Yohannes Takele Zewale*
Editors’ Note: Although HILJ Online: Perspectives typically publishes short-form scholarship, we occasionally publish exceptional longer pieces—such as this one.
Abstract
Descriptive representation for persons with disabilities in parliaments is not as prevalent as representation based on other identities, such as gender, race, ethnicity, and youth. However, a beacon of progress has emerged from the Global South, with only five countries—Kenya, Uganda, Rwanda, Zimbabwe, and Egypt—constitutionally recognizing the right to descriptive representation for persons with disabilities. Although the reasons behind this recognition in underdeveloped democracies are not yet studied, this Article explores these factors by analyzing their laws and conducting interviews with politicians, advocates, and leaders of organizations for persons with disabilities in these African countries. By doing so, this Article aims to shed light on the noteworthy strides these countries have made in integrating persons with disabilities into their parliamentary bodies ahead of Western countries. The findings suggest that factors such as the lack of real power shared by their governments, cultural and systematic differences between these African countries and the West, strategic preferences of the Disability Rights Movement, recent constitutional review processes, and other similar factors contribute to the recognition of the right to descriptive representation of persons with disabilities ahead of Western democratic countries.
1. Introduction
Descriptive representation refers to a representation in which representatives have similar backgrounds to the voters they represent, with the trust that voters are more effectively represented by legislators similar to them in key demographic characteristics such as gender, ethnicity, or religion.[1] With descriptive representation, the composition of the representative body necessarily shows the demographics and experiences of the citizenry.[2] In other words, representatives are “in their own persons and lives, in some sense typical of the larger class of persons whom they represent.”[3] This type of representation occurs, for example, when legislators with disabilities represent persons with disabilities or when female legislators represent their female constituents.
In her seminal work, Hanna Pitkin argues that the model of Descriptive Representation posits that a representative of a minority group should, to some extent, reflect that group’s common experiences and outward manifestations.[4] However, as articulated by scholars like Anne Phillips, the descriptive representation model goes beyond mere external characteristics, encompassing the ideals and interests of minority groups.[5] Nonetheless, its efficacy in ensuring representation for persons with disabilities remains underrealized. Hendrik Hertzberg highlights the pitfalls of majoritarian plurality electoral systems, where voters often prioritize regional representation, potentially neglecting the specific concerns of marginalized groups.[6] This oversight becomes more pronounced in the case of persons with disabilities, whose dispersed nature is not adequately addressed by such electoral frameworks. Barbara Arneil and Nancy Hirschmann’s research underscores the slower progress in political science regarding disability, revealing a lack of attention to the needs of this substantial segment of society.[7] Stefanie Reher’s observation about the glaring oversight in the descriptive representation of persons with disabilities, constituting one-fifth of the population, emphasizes the urgent need for rectification.[8] In a society that values inclusivity and equal representation, addressing this gap in descriptive representation for persons with disabilities is not just a matter of political theory but a fundamental step toward ensuring the political well-being of a marginalized and underrepresented community.
However, descriptive representation of persons with disabilities in parliaments is less common than descriptive representation based on other identities, such as gender, race, ethnicity, and youth.[9] Yet, in recent years, some countries have begun to constitutionalize the representation of persons with disabilities.[10] These countries may surprise anyone who expects the West to take the lead in recognizing human rights, including the right to representation for persons with disabilities. When measured in indices such as electoral process and pluralism, civil liberties, government functionality, political participation, and political culture, countries like Uganda, Egypt, Kenya, Rwanda, and Zimbabwe are categorized as having lower levels of democracy.[11] Nevertheless, they are ahead of the West in terms of having an inclusive legislature and constitutionally recognized descriptive representation of persons with disabilities. Unfortunately, no research has been conducted to determine the factors behind the constitutional recognition of descriptive representation of persons with disabilities in these five African countries.[12] Thus, this Article explores the factors behind the early recognition of the right to descriptive representation for persons with disabilities by these five African countries, surpassing more developed democracies.
In the rest of this Article, Part II will provide a comprehensive summary of the laws implemented in various African countries that allocate parliamentary seats for persons with disabilities. Part III will delve into the findings derived from the collected interview data to synthesize the rationales behind these countries’ decision to grant the right to representation for persons with disabilities, especially in light of their relatively lower levels of democracy. Part IV will comprise a detailed discussion expanding upon the previous sections’ insights, exploring the legislative measures’ implications and consequences, and highlighting any challenges, successes, and potential recommendations for further improvement. And Part V will provide concluding remarks.
2. Background on Descriptive Disability Representation Laws in Africa
Based on the most comprehensive available evidence, it appears that only five countries in Africa have officially recognized and implemented descriptive representation of persons with disabilities within their parliaments. What makes these five countries—Kenya, Uganda, Rwanda, Zimbabwe, and Egypt—truly fascinating is not just that they recognize the right of persons with disabilities to have descriptive representation in parliament. Equally noteworthy, they consciously decided to enshrine this right directly in their constitutions rather than relying on subsidiary laws. By granting this right a constitutional status, these countries have demonstrated their firm and legally binding commitment to ensuring parliamentary inclusion for persons with disabilities.
