Submission on CRPD Implementation in Mauritius

Submission on CRPD implementation in Mauritius

by the Federation of Disabled Peoples' Organizations Mauritius

14th session, CRPD Committee, July 2015

This report is presented by the federation of Disabled Peoples' Organizations Mauritius (DPO Mauritius). DPO in Mauritius is a federation of NGOs representative of different types of disabilities namely blind, deaf, intellectual disabilities and other kinds of disabilities. Our main goal is to fight for the rights of persons with disabilities and to represent their voice through lobbying and advocacy with the government. The present submission was drafted in consultation with DPO Mauritius members.

The objective of the submission is to provide responses by DPOs to the list of issues and to identify gaps in implementation of the UN Convention on the Rights of Persons with Disabilities (CRPD) in Mauritius. Recommendations are proposed at the end of each section for consideration for the Concluding Observations.

A. Purpose and general obligations (arts. 1–4)

1. Please indicate whether any steps have been taken to ratify the Optional Protocol to the Convention and to withdraw the reservations made to articles 9 (2) (d), 11 and 24 (2) (b) of the Convention.

The Mauritian government has made three impermissible reservations to the UNCRPD, in contravention of article 46 (1) of the CRPD. They directly go against the stated purpose of the Convention in article 1 and would prevent full application of rights throughout the Convention. These are on article 9 on Accessibility, Article 24 on Education and Article 11 on Situations of risk and humanitarian emergencies.

In its Replies to the List of Issues, the government states that oncecertain conditionsare met, it will withdraw its reservations and subsequently ratify the Optional Protocol (OP) to the CRPD. Although we welcome the State’s declaration, it is still important that the CRPD Committee includes this issues in its Concluding Observations. After DPO's lobby at Geneva during the UPR process, these reservations were to be withdrawn in March 2014.[1] It was not done and nothing was mentioned in the media about Mauritius being reviewed and engagement taken by our former minister of Foreign Affairs - Mr Arvind Boolell. In December 2014, an election took place and a new government has taken over.

The Government’s replies imply that the ratification of the OP depends on the withdrawal of all its reservations. However, there is no necessary connection between both events. Further, the Government statedthat once it adopts the National Disaster Risk Reduction and Management Bill, it will remove its reservation to Article 11. Similarly, once it adopts the regulations of Section 3 of the Building Control Act 2012, it will remove its reservation to Article 9(2)(d). Finally, the Government’sreplies state that given that “children with disabilities can access a free, quality and inclusive education […] a policy decision will soon be taken to remove the reservation on Article 24 para. 2(b)”.

2. Please provide updated information on the 2007 National Policy Paper and Action Plan on Disability.

Despite the items mentioned by the Government on its reply to this question, three important observations must be made.

First, detailed information about the implementation of the measures listed is lacking. For instance, a Special Education Unit has been set up but it does not provide information on how it works or what “Special Education” means in the context of article 24. Regarding low buses, some companies have imported some with State assistance yet it does not provide details of how many nor what percentage of the total number of buses.The Government refers to one of its goals to “highly develop the welfare system”. Yet this is not elaborated concerning how many persons with disabilities benefit from it. These examples show the lack of benchmarks, indicators and goals that permit for monitoring of the implementation of the plan.

Secondly, the Government mentions that “DPOs have widened their democratic base and strengthened their voice”. Nevertheless, there is no mention at all of any consultation and active involvement on the implementation of the Action Plan on Disability.

Thirdly, the National Policy Paper and Action Plan on Disability dates from 2007 andthe repliesmention that the Steering Committee “was disbanded once the major recommendations had been implemented”.Under question 5, the Action Plan on Disability 2015-2020is referred to but there is no information about the “Integrated National Structure”as the leading governmental body, which also raises questions about Article 33(1).

Definitions (art. 2) and General obligations (art. 4)

3. Please indicate the steps taken to modify the concept of disability based on the medical model used in the State party’s legislation, notably the Equal Opportunities Act and the Training and Employment of Disabled Persons Act, and the concrete measures adopted to shift from the medical model to a human rights-based model that includes the concept of reasonable accommodation, in accordance with the Convention.

4. Please indicate the measures taken to bring all national legislation into line with the Convention. Please also provide updated information on the process of drafting the disability bill referred to in the State party report (see CPRD/C/MUS/1, para. 22 (b)) and indicate how organizations of persons with disabilities are involved in this process.

The response to question 3 by the State shows clearly that it has not fully embracednorunderstood the social model of disability enshrined in CRPD, starting from the very conceptualisation of disability and of persons with disabilities. Moreover, there is no systematic attempt to review and harmonise all national legislation in line with the Convention.Moreover, the State assumes that some legislation is already in line with the CRPD when they are clearly not compliant.

