CHAPTER ONE

GENERAL INTRODUCTION

Background to the study

According to the United Nations convention on persons with disabilities, the term disability summarizes a great number of different functional limitations occurring in any population, in any country of the world.

People might be disabled by physical, intellectual or sensory (senses) impairment, medical conditions or mental illness. Such disabilities maybe permanent or transitory in nature. It is in this light that United Nations adopted a convention on the right and privileges on persons with disability.

“This UN convention had been ratified by 153 countries by 12th April 2012”As of November 2020, it has 163 signatories and 181 parties, which includes 180 states and the European Union (which ratified it on 23 December 2010 to the extent responsibilities of the member states were transferred to the European Union).

Persons with disability are protected both under common law and civil  law in fact protection of persons with disability is guaranteed both under international instrument such as the universal declaration of human rights, international convention for the protection of persons with disabilities covenant on civil rights, the charter of the united nations and even domestic legislations, Such as law of April 2010.

This chapter, is going to address the legal issues associated with this research, a definition of key terms to be employed and the relevance of the study                                                                                                                  

BACKGROUND TO THE STUDY

Disabled people are the world’s largest growing minority, until very recently, the were invisible in international human right law. Disables persons are not listed among the group explicitly protected against discrimination in the post war-human rights instrument that make up the international bill of rights.

The European court of human rights only made its first ever finding of disability discrimination in 2009 on Glory v Switzerland, Kantz argues that this invisibility extended into the international human rights community itself, including mainstream human rights scholarships and many non-governmental organizations.

The UN convention of the rights of persons with disabilities (CRPD) United Nations 2006 was developed in response to concerns that existing Human Rights instrument had yet to create a significant impact on improving the lives of people with disabilities: and a commitment by disabled persons and their representative organizations to “to strive for a loyalty binding international convention on the rights of people with disabilities to help participation and equality in the society”

The CRPD enhances the visibility of disabled people in international human rights law. The CRPD is a remarkable legal instrument representing a culmination of many different strands of disability activism over the last few decades.

According to Kanter, this represents the first time in which the UN invited the people directly affected by the proposed treaty to participate directly in its drafting (40). As a participant, it is fair to say Kantar is able to provide an interesting and detailed account of the issues and disagreements that arose during the drafting of the treaty.

The 1970s marked a new approach to disability. The concepts of human rights for persons with disabilities began to become more accepted internationally.

Two major declarations on persons with disabilities were accepted by the general assembly in the new decade. The declaration on the rights of mentally retarded persons of 20 December 1971 recorded a fame wok for protecting rights through national and international action.

The declaration stated that persons with intellectual disabilities had to the degree feasible, the same rights as others, including a right as officers, including a right to proper medical care and education, to economic security, to a qualified guardian, as required, to protection from exploitation and to access to legal procedures.

The declaration stated that if possible persons with intellectual disabilities should live with families or with foster parents and should participate in various aspects of community life essentially, the declaration paved the way for future comprehensive set of principles which would eventually seek to integrate persons with disabilities into society.

The declaration on the rights of disabled persons adopted by the general assembly on 9th December 1975 encouraged national and international protection of the rights of persons with disabilities. Recognition was given to the fact that persons with disabilities were entitle to the same political and civil rights as others including measures necessary support.

The declaration the declaration reiterated on the rights of persons with disabilities to education, medical service and placement service. It further recognized their rights to economic and social security to employment, to live with their families, to participate in social and creative events, to be protected against all exploitative abuses or degrading behavior and to avail themselves of legal aid realizing the need to promote the full participation of persons with disabilities in social life and development of their societies on to December 1976, the general assembly declared the year 1981 international year of disabled persons (IYDP) stipulating that it be devoted to integrating persons with disabilities fully into society.

In Cameroon, there exists no constitutional definition of disabilities. However a particular law fills this vacuum.  Moreover it should be noted that these texts constitute excellent legal background for the protection of persons with disabilities in Cameroon.

This law which contains in all 12 articles has been subject to criticisms. This law despite its weaknesses helped to put the State away from criticisms and to fill the gap that existed as far as the protection, promotion and the socio-economic integration of persons with disabilities.

