CHILDREN AND THE LAW: ‘’Waiting in the margins: Reflection on the Right to Inclusive Education for Children with disabilities in The Gambia’’

Thursday, December 14, 2017

‘’If a child can’t learn the way we teach, maybe we should teach the way they learn.’’ --   Ignacio Estrada

Inclusive education as opposed to exclusion, integration and segregation entails a systematic approach to education that seeks to reform the learning and teaching process in terms of content, method and approach in education to overcome the multidimensional barriers to the education persons with disabilities (PWDs). This is premised on the overarching vision of participatory and equitable learning experience of all persons with due regards to their individual differences.

Numerous efforts at the global and regional levels have been made to respond to the challenges faced by PWDs in their enjoyment of the right to quality and relevant education. Shifting from welfare approach, PWDs are no longer viewed as objects of charity with no rights. They are right holders with the right to education on equal basis with others without discrimination. There is now a plethora of conventions and declarations that recognize the right to education of PWDs.

After long and protracted negotiations the General Assembly of the United Nations adopted the Convention on the Rights of PWDs (CRPD) in October 2006. This convention was intended to be a human rights instrument with a social dimension-approach to disability issues. The adoption and coming into force of the CRPD and the Optional Protocol to the CRPD formally brought a legally binding provision on inclusive education of PWDs.  Equally, article 23(3) of the UN Convention on the Rights of the Child recognizes and obliges state parties to provide effective access to education to children with disabilities. Article 3(5) of the World Declaration on Education for All (1990) also positions the right to education of PWDs as integral part of the mantra for the right to education.

1.0 The Gambia’s Implementation of Article 24 of the CRDP

The Gambia acceded to the CRPD in June 2015.  Aside of the Disability Rights Bill, which is currently undergoing a legislative process, the Gambia has legislations which are only minimally relevant to inclusive education of PWDs. Section 31(2) of the 1997 Constitution of the Gambia prohibits discrimination of PWDs in terms of, inter alia, access to education.  Article 31(2) of the Constitution is supplemented by article 18(1) of the Children’s Act, 2005 which also provides for non-discrimination of children with respect to education on the basis of disabilities. However, beyond this minimalist legislative guarantee of right to education of PWDs the Gambia has no comprehensive legislative and policy framework for inclusive education of PWDs as envisioned in article 24 of the CRPD and as explained in General Comment 4 (2016).

Ministry of Basic and Secondary Education (MOBSE) is being very instrumental in devising policies relevant to education in general. With the Gambia’s development blue-print, Vision 2020 and Programme of Accelerated Growth and Employment (PAGE), MOBSE prepared a comprehensive policy  in January 2016 called the ‘Accessible, Equitable and Inclusive Quality Education for Sustainable Development’ 2016-2030. This policy focuses on three thematic areas such as Technical Training, Teacher Training and Education Management. The adoption of this policy was a missed opportunity as it barely has anything concrete on inclusive education for PWDs.  This document is still steeped in the old model of integration and/or seclusion of PWDs in the education system.

2.0 Normative Content of Article 24 of the CRPD and its Corresponding State Obligation

The normative content of Article 24 of the CRPD is explained in General Comment 4 by the United Nation’s Committee on the Rights of PWDs. According to the comment only inclusive education can ’provide both quality education and social development for PWDs, and a guarantee of universality and non-discrimination in the right to education’. 

A salient feature of the normative content of Article 24 of the CRPD is the realization of inclusive education in all levels of the education system such as primary, secondary, tertiary education and vocational training.  Inclusive education factors in the differing requirements of individual students with the vision to accommodate each student irrespective of their mental and physical conditions. It demands respect for the fundamental human rights of the learner taking into account their physical and mental conditions.  Thus, the focus is on the learner.

In addition to that the principle of the well-being of the learner is sacrosanct whereas the enhancement of the learner to overcome the multidimensional barriers such as exclusion, poverty and discrimination should guide this process. To that end, this process should enhance the change of culture and policies to effectively accommodate each student including PWDs.

