- Lucyline N Murungi
- LLM (University of Pretoria), LLD (University of the Western Cape)
- Post-doctoral Fellow, Community Law Centre, University of the Western Cape
- Aquinaldo Mandlate
- LLM (University of Pretoria), LLD (University of the Western Cape)
- Benedicta Armah
- LLLB (University of Ghana, Legon), LLM (University of Pretoria)
- (2013) 1 ADRY 375-385
- Download article in PDF
Lucyline Murungi is the author of the section on the East Africa Community. Aquinaldo Mandlate is the author on the section on the Southern African Development Community. Benedicta Armah is the author of the section on the Economic Community of West African States.
This subsection reports on recent events relating to disability rights in the East Africa Community (EAC), the Southern African Development Community (SADC) and the Economic Community of West African States (ECOWAS). The core purpose of these Communities is the pursuit of economic integration in the respective subregions; it is therefore understandable that their mandates did not, at least initially, include a clear human rights focus. However, in recent years, an extension of the Communities’ purview to include human rights generally, and to some extent, disability rights in particular, can be discerned.1 This subsection tracks this expansion and also identifies opportunities for further advancement in each subregion.
The East Africa Community (EAC) consists of five Partner States: Burundi, Kenya, Rwanda, Tanzania and Uganda.2 The core legal instrument of the EAC is its establishing Treaty of 1999,3 which is supported by a number of protocols4 addressing various aspects of co-operation.5 Significantly, the Treaty does not contain substantive human rights provisions.
The EAC Treaty sets out the fundamental principles of the Community, which include good governance that is understood to include, amongst other things, the recognition, protection and promotion of human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights (African Charter).6 While the core business of the EAC is the pursuit of economic integration amongst member states, issues of good governance and protection of human rights are increasingly forming part of the EAC’s agenda as the Community moves deeper into integration.7 Indeed, to the extent that the EAC Treaty refers to respect for human rights as a component of good governance, makes reference to aspects of human rights such as gender mainstreaming, and even predicates the admission of new members of the Community on their human rights record,8 it can be argued that it has incorporated human rights into the Treaty.9 This is a remarkable departure from the purely economic pursuit of its predecessor.10
Among the institutions established by the EAC Treaty,11 the East Africa Legislative Assembly (EALA) and the East Africa Court of Justice (EACJ) are particularly significant to the promotion and protection of human rights, and hence the rights of persons with disabilities. As the legislative arm, the EALA spearheads the development of the law of the Community, and generally provides guidance to the secretariat on legal matters of concern to the Community.12 For instance, the EALA has adopted resolutions urging Partner States to ratify the Convention on the Rights of Persons with Disabilities (CRPD)13 and also to implement the provisions of the Convention.14 In its 2009 resolution on violence against women in the EAC region, the EALA identified women with disabilities as one of the groups of women that are especially vulnerable to violence. 15
The EACJ is the judicial organ of the EAC,16 tasked with ensuring adherence to law in the interpretation, application of, and compliance with the Treaty.17 The EAC Treaty does not specify the law applicable by the EACJ; however article 27(2) of the Treaty provides for the adoption of a Protocol to extend the jurisdiction of the Court beyond the interpretation of the Treaty to other matters including human rights. The adoption of the Protocol is therefore pivotal to the promotion and protection of human rights in the sub-region, including the rights of persons with disabilities - The absence of the Protocol significantly compromises the potential of the EACJ to promote and/or protect the rights of persons with disabilities to the extent that the exercise of such jurisdiction in often contested. 18
The prolonged failure to adopt such a Protocol to extend the Court’s jurisdiction has resulted in legal action against the EAC Secretary General, with the EACJ in 2011 finding the Secretary General in violation of the Treaty for this failure to adopt the Protocol.19 Despite this determination, no action was taken and a follow up case was filed in 2012 against the Secretary General.20 The Protocol was yet to be adopted as at the date of writing.
If the Protocol is eventually adopted, it will open an avenue for the inclusion of international standards such as the CRPD into the legal framework and hence enhance the protection of the rights of persons with disabilities in the subregion. Until such time, it is arguable that the African Charter should serve as a basis for the promotion and protection of the rights of persons with disabilities within the EAC in light of article 6 of the Treaty.
