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A Call for a Protocol to the African Charter on Human and Peoples' Rights on the Rights of Persons with Disabilities in Africa

Document Cited authorities 4 Cited in Related
Vincent
Published date01 June 2013
Date01 June 2013
DOI10.3366/ajicl.2013.0060
AuthorSerges Alain Djoyou Kamga
Pages219-249
INTRODUCTION

Central to the discourse on disability is the question of systemic disadvantage, characterised by the discrimination, and often complete exclusion, of persons with disabilities (PWDs) in society. In an effort to address the problem, on 13 December 2006, the international community adopted the UN Convention on the Rights of Persons with Disabilities (CRPD), which entered into force together with its Optional Protocol on 3 May 2008.

In Africa, prior to the advent of the CRPD, the idea of a specific treaty on disability rights had surfaced in 2003 at the first AU Ministerial Conference on Human Rights in Africa. During this meeting, African leaders recognised the broad violation of the rights of ‘vulnerable groups including persons with disability in general’ and called for the adoption of ‘a Protocol on the protection of the rights of people with disabilities and the elderly’. This call was answered in 2009 when the African Commission on Human and Peoples' Rights (the African Commission) set a Working Group on the Rights of Older Persons and People with Disabilities to draft a concept paper that would serve as the basis for the adoption of a draft Protocol on the Elderly and People with Disabilities.1

Resolution on the Transformation of the Focal Point on the Rights of Older Persons in Africa into a Working Group on the Rights of Older Persons and People with Disabilities in Africa, ACHPR/Res143(XXXXV)09.

The Working Group developed two draft protocols – one for the rights of older persons and the other one being the draft protocol on the rights of PWDs – at an expert meeting held in Accra, Ghana, hence the draft protocol on the rights of PWDs is called the ‘Accra draft’

However, the Accra draft was put on hold at the 49th Ordinary Session of the African Commission (28 April–12 May 2011) for further reflection. This development brings to the table the question of what could be the appropriate instrument for the protection of disability rights in Africa, especially after the coming into force of the CRPD already ratified by twenty-six African states. In addition, the continent has an existing disability law regime made of four treaties already in force,2

The African Charter on Human and Peoples’ Rights (African Charter) (adopted in 1981, entered into force in 1986), reprinted in C. Hyens and M. Killander (eds), Compendium of Key Human Rights Documents of the African Union, Pretoria University Law Press (2010), pp. 29–40; the African Charter on the Rights and Welfare of the Child (African Children's Charter) (adopted in 1990, entered into force in 1999), reprinted in Hyens and Killander, pp. 77–89; the Protocol on the Rights of Women in Africa (African Women's Protocol) (adopted in 2003, entered into force in 2005), reprinted in Hyens and Killander, pp. 61–7; the African Youth Charter (adopted in 2006, entered into force 2009), reprinted in Hyens and Killander, pp. 118–31.

two treaties not yet in force3

African Charter on Democracy, Elections and Good governance (Charter on Democracy) (adopted in 2007, has yet to enter into force), reprinted in Hyens and Killander, supra note 2, pp. 131–42; the AU Convention for the Protection and Assistance of Internally Displaced Persons in Africa (IDP Convention) (adopted in 2009, has yet to enter into force), reprinted in Hyens and Killander, supra note 2, pp. 143–54.

 and numerous activities of the African Commission through its Working Group on the Rights of Older Persons and People with Disabilities, its reporting and communication procedures, its thematic resolutions of guidelines and general comments. Furthermore, there is a plethora of non-binding instruments dealing with disability issues on the continent

The African Charter on Human and Peoples' Rights (the African Charter) permits the adoption of ‘special protocols or agreement to supplement [its] provisions’.4

African Charter, supra note 2, article 66.

Therefore, in contributing to the debate, this paper calls for the adoption of a protocol to the African Charter on the rights of PWDs on the grounds that it will not only assist in deepening and supplementing the CRPD on the continent, but will also strengthen the African Charter's provisions and other aspects of the continental disability law regime in general. In making the case for a protocol, the paper analyses and stresses the advantages and disadvantages of a protocol in comparison with other options

In terms of structure, the paper is divided into five parts. In order to highlight the urgency of an efficient response to violations of disability rights on the continent, the second part presents an overview of disability in Africa; the third part assesses inter alia the desirability, feasibility and implementation of a protocol in the light of the Accra draft. It also proceeds to examine the desirability of a protocol in the light of the CRPD and in the light of the current African disability legal framework. The fourth part of the paper discusses the potential contents of the protocol and the final part provides concluding remarks.

