The experience you are getting with a relatively new Constitution in Namibia sounds very rewarding. It does make me think about the age of our own Constitution in Canada and that our Charter of Rights and Freedoms is actually not that old – it went into force in 1982, which is only 8 years older than the Namibian Constitution. Of course there is the important difference that the section of the Namibian Constitution that is equivalent to the Canadian Charter is only one part and the rest covers a multitude of other areas that delineate the workings of government post-independence from colonial powers. I was curious about the wording of the “Fundamental Human Rights and Freedoms” section of the Namibian Constitution in comparison to our Charter so I took a look. There are several key additions – such as the sections explicitly banning the death penalty, torture and slavery. It was also of particular interest to me that the prohibited grounds of discrimination do not include disability. I know that in Canada the disability community fought hard to include disability as a prohibited ground of discrimination and surely Namibia looked to other constitutions as example when drafting its own. Further, as you mentioned in your post, the Namibian courts have looked to Canada’s jurisprudence on constitutional interpretation and have adopted the Oakes test. I wonder if during your research you have come across cases where Namibian courts have read in analogous grounds of discrimination and whether disability is one of those grounds.
I really appreciate your discussion on disability and institutionalization in Serbia. In Canada we still are coming to terms with these issues. For example, the Huronia Regional Centre in Ontario, which housed people labelled with intellectual disabilities, only closed in 2009. Recently the individuals that lived there received a class action settlement from the Ontario government. However several of the plaintiffs were dissatisfied with the class action settlement because their lawyers failed to explain that money, rather than a public trial, is the goal of the class action process.
I think your point about the difference between an institution and a group home is profound. Having lived in an institution myself for 8 months (a spinal cord injury community rehab) I had a small taste of the neglect that can take place in an institutional setting. A group home, in my opinion, is vastly superior. It may take time for a culture shift so that people labelled with intellectual disabilities stay with their families (which is still relatively recent in Canada). So I think it is entirely inappropriate to use the UN Convention on the Rights of Persons with Disabilities to criticize the use of group homes. I also found the other criticism you identified very interesting. On one hand, the organization you work for (rightly) opposes institutionalizations but, on the other hand, criticizes overinvolved parents. In my view you can’t let the perfect be the enemy of the good and I really sympathize with your suggestion that the Convention can be used in an unhelpful way to criticize any attempt to reform.
Hi Stephanie, thank you for your comment. It’s very interesting that you mention the absence of disability as a prohibited grounds of discrimination, because this was one of the first things that struck me when reading the Namibian Constitution. Of note is that sexual orientation is also absent as a prohibited grounds.
Kevin, last year’s LRDC intern actually wrote a very interesting piece on his blog about disability rights in Namibia specifically under the lens of equality rights. The Alfred Mew Visser v Minister of Finance & 3 Others case is an example of the Namibian judiciary missing the mark in terms of providing a nuanced understanding of what is meant by equality rights, especially for Namibia’s most vulnerable populations such as disabled individuals. Alfred Visser was in a severe car accident and was blinded and awarded damages, however the amount was challenged as it did not provide the financial support necessary for him to live with his disability. In their judgment, the Court focused merely on the financial limitations of the fund from which he was paid his compensation and failed to articulate how an individual’s right to equality may entitle him or her to more compensation based on increased need due to disability, etc.
In Namibia, there is a Disability Policy Framework however as of yet I have not found any cases where disability was pled as an analogous ground for discrimination. It seems that more work is needed in the field of disability rights in order to ensure that persons with disabilities are afforded the same protection as other citizens in Namibian society.