Executive Summary
While Tunisia ratified the Convention on the Rights of Persons with Disabilities, following which the local legal arsenal only knew a simple amendment which did not correspond to the content of the convention, the rights of persons with disabilities remained confined to the media fanfare and political propaganda to which one resorts in case of need.
This group of people suffers from many difficulties; not only are they deprived of adequate and inclusive education, they also do not have access to suitable means of transport…
Introduction
According to 2014 statistics[1] from the National Institute of Statistics, the number of individuals with a disability in Tunisia is 241.000, a rather underestimated number according to reports from the World Health Organization, as it will be later explained.
It is therefore the duty of the State to protect this social category. At a time when the media war linked to political conflicts and professional sectoral demands continues, and when everyone is exhaustedly trying to influence the trends of the democratic transition, many social priorities have been pushed to the margin, such as care for people with disabilities.
The failure of the Tunisian state to adopt the necessary legislation and measures to protect the rights of people with disabilities
The specificity of the legal definition of the concept of person with a disability in the international Convention
According to the first article of the Convention on the Rights of Persons with Disabilities of 2007[2], the term disabled person encompasses “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” It is therefore no coincidence that the commonly used word (handicapped) has been dropped, a term entailing a discriminatory negative connotation.
As for the choice of the expressions “people with a disability,” or “disabled person,” they seem to be the most scientifically accurate terms, because they are in line with the modern anthropological perspective, which refuses to draw a separation line between individuals, societies and groups, and the fact of seeing people with disabilities as part of the diversity that is proved by human nature.
This definition is distinguished by its medical origins (long-term physical, mental, intellectual or sensory impairments) and its purpose is essentially social and legal[3].
This convention shows the interrelation between the medically diagnosed state of health and the social situation which prevents a person from enjoying their rights and participating effectively in social life. This requires the implementation of a legislation that facilitates their integration into society and access to their fundamental rights, by guaranteeing equal opportunities and equality between individuals[4].
The convention is based on the principles of dignity, freedoms, and rights of such persons, while taking into consideration their privacy and their autonomy. By examining the terms of section three and what follows it, we can classify these principles into two categories:
- The first category refers to the fundamental rights and freedoms enjoyed by persons with disabilities like everyone else. These rights are enshrined in the Universal Declaration of Human Rights[5], and include the adoption of the principle of non-discrimination.
- The second category refers to the principles that take into consideration the particularity of people with disabilities in the context of human diversity. It states the need to accept them , to respect their capacities, and their right to preserve their identity, as well as to involve them in society fully and effectively, without confiscating their right to choose and their autonomy.
These principles attempted to correct the prevailing negative stereotypical view and find a human rights-based approach that obliges States Parties to fulfill their obligations towards people with disabilities. Consequently, a human rights protection system has been adopted; it obliges States Parties to take legislative and administrative measures that protect the rights of persons with disabilities, regardless of the type and degree of disability, without any discrimination[6], and to work for their entry into force. These measures should overcome and go beyond traditional approaches based on care, which consider this category of people as a burden on society.
General obligations outlined in the convention
These obligations mentioned in article 4 of the convention can be summarized in the following points:
- The human rights-based approach aims to protect minorities and the most marginalized groups, such as people with disabilities, and improve their situation. The social and legal approach must have an impact at the level of domestic legislation as stated in the convention.
Countries that ratify the convention must adopt the appropriate legislative framework if they do not already have one. Accordingly, they must carry out a comprehensive review of the national laws pertaining to persons with disabilities, to identify and address their shortcomings and the means of their implementation, in partnership with persons with disabilities and the organizations that represent them[7], as well as all concerned parties. All types of disability, whatever their degree, should be taken into account in legislation, reflecting the general principles of the Convention.
- The fundamental objective of the convention is to reduce obstacles and difficulties so that people with disabilities can manage the environment around them on an equal footing, and so that they can fully integrate in society. Under this convention, States Parties are obligated to enable persons with disabilities to enjoy the rights that would make their lives easier, such as the right of accessibility, outlined in article nine of the convention[8].