The EAC Treaty does not provide for disability specific measures. However, the Treaty calls for the promotion and protection of human rights in accordance with the African Charter.21 The EAC Treaty refers to persons with disabilities in the context of social welfare and education. Article 102(2) of the Treaty makes reference to collaboration by Partner States in ‘putting in place education and training programmes for people with special needs and other disadvantaged groups’. In article 120(c), the Treaty calls for the development and adoption of a common approach towards disadvantaged and marginalised groups, including persons with disabilities, through rehabilitation and provision of amongst others, foster homes, health care, education and training. Article 39 of the Protocol on the EAC Common Market further calls for the harmonisation of social policies by Partner States in various aspects, including the promotion and protection of the rights of marginalised and vulnerable groups.22
As aforementioned, the EALA adopted a resolution in 2008 calling on Partner States of the EAC to ratify the CRPD. To date, four member states of the EAC have separately ratified the CRPD while Burundi has signed but not ratified the Convention.23 It would require a more in-depth enquiry to establish the extent to which the subsequent resolution on the implementation of the CRPD was adhered to. Following a meeting of the key stakeholders on disability rights, including departments of the EAC Secretariat, EALA, partner states, civil society, and organisations of persons with disabilities (DPOs), the secretariat of the EAC developed a policy on persons with disabilities based on the article 120(c) of the Treaty.24
The Policy is intended to ‘be used as a yard stick to inform other policies, programmes and sectoral plans among EAC partner states’.25 It acknowledges that the promotion and protection of the rights of persons with disabilities requires the adoption of a broad range of measures ‘beyond a single piece of legislation.’26 This recognition is profound and reflective of the general trend in the promotion and protection of the rights of persons with disabilities, which often entails the adoption of a disability specific statute backed by policy measures. The Policy also highlights measures taken in each of the member states towards the protection of persons with disabilities. However, while the Policy is a welcome step towards harmonisation of standards on the protection of the rights of persons with disabilities, it fails to give clear direction for action in this regard.27
The EAC development strategy for the decade, that is 2011-2020, does not contemplate disability specific action, save in as far as there is an intention to ensure the improvement of health and education that could arguably
benefit persons with disabilities.28 However, the EAC Strategic Plan for Gender, Youth, Children, Persons with Disability, Social Protection and Community Development (2012-2016)29 aims to improve the conditions of the vulnerable members of society through the effective introduction and implementation of social protection programmes within the region, and to improve the livelihoods of persons with disabilities.30
The strategic plan also seeks to promote, protect, and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities for improved livelihoods.31 The mainstreaming of and interventions to address the social and development of, inter alia, persons with disabilities, is one of the priorities of the Strategic Plan.32 The Strategic Plan is arguably a lot more comprehensive than the Policy, and a lot more instructive on the potential entry points for the protection of the rights of persons with disabilities. The challenge with it however is that it approaches the issue from a social welfare as opposed to a rights perspective as is required under the CRPD.
The adoption of the Protocol for the extension of the mandate of the EACJ could be another entry point for the entrenchment of the rights of persons with disabilities at the subregional level. If a catalogue of rights is included in the Protocol, there would be an opportunity to include a disability specific provision alongside a general non-discrimination clause that recognises disability as one of the prohibited grounds of discrimination. In the alternative, if a more general provision allowing the Court to refer to international human rights instruments is allowed, the possibility of importing the standards of the CRPD into the subregion will be heightened. Either way, the opportunity presented by the adoption of the Protocol should be explored appropriately by those working to advance disability rights.
It is also noteworthy that the EAC Treaty dedicates certain sections to the development of some social groups, particularly women.33 This is not necessarily done from a human rights perspective, but is significant in showing that there is sensitivity to the peculiar challenges of marginalised social groups in the EAC, that can be expanded to persons with disabilities.
The Southern African Development Community (SADC) consists of fifteen members, extending to the Democratic Republic of the Congo and including the smaller ‘island states’ such as Mauritius and Seychelles. 34
The Treaty of the Southern African Development Community (SADC Treaty), which is the constitutive instrument, contains a general prohibition of discrimination on certain grounds. Disability is expressly listed amongst these grounds.35 In addition to the Treaty, SADC member states have further adopted a number of instruments that include reference to some aspects of disability. 36
The SADC Protocol on Health, which envisages cooperation between SADC member states in respect of certain health aspects, inter alia provides that States Parties shall promote effective measures to prevent and manage disabilities; increase access to improved technology related to assistive devices, and the creation of a barrier free environment for the equalisation of opportunities for persons with disabilities; and promote community based rehabilitation programmes.37 While the objectives of removing barriers and increasing accessibility are laudable, the emphasis on rehabilitative services and environmental accessibility may be disconcerting.
