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Transposing the Convention on the Rights of Persons with Disabilities in Africa: The Role of Disabled Peoples’ Organisations

Document Cited authorities 6 Cited in Related
Vincent
Author
Published date01 August 2019
Date01 August 2019
Pages335-358
DOI10.3366/ajicl.2019.0278
INTRODUCTION

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was strongly supported by African state representatives throughout its negotiation,1 entry into force2 and subsequent international monitoring.3 Counterbalancing this enthusiasm is a deep challenge for Africa's states parties to implement the CRPD in a manner that responds to the treaty's broad mandates while also being in harmony with domestic social and legal norms.4 Among the CRPD's provisions with particular salience for Africans with disabilities are those relating to physical and mental integrity, living in the community, situations of risk, health (especially mental health) and legal capacity.5 These thematic areas are likewise exemplars of innovative approaches advancing domestic implementation of CRPD rights on the continent.6

Across Africa and globally, the processes by which the CRPD is transposed into national level action and advocacy is well underway ten years following its entry into force, presenting timely opportunities for positive change while also revealing major obstacles to realising the treaty's promise.7 We argue that a comprehensive human rights agenda must be embraced and be undergirded by strategic advocacy for the CPRD to be effectively implemented.8 Such an agenda encompasses constitutional and national level disability law adoption and reform; promulgation of disability-specific domestic policies; strategic litigation inspiring court-based social transformations; issuance of inclusive development and humanitarian schemes; strengthening of the organisational and advocacy capacity of disabled peoples' organisations (DPOs); and effective collaboration between DPOs and national human rights institutions (NHRIs).9 We discuss each of these in turn while citing effective disability rights implementation practices already manifest in various African states to highlight how advocates on the continent are leveraging the CRPD to transform their societies, and demonstrating their central role in mobilising to transpose the treaty. 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.

 CONSTITUTIONAL PROVISIONS AND NATIONAL LAWS

Where applicable, disability advocates have the opportunity to harness constitutional reform processes and transpose international human rights standards into their domestic constitutional frameworks. Protection may be achieved through various mechanisms, including the explicit recognition of disability as a prohibited ground for discrimination in an omnibus non-discrimination clause or through the incorporation of international human rights standards into the constitutional framework, such as in a fundamental rights section.10

General equality clauses that prohibit discrimination on the basis of disability are found in several African constitutions, including those of South Africa,11 Uganda12 and Niger,13 while other constitutions on the continent, particularly those that have been adopted more recently, incorporate dedicated articles relating to disability.14 Examples include the 2005 Constitution of the Democratic Republic of the Congo,15 the 2013 Constitution of Zimbabwe16 and the 2014 Constitution of Tunisia.17 The constitutions of Ghana, Malawi, South Africa and Uganda require their respective legislatures to take affirmative action to combat discrimination against persons with disabilities, with these provisions also filtering into labour laws.18

Constitutional clauses may also be utilised to accord protection to particular groups.19 Such provisions may address general protection in respect of particular groups or specific issue areas where protection is needed on account of vulnerability, as in the contexts of armed conflict, trafficking, or child labour.20 The constitution of the Democratic Republic of Congo, for example, addresses the protection of children living under ‘difficult circumstances’ and includes a special protection clause for children with disabilities.21 Similarly, constitutions may contain both protections for people with disabilities as well as exceptions that recognise the specific needs and abilities of this group. Angola's constitution, for instance, declares that ‘[d]isabled citizens shall fully enjoy the rights and be subject to the duties enshrined in the Constitution, without prejudice to any restrictions on the exercise or fulfilment of rights and duties they are unable, or not fully able, to enjoy or carry out.’22

The very processes by which constitution-building takes place are significant for their visibility-enhancing and constituency-broadening potential, as well as for their capacity to lay the foundation for a solid disability rights legal framework.23 For this reason, mobilisation of advocacy during the drafting of a new constitution can yield significant results, as demonstrated by the work of the Organization for the Advancement of Disability Rights in Tunisia, which was formed with the explicit intention of galvanising support for incorporating a disability rights clause in the country's constitution. During Tunisia's transition following the ‘Arab Spring’, representatives of the country's disabled citizens sought to ensure that their rights would be acknowledged in the new legal frameworks that were being adopted.24 Among the results of this advocacy was Article 48 of the new Tunisian Constitution, which proclaims that ‘Every disabled citizen shall have the right to benefit, according to the nature of the disability, from all measures that will ensure their full integration into society, and the state shall take all necessary measures to achieve this.’25

Likewise, constitutional reform in Uganda stands as a paradigmatic example of harnessing the potential of such processes to hone political skills and create the legal basis for disability rights protection. DPOs raised their voices in Uganda, resulting in constitutional recognition of their human rights, and strengthening their constituency as a potent political force.26 This advocacy fostered stronger and more engaged disability rights coalitions, increased the visibility of DPOs and strengthened linkages between disability-specific groups and allied civil society actors. Engaging effectively in such processes is a substantial challenge for disability communities worldwide—much as all marginalised communities face considerable barriers in working social, political, and legal change for their constituencies.27 For this reason, learning from the experiences of those civil society entities that have effectively engaged in constitution-building can be a vital tool in the drive to domestically transpose the CRPD.

Constitution-building processes like these offer change in both substantive and procedural terms. Incorporating a disability rights perspective makes concrete rights that may already have existed but were neglected, much as the CRPD does on the international level. The challenge for all countries undergoing constitutional reform is to ensure that human rights protections reflected in the constitutional framework are not undermined by statutes undercutting those fundamental rights. A frequently cited example of such a practice relates to the right to political participation, where provisions which discriminate against the disabled either in terms of the right to vote or to hold public office continue to be a challenge in countries including Malawi28 and South Africa.29 Oblique barriers such as provisions in mental health laws or regulations regarding guardianship that diminish the capacity of people living with disabilities to participate fully in political life need also to be addressed if the right is to be actualised.30 This illustrates that, while constitutional reform is a necessary first step, it must be followed by the alignment of all legislation with international human rights standards.

The process of human rights law domestication is, of course, a principal obligation of a state on treaty ratification.31 The principal vehicle for articulating the framework for these national level requirements is the general obligations provision found in all the core human rights conventions. Article 4 of the CRPD, much like general obligations articles from other treaties, requires states parties to give effect to treaty obligations within their domestic legal orders, including the adoption of ‘all appropriate legislative, administrative and other measures’ needed to implement CRPD rights.32

Law reform is required in many instances to give full effect to the implications of the non-discrimination and equality measures required by the CRPD, including those embedded in a constitutional law framework. A case before the constitutional court in Benin illustrates this point.33 There, a blind lawyer responded to a call for applications by the judicial body, following her dream of becoming a judge. On appearing at the reception desk at the offices of the judiciary to submit her application, she was summarily dismissed by the receptionist. Her application was ultimately taken at her instance, but she was declared ineligible for consideration on the basis that her application requested a reasonable accommodation, namely that she be able to take the written test in Braille. She took her case to the constitutional court which ruled in her favour, determining that the decision was discriminatory, in contravention of the constitution and the African Charter on Human and Peoples' Rights.34 Notwithstanding the favourable ruling, she was ultimately left without a remedy as the lack of disability legislation and related protections afforded no real recourse.

Law reform is a continual process in most countries. Given the cross-sectoral nature of disability, implementation of CRPD required legislative changes is likely to be a...

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