The concept of human dignity has strongly been associated and linked to the issue of justice, whereby a person claims to have rights.602 Human dignity as a right is directly linked to human laws and international charters on rights and duties of a person.603 It has further entered into the domain of bioethics, with special emphasis on the promotion and affirmation of human life.604 Gottschalk, in his work on political philosophy in Africa, stated that a number of pre-colonial societies in Africa had legal norms, that is, the norms based on the principle of the presumption of someone’s innocence and a marked preoccupation with the right to life that could only be abrogated in the case of manslaughter and deliberate murder only after a long judicial review of the case in question.605 There is a clear scholarly
observation that the laws on human rights acted as beacons for the preservation and promotion of a person’s dignity.
In Africa in general we have a unique concept of rights.606 Though the basic principle of
human rights is that of being universal in their very nature, in the African context one can still claim individual human rights.607 In Africa, human rights have a communitarian
602 Vatican Council II, (1965), Gaudium et Spes: A Pastoral Constitution on the Church in the Modern World, 7th December, Article 27 entitled ‘Respect for the Human Person’ says: ‘Everyone should look upon his neighbor without exception as another self, and lists as crimes: all offenses against life itself such as murder, genocide, abortion, euthanasia and willful suicide, all violations of the integrity of the human person, such as mutilation, physical and mental torture, undue psychological pressures; all offenses against human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children, degrading working conditions where men and women are treated as mere tools for profit rather than free and responsible persons; all these things and the like are criminal, they poison civilization and they debase the perpetrators more than the victims and militate against the honor of the creator. In this article, there is a strong appeal to justice as means to achieve human dignity.
603 United Nations, (1948), Universal Declaration of Human Rights, Article Nos. 1-3.
604 Frontiers of Justice, (2008), Disability, Nationality, Species Membership, in Human Dignity and Bioethics:
Essays Commissioned by the President’s Council on Bioethics, Washington DC: Government Printer, 351- 380.
605 Mutua M., (2002), The Complexity of Universalism in Human Rights, A Lecture delivered at 10th Annual Conference on Individual vs. the State Central European University, Budapest, 14-16 June. On-Line: www.ceu.hu/legal/indiv_vs_state/Mutuapaper_2002.htm.
606 Gawanas, B., (2000), The African Union: Concepts and Implementation Mechanisms Relating to Human
Rights, in http://www.kas.de/upload/auslandshomepage.namibia/Human-Rights-in-Africa/6-Gawanas. 135. Posted on December 14, 23:20 GMT. The AU in contrast to the OAU, made human rights an explicit part of its mandate as embodied in its Constitutive Act and mainstream human rights in all its activities and programmes. In Africa, the human rights discourse cannot be divorced from its historical context or the prevailing political, social, economic, and cultural conditions on the continent particularly when it is understood that the struggle for human rights and the establishment of a human rights system are products of a concrete social struggle.
component, by which human rights are claimed within the communitarian value of the individual person, who belongs to the community.608 Human rights are thus acknowledged and dominated by community thinking.609 To this effect, the enforcement of human claims involves the individual person and the community. It is therefore important that a model that is responsive to the African communitarianism be adopted. Rwiza highlighted three theories pertaining to human rights: rights as a claim, rights as entitlement or interest and rights as trumps.610 Rights as trumps have a special normative force, because they provide a particularly powerful or weighty reason which overrides other considerations.611 Rights in this case permit their holders to act in a certain way or give reasons to treat their holders in a certain way, even if some social aim would be served by doing otherwise.612 From the above discussion, we recognize that some rights have higher priority than others. In consideration of this understanding, children with disabilities ought to have the absolute right not to be made victims of any sort of homicidal acts or tendencies. It would then be understood that human dignity would be something higher and deeper than mere precepts of the state. To this effect, it i.e. human dignity as a concept, could be regarded as something that is inherent in every person.613 Such an academic view of human dignity led to the
development of an egalitarian view of human rights614. Lindner, in her work on the concept of human dignity as a right, adopted the Kantian version, which states that equal dignity means that, although one is poor, he or she can have full dignity.615 However, what is
necessary for the person in particular in the African context is the societal framework, societal structures and societal norms that give someone political rights.616 Egalitarianism is defined as impartiality, equal shares to all, equal shares to equals, proportional equality, unequal shares corresponding to relevant differences and to give to each according to his
608 Rwiza, N.R., (2010), Ethics of Human Rights: African Perspective, Nairobi: CUEA Press, 156. 609 Ibid.
610 Ibid. 4-8. Right as a claim is understood to facilitate a link between rights and duties. Rights are conceived as rights to – as in the case of the right to life, freedom, and happiness and not as rights against.
611 Anderson, A.K., (2013), Choices, Interests, and Potentiality: What Distinguishes Bearers of Rights? In
Journal of Value Inquiry, Stanford: Stanford University Press, Vol. 47, 175-190.
612 Ibid.
613 Pontifical Council for Justice and Peace, (2004), Compendium of the Social Doctrine of the Church, Nairobi: Pauline’s Publications Africa, Article 132, 72.