The Charter of Fundamental Social Rights in the SADC (Social Rights Charter) contains further provisions speaking to disability.38 Member states are required to create an enabling environment so that all persons with disabilities, whatever the origin and nature of their disability, are entitled to ‘concrete measures’ aimed at improving their social and professional integration. These measures must, ‘according to the capacities of beneficiaries’, relate to vocational training, accessibility and mobility, transport, housing and employment.39 While this article ostensibly takes a progressive approach in its broad scope of application (specifically all persons with disabilities, whatever the origin and nature of their disability), and the goals of ‘social and professional integration’ conform with the CRPD, the phrase ‘according to the capacities of beneficaries’ raises serious concerns.
The Social Rights Charter’s provisions are taken further in the Code on Social Security, which devotes its article 14 to people with disabilities.40 The concrete measures referred to in the Charter are specified more clearly here: member states should ensure that persons with disabilities are entitled to social security, and in particular, benefit from ‘social safety net mechanisms’.41 Member states should further ensure that social security instruments guarantee equality of access and coverage to persons with disabilities.42 The special needs (including the need for assistive devices) and circumstances of persons with disabilities should be provided for in national social insurance and social assistance instruments.43
In 2008, SADC member states adopted the SADC Protocol on Gender and Development, which includes an article dedicated to persons with disabilities.44 However, the substance of this article is disappointing: States Parties are required, in accordance with the SADC Health Protocol, to adopt legislation and related measures to protect persons with disabilities that ‘take into account their particular vulnerabilities’. In addition to the fact that this provision does not contain any statement of rights, the deferral to the (inadequate) Health Protocol and the protective approach adopted towards people with disabilities as a’ vulnerable group’ are less than satisfactory.
The Protocol also more generally aims to harmonise the implementation of treaties to which SADC member states have subscribed or ratified. Importantly, the CRPD is included in the list of treaties enumerated in this regard. 45
Democratic Elections.46 In terms of this principle, member states holding elections are required to encourage participation of women and persons with disabilities in all aspects of the electoral process. The principle of participation is also reiterated in the SADC Parliamentary Forum Norms and Standards for Elections in the SADC Region, which lays the foundation for democratic governance and elections in the region. 47
Despite the promising framework sketched above, it should be noted, however, that certain of these instruments still adopt a ‘medical’ approach to disability, which may in the long-term not be optimal for to the promotion of disability rights.48
The period from 2011 to 2012 held both positive and negative aspects in the promotion and protection of the rights of persons with disabilities in the SADC region. On the positive side, between 2011 and 2012 the Secretariat and member states of the SADC began a process envisaging the development of policy documents and strategic plans in areas relevant to the disability sector. These include food and nutritional security, non-transmissible diseases, and African traditional medicines.49
On the negative side, the SADC Tribunal, which is responsible for ensuring adherence to and proper interpretation of the provisions of the SADC Treaty and subsidiary instruments, saw its activities suspended in May 2011.50 This setback left a major gap in the subregional human rights regime and at the time of writing the Tribunal remains out of action.
In sum, the SADC subregional framework boasts of a more generous inclusion of disability rights in its key documents than, for example, the East Africa Community - admittedly in some instances with some flaws. However, it should be added that SADC is arguably the most attenuated among the African subregional economic communities in terms of its capacity to implement and monitor rights-related instruments.
The Economic Community of West African States (ECOWAS) was founded in 1975 by sixteen West African states.51 The Revised ECOWAS Treaty provides as one of its underlying principles, the ‘recognition, promotion and protection of human and peoples’ rights’ in accordance with the provisions of the African Charter.52 Furthermore, Community members also agree to cooperate towards achievement of the realisation of the African Charter on Human and Peoples’ Rights.53 This incorporates, by reference, the provisions of article 18(4) of the African Charter relating to persons with disabilities.54
In terms of institutional arrangements, the Community is made up inter alia of the Community Parliament and the Community Court of Justice. The Community Parliament, which plays an important consultative role, may consider issues relating to human rights and fundamental freedoms and make recommendations to the organs of the Community.55
The ECOWAS Court of Justice gives advisory opinions on matters that require an interpretation of the Community text and also has jurisdiction to determine cases of human rights violations that take place within any member state.56 This human rights mandate was introduced by the 2005 Supplementary Protocol, which extended the jurisdiction of the Court to cases of human rights violations that occur in any member state.57 This implies that the Court can receive cases on disability-based discrimination and other human rights violations of persons with disabilities; the Supplementary Protocol also introduced direct individual access to the Court.
Although the ECOWAS Court is one of the more prolific human rights bodies in the African human rights system, and commentators have noted its ‘growing confidence and competence’ in the field of human rights.58 It has however not yet been presented with a disability-related case.
