By Michael Watermeyer
To be alive and among other people means that we are subject to regulation. There are important rules which govern our interactions with others. These are social, administrative and economic rules of engagement in the home; in the workplace; on the street or in the shops; whether interacting with government, or institutions or private individuals. They are the way things are done and they inform the way services and infrastructure is designed and provided.
Through the limitations of services and infrastructure therefore at a very practical level all of us have our freedom limited and our modes of behaviour are dictated by rules, which we must obey. This is the framework within which we as individuals operate, it very often stems from government, and it follows the guidelines provided by law and the social contract each of us abide by in the society within which we live.
It is commonly held that the intention of this regulation is to facilitate a healthy well-functioning society. Of course it is in the interests of any society to have order and to be productive — to engender a sense of security and to generate wealth. These are very important priorities.
But in free democratic societies like South Africa there is an additional dimension to the rules which provide for social, administrative and economic regulation. They must take cognisance of the rights of individuals, and in particular in South Africa must be informed by Chapter II of the South African Constitution, Act 108 of 1996, which contains the South African Bill of Rights. For people with disabilities of particular importance in that important document are the provisions on equality in section 9, and provisions on the limitations of rights in section 36. Relevant extracts follow:
“Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.” (Section 9.2, Chapter II, Act 108 of 1996, Constitution of the Republic of South Africa)
“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.” (Section 9.3, Chapter II, Act 108 of 1996, Constitution of the Republic of South Africa)
“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:
a. the nature of the right b. the importance of the purpose of the limitation c. the nature and extent of the limitation d. the relation between the limitation and its purpose and e. less restrictive means to achieve the purpose.” (Section 36.2, Chapter II, Act 108 of 1996, Constitution of the Republic of South Africa)
From the above one would imagine that in South Africa the way in which things are done, especially the way services and infrastructure are provided and are regulated by the state, would be geared towards doing what is necessary to ensure that disabled people are able to equally benefit from state infra-structure and services provided in terms of general laws and ordinances, and specifically those laws and ordinances providing for infra-structure and services designed for the general benefit of the populous, within the boundaries of the limitations laid out in section 36. This naturally would be especially where such an accommodation would be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom” (the relevant limitation in section 36).
Simply put, one would imagine that our Constitution means that wherever possible services, infrastructure and the consequent regulation of social, administrative and economic interactions (in short the way things work), would be structured to be as far as possible inclusive of disabled persons. Yes certainly, one would be forgiven for thinking that 20 years after the abolition of apartheid, and 16 years after the true birth of democracy in our country things would have begun to shift. And yet for disabled people, in the most fundamental ways, they have not. The way in which infrastructure and services are designed and provided (the framework which is absolutely key to daily social, administrative and economic regulation of the populous) remains patently and unambiguously discriminatory against disabled persons. To demonstrate this I will share just two recent very practical examples:
1. South Africa has dangerous roads. In response to this the state acts to ensure that appropriate measures are taken to ensure that pedestrians are able to cross roads safely. One of the primary ways of doing this is to install pedestrian crossings which use a traffic light signal to indicate to pedestrians that it is safe to cross the road. Since blind people are among the most vulnerable of pedestrians who need to cross roads safely it would seem “reasonable and justifiable” to fit audio signals to all crossings designed for use by pedestrians. (Especially since this is a relatively inexpensive exercise.)
And yet crossing the road for me as a blind person is patently dangerous. Daily I take my life in my hands straining my ears and guessing at traffic flow. While a few traffic signals are fitted with audio cues, with the exception of only the City of Cape Town (which is now equipping all pedestrian crossings) the policy is that these are done in “special cases only” and not as a matter of course. Indeed the feeling in most South African local authorities is that this provision is a benevolent gesture to the less fortunate (which could not be further from the possibility that crossing the road equally safely as fellow pedestrians may be a constitutional right). Each installation has to be motivated for, and if one is lucky then it is approved, in my personal experience more often than not this requires a great deal of motivation and is very often refused.
Surely from a simple reading of our Constitution it is obvious that we need to provide as far as is reasonable for all — pedestrian crossings are installed for general use — they need to be accessible equally to all pedestrians. It is a fundamental right that I should be able to cross roads built, maintained and administered by the state equally as safely as all other road users. Should I really have to beg local authorities to install audio cues on the most dangerous crossings and hope they will be approved, while all the time praying that I get across safely at the marginally less dangerous crossings? Recent interactions with the City of Johannesburg suggest to me that begging is exactly what they do expect me to do.