For instance, the Ugandan Constitution established a unicameral legislature,[13] which is required to enact laws favoring historically marginalized groups.[14] As a response to this constitutional call, the parliament adopted a law reserving five of the 458 seats in parliament for persons with disabilities; accordingly, there shall be five representatives with disabilities, at least one of whom being a woman.[15] A national electoral college of persons with disabilities, with five representatives from each electoral district, selects those who will occupy the five reserved seats in parliament.[16] Furthermore, every village, parish, sub-county, and district council must include at least one man and one woman with a disability.[17]
Both the Rwandan Constitution and Zimbabwean Constitution established bicameral legislatures, with Rwanda’s Chamber of Deputies and Senate[18] and Zimbabwe’s National Assembly and Senate.[19] While Rwanda and Zimbabwe both have one and two legislative seats reserved for persons with disabilities, the former has seats in the Chamber of Deputies,[20] while the latter has seats in the Senate.[21] The method they choose for selecting these representatives is similar to that of Uganda’s national electoral college of persons with disabilities.[22]
Further, the Kenyan Constitution established a bicameral legislature consisting of the National Assembly and the Senate.[23] These two houses must reflect a fair representation of marginalized groups, including persons with disabilities,[24] requiring the state to ensure the “progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.”[25] Additionally, the Constitution sets aside a minimum number of legislative seats for marginalized groups, including persons with disabilities.[26] Accordingly, parliamentary political parties nominate 12 members, based on proportional representation, to represent special interest groups, including persons with disabilities.[27] Two senatorial seats are reserved for two members, one man and one woman, representing persons with disabilities.[28] Also, a County Assembly must consist of members of marginalized groups, at least two of whom are persons with disabilities.[29] The members representing persons with disabilities are nominated or appointed by the winning political parties.[30]
Lastly, the Egyptian Constitution established a bicameral legislature consisting of an upper house (i.e., the Senate) and a lower house (i.e., the House of Representatives).[31] The Constitution requires the state to grant appropriate representation for minorities, including persons with disabilities, in the House of Representatives and local councils.[32] The House of Representatives consists of 596 seats.[33] Of these, 448 seats are filled through majoritarian elections, 120 are filled through party lists, and the president selects 28 representatives.[34] The country is divided into four constituencies for the list component: two 15-member and two 45-member constituencies.[35] At least one person with a disability must be listed on each list in the former, while at least three must be nominated in the latter.[36] Parties that receive more than 50 percent of the vote are given all of the seats in the constituency, ensuring that at least eight candidates with disabilities are elected to parliament.[37] Apart from the eight candidates, the president may use his power of nomination to designate additional disabled representatives.[38]
The fact that these five countries allocate parliamentary seats for persons with disabilities raises a fundamental question: How did these countries realize the right to representation of persons with disabilities in parliament ahead of Western countries with more developed democracies? This question could be answered by research interviews that advance various potential justifications.[39]
3. Rationales for Early Disability Representation Recognition
Certainly, the principle of parliamentary representation is traditionally viewed as a cornerstone for ensuring the political participation rights of any group. However, this principle undergoes nuanced scrutiny in reserving parliamentary seats for persons with disabilities, particularly in countries with varying levels of democracy. Interviewees from Kenya, Uganda, Rwanda, Zimbabwe, and Egypt have shed light on a multifaceted exploration of the rationales behind this decision. Their insights delve into the intricate fabric of political cultures within their nations, the broader African continent, and Western democracies. Unveiling four key rationales, namely, the absence of genuine power-sharing, cultural and systematic disparities in political ideologies, a strategic choice by the Disability Rights Movement, and the transformative impact of recent constitutional reviews, this section synthesizes the intricate dynamics that influence the decision to grant representation rights to persons with disabilities.
3.1 No Real Power Shared
First, interviewees shed light on power-sharing dynamics in these five African countries, particularly focusing on parliamentary representation for persons with disabilities. A key theme emerged during the interviews, emphasizing that allocating parliamentary seats for persons with disabilities in these countries does not signify genuine power sharing. Instead, it is closely tied to the prevailing authoritarian rule, challenging the perception of these nations as fully democratic. The interviewees argue that, in contrast to Western democracies, the legislatures in these African countries are perceived as symbolic entities, with real power concentrated in the executive branch. They assert that these legislative bodies are, in their words, “sham institutions” where the executive branch reigns supreme. Surprisingly, persons with disabilities find representation in these symbolic legislatures rather than in the executive branch, where actual power resides. This peculiar pattern raises questions about the sincerity of political inclusion for persons with disabilities.
For example, Kenyan interviewees lament the absence of ministers or deputy ministers with disabilities in any of the 22 ministerial offices under President William Ruto. They emphasize that the representation of persons with disabilities in the Kenyan Parliament is hindered by fundamental legal gaps, preventing it from serving as a model for broader inclusion within the executive. Addressing this issue, they argue, requires substantial effort both within parliament and in executive circles. Rwandan interviewees support the “no real power shared” argument by suggesting that even if persons with disabilities secure representation in parliament, they are unlikely to challenge the power dynamics of the incumbent government. The prevailing sentiment is that obtaining a few seats in these symbolic legislatures does not threaten the government’s autocratic rule. Rwanda and Zimbabwe serve as examples where, despite political representation for persons with disabilities in parliament, real power remains concentrated in the executive branch.
