and effectively in society and exercising their fundamental human rights and freedoms equally with others.  The definition is adapted from the Convention on the Rights of Persons with Disabilities, which we mentioned above.

Commission for Persons with Disabilities

The Bill will replace the National Disability Board, established by the existing Act, with a Commission for Persons with Disabilities, most of whose members will be chosen by the Minister from panels of names submitted by organisations registered in the Register of Organisations of and for Persons with Disabilities (a new register that will also be established by the Bill).

The Commission’s functions will be much the same as those of the present Board:  the Commission will prepare a national policy for the “mainstreaming” of PWDs throughout society [though how the plan is to be implemented is not spelled out clearly];  it will have power to issue adjustment orders requiring premises to be altered to accommodate PWDs;  and it will be responsible generally for promoting the interests of PWDs.  In addition, the Commission will maintain registers, which we shall deal with now.

Registers

The Commission will be responsible for keeping two registers:

Register of Organisations of and for Persons with Disabilities

This register will be maintained by the Commission’s chief executive officer under clause 11 of the Bill.  The clause implies that organisations will have to be registered on this register in order to receive funding or benefits from the State.

Register of projects

The Commission’s chief executive officer will maintain this Register under clause 12 for projects qualifying for assistance from the State.

Comment:  If organisations and projects must be registered before they can get State assistance, these registers may be barriers to the realisation by PWDs of their rights.  The registration procedures are fairly involved, and informal organisations will be not registrable.  In addition, organisations will have to be registered as private voluntary organisations before they or their projects can be registered.

Disability Fund

The Bill proposes to establish a fund called the Assistance Fund for Persons with Disabilities.  The Minister will be the trustee of the Fund and the Commission will administer it subject to directions from the Minister.  The Fund will get its resources from parliamentary appropriations as well as gifts and grants from well-wishers.  It will be applied to establishing and running vocational training centres, rehabilitating PWDs, providing scholarships, and generally for the welfare of PWDs.

Comment:  The Fund is a worthy initiative, but the roles of the Minister and the Commission in managing the Fund are not demarcated clearly enough and may involve the Minister in what should be the Commission’s business.  It also raises questions about the appeal process:  if the Commission rejects an application for assistance from the Fund the applicant will be entitled to appeal to the Minister under clause 55 of the Bill – yet the Minister as trustee of the Fund will be an interested party.

Rights of PWDs under the Bill

The Bill will treat PWDs not as objects of charity but rather as people entitled to equitable treatment and the same fundamental rights as everyone else.  It will also expand the specific rights of PWDs beyond those accorded to them by the existing Act.  In particular:

·        The Bill recognises that parents of children with disabilities should receive support, training and capacity-building to ensure the children enjoy their rights.

·        Access to justice will be enhanced by giving PWDs a right to free or affordable legal aid.

·        PWDs will have a right to education in their preferred language and access to free primary and secondary education.  This right will include learning a sign language to promote linguistic identity, and learning other forms of communication such as Braille.

·        Their right to work on an equal basis with others, to be employed in the public sector and to exercise their labour rights will be enhanced.  Within two years after the Bill becomes law, at least two per cent of the employees of Government institutions and parastatals employing 50 employees or more will have to be PWDs.  Private corporations that employ PWDs will get a tax credit.

·        The Minister will have to ensure that State entities whose decision-making bodies have five or more members include at least one PWD among those members.

Comment:  The Bill goes a long way to flesh out the constitutional rights of PWDs.  The recognition of parents of PWDs is a progressive provision because children cannot independently enjoy their rights.  Bringing PWDs into decision-making bodies is particularly welcome as an important step towards mainstreaming disability.

All the measures will require diligence and robust monitoring on the part of the Commission and Minister for them to be effective.  Some are legally questionable, however:  the requirement that PWDs must be included in all decision-making bodies may be unconstitutional if it is applied to bodies such as the Cabinet.  Other measures will need to be refined:  for example, tax credits for “private corporations” should extend to non-corporate bodies such as law firms.

Adjustment Orders

Under the existing Act, the National Disability Board has power to make “adjustment orders” – orders compelling owners of premises and providers of services to alter their premises or services to make them reasonably accessible to PWDs.  The Bill will give the same power to the Commission, but will go further and allow interested persons, including the Zimbabwe Human Rights Commission, to approach the High Court for adjustment orders against owners of premises and providers of services.  The Bill also omits a provision in the existing Act which prohibits the issue of adjustment orders against medical facilities without the consent of the Minister of Health, and against educational institutions without the consent of the Minister of Education or Higher Education.

Comment:  These measures are welcome and will go a long way to give PWDs access to buildings and services.  However, the Bill does not prohibit the construction of inaccessible buildings to which PWDs should properly have access.

Conclusion

Apart from the issues we have already mentioned, there are some further ones that need to be attended to:

·        The Bill will come into force as soon as it is published in the Gazette as an Act.  This will cause problems because there will be no Commission to make the new Act operational.  The Bill should have a delayed date of commencement so that the new Commission can be established.

·        The Bill will not save in force things done under the existing Act, such as adjustment orders issued by the National Disability Board.  These will lapse unless a savings provision is inserted in the Bill.

·        The definition of “disability” in clause 2 may be aspirational but it is legally meaningless.  It should be deleted.

·        There are typographical errors which should be corrected.  We have already noted the definition of “person with a disabilities” in clause 2.  The reference to “Part VII” in clause 50 is another error.  There are many more.

·        That said, the Bill is an admirable one which will advance the rights of PWDs and, if fully implemented, will greatly improve their enjoyment of the rights to which they are entitled under the Constitution and international law. We must emphasise the words “if fully implemented”, however, because unless the new Commission and Fund are given all the resources they need, the Bill may become little more than a virtuous aspiration.