2. South Africa has many universities. These are organisations that are established by statute and are heavily subsidised by the South African fiscus. There is, therefore, a requirement that they act in accordance with the obligations imposed on the state to abide by section 9 of the Bill of Rights (the equality clause). One would imagine rationally therefore that such institutions would be required to provide equally for the education and employment of disabled persons with the only limitation being that the trouble taken in accommodating disabled students and staff must be “reasonable and justifiable”. Despite this my investigations show that demographic representations of disabled students and staff at most institutions remain formally unmeasured, however there is a general consensus that demographic targets remain hopelessly unachieved — this is a safe assumption because there is rather obviously only a handful of disabled students in each university — typically these are universities which enrol many thousands. (There are generally far fewer disabled staff than students) most institutions remain largely physically inaccessible and support for disabled students is little more than window-dressing. What one discovers all too readily are expensive disability service units serving a handful of students, and doing that rather badly.
It is completely shocking that I am able to quote the following from an email response attributable to a Unisa professor (received a few months ago in 2010) in respect of a very reasonable request for transport support by a blind Unisa student: “We made this arrangement — not because we have to or because we have an institutional obligation to accommodate students spare-time activities.” The “spare-time activities” were no such thing but was a workshop to which the student had been given a formal Unisa invitation. The professor goes on to say: “This is something that has to do with common decency and the way friends are treated.” Well perhaps it does professor, there is no law against paternalistic feelings towards disabled people, however, it also has to do with dignity and a constitutional right of disabled students to participate in formal university events. South Africa is a constitutional democracy with an enshrined Bill of Rights, it is no longer a paternalistic charitable state. Unisa most certainly had an obligation in this case, and it has nothing to do with “friends”.
And we can continue ad nausea down this path: Buildings which continue to be unnecessarily inaccessible; bills and other correspondence which are not provided in accessible formats for blind persons (often as simple as sending email correspondence instead of hardcopy snail mail; ensuring sufficient ramps down pavements or into buildings; Braille markings on lift panels; at least one toilet designed for disabled persons wherever toilets are provided to the public; marking the edge of the risers on steps so that partially-sighted people can see them; announcing stops on commuter trains so that visually impaired persons know what station they are at; ensuring that security personnel can appropriately offer assistance to disabled persons; adequate provision of sign interpreters at important events etc etc. It’s all available in the various codes of practice.
Why has the need to accommodate disabled people in respect of the infrastructure and services which regulate our daily lives, socially, administratively and economically not been addressed?
Certainly a great deal of the blame must lie with the state which has dismally failed to foster a proper understanding and ensure proper implementation of measures to accommodate the rights of disabled persons.
Secondly though there has been far too little activity around enforcing rights on the part of organisations claiming to represent disabled people. There have been one or two isolated actions, but in general disability organisations have had a tendency to collaborate with the oppression of disabled people rather than seeking their empowerment. This makes sense if one considers that it is much more challenging to raise money for the empowered than it is to raise money for the pathetic (dare I say their core business).
Thirdly, however, a great deal of blame must lie at the door of members of the disabled community who are all too ready to sell out the important cause of the advancement of disabled people in return for providing institutions with sham legitimacy. In this respect disability services at universities lead the way. Originally pioneered by activists and champions for inclusive education, they are now all too often staffed by gravy-trainers and Uncle Toms, and are generally under-representative of disabled people in their staffing. You can forget ever expecting them to fight for the rights of disabled staff or students. Maintained for the purpose, these units relieve institutions of higher learning of the obligation to provide proper support for young disabled people who have the potential to become professionals, and perhaps provide inspiration and mentorship for future generations. Typically ineffectual when it comes to providing real support, these units provide a diversionary target, a buffer to actions and criticism which may be levelled at institutions for their blatant discriminatory behaviour towards disabled people. They ghettoise disabled staff and students, separating them from the mainstream and providing legitimacy to prejudicial responses.
If as a nation we wish to live our ideals and become a country in which every individual can live with dignity and feel empowered and legitimate, then we need to begin with the way in which we design our services and infrastructure. We have to do things differently. By now it is most obvious that this is not going to happen of its own accord, we need champions. We need people who are ready and able to take on the challenge of enforcing rights for disabled persons through the courts. We need to press home the reality for those who design our world that we have constitutionally enshrined human rights, and that cognisance must be taken of these as and when services and infrastructure is planned. Social, administrative and economic regulation of the populous must take place in a manner which is inclusive of disabled persons. Finally, as a minority group in South Africa we as the disability community need to clean up our own backyard, we need to challenge or take charge of organisations which claim to represent us. We need to ensure that we are represented by heroes, not by Uncle Toms.
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