Similarly, Egyptian interviewees highlight the absence of ministers or deputy ministers with disabilities in current ministerial offices, reinforcing the idea that genuine power-sharing remains elusive. Their collective perspective is that these countries cannot be considered champions of democracy simply because they allocate some parliamentary seats to persons with disabilities, placing them ahead of developed countries in terms of this specific metric. Additionally, the interviewees reference a Kenyan judge and human rights activist who cautioned against celebrating governments merely for reserving parliamentary seats for minority groups. The judge emphasized the inconsequential nature of parliamentary representation if real power remains entrenched in the executive branch. Interviewees from Uganda align with this sentiment, advocating for the simultaneous fight to involve persons with disabilities in the executive, not merely in parliament.
Contrary to the prevailing skepticism, one interviewee acknowledges the tireless efforts of the Disability Rights Movement and its legislative representatives to leverage parliamentary representation to enhance the social, economic, and political involvement of persons with disabilities. This perspective suggests a nuanced understanding of the potential impact of parliamentary inclusion despite government assumptions of no genuine power-sharing. Further, there is a glimmer of optimism regarding Uganda’s progress in political representation for persons with disabilities. Some interviewees argue that Uganda surpasses other countries in this regard, citing examples of persons with disabilities engaging at the ministerial level. They laud figures like Hellen Asamo, a renowned disability rights advocate and Member of Parliament, who also serves as the Minister of State for Gender, Labour, and Social Development (Disability Affairs).[40] This comprehensive representation in Uganda is seen as exemplary and worthy of emulation by other countries.
Generally, the interviews underscore a common thread—the perception that parliaments in these African countries hold limited authority compared to established democracies, with real power concentrated in the executive branch. However, despite this belief, the Disability Rights Movement recognizes parliamentary inclusion as an empowering tool to advocate for the rights of persons with disabilities. The challenge remains to bridge the gap between symbolic representation in parliament and substantive inclusion in the executive, ensuring that political power is genuinely shared among all citizens.
3.2 Cultural and Systematic Differences in Politics
Second, interviewees revealed intriguing insights into how different cultures and political systems approach the fundamental issue of ensuring representation for minority groups, particularly the disability community, to safeguard their interests. For instance, Egyptian interviewees provided a unique perspective, suggesting that in countries with established mechanisms safeguarding minority interests, such as many Western nations, the focus on parliamentary representation may not be as critical. Similarly, Ugandan interviewees assert that Western democracies already have robust systems, beyond parliamentary representation, dedicated to protecting minority rights, including those of the disability community. They pointed to the United States Civil Rights Act of 1964 as a prime example, emphasizing its role within the judicial system. These interviewees speculated that Western societies might not prioritize parliamentary representation for persons with disabilities, assuming their rights are already adequately protected by existing laws. This viewpoint reflects a divergence in strategies between Western and African nations regarding protecting minority rights.
However, Zimbabwean interviewees offered a different perspective, contending that while anti-discrimination laws in the West, like the Civil Rights Act, have improved the socio-economic participation of persons with disabilities, they may not necessarily enhance their parliamentary representation. They argued that parliamentary representation, if appropriately utilized, could provide comprehensive protection for persons with disabilities because the parliament, as a key decision-making body, shapes laws that directly influence socio-economic and political legislation. Dismissing the argument that Western societies neglect parliamentary representation due to the existence of civil rights laws, they stressed the unique role that parliamentary representation plays in crafting inclusive legislation.
A significant dimension highlighted by several interviewees was the cultural disparity in political philosophies between the West and Africa, specifically regarding the priority given to individual versus group rights. Western democracies typically prioritize individual rights, such as food, housing, and health, over group demands like representation. In contrast, emerging African democracies, guided by the African Charter on Human and Peoples’ Rights (ACHPR), prioritize group rights. The ACHPR, particularly in articles 19-24, underscores the importance of group rights in Africa. Yet, considering that persons with disabilities may not fit the criteria defining a specific group under the ACHPR, interviewees speculated that the collective nature of African societies and the African human rights system might have prompted the demand for representation as a group right. This distinction in approach, influenced by factors like organization, history, culture, language, psychology, territory, and political form, could explain why the representation of persons with disabilities is prioritized differently and more rapidly in African countries compared to Western democracies. The interviews suggest that acknowledging these cultural and political nuances is crucial to understanding the distinct emphasis on parliamentary representation for persons with disabilities in African democracies.
3.3 Chosen Strategy by the Disability Rights Movement
Third, interviewees considered how, in comparison to its Western counterpart, the Disability Rights Movement in Africa is a relatively recent phenomenon,[41] gaining momentum after the enforcement of numerous international human rights conventions.[42] According to insights from Zimbabwean interviewees, this movement is deeply influenced by the philosophy embedded in these conventions, particularly grasping the right to comprehensive political participation.
Further, interviewees perceive the movement to have strategically prioritized realizing the right to representation for persons with disabilities. This strategic emphasis is seen as a means to accelerate their broader advocacy efforts for various claims by persons with disabilities. A disability rights advocate from Rwanda, who is visually impaired, underscores the challenging living conditions in these countries, where persons with disabilities face multidimensional problems, surpassing challenges encountered in developed nations. The interviewees suggest that in these African countries, where persons with disabilities are marginalized across socio-economic, cultural, and political spheres, representation in decision-making bodies, especially in parliament, emerged as a crucial strategy. The rationale behind this strategic focus is articulated by one interviewee, emphasizing that parliamentary representation serves as a powerful tool to confront the manifold discrimination and marginalization faced by persons with disabilities.