As such, the law defined a person with disability as, someone who, stricken by physical or mental, congenital or accidental deficiency, experiences difficulties to carryout his/her duties as any normal person.

It should be noted that, the law of 1983 concerned all the categories of disabilities that exist in Cameroon, most especially; the blind, deaf, dumb, dwarfs, retarded, etc. The Cameroon constitution guarantees the rights of all its citizens amongst which are persons with disabilities.

However, they are practically relegated to the second rank in many domains in our society such as: employment, education, environment, health, infrastructure etc. Again the law forbids all forms of discrimination towards persons with disabilities.

This measure has been criticised for its ambiguity because its practice is uncertain; for example families and sometimes the society in general, show little concern towards persons with disabilities.

To conclude, most international conventions obligate state parties to take certain measures with regards to the provisions contained therein, whether by domestic legislation or domestic legislation or otherwise in addition, the committee on economic, social and cultural rights accused above requires state parties to make periodic reports. Nine have the competence to consider individual communications; seven may consider interstate complaints while six have the competence to inquire into allegations of grave or systematic violations.

STATEMENT OF THE RESEARCH PROBLEM

Irrespective of all the programs put in place to protect disable persons in law this group of persons have remained largely neglected.  Disable people are the world’s largest growing minority, yet until very recently they were invisible in the international human rights law.

Disabled persons are not listed among the groups explicitly protected against discrimination in the post war human rights instruments that makeup the Bill of rights, nor under the European court of human rights only made its first ever finding of disability discrimination only in 2009 in Glor v Switzerland.

Persons with disabilities face discrimination and barriers that Barr them from participating in society on an equal basis with others every day. Persons with disabilities have, however remained largely invisible, often sidelined in the rights debate and unable to enjoy all the full range of human rights .

This discrimination often include physical or mental disability in various aspects such as employment participation in sports and other abilities. There’s therefore a need for the law to enforce these rights.

It is based on the foregoing that this researcher has embarked on this research to make policy recommendations which shall help in solving the problems highlighted.

1.3RESEARCH QUESTION

• What is disability?
• Are there any legal framework and Institutions for the protection of the rights of disabled persons in the world?
• How effective are laws and institutions in the protection of the rights disabled persons in the world?
• What policy recommendations can be made to address this problem?

1.4 RESEARCH OBJECTIVE

This research has both general and specific objectives;

1.4.1 General objective

• To critically examine the legal framework for the protection of the rights of disabled in the world.

1.4.2 Specific objectives

• To discuss the international mechanisms and framework for the protection of the rights of disabled persons in the world.
• To discuss the laws protecting disabled persons in Cameroon.
• To discuss the effectiveness of the law protecting the rights of disabled persons.
• To make policy recommendations that can address the issue.

1.5 RESEARCH METHODOLOGY

The research will adopt the qualitative research method because it does not make use of numerical or statistical data. This research work is exclusively doctrinal research method which is largely content analysis.

The data from this study have been divided into primary and secondary data; primary data shall be gotten from relevant statutes like the United Nations convention on the right and privileges on persons with disability, the African charter on human and people’s rights, the universal declaration of human rights, the international covenant on political and civil rights and case law. Secondary data would be gotten from textbooks, journal, articles, magazines and the internet.

1.6 LITERATURE REVIEW

According to Rebecca Garden, Disabled people are more likely to need healthcare than the non-disabled.

While we do not yet have precise data (the need for further research is recognized), there is evidence that people with disabilities experience barriers in access to healthcare.

People with physical disabilities are more likely to encounter environmental obstacles to medical care and faulty communication between patient and provider and less likely to obtain screening and preventive healthcare, as well as treatment.

 Patients with disabilities encounter obstacles such as a lack of height-adjustable exam tables for wheelchair users who are then examined in their chairs, a lack of understanding of how best to communicate with patients who are deaf, neglecting to screen for breast cancer in a wheelchair user, or neglecting to help someone with a disability to quit smoking. Disabled people do not receive adequate healthcare, and yet this inadequacy is generally unrecognised by those who practice medicine.

