Spare a Thought for Vengai’s dream – Perspicacity International

Introduction:

There are times when I feel very powerless. In such moments, maybe Mike Oliver of blessed memory would have said “if I had a hammer”.

The activist in me is in agony after reading this article. As a lawyer, my first instinct would have been to write a case commentary but unfortunately, this case was never heard on merit and therefore, an opportunity was missed to develop relevant anti-discrimination jurisprudence for Zimbabwe. I must at the onset admit that I am very angry on the basis of the facts I got from the article but maybe when presented with more facts, I may be willing to compromise my position.

Brief background

Maybe let me start where I should have started. The brief facts according to the news article are that one, Vengai Chikurungeni was attested into the Zimbabwe Republic Police on 27 August 2021 as a trainee and was doing his training at Morris Depot. In September, vengai was called by one, Inspector Gwaka who told Vengai that he, Vengai was unfit for being a police officer because of being a stammerer. In October, the depot commandant called Vengai in connection with this issue and it was established that Vengai was indeed a stammerer. In December 2021, Vengai was called and subsequently examined by DR. Nyakudya to determine if Vengai was fit to be a police officer. Vengai was advised to remain in the police as results would be announced in due course.

Vengai’s version on one hand, is that on the 31^st of January 2022, he was called and handed a letter of termination of employment dated 28 December 2021 and asked to sign it and Vengai complyed. The version of the commissioner general of police on the other hand, is that the decision to terminate Vengai’s employment was communicated to Vengai on 23 December 2021. This eventually became the main issue for the court to make it’s determination. The court was persuaded to rule in favour of the Commissioner General because the police commissioner general was able to adduce evidence that Vengai’s employment had been terminated in December while on the other hand, Vengai could not show evidence that he had been called to sign a letter backdated to December 2021 in January 2022. The court therefore, did not deal with the matter on merit but dismissed the application for failure to file on time.²

Discrimination on the basis of disability

According to the article, Vengai was fired for “stammering and having communication problems”. While I know what stammering is and know it in disability as a “speech impairment”, I am at a loss when it comes to the meaning of “communication problems”. Could it be that the communication problems were connected to or resulting from the stammering or they were independent of the stammering? From this story, I am persuaded to take the former. If my conclusion is to be trusted, then the Police Service Commission discriminated Vengai on grounds of disability. The United nations convention on the Rights of Persons with Disabilities to which Zimbabwe is a state party defines discrimination on the basis of disability as

“any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.”³

It is also important to define what reasonable accommodation is since denial of such amounts to discrimination based on disability. The convention states that:

reasonable accommodation; means 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.”⁴ Instead of providing reasonable accommodation for Vengai to perform his duties, vengai’s former employer chose to concentrate on Vengai’s impairment and amplifying it as a barrier.

The constitution of Zimbabwe also outlaws discrimination on various grounds including disability.

⁵

It clearly indicates that discrimination occurs when a person is “subjected directly or indirectly to a condition, restriction or disability to which other people are not subjected”.⁶ In its limitation clause, the section under review states that in order for this right to be limited, it should be “established that the discrimination is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.⁷ Is it possible for any reasonable person applying his mind soberly to conclude that dismissing a police officer for stammering fits within the ambit of that limitation clause?

In June 2021, with pomp and funfair, the President of Zimbabwe promulgated a national disability Policy whose spirit and letter runs counter to what the Police Service Commission has done in the case of Vengai. It is instructive to reproduce some of the President’s words:

“The Government of Zimbabwe acknowledges that just like everyone else, persons with disabilities have human rights, hence they should occupy space in all facets of life including in employment, education, healthcare, housing, music, sport, disaster risk management and many other areas.”⁸ I do not seem to find where the police service commission was granted exceptions to clearly discriminate persons with disability as was done in Vengai’s case both in the quoted speech and the National Disability policy. What can we therefore say of an institution of government which flagrantly disregards government policy?

Medical responses to disability

It is extremely worrying that in this day and age, the police, when faced with a challenge of disability, found only one way of responding and that was a medical answer. In determining whether Vengai was fit for the job, a DR. Nyakudya is said to have examined him. How long should we hammer it into those people’s heads that such conduct is atrociously unacceptable? The world over, it has come to be accepted that while medical professionals have a very important role to play in the lives of persons with disabilities, a sole medical response to disability runs counter to the human rights approach to disability which countries such as Zimbabwe which have ratified the United Nations Convention on the Rights of Persons with Disabilities should be using.

Taking the case beyond Vengai

Indeed, the General Commissioner of police and the Police service Commission might have warn the case at this level but activist must increase the moral cost of discrimination. They must amplify the dent which this case has put on both the government of Zimbabwe and the police Service Commission which should now be painted as a blatant disability discrimination hub. Human rights lawyers, particularly those into disability rights must conceive A new application possibly challenging the constitutionality of Vengai’s dismissal. The promise of “leaving no one behind” has been a key feature of the current regime and activists must take on politicians on this promise seriously.

In the United States of America, they have what they call “the American dream”. That is an ideal force which unifies the nation and invokes an unusual sense of patriotism. The American dream serves as a motivator that individuals, no matter their background can reach any height. The Oxford Dictionary captures the American dream as : “the ideal that every citizen of the United States should have an equal opportunity to achieve success and prosperity through hard work, determination, and initiative.”

⁹

What is Zimbabwe’s dream? What should motivate ordninary Zimbabweans? What should encourage marginalised citizens of the land? Wasn’t Vengai’s dream to serve as a law enforcement officer? Did Vengai not have all the other requisite qualifications? Did he not run that painful race which is run by all recruits and succeed? Vengai had his door shut out by a system which is run by unpatriotic merchants of discrimination. Yet Vengai’s dream must not die. Vengai’s dream is the dream of all marginalised people in Zimbabwe. Vengai’s dream is to be where others are without being discriminated. This is the promise of our 2013 constitution and anything contrary to that is counter-revolutionary.

1
Frustrated by the unwarranted criticism of the social model of disability, Mike Oliver wrote this article: The Social Model in Action: if I had a hammer’ in: Colin Barnes and Geoff Mercer (Eds) ‘Implementing the social model of disability: Theory and Research’ (2004) Leeds: The Disability Press.
2
The High Court rules stipulate that an application for the review of the Police Commissioner General’s decision ought to have been filed within eight weeks. It seems the better option for Vengai’s lawyers under the circumstances was to apply for condonation of late noting of application for review first.
3
Article 2 of the United Nations Convention on the Rights of Persons with Disabilities
4
Ibid
5
Section 56 (3) of the Constitution of Zimbabwe (2013) states that: Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.
6
Ibid section 56 (4) (a)
7
Ibid section 56 (5)
8
See the National Disability Policy June 2021
9
Cited in Sarah Churchwell, Behold, America: The Entangled History of ‘America First’
and ‘the American Dream’, The bush centre, Issue 21 accessed from https://www.bushcenter.org/catalyst/state-of-the-american-dream/churchwell-history-of-the-american-dream.html
on 16 November 2022