Accessibility, or access to the physical environment, means of transport, information and communication systems and services, is an essential condition for the full and equal participation of persons with disabilities[9]. Article nine provides a comprehensive description of this obligation. Without an adequate environment and appropriate means, people with disabilities cannot exercise and enjoy these rights, whether in the public or private sectors. It is impossible to talk about the right to travel when appropriate transport is not provided[10].
An abundance of legislation without great efficiency
Law n ° 83 of August 15, 2005 regarding the promotion and protection of “handicapped” people represented, at the time of its promulgation, a legislative development because it aimed to guarantee equal opportunities to people with disabilities, and protect them from all forms of discrimination[11].
It was supported by the promulgation of the United Nations Convention on the Rights of Persons with Disabilities on December 13, 2006[12], and was signed on March 30, 2007. It is based on international human rights law and seeks to remove barriers that prevent persons with disabilities from fully enjoying their rights.
Tunisia has ratified the convention on the rights of people with disabilities under the law n°2008-4 of February 11, 2008, published in the Official Journal of the Republic of Tunisia under the decree n ° 2008-1754 of April 22, 2008[13], as a serious attempt to protect the rights and dignity of people with disabilities.
Despite legislative inflation and the transition to a human rights system, as well as the obligations resulting from the ratification of the 2007 convention, the issue of the rights of persons with disabilities has remained trapped in traditional theories and certain framework laws, orders and decisions that appeared before the establishment of the International Convention.
From a constitutional point of view, Tunisia is in compliance with the laws pertaining to persons with disability; article 48 of the Constitution of 2014 states that: “Every disabled citizen shall have the right to benefit, according to the nature of the disability, from all measures that will ensure their full integration into society, and the state shall take all necessary measures to achieve this.”
Despite the legislative guarantees introduced in this article, this constitutional framework is still non-existent in current laws and legislation. Even the framework law n°83 of 2005, of August 15, 2005, on the promotion and protection of disabled people, is not sufficient because it is limited to the medical perspective, which conceives of disability as a problem only, a condition that requires medical intervention to be prevented.
The framework law n°83 (even after its revision) proved incompatible with the provisions and principles of the convention. Although it partly took into consideration the social approach to the concept of disability, it was still centered around the care approach and the medical approach. The second chapter is entitled “Preventing Disability,” which contradicts the very essence of the international convention and the principles of inclusion and acceptance. This law should have described people with disabilities as part of the natural human diversity rather than making disability a problem to be prevented.
In addition, in chapter five, health care and social care are seen as special needs of people with disabilities and not as rights that the state must respect, which, in one way or another, further foregrounds the care approach.
This approach does not treat people with disabilities as having rights that must be preserved and protected. It is enough to look at the first sentence of article 17 of the framework law to see it: “When necessary, the state, local communities, and competent structures take measures to support handicapped persons if they are needy and suffering from a severe disability that is duly acknowledged, or when they are without support.”
The term “handicapped people” used here is an expression that hides a discriminatory normative differential connotation between a “disabled” person and a “non-disabled” person.
This discrimination negates human diversity and perpetuates the denigration of this group of people. In addition, this sentence ignores the rights of people with a disability who belong to a well-off environment.
Far from entering into an interpretative play of the framework law, the difference between this law and the convention is a matter of method, terminology and holistic approach which takes into consideration the notion of disability, rights, duties, responsibility, equality, transparency and participation.
In this regard, “Fraj Ben Mohamed,” president of the General Association of Reduced Mobility in Douz, declared that the legislative mechanism concerning people with disabilities in Tunisia “is still insufficient and far from what is hoped for, because many laws are not implemented, and are not based on a human rights approach.” He stressed that the state did not honor its commitments after it signed the United Nations Convention on the Rights of Persons with disabilities, adding that article 48 of the Constitution remains a dead letter[14].