In 2012 the ECOWAS Commission adopted the ECOWAS Humanitarian Policy to standardise the practice of humanitarian action in ECOWAS member states. Its overall strategic objective is the prediction, prevention and overall management of disasters and conflicts; and enhancing the protection and social situations in West Africa as basic conditions for regional integration, peace, security and development. One of the objectives of this policy is to promote special measures for the protection of vulnerable persons, including ‘physically challenged persons’ during emergency situations.59 The priority measures proposed include ‘ensuring the domestication and implementation of relevant international instruments relating to the prohibition of discrimination based on disability’.60 Prominent among these instruments is the CRPD. These steps towards domestication of the CRPD, albeit in this mainly humanitarian context, may lead to further concretising the rights of persons with disabilities in the sub-region.
1. See ST Ebobrah ‘Human rights developments in African sub-regional economic communities during 2011’ (2012) 12 Africa Human Rights Law Journal 223 224-225; J Biegon ‘The promotion and protection of disability rights in the African human rights system’ in I Grobbelaar-du Plessis & T van Reenen (eds) Aspects of disability law in Africa (2011) 65.
2. Treaty establishing the East Africa Community, (1999) (EAC Treaty) para 2. For a historic overview of economic integration in post-colonial East Africa see H Ochwada ‘The history and politics of regionalism and integration in East Africa’ in K Omeje & TR Hepner (eds) Conflict and peace building in the African great lakes region (2013) 56; AT Mugomba ‘Regional organisations and African underdevelopment: The collapse of the East African Community’ (1978) 16 Journal of Modern African Studies 261 262.
3. The EAC Treaty was signed on 30 November 1999 and entered into force on 7 July 2000, following its ratification by the three original Partner States, Kenya, Uganda and Tanzania. The Republic of Burundi and the Republic of Rwanda acceded to this EAC Treaty on 18 June 2007 and became full members of the Community with effect from 1 July 2007.
4. As of March 2013, the EAC had adopted 21 Protocols to the Treaty, the most recent of which is the Protocol on the establishment of the EAC Common Market East Africa Community (2009). See http://www.eac.int/index.php?option=com_docman&It emid=226 (accessed 22 August 2013).
5. F Viljoen International human rights law in Africa (2012) 471-2 highlights the phases of regional integration. These are the establishment of a preferential trading area or arrangement, a customs union, a common market, an economic union, and ultimately a political union. The EAC is currently (2013) at the third stage.
7. OC Ruppel ‘Regional economic communities and human rights in East and Southern Africa’ in A Bösl & J Diescho (eds) Human rights in Africa: Legal perspectives on their protection and promotion (2009) 302; LN Murungi & J Gallinetti ‘The role of sub-regional courts in the African human rights system’ (2010) 13 SUR International Journal on Human Rights 119 123.
10. Art 2(1) of the 1967 East African Co-operation Treaty established the sole purpose of the defunct Community as the pursuit of commercial and other relations of Partner States so as to achieve development and expansion of economic activities the benefits of which were to be equally shared.
13. EALA ‘Resolution of the Assembly urging the EAC Partner States to Ratify the Resolution of the UN General Assembly on the Convention on the Rights of Persons with Disabilities’ in the Official Report of the Proceedings of the East African Legislative Assembly 37th sitting - second assembly: second meeting - second session 24 September 2008, 21.
14. EALA ‘Resolution of the Assembly Urging the East African Community and Partner States to take urgent and concerted action to end violence against women in the EAC region and particularly the Partners States’ (2009).
The challenges of the exercise of a human rights jurisdiction by the EAC have been highlighted by various commentators including TO Ojienda ‘”Alice’s adventures in wonderland”: Preliminary reflections on the jurisdiction of the East African Court of Justice’ (2004) 2 East African Journal of Human Rights and Democracy 94 95; Ruppel (n 7 above) 306; and ST Ebobrah ‘Human rights developments in sub-regional courts in Africa during 2008’ (2009) 9 African Human Rights Law Journal 312. The EACJ has itself put forward its views on the exercise of the extended jurisdiction in Katabazi & Others v Secretary General of the East African Community & Another (2007) AHRLR 119 (EAC
18. 2007); Nyong’o & 10 Others v The Attorney General of Kenya & 5 Others Ref No 1 of 2006; Sitenda Sibalu v The Secretary General of the EAC & 4 Others Ref No 2? of 2010; and The Attorney General of the Republic of Uganda & Another v Omar Awadh & 6 Others Appeal No 2 of 2011. In East African Law Society & Others v Attorney General of the Republic of Kenya & Others (Ref No 3 of 2007)  EACJ 1 (1 September 2008), the EACJ had to adjudicate human rights issues though the matter arose from articles 5(3)(g) and 7(1)(a), a factor that clearly indicates the necessity for an express human rights mandate. It is however important to note that none of these cases have focused on the rights of persons with disabilities in particular.