According to Michael Moore in his book Religious Attitudes toward the Disabled (2015)One can readily find evidence of the low regard that various religions have for the disabled. Like religious misogyny (or “hatred of women”: prejudicial practices against the disabled often have doctrinal justification.

Jewish attitudes toward the disabled rely on strict biblical injunctions against the participation of the physically handicapped in bringing sacrifice: “none of your descendants who have a defect may come near to offer the food of his God.

No man who has any defect may come near: no man who is blind or lame, disfigured or deformed; no man with a crippled foot or hand, or who is a hunchback or a dwarf, or who has any eye defect, or who has festering or running sores or damaged testicles”. 

Or consider Exodus 4:11; “Who gives man speech? Who makes him dumb or deaf, seeing or blind? Is it not I, the Lord?” The latter has served as the scriptural basis of the main monotheistic religions’ belief in a divine source for all afflictions. 

According to Tzvi Marx, Halachic literature “reveals instances of apparent indifference, or even callousness, with respect to the disabled: laws and liturgical passages that appear to evince a dismissive, even derisive attitude toward individuals with disabilities”.

Marx saw in this attitude “an internal ambivalence,” a “dissonance within the halakhic culture itself,” in view of the disabilities of major figures in Jewish thought: “Isaac, who is blind, Jacob, who limps; the initially childless matriarchs Sarah, Rebecca and Rachel, and the speech-disabled Moses—are no less esteemed because of disability”

1.7 THEORETICAL FRAME WORK

This study is premised on the Natural law theory, the Social justice theory, and the Moral theory.

1.7.1 The Natural law theory

This theory is a philosophical and legal belief that all humans are born with inherent rights by nature. It is the unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed.

This is because all humans are governed by basic laws of nature. Naturalists believe that natural law principles are an inherent part of nature and exist regardless of whether governments recognize or enforce them.

Authors such as John Locke propounded that human beings are by nature free and equal. He also stated that people have rights such as the right to life, liberty and property.

Marcus Tullius Cicero propounded that natural law is true law in agreement with nature which is applied universally, unchanging and everlasting.

However, other authors have opposing views about the natural law theory. This opposing view of natural law can be traced to Thomas Hobbes, whose writings are largely devoted to showing the anarchy and civil wars caused by appeals to natural and divine laws above the will of the sovereign.

Hobbes rejected traditional higher law doctrines and encouraged people to accept the established laws and customs of their nations, even if they seemed oppressive, for the sake of civil peace and security. His critique has been a leading cause of the demise of natural law.

The researcher’s point of view is in support of the Natural Law theory because all human beings are born free with equal rights. These rights are inherent and therefore have to be respected and protected in the society.

This theory is also reflected in publications like the Universal Declaration of Human Rights in its article 1 which states that all humans are born free with equal rights.

This study examines the influence of this theory in the protection of the rights of people with disabilities.

1.7.2 The Social justice theory

Social justice is the ability people have to realize their potential in the society where they live. Also, social justice is defined as justice that conforms to a moral principle, such as that all people are equal.

It is a theory which advocates for egalitarianism in the way persons are treated. John Rawls considered social justice to be a group of people who are free and equal in a society.

He advocated for liberty and equality to be applied in a society. He stated that each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. Allan Bloom criticized Rawls for failing to account for the existence of natural rights in his theory of justice.

According to him, he stated that Rawls’ failure in accounting for the existence of natural rights in his theory of justice made it an incomplete theory. As per the view of the researcher, social justice should be free and equal rights which people possess and respect towards one another in a society.

The International Labor Organization (ILO) affirms that universal and lasting peace can only be established if it has as its basis, social justice. The preamble to the constitution of Cameroon alludes to social justice in these terms “all persons shall have equal rights and obligations”.

1.7.3 The Moral theory

As per the moral theory, everyone is entitled to human rights which also come with their duty or obligation to respect it. This duty is the moral obligation not to violate anyone’s right.

The moral theory is related to natural rights by the fact that everyone is born free and has equal rights towards one another. Authors such as Immanuel Kant described the moral theory to be actions morally right by virtue of someone’s motives, which must be derived more from duty than from inclination.

The German philosopher G.W.F Hegel criticized Kant for not providing specific details in his concept of the moral theory to affect decision making and for not including human nature.

