The development of disability rights saw a spate of growth in the period preceding 2013 both internationally and in the East African region. During this period, most East African Community (EAC) partner states ratified the UN Convention on the Rights of Persons with Disabilities (CRPD)1 as well as took steps to enact or review domestic legislation in the area of disability. At the East African regional level, several instruments were concluded for the empowerment of persons with disabilities as well as the advancement of their rights. However, there appears to have been a slowing down of this initial momentum, as will be shown below2.
As an organising bloc, the EAC has various mandates. Although the Community is premised on the economic co-operation of partner states parties, a number of areas of co-operation are spelt out in both its Establishing Treaty and the Protocol.3 For example, under the Protocol, while partner states have the broad mandate to harmonise social policies, they are specifically obligated to, among others, harmonise their social policies relating to good governance, the rule of law and social justice; promotion and protection of human and peoples’ rights; promotion of equal opportunities and gender equality; promotion and protection of the rights of marginalised and vulnerable groups.4
In addition, partner states must implement programmes which expand and improve social protection; promote the rights of persons with disabilities; and prevent and manage epidemics and other diseases to improve hygiene and health and eliminate ignorance, diseases and poverty.5 The implementation of all these aspects is within the spirit and broad mandate of the East African Community Treaty in terms of which partner states must adopt a common approach towards marginalised groups, and ensure equality and equity with the ultimate goal of ensuring empowerment for all.6 Thus, while the documents establishing the Community do not specifically spell out disability as a key area for co-operation, the aforesaid provisions as well as the activities of the EAC clearly show that disability has been taken up as a key area for co-operation and intervention.
A potentially significant development during this period has been the judgment of the Appellate Division of the East African Court of Justice in the case of Democratic Party v The Secretary-General of the EAC,7 which has opened up the possibility of the Court assuming jurisdiction in human rights matters. 8
In respect of law and policy development, the Community, for example, has developed the EAC Policy on Persons with Disabilities as well as the EAC Persons with Disability Bill. The Community also adopted the Strategic Plan for Gender, Youth, Persons with Disabilities, Social Protection and Community Development 2012-2016. This commentary seeks to analyse these legal developments, and assess how far they have been effective in protecting and promoting the rights of persons with disabilities in the region.
This policy was adopted in March 2012 with the broad objective of serving as a mechanism for promoting and ensuring the full and equal enjoyment of human rights and fundamental freedoms by persons with disabilities as well as respect for their inherent dignity.9 It was the culmination of a series of meetings, dialogues and consultations with various stakeholders as well as experts on issues of disability. The first EAC Conference on persons with disabilities also played an important role in the conclusion of this instrument.10 The policy was seen as a tool for the promotion of equality and equity and would be used as a yardstick to inform other policies, programmes and sectoral plans among EAC partner states.11 It was intended to promote a framework for enhancing the recognition of the roles, contributions and potential of persons with disabilities in the development process; strengthening and developing the informal and formal community-based support systems and actions for persons with disabilities; recognising that disability is not inability; providing special safety nets for persons with disabilities; ensuring and improving access to rehabilitation, education, training and community sports; guiding, co-ordinating and harmonising interventions for persons with disabilities by stakeholders; promoting and protecting disability rights as human rights; promoting research on disability issues; and promoting the self-representation of persons with disabilities in all public decision-making structures.12
The policy was developed after a comprehensive analysis of national legislation, policies and reports on the status of implementation of the CRPD. Several gaps and challenges affecting persons with disabilities were identified during the consultations with partner states. This prompted the need for a policy that would provide an enabling environment by partner states for the empowerment of persons with disabilities through facilitating effective participation in development initiatives.13 Although the CRPD envisages a limited role for regional integration organisations such as the EAC in its implementation, the EAC Treaty does not bestow on the Community a mandate to ratify treaties.14 Thus, there is the need for an EAC framework for co-operation in the area of disability rights. Accordingly, the policy has very elaborate provisions on equitable access, social protection and capacity building at all levels.15
