Defining Equality: Namibia’s Supreme Court and the Rights of Persons with Disabilities

By Kevin Lee Pinkoski

Equality in Namibia and the Rights of Persons with Disabilities:

A young country – with a new constitution – needs an active judiciary that takes every opportunity to develop a more nuanced understanding of its constitutional principles. This is the context of Namibia, a country that, in 1990, won independence from South Africa after years of racial division implemented by apartheid, and, in the same year, adopted a new constitution. But many terms in this new constitution have yet to be comprehensively nuanced and defined through jurisprudence. As the case Alfred Mew Visser v Minister of Finance & 3 Others shows, Namibia’s judiciary continues to miss opportunities to describe both the nuances of equality as the term is present in the constitution and its relationship to the rights of persons with disability.

The nuance that is lacking from Namibian jurisprudence on equality is if the term is only limited to formal equality, where the law treats all individuals equally, or if it includes substantive equality, where the law recognizes individual differences in order to make everyone equal. Namibia’s constitution prioritizes equality, yet Namibia’s Supreme Court has failed to provide an accurate explanation of what is meant by the term in the constitution — if it is limited to just formal equality, or if it can be expanded to substantive equality. The judiciary must play an active role in addressing these ambiguities. Consequently, disabled individuals in Namibia are left without true equality.

Alfred Mew Visser v Minister of Finance & 3 Others:

The Alfred Mew Visser case is about the rights of persons with disabilities. Alfred Visser was in a severe car accident and, as a result of his injuries, he was blinded in both his eyes. Because of Namibia’s no fault insurance scheme, he was awarded damages according to The Motor Vehicles Accident FundThe Fund sets caps for damages, and Alfred Visser challenged these caps under the claim that they do not adequately provide the financial support necessary for him to live with a permanent disability. The Supreme Court did not find the case in his favour because of the financial implications of going beyond the caps established in The Fund.

Alfred Mew Visser characterizes a clear problem in the Namibian judiciary; the term equality in the Namibian constitution has not been accurately defined by Namibian jurisprudence. Yet the Supreme Court’s response inAlfred Mew Visser, ignorant of this problem, focuses only on the financial limitations of The Motor Vehicles Accident Fund. My criticism is that, regardless of the outcome of the case, the Supreme Court needs to actively seek out opportunities to elaborate and clarify Namibia’s constitutional principles. Because of this, the Supreme Court’s judgment in Alfred Mew Visser is a missed opportunity to provide a nuanced understanding of what is meant by equality – this is detrimental to Namibia’s most vulnerable populations.

Equality in the Namibian Constitution:

Strong memories of the heroes of the liberation struggle, such as Toivo ya Toivo, continue to inspire Namibians like Fazilla to fight for equality.

Reflective of years of apartheid – when inequality between race was implemented by law – Namibia’s new constitution prioritizes equality for all its citizens. The preamble to the constitution sets this mandate, affirming that “the inherent dignity and of the equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace.” Namibia, as a new country, founded itself on the principle of equality.

Namibia’s standard of equal rights for all is expanded upon in Art. 8: Human Dignity and Art. 10: Equality and Freedom from Discrimination of the Constitution. Art.8(1) states: “The dignity of all persons shall be inviolable”, and Art. 8(2)(a) elaborates: “In any judicial proceedings… before any organ of the State… respect for human dignity shall be guaranteed.” Art.10(1) reads: “All persons shall be equal before the law,” and Art.10(2) continues: “No persons may be discriminated against on grounds of sex, race, colour, ethnic origin, religion, creed or social or social status.”

The constitution and current government policy indicate an ambiguity between formal and substantive equality in Namibia. While Art. 10(1) establishes the terms of formal equality before the law, Art. 10(2) creates the potential to use the law to make all individuals equal through substantive equality.  Art 10(2) indicates the potential for substantive equality as it would be discrimination not to make individuals equal who suffer under the prohibited grounds for discrimination in Art 10(2). The emphasis on equality in both the preamble of the constitution and in Art. 8 show Namibia’s prioritization of equality for anyone within Namibia’s borders. Furthermore, Namibia has embarked on clear projects to create substantive equality for marginalized populations, such as economic empowerment initiatives and gender equality programs. There is a clear ambiguity in what is meant by equality that must be addressed by Namibia’s Supreme Court.

