HomeOpinion & AnalysisDisabled Persons Act defective

Disabled Persons Act defective

However, contrary to what the Minister of Labour and Social Welfare, Ms Paurina Mpariwa, has recently said during the commemoration of the International Day of Persons with Disabilities held at the Harare Exhibition Park, the author is of a strong view that the DPA has been overtaken by events at the international level and needs to be replaced by an entirely new Act. What follows are some reasons why the DPA should be scrapped from our laws:

The term “disabled persons” which is used by the Act is unpleasant as it reflects a medical and diagnostic approach to disability which ignores the imperfections and deficiencies of the surrounding society. The terminology used by the Act is therefore at variance with that used at the international level which is “persons with disabilities.” It is submitted that the term “persons with disabilities” include contextual factors like the disabling social and environmental factors.

In the DPA, a disabled person has been defined as a person with a physical, mental or sensory disability, including a visual, hearing or speech functional disability, which gives rise to physical, cultural or social barriers inhibiting him or her from participating at an equal level with other members of society in activities, undertakings or fields of employment that are open to other members of society.

This definition fails to capture the fact that disability is not only limited to individual impairments but also to barriers caused by both attitudinal and environmental factors.

The DPA establishes the National Disability Board (the NDB) which is empowered to issue and serve adjustment orders to ensure access by all persons with disabilities (PWDs) to mainstream public services. The NDB may serve an adjustment order requiring the owner of the premises to which members of the public are ordinarily admitted to or the provider of public services to undertake action at his/her own expense to secure reasonable access by PWDs.

Although the issue of adjustment orders is appreciated, there is a fundamental weakness presented by the Act. This is the fact that the NDB is ineligible to give adjustment orders to state hospitals, clinics, nursing homes, schools or educational training centres without the consent of the relevant minister of the institution concerned.

This has resulted in many government workplaces, magistrates’ offices and state recreational facilities being inaccessible to PWDs. As an example, it is very difficult if not impossible for PWDs to access government offices in some parts of the country given the fact that there are no guiding rails, the elevators have no recorded voices for persons with visual impairments and are too narrow to accommodate wheelchairs, and the toilet cubicles are not convenient for persons with physical disabilities.

It was going to be a different case if the Act had adopted a similar provision like that of the United Nations Convention on the Rights of Persons with Disabilities (the CRPD) which provides for the identification and the elimination of obstacles and barriers to accessibility of all buildings or facilities open to the public.

What of inaccessible roads? — This is the raining season and virtually all roads in various cities and towns have pot holes (or gullies); how are persons on wheelchairs supposed to enjoy their right to free movement? The Act needs to address this.

Coming to the critical area of employment,— it is saddening to note that the Act does not mention the right to employment of PWDs. The Act should have provided for some incentives to employers who employ PWDs like partial tax exemptions.

The Act also left unaddressed the issue of expensive and inadequate supply of aids and appliances like mobility aids, devices and prosthetics. Take for example persons with albinism, the major barrier is that of very expensive and inaccessible sunscreen products including skin lotions. The Act was supposed to make it clear that it is a government obligation to subsidise the purchase of aids and appliances for PWDs which are in short supply and are very expensive.

The Act further fails to provide for the participation of PWDs in disability issues thereby defeating the clarion call of the disability movement that is “nothing without us about us”.

There are also no formal policies, strategies and agreed standards to monitor the implementation of the Act. In sharp contrast to the best standards at international level, the DPA does not address the plight of women with disabilities, children with disabilities, old people with disabilities and persons with multiple disabilities who are doubly marginalised. All this leads to an inescapable conclusion that the DPA does not provide an environment that is conducive for the adequate realisation of the rights of PWDs and should be replaced by an entirely new Act.

BY ESAU MANDIPA

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