Access to education for children with disabilities
- Lex Amica
- Mar 5, 2024
- 9 min read
Updated: May 9, 2024
ACCESS TO EDUCATION IN UGANDA: UGANDA’S LAXITY IN THE REALIZATION OF THE RIGHT TO EDUCATION FOR CHILDREN WITH DISABILITY
Nakalema Stella Maris*
Abstract
The right to education is a fundamental right of all however, the access to it by persons with disabilities remains illusory. State priority is attached to gender and income inequality in the education sector but has failed to effectively realize access to for marginalized groups like persons with disabilities. This article aims to analyze the legal framework of the right to education for persons with disability, its efficacy and the key to the realization of this right.
1. Introduction
Children with disabilities face significant hurdles in accessing and enforcing their right to education. “Disability is one of the least visible but most potent factors in educational marginalization. Beyond the immediate health-related effects, physical and mental impairment carries a stigma that is often a basis for exclusion from society and school.”[1] Education is a fundamental right which is an entitlement of all and it’s provided for in both international and national laws.
Disability is one of the least visible but most potent factors in educational marginalization. Beyond the immediate health-related effects, physical and mental impairment carries a stigma that is often a basis for exclusion from society and school.
a) International legal framework
Uganda is party to numerous international instruments that provide for inclusive education for all. The right to education for persons with disabilities is provided for in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 26 of the Universal Declaration of Human Rights (UDHR), Article 24 of the Convention on the Rights of Persons with Disabilities (CRPD), Article 28 of the Convention on the Rights of the Child as well as Rule 6 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities. Sustainable Development Goal 4 of the United Nations also provides for the realization of inclusive quality education for all.
b) National legal framework
The right to education for persons with disabilities in Uganda is provided for in the in Objective 18 of the National Objectives and Directive Principles of State Policy, Article 30, 34 and Article 35 of the 1995 Constitution of the Republic of Uganda as well as Section 6 of the Persons with Disabilities Act of Uganda.
Its pertinent to note that approximately 2.5 million children in Uganda live with some form of disability which hinders their access to education, employment and ability to realize their full potential in society.[2] Disability has been defined as a substantial functional limitation of a person’s daily life activities caused by physical, mental or sensory impairment and environment barriers, resulting in limited participation in society on equal basis with others.[3] Disability is a prohibited ground for discrimination of persons and the Republic of Uganda has an obligation to ensure that all persons both children and adults engaged in the pursuit of education at different levels can access the same on equal basis with other persons without disability.
The state has an obligation to not only recognize but also to enforce the inherent rights and dignity of persons with disabilities which are provided for in Article 20 of the Constitution. Therefore, the use of derogatory words like lunatics, imbeciles, idiots in reference to persons with disabilities is prohibited in Section 5 of the Person with Disabilities Act. This was enforced in the case of Centre for Health, Human Rights and Development (CEHURD) And Iga Daniel v The Attorney General,[4] where the court stated that reference to mentally disabled persons as idiots, criminal lunatic and imbeciles in S.130 of the Penal Code Act, S.45(5) & 82(6) of the Trial on Indictment Act is unconstitutional as it denigrates their personal integrity and dignity.
The right to education is a fundamental, interconnected and essential right which is indispensable in the realization of other rights like the right to equality, non-discrimination, among others. It’s an empowerment right which contributes to the full development of human mind and also lifts marginalized people out of poverty.[5] The realization of this right in Uganda is extensively discussed below.
