Developing juridical method for overcoming status subordination in disablism: The place of transformative epistemologies

by | Oct 18, 2019 | SAJHR, SAJHR V30 I2

Developing juridical method for overcoming status subordination in disablism: The place of transformative epistemologie

Authors Charles Ngwena

ISSN: 1996-2126
Affiliations: Professor, Centre for Human Rights, University of Pretoria
Source: South African Journal on Human Rights, Volume 30 Issue 2, 2014, p. 275 – 312

Abstract

The article contributes towards the development of a disability-conscious jurisprudence of equality that, in Nancy Fraser’s parlance, speaks to overcoming the ‘status subordination’ of disabled people. It uses transformative epistemologies of disability found in the social model of disability and feminism as synergic philosophical resources for imagining an expansive and democratic juridical domain of equality. Ultimately, it appropriates the epistemologies to construct syncretic legal method — disability method — as a normative approach for interrogating and remedying disability-related discrimination and inequality. In the process, the article explores the capacity of transformative epistemologies to enrich rather than supplant the jurisprudence of substantive equality developed by the South African Constitutional Court.

Global reasonable accommodation: How the convention on the Rights of Persons with Disabilities changes the way we think about equality

by | Oct 18, 2019 | SAJHR, SAJHR V30 I2

Global reasonable accommodation: How the convention on the Rights of Persons with Disabilities changes the way we think about equality

Authors Frédéric Mégret, Dianah Msipa

ISSN: 1996-2126
Affiliations: None; LLM (Law) Alumnus, Faculty of Law, McGill University, Canada
Source: South African Journal on Human Rights, Volume 30 Issue 2, 2014, p. 252 – 274

Abstract

This article assesses the potential of the notion of reasonable accommodation as included in the UN Convention on the Rights of Persons with Disabilities. Reasonable accommodation provides a unique case of a domestic concept that has been gradually diffused transnationally, is in the process of being thoroughly internationalised and ought now to be re-domesticated so as to maximise its impact. The record of its domestic implementation so far however is not very promising, at least in countries that do not already have experience with the concept. The article traces some of the conceptual obstacles to implementation of reasonable accommodation including the enduring allure of formal equality, disputes about the meaning of ‘reasonable’ and the related notion of ‘undue burden’, the need to evaluate who the obligation applies to, and how it fits within the immediate/progressive realisation dilemma.

Substantive equality and caregiver responses to discrimination against children with Disabilities in Orange Farm

by | Oct 18, 2019 | SAJHR, SAJHR V30 I2

Substantive equality and caregiver responses to discrimination against children with Disabilities in Orange Farm

Authors Rosalind Elphick, Jean Elphick, Zosa de sas Kropiwnicki

ISSN: 1996-2126
Affiliations: Research Fellow, University of the Free State; PhD Candidate, Development Studies and Anthropology, University of Johannesburg; Senior Lecturer, Development Studies and Anthropology, University of Johannesburg
Source: South African Journal on Human Rights, Volume 30 Issue 2, 2014, p. 221 – 251

Abstract

The right to equality for children with disabilities in South Africa is strongly secured by various binding international conventions, local legislative and constitutional provisions, as well as state policies designed for the practical implementation of this right. Nevertheless, caregivers of children with disabilities in Orange Farm, near Johannesburg, identify discrimination from family, community members and service providers as a leading issue affecting their lives. These caregivers form part of a Community-based Rehabilitation (CBR) self-help group that aims to empower caregivers of children with disabilities to become politically active and exercise agency in the realisation of their children’s rights. This article describes the agentic strategies that caregivers devise in order to access the right to equality for their children with disabilities. This case study examines caregivers’ constitutional literacy, self-efficacy, agency and the opportunity structures within which they operate. The environmental and attitudinal barriers described in the Social Model of Disability illustrate the opportunity structure experienced in Orange Farm — a quagmire of discriminatory belief systems, exclusionary practices, and an inaccessible justice system. The interdisciplinary notion of agency — as expounded by Gidden’s ‘Theory of Structuration’, Bandura’s notion of ‘agency as intentionality’ and Foucault’s ‘strategy of struggle’ in power relationships — provides the theoretical framework for describing caregivers’ strategies to overcome the barriers they face. These are presented against the backdrop of a detailed analysis of the content of the state’s obligation to promote equality. The article concludes with recommendations for making equality more accessible to those who arguably need this right the most.