adminthe government, they will have taken an extreme and undiplomatic position. According to this school of thought, persons with disabilities must stop behaving like people at war and appreciate what has been done for them.
This argument falls after the briefest examination.
For how can one justify in a democratic state, the socio-economic and political gap between persons with disabilities and their non-disabled counter parts in Zimbabwe? How can one justify the lower status occupied by persons with disabilities in Zimbabwe as compared to others with disabilities in the other parts of the region?
One simple way of measuring government’s commitment towards any issue is through looking at the law with a view to see how far it is being enforced.
Section 3 of the Disabled persons Act, which is one of the pieces of legislation best exposes a dangerous attitude of the government towards disability.
Section 3 of the Disabled Persons’ Act states that; “there shall be a director for Disabled Persons Affairs Whose office shall be a public office and form part of the public service”.
Since 1992 when the Act was passed, regrettably, this office has never been occupied. A reading of this section would imply that there should be a Department of disabled persons affairs for indeed when the office of a director is created, there must be a department under it.
What is terribly unfortunate however is that disability issues are still largely under the department of social services and what it has done is to establish the office of the deputy director responsible for disability and rehabilitation. There is a need to therefore, tackle the legal challenges associated with the approach taken by the government. At law, the use of the word “shall” should be taken more seriously.
This word is what is called a peremptory word. This implies that when enforcing a law with such a word, those responsible are not given any discretion to deviate from the requirement.
Thus the section in question which states that “There shall be a director of disabled persons affairs” should not be misread as “There may be a director of disabled persons affairs”. The positivist definition of the law which is the most acceptable in many democracies including ours states in brief that law is a set of rules and regulations which are enforceable by the state. Thus law can not be law without enforceability. In this case, there is a clear rule enunciated in the act yet it has not been enforced and those responsible for this unfortunate situation are government officials. According to the positivist way of looking at it, the rule is rendered not a law because the state has not enforced it and the status quo has been maintained firmly for the past 19 years. The failure to comply with the section in question obviously engenders serious operational problems in disability development in the country. The department of social services is tasked with a lot of things including caring for the old, orphans, refugees and other groups. It is clear that disability can not get enough attention if bunched up with a lot of other groups. Persons with disabilities constitute at least ten percent of the population. Furthermore, disability is more than an issue of social welfare. Thus, failure to comply with this act is adverse to people with disabilities.
One inevitable question therefore is why has it been so easy that for 19 years there has been no compliance with the requirement of this act? This question triggers a host of other questions
l What is the attitude of the government towards disability if it finds it easy for nineteen years to complacently live in breach of the Act which it has enacted?
l Could it be so unfortunate that the Act was passed as a fire fighting measure?
l Could it be that our government had committed itself to something more than it was prepared to do on disability?
Indeed, unlike in gender, HIV and other issues, the government has not been able to demonstrate the proper level of seriousness on disability. Instead of taking a leading role on disability, our government has left disability in the hands of the private sector, largely in the hands of the gatekeepers of charity who in turn can not give space to persons with disabilities to meaningfully participate in the programs of the enhancement of their lives.The coming in of the inclusive government has not even brought the desired change because as we speak, the flagrant breach of the section in question continues unabated. To further compound the unfortunate and painful situation is the fact that for the past 20 or so years, most of the organizations of and for persons with disabilities have not been able to positively transform themselves from charity seeking organizations to human rights championing organizations.
Consequently, this has limited if not hampered their ability to hold the government accountable in so far as compliance with the section in question is concerned.
The civic society has not helped the situation as it has hardly mainstreamed disability in its programmatic processes and content. Therefore, as some of the organisations which claim to be standing for the rights of the people do their work, they hardly talk about persons with disabilities and they hardly have any knowledge on disability legislation in the country. In fact, to say the truth, when it comes to disability, some of those organizations throw away their human rights masks and join the gatekeepers of charity. Perhaps, the drafting of the new constitution could herald a new era in the development of disability in Zimbabwe.
l The writer of this article is a visually impaired Bulawayo based lawyer
Persons with disabilities now need to claim more than ever before, their space in the new constitution. Disability must be properly mainstreamed in such a way that who ever seeks to behave in the manner the government and the other private players have behaved in the past thirty years will find it impossible.
The constitution must make the state take a leading role in disability issues and the government must then create an enabling environment for all the other players.
It is clear that there is no need to make any apology.
Persons with disabilities in Zimbabwe do not have any other government except for the government of the republic of Zimbabwe.
As such, they are entitled to and deserve the seriousness from the government.
Why should the rules of both grammar and statutory interpretation change when it is an issue that concerns persons with disabilities?
When an act is clear that “there shall be a director of disabled persons affairs”, how does our government legitimately justify doing the opposite?
For the past 18 years, the government has been reading the act as; “There shall never be a director of disabled person’s affairs”.
Any conscious Zimbabwean either disabled or non-disabled must find this culture of non-compliance so disturbing and deplorable and forthwith start the process of urging government to comply.
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Online Reporter