Inclusive education goes with recognition of individual differences that encourages non-discrimination. It should also be noted that inclusive education is not the same as integration of a PWDs with the hope that they could adjust to the already established environment.  The former is a comprehensive and systematic process of learning, teaching, curriculum and other education processes which are geared towards an equitable participation of all learners taking into account their individual differences. Moreover, inclusive education imports the respect for the inherent autonomy of PWDs. This acknowledges the individual’s requirement to be included in the education system without having to intrude their inherent autonomy and dignity as persons.

Article 4(1) of the CRPD provides that States Parties are required to ‘adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention’ and  ‘in the development and implementation of legislation and policies’ they have to ‘closely consult with and actively involve persons with disabilities’ in  accordance to article 4 (3). Article 5 (3) also provides that states must ‘take all appropriate steps to ensure that reasonable accommodation is provided’. One of the main juridical imports of article 24 is generally to provide inclusive education and/or special education as exception.

Article 24(2)(a) of the CRPD provides that states must not exclude ‘from free and compulsory primary education on the basis of disability’. In addition, ‘persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live.’ 

Inclusive education does not mean special schools as that will lead to the segregation of PWDs. Equally, inclusive education is different from integration of PWDs in regular schools. In the latter PWDs are expected to adjust to the school environment without regards to their impairments. Thus, inclusive education recognises the various differences in children and children with disabilities must be able to participate in the regular learning system.  On that basis, the obligation on states is to eliminate barriers and provide reasonable accommodation for persons with disabilities in regular school systems.

However, given the positive nature of the right to education, states are required to progressively make efforts that will yield the full enjoyment of right to PWDs. Article 4 (2) of the CRPD is couched in language that is resource-based. It provides that states ‘undertakes to take measures to the maximum of its available resources’   Thus states have to progressively work to realising inclusive education by putting in resources. As such, the realization of the right is not immediate; however, this does not mean continuous postponement of the right. 

Article 24 therefore engenders two obligations. One is reasonable accommodation and two the need to adopt special measures. Article 24(2)(c) and article 5(3) provide that states shall make sure ‘reasonable accommodation of the individual’s requirements is provided’. Article 2 of the CRPD defines reasonable accommodation as measures:

‘necessary and appropriate modifications 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’.

In addition to that it provides that a denial of reasonable accommodation is a form of discrimination which imposes an immediate obligation on the states. Reasonable accommodation seeks to ensure the special needs of children with disabilities.  Such measures are individualised measures.  The rationale for reasonable accommodation is to enable children with disabilities to attend regular schools in their societies.

Article 9 (1) of the CRPD provides the various forms of measures that can be adopted by states to ensure reasonable accommodation. These include the construction of school facilities that are accessible, provision of transportation with a universal design and provision of communication technologies.

Moreover, the CRPD requires states parties to put in special measures that will allow the maximum participation of children with disabilities in regular schools. Article 24(2)(d) of the CRPD provides that states parties should ensure that ‘PWDs receive the support required, within the general education system, to facilitate their effective education’. In the event those children with disabilities in the regular schools have special needs that the regular schools cannot provide, states are required to provide individualised support measures in accordance with article 24(2)(e) of the CRPD.  These measures must be consistent with the vision to realize inclusive education.

Finally, incidental to achieving inclusive education is the training of teachers. Teachers must be trained on how to teach, assess and supervise PWDs. In addition to that, article 24(4) of the CRPD requires also the training of students to assist PWDs.

3.0 Conclusion

Significant progress has been made at both regional and global levels to anchor the rights of PWDs. However, there is a palpable disjoint between the Gambia’s commitment under the CRPD and the current legislative and policy deficits in disability rights protection particularly in terms of inclusive education. The right to education which is central to dignified human development needs to be taken seriously by duty bearers. If the ‘’New Gambia’’ must work for all, PWDs must not continue to wait in the margins to enjoy the basic right to education. Civil society and all relevant actors must seize the momentum to open dialogue on disability rights issues in the Gambia particularly at a time when constitutional reform is floated as part of the development agenda of the new government.

By Sainey Bah- LLB- University of the Gambia; LLM-Candidate- University of Pretoria- Centre for Human Rights