Neither Art. 8 nor Art. 10 provide a nuanced understanding of what is meant by equality. Because of this, Namibia’s lower courts have been limited to an understanding of equality that only evaluates the formal equality of all individuals before the law, not the substantive equality necessary to make all individuals equal. Furthermore, as Alfred Mew Visser shows, the Supreme Court has failed to take any opportunity to define any nuances to what is meant by equality as it is presented in the Namibian constitution. Because of this, Namibia has yet to create an environment of true equality for persons with disabilities.

Disability in Namibia and Alfred Mew Visser:

Although empty on the weekend, the Katatura Disability Plaza houses numerous organizations that promote equality for people with disabilities.

Namibian law defines disability as “a physical, mental or sensory impairment that alone, or in combination with social or environmental barriers, affects the ability of the person concerned to take part in education, vocational, or recreational activities.” This definition is elaborated upon to include the “loss or limitation of opportunities to take part in the normal life of the community on equal level with others due to physical or social barriers.”

The Namibian constitution does not list disability as a prohibited ground for discrimination in Art. 10(2). Thus, for disability to be adequately recognized or discussed in terms of equality, the Namibian judiciary must establish that disability is included under the prohibited grounds for discrimination in Art. 10(2).

Disability has a clear consequence on an individual’s ability to participate in society, it has a detrimental effect on the following grounds prohibited by Art. 10(2) of the constitution: social status, economic opportunity, and personal prosperity. The statistics are clear: 17.7% of urban disable persons do not attend school, 82.3% of rural disabled persons do not attend school, 42.5% of disabled persons work in agriculture and fishers, with 14.6% in elementary occupations. 70% of disabled persons live in homes without a mortgage. The reality is explicit – being disabled in Namibia is a limit on the potential of an individual to achieve success and prosperity.

In the example of Alfred Mew Visser, Alfred Visser has suffered a permanent disability because of the accident: he is blind in both eyes; he has a physical impairment that will impede his potential to participate in everyday activities and in work opportunities; he will need to learn a new system of reading. He is likely to be to be limited, as Art 10(2) of the constitution explains, to a “social status” because of his disability.

Art. 8 and Art. 10 of the Namibian constitution ensure a conducive environment to the full and equal participation for all in society, including those with disabilities. But, as was previously alluded to, because neither Art. 8 nor Art. 10 provide a comprehensive definition of what is implied by equality, the Supreme Court is required to give such an interpretation. The Alfred Mew Visser case is a clear example of a missed opportunity to give a more nuanced explanation of what is meant by equality, a missed opportunity that will be detrimental to disabled people – one of Namibia’s most vulnerable populations.

Formal Equality – Equality as applied by the Supreme Court:

Namibia’s clear wealth disparity, apparent in the village of Hoachana, is continually being addressed in the pursuit of equality.

Namibian jurisprudence has yet to provide a nuanced understanding of what is meant by equality in the Namibian constitution. The problem is that, because of the limited wording of the Namibian constitution, there is no need for courts to expand beyond an understanding of equality that is restricted to formal equality. Formal equality is established only by equality before the law. It applies blind rules to every situation, no matter what social differences may be involved. If the Namibian constitution ensures only formal equality, the Namibian Supreme Court should define that distinction. While it is possible to develop the language of formal equality in Alfred Mew Visser, it is important to recognize that the case turns on the financial limitations of The Motor Vehicle Accidents Fund, and not the issue of equality.

In Alfred Mew Visser, the court employs a view of formal equality before the law, as all claimants are held to the same limits of compensation, regardless of either their individual characteristics or the consequences of an accident. Alfred Visser’s disability can only be taken into account provided it falls under the limits of the caps established in The Motor Vehicle Accidents Fund, and it cannot be adjusted to take into account the particular needs of certain claims. The caps employ the same legal equality to all — the same formal equality before the law — and thus the court can resolve that “No distinction is made between claimants at all” since “all claimants are in the same position when it comes to the capping of their claims and are thus equal before the law.” No differentiation is made between individuals and their needs. If this is what is meant by equality in the Namibian constitution, the Supreme Court should define equality in this way in its decision.

Formal equality could, however, provide the means to address the necessary compensation required to ensure equality for disabled individuals. Since, to establish formal equality, the court adheres to “equality before the law,” it is the actual law itself that would have to change. The Motor Vehicle Accidents Fund would have to be amended to provide for a recalculation of damages for disability, for injuries that cannot be recovered from and that requires an individual to live their life in a different way. In this way, the court could still employ formal equality before the law, but the law itself would have to be expanded to provide for the necessary compensation to an individual who has been affected to a new “social status” (as Art. 10(2) of the constitution establishes) as a result of an accident. The Namibian constitution could imply formal equality in this way, but the distinction would have to be made by the Supreme Court.

