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Sharon Hofisi Legal Letters
What is disability? As a lecturer in constitutional rights, and lawyer, allow me to be a pan piper in this think-piece.

I invite the reader not to ask me to provide a definition of disability rights. For now, I can only state with boldness that the Constitution of Zimbabwe, 2013, seems to entrench the rights of persons with disability.

It also contains provisions that implore the State to domesticate international treaties such as the Conventions on the Rights of Persons with Disabilities (CRPD). Domesticating such international law will give its provisions legal effect in our national laws.

Zimbabwe needs disability laws which are in line with the CRPD and which also make the rights of persons with disabilities justiciable. Justiciability speaks to the need to entrench a right in a Constitution.

It is a concept which allows the right holder to approach a competent court of law to seek redress in the event of the violation of the right. There is need for a constitutional Statute which provides for disability rights in Zimbabwe.

At national level, there is need for an inclusive national disability policy, which considers the lived realities of persons with disability. Disability is the sort of area where everyone, whether born with an impairment of some sort or not, must make a disabled person (not poetically but intentionally chosen), or person with a disability (to use evolutionary language), feel secure.

Let us not celebrate models that seek to objectively understand disability, but do not equip the targeted person to subjectively tell us how he expects us to interact with him.

Put simply, a person with disability must be the measure of his or her own welfare, rights, discourses, or policy concerns. If we look at the framing of the constitutional provision which deals with the rights of persons with disability then we obviously understand that the right holder there is being treated as a charity, social, welfare, medical or State’s case.

This much we all know — including the State functionaries, the drafters of the Constitution and the disability activists. What we can learn however must come from the right holders under review.

Chiefly, I am learning that we (all who are concerned with the rights under review) must “abandon” objective models of understanding disability. We must craft subjective models, which make the right holders feel secure to listen to us, converse with us, and share their lived realities with us.

I am learning that if we use models, a grounded approach which forces us to tap from the rich veins of the sufferer should be preferred-even if it means we remain silent while they teach us how to live with the virtue called empathy.

Why pretend that we have a Constitution — the highest law in the land, which gives persons with disability some justiciable rights, or entrench their rights on the Constitution — when the rights are only in name? What is overwhelming our 16 million minds that we have not instituted a test case so that the Constitutional Court declares that the provision is an ‘unconstitutional’ provision in a justiciable Constitution?

Most rights are framed in a manner that shows that “every person”, “every Zimbabwean’” “every woman”, “every child”, “people over the age of seventy years”, “veterans of the struggle” “any person”, “no person”, “all persons” and so on. The right holder is expressly mentioned as the subject of the right meant to enjoy the legal entitlement. Even those people are yet to be born have the right to environment-clearly framed in section 73 of the Constitution.

But when we get to persons with disabilities, it is just a palliative title which makes the holder an object of his right: rights of persons with disabilities-is the title!

There is no right save for measures to enable them to become self-reliant; live with their families and participate in social, creative or recreational activities; protect them from all forms of exploitation and abuse; give them access to medical, psychological and functional treatment; provide special facilities for their education and provide State-funded education and training “where they need it” (emphasis added).

Clearly then, we need to remove the part inscribed “measures” and replace it with the part that shows that they are entitled to all the above. Until then, the State will continue to use the unavailability of resources or some policy arguments to deal with the rights under consideration.

The Constitutional Court generously interpreted the rights of women in the case of Loveness Mudzuru and Another v Minister of Justice. It is expected that it will do the same when interpreting the ‘unconstitutional’ provision on rights under review.

I think the judges are waiting for one of us to challenge section 83 of the Constitution through public or strategic litigation. The President has set the pace by appointing someone to appraise him on issues affecting the disability community — a special community of people who are differently abled. That is laudable.

President Mnangagwa’s meteoric rise — accompanied by his decision to look into the concerns of the disabled persons-shows committed vigour to efforts by the State to respect the rights of persons with disabilities. By choosing someone in this regard, President Mnangagwa introduces a measure by which the executive would be directly appraised of the challenges and needs of disabled persons. But the hope is that the person must commit to the needs of the persons with disabilities.