The policy made a number of recommendations for partner states’ attention and action, some of which have been implemented. For example, Burundi ratified the CRPD on 22 May 2014 as had been recommended,16 and there has been increased state spending in Kenya.17
Perhaps deserving more detailed mention is South Sudan, the latest entrant to the EAC.18 One year after joining the Community, it still has not ratified the CRPD or its Optional Protocol19 as required by the EAC Disability Policy. On a positive note, it has in place the National Disability and Inclusion Policy 2013,20 the purpose of which is to provide a sound direction to all stakeholders on how to overcome multiple barriers at policy, service, community and governance levels towards an inclusive South Sudan where all men and women and boys and girls with different disabilities can contribute to the further development and reconstruction of the country.21 The Policy recognises that discrimination against and the exclusion of persons with disabilities are among the major threats to the realisation of the human rights of persons with disabilities, undermining their ability to benefit from the development process.22 The Policy also acknowledges the fact that South Sudan has not ratified a number of International legal instruments, including the CRPD, but asserts that the Policy was developed in conformity with principles enshrined, among others, in the CRPD.23 The Policy is guided by the principles of non-discrimination and a human rights-based approach, affirmative action, diversity and inclusiveness, participation and disability mainstreaming.24 Finally, one of the priority intervention areas of the Policy is ’support of ratification, awareness and capacity building of the UN Convention on the Rights of Persons with Disabilities and other related international and regional instruments’.25 Apart from this policy, South Sudan has no specific Disability Act, neither does it expressly protect the rights of persons with disabilities in its Constitution, although it refers to (but does not define) ‘persons with special needs’.26
It should be noted, however, that five years after the inception of the EAC Policy, there is not much to be written regarding its implementation. State parties continue to adhere to the national implementation of laws and policies as opposed to implementation of the regional policy. The policy provides for review every five years.27 Although the said five years elapsed in March 2017, the policy has not yet been reviewed, neither has there been a comprehensive review of the performance of partner states towards implementing the policy objectives and provisions. It is hoped that this review will still take place and that it will address the issue of ensuring the effective implementation of the policy. This is very important as the implementation framework in the policy provides for the EAC Secretariat as the lead implementation agency, but leaves the responsibility for effective implementation to each partner state. Funding for the policy, meanwhile, is provided for in a vague way that confers the role of resource mobilisation on national disability councils.28 The contradiction here is that these councils depend on national governments for their own funding, and would thus not be in a position to raise adequate funding for the effective implementation of the policy. The additional provision of financing the policy within the existing funding mechanism of the EAC also may not amount to much in the absence of a clear undertaking to commit funds for the implementation of the policy.
One of the landmark outcomes of the 2010 EAC Disability Conference was the decision to institutionalise the EAC Disability Conference and to hold it every two years.29 The Conference did not take place in 2012 and no explanation has been put forward for this lapse. The second Conference took place in 2014.30 During the 2014 Conference on disability, a call was made for the development of a regional law on disability. This was viewed as an opportunity to integrate the standards of the CRPD into EAC law and to provide a comprehensive legal framework for the protection of the rights of persons with disabilities in the EAC through the enactment of a ‘regional special needs Act’.31 The EAC Persons with Disability Bill was subsequently presented to the East African Legislative Assembly (EALA) in July 2015.
The broad objective of this Bill is for partner states inter alia to take appropriate and effective measures, including policy, legislative, administrative and budgetary steps, to ensure and protect the rights and dignity of persons with disabilities. In promoting and protecting the rights of persons with disabilities, apart from the general obligations, the Bill is organised around a number of core areas. These are equality and non-discrimination; life and security of persons with disabilities; living in the community; accessibility, mobility and social protection; employment; education; health; and women, children and older persons with disabilities.