The Potential for Substantive Equality in Namibia:

The Katatura Hospital is one of many public hospitals that provides medical services to Namibians.

In Alfred Mew Visser, substantive equality would imply that, because Visser has been placed in a different social status as a result of the disability incurred in the accident, the court could employ a definition of equality that allows for increased compensation. While the court establishes that The Motor Vehicle Fund ensures that “equally positioned persons are treated equally”, it fails to consider that some individuals will require more support in order to be treated equally. The reality is, as substantive equality reminds us, that the results of an accident do not leave all individuals “equal”, and that some, especially those with long term disabilities, will require more compensation. If the court had chosen to establish substantive equality as a part of the Constitution’s definition of equality, the court would allow for the law to be adapted to Alfred Visser’s specific case.

Furthermore, the court would establish the necessary precedent to employ substantive equality when necessary to ensure that the law can be adapted to provide what is needed for any individual to achieve equality. This is the missed opportunity of the Supreme Court, they failed to recognize the reality that equality before the law does not ensure that the law has equal effects on all individuals. Consequently, in order for the law to allow that all individuals can achieve equality as a result of the law, a substantive understanding of equality should be employed. Here, the Supreme Court has failed to provide for a more nuanced, and more just, understanding of equality that takes into account an individual’s unique needs. Alfred Mew Visser is thus a missed opportunity to define equality.

Conclusion:

Namibians, especially Namibia’s most vulnerable population, must again wait for the Supreme Court to develop a nuanced understanding of equality. Namibians are left with ambiguity as to if equality goes beyond formal equality to address substantive equality, thus allowing for the prohibitions on discrimination in Art. 10(2) to be extended to unlisted ground. It is, as Art. 10(1) reminds us, that “all persons shall be equal before the law” – so why stop short of protecting Namibia’s vulnerable populations?

The Supreme Court should be capable of providing the necessary jurisprudence to clarify and develop the constitution. The Supreme Court cannot be limited by state resources or policy in its decisions, it must be capable of balancing these limitations with the necessity of equality. The nuances in the term equality have yet to be defined by Namibia’s Supreme Court, and the Court continues to miss opportunities to add the necessary nuances. Defining these nuances is, after all, the role of the judiciary.

 

Human rights monitoring in DF, Mexico

2015-Boychuk-ClaireBy Claire Boychuk

It smells of cleaning chemicals and urine. Outside, a courtyard in the middle of the hospital explodes with tropical colours; red hibiscus, yellow sunlight. Inside, the colour of loneliness is gray-blue. The images will haunt me later: this man with calloused skull and twisted ankle has lived in this metal crib for fifty-two years. A sound like a zipper from the crunching jaw of a little boy whose arms are tied in bed sheets. Screams and rocking wheelchairs.

Downtown, Mexico CityI shadow our medical expert and record her observations in my notebook. Age, treatment, diagnosis. We ask, how many hours a day is she restrained in this chair? Do the patients ever leave? Do they have families? And sometimes, are the women sterilized? Between me and this great suffering is my notebook. Later we will type up these notes, connect facts and law, cite UN conventions, write letters and reports demanding that this torture end.

This is the cadence of human rights monitoring with Disability Rights International (DRI) in Mexico City. It’s hard but meaningful work. By July, much of this evidence comes together in the form of a report, No Justice: Torture, Trafficking and Segregation in Mexico. Within hours the report is picked up by every major news outlet in the city. Soon after, ABC News airs a report on DRI’s yearlong investigation into shelters for children and adults with disabilities in Mexico City. The Mexican government responds, promising to end the use of restraints and cages. This is an historic victory. DRI has been advocating for change in Mexico for over twenty years.

I leave Mexico knowing that there are still so many notebooks that could be filled with the stories of children and adults who have survived torture and abuse, who may never see justice or redress. I leave with a heightened awareness that there is so much more work to be done in Mexico and around the world to guarantee that this generation of persons with disabilities and the next live in a world free of torture. But I also take with me a simple insight that seems to be at the heart of DRI’s work. When you begin from premise that all people are entitled to live in dignity, the only logical conclusion is that change is necessary.

 

Herod’s Law: Adventures in Mexican Corruption

2013 Emily Hazlett 100x150By Emily Hazlett

Despite all the work I’ve been doing with Disability Rights International and the endless things to see and do and eat in Mexico City, at some point I found myself in the back seat of a car with seven friends, racing along a cliff-side highway beside the Pacific. I had just arrived in Acapulco that morning when a friend invited us to squeeze into his car and go get some breakfast. Life was nothing but sun and ocean and the promise of huevos rancheros, until we were pulled over by a municipal police officer who threatened us with four hundred of dollars worth of fines for driving infractions.