24. EAC Secretariat, EAC Policy on Persons with Disabilities (2012). It is important to note that the Council is the ultimate policy making organ of the Community. However, the Secretariat is mandated to co-ordinate and harmonise policies and strategies relating to the development of the Community through the Coordination Committees (article 71(1)(e)). Thus while the Policy in its current form is still instructive and unlikely to be rejected or fundamentally altered by the Council, it nevertheless has to be adopted by the Council to be an official policy of the Community.
27. Though the Policy was adopted in 2012, it does not refer to the EAC Strategic Plan for Gender, Youth, Children, Persons With Disability, Social Protection and Community Development (2012-2016) EAC Secretariat Arusha, Tanzania March 2012, yet this Strategic Plan contemplates the development of a Policy by December 2013 (para 4.3.4).
29. EAC Strategic Plan for Gender, Youth, Children, Persons With Disability, Social Protection and Community Development (2012-2016) EAC Secretariat Arusha, Tanzania March 2012. The Policy seems to overlap with the EAC Strategic Plan for Gender, Youth, Children, and Social Protection and Community Development (2011 - 2015) of 2010.
34. At the time of writing, the SADC has fifteen members; membership has in the past years varied due to suspension of some member states and admission of new members. See http://www.sadc.int/member-states/ (accessed 25 September 2013).
36. In fact, most SADC areas of cooperation are closely inter-linked with disability. In terms of art 21 of the SADC Treaty, cooperation will be sought in respect of, inter alia, food security; infrastructure and services; human resources development and science and technology; and social welfare. For instance, the type of infrastructure to be developed by SADC member states must be accessible to all, including persons with disabilities. In the same vein science and technology should be employed to advance the rights of everyone, including people with disabilities.
38. The Charter provides a framework for regional cooperation in the collection and dissemination of labour market information, promotes the establishment and harmonisation of social security standards and health and safety standards at workplaces across the subregion. It also promotes the development of institutional capacities as well as vocational technical skills in the region. See www.sadc.int (accessed 25 September 2013.)
48. See generally, I Grobbelaar-du Plessis & T van Reenen ‘Introduction to aspects of disability law in Africa’ in I Grobbelaar-du Plessis & T van Reenen (eds) Aspects of disability law in Africa (2011) xxiii -xxv. See also R Traustadóttir ‘Disability studies, the social model and legal developments’ in OM Arnardóttir & G Quinn (eds)The UN Convention on the Rights of Persons with Disabilities - European and Scandinavian perspectives (2009) 5.
49. See the 2010-2011 Activity report of the SADC Secretariat, available at http://www.sadc.int/documents-publications/show/2112 , (accessed 20 September 2013). The plans also captured the need to obtain essential medicines for treatment of various diseases (diseases leading to disabilities included) and the manufacture of medicines within the subregion. At the time of writing, the status of these documents was unclear.
50. For further details on the reasons behind the suspension of the activities of the SADC Tribunal, see E de Wet ‘The rise and fall of the Tribunal of the Southern African Development Community: Implications for dispute settlement in Southern Africa’ ICSID Review (2013) 1.
51. Currently, its membership consists of fifteen states which are; Benin, Burkina Faso, Cape Verde, Cote D’ivoire, Gambia, Ghana, Equitorial Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo - see http://www.ecowas.int (accessed 25 September 2013).
55. Arts 6 & 13, Revised ECOWAS Treaty; Art 6, Protocol A/P.2/8/94 relating to the Community Parliament, adopted in 1994 http://www.parl.ecowas.int/English/the_parliament.html (accessed 25 September 2013).
56. Arts 6 & 15, Revised ECOWAS Treaty. See http://www.courtecowas.org/site2012/index.php?option=com_content&view=article&id=2&Itemid=5 (accessed 25 Septem-ber 2013).