2. The Normative Content on the right to education for persons with disability
The inclusion of marginalized groups like persons with disabilities is key to the realization of the right to education in Uganda. The Committee on the Rights of Persons with Disabilities in its General Comment No. 4 offers a detailed interpretation of the right to inclusive education provided for in Article 24 of the CRPD which Uganda ratified in September, 2008.
a) Elements of the right to inclusive education
The Ugandan government has a duty to ensure that the right to education encompasses these four interrelated features;
i) Availability: Public and private educational institutions should be available in sufficient quality and quantity for all learners with disabilities at all levels throughout the country.[6]
ii) Accessibility: Educational institutions and programmes should be accessible to everyone without discrimination. The education system must be accessible with suitable infrastructures, information, education materials, teaching methods with an environment designed to foster inclusion and the guarantee of their equality throughout their education.[7] In Nyeko Okello and Another v Centenary Rural Development Bank Ltd,[8] the court recognized the fact that all premises leading to infrastructural establishments should have modifications to allow persons with disabilities to easily access them. Court entered a consent judgment after the defendant Bank constructed ramps.
iii) Acceptability: The form and substance of the education related services must be acceptable for all and states should adopt affirmative action measures to ensure education is of good quality for all.[9] Alternative means of learning and formats of communication like the use of braille, sign language and promotion of linguistic identity for the deaf.[10]
iv) Adoptability: States should apply the Universal Design for Learning (UDL) approach in order to ensure that the curriculum is conceived, designed, adopted and applied to meet the education requirements of every student including those with disabilities.[11]
b) Obligations of the Ugandan Government
Uganda has an obligation to respect, protect and fulfill the essential features of the right to inclusive education. The obligation to respect requires the state to abstain from infringing on the enjoyment of the right for example denial of reasonable accommodation or accessibility. The obligation to protect requires the state to take measures to prevent third parties from interfering with the enjoyment of the right to inclusive education. The obligation to fulfill requires the state to adopt measures that enable persons with disabilities to enjoy the right to education.[12]
Uganda has a duty to progressively realize the right to education, this is a specific and continuing obligation to move as expeditiously and effective as possible towards the realization of Article 24 of the CRPD. The state has 3 minimum core obligations which are;
i) Non-discrimination. The state should ensure non-exclusion from education of all persons with discrimination and the elimination of structural disadvantages so as to ensure that the right to education is available and enjoyed on an equal basis by all people. This is a prohibition of both direct and indirect discrimination in the education sector.
ii) Reasonable accommodations. Reasonable accommodations mean “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”[13] This involves structural adjustments to buildings like ramps.
iii) Compulsory free primary school available for all. States should ensure equal access and quality education for all persons below the age of 12 years.[14]
Uganda has a duty to ensure availability of reasonable accommodation which is premised on the fact there is no “one size fits all”. This was seen in the case of Legal Action for People with Disabilities v Attorney General & others,[15] where the applicants sought a declaration that the respondents failed to make their premises and buildings easily accessible by persons with disabilities and an order for prompt enforcement of the provisions of the Persons with Disabilities Act of Uganda. The respondents averred evidence to show that they had taken steps to ensure the right to education for persons with disabilities like; erecting ramps and special rooms for disabled students, provision of hand rails along inclined points, provision of tactile markings close to major entries and exits among other modifications. The court in refusing to grant the reliefs sought stated that the respondents are alive to the rights of the students with disabilities and encouraged them to continue to progressively realize their rights taking into consideration the resource constraints.
3. Constraints to the realization of the right to education of children with disabilities
Uganda is hindered from effectively realizing the right to education for children with disabilities due to resource constraints, inefficient enforcement mechanisms as well as limited cooperation from other stakeholders like non-government organizations, as well as the citizens of Uganda. There is also limited awareness and demand for the rights and freedoms that persons with disabilities are entitled to which creates a laxity in the states’ ambition to fulfill its obligations in regards the realization of the right to inclusive education for persons with disabilities. Uganda like other states undermines the severity and fails to prioritize the realization of the right to education of persons with disabilities, the outcry by teachers, parents and students is the same as in every other state, “It is the government's responsibility to provide facilities such as ramps, light doors, and accessible restrooms, but these facilities are not given, and the schools do not have the resources to offer them."[16]
4. Recommendations
Uganda should adopt ActionAid’s Theory of change which encompasses three core components:
i) Empowerment: the state should engage with persons with disabilities to promote awareness, mobilization and addressing of their rights to education.
ii) Campaigning: the state should work with duty holders like parents, private school proprietors among others to ensure provision and respect of the right to education for persons with disabilities. It includes advocacy in both policy and practice by encouraging inclusive education system.