The Bill recognises the fact that persons with disabilities are prone to multiple discrimination on account of various factors, including birth, age, gender, sex, economic and/or social status, and enjoins partner states to ensure their protection through policy, legislative, administrative and other measures.32 It emphasises accessibility to goods, services and information and recognises the right to independent living.33 The Bill provides for the right to decent and productive work as well as favourable conditions of employment for persons with disabilities, and enjoins partner states to ensure that they are accorded reasonable accommodation at the workplace.34 The rights to education (including inclusive education), health and social protection are guaranteed by the Bill, with partner states under a duty to take effective and appropriate measures to ensure and facilitate the enjoyment of these rights.35 The Bill recognises the multiple vulnerabilities of women, children and older persons with disabilities and makes express provision for their special protection.36 In particular, the Bill recognises and obliges partner states to take into account age-related aspects of disability in their programming and resourcing, and devotes a whole article to areas of intervention partner states must include in addressing disability and ageing.37 The recognition of the link between ageing and disability is a welcome development that should help to address a section of the population which is at increasing risk due to urbanisation and the breakdown of traditional ways of life, where social support is no longer guaranteed in the family setting as was the case in the past. In addition to the above, the Bill provides for political participation of persons with disabilities.38
Part XIII of the Bill is devoted to institutional arrangements, with the establishment of the EAC Commission for Persons with Disabilities as the monitoring and implementing agency for the law, with powers to establish technical committees for the better execution of its functions.39 The Bill also provides for the establishment of the East African Community Persons with Disability Fund for purposes of providing support to persons with disabilities. This funding, among others, is to be contributed by partner states.40
Another provision worth noting in this Bill, for example, is the recognition that persons with disabilities are not only rights holders but also duty bearers.41 In this respect, persons with disabilities have the duty to respect and give consideration to others without discrimination on any ground and to promote and reinforce mutual respect and tolerance. Persons with disabilities must also fully participate in all spheres of life within their families, communities and states, and raise awareness and educate others on issues of disability. Finally, these persons have the duty to preserve and strengthen positive African cultural values in society and contribute to its moral well-being. In this respect, it is in consonance with the draft African Disability Rights Protocol42 adopted in 2016 by the African Commission on Human and Peoples’ Rights. Guided by the African Charter on Human and Peoples’ Rights (African Charter),43 this Protocol recognises persons with disabilities as duty bearers by providing:
In addition to the above, there is the provision that the EAC Persons with Disability Act shall take precedence over other laws in partner states to which its provisions relate.45 This provision makes good sense when viewed from the perspective of the EAC Treaty, and especially the Protocol to the Treaty, which provides for harmonisation of social policies. By expressly making national legislation subject to this law, it avoids situations of partner states invoking supremacy of their domestic laws, including their constitutions in case of a conflict of provisions. However, as novel as this provision may be, perhaps it has created the very situation where the Bill has failed to move to the status of an Act which would bind all partner states since it would have had the effect of imposing on the sovereignty of partner states. While the Bill does not impose sanctions on states for infringing its provisions, no state would like to be found wanting since in many respects the proposed Bill imposes mandatory obligations. Some of these obligations would require states to commit huge sums of money from their budgets towards their implementation.46 This could be one of the reasons why, after exhaustive debate and after seemingly having been well received, there is no instrument formally pronouncing this Bill as law, despite media reports to this effect.47
The status and progress of this proposed legislation thus remains unclear with some claims that it has already been passed into law by the EALA.48 Since 1 June 2016, the date of the latest recorded activity by the EALA concerning this Bill, there appears to have been no progress in either formalising the legislative process for the Bill to pass into law, or taking up the implementation of its provisions, assuming it has been enacted into law. From the EAC Secretariat, there appears to be no evidence of further discussions, dialogues or debates that have taken place regarding this Bill. There is also no evidence that the biennial third EAC Conference on Disability took place in 2016. What should be noted, though, is that according to the EAC Treaty, the heads of state may assent to or withhold assent to a Bill of the Assembly, but if a Bill does not receive assent within three months from the date on which it was passed by the Assembly, it shall be referred back to the Assembly, giving reasons, and with a request that the Bill or a particular provision thereof be reconsidered by the Assembly.49 If the Assembly discusses and approves the Bill, the Bill shall be resubmitted to the heads of state for assent, but if a head of state withholds assent to a resubmitted Bill, the Bill shall lapse.50 At the time of writing, it has been more than three months since the Bill was passed by the EALA and, for now, it is more likely than not that for it to pass into law, it will have to go through the above procedure as provided for in article 63. What is of great concern, though, is the possibility of one or more of the EAC heads of state refusing to assent to it after resubmission. This would be a huge blow to development and the harmonisation of laws, policies and practice in the area of disability in the region since, according to the EAC Treaty, in such a case the proposed law lapses.51
It should be pointed out that in the meantime, some partner states have embarked on processes to amend their national disability legislation.52 While noting that the content of these Bills may change along the way, it is still pertinent to point out some areas of importance. For example, Uganda’s Bill in its current form tends to make government shirk its responsibilities of providing for persons with disabilities.53 While according to the current Act government is under an obligation to promote the educational development of persons with disabilities,54 according to the 2014 Bill there is no similar obligation on government but, instead,
only a prohibition of discrimination by schools or institutions of higher learning.55 Likewise, in the area of health services, the current law enjoins government to promote special health services required by persons with disabilities, including by
(c) encouraging population-based public health programmes relevant to persons with disabilities.56
However, there is no similar provision in the proposed 2014 Bill, which instead is totally silent about this area of the lives of persons with disabilities. The same applies to employment, with the Bill narrowing down or completely removing the express obligation of government to act, promote, protect and ensure the equal enjoyment of all rights by persons with disabilities. Ultimately, the Bill adopts mostly passive language in place of the mandatory obligations that the current Act places on government as a key actor in the implementation and realisation of the provisions of the proposed law.