- Lorenzo Wakefield
- LLM (University of the Western Cape)
- Researcher on children's rights & on the rightsof persons with disabilities, University of the Western Cape
- (2013) 1 ADRY 369-374
- Download article in PDF
The rights of children on the African continent are enshrined within the African Charter on the Rights and Welfare of the Child (ACRWC). This Charter has been ratified by 46 States1 on the continent and, as a result, many states parties to the ACRWC have harmonised their legislative and policy framework in a bid to domesticate the provisions of the Charter as well as other relevant international and regional treaties.2 The African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) is established as the body to promote the ratification of the ACRWC and monitor the domestication of this treaty by states parties.3
This subsection provides a brief overview of the ACRWC as the main instrument underpinning the normative framework on the rights of children with disabilities in Africa4 and reports on recent developments in the work of the African Children’s Committee.
The scope of application of the ACRWC is inclusive of all children and the rights contained within this treaty apply equally to all children. However, special recognition is given to children with disabilities in article 13.
Article 13(1) provides that ‘every child who is physically or mentally disabled’ has the right to special measures of protection in keeping with his or her physical and moral needs. This entrenches a broad protective framework to children with disabilities in society and is linked to promoting their independence and participation in communities.
Article 13(2) contains more detailed provisions than the broad framework in article 13(1).5 An important element in this sub-article is that it goes beyond an obligation on states parties only towards a disabled child, but also places obligations on states parties towards care-givers of children with disabilities. This has been correctly argued to provide a higher level of protection for disabled children by African states that have ratified the ACRWC.6 What article 13(2) is silent on are key important socio-economic obligations that should have been given express recognition, specifically the rights to education and health care. Needless to say, the provisions of articles 117 and 148 would equally apply to children with disabilities. However, the specificity required in both education and health care access for children with disabilities is lost within such a broad framework. Article 13(2) further speaks of training and preparation for employment, which could suggest that children with disabilities should only be ‘trained’ with the goal of future economic activity, as opposed to the provision of education from a rights-based perspective.
Article 13(3) relates to accessibility and the duties of states parties in this respect. Even though such special provisions are welcomed, the sub-article could arguably be limiting when it states ‘... and other places to which the disabled may legitimately want to have access to’. There is no definition of what is meant by ‘legitimately’.
Both sub-articles 13(2) and 13(3) are limited in their application in that the obligations placed on states parties are subject to available resources. Article 13(3) is formulated a little more strongly in that it requires progressive realisation. It therefore leaves an open-ended obligation on states parties to comply with the provisions of article 13, but at the same time is not prescriptive in the necessary achievements to be reached by states parties. Even though treaties cannot provide prescriptions of necessary achievements, it is left within the mandate of the relevant treaty body to provide guidance in this regard.9
The mandate of the African Children’s Committee is contained in part three of the ACRWC.10 This mandate can be summarised as promoting and protecting the rights within the ACRWC; monitoring the implementation by states parties; interpreting the provisions of the ACRWC; and performing any further tasks entrusted by the Heads of State and Government of the African Union. These are all ‘standard’ functions of a treaty body and can be found within multiple treaties in which monitoring bodies of this nature are established.11 The African Children’s Committee has developed guidelines to give effect to its mandate, which include guidelines to conduct investigations.
The African Children’s Committee is also mandated with receiving communications relating to a violation of the provisions of the ACRWC. The Committee has developed guidelines for the consideration of communications and at the time of writing, has finalised one communication in the matter of Institute for Human Rights and Development in Africa (IHRDA) & Open Society Justice Initiative on behalf of children of Nubian descent in Kenya v The Government of Kenya.12 It also has one pending communication that relates to the situation of children in the conflict region of northern Uganda. The Committee is still in the process of investigating this matter.
The African Children’s Committee has encountered a number of structural stumbling blocks in exercising its mandate, such as a lack of sufficient time for Committee meetings, especially now that the time has come for states parties who have ratified to submit country reports.13 The Committee has also failed to intensify its efforts or adopt new ways and strategies to ensure that states parties to the ACRWC submit country reports on time.14 Despite these limitations, the Committee has made some inroads in recognising and promoting the rights of children with disabilities on the African continent.
During its 52nd Ordinary Session in 1990, the Organisation of African Unity Council of Ministers adopted a resolution to declare the 16th of June the Day of the African Child, to be commemorated every year.15 It has been correctly argued that this ‘is an optimal date for the Committee to popularise the ACRWC, and is a means to ensure that its objectives are translated into reality’.16 The African Children’s Committee, during its 17th ordinary session, adopted the theme for the 2012 Day of the African Child to be ‘[t]he rights of children with disabilities: The duty to protect, respect, promote and fulfil’.17
Upon adoption of a theme, the African Children’s Committee develops a concept note that addresses the problem - in this instance the promotion and protection of the rights of children with disabilities - and gives guidance to states parties in respect of both the lead-up to the Day of the African Child and subsequent activities. States parties are expected to report to the African Children’s Committee on its celebrations on the theme and, importantly, on measures in place to further realise the rights mentioned in the theme. These measures are crucial to ensure that such commemorative days are not just once-off events with very little impact, but rather are sustainable in order to ensure that the relevant rights contained within the ACRWC are realised in a systematic manner.