614 Buchanan, A., (2005), Equality and Human Rights, 4 Politics, Philosophy and Economics, New York: McGraw-Hill, 69-90.
615 Lindner, E.G., (2006), The Concept of Human Dignity in www.humiliationstudies.org. See also World
Conference on Racism, Racial Discrimination, Xenophobia, and Related Intolerance in Durban (South Africa) 31st August to 7th September, 2001.
needs, which implies the realisation of equal dignity for all.617 With reference to the current
existential reality in the region regarding children with disabilities, there is some sort of a great deal of regression. We note a gap between the theory of egalitarianism and practice on a regular basis especially regarding the call for equal dignity and equal basic human rights seems to be much empty rhetoric.618 Children with physical and mental disabilities remain one of the vulnerable group of people in the region. Lindner added that people in the country seem to live in an undignified and ramshackle global village, where millions live in abject poverty.619 To a certain degree, a good number of people in KwaZulu-Natal are struggling and they live in conditions that violate the very nature of human dignity.620 One of the key facets of 21st century democracy, according to Carozza, is the primary importance given to the protection of human rights.621 Carozza understood human dignity as the expression of a basic value accepted in the broad sense and constituting the first cornerstone in the edifice of human rights.622 We can then see a fundamental value in the notion of human dignity and how it raises the ethical questions on human rights. Carmi affirmed the stipulated notion of human dignity as pivotal rights deeply rooted in any notion of justice, fairness, and society’s basic right.623 Human dignity, understood as rights, has revolutionized the universe to the
extent that, in the realm of law and order in society, there is an appeal to human rights in all sectors of life.624 In this case, the research directly affirms that human rights are regarded as
pillars, safe-guarding, and promoting the concept of human dignity. There is then a deep sense of the affirmation of the core value of the person including children with disabilities and regarding the current discourse, this could be called the concept of human dignity. The International Covenant on Civil and Political Rights affirmed that rights contained in their charter were derived from the inherent dignity of the human person.625 Such conventions,
617 Oppenheim, F.E., (1972), The Concept of Equality: Traditional Criteria of Egalitarianism in Sills, D.L., (Ed), (2000). International Encyclopedia of the Social Sciences, New York: The Macmillan Company & The Free Press, Vol. 5, 103-104.
618 http://www.humiliationstudies.org. See also Evelin Gerda Lindner (2001), The Concept of human Dignity, presented at the World Conference on Racism, Racial Discrimination, Xenophobia, and Related Intolerance in Durban (South Africa) 31st August to 7th September.
619 Ibid.
620 Statistics South Africa, (2014), Poverty Trends in South Africa: An Examination of Absolute Poverty
Between 2006 and 2011, Pretoria: Statistics South Africa, 25-47.
621 Carozza, P.G., (2003), Subsidiarity as a Structural Principle of International Human Rights Law in
Columbia Human Rights Law Review, 97 Am J. Int’1 L. 38,46.
622 Ibid.
623 Carmi, G.E., (2007), Dignity – The Enemy from Within: A Theoretical and Comparative Analysis of Human
Dignity as a Free Speech Justification, 9U. Pa. J. Const. Law, 957-966.
624 Eleanor, S. (Ed), (2005), The Role and Effectiveness of Disability Legislation in South Africa, Pretoria: Disability Knowledge and Research, 17-30.
625 Schachter, O., (1983), Human Dignity as a Normative Concept in the American Journal of International
according to Schachter, proclaimed that the recognition of the inherent dignity and equal and alienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.626 It follows, then, that when someone wants to know the rights of an individual person, there is need for an introspection of one’s own inherent dignity that is necessary for protection and promotion of human life.
3.5.1.1. SETBACKS WITH THE CONCEPT
From the above discussion and exploration of human dignity as rights, we acknowledge the gap between what is stated in the Constitution of the nation and in the various human rights’ charters or conventions and the practice on the ground. In consideration to what is now given in the first chapter, we understand the plight of children with disabilities as something real in the region despite the stipulations of the various legal, social, religious, and political declarations regarding the rights of children with disabilities. By not acting on the laws relating to children with disabilities is tantamount to the escalation of violence and child abuses. We are then inclined to state that any level of negligence on the implementation of policies and laws would frustrate the aspirations and the intended goals of human right charters. The above sentimental argument is expressed in Soobramoney’s case in Durban, South Africa, citing a clear indication of sabotage and violation of a basic right to life.627 In this context, the court’s pronouncement on social rights affirmed their integral connection to human dignity, freedom and equality.628 The fact that there are limited resources in the medical field does not justify the denial of someone’s basic right to life.629 Institutions like
the health sector ought to have given or allocated the patient other dialysis treatment in order to ensure that his or her inherent right to life is safe-guarded. Unfortunately, the situation in this regard is contrary to the holistic understanding of human dignity as a right particularly when it comes to complicated cases involving children with disabilities.
The research acknowledged that in the current dispensation of human rights in the region, there is limited emphasis on the concept of human dignity; rather what is often articulated
Charter for Human Rights, Article 1: Universal Declaration on Human Rights which states that all human beings are born free and equal in dignity and rights………
626 Ibid. 2.
627 Soobramoney suffered from a combination of serious ailments rendering his condition irreversible, there was treatment that could prolong his life and not necessarily to cure him. Due to shortage of the dialysis treatment for patients of that severity, the medical institution denied the patient of the treatment because his situation was unredeemable and granted other patients whose situation could be reversed. The case went into court: Soobramoney vs. Minister of Health, KwaZulu-Natal, 1997 (12) BCLR 1696 (CC), South Africa. 628 Ibid.
clearly in the public arena is the claim of one’s rights.630 One of the predominant set back of
the concept of human dignity as rights is that there is too much emphasis on one’s rights, rather than on one’s duties. In this case, we refer to the duties of primary care givers and mothers of children with disabilities. The understanding is that mothers or families have the primary duty towards their children with disabilities. There is an understanding that some might have been evading their duties as parents hence risking the lives of children with disabilities. From the discussion above, human dignity as rights may remain as an ideological phenomenon which may have limited impact on people in society. The term “ideologies” in this regard implies a system of thought that claims to be true theoretically.631 It involves modes of thinking and acting, systems of values, symbolic codes that give groups structural unity.632 The present research firmly attributes the current human malaise to the lack of the implementation of the rights of children with disabilities hence they remain at the level of theory and not practice and at the expense of the inherent human dignity.