As far as Kenya is concerned, on the whole, Kenya’s Bill contains a tightening of the obligations and duties of the Kenyan government towards empowerment and the realisation of the rights of persons with disabilities. For example, in the area of education, government has the duty to facilitate participation of persons with disabilities in accessible and adaptable continuing adult education programmes on an equal basis, as well as to ensure that persons with disabilities have access to inclusive education, without discrimination and on an equal basis at all levels.57 This imposes an obligation on government to act, as opposed to the corresponding provision of the Act58 which prohibits discrimination in education and imposes duties to act on 'learning institutions' without any direction obligation on government.59 The Bill also guarantees education, health and employment as rights, which is not the case with the Act.60 However, it remains for the courts to determine how justiciable these will be if or when the Kenyan Bill is passed into law.
It is not yet clear what the import of these developments is, especially as far as co-operation in the area of disability rights is concerned, and if such ongoing legislative processes may not undermine achievements so far made. It is also not clear whether these law reform processes may not be precipitated by the lack of progress and/or inability to enact a uniform legal instrument for disability rights and concerns for the region. In the case of Uganda, it is not certain why it would opt for a watered-down version of the current law in light of its obligations under the CRPD as well as the provisions of the East African Community Disability Bill. Owing to criticism of the 2014 proposed Bill, Uganda is in the process of redrafting an improved version intended to address the concerns raised by disabled people's organisations (DPOs) as well as other activists in the area.61 However, this 2016 version is yet to be presented to parliament for debate.
This Plan was intended to promote the inclusion of diversity of the people in the region in development, and seeks to eliminate disparities in service provision. It is also intended to ensure that services are available to all citizens with disabilities, older persons and those disadvantaged and vulnerable due to a lack of social security for everyday socio-economic needs.62 The Strategic Plan recognised disability as a development issue, noting that disability may increase the risk of poverty and vice versa, with adverse impacts on education, employment and earning ability and increased expenditure related to disability. The Plan also makes the fundamental link between disability and ageing.63 According to the Strategic Plan,
[s]ocial protection has multiple beneficial impacts and is essential to build human capital, break the intergenerational poverty cycle and reduce the growing inequalities that constrain ... economic and social development.64
The Plan thus came up with various objectives for the thematic area of persons with disabilities, the main objective being promoting and ensuring the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities for improved livelihoods.65 It is worth noting that most of the activities envisaged for the realisation of the main goal, as well as the immediate objectives of the Plan for the thematic area, mainly hinge around the development of a harmonised regional policy and legal framework on disability issues.66 As already noted, the relevant policy is in place but with some shortcomings, as observed above. At the same time, the relevant law has not yet been enacted although it had been envisaged to be in place by 2014.67 At the time of writing, about a year after the life span of the Plan, the EAC has not carried out any review process to assess the implementation and performance of this Plan by partner states. There is also no follow-up Strategic Plan for the post-2016 period in place.