The secretary general of the Tunisian Organization for the Defense of the Rights of Persons with Disabilities says that the laws evolved after the “revolution,” but that in practice, the rights have regressed. She considers that the problem lies in the implementation of these laws to allow the integration of this group of people[15].
The convention sought to establish an integrated approach to enable people with disabilities to exercise their rights on an equal basis with others, by obliging States parties to ensure access to rights, and organizations working in this field to work to increase their capacities as well as those of people with disabilities. It is also important to underline the failure of society, the State, and citizens regarding the issue of access to public spaces, be it administrations and institutions or outdoor spaces and roads, and this despite the existence of legislation that imposes accessibility and punishes offenders, but that has no practical and realistic impact.
The modalities of putting into practice this arsenal of legislation
Although the convention does not introduce new rights for this group of people, it sets specific standards to ensure their implementation, which is the minimum threshold that States Parties must respect. Unable to take into account all of the outlined measures because of their multiplicity, we will limit ourselves here to a few practical examples which would change the daily lives of people with disabilities.
Work to correct derogatory terms and provide a comprehensive statistical study
The first thing to do is to reformulate the terminology and completely abandon the derogatory terms that are associated with the notion of “handicapped persons” such as the concept of special needs and care… and therefore, stop working with the framework law n°83 of 2005 by repealing it, not by modifying it (Revised by the law n ° 2016-41 of May 16, 2016, this law provides for the deletion of article 29 and its replacement by new provisions which stand in line with an increase from 1 to 2% of the percentage of annual assignments of the public service, which is unfavorable to people with disabilities), and work on drafting an alternative law that does not contradict the essence of the convention and that is centered around a human rights approach that transcends medical and charitable approaches. Even the texts, regulatory decrees and decisions that have been issued previously with the aim of guaranteeing the rights of people with disabilities are not enough, despite their partial compatibility with the aforementioned convention.
Another no less important point is that the statistics provided on the basis of the handicap card are incorrect and need to be reviewed, as they are obtained by fraud in order to enjoy certain benefits.
According to figures from the National Institute of Statistics, there are approximately 241,000 people with disabilities in Tunisia, but according to World Health Organization reports for 2007, more than a billion people around the world live with some form of disability, which represents around 15% of the world’s population, or more than one in seven people. The difference in the percentage of people with a disability between the world population and that of Tunisia is still statistically unexplained, being very low in Tunisia, according to the aforementioned statistics. Hence the importance of having more comprehensive figures to be publicly shared and discussed.
Bringing this reality forward will allow people with disabilities to come out of the shadows to confront society[16], which is desired, in order to raise awareness in society and accelerate the implementation of Tunisia’s national and international commitments.
The Right to Education
Under Article 24 of the Convention, the Tunisian State is required to provide people with disabilities with access to inclusive quality education at the primary and secondary levels on an equal footing with others, as well as the possibility of accessing this right. Even before the Convention’s entry into force, Tunisia adopted the integration program and promulgated it under a framework law for education and teaching 80-2002 of July 23, 2002. This law supports the concretization of equal opportunities and emphasizes the right of children with disabilities to enjoy appropriate conditions allowing them to benefit from an education that makes them independent and facilitates their effective participation and integration into society[17].
Therefore, it is important to change the policy adopted in public schools in order to meet the needs of all children and adolescents with disabilities. The new policy must take into account human diversity in order to establish inclusive education and respect the principles of equality and non-discrimination. Laws should make it clear that the inaccessibility and exclusion in mainstream schools are forms of discrimination as they are governed by the concept of disability, as stipulated in the convention and as acknowledged in the International Covenant on Economic, Social and Cultural Rights, as well as in the Salamanca Statement[18].
The text of the convention outlines a set of minimum conditions that guarantee the right to inclusive education specifically mentioned in Article 24. However, inclusive education in Tunisian schools cannot be implemented without recruiting qualified staff and without putting in place an adequate pedagogical framework.