By having members of the disabled community participate as representatives in parliament, the movement envisions a relatively straightforward path to demanding the respect of rights and proposing solutions to the systemic challenges encountered by persons with disabilities. The sentiment is clear—having persons with disabilities within the decision-making institution of parliament transforms them into active contributors and solution providers to the issues confronting their community. The interviewees highlight the strategic importance of parliamentary representation, who believe that being part of the decision-making process enables advocates to actively address and resolve the concerns raised by the disability community. This proactive engagement within parliament is viewed as a vital step in the broader struggle for the rights and well-being of persons with disabilities in the face of complex challenges in their respective countries.
3.4 Impact of Recent Constitutional Review Processes
Fourth, interviewees considered how, except for Uganda[43] and Rwanda,[44] several African countries, like Kenya,[45] Zimbabwe,[46] and Egypt,[47] have recently undergone constitutional reviews to foster democratic systems. These constitutional changes are viewed by interviewees as pivotal, ushering in more inclusive representation, especially for persons with disabilities. Notably, the interviewees emphasize that these constitutional shifts were influenced by the momentum gained in the Disability Rights Movement’s global campaigns. The adoption of significant human rights instruments, including the Standard Rules on the Equalization of Opportunities for Persons with Disabilities[48] and the Convention on the Rights of Persons with Disabilities (CRPD),[49] played a crucial role in shaping these inclusive constitutional provisions. Interviewees assert that these constitutional revisions, influenced by international conventions, have been instrumental in achieving disability-inclusive parliamentary representation.
For instance, Kenya introduced the reserved seat system in 2010 following the enactment of its new Constitution. Kenyan interviewees credit this constitutional change for a notable improvement in the lives of persons with disabilities. Representatives in the legislature, empowered by the Constitution, have successfully advocated for laws protecting disability rights and addressing economic challenges. Additionally, they have championed the implementation of constitutional provisions, reserving at least 5 percent of government jobs for persons with disabilities. Current efforts are focused on further legislation to increase the representation of persons with disabilities in both houses of parliament. However, Kenyan interviewees also expressed concerns about the gaps and limitations in the current parliamentary representation system, emphasizing the need for continued improvement. Despite these challenges, they acknowledge promising strides compared to countries denying persons with disabilities the right to parliamentary representation.
Further, newly enacted in 2014, the Egyptian Constitution allocates eight parliamentary seats for persons with disabilities, a notable achievement in fostering diversity and inclusivity. Interviewees highlight that this inclusive representation has catalyzed progress in promoting and protecting disability rights since its inception. Before this constitutional change, disability policies and services in Egypt were limited, but the 2014 Constitution triggered a shift towards greater recognition and inclusivity. Similarly, Uganda’s experience reveals that the representation of special interest groups, including persons with disabilities, began during the drafting of its 1995 Constitution. The government’s openness to the voices of minority groups, influenced by changes in international human rights and the impactful role of the women’s movement, played a significant role in this accomplishment. The effective leadership of disabled representatives in Uganda’s parliament has led to remarkable progress in the political, economic, and social spheres for persons with disabilities. Laws and policies on inclusive education and the recent amendment of the Persons with Disabilities Act in 2020 reflect the tangible impact of these representatives in shaping legislative agendas.
Generally, the recent constitutional reviews in these countries have provided unprecedented opportunities for persons with disabilities to hold legislative seats as recognized minority groups. The constitutional drafting and adoption processes have not only empowered disability rights advocates but have also compelled countries to reserve seats for persons with disabilities, marking a significant step toward greater inclusivity and representation.
4. Challenges, Successes, and Recommendations
Understanding descriptive representation of persons with disabilities involves looking at challenges, achievements, and how inclusivity is changing. Exploring how descriptive representation works, the diversity within the disability community, the laws around voting rights, and the group rights emphasized in African contexts reveal the evolving nature of descriptive representation and what it means for human rights.
4.1 Participation of Persons with Disabilities in the Representation Process
The recognition by these countries of the right of persons with disabilities to be represented in parliament is a commendable achievement, considering the potential challenges involved. These nations deserve applause for reaching this milestone ahead of others. Building on this success requires a collaborative effort between the disability community and the government. Given that these countries may not have as long a history of practicing democracy as the West, they are still establishing or developing their democratic institutions. In this context, acknowledging the rights of persons with disabilities to parliamentary representation offers a unique opportunity for their democracy to flourish inclusively.
Nevertheless, as highlighted by interviewees, including persons with disabilities in parliament should not be viewed in isolation. While entering parliament is a significant avenue for political participation, it is not the sole or ultimate objective. The executive must extend and implement inclusive practices observed in parliament, as these institutions are interdependent. Parliamentary representation loses its meaning if the executive cannot effectively implement the policies formulated by legislators. It is essential to work towards a system based on the rule of law rather than the rule of individuals, even if this is not the current reality. Progress in developing inclusive practices in parliament can serve as a model for other institutions in these developing democracies.