It is evident that the EAC has taken some steps towards adopting and harmonising regional law and policy for promoting and ensuring the protection of the rights of persons with disabilities.68 The Community must thus be commended for the steps so far taken, since the creation and harmonisation of standards would go a long way towards ameliorating the plight of persons with disabilities in the region. Co-operation in this area is thus a positive step which can provide a platform for partner states to plan and share information and to learn from and assist each other in matters concerning disability. However, it should be remembered that the key issue is the need for effective implementation of laws, policies, programmes and plans as agreed upon. Law reform and legislation may not in themselves be solutions if these are not backed by clear implementation programmes as well as budgeting for intended activities and interventions. Partner states thus need to fully commit, not only by signing legal and policy instruments but, in addition, by taking active steps to ensure the implementation of these instruments. A key aspect of this, apart from political will, is the need to identify and allocate adequate funding for essential activities, especially since many of the necessary practical interventions in the area of disability require substantial funding. This is what will indicate the level of seriousness of the EAC as opposed to paying lip service to disability rights. To a great extent, this is what will determine the success or failure of the EAC in its endeavours to secure the protection and enjoyment of human rights and fundamental freedoms to persons with disabilities. In this respect, the EAC has slowed down, gravely impacting its initial momentum in the protection of the rights of persons with disabilities.
2. Murungi also reported limited developments in disability rights in the East African sub-region in the period 2013-2014. See LN Murungi ‘Disability rights in the sub-regional economic communities during 2013’ (2014) 2 African Disability Rights Yearbook 323.
8. See eg A Possi ‘It’s official: The East African Court of Justice can now adjudicate human rights cases’ 1 February 2016 https://africlaw.com/2016/02/01/its-official-the-east-african-court-of-justice-can-now-adjudicate-human-rights-cases/ (accessed 21 September 2017); see also Murungi (n 2 above) 325.
13. http://www.eac.int/sectors/gender-community-development-and-civil-society/pwds (accessed 15 May 2017).
17. Government provides sun cream to persons living with albinism. The budget towards the disability fund has increased and grants are offered to organisations to establish peer support groups for persons with disabilities.
18. South Sudan joined the EAC in April 2016; http://www.eac.int/republic-south-sudan (accessed 20 September 2017).
20. http://mgcswss.org/wp-content/uploads/South-Sudan-National-Disability-and-Inclusion-Policy.pdf (accessed 20 September 2017) (South Sudan Policy).
26. South Sudan Universal Periodic Review - National Report UN Doc A/HRC/WG.6/26/SSD/1 3 https://uprdoc.ohchr.org/uprweb/downloadfile.aspx ? (accessed 20 Septem-ber 2017).
47. See ‘EALA passes Bill on PWDs, wants dignified, humane treatment for all’ http://www.eac.int/news-and-media/press-releases/20160601/eala-passes-bill-pwds-wants-dignified-humane-treatment-all (accessed 28 July 2017); ‘East Africa: EALA passes Bill on Persons with Disability’ http://allafrica.com/stories/201606070902.html (accessed 28 July 2017).
52. Uganda has drafted and presented for input and debate the Persons with Disabilities Bill 2014; Kenya is also in the process of amending its current law on disability (Persons with Disabilities Act 14 of 2003).
53. V Kange 'The Persons With Disabilities Bill 2014: A poor attempt at reinventing the wheel’ https://www.scribd.com/document/288873582/PWD-BILL-2014-A-Poor-Attempt-at-Re-inventing-the-Wheel-Final (accessed 22 August 2017).
61. Persons with Disabilities Bill 2016 (Uganda) taking into account concerns of DPOs to include affirmative action which was omitted in the 2014 version (see Part II); and provides for health and education as rights of persons with disabilities which is not in the 2014 version. At the time of writing, the 2016 version is yet to be tabled before cabinet.
68. As part of its efforts towards the harmonisation of laws and policies, the EAC has also adopted the EAC Child Policy with the purpose, among others, of providing a framework for harmonisation, prioritisation and implementation of children’s rights at the national level, as well as promoting joint planning, monitoring and evaluation of emerging children’s rights concerns. On the whole, the policy provides for children generally with no specific emphasis on children with disabilities, except in a few areas such as the promotion of child participation in line with age, disability and maturity of the child; http://ovcsupport.org/wp-content/uploads/2017/04/FinalEACChild RightsPolicy2016.pdf (accessed 19 September 2017).