In relation to the Day of the African Child 2012 theme on children with disabilities, the African Children’s Committee identified six areas of concern, which would be in line with the Call for Accelerated Action18 on children’s welfare on the continent. These six areas were the links between poverty and disability; social attitudes, stigma and discrimination; access to education; violence against children with disabilities; the importance of statistics and data collection; and the right to be heard and to participate.19
(d) Introduce or reinforce accessible complaints mechanisms for children and families with disabilities.20
These activities go beyond celebratory or lamenting events that are normally associated with days of this nature. The then chairperson of the Committee, MA Kabore, reiterated this during her opening remarks at its 19th ordinary session when she said that ‘... such activities could be envisaged in terms of concrete and urgent measures in favour of children with disabilities’.21 They require more investment and should be commended to go a long way in ensuring that the rights of children with disabilities are realised by states parties to the ACRWC.
Monitoring the activities in line with the Day of the African Child concept note is just as important as stipulating what the activities should be. The African Children’s Committee therefore incorporated a reporting guideline to states parties when they made the concept note available. It was expected that states parties report to the Committee on the implementation of the activities undertaken in respect of the theme for the Day of the African Child and the concept note. It also goes without saying that these activities cannot be reported on based solely on one day’s celebrations.
During the 20th session of the African Children’s Committee the UNICEF liaison office to the African Union presented a report on how certain states parties to the ACRWC celebrated the Day of the African Child based on this theme.22 The extent to which states parties gave recognition to the rights of children with disabilities was notable. While one-day celebrations are not necessarily the most effective methods to systematically address challenges, it is worthwhile to acknowledge that if these celebrations caused states parties to give thought to the plight of children with disabilities, then the concept note adopted by the African Children’s Committee reached half of its intended objectives. The other half would be reached once states parties report on the implementation of the activities.
The activities proposed in the Day of the African Child concept note serve as a strong basis for implementing the provisions of the ACRWC. Therefore the African Children’s Committee should use this as basis when interrogating the country reports by states parties to the ACRWC. This would go a long way in domesticating the provisions of the ACRWC as it pertains to the special recognition envisaged by the ACRWC in relation to children with disabilities.
1. According to the list of ratified states parties on the website of the African Committee of Experts on the Rights and Welfare of the Child. However, the author is aware that this list might be outdated as Swaziland - who is reported not have ratified the ACRWC has subsequently ratified. See http://African Children’s Committee.org/wp-content/uploads/2011/03/French-and-English-AfricanChildren’sCommittee-Updated -Status-of-the-ACRWC.pdf (accessed 30 August 2013).
2. For example, Lesotho passed its Children’s Protection and Welfare Act on 8 June 2011; on 30 March 2011 Zanzibar’s Revolutionary Council passed its Children’s Bill into an Act; the Liberian Children’s Law was adopted on 4 February 2012, amongst others.
4. The normative framework for addressing the rights of children with disabilities in Africa consists of multiple intersecting treaty provisions, including art 7 of the United Nations (UN) Convention on the Rights of Persons with Disabilities and art 23 of the UN Convention on the Rights of the Child (CRC). However, this section is confined to the ACRWC.
5. Art 13(2) reads as follows: ‘States parties to the present Charter shall ensure, subject to available resources, to a disabled child and to those responsible for his care, of assistance for which application is made and which is appropriate to the child’s condition and in particular shall ensure that the disabled child has effective access to training, preparation for employment and recreation opportunities in a manner conducive to the child achieving the fullest possible social integration, individual development and his cultural and moral development’.
6. See M Gose The African Charter on the Rights and Welfare of the Child: An assessment of the legal value of its substantive provisions by means of a direct comparison to the Convention on the Rights of the Child (2002) 90.
11. For example see art 30 of the African Charter on Human and Peoples’ Rights where the African Commission on Human and Peoples’ Rights is established or arts 43, 44 and 45 of the Convention on the Rights of the Child that establish and codify the mandate of the UN Committee on the Rights of the Child.
