1.3 PRECEDENTE JURISPRUDENCIAL
1.3.1 Sentencias de Interés sobre el Tema.
The aim of meaning of disability in a disability discrimination law like the PwDA is of determining the scope of those who deserve to be protected against discrimination based on their disability. In that respect, such meaning should not impose a challenge to those claiming discrimination against because of their disability to prove that they have a disability.
The PwDA defines disability as ‗a substantial functional limitation of daily life activities caused by physical, mental or sensory impairment and environment barriers resulting in limited participation.‘108
And a person with disability as ‗a person having physical, intellectual, sensory or mental impairment which substantially limits one or more of the major life activities of that person‘109
Judging the Act‘s meaning of disability based on its main attributes, notably, ‗substantial functional limitation,‘ ‘daily living activities‘ and ‗limited participation,‘ it can be stated that, its meaning can be restrictive and knotty for a claimant to prove a disability. Restrictive in the sense that it has the potential of locking out those facing discrimination arising from their impairments when the impairments are not considered substantially limiting. Couple to this challenge is the fact that the PwDA does not provide definition of what substantial or daily living means. The Act simply seeks the medical doctor to determine what that entails110 based on the disability coding provided for in schedule 1 of the Act. In this coding, disability is perceived to be largely medical rather than a social issue and is classified according to its cause: amputation,111 general diseases,112
108PwDA s 2. 109PwDA s 2. 110Ibids 4(3).
111Amputation; from the Disability Coding, this includes: A.One Arm, B. Both Arms, C. One Leg, D. Both Legs, E. One Arm, One Leg and other multiple,
112
General Diseases; from the Disability Coding, this includes: F. Arthritis and Rheumatism, G. Diseases of the digestive system, H. Diseases of the urine-genital system, I.Diseases of the heart or circulatory system.
diseases of the respiratory system,113 skin diseases,114 ear and eye defects,115 common injuries, 116 mental disorders, 117 organic nervous diseases,118tuberculosis119 and others.120 While it can be argued that the codes provide a comprehensive and exhaustive list of impairments with wide scope to capture any impairment associated with injuries, illness and congenital conditions, one has to prove that they are substantial, long term and affect daily living activities to qualify to be protected by the Act. Also, because of it largely leaning on medical perspective of disability, in litigation, it can draw attention more to the particularities of claimants‘ bodily functions rather than onto the behaviour of defendants on discrimination claim. As such, it may not send out a clear message that ‗[n]on-discrimination is a guarantee of equality‘ and ‗not a special service reserved for a select few‘.121
Even the Disability Policy 2006, is
113Diseases of the respiratory system; from the Disability Coding, this includes: K 1A Pneumoconiosis (Ex Miners), K 1B Pneumoconiosis (Others), and K 2. Chronic bronchitis, Emphysema and others.
114Skin Diseases; from the Disability Coding, this includes: L. Diseases of the skin and cellular tissues.
115
Ear and Eye Defects; from the Disability Coding, this includes: M. 1 Deaf without speech, M.2 Deaf with speech, Deaf and Blind, N. Hard of hearing, O. Total blindness, P. Eye defects and diseases other than total blindness.
116Common Injuries; from the Disability Coding, this includes: Q Injuries to Head, Face, Thorax, Abdomen, pelvis, Forearm and hand, R. Diseases and deformities of upper limb, Shoulders, Forearm and Hands. S Diseases and deformities of lower limb, shoulders, forearm and hand, T.1Paraplegia, T.2 Injuries of the spine (excluding paraplegia).
117
Mental Disorders; from the Disability Coding, this includes:U.1 Psychoneuroses (e.g. anxiety or obsessional states hysteria), U.2 Other mental illness, U.3Mental sub-normality.
118
Organic Nervous diseases; from the Disability Coding, this includes: V.1Epilepsy, V.2.Other (e.g. cerebral palsy, sciatica, diseases of the brain etc.)
119Tuberculosis; from the Disability Coding, this includes: X.Pulmonary T.B. Y.Non Pulmonary T.B.
120Others from the Disability Coding, This includes: Z. Diseases and injuries not specified above. 121 RL Burgdorf, ‗―Substantially Limited‖ Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability‘ (1997) 42
Villanova Law Review 409, 561. See also, for the argument that legal definitions of disability
may themselves perpetuate and entrench social division and ablism, F Kumari Campbell, ‗Legislating Disability: Negative Ontologies and the Government of Legal Identities‘ in S
not helpful in remedying the restrictive challenge of meaning of disability in the Act, as also the Policy does not define these terms. The Policy simply states that its focus is on people who have: difficulty in hearing; difficulty in speaking and conveying a message; difficulty in moving around using body parts; difficulty in seeing; strange behaviour; epilepsy; difficulty in learning; leprosy; loss of feeling; multiple disabilities.122
It can therefore be stated that, the meaning of disability as stated in the Act can render the overall intent of the Act ineffective to those facing disability discrimination and yet they cannot prove having a disability within the context of meaning of the Act as discussed on direct discrimination in chapter two.
In Uganda, the meaning of disability has not yet been subjected to judicial interpretation due to the limited litigation related to disability in the country. This adds to the critical challenges facing the meaning of disability in Ugandan law. This means, controversies surrounding the meaning of disability, with a potential of presenting the opportunities for improving the PWDA‘s meaning of disability is not yet explored.
Tremain (ed) Foucault and the Government of Disability (Ann Arbour, University of Michigan Press, 2005).