Neutral Conceptions of Disability Law

Isabel BaltzanBy Isabel Baltzan

As my internship with the the Instituto de Democracia y Derechos Humanos at the PUCP in Lima and the course on disability law comes to an end, I wanted to write out some final reflections.

A huge aspect of the course, beyond explaining how legal frameworks function with regard to disability, was determining what moral values underpin the laws in place. For example, we discussed the transition from a medical model of disability – wherein a disabled person is responsible for overcoming their disability through science and medicine (e.g. seeking to remedy a disability through consultation with a doctor, or medication, etc.) – to a social model of disability – wherein the world around a disabled person is what poses limitations to their existence (e.g. having stairs be more commonplace than ramps is a societal choice).

The underlying assumptions in these models are vastly different, as the medical model proposes an individualist approach to disability – and assumes it is always unwanted, a burden, a drawback. The social model, on the other hand, is much more collective – seeking solutions to barriers outside of just the disabled person and into society itself; this conception doesn’t assume that disability is inherently bad, or good; it just is, and we must work with it.

This neutral conception of disability is compelling, because it withholds judgement. Another topic we discussed in class at length was the many stereotypes and assumptions people have about disabilities – and I came to terms with my own. A super common one, for example, is the assumption that disabled people are pure, kind, angelic, harmless, vulnerable. This is a positive stereotype, but it is a stereotype nonetheless – one that can harm disabled people in different ways (see, for example, the discussion in the film Crip Camp surrounding sex, desire and sexual identity being forgotten when it comes to disabled people).

Having a neutral conception of disability is a good first step to conceiving of laws in a neutral way. Based on this idea, we had a later discussion in the class about the value society attributes to disabled lives, eugenics, and abortion. With Peru being an overwhelmingly Catholic country, its religious and legal heritage are intertwined, and abortion has been illegal since 1924 except for in cases where the mother’s life is in danger. There are criminal penalties to undergoing abortion for any other reason. There is a wrinkle in the law, however: the penalty for an illegal abortion is lower if the pregnancy resulted from a violent act outside of marriage, or non-consensual artificial insemination outside of marriage; and if the pregnancy is probable of resulting in the birth of a severely physically or mentally disabled child.

There is a ton to unpack within these provisions, but the only focus of our discussion was, ‘why do we punish people less for illegally aborting probably disabled foetuses, than when they abort probably non-disabled foetuses?’ The answer was tricky to defend, because the provision inheres that it is more reprehensible to abort a non-disabled foetus than a disabled one. Ergo, disabled lives are worth less than non-disabled lives. The only defense that came up was that disabled children can be a huge stress on their families, both emotionally and financially, and that many families are not ready to raise a disabled child – and it’s understandable that someone would want to go forth with abortion in that case. However, this defense quickly falls apart when it is considered in light of the entire set of provisions, which highly restrict when women can decide to abort at all, with the only valid excuse being ‘I am going to die if I continue with this pregnancy.’ The thorniness of the whole ordeal is because the law isn’t neutral – not with regard to abortion, nor the value of women’s choice, nor disability. So, we sought out solutions – neutral conceptions of law – that would remedy this issue.

As this discussion was unfolding I was fervently Googling away, trying to understand what the heck everyone was talking about when discussing therapeutic and eugenic abortions – I had only ever heard of abortion, tout court. And then it dawns on me – I’ve never heard of any of this because we don’t use any of these terms in Canada. Here, the law on abortion is …almost non-existent. R v. Morgentaler tells us that it’s an infringement on S. 7 to impose any. The choice is entirely left to people who get pregnant (and the health networks that service them, but that’s another issue). The law takes basically no position on abortion in Canada; it is as close to neutral as you can get.