Additionally, actively involving persons with disabilities in electing and sending representatives to parliament is crucial, as the CRPD outlines. However, in some African countries, among the five under consideration, this may not be the case. For example, unlike in Uganda and Rwanda, where representatives with disabilities are elected through an electoral college involving direct participation, Kenya relies on winning political parties to nominate representatives for persons with disabilities without necessarily consulting the individuals themselves.[50] Many persons with disabilities in Kenya oppose this form of nomination, advocating for increased opportunities to be elected or nominated by their community. Two main reasons drive this preference.
Firstly, relying solely on political parties for nomination undermines the law meant to ensure the representation of persons with disabilities in parliaments. If a political party disregards persons with disabilities as a marginalized group deserving of priority, their concerns and interests are left unrepresented. Moreover, the principle of “progressive realization” stipulated in the Kenyan Constitution,[51] meant to guide the gradual implementation of inclusive representation, has been misused as an excuse for neglecting the adequate representation of persons with disabilities.
Secondly, nominated members of parliament and the Senate with disabilities are often expected to prioritize party interests over the disability agenda. Studies show that big parties are accused of being insensitive to minority concerns, focusing primarily on the majority or the wealthy.[52] Party-controlled nomination and election can negatively impact minority interests, as representatives prioritize the party’s objectives.[53] In Kenya, where persons with disabilities do not actively involve themselves in the nomination and voting process, party leaders may influence and manipulate them against their best interests. For instance, as interviewees suggest, Senator Mwaura, nominated as the representative for persons with disabilities, lost his position in 2022 due to his failure to advance the party’s agenda beyond disability-related issues.
To prevent such situations, empowering persons with disabilities to have control over the representation process is crucial, rather than relying solely on political parties for nominations. This empowerment ensures that the interests and concerns of persons with disabilities are prioritized and protected. Moreover, the active involvement of persons with disabilities in developing and implementing laws related to descriptive representation is essential for compliance with the CRPD.[54] The CRPD emphasizes close consultation and engagement with persons with disabilities and their representative organizations in developing and implementing legislation, policies, and decisions about disability issues.[55] This principle aligns with the slogan “nothing about us without us” from the Disability Rights Movement, emphasizing the importance of empowering persons with disabilities to choose their representatives.[56] This slogan not only reflects the fundamental principle of participation in the CRPD[57] but also serves as a binding obligation for state parties,[58] which is evident throughout the treaty.[59]
4.2 Diversity Among Persons with Disabilities
Representation must embrace the diversity inherent among persons with disabilities, recognizing that disability encompasses a range of sub-groups.[60] The term “disability” serves as an umbrella, covering various types, such as visual, hearing, physical, and intellectual disabilities.[61] As disability studies scholar Elizabeth Barnes notes, the diversity within this label is remarkably heterogeneous.[62] Mental disabilities differ significantly from deafness, and blindness presents distinct challenges from achondroplasia.[63]
The diversity among persons with disabilities extends beyond their specific disabilities. While they encounter oppression or discrimination in generalizable ways, the diverse nature of disabilities results in varied needs and interests. Difficulties in seeing, hearing, or walking elicit different and specific responses tailored to the type of disability.[64] Despite these differences, disability types are often unintentionally or purposely merged into a single category.[65] Persons with disabilities are aware of their differences, but a person with one disability may not fully understand the needs of someone with a different disability. For instance, a visually impaired individual may struggle to grasp the specific needs of a person who is deaf. This lack of familiarity extends to the wider community, creating challenges in mutual understanding. Active involvement in the nomination and voting process by persons with disabilities is crucial to ensuring their diverse needs are adequately represented and prioritized.
The CRPD underscores the importance of recognizing diversity among persons with disabilities in policy formulation, emphasizing that persons with disabilities constitute a diverse population[66] and acknowledging the diversity of disabilities as a crucial aspect of respecting differences.[67] Descriptive representatives should mirror this diversity, especially in legislatures where certain seats are allocated to persons with disabilities. Yet, in some African countries, the current application of descriptive representation falls short of CRPD standards. For example, in Egypt, though eight seats are reserved for disabled representatives, they are exclusively occupied by individuals with physical disabilities. Similarly, in Kenya and Uganda, the majority of representatives with disabilities have physical disabilities, with limited representation from other disability types. This homogenous approach contradicts the CRPD’s emphasis on recognizing and respecting the diversity of disabilities.[68]
Moreover, the number of seats allocated for persons with disabilities must reflect the breadth of disability diversity.[69] In countries like Rwanda[70] and Zimbabwe,[71] where only one or two seats are reserved, a single representative is expected to represent all types of disabilities, overlooking the diverse needs of persons with disabilities. Insufficient seat allocation not only results in underrepresentation of the interests of persons with disabilities but also risks perpetuating the election of representatives from the same disability group in every election cycle. This limitation undermines the fundamental principle of diversity within the disability community and leaves certain groups consistently underrepresented.
Countries that reserve seats for persons with disabilities in only one legislative house, as in the cases of Rwanda or Egypt, face additional challenges. In less democratic countries, the upper houses often lack effective law-making power, rendering representation in only one house less impactful. A balanced approach, as seen in Kenya, where persons with disabilities are represented in the National Assembly and the Senate, ensures more comprehensive and effective representation.[72] Thus, embracing the diversity among persons with disabilities is not just a moral imperative; it aligns with the principles outlined in the CRPD. Descriptive representation that reflects the varied needs and interests of persons with different disabilities is crucial for building an inclusive and equitable society.
