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(January 2020)

Sugiura, K., Mahomed, F., Saxena, S. & Patel, V. Bulletin of the World Health Organization, 98(1): 52-58

Abstract:
The United Nations Convention on the Rights of Persons with Disabilities requires a paradigm shift from a medical model of disability to a social model that emphasizes overcoming the barriers to equality created by attitudes, laws, government policies and the social, economic and political environment. The approach adopted by the social model recognizes that people with psychosocial disabilities have the same right to take decisions and make choices as other people, particularly regarding treatment, and have the right to equal recognition before the law. Consequently, direct or supported decision-making should be the norm and there should be no substitute decision-making. Although recent mental health laws in some countries have attempted to realize a rights-based approach to decision-making by reducing coercion, implementing the Convention on the Rights of Persons with Disabilities can be challenging because it requires continuous refinement and the development of alternatives to coercion. This article reviews the impact historical trends and current mental health frameworks have had on the rights affected by the practice of involuntary treatment and describes some legal and organizational initiatives that have been undertaken to promote noncoercive services and supported decision-making. The evidence and examples presented could provide the foundation for developing a context-appropriate approach to implementing supported decision-making in mental health care. Read more …

(August 2019)

Mahomed, F., Lord, L. & Stein, MA. African Journal of International and Comparative Law, 27(3): 335-358.

Abstract:
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was adopted and ratified with unprecedented support from states, including those on the African continent. In large measure this was precipitated by the remarkable work of disabled peoples’ organisations (DPOs). However, CRPD ratification is only the first step in a long process which African states parties must undertake to manifest the treaty’s provisions in the lived experiences of persons with disabilities. This article examines opportune avenues for advocacy by African DPOs to engage with constitutional and statutory reform processes, disability-specific policies and their implementation, strategic litigation and national-level development planning. In doing so, we draw on the rich experiences and best practices already evidenced by many of these civil society organisations in domesticating provisions of the CRPD into legal, social, political, economic and institutional frameworks across Africa. We also examine the CRPD’s intended role for DPOs and consider the manner in which their further empowerment would advance the treaty’s objectives. Finally, we consider the relationship between DPOs and national human rights institutions, and articulate areas for collaboration. We conclude that the experiences of African DPOs in translating the CRPD into meaningful social change can be replicated, thereby more effectively actualising the rights of persons with disabilities on the continent. Read more …

(December 2018)

Mahomed, F., Stein, MA, Chauhan, A & Pathare, S. International Journal of Social Psychiatry, 65(1):73-79.

Abstract Background:: Family life is a near-universal condition and a fundamental human right. It can also have a significant impact on mental health, including recovery from mental health conditions. In India, families play a considerable role, representing a source of social, cultural, religious and, often, financial support. However, families can also play a stigmatising role. Aim:: To examine the experiences of mental health service users (MHSUs) relating to stigma and support provided by family members and to consider ways in which family support can be improved. Method:: This is a qualitative study. A total of 17 residential MHSUs at the Ahmedabad Hospital for Mental Health were interviewed. The results were evaluated using thematic content analysis. Results:: The results revealed that all 17 MHSUs considered their families to be important sources of support, while 14 of the 17 MHSUs also experienced stigma emanating from their families. A total of 11 experienced lack of knowledge, 4 spoke of prejudicial attitudes and 5 mentioned discriminatory behaviours. There were important gender differences in experiences. MHSUs mentioned needs ranging from education and peer support for family members to financial support. Conclusions:: Families act both as sources of support and stigmatisation. Education needs are considerable, while the need for peer support for families and resources to aid families in supporting people with mental health conditions are also important considerations. Read more …

(October 2018)

Mahomed, F., Stein, MA & Patel, V. PLOS Medicine, 15(10): e1002679

Abstract:
The United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) was adopted in 2007 and has since been ratified by 177 countries. It represents a paradigm shift from an impairment-focused, biomedical model of disability to a socially focused, human rights–based model. Impairment arising out of a mental health condition is termed “psychosocial disability” in this model, and laws and clinical protocols governing mental health practice are likely to be informed by the CRPD’s provisions. The Indian Mental Health Care Act of 2017 (MHCA) states that it was drafted because “it is necessary to…harmonize existing laws with [the CRPD]” [1]. Similar processes have taken place or are in motion in 32 countries, [2] illustrating the CRPD’s potential impact on the lives of people living with psychosocial disabilities. This evolution also applies to intellectual disabilities and degenerative conditions (e.g., dementia). Although not covered in detail in this paper, all of these conditions are likely to be affected by the CRPD’s approach to legal capacity, as discussed below. Read more …