It is also necessary to work on making sign language and braille official languages in order to ensure that people who face barriers in communication are not excluded from the public education system which should offer good quality content for this large group of people[19].
In order to ensure equal opportunities for people with disabilities, while taking particular account of their needs, the state or the supervisory structures are required to enable them to acquire skills and capacities which allow them to work in the education system, so that their participation in education and in their societies is full and effective.
The right to access
Equality in rights, as stipulated in the convention, requires the ensuring of the exercise of these rights without discrimination. However, the only difference lies in the means that are necessary to exercise certain rights. For example, slopes for wheelchair users are a necessary means for wheelchair users to exercise their right of access. Furthermore, the right to work cannot be exercised without adequate facilities, such as a well-equipped transport fleet that guarantees the mobility of people with disabilities. It is imperative that the difference in the means of exercising the law does not serve as a justification to deny or restrict its exercise, or totally disrobe those who have recourse to it[20].
Other problems also hamper people with disabilities’ integration into society, for example, the problem of access within institutions, due to the lack of equipment and the lack of awareness of the right of people with disabilities to access information, even in relation to the media, regarding people with visual, hearing, and mental disabilities.
The ISIEInstance Supérieure Indépendante des Elections has adopted sign language in all of its activities and media events in the legislative and presidential elections, which was a first for deaf people. The problems faced by people with visual disabilities differ according to the difference and specificity of each disability, but generically, they are the same.
In conclusion, on the basis of the aforementioned reflections and information, the state should adopt new legislation detailing the broad lines outlined in the constitution, provided that such legislation is accompanied by measures that preserve the rights of persons with disabilities as citizens and ensure their inclusion, respect for their independence, dignity, difference, and accessibility, as well as the implementation of appropriate arrangements, as stipulated in the third article of the convention.
Recommendations
Legislative Power
- Repeal the 2002 framework law for non-compliance with the spirit of the United Nations Convention on the Rights of Persons with Disabilities
- Put in place a new law that is in conformity with the Constitution (article 48) and with the Convention in the second place, and gather the scattered texts in a legal journal.
Executive Power
- Set up a communication and coordination mechanism within the government to ensure the implementation of international commitments and follow-up with all ministries and regional authorities. Ensure that the relevant ministries (Ministry of Public Health and Ministry of Social Affairs) deal with issues pertaining to people with disabilities by applying the principle of non-discrimination.
Ministry of Social Affairs
- Train specialized capacities in methodologies and guidelines for monitoring and developing the local social approach for the implementation of the obligations outlined in the convention, all while following a scientific approach.
- Put in place sustainable development policies that include people with disabilities in their programs as rights holders in a participatory framework with relevant organizations, so that disability does not become a separate issue that requires special policies.
Ministries of Education and of Higher Education
- Work towards the implementation of inclusive education for people with disabilities.
Ministry of Transportation
- Ensure the provision of public transport and spaces that allow people with disabilities to exercise their rights, taking into account all types of disability: hearing, visual, motor, etc.
Organizations and Civil Society
- Create an independent national monitoring mechanism, or set up a specialized unit dealing with the issues of people with disabilities, within the Higher Committee for Human Rights and Fundamental Freedoms.
- The organizations representing people with disabilities should conduct advocacy and mobilization campaigns to impact ministries and institutions to make their programs inclusive and non-discriminatory towards people with disabilities.