4.3 Legal Capacity and Voting Rights
Ensuring the right to vote and run for office is paramount for all categories of persons with disabilities. The CRPD firmly establishes the right of every person with a disability to be recognized as a person before the law.[73] Unlike the International Covenant on Civil and Political Rights, its predecessor, the CRPD, refrains from outlining circumstances that could strip individuals of this right or limit their voting rights.[74] Instead, it emphasizes that persons with disabilities have the right to enjoy legal capacity on an equal basis with others in all aspects of life, including the fundamental right to vote.[75] Furthermore, the CRPD reaffirms the unwavering commitment of international human rights law to uphold the right of persons with disabilities to participate in political life.[76]
The CRPD unequivocally states that a person’s status as a person with a disability, including a mental one, cannot serve as a ground to deny the right to vote.[77] The case of Zsolt Bujdosó et al. v. Hungary (2011) further emphasized that the CRPD compels state parties to ensure the full and effective participation of persons with disabilities in political and public life on an equal basis with others, including safeguarding their right to vote.[78] The Committee on the Rights of Persons with Disabilities firmly rejected any reasonable restrictions or exceptions for specific groups of persons with disabilities, ruling that excluding the right to vote based on perceived or actual mental disabilities constitutes disability discrimination in the CRPD.[79]
Despite these clear directives, approximately 80 percent of countries globally persist in restricting or depriving persons with mental disabilities of their right to vote.[80] This is often based on the diagnosis of a disability (status approach), the perceived negative consequences of a decision (outcome approach), or the assessment of deficient decision-making skills (functional approach).[81] For example, in Uganda, an electoral college exclusively composed of persons with disabilities elects approved representatives, each of whom is required to have the right to vote.[82] However, the Parliamentary Elections Act of Uganda deems a person ineligible for election as a member of parliament if they are considered of unsound mind.[83] Consequently, Ugandans with mental disabilities are barred from participating in the electoral college, thereby denying them both the right to vote and the opportunity to stand for election.[84] This exclusion means that persons with mental disabilities remain without descriptive representation despite having unique interests and policy preferences.
Without the lifting of voting restrictions based on disabilities, persons with mental disabilities will continue to face limited opportunities for genuine descriptive representation. Furthermore, by denying specific subgroups of persons with disabilities the right to vote, we risk diminishing the overall representation of persons with disabilities in legislative bodies. The consequences extend beyond those individuals whose voting rights are curtailed, impacting the broader goal of inclusive and equitable representation.
4.4 Group Rights, Quotas, and Future Implications
In Africa, group rights for persons with disabilities take precedence, reflecting the communal nature of African societies and the African Human Rights System. Descriptive representation for persons with disabilities has been prioritized by these countries even before Western nations, as evident in both the ACHPR and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities, which recognizes descriptive representation as a group right.[85]
During the drafting of the Protocol, discussions initially considered quotas of five percent and reserved seats for persons with disabilities,[86] mirroring similar considerations during the drafting of the CRPD.[87] Although the proposal for a 5 percent quota was ultimately excluded from the final version of the Protocol, the provision ensuring descriptive representation in legislatures was retained.[88] This fact underscores the emphasis on group rights in African politics, contributing to realizing the right to representation for persons with disabilities in the studied countries. Interviewees highlighted that legislative or electoral quota laws in their respective countries supported the right to representation even before such measures were implemented in the West. The implementation of the right may require temporary measures like quotas, acknowledging that societal mindset and institutional inclusion might not be fully prepared for direct elections to ensure the representation of persons with disabilities.
Even in Western democracies, ensuring parliamentary representation for minority groups is challenging. While developed countries adopt additional measures for other minority groups, such as majority-minority districting for black minorities in the United States,[89] these approaches may not suit the unique circumstances of persons with disabilities. Disability’s inherent nature, not confined to specific categories, makes majority-minority districting impractical.[90] Countries like Uganda and Kenya grant descriptive representation for persons with disabilities constitutional status, declaring it a human right, similar to other fundamental rights. In contrast, in the Western context, descriptive representation remains a political decision or privilege rather than an explicitly asserted human right. Recognizing descriptive representation as a group right may have significant implications for shaping future human rights philosophy, expanding our understanding of political rights, and promoting inclusivity within the political process.
While international human rights mechanisms predominantly focus on safeguarding individual rights, certain treaties explicitly recognize distinct rights attributed to groups.[91] The exercise of the right to representation as a group right requires individuals representing the group to hold positions in a legislature. Persons with disabilities can assert their right to representation in legislatures by appointing representatives to occupy the seats to which they are entitled. Apart from the African Disability Protocol, no international human rights treaty currently recognizes the right to descriptive representation as a group right. However, if African countries domestically recognize this right, it may set a precedent for its establishment as a group right under international human rights law. This potential development would contribute to a more comprehensive and inclusive political process, expanding the scope of political rights.