The State claims that the paradigm shift on disability is reflected in the definition of “disabled persons” by theTraining and Employment (Amended) Act2012. However, the definition states:

“‘disabled person’ means a person who is certified by the Board, (a) to have a long-term physical disfigurement or physical, mental or sensory disability, including a visual, hearing or speech functional disability, which gives rise to barriers or prejudices impeding his participation at an equal level with other members of society in major life activities, undertakings or fields of employment that are open to other members of society; and (b) to be willing and able to work.”[2]

It is clear that the State continues to use a medical model approachas set out by the terminology and the fact that the Training and Employment (Amended) Act2012: a) confuses “disability” with “impairment”, b) demands “long-term” instead of “includes” (CRPD Article 1), andc) supposes that it is the “disability” which “gives rise” to (cause) barriers or prejudices -out of step withthe CRPD.

Further, according to the State’s replies, the Equal Opportunities Act(amended) 2011 “ensures protection from direct and indirect discrimination on the ground of […] ‘impairment’”[3], which is defined through a medical listing.[4] Besides the terminology employed, this could never be conceptually equated to discrimination on the basis of disability and the scope of protection foreseen by the CRPD. For instance, it does not seem to cover discrimination due to perceived disability. And this domestic legislation is limited to “various” areas instead of being cross-cutting to all rights.

These two examples are worrying as they demonstrate that the State is clinging to the medical model and does not bode well for the drafting process of the Disability Bill.

Until now, the drafting process of the Disability Bill has been developed without consultation of persons with disabilities and their representative organisations, in clear contradiction of Article 4(3). According to the State, a “[c]onsultative Workshop will soon be held with different stakeholders comprising persons with disabilities, NGOs, DPOs, civil society, private sector and Government Departments to elicit their views and incorporate their proposals in the draft Disability Bill”, to be followed by publication of the Draft Bill “so that the wider population gets the opportunity to express their views”.

Finally, there is still no legal definition of reasonable accommodation which reflects the Convention’s definition in Article 2 and explicitly sets out that its denial constitutes a form of disability based discrimination.[5]In this sense, the drafting process of the Disability Bill constitutes an opportunity to finally include the definition. To this end, very clear and concrete recommendations by the CRPD Committee will be needed.

5. Please provide updated information on any new policies, programmes and/or action plans to promote and protect the rights of persons with disabilities and to monitor them in line with the Convention, and on any steps taken to ensure the meaningful participation by organizations of persons with disabilities in these decision-making processes.

The State lacks concrete and detailed information about the results of the policies and programmes to promote the rights of persons with disabilities. For example, point ii explains that “(ii) [t]he income ceiling for eligibility to Social Aid and Carers’ Allowance in favour of children with disabilities has been raised to Rs 350,000/- annually, as compared to Rs 250,000 in 2013”, but does not mention how many children benefit from the allowance, both before and after the change, and the proportion they represent from the total of children with disabilities. The same goes for point iii on the invalidity pension.

Another example, in connection to sign language interpretation, the State mentions that “[a] pool of sign language interpreters is being trained to provide sign language interpretation in different services and functions”, but there is no quantitative data nor an explanation of in which context and conditions are they being trained. Such an approach can be perfectly done with every single point of the list.

Secondly, the issue of the DPOs active and meaningful involvement is vaguely mentioned only in connection to the Disability Bill, issue addressed in the previous questions. Still, we can observe that, currently, many decisions affecting persons with disabilities are made without consultation with them and their representative organizations. Decision-making processes need to be more fair, open and transparent.

Proposed recommendations on Articles 1-4:

• Urgently undertake the necessary steps to ratify the Optional Protocol to the CRPD and to withdraw its reservations made to articles 9(2)(d), 11 and 24(2)(b) of the Convention.
• Ensure that all policies, programmes and action plans, including the new action plan on disability 2015-2020: a) provides with timeframes, benchmarks, indicators and goals that allow for proper measurement and monitoring, b) foresees the close consultation and active involvement of organisations of persons with disabilities in its design, implementation and monitoring, through formally established procedures, and c) includes the appointment of a high rank governmental body in charge of directing its design and implementation.
• Take steps to fully embrace the social and human rights model of disability in all legislations and policies, adopting the Convention’s conceptualisation of persons with disabilities, and to urgently undertake a systematic process of review and harmonisation with the Convention of all legislations, including explicitly the concepts of discrimination on the basis of disability, including denial of reasonable accommodation.
• Closely consult with and actively involve persons with disabilities, through their representative organisations, in the design, implementation and monitoring of action plans, policies and laws, including the draft bill on disability, ensuring transparency and meaningful participation.

B. Specific rights Equality and non-discrimination (art. 5)

6. Please provide updated information on any steps taken to specifically include disability as a ground for discrimination in the legislation of the State party and to consider the denial of reasonable accommodation as discrimination. Have discriminatory references, such as “persons of unsound mind” and “state of imbecility”, been removed from the State party’s legislation? Please specify the legal avenues available to persons with disabilities to dispute discriminatory laws and practices, and indicate the percentage of such claims for which remedies have been granted.