Now I could probably accept that it’s illegal to be seven people in a car. You may even be able to convince me that seat belts are mandatory. But then apparently we had also run a red light – and we had almost killed an innocent pedestrian in the process. Our list of infractions was limited only by the cop’s imagination, which was running particularly creative on account of all the sunshine.

Eventually we were passed a colourful pamphlet on traffic infractions, published sometime in the 1980s. The pamphlet was provided, not as a legal basis for our infractions, but so that we may have a place to safely hide our pesos while handing them over. Given that my friend could not get his license back without paying the bribe, we ultimately negotiated a $150 ‘fine’ that we paid between the seven of us.

A few days later I was in a human rights working group meeting with representatives of the government (all well-dressed men) and representatives of NGOs (all inspiring young women). We were discussing strategies for improving conditions for persons deprived of liberty in state institutions. A noble mission, but I can’t help but wonder how much impact our efforts will have in a country where the police can easily extort citizens in broad daylight under the guise of law enforcement.

My experience was actually quite tame for the state of Guerrero, which has become one of the most dangerous in Mexico since drug cartels started moving in. Many communities are distrusting of the police, accusing them of conspiring with the cartels. These communities have established their own vigilante justice groups, but these groups don’t work under any official authority, and as a result have no monitoring or oversight.

Our crazed driver, Frank, enjoys the particularly nefarious career of the professional artist: http://franciscomunoz.tumblr.com/

Our crazed driver, Frank, enjoys the particularly nefarious career of the professional artist: http://franciscomunoz.tumblr.com/

And it’s not only Mexico’s legal institutions that are suffering; estimates put the price of bribery and corruption at around $50 billion a year, or 9% of the GDP. Known as mordidas (bites), a Mexican family might spend up to $100 a year on bribes, in a country with an average annual income below $10,000.

When I got home from Acapulco I looked up the driving laws in the state of Guerrero. Turns out that there’s nothing about maximum number of passengers in a car, and seat belts are only mandatory in the front seat.

There is something about studying law in Canada that presupposes an independent justice system, and that takes for granted the rule of law. For only $150 I was able to buy myself a reminder that this isn’t the case everywhere, and that Herod’s laws of corruption and arbitrary abuse of power are alive and well in Mexico.

“And children live there?” Abuse in a Guatemalan Psychiatric Hospital

2013 Emily Hazlett 100x150By Emily Hazlett

What to do with Guatemalan children and teens who are in need of emergency psychiatric services? This was the question that was put to me on my second day of work at Disability Rights International, in Mexico City.

My first day was spent reading about what currently happens to them. Children and teens who suffer some kind of acute mental health crisis are often placed in Federico Mora Psychiatric Hospital for adults in Guatemala City. Patients there can be tied up all day, put into isolation, receive little to no medical treatment, have no clean water and not enough food, and are abused physically and sexually by the guards. The women remain permanently locked up in a small ward to protect them from being assaulted. The hospital, which is already located in the most dangerous neighborhood in the city, is also next to the biggest jail in Guatemala. As such a number of criminals are also housed there, meaning that there are always armed guards on the premises. Staff who witness abuse are afraid of denouncing it, since a number of the perpetrators, who essentially run the hospital, have ties to Central American gangs.

And so Disability Rights International has been petitioning the Interamerican Commission on Human Rights to protect the patients in the hospital (Roger Bill chronicled the beginnings of that petition last summer on this very blog). The Interamerican Commission has now asked us for alternatives to hospitalization for children with acute psychiatric problems, a request that has thrown me into the very new world of urgent care child psychiatry.  I have been drafting a request that the children remain, as much as possible, within their families (a practice that is increasingly recognized as both cheaper and more effective in Canada and the USA).

www.disabilityrightsintl.org

While the subject matter of my work is often difficult, the atmosphere in DRI’s small office remains remarkably positive. My colleagues are always happy to recommend weekend trips, pretend to understand my Spanish, and offer tips for tackling the insanity that is a metro system serving 22-million people at rush hour.

I feel extremely fortunate to be working with DRI on this project to protect the over 300 people with disabilities arbitrarily and dangerously detained at Federico Mora Hospital in Guatemala City. At the same time, I’ve just learned that DRI will soon be acting as amicus curiae at the Mexican Supreme Court, defending a young man with Asperger’s Syndrome who has been placed under tutorship. The case will hopefully set a new precedent in Mexico that will help people with disabilities maintain their legal capacity as a rule rather than an exception. In short, it’s an exciting time to be working here, as there are a number of really important projects going on in the office, and lots of work to be done.

