Legal and policy provisions for reasonable accommodation in employment of persons with mental disability in East Africa: A review

Abstract

Despite an elaborated framework on reasonable accommodations in the UN Convention on the Rights of Persons with Disabilities (UN CRPD), persons with mental disabilities continue to face significant limitations to employment in East Africa. The aim of our study is to explore legal provisions related to reasonable accommodations in the employment-related laws regarding persons with mental disabilities in East Africa, and to suggest ways to bridge the gap between principles of international law and provisions of domestic laws. The disability, labour and human rights laws of 18 East African countries were accessed from the database of WHO MiNDbank and the International Labour Organisation. These laws were reviewed in the light of the framework of Article 27 of the UN CRPD. We found that 15 (83%) of the countries in East Africa have ratified the UN CRPD, and 12 (67%) have formulated an explicit definition of disability that includes mental illness. Eleven countries (61%) have explicit laws mandating employers to provide reasonable accommodations for persons with a mental disability. Eight countries (44%) have submitted a state report to the CRPD Committee. Lack of clear and specific definition of reasonable accommodations or the existence of vague definitions create challenges. If persons with a mental disability are to exercise their right to inclusive and gainful employment, there is a need for legal reforms that guarantee access to inclusive employment practices.

Introduction

According to the World Disability Report, persons with disabilities constitute approximately 15% of the world's population, including between 785 and 975 million persons of working age (World Health Organisation, 2011). Persons with mental disabilities, a category that includes mental disorders that have the potential to impair social and occupational function (Linden, 2017), experience particularly marked challenges regarding employment. A European Union report suggests that for persons with mental disabilities, employment rates may be about 25% (Organisation for Economic Co-operation and Development, 2010). This estimate is probably high, and will vary depending on the specific mental disability and how countries record and report (un)employment. In some cases, persons working in sheltered workshops for no or extremely low pay are counted as ‘employed,’ and some individuals may be counted as ‘employed’ despite working few and irregular hours (precarious employment) (Waltz, 2017). Other individuals with mental disabilities may only be able to secure part-time employment, or employment that is far below their educational level.

These challenges have informed the recommendation of reasonable accommodations, which the UN CRPD defines as ‘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’ (United Nations, 2006: Article 2), to improve inclusion of persons with mental disabilities in work (McDowell & Fossey, 2015).

In low- and middle-income countries (LMICs), it is often unclear whether laws exist that mandate equal treatment, and the scope of such laws varies widely (Fernandes & Cantrill, 2016; Robb, 2012). Also, it is not uncommon for low-income countries to ratify international conventions without concrete plans to implement the resolutions (Ngwena, Plessis, Combrinck, & Kamga, 2017).

In East Africa, persons with mental illness continue to endure employment discrimination (Ecumenical Disability Advocates Network, 2012). Over 70% of employment in the region is informal, and this presents a particular challenge for implementing policy provisions. This study has therefore been undertaken to explore legal and policy provisions for reasonable accommodations in employment for persons with a mental disability in East Africa, and to suggest ways to bridge the gap between the principles of international law and provisions of domestic laws. In order to do this, following a section detailing the methods used to carry out a review of the disability, labour and human rights laws of 18 East African countries, we begin by discussing the concept of reasonable accommodations, and the regional and international human rights instruments within which the right to work is codified. We then present the results of the review, discuss these findings, and conclude, with reference to the implications of our findings.