(May 2018)

Mahomed, F. (2018). In D. Bilchitz & D. Landau (eds). The Evolution of the Separation of Powers: Between the Global North and the Global South (pp. 177-205)

Abstract:
South Africa’s State Institutions Supporting Democracy, commonly referred to as the Chapter 9s, play a number of roles that overlap significantly with those played by the executive, legislative and judicial branches of government. Dedicated to the entrenchment of good governance, these bodies exist independently from the traditional structures of government, designed to guard against acts of impunity and to foster balance in much the same way that the checks and balances system, derived from the doctrine of separation of powers, intends to. Given this functional interpretation, this chapter contends that the Chapter 9 institutions do constitute a “fourth branch”, and that there are significant potentialities for them to utilise this role to contribute to good governance. These opportunities are explored, looking at the judicial and quasi-judicial roles that many Chapter 9 institutions play, and suggesting that the practice of Alternative Dispute Resolution (ADR) is one means through which these institutions can contribute significantly. Opportunities also exist for the Chapter 9 institutions to be robust research, advisory and rights-promoting bodies, and these should be harnessed and strengthened as distinctive roles that have an important place in South Africa’s constitutional landscape. Ultimately, however, it is recognised that there remain significant challenges which impede the ability of these fourth branch institutions to contribute robustly and meaningfully to good governance, including a lack of clarity about their position; questions about the enforceability (or lack thereof) of their findings; a paralysing lack of resources; and intrinsic and extrinsic weakening or undermining of the Chapter 9 bodies, often for political purposes. This chapter suggests that these challenges will need to be overcome if the Chapter 9 institutions are to live up to their considerable potential as custodians of good governance in South Africa’s constitutional order. Read more …

(March 2018)

Adams, RA & Mahomed, F. HSCR Policy Brief Series, March 2018

Abstract:
The purpose of this policy brief is to conduct an historical analysis of policy developments in South Africa, from the Reconstruction and Development Programme of the 1990s to the current National Development Plan and its Medium-Term Strategic Framework to assess their sensitivity to questions of gender and gender equality and inequality. Read more …

(September 2016)

Mahomed, F (2016). South African Journal of Human Rights, 32, 1, 1-25

Abstract:
Recent events have revived debate about the nature in which South Africa has been able (or not) to embrace the millions of immigrants currently in the country. In this article, I consider the introduction, by the Gauteng province’s Department of Health, of a policy directive which required full upfront payment from non-nationals who could not produce an Identity Document or a refugee or asylum seeker permit in order to access public health services. I demonstrate the retrogressive nature of such policy, before arguing that both the minimum core and reasonableness approaches to the adjudication of socio-economic rights, which are often perceived to be in tension, are indeed inter-related and complementary in the determination of the constitutional validity of the said directive. I place specific emphasis on the principles of inclusivity and non-discrimination and the consideration of vulnerability which are integral to an analysis of the right of access to health care for non-nationals. Paying specific attention to the Constitutional Court’s Grootboom and Treatment Action Campaign judgments in the grounding of these principles, I consider the same court’s findings in the Khosa matter, which dealt specifically with the socio-economic rights of non-nationals. I argue that the Khosa court failed to apply its own standard of reasonableness adequately because it upheld the exclusion of a group of people who were undoubtedly in need of social protection from a government social security benefit offered to citizens. I suggest that the same is true of the policy directive that excludes non-nationals who are unable to produce the required documentation, arguing that such a provision does not adequately address the need for an inclusive approach that incorporates the needs of the most vulnerable. Read more …

(June 2016)

Mahomed, F. South African Journal on Human Rights, 32:3, 490-509.