As we glory in our constitutional freedom as Zimbabweans, let it not detain us, nor restrain us now, as we look at why the President and the Government have appointed an overseer on disability issues.

The message is clear — the affairs of the person with a disability must come first. We are all energised and confident that such a person fits into the President’s now famous acceptance speech which recognized that ‘the voice of the people is the voice of God’-the voice of the persons with disabilities also included in that language milieu.

Time is tut-tutting away at our conscience, reminding us that disability factor needs a subjective dimension. Time, that linear concept, is standing at the crossroads of Zimbabwe reminding us that all our roots as humans are in the womb, we all “enjoy” our mother’s breasts, and life can only become a meaningful comma in a sentence of time if we venerate the human factor-Zimbabweans have the Ubuntu or hunhu.

Proverbially, we were taught in our indigenous language systems like Shona that “wafirwa haatariswi kumeso”, loosely educating us that we are not immune from certain problems. Sometimes our Shona smiths taught us that “baravara hausatiuri mugariro”, loosely warning us not to laugh at the bald-headed man, but to tap from the rich veins of his wisdom.

As an avid learner, I have a student who is blind. He whispered to me one day after the lecture — “Please Sir, can you do me a favour — do you think you can dictate your notes and stop using power point. Alternatively, can you read your power points slowly so that those, who learn through visual presentation can also understand that I am visually impaired?’

I was awe-stricken but as I write this article, I feel motivated to reflect on how we usually “love casually” when we know less.

It was hard to admit that years of teaching had focused on knowledge sharing without subjective commitment. In my new learning, I have come to thank the philanthropist Jairos Jiri for producing wordsmiths such as the late Paul Matavire, and his backing vocalist, David Mabvuramiti, who is now a pastor with a local church. But my voicemaker, my student, remains a hero in this enthusing exercise.

As a lawyer, I thank all law firms which are employing people who are blind or have albinism and other impairments. I also want to thank court officials, magistrates and judges who are patient with such great minds. A person with albinism may struggle to read a court record in the same way a blind lawyer may also need an assistant to read the same record for her to cross-examine a witness or accuser of his client.

Who does not know the famous advocate Nherera — a prolific educator and lawyer? But his recognition was not instant; it took someone to realise that he was a sharp legal draftsman who could be equally a sharp defender of human rights. I have learnt of a disabled visionary and university graduate who formed a famous organization called Endless Possibilities — allowing persons with disabilities to be bold voices of reason.

Those who have followed the programme ‘Disability Factor’ on Star FM can testify how Ishmael Ndlovu, who hosts that programme, has invited people who teach us to lay aside this syndrome of modelling, pitying, and ‘understanding’ disability issues which we do not understand – the bystander perspective.

As we stop doing so, the weight which has been upon a person with a disability lifts. Imagine listening to Yvonne Karuchero’s programme with Munyaradzi Munodawafa again on Star FM. You are someone like me who grew up knowing that Munodawafa was a singer at a tender age. But that was all shared news.

I had to learn from him that he is partially blind, loves country music, sings “sungura music” which is proudly Zimbabwean. Then the humorous thing-he laughs and subjectively refuses to blow his own trumpet — but puts the point across — he is in the Guinness Book of Records as the youngest musician to have recorded a musical hit.

And I was like, “Really!”” It was possible because Munyaradzi (comforter) in our Shona language is placed in a comfortable zone by a talkshow hostess who is equally prepared to allow Munyaradzi to respond to the listener who wanted to hear whether he is still blind. Munyaradzi then explains how he was born with cataracts (tsangamuziso), had to receive medication in America, but is also giving back to the community through assisting persons with disabilities – all because he also benefited from supportive people in Zimbabwe and America.