I finally piped up and gave the example about Canada and its neutral conception of abortion, even if it maybe isn’t a realistic model for Peru to adopt. It’s a different country, with a vastly different culture and different values, and dropping an unwanted Canadian superiority complex into class with regard to abortion laws wasn’t my goal. I wanted to illustrate it as an example of a neutral conception of abortion, which in turn is also entirely neutral with regard to abortion of disabled foetuses. With a complete 180 of Peruvian abortion laws being a bit abstract, the professor suggested another non-discriminatory solution, which sounds radical on its face. She suggested that we stop giving health information about foetal disability to pregnant people – because if they don’t know this specific information, they don’t choose to abort based on this specific information. My knee-jerk reaction here was, ‘But people should know if they are going to have a disabled baby! Why wouldn’t just making the entire law neutral avoid the whole ‘aborting-disabled-babies’ thing?’ Well, what I hadn’t considered was that though we might think that we are not biased against disabled people, we still might be. Because, wanting to know if a child is disabled might be about preparing to welcome them into the world, but it might also be about deciding whether or not to abort them. That choice, in Canada for example, is the mother’s own, and there is absolutely value in that – I cannot stress that enough. Yet, we cannot discount the insidious power that our own social values have on this decision as well – because a country with a more neutral, or even positive, conception of disability wouldn’t condone the abortion of disabled foetuses only because they were disabled. Yet for now, in Canada, that definitely isn’t the case: if social norms dictate that disabled people are less worthy, nothing is stopping pregnant Canadians from aborting disabled foetuses because they subscribe to that stereotype.

My conclusion after mulling over this conversation for a few weeks isn’t stagnant. I’ve toyed with these ideas that make me a bit uncomfortable, and I’m not sure where I land. I think the best conclusion I can draw from this entire discussion is that, though some places boast neutral laws (e.g. my understanding of Canadian abortion laws), that doesn’t necessarily mean that they are morally neutral on ideas. Letting women choose is always the right decision in my opinion, but I had never considered the extent to which choice, as much as it feels like our own, is influenced by the world around us – and if the world around us devalues disabled lives, we are prone to devaluing them as well, and making choices that reinforce that societal stereotype.

Cheers,

Isabel

Peruvian Disability Rights and Civil Reform

Isabel BaltzanBy Isabel Baltzan

For my IHRIP experience, I’ve had the opportunity to join the Instituto de Democracia y Derechos Humanos at the PUCP in Lima — following along with a course on disability law and disability-related human rights issues in Peru, with work in an accompanying legal clinic. This is my first legal internship experience. I felt nervous and unprepared at first, and so, so far from any of my classmates over 6,000 km away.

I’ve been placed with a group of students, all in their last year of courses, and thrown into a course that expertly draws the historical and legal framework for rights granted (or not) to disabled people in the region. The course focuses on interesting and important ethical and moral debates that the law needs to answer for. I’ve quickly realized that though I’ve done a year of law school and a few years of living before that, I am in no way at the caliber of the people around me — not in legal knowledge (let alone in the Peruvian system), not in disability rights, nor in Spanish (never even mind legal jargon). So, I’ve spent a lot of time listening, filling in knowledge gaps on my own time, and mulling over the issues that are brought up.

I want to point out some thoughts I’ve had over the course of my internship, with it being my first dive into the world of human rights and disability. Granted, I never really know what’s going on — as an intern I expect to feel lost but doing it over email, WhatsApp and Zoom really adds to that feeling — so classes are always an interesting surprise, as are the cases we are presented. I’ve first learned that Peru has recently undergone an overhaul of its disability rights, and changes enacted in 2018 now allow people with disabilities to take advantage of their legal capacity — their ability to manifest a will, and move through the world much like everyone else does. This in turn has been accompanied by the phasing out of interdicción, a state in which a disabled person is deprived of their rights (under the guise of their best interest) and all legal decisions are handed off to a curator — with little to no oversight of how effective or respectful the process is. Nowadays, a system of apoyos (literally, ‘supports,’ but possibly better translated as advocates) and salvaguardias (safeguards) has replaced interdicción. The current system seeks to support disabled people in the exercise of their legal capacity, ideally while respecting and affirming their needs and wants. The new system also benefits from oversight granted by safeguards. A fantastic reform.

Now, of course, just because we say things are different doesn’t mean they actually are any different. Calling the same thing by another name is not progress unless actual change occurs. Progressive law (more progressive than lots of places — cough, California, cough, #FreeBritney), as amazing as it is when enacted, needs to be followed for anyone to reap its benefits. One issue that came up often was disabled people petitioning for rights at the court and the judge requiring them to get an apoyo to be granted what they might be asking — even though the disabled person seems completely able to exercise their legal capacity. Why? Perhaps the judges are used to working through curators with the disabled population. Perhaps, discrimination and stereotyping prevail. Possibly, a misunderstanding that something was supposed to change after 2018.