5. Conclusion
The landscape of descriptive representation for persons with disabilities in parliaments reveals disparities compared to representation based on gender, race, ethnicity, and youth. Recently, five African countries—Kenya, Uganda, Rwanda, Zimbabwe, and Egypt—have constitutionally acknowledged the right to descriptive representation for persons with disabilities. This early recognition can be attributed to several factors. Interviewees highlight that including persons with disabilities in parliaments, without extending this representation to the executive branch, may indicate a perception of limited parliamentary power, providing a space for shared representation. Despite potential government beliefs, the Disability Rights Movement sees parliamentary inclusion as an empowering tool for advocating the rights of persons with disabilities.
The divergence in political and legal culture between these African countries and the West, marked by differences in the development of democracies and the prioritization of individual versus group rights, may have played a role in the early recognition of descriptive representation for persons with disabilities in African parliaments. Additionally, the preference for securing legislative seats for persons with disabilities may stem from the myriad forms of discrimination and challenges they face in Africa. Recent constitutional review processes have also influenced the recognition of descriptive representation, with these constitutions achieving higher inclusive representation than other countries. Key human rights instruments, such as the Standard Rules on the Equalization of Opportunities for Persons with Disabilities and the CRPD, have been crucial in driving positive changes.
However, challenges persist in certain African countries, where persons with disabilities are excluded from participating in the nomination and election of their representatives, and the execution of representation falls short of accommodating the diverse needs of persons with disabilities in compliance with the CRPD. In contrast, while strategies like majority-minority districting contribute to descriptive representation in the Western context, it remains a subject of political discourse. Recognizing the significance of countries that explicitly acknowledge the right to representation for persons with disabilities in their laws is crucial, as it not only marks an achievement but also holds the potential to shape the future philosophy surrounding human rights.
* Yohannes Takele Zewale is an S.J.D. Candidate at Syracuse University College of Law.
[1] Jane Mansbridge, Should Blacks Represent Blacks and Women Represent Women? A Contingent “Yes,” 61 J. Pol. 628, 629-30 (1999). [2] Id. [3] Id. [4] Hanna Fenichel Pitkin, The Concept of Representation 90–94 (1967). [5] Id. ; Anne Phillips, The Politics of Presence (1998). [6] Hendrik Hertzberg, Politics: Observations and Arguments (2004). [7] Barbara Arneil & Nancy J. Hirschmann, An Introduction, in Disability and Political Theory 1, 1–10 (Barbara Arneil & Nancy J. Hirschmann eds., 2016). [8] Stefanie Reher, Do Disabled Candidates Represent Disabled Citizens?, 52 Brit. J. Pol. Sci. 1, 1–6 (2021). [9] Mona Lena Krook, Electoral Quotas and Group Representation, in Research Handbook On Political Representation 198, 199 (Maurizio Cotta & Federico Russo eds., 2020). [10] Id. [11] Ranking of Countries by Quality of Democracy, Democracy Matrix (2020), https://www.democracymatrix.com/ranking. [12] Krook, supra note 9 (However, while Krook underscores that certain countries, including Egypt, have begun to acknowledge descriptive representation of individuals with disabilities, she did not elaborate on the reasons why these African countries achieved recognition of such representation in their parliaments ahead of western countries). [13] Helene Combrinck & Tobias Pieter van Reenen, The UN Convention on the Rights of Persons with Disabilities in Africa: Progress After 5 Years, 14 Sur Int’l J. Hum. Rts. 133 (2011); see also Ugandan Const. art. 77. [14] Ugandan Const. art. 32. [15] Id. art. 78; Ugandan Parliamentary Election Act, art. 8. [16] Ugandan Parliamentary Election Act, art. 8(2)(d); Krook, supra note 9, at 269. [17] Ugandan Local Government Act, arts. 10, 23. [18] Rwandan Const. art. 64. [19] Zimbabwean Const. art. 118. [20] Rwandan Const. art. 75(4). [21] Zimbabwean Const. art. 120(1)(d). [22] Rwandan Const. art. 75(4); Zimbabwean Election Act, § 45(A)(2). [23] Kenyan Const. art. 93. [24] Lucianna Thuo, Realising the Inclusion of Young Persons with Disabilities in Political and Public Life in Kenya, 4 Afr. Disability Rts. Y.B. 25 (2016). [25] Kenyan Const. art. 54(2). [26] Id. arts. 97-98, 177. [27] Id. arts. 90, 97(1)(C). [28] Id. art. 98(1)(D). [29] Kenyan Election Act art. 36(1)(F) (2011); see also Kenyan Const. art. 177(1)(C). [30] Kenyan Const. arts. 90, 97. [31] Egyptian Const. arts. 101, 248. [32] Id. arts. 180, 244. [33] Jan Claudius Völkel, Sidelined by Design: Egypt’s Parliament in Transition, 22 J. N. Afr. Studies 595, 607 (2017). [34] Id. [35] Egyptian Law No. 46 on the House of Representatives arts. 1-5 (2014). [36] Id. [37] Id. [38] Egyptian Const. art. 102. [39] In this Article, I present findings from a research project conducted between 2022 and 2023. Since the issue lacks prior research, qualitative methods such as interviews and observation were proposed. Accordingly, I gathered a diverse group of 15 individuals, nine men and six women, with disabilities to participate in this research. The interviewees included disability rights advocates, leaders of organizations representing persons with disabilities, and politicians with disabilities. They were from Kenya, Uganda, Rwanda, Zimbabwe, and Egypt. IRB approval was secured; informed consent was obtained from interviewees. [40] Minister of State for Disability, Ministry of Gender, Labour and Social Development, https://mglsd.go.ug/asamo-hellen-grace/ (last visited Oct. 23, 2023). [41] Julie Livingston, Insights from an African History of Disability, 2006 Radical Hist. Rev. 111, 111–125 (2006). [42] Id. [43] Uganda 1995, Constitute Project, https://www.constituteproject.org/constitution/Uganda_2005 (last visited Oct. 22, 2023). [44] Rwanda 2003, Constitute Project, https://www.constituteproject.org/constitution/Rwanda_2015 (last visited Oct. 22, 2023). [45] Kenya 2010, Constitute Project, https://www.constituteproject.org/constitution/Kenya_2010 (last visited Oct. 22, 2023). [46] Zimbabwe 2013, Constitute Project, https://www.constituteproject.org/constitution/Zimbabwe_2013 (last visited Oct. 22, 2023). [47] Egypt 2014, Constitute Project, https://www.constituteproject.org/constitution/Egypt_2014 (last visited Oct. 22, 2023). [48] U.N. Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Res. 48/96 (Dec. 20, 1993). [49] U.N. Convention on the Rights of Persons with Disabilities, 2515 U.N.T.S. 3 (Dec. 13, 2006) [hereinafter “CRPD”]. [50] Kenyan Const. arts. 90, 97(1)(c). [51] Id. at art. 54. [52] Nancy L. Rosenblum, On the Side of The Angels: An Appreciation of Parities and Partisanship 401 (2008). [53] Julian Bernauer, Ethnic Politics, Regime Support and Conflict in Central and Eastern Europe 65 (2015). [54] CRPD, supra note 49, at preamble. [55] Id. at art. 4(3). [56] Michael Ashley Stein, Disability Human Rights, William & Mary Law School Scholarship Repository 75 (2007), https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1285&context=facpubs. [57] CRPD, supra note 49, at art. 3. [58] Id. at art. 4(3). [59] Id. at arts. 29, 33(3).[60] Kenjiro Sakakibara, Work Exclusion and Disability Types: The Heterogeneity of Disability as Social Exclusion in the 2011 Irish Census Microdata, 28 Irish J. Sociology 65, 66 (2020).
[61] Id. [62] Elizabeth Barnes, The Minority Body: A Theory of Disability 9 (2016). [63] Id. [64] Sakakibara, supra note 66. [65] Id. [66] CRPD, supra note 49, at preamble. [67] Id. at art. 3. [68] Id. at preamble. [69] Id. at arts. 1(2), 6. [70] Rwandan Const. art. 75(4). [71] Zimbabwean Const. art. 120(1)(D). [72] Kenyan Const. arts. 97-98, 177. [73] CRPD, supra note 49, at art. 12(1). [74] Committee on the Rights of Persons with Disabilities, General Comment No. 1: Article 12: Equal Recognition Before the Law, ¶ 29, U.N. Doc. CRPD/C/GC/1 (May 19, 2014) [hereinafter “CRPD General Comment No. 1”). [75] CRPD, supra note 49, at art. 12(2). [76] Id. at art. 29. [77] CRPD General Comment No. 1, supra note 73. [78] Committee on the Rights of Persons with Disabilities, Communication No. 4/2011 [Zsolt Bujdosó v Hungary], U.N. Doc. CRPD/C/10/D/4/2011 (Oct. 16, 2013). [79] Id. ¶ 9.4. [80] Dinesh Bhugra et al., Mental Illness and the Right to Vote: A Review of Legislation Across the World, 28 Int’l Rev. Psychiatry 395, 394–99 (2016). [81] CRPD General Comment No. 1, supra note 73. [82] Guidelines for Election of Representatives of Persons with Disability in Parliament 2017, The Ugandan Electoral Commission, https://www.ec.or.ug/info/guidelines-election-mps-representing-persons-disabilities-pwds (last visited June 2, 2023). [83] Id. [84] See Ugandan Const. art. 80. [85] A.U. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, https://au.int/sites/default/files/treaties/36440-treaty-protocol_to_the_achpr_on_the_rights_of_persons_with_disabilities_in_africa_e.pdf (last visited Mar. 23, 2023) [hereinafter “ADP”]. [86] A.U. Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, art. 16(d), https://www.achpr.org/news/viewdetail?id=129 (last visited Oct. 9, 2023). [87] U.N. Working Group, Compilation of Proposals for Elements of a Convention (5-16 January 2004), https://www.un.org/esa/socdev/enable/rights/comp-element6.htm (last visited Mar. 21, 2023). [88] ADP, supra note 84, at art. 21(2)(D). [89] Majority-Minority Districts, Ballotpedia, https://ballotpedia.org/Majority-minority_districts (last visited on June 4, 2022). [90] Willi Horner-Johnson, Disability, Intersectionality, and Inequity: Life at the Margins, in Pub. Health Persp. on Disability 91, 95–103 (Donald J. Lollar et al. eds., 2d ed. 2021). [91] E.g., International Covenant on Civil and Political Rights of 1966, art. 27; Indigenous and Tribal Peoples Convention of 1989; and U.N. Declaration of Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities of 1993.