 DISABILITY IN AFRICA: AN OVERVIEW

According to the CRPD, PWDs comprise those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.5

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was adopted by the United Nations General Assembly on 13 December 2006 and entered into force on 3 May 2008, available at http://www.un.org/disabilities/convention/conventionfull.shtml#top (accessed 25 February 2013). See article 1.

It is estimated that 80 million people live with some form of disability in Africa.6

‘Disability in Africa’, available at http://www.ascleiden.nl/Library/Webdossiers/DisabilityInAfrica.aspx (accessed 6 December 2010).

 In this part of the world, these people include albinos who suffer a sensory impairment and are considered as PWDs.7

T. Choruma, The Forgotten Tribe: People with Disabilities in Zimbabwe, Progressio (2007), p. 10. This is also the view of the Secretariat of the African Decade of Persons with Disabilities (see pamphlet issued at the 2011 Roundtable to Develop the New Continental Disability Strategy for the African Decade of Persons with Disability 2010–2019).

PWDs in general live in abject poverty and are vouchsafed with charity and placed under social welfare programmes due their inability to function in mainstream society and to provide for themselves.8

C. Ngwena, ‘Deconstructing the Definition of “Disability” Under the Employment Equity Act: Social Deconstruction’ 22 South African Journal on Human Rights (2006): 613–20. Also D. Goodley, Disability Studies – An Interdisciplinary Introduction, Sage Publications (2011).

Poverty in PWDs' communities is linked to insufficient access to education, employment, health care and other social services that characterise the life of PWDs. The Kenyan Human Rights Commission summarises the situation in these terms

The poverty levels which persons with disabilities face are far higher relative to the rest of society. The opportunities for livelihood available to a disabled person are less obvious since disability undermines the actual or perceived ability of a person to interact in educational, economic, social or indeed political arenas. Poverty itself breeds disability and disability is a harbinger for more poverty.9

Report of Kenya National Human Rights Commission, Objects of Pity or Individuals with Rights: The Right to Education for Children with Disabilities (2007). Quoted in H. Kotze, A Situational Analysis of the State and Status of Disability Issues and Rights in Southern Africa: OSISA Project on Disability Rights and Law, OSISA (2010), p. 16.

 Indeed, in Africa, one of the most challenging issues related to disabilities is extreme poverty. According to Chalklen et al.,

The situation in Africa differs radically from that in the US or Europe for a number of reasons. Most fundamental is the issue of poverty. Severe poverty not only disempowers PWDs, but hinders their survival ability. For example, though a person with a spinal cord injury in a wealthier country, or even in South Africa, has a long life expectancy, some have estimated the life expectancy for a person with a spinal cord injury in a poorer African country at between four months and two years, and similar challenges face people with other impairments.10

S. Chalklen, L. Swart and B. Watermeyer, ‘Establishing the Secretariat for the African Decade of Persons with Disabilities’, in B. Watermeyer, L. Swart, T. Lorenzo, M. Schneider and M. Priestley (eds), Disability and Social Change: A South African Agenda, Human Science Research Council Press (2006), p. 96.

 PWDs also suffer stigma and discrimination and are highly vulnerable to HIV/AIDS.11

Kotze, supra note 9, p. 5.

 In fact, the trademark feature of disability in Africa is ‘‘voicelessness’ and institutional neglect of disabled people, who are often forced to take positions on the outermost margins of their societies’.12

M. Power, ‘Geographies of Disability and Development in Southern Africa’, 21 Disability Studies Quarterly (2001), available at http://www.dsq-sds.org/article/view/320/388 (accessed 20 April 2011).

 The marginalisation of PWDs is often the result of traditional or cultural beliefs. For example, in Swaziland, the only contemporary African monarchy, custom prevents PWDs from taking part in some national or cultural events on the ground that ‘a disabled person making contact or coming close to royalty will actually bring bad luck to either the king or the queen mother’.13

Kotze, supra note 9, p. 35.

In a similar vein, based on traditional beliefs, children with disabilities are considered to be ‘disgrace’ to their families who hide them or deprive them of any contact with the rest of the community as they symbolise the punishment of gods...

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