There is a specialist school in Durban that caters for children with disabilities. Several months ago I found myself standing before 18 learners preparing for another day’s teaching of Life Orientation. I taught LO as part of the Public Law module in completion of my LLB. It was the typical teacher-walking-through-the-corridor scene: but atypical of the scene was learners with disabilities loitering in the corridor. Cliques of wheelchairs and crutches, walking sticks and limps, completed by the usual adolescent pig-tails and samoosa-like ties.

After an hour of grappling with key concepts of the Constitution such as equality, dignity and why the right to education is so important in the context of the previously disenfranchised, the first question I was confronted with was by a grade 7 learner. “What are the rights of learners with disabilities? Where, then, do children with disabilities lie?” she piped up.

This is how I tried to answer.

On 16 June 1995 South Africa ratified the United Nations Convention on the Rights of Children (CRC) and later ratified the UN Convention on the Rights of Persons with Disabilities (CRPD) on 30 November 2007. By doing so our government accepted a duty to implement domestic laws that are consistent with the provisions of the vitally important international instruments. The CRPD for example states in article 24:

“In realising this right [to education], State Parties shall ensure that persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live; reasonable accommodation is provided; and persons with disabilities receive the full individual support required within the general education system.”

Influenced by the CRC the Child Care Act, at the time, was amended and became the Childrens Act, which was passed by Parliament and signed by the president on 8 June 2006. The new Act looks at children as rights bearers. This means that children, like adults, are entitled to rights and that the government has a duty and responsibility to fulfil these rights; rights such as access to quality education, special care and a safe environment.

But despite this progress nothing spawned with disability.

I also have to point out that South Africa, unlike the United States of America and Canada, does not have a codified piece of legislation that considers the rights of persons with disabilities exclusively. Both The Promotion of Equality and Prevention of Unfair Discrimination Act (“Equality Act”) and Employment Equity Act, amongst others, have provisions that aim to protect persons with disabilities from unfair discrimination. These provisions arise from the promise of Section 9 of the Constitution which says that all people are equal before the law and that neither the state nor any ordinary person may unfairly discriminate against a person on the grounds of their disability.

This is a step in the right direction. But when we come to education, the problem is that the SA Schools Act does not make any specific provision for children with disabilities. However, provisions are made in guidelines and regulations which impose a duty on the government to make accessible school buildings to all students including provisions being made for learners and staff with disabilities. But these guidelines and regulations are not being implemented. There appears to be a lack of political commitment to the special educational needs of children with disabilities. This is a shame because once there was a hope: In 2001, a White Paper 6 on inclusive education was introduced and proposed. In its executive summary, it noted the need for an entire policy review and that all legislation would have to be reviewed and looked at from the focal lens of disability. But this hasn’t happened.

I would have to answer the question by admitting that unfortunately there are problems with the implementation of children’s rights to basic education facing all children, especially children who are poor and black. There is gross overcrowding; a lack of infrastructure, poor sanitation and textbooks are still pressing issues that need to be dealt with within the framework of mainstream schooling. As we have seen recently, Norms and Standards for School Infrastructure have still not been agreed upon by the government. Without these Norms and Standards, schools remain inaccessible to learners with disabilities. Schools require ramps, Braille and audio textbooks, among other important facilities for learners with disabilities to be included into ‘general’ education.

However, learners with special education needs should not have to wait until these problems are fixed. If they are to enjoy their right to dignity and their equal right to education then extra measures must be taken by the state. As it stands now many disabled learners are unable to access any education – not even a poor quality one. This is unconstitutional.

So what are your rights? Inclusive education and special needs

Inclusive education looks at a learner individually and aims at unlocking the potential of each learner through various means of support. Special needs, then, speak to the means by which a learner is supported. Access to schools by building ramps, provision of Braille textbooks and the allocation of support staff are all ways that can cater for the special needs of learners.

Regardless of the education crisis within mainstream schooling, schools with special needs require extra investment of resources if we are to uphold the dignity of such learners and achieve the model of inclusiveness. But in addition, it must be recognised that not every learner with a disability needs a special school. To create an inclusive system of education, so-called ‘mainstream’ schools will have to be developed to a point where learners with more manageable disabilities can be reasonably accommodated.

So back to the question I was asked: “Where do children with disabilities lie?”

There is nothing like the innocent questions of a child. Ideally all children (particularly those with disabilities) should be able to lie and laugh in a field, having fun together, and playing to their hearts’ content. They ought not to have to worry about the quality of their education, the state of school infrastructure or a model of inclusive education that still requires that able-bodied adults carry out their promise to review of various policy and legislation.

But alas, this is their worry. Now that the youngest of our citizens have realised where they stand, there’s less room for play. That is why those who have the ability to speak out, should begin to do so now. DM