 

Abandoned and disappeared: the state of human rights violations for persons with disabilities in Mexico

I have been in Mexico City for two weeks now working with Disability Rights International’s Latin America office and it has been an eye opening experience. The rights of persons with disabilities (PwD) are often swept aside, and PwD are frequently treated either as wards of the state or drains on social welfare, when they are just as deserving of equal recognition before the law. People with psycho-social disabilities are particularly vulnerable to exploitation and abuse, as they are frequently denied their legal capacity to make even the most basic decisions about their lives. In Mexico as in many other places, PwD are time and again abandoned to inhuman treatment in isolated psychiatric institutions.

For a popular culture reference you might imagine the novel or film One Flew over the Cuckoo’s Nest. The work remains a classic reminder of the treatment of mental patients in the USA during the 1960’s. The film portrays deplorable treatment of patients; they are tied to beds, heavily sedated, stigmatized, patronized, and at the end of the film the protagonist McMurphy is lobotomized. While the work remains a timeless reminder of psychiatric institutions of the past, conditions today are far worse in much of the world.

DRI’s Mexican office published a report in 2010 documenting much of the inhumane treatment that PwD suffer in state and private institutions, illustrating the various violations of local and international law. The report entitled “Abandoned and Disappeared, Mexico’s Segregation and Abuse of Children and Adults with Disabilities” examined institutions in five Mexican states and in the Federal District, uncovering gross human rights abuses. Beyond violations of well-established international conventions such as the UN Covenant on Economic, Political, and Social Rights, the UN Convention Against Torture, the American Convention of Human Rights, Mexico’s treatment of PwD violates many provisions of the recent UN Convention on the Rights of People with Disabilities (UNCRPD) which Mexico was instrumental in creating and which it ratified in 2007.

The key findings of the report are sometimes difficult to read. The first finding is that children with disabilities are disappeared and trafficked. The Mexican department of Integral Family Development is in charge of registering the admission of patients to state facilities, but in reality no such records are kept and children disappear into the system never to be found again by their families. For example, Ilse Michelle Curiel Martinez was placed in an institution at the age of six, despite her grandmother offering to take the child. When the parents went to look for Ilse at the Casita del Sur where she had been placed, she had disappeared. 22 other children have supposedly disappeared from the same institution, likely victims of child trafficking.

The next key finding has to do with inhumane treatment of patients which is at least cruel and unusual, and in many cases should be classified as torture. In state hospitals, patients are permanently tied to beds and wheelchairs, in some instances for most of their lives. These patients suffer muscular and skeletal deformations, are deprived of stimuli, are at risk of requiring amputation of limbs that receive poor circulation, and the patients are frequently left in their own waste for long periods of time. In some cases where physical restraints are deemed insufficient, patients are subjected to heavy sedation and even psychosurgery such as lobotomies.

Many other patients (often the majority) could easily live in the community with some support, but either their families are not willing to take them in, or other reasonable accommodations is not offered. These patients languish in institutions for a lifetime, receiving no treatment, habilitation, or rehabilitation. They are warehoused. To make matters worse, their living conditions are inhumane and degrading. Sanitation is usually abysmal, patients are malnourished, under-clothed, and when they are bathed there is typically little to no privacy.

To make matters worse, patients lose all legal and practical control over their lives. Legal capacity is held by their families or the director of the institutions where they are kept. Decisions about treatment, sexual health, rehabilitation or therapy, are all outside their control.

The conclusion of the report is that PwD should be afforded their right to live within the community as provided for by article 19 of the UNCRPD, and a process of de-institutionalization should start immediately. More generally, PwD must be provided the key rights guaranteed by the UNCRPD and other human rights conventions. The Mexican state is falling far short of its obligations under domestic and international law.

The DRI report gives some idea of the subject matter I will be dealing with this summer. Since arriving in Mexico I have been helping with this year’s Zero Project Report, a study of how the UNCRPD is being implemented across the world, what barriers exist, and which practices have worked in advancing its objectives. The Dutch Essl Foundation has sponsored the study, which seeks to focus attention on states which are not living up to their obligations, and to suggest practices that have worked in others places to overcome obstacles. In the near future I will also be working on a project relating to human rights abuses in Guatemala, and on a proposal to reform the Federal District’s civil code. In the coming weeks I hope to learn more about how the rights of persons with disabilities can be protected and I hope to tell you more of the work we’re doing.

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