Besides the above, we also need to promote sign language which is now one of the languages that are officially recognized in Zimbabwe. Most importantly, our national broadcaster, Zimbabwe Broadcasting Services, ZBC, has set the marathon pace by using sign language during News Hour.

It does not mean that we have to simply talk Braille, dictation machines, and voice recorders in schools and work places, but a fair amount of baseline surveys, commissioned by the Government, and supported by donors and educationists, must focus on the lived realities of people with disabilities.

In all this, the crucial thing to remember in participatory democracy, as I emphasise to my students, is to emancipate and empower the participant. It is not to participate on behalf of the empowered democrat or to live out his right. It is to ensure that the right holder asserts or claim his right it if it is breached. The right is hers to enjoy, and she is fairly certain that she is still human and the court will protect her right.

Together, we can produce stupendous records of brilliance and inventiveness if we equip the participant in our area of study. Imagine the following: back in our undergrad days, we would tell each other that a blind person had a sixth sense which enabled him to walk alone.

We were not bold enough to ask the person how he managed to do that. Socialization had played its part- but we were innocent though! Years later, l learnt that a walking stick does the wonders. Someone at Star FM — who is blind, started an information revolution. He walks to and fro work at Star FM, he cooks at home, does his laundry without the use of human aid-a walking stick is his companion.

The lesson in all of the above is simple: every human right has some content which enables the right holder to assert such rights. In surprising fashion, the drafters of section 83 of the Constitution-the provision relating to the rights of persons with disabilities, did not provide the content for such rights.

The right holder is left at the mercy of the State — the primary duty holder-which is obligated to take appropriate measures, within the limits of the resources available to it, to ensure that such persons realise their “mental and physical potential”. To continue to have such a constitutional provision is no different to committing ourselves to the sheerest hypocrisy as a people who boast a progressive and transformative homegrown Constitution.

Admittedly, the place of safety and constitutional protection of the differently abled person must border on an understanding of the effect of “sameness” and “difference”. But in all this, the whole State and citizen machinery, family, religious and non-religious communities, academic, and job providers, must strive to make disability rights realisable.

There is an urgent need to remind ourselves of the true nature of disability rights. It isn’t just a matter of crafting some popular charity, social or medical models on disability. Those models are objectively used to ignore the lived realities of the targeted population — the person with the disability.

My friend (I invited him as a guest lecturer) advised me to freely call him a disabled person. He told my students that he is thankful that he is differently abled. He does not need a friendly or sympathetic approach where someone calls him ‘a person with a disability’.

But a human rights activist indicated to me that he prefers to use the friendly language. Whichever way we look at it, there is need to treat every aspect of human life as fulfilling — as the fulfilment of true humanity, sculptured by the human factor content which is inherent in most Zimbabweans.

This need is a call, to employ the words of a disability activist and friend, Abraham Mateta’s statement that: “to the revolution that freed both the oppressor and the oppressed, I pledge my allegiance”. It is therefore the inclusive approach which allows persons with disabilities to feel comfortable to be in the company of their families, acquaintances, friends, educators, donors, or philanthropists.

For now, we know that the need to take disability issues seriously has entered directly into the motley of key considerations which President Mnangagwa is “hitting the ground” to achieve. While it is encouraging that the President has appointed someone who deals with disability issues, there is an urgent need either for a constitutional amendment to provide content for the protection, promotion, respect and fulfilment of the rights of persons with disability.

Alternatively, there is need for Government to support test case litigation so that the apex court in constitutional issues, the Constitutional Court of Zimbabwe, provides the generous interpretation of section 83 of the Constitution. Above all, we need to domesticate the CRPD.

But here is the issue. Disability rights, just like specific group rights such as those of women, children, elderly or war vets, do not need an objective approach. For the President to understand the lived realities of the right holders in this category there is need for a grounded approach, which subjectively considers the concerned holder as the measure of how constitutional rights are enjoyed.

• Sharon Hofisi is a lawyer and is contactable at [email protected]