Currently, there is no definition of reasonable accommodation which reflects the Convention’s definition. The “Employment guide on benefits for business: why and how to employ people with disabilities in Mauritius” (2010) states that reasonable accommodation may include “modification of machinery and equipment and/or modification of the job content, work organization or adaptation of the work environment, to facilitate the employment of individuals with disabilities”.It is welcome news that the State plans to reform sections 3 and 16 of the Constitution to include discrimination on the basis disability, to include the concept of reasonable accommodation as a form of discrimination on the basis of disability in the Draft Disability Bill and to eradicate pejorative and discriminatory terminology from its constitution and legislations.

However, it should also reform articles 34 (1) and 43 of the Constitution that restricts some persons with disabilities’ right to vote and be elected, in contradiction of the CRPD. Consequently, it would be good that the CRPD Committee reinforces and improves this commitment of the State by including this point in its Concluding Observations.

Regarding non-discrimination, the legislation refers to discrimination on the basis of “impairment”, which is not exactly the same. It does not seem to cover discrimination due to a perceived disability. Other notions such as intersectional discrimination and discrimination by association not cover by that legislation.Furthermore, the State admits that this legislation is limited to “various” areas instead of being cross-cutting all rights.

Regarding the legal avenues for redress, the State affirms that Section 17 of the Constitution provides for redress before the Supreme Court. However, given that the Constitution does not include discrimination on the basis of disability, there is no effective means for redress. The State further mentions the Equal Opportunities Commission and the Equal Opportunities Tribunal, bodies created under the Equality Opportunities Act and, thus, carrying limitations.

The State admits not having information on the percentage of claims that have been lodged and the results. It is thus not possible to assess the effectiveness of the complaint system. Moreover, in a previous part of the government’s replies, it stated that “[i]n 2012, 10% of complaints received by the Commission were related to disability issues”, but, besides not being updated information, it does not even mention how many complaints there were.

Proposed recommendation on Article 5:

• Urgently adopt the necessary steps to reform Section 3 and 16 of the Constitution to include discrimination in the basis of disability and to repeal the discriminatory provision of its articles 34 (1) and 43 on political rights.
• Amend existing legislation and adopt the Disability Bill to incorporate discrimination on the basis of disability in line with the Convention and in a cross-cutting manner concerning all rights, ensuring it recognises that the denial of reasonable accommodation amounts to disability based discrimination, as well as intersectional discrimination and discrimination by association.
• Ensure adequate and effective redress mechanisms in cases of discrimination, including appropriate sanctions for perpetrators and redress for victims, as well as adopt and implement positive measures in order to achieve de facto equality.

Women with disabilities (art. 6)

7. Please update the Committee on any programmes, policies and legislation designed to protect women and girls with disabilities from intersectional discrimination and violence and to support them in education, employment and other areas of life, particularly programmes, policies and legislation designed to facilitate access to sexual and reproductive health services and maternal and child health centres in rural and remote areas.

In terms of legislation, it is important to note that the Equal Opportunities Act and the Protection from Domestic Violence Act do not have any specific provisions relating to women and girls with disabilities. Moreover, no legislation provides protection against multiple and intersectional discrimination.

Generally, there is a lack of awareness and absence of a twin track approach to women and girls with disabilities in Mauritius: no mainstreaming of the disability perspective in policies related to women and no specific measures on women and girls with disabilities.

The State mentions the “Forum of Women with Disabilities”, which is composed by NGOs and DPOs, according to its own initial report (para 6.8), and does not explain how the State supports or relates with the Forum. Secondly, it mentions policies directed to women stating they cover women with disabilities, but not indicating how their needs are taken into account.

Finally, the National Women’s Entrepreneur Council (NWEC) was set up in 1999. It is a para-statal body operating under the Ministry of Gender, Equality, Child Development and Family Welfare which aims to provide support and assistance to potential and existing women entrepreneurs in Mauritius. No women with disabilities are part of this Council.

Proposed recommendations on Article 6:

• Urgently adopt a twin track approach on women and girls with disabilities, by developing programs, policies and legislations to protect them from multiple and intersectional discrimination and violence, as well as to support them in the exercise of all rights and facilitate their access to sexual and reproductive health services and victims of violence related services.
• Take steps to ensure that women and girls with disabilities are consulted on an equal basis with other women and girls when it comes to the development and drafting of laws, programmes and policies concerning women and establish a formal consultation mechanism to ensure that women and girls with disabilities across the country are meaningfully consulted and are enabled to participate in the legislative and political spheres.

Children with disabilities (art. 7)

8. Please indicate how the rights of children with disabilities are included in the national children’s policy and the national child protection strategy. Please specify what measures are in place to ensure the full protection of children with disabilities from all forms of corporal punishment in all settings, and how the measures are implemented in practice.