One case in particular comes to mind as an example of the darker side of reform. It had been moving through the courts for quite some time, and involved an older woman who had been under a curator — someone close to her — through interdicción, for many years. Unfortunately, the curator had passed and the woman was left in a sort of vacuum — the interdicción system had been overhauled, so she wouldn’t get another curator, and would need an apoyo if any legal issues came up, which eventually they did. Seems easy. Except, in order to begin the process of naming an apoyo for herself, she needed some documents from an office that wouldn’t give them to her because she needed legal representation through a curator (deceased and irreplaceable) or an apoyo (yes, a total real-life, awful catch-22). Funny enough, this situation is analogous to one described by Lon Fuller in his Eight Consequences of Failure — “(6) rules that require conduct beyond the powers of the affected party.” The solution was for the legal clinic to request a procedural curator for the woman just until she got an apoyo — but in the meantime, this woman has suffered serious violations to her rights to access to justice and to defense, leaving her effectively in a state of utter vulnerability. This can’t be the progress sought out by the reform, but it’s the reality of the situation.

The whole affair underscores for me how important it is to consider the impact of sweeping reforms that seek to improve a system — to consider who exactly is making a sacrifice for the benefit of all. It really highlights how important it is for the systems in place to move with reforms, instead of just letting reforms pass through them. This isn’t to say that my entire experience at the IDEHPUCP has been disheartening, though it’s unrealistic to assume it would all be joy and glory. The clinic does incredibly important work to educate students and the public on disability-related topics, and it is fulfilling beyond belief to be a small part of meaningful and impactful changes in people’s lives through the clinic. I’ll write more soon about the experiences of clinic work and some interesting debates we’ve had throughout the course.

Cheers,

Isabel

Disability, Assistive Animals and the Law

By Brittni Tee

In July, I participated in public symposium hosted by the Yukon Human Rights Commission relating to disability, assistive animals and the law. The event provided a forum for participants to learn the basics of human rights law relating to this topic, and to partake in a facilitated discussion about how to improve inclusion for people using assistive animals in the Yukon.  Participants included assistive animal users, as well as various stakeholders representing business, government and transit in Whitehorse.

The Commission handles a high-volume of disability-related work, so prior to attending the conference I had already spent a significant amount of time learning about different elements of disability law. After a working for a number of weeks, I was beginning to feel as though I had a decent understanding of the leading cases and important “tests” that had been laid out by the courts relating to discrimination on the basis of disability. Yet, despite my academic understanding of the law in this area, hearing people speak about their own experiences with discrimination really brought these issues into focus in a different way.  As someone who has always been passionate about inclusive policy-making, the experience inspired me to think more critically about the existing laws on this topic and to consider the practical and legal aspects of improving accessibility across Canada.

Canoeing the Yukon River

Most people have some degree of familiarity with guide dogs, which have been specifically trained to assist blind and visually impaired persons navigate obstacles. However, there are actually a wide variety of tasks performed by service animals which may be less familiar to the public. Individuals with epilepsy may use a service animal to pre-emptively warn them about an oncoming seizure, or to respond in the event that a seizure occurs. Animals can be trained to calm children with autism in high anxiety situations, or to respond to nightmares and flashbacks experienced by people with PTSD.  Some service animals can even be trained to smell when a diabetic person’s blood sugar is too low, prompting their owners to take insulin. In addition to the wide variety of tasks performed by service animals, “emotional support animals” have also been increasing in prevalence.  Unlike service animals, these animals are generally not trained to complete specific assistive tasks, but rather provide comfort and support to people with disabilities.

Prior to working at the Commission, I had assumed that there was a clear legal regime governing the certification and regulation of assistive animals. Consequently, I was rather surprised to learn that there is actually no unified legal definition of a “service animal” in Canada. Instead, there are a variety of different provincial and federal regulatory regimes which address this topic in a rather patchwork fashion.  In the Yukon specifically, there is currently no legislation which explicitly regulates the certification or use of assistive animals. Unsurprisingly, the lack of clarity surrounding these issues has been a source of confusion and frustration for many people.

Under provincial human rights legislation across Canada, it is prohibited to discriminate on the basis of disability in employment, housing or the provision of services to the public. In order to prevent or reduce such discrimination, employers, landlords and service providers have a “duty to accommodate” any special needs arising from a disability (or from any other characteristics protected under human rights legislation). The duty to accommodate is not absolute, but rather extends to the point where additional accommodation would cause “undue hardship”.  Jurisprudence has held that while “undue hardship” should be interpreted to include more than mere inconvenience, it is permissible to consider issues such as cost, health and safety requirements, and employee morale.

