In May this year, the government gazetted the Persons with Disabilities Bill, with the aim of repealing and replacing the 2006 act with a more progressive legislative framework. This bill results from engagement between the persons with disabilities (PWDs) in Uganda and the government, in a bid to achieving full realisation of both the 1995 Constitutional guarantees as well as domesticating the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). By gazetting the bill, the government is exhibiting her commitment in promoting the rights of PWDs.
The objective of the bill is to replace and reform the law relating to PWDs and to operationalise Article 35 of the Constitution. But many analysts feel this might not be achieved if the bill is passed in its current state. For instance, the bill refers to the operationalisation of Article 35 of the 1995 Constitution. Whereas this is not necessarily negative, disability experts find this prohibitive and limiting.
The rights of PWDs are human rights in the first place, and the essence of the bill should be to fully operationalize the Constitution in relation to PWDs. As a means of showing the urgency of the matter, PWDs, on July 11, presented a petition to Speaker of Parliament Rebecca Kadaga. A key aspect in the petition is affirmative action, which is enshrined under Article 32 of the Constitution.
A bill of this nature would be best-placed to operationalize the spirit of the Constitution as it applies to PWDs as a whole, as well as to domesticate the rights and guarantees under the CRPD. In this regard, therefore, the narrow focus on Article 35 of the Constitution is a substantial and essential shortcoming of the bill.
The bill also places emphasis on what private persons and entities should or should not do, rather than what the state should or should not do. The reference to private actors is very important, especially given the provisions of Article 20 (2) of the Constitution, which is to the effect that human rights must be promoted and respected not just by the state but by all persons.
This is important given that private actors have in the past been, and continue to be, responsible for some of the most violations of the rights of PWDs in Uganda. But placing emphasis on the duties and responsibilities, as well as potential culpability, of private actors alone amounts to abdication of government responsibility.
A case in point is that Section 6 of the bill (non-discrimination in the provision of health services) exclusively aims at private schools or institutions. There is only peripheral responsibility for the government in the context of schools that are actually ‘owned or aided by the government’.
This is a narrow conceptualization of ‘discrimination’ under this section in so far as it does not seem to incorporate the UNCRPD position, which recognizes that failure to provide reasonable accommodation itself constitutes discrimination. A similar trend is apparent with regard to Section 10 of the bill (Non-discrimination in provision of transport services), which is exclusively directed to private actors, with little regard to the affirmative responsibility that may arise for the state in this regard.
Where the obligations of the government are entailed or where an attempt is made to articulate a broad protection that includes both state and private actors, the rights are stated in narrow terms, which fall short of both national and international legal positions.
Section 7 (non-discrimination in the provision of health-services) is more progressive than Section 6, especially when it is read together with Section 2. But just like Section 6, the obligations are narrow ones, relating mainly to physical accessibility of the premises and to provision of accessible labour beds for pregnant women with disabilities.
The current bill, therefore, appears to be informed by fear of the economic implications that might be entailed by a bill that fully respects, promotes and protects the rights of PWDs. This is evident in the careful language employed in the current bill that is specifically aimed, as far as possible, to restricting the range and scope of obligations of governmental agencies with regard to the rights of PWDs.
In her response to the petition, Margaret Komuhangi, who received the petition on behalf of the speaker, acknowledged the gaps. She promised to facilitate the process of overhauling the current bill in order to meet the aspirations of PWDs. It is thus prudent that members of Parliament, especially those representing PWDs as well as DPOs, join hands to ensure the disability movement realises an effective legal framework. The writer is a communications manager at NUDIPU.
Source : The Observer