iii) Solidarity: the state is encouraged to establish connections, alliances and coalitions with different organizations of persons with disability in order to strengthen their ability to voice their needs.[17]
Uganda should also enforce favorable infrastructural adjustment plans (ramps) so as to ensure access to education for children with disabilities. Budgetary increments are also advisable to ensure that resources are sufficient to allow the state to realize the rights of children with disability especially inclusive education.[18]
5. Conclusion
In conclusion, Uganda like other states has a continuing obligation to realize the right to inclusive education for persons with disabilities which its endeavoring to achieve. However, the numerous challenges especially limited resources suffered by Uganda which is a low developing state as well as limited cooperation with other duty bearers have curtailed the state’s ability to realize the accessibility, availability and quality of education system availed to children with disabilities in Uganda.
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6. References
*The Author is a student pursuing Bachelors of Law (LLB) at the School of Law, Makerere University in Uganda.
[1] UNESCO (2010), Reaching the marginalized. EFA Global Monitoring Report 2010. Oxford: Oxford University
Press P. 181 available at https://unesdoc.unesco.org/ark:/48223/pf0000186606
[3] Section 1 of the Persons with Disabilities Act, Act 3 of 2020
[4] Centre for Health, Human Rights and Development (CEHURD) And Iga Daniel V The Attorney General Constitutional Petition No. 64 Of 2011
[5] Paragraph 1 of the ICESCR General Comment 13 on the right to education and its also available at https://www.right-to-education.org/page/understanding-education-right
[6] Paragraph 20 of the General Comment No. 4 of the CRPD
[7] Paragraph 21-23 of the General Comment No. 4 of the CRPD
[8] Nyeko Okello & Santo Dwoka v Centenary Rural Development Bank Limited Civil Suit No. 23/2008
[9] Paragraph 24 of the General Comment No. 4 of the CRPD
[11] Paragraph 25 of the General Comment No. 4 of the CRPD
[12] Paragraph 38 of General Comment No. 4 of the CRPD
[13] Section 2 of the Persons with Disabilities Act, Act 3 of 2020
[14] Paragraph 40 of General Comment No. 4 of the CRPD
[15] Legal Action for People with Disabilities v Attorney General & Anor (Miscellaneous Cause No. 146 of 2011) [2014] UGHCCD 76 (20 May 2014) https://ulii.org/akn/ug/judgment/ughccd/2014/76/eng@2014-05-20
[16] Mahmoud Hawamdeh. (2023). Challenges of Educational Support for Students with Disabilities during Covid-19 Pandemic. Qeios. doi:10.32388/LNIAQU. Available at https://www.qeios.com/read/LNIAQU
[19] WHITTLE, R. (2001). The concept of disability discrimination and its legal construction. In: 'Discrimination and affirmative action on the labor market – legal perspectives' (in preparation of the Swedish Presidency of the European Union), National Institute for Working Life, Sweden, 67 November 2001 available at https://shura.shu.ac.uk/710/1/fulltext.pdf
[20] Peter Moyi, Access to education for children with disabilities in Uganda: Implications for Education for All, available at http://www.jielusa.og/home/
General Comment No 4 on the Right to Inclusive Education in Article 24 of the CRPD available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/ 4&Lang=en
[21] Byrne, B. (2022). How inclusive is the right to inclusive education? An assessment of the UN convention on the rights of persons with disabilities’ concluding observations. International Journal of Inclusive Education,26(3),301-318. Available at https://doi.org/10.1080/13603116.2019.1651411
[22] Ferri, Delia. 2018. “Unveiling the Challenges in the Implementation of Article 24 CRPD on the Right to Inclusive Education. A Case-Study from Italy. ”Laws. 7(1) https://doi.org/10.3390/laws7010001
[23] Mahmoud Hawamdeh. (2023). Challenges of Educational Support for Students with Disabilities during Covid-19 Pandemic. Qeios. doi:10.32388/LNIAQU. Available at
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