In the context of disability, this generally means that employers, landlords and service providers are obliged to accommodate the use of assistive animals on their premise, unless they can prove that doing so would cause them undue hardship. Nonetheless, many people remain unsure about the extent of their obligations relating to assistive animals under provincial human rights legislation, particularly in situations where different regulations may appear to contradict each other. For example, in many jurisdictions, businesses which prepare food are not permitted to allow animals on the premise for health and safety reasons. Yet, under provincial human rights legislation, people with disabilities cannot be turned away from a business for using an assistive animal.  Since human rights legislation generally supersedes other legislation, conflicting regulations should normally give way to the duty to accommodate. Nonetheless, it is perhaps unsurprising that confusion on this topic seems to persist, particularly for small business owners who don’t necessarily have access to sophisticated legal resources.

Unfortunately, these difficulties have been compounded by the perception of an increase in “fake” assistive animals. Since service animal vests and fraudulent “certifications” are readily available online, it is relatively simple to give the appearance of legitimacy to any animal. Given the lack of regulation on this topic, this practice has been able to continue with relatively few repercussions. Sadly, the proliferation of fake service animals has serious negative consequences for persons who genuinely require the use of such animals to assist with their disability. Since fraudulent assistive animals are usually not properly trained, they often exhibit behavioural issues which can cause real problems for businesses and other service providers. This has led to an increase in scrutiny (and sometimes hostility) for those using assistive animals for legitimate purposes.

One potential solution to this problem is to require the certification and identification of all service animals. This approach is currently in use in British Columbia and Albert, but the rollout of these regulations has been met with mixed reviews. Many advocates have noted that certification actually has the potential to create roadblocks for people who depend on the use of service animals. Since there are already incredibly long wait-lists to receive an animal from recognized training organizations, the certification process could further restrict and delay the ability to access an assistive animal. This would have the undesirable effect of decreasing the autonomy of disabled people to choose and self-train the best animal for their needs.

Hiking in Tombstone Territorial Park

At the symposium hosted by the Commission, one of the speakers presented the story of his experience trying to find a guide dog in the Yukon to assist him with his visual impairment. At the time, there were no guide dog trainers available in the Yukon, and the waitlists to receive a dog from out of province were incredibly high. Faced with these options, the speaker decided to train his own service dog, using resources that he had found at the library. This approach was highly successful and allowed the speaker to bypass the prohibitive costs and wait times normally required to access a guide dog. After listening to this story, it became clear to me that excessively regulating this area without first improving access to properly trained animals has the potential to cause more harm than good.

Attending this conference has certainly given me a new appreciation for the numerous ways in which assistive animals often change the lives of the people they have been trained to help. Unfortunately, it was clear from listening to the various presenters that long wait lists, high costs, unclear regulations and a lack of public understanding continue to pose significant barriers to people attempting to gain access to the valuable services provided by assistive animals. In order to make meaningful accessibility a reality, we need to come up with better solutions to these problems to ensure that people with disabilities have the resources they need to fully participate in our society with dignity and autonomy.

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.

 

Asile A et B

2014-Navarrete-InakiIñaki Navarrete

Je pris une profonde inspiration avant d’entrer dans l’arrière-cour de l’asile B. C’était le second établissement que nous visitions ce jour-là. Des patients assommés par la chaleur et les psychotropes gisaient à moitié nus dans leurs excréments au centre d’un cercle formé par d’autres patients. Un garçon de mon âge touchait son membre d’un air absent.

L’asile B était pire que l’asile A.

L’asile A, visité en matinée, en était un réservé aux femmes de tout âge. S’il prêtait largement flanc à la critique, il avait au moins le mérite d’être relativement propre : les murs n’étaient pas couverts de zut, le sol n’était pas couvert de fluides, et on pouvait y marcher sans avoir à se boucher le nez. L’affaire était tout autre ici.

Disability Rights International, l’organisme avec lequel je travaille cet été, effectue régulièrement des visites dans les hôpitaux psychiatriques locaux afin de documenter les conditions inhumaines et dégradantes dans lesquelles vivent les personnes handicapées. Lors de ces visites – toujours guidées –, la stratégie est simple. Certains suivent le guide tandis que d’autres trainent le pas à l’arrière pour voir ce qu’on ne veut manifestement pas qu’on voit.