[1]Reports of the National Institute of Statistics pertaining to the census of 2014. https://cutt.ly/qUfNsdH [2]The Convention on the Rights of Persons with Disabilities of 2007.https://www.ohchr.org/AR/HRBodies/CRPD/Pages/ConventionRightsPersonsWithDisabilities.aspx#2[3]Mouhannad Salah Al-Azza, The Convention on the Rights of Persons with Disabilities between the Requirements of Implementation and Effective Monitoring, Social Studies Collections No. 68, Jordan, 2011, p. 31. http://gcclsa.org/uploaded/files/68-2011.pdf[4]Jamel Mouhamed Al-Khatib, Introduction to the rehabilitation of people with disabilities, Dar Wael for Publishing and Distribution, Jordan, 2010, p. 25. [5]The Universal Declaration of Human Rights is an international human rights document that represents the declaration adopted by the United Nations on December 10, 1948. The Declaration guarantees fundamental human rights and includes 30 articles. https://www.un.org/fr/universal-declaration-human-rights/index.html[6]Article 2 of the Universal Declaration of Human Rights of December 10, 1948.[7] Article 4, paragraph 3 of the 2007 Convention on Persons with Disabilities.[8] Article 9 of the Convention regarding the Independent Rights of Persons with Disabilities. In order to enable persons with disabilities to have satisfying lives and to participate fully in all aspects of their lives, States Parties shall take appropriate measures to ensure, on the basis of equality with others, access to physical environment, transportation, information and communication, including information and communication systems and technologies, and other open equipment and services or provided to the public, both in urban and rural areas. Among these measures, we find the identification and elimination of obstacles and barriers to accessibility.[9] Lotfi Ben Lallahom, The Working Mechanism of the United Nations Committee on the Rights of Persons with Disabilities. Publications of the Geneva Institute of Human Rights 2014. p.16.[10]Iyadh el-Sadek elAmami, International Convention on the Rights of Persons with Disabilities, Almanal electronic magazine, September 2015. https://almanalmagazine.com/بحوث-ودراسات/الاتفاقية-الدوليّة-لحقوق-الأشخاص-ذوي/[11] Chapter 1 of the framework law n ° 2005-83 of August 15, 2005 pertaining to the promotion and protection of people with disabilities. http://www.droit-afrique.com/upload/doc/tunisie/Tunisie-Loi-2005-83-promotion-protection-handicapes.pdf[12]The text was adopted by the United Nations General Assembly on December 13, 2006 and opened for signature on March 30, 2007. After ratification by 20 countries, it entered into force on May 3, 2008. In March 2015, 153 parties ratified it and 159 parties signed the convention, among them is included the European Union (which ratified it on December 23, 2010 to limit the responsibilities of member states in terms of transport to the ‘EU). In December 2012, the US Senate voted for its ratification. The Convention is monitored by the Committee on the Rights of Persons with Disabilities.[13]United Nations, Committee on the Rights of Persons with Disabilities. Implementation of the International Convention on the Rights of Persons with Disabilities. Initial report submitted by States Parties under article 35 of the Convention, Tunisia *, United Nations Yearbook CRPD / C / TUN / 11 2010, page 8.[14]Raja Gharsa, Access to Services and Information, A Concern to Protect People with Disabilities in Tunisia, an article published in Ultra Tunisia on October 14, 2019. see the link:https://ultratunisia.ultrasawt.com/[15] Ibid. [16] Disability statistics: the Tunisian Deception. Published in Cahiers de la Liberté on November 19, 2020.https://cutt.ly/qUfNsdH [17]Najwa Joubali, The Impact of Teachers’ Attitudes in Inclusive Classes towards students with hearing Impairments and their Appropriation of Inclusion Methods, Handicap et Prévention magazine, December 35, 2016. p. 11, 12. [18] Jamel Mouhamed Al-Khatib, Mona Subhi Al-Hadidi, Contemporary Issues in Special Education, Dar Wael for Publishing and Distribution, Jordan 2010, p.86 and following.[19]Fawzia Maghazawa and Najwa Joubali, (Attitudes of Teachers in Inclusive Schools towards Inclusive Education, Handicap et Prévention magazine, issue of March 33, 2014, pp. 29-30.[20]Mouhannad Salah AlAzza, The Convention on the Rights of Persons with Disabilities between the Requirements of Implementation and Effective Monitoring, ibid.
