RAZONES Y EFECTOS

The PwDA prohibits discrimination against disabled people in education, employment and in relation to the provision of goods, services and facilities. However, it does not provide an overarching definition of discrimination. In each field, it describes acts or situations that constitute discrimination. In education, the acts constituting discrimination against disabled persons are as follows:

a person discriminates against a disabled person in education services if that person refuses or fails to accept an application for admission in an educational institution by a qualified person because of that person‟s disability;123 or if the terms or conditions of admission to his or her educational institution exclude persons with disabilities;124 or by denying or limiting access to any benefits or service provided by the educational institution to a student with a disability;125 or expelling a student because of his or her disability;126or by subjecting a student with disability to any other unfair treatment, relating to his disability.127

The conditions also include denying a disabled person educational services on grounds of his or her disability‘.128

However, discrimination shall not be deemed to have occurred to any person denied admission to an educational institution established primarily for students who have a particular disability where that person does not have that particular disability.129

To get to the extent to which the Act‘s meaning of discrimination prohibits discrimination requires scrutinising the meaning of key phrases used in respect to 123_{PwDA s 6 (2) (a).} 124_{Ibid s 6(2) (b).} 125_{Ibid s 6(2) (c).} 126 Ibid s 6(2) (d). 127 Ibid s 6(2) (e). 128 PwDA s 6(1). 129_{Ibid s 6(3).}

the known forms of discrimination in equality law discussed in chapter two. These phrases are: on entry to educational institution- ‗refuses or fails‘ and ‗terms of admission excluding disabled person.‘ On participation in the institution -‗denying or limiting access,‘ ‗expelling on grounds of disability‘ and ‗subjecting disabled person to unfair treatment.‘ Unfortunately, the Act does not define these phrases neither have they been subjected to judicial interpretation due to rare litigation on disability in the country.

This research explains the meaning of those phrases as follows.

a) On entry or admission to educational institution: Refusing to admit a disabled person to an institution who qualifies to be admitted because of his or her disability amounts to direct discrimination on grounds of disability. Failing to admit a qualified disabled person amounts to either direct or indirect discrimination on grounds of disability. Because the reasons for failure to admit can be intentional based on prejudices about a person‘s disability or can be based on known conditions, criterion or practices in the institutions that excludes disabled people. Similarly, setting terms of admissions into educational institution that exclude a qualified disabled student amounts to both direct and indirect discrimination against disabled people. If the terms are based on prejudices then they amount to direct discrimination. If the terms are grounded on the factors which appear innocent but with discriminatory effects, then those terms would amount to indirect discrimination.

b) On participation in the institution: Denying access to disabled students to services amounts to direct discrimination against them on the services. And limiting access to disabled students to services amounts to indirect discrimination. Limiting access could be viewed in various ways including- opinions that there are courses disabled students cannot do, not enabling the blind fully accessing reading materials, the deaf attending lectures without sign language interpreter and physical accessing limiting movements by wheelchair users. Expelling a student from an institution

because of his or her disability amounts to direct discrimination on grounds of disability. Subjecting a disabled student to unfair treatment because of his or her disability amounts to not only to either direct discrimination or indirect discrimination but also to harassment of the disabled student. Unfair treatment can be taken to mean an institution not mindful of the conditions of a disabled student that if not addressed can disadvantage the disabled students as compared to non-disabled student in a similar environment. Examples of unfair treatment in regards to a disabled student include- allocating a student with physical accessibility challenges inaccessible room at accommodation place, conducting lectures in inaccessible environment, not making reading materials in accessible format for the blind, not providing a sign language interpreter for the blind when it‘s required. Unfair treatment of a disabled student can lead to denial or limiting access to the services by institution to disabled students.

It can then be stated that the phrases on the Act‘s meaning of discrimination could potentially be interpreted widely as prohibiting intentional discrimination on grounds of individual differences, that is to say direct discrimination. Also, it is prohibiting discrimination against disabled people arising from unintended direct discrimination such as innocent educational practices, provisions, criterion, policies and wider accessibility challenges seen to be disadvantaging access to education by disabled people- that is to say indirect discrimination.

However, the meaning of discrimination entailed in Act is limited on the grounds that, it does entail the concept of reasonable accommodation. Failure to provide reasonable accommodation is now a recognised form of discrimination in the context of equality law130 as discussed in chapter two and as provided for in the CRPD in article 5, discussed in chapter three. The aim of reasonable

130

L Waddington ‗Reasonable Accommodation‘ in D Schiek, L Waddington and M Bell (eds),

Cases, Materials and Text on National, supranational and International Non-Discrimination Law (Hart Publishing, Oxford 2007) 629.

accommodation is to bring about adaptation and change of the environment in order to remedy the detriment associated with the interaction between environment and impairment. The potential impact of reasonable accommodation is that it can bring about institutions adopting a proactive approach of avoiding discriminating against disabled students.

Another limitation that is seen with the Act‘s meaning of discrimination relates to the concept of affirmative action. In Uganda, affirmative is a benchmark in advancing equality for disabled people as earlier on discussed in this chapter. The limitation here is that, the Act does not recognise that failure to apply the affirmative action in the admission of disabled students into higher education amounts to discrimination. It is arguable here that, if Act makes such a provision, it would compel all categories of institutions of higher education to apply affirmative action as a legal requirement. At the present, its only public universities as mandated by UTIA that applies affirmative action as discussed before in this chapter.

As discussed in chapter two, examining discrimination against disabled people through a legal remedies approach solely will not bring about access to education for disabled people without discrimination on the basis of equal opportunities as required by the CRPD. It requires the dismantling of systemic barriers in the institutions of education such as accessibility related challenges, ignorance of staff about specific disability needs, and provisions, criteria or practices which are historically embedded in education. It requires matching the needs to the appropriate support to bring about equal participation of disabled people in teaching and learning. This calls for proactive approaches that address all factors impacting on access to education. This means, it requires bringing in institutions to deal with issue of exclusion in a proactive manner. In that way, institutions would be redressing disadvantage experienced by disabled people, accommodating difference and facilitating full participation of disabled people in education. Despite the limitations identified in the meaning of discrimination, the Act tries to bring the proactive approach in other provisions. These provisions are the promotional of educational services for disabled people and a duty to

meet accessibility requirements, which the discussion is turning to in the next sections.