Après un moment à l’arrière, je m’éclipsais donc dans une chambre isolée. Un jeune homme, appelons-le Victor, s’y trouvait, complètement nu et emmitouflé dans un nuage de draps sales d’où dépassaient des bras convulsifs. Notre guide, le directeur-neurologue, me rattrapa rapidement. C’est à grand renfort de termes techniques qu’il m’expliqua que Victor était un “cas perdu”. Plusieurs psychotropes étaient “nécessaires” pour apaiser son ”trouble”. Bref, Victor était une machine qu’il n’arriverait jamais à réparer.

(Photo de Victor, prise avant l’arrivée du directeur)

En regardant Victor planer dans une sorte d’apathie, sans ressort et aisément influençable, et en pensant à la facilité avec laquelle il avait été laissé à son sort dans cette chambre, je n’aurais su dire si ces psychotropes  étaient “nécessaires” ou s’ils s’inscrivaient plutôt dans un schéma de contrôle visant à faciliter la prise en charge de patients trop nombreux par un personnel trop réduit. Il s’agit d’une pratique courante.

J’insistais pour en savoir plus. Victor est un abandonado. Il fait partie de ce groupe de personnes dont les familles, souvent par manque de moyens, parfois par manque de soutien dans leur communauté, se sont résignées à les abandonner dans un hôpital psychiatrique. Parfois aussi, l’abandon découle de la honte et du stigma attaché au handicap. Victor ne reçoit jamais de visites.

En droit, la conséquence immédiate de cet abandon est la mise en place d’un régime de prise de décisions substitutive. Le directeur devient le tuteur et représentant légal des abandonados, ce qui lui donne un chèque blanc gros comme la lune sur leurs vies. Victor, objet de protection et non sujet de droit. Mais c’est compréhensible:

“Voyez-vous, il est comme un enfant qui ne sait pas ce qui est bon pour lui”.

Ce genre de discours du “meilleur intérêt”, on l’accepte d’autant mieux qu’il peut se justifier d’un côté, par des fonctions de protection et de sécurité, de l’autre, par un statut technique et scientifique.  Mais il ne faut pas se méprendre. Le meilleur intérêt dérape souvent. C’est pourquoi le paradigme social du handicap, présent dans la nouvelle Convention relative aux droits des personnes handicapées, demande que l’on congédie ce discours médical dépassé, ces régimes de prise de décisions substitutive ainsi que toute forme d’internement. Il faut plutôt laisser place à l’autonomie des personnes handicapées. Victor, comme sujet de droit.

Dans cette optique, l’asile A et l’asile B sont tous deux condamnables pour leur seule existence. Cela dit, comprendre ce changement de paradigme n’est pas toujours simple et on peut se demander : qu’est-ce que cela signifie concrètement pour ce jeune homme complètement nu et emmitouflé dans un nuage de draps sales? Une comparaison entre l’asile A et l’asile B rendra la chose plus claire.

Avec la question du travail.

Les femmes de l’asile A sont invitées à suivre plusieurs modèles de carrière. Elles peuvent fabriquer des vêtements, des jouets ou cuisiner des plats. Ce qu’elles font avec leur argent ne regarde qu’elles. En m’offrant des biscuits, l’une d’elles m’expliqua dans un Anglais impeccable qu’avec son salaire elle aimait aller au restaurant chaque vendredi. Je souriais. Les biscuits étaient bons. Sur l’emballage, l’inscription “Le travail rend digne”.

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(À l’heure du dîner, cette femme est restée étendue sans recevoir aucune aide)

Et les patients de l’asile B? Regardez cette dame dans la photo. Au mieux, certains participent aux corvées quotidiennes en échange de “cadeaux”, comme des petits gâteaux. Mais l’autonomie et la dignité ne se nourissent pas de petits gâteaux.

Au pire, les patients de l’asile B se trouvent dans un isolement sensoriel dégradant.  La télé, une thérapie musicale une fois par mois ainsi que des sorties sporadiques dans le jardin (plutôt une cage avec des barbelés) résument l’essentiel des activités disponibles. Alors, ils déambulent. D’autres sont attachés à leurs fauteuils roulants toute la journée. Depuis combien de temps? 60 ans. J’imagine que c’est aussi dans leur “meilleur intérêt”.

Faut-il insister plus encore sur la différence entre A et B?

Je voulais visiter ces établissements pour savoir pourquoi je travaille avec DRI. Aujourd’hui, la raison est on ne peut plus claire. Avec ses yeux bleus sévères et son sourire bienveillant de Big Brother, le directeur aux tempes grisonnantes de l’asile B restera pour moi le visage de l’institution totale.

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