Abstract:
Despite numerous advancements in disability discourse, the experiences of persons with psychosocial disabilities have been shown to be characterised by marginalisation, victimisation and violations of numerous human rights. In this paper, I explore the problem of stigma on the basis of psychosocial disability as a central underlying factor that contributes to numerous forms of neglect and under-prioritisation. Using recent theoretical frameworks, I begin by examining the manner in which stigma is conceptualised, at individual and societal levels. I then consider the manner in which stigma – which is clearly a violation of the right to dignity and equality – also contributes to the violation of numerous related rights, including the right to health; the right to education; the right to freedom and security of the person; the right to vote; and the right to work. In doing so, I aim to demonstrate the myriad intersecting forms of marginalisation faced by persons with psychosocial disabilities in South Africa, and pay attention to some of the potential avenues through which stigma can be addressed and its associated human rights violations alleviated. I argue that the lack of implementation in respect of South Africa’s National Mental Health Policy Framework as well as the under-prioritisation of mental health as a public concern, themselves, indicate the stigmatisation of psychosocial disability. I suggest that addressing stigma requires attention to the causes of its manifestation, taking into consideration the problems of ignorance, prejudice and discrimination simultaneously. Similarly, however, I contend that a fourth problem, namely, the structures which render stigma possible, must also be taken into account if ‘structural violence’ is to be addressed. Read more …

(May 2016)

Mahomed, F. & Trangos, G. Journal of Homosexuality, 63, 10, 1400-1421

Abstract:
South Africa’s legal framework on the rights of sexual minorities is one of the most progressive in the world. Despite this, discrimination and violence against gay and lesbian people continues to be a challenge. Using large-scale survey data gathered in the Gauteng City-Region, this study examines public attitudes related to homosexuality. Most respondents to the survey felt that sexual minorities should have equal rights. However, a considerable proportion of respondents also held negative views towards gay and lesbian individuals, with close to two-fifths of respondents believing that homosexuality is against the values of their community and over 12% of participants holding the view that it is acceptable to be violent towards gays and lesbians. Further analysis also consists of an examination of responses cross-tabulated with the variables of race, gender, age and education, revealing that younger, well-educated South Africans tend to be the most tolerant, but also exhibiting large variances in attitudes within groups. Read more …

(June 2015)

Mahomed, F. Social Indicators Research, 127(3) 1297-1319

Abstract:
South Africa has one of the most liberal abortion laws in the world, emphasising the right to reproductive choice, in keeping with the country’s post-apartheid emphasis on human rights. Access to abortion may also be considered a public health consideration, due to the large number of complications associated with illegal abortions and the associated burden of care. Despite these justifications for a more permissive stance towards abortion, there remain large segments of South African society who are opposed to termination of pregnancy on request. This paper examines the status of reproductive rights in South Africa before looking more closely at public attitudes towards them in the country’s largest city-region. It uses survey data considering attitudes towards abortion as well as the interaction of these attitudes with the variables of race, gender, education level and age using multinomial logistic regression. The results indicate that the largest proportion of respondents oppose abortion absolutely, while a smaller proportion would be open to abortion if the mother’s life is in danger or if the pregnancy was a result of rape. Throughout, the smallest proportion of respondents was of the view that abortion on request is a human right. In terms of predictive value, educational attainment was a stronger predictor than age, race or gender, though there is a distinct lack of consistency in predictive validity of all factors, demonstrating the significant gap between the liberality of laws and the conservatism of public attitudes. Read more …

(January 2015)

Mahomed, F. & Matthews, T. (2015). Political Crossroads, Vol 22, 1,2015, pp 23-41(19)

Abstract:
Institutions of higher education have a special role to play not only in generating knowledge of human rights but, more importantly, in inculcating a culture of human rights. Moreover, by virtue of their place in society as spaces that foster thought leadership and knowledge generation, they can make a significant contribution in ensuring that this culture becomes embedded more broadly. This role is of particular importance in South Africa, where constitutional literacy remains low and where human rights education remains nascent. Notwithstanding the responsibility that arises out of their position, human rights violations continue to occur on South Africa’s university campuses. Moreover, despite efforts at instituting policy and institutional changes, numerous incidents still occur which render the transformation of institutional cultures questionable. This paper considers the efforts undertaken by the University of the Free State’s Institute for Justice and Reconciliation, established after a widely publicised racist incident took place at the institution’s Reitz residence in 2008. It considers the numerous policy and practical interventions that have since been instituted at the university, before considering incidents that occurred since the initiation of these numerous efforts. In so doing, it considers the challenges that arise in attempts to shift institutional cultures, despite the development of laws, policies and focal points. Reflecting on information from written, oral and legal sources, it is concluded that numerous institutional, epistemic, social and cultural barriers continue to impede the advancement of substantive equality due to a lack of emphasis on shifting lived experiences along with formal entitlements. Read more …