Therefore, human beings have the moral duty to help and protect others, and it should be part of their human nature. Prisoners are protected by the moral theory but it is realized that people tend to violate their rights and their moral obligation towards them.

Forces of law and order illegally arrest and detain people thereby violating their moral duty to respect human rights and to treat them with dignity and with love. Therefore, the moral theory enforces moral justice to people with disabilities.

JUSTIFICATION OF RESEARCH

Various international instruments discuss the protection of the rights of disabled persons but in reality these rights are in no way protected.  Governments continue to limit the enjoyment of this right which is reflected in the continuous neglect of this group of persons in the society.

So there is need for us to carry out a research to examine how the various instruments and institutions in connection with the national laws see to the protection of rights of disabled persons.

It will also serve as a means of appreciating the role of international human rights commissions in the protection of the rights of disabled persons in the world. The research is also embarked on because it seeks to make policy recommendations which will contribute in solving the problems raised.

1.9 SIGNIFICANCE OF THE STUDY

 The outcome of this research will be used to legal scholars as well as law students, human rights activists, humanitarians and parents. This study is significant in many ways.   

Firstly, it will provide a general knowledge on the rights of disabled persons, especially to people who are ignorant of them. This people will now have the opportunity to know about the right of disabled persons, the laws protecting them and sanctions for their violation.

Also, legal scholars and law students will be sensitized on the various national and international instruments protecting disabled persons. This will help them in their legal activities and research carried out for this purpose. It will also strengthen the academic background of law students.

On the part of human rights activists and humanitarians, they all have a common goal which is the wellbeing of others for a better world. It is noted that they carry out activities to attain this goal and the poor are always a prime target to help. Knowledge about the protection of disabled persons rights and welfare in the world will not only help them with a good strategy to enforce person’s rights and welfare, but also with a deep knowledge of various international and national laws protecting the right of disabled persons in the world.

The law is not static but always changing, the society is equally not static but new theories or laws come up here and there and there is always need for research and thus this work will add to legal knowledge and will be very vital to Law students and to researchers who are interested in the subject matter of our work and thus the general public stands to benefit from this work.

1.10THE SCOPE OF THE STUDY

Substantively this research is confined to the protection of the rights of disabled persons in the world and it is limited to the  United Nations convention on the right and privileges on persons with disability, duly ratified Treaties notably, The Universal Declaration of Hunan  Rights, The International Covenant on Civil and Political Rights as well as case law. In this regard the focus of the research is to determine how the constitution and the aforementioned texts ensure the protection of the rights of disabled persons in the world.

DEFINITION OF KEY TERM

DISABILITY: the inability to perform some functions especially, the inability of one person to alter a given relation with another person. And objectively measurable condition of impairment, physical or mental especially one that prevents the persons from engaging in meaningful work.

An important distinction must be made between the word impairment and disability. Impairment only refers to the type of medical problems a persons has.

Two people might have exactly the same impairment yet only one of them qualify for disability. Disability is a legal term, meaning that someone can not engage in meaningful work with the impairment that he has.

If impairment meets or equals a listing, then the difference between the two words is not very important. Two different people with the same impairment that meets or equals a listing will always both qualify for disability benefits.

HUMAN RIGHTS

These are moral principles or norms for certain standards of human behaviour and are regularly protected in municipal and international law. They are commonly understood as inalienable, fundamental rights “to which a person is inherently entitled simply because she or he is a human being” and which are “inherent in all human beings”, regardless of their age, ethnic origin, location, language, religion, ethnicity, or any other status. 

They are applicable everywhere and at every time in the sense of being universal, and they are egalitarian in the sense of being the same for everyone.

1.9 SYNOPSES OF THE CHAPTERS

Chapter one deals with the General Introduction of the work. It gives the background to the study research questions and objectives, research methodology, scope of study, justification and significance of the study. It also raises the problems of the research.

Chapter two shall discuss the legal and institutional framework protecting disabled persons in civil and common law.

Chapter three shall discuss the laws protecting disabled person in Cameroon and the effectiveness of the laws.

Chapter four shall conclude and make recommendations.

Further readings:concention on the rights of disabilities