12. Decision: No 002/Com/002/2009. A copy of this judgment can be downloaded here: http://www.acerwc.org/wp-content/uploads/2011/09/002-09-IHRDA-OSJI-Nubian-children-v-Kenya-Eng.pdf (accessed 29 August 2013). The facts and merits of this case will not be discussed in this article. For a further analysis of this decision see: E Durojaye & E Foley ‘Making a first impression: An assessment of the decision of the Committee of Experts of the African Children’s Charter in the Nubian Children communication’ (2012) 12 African Human Rights Law Journal 564.
13. See J Sloth-Nielsen & BD Mezmur ‘Out of the starting blocks: The 12th and 13th sessions of the African Committee of Experts on the Rights and Welfare of the Child’ (2009) 9 African Human Rights Law Journal 336 351.
14. See J Sloth-Nielsen & BD Mezmur ‘Like running on a treadmill? The 14th and 15th sessions of the African Committee of Experts on the Rights and Welfare of the Child’ (2010) 10 African Human Rights Law Journal 534 541.
15. Council of Ministers, 52nd Ordinary Session, ‘Resolution on African Decade for Child Survival, Protection and Development’ CM/Res.1290 (LII). See: http://www.au.int/en/sites/default/files/COUNCIL_EN_3_8_JULY_1990_COUNCIL_MINISTERS_ FIFTY_SECOND_ORDINARY_SESSION.pdf (accessed 29 August 2013). The significance of the date of 16 June is that it recalls and commemorates the 1976 uprisings in Soweto, when a protest by school children in South Africa against apartheid-inspired education resulted in the public killing of the unarmed young protesters by police officials.
16. See A Lloyd ‘Report of the second ordinary session of the African Committee of Experts on the Rights and Welfare of the Child: Recent developments’ (2003) 3 African Human Rights Law Journal 329 337.
17. See L Wakefield & UM Assim ‘Dawn of a new decade? The 16th and 17th sessions of the African Committee of Experts on the Rights and Welfare of the Child: Recent developments’ (2011) 11 African Human Rights Law Journal 699 714.
18. The Call for Accelerated Action on the Implementation of the Plan of Action towards an Africa Fit for Children was adopted by the Ministers of the African Union Member States in 2007 in Cairo, Egypt. See http://www.carmma.org/resource/call-accelerated-action-implementation-plan-action-towards-africa-fit-children (accessed 30 August 2013) for an explanation on this process.
19. African Children’s Committee Concept Note on the commemoration of the Day of the African Child on 16 June 2012 under the theme: The rights of children with disabilities: The duty to protect, respect, promote and fulfill paras 21-38.
21. See African Union 19th Session of the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee), 26-30 March 2012, Addis Ababa, Ethiopia, para 13. The 19th session report is available for download at: http://www.African Children’s Committee.org/wp-content/uploads/2011/03/English-African Children’s Committee-Session-19-Report4.pdf (accessed 30 August 2013).
- Helene Combrinck
- LLD (University of the Western Cape)
- Senior Researcher, Centre for Disability Law & Policy, University of the Western Cape
- (2013) 1 ADRY 361-368
- Download article in PDF
One of the remarkable consequences of the introduction of the Convention on the Rights of Persons with Disabilities (CRPD) is that it is already making its influence felt in most parts of the international human rights system.1 This is certainly true of the African region, where the impact of the Convention is already discernible even within its relatively short existence. This appears inter alia from the emergence of an increasingly in-depth scholarly analysis (reflected in Section A)2 and the progress towards domestic implementation level as documented in Section B.
In this Section, developments in the African human rights system3 during the period 2011 to 2012 are outlined. H Combrinck first examines the African regional system generally, and then L Wakefield looks at the specialised treaty adopted in respect of children’s rights, namely the African Charter on the Rights and Welfare of the Child. The Section finally reports on the position in three sub-regional economic communities, namely the East Africa Community, Southern African Development Community and the Economic Community of West African States, with contributions by N Murungi, A Mandlate and B Armah respectively.
The main aim of this Section is to give an update on recent events in the African region.4 However, in order to establish a ‘baseline’ for purposes of future editions, a brief contextualisation is provided in order to locate disability rights in the broader African rights regime. In each subsection outlined above, the authors therefore briefly track the development of ‘norm acceptance’ in respect of disability rights5 and also look at the institutional arrangements for norm enforcement.
The history of disability rights at the African continental level has been described as (at best) one of ‘benign neglect’.6 However, as noted, there have also been a number of significant shifts in this dispensation. In order to understand the current position, this subsection commences with an overview of the foundational framework, with specific reference to the African Charter on Human and Peoples’ Rights (the African Charter),7 and looks at the implementation mechanism for this framework. It then examines recent events, with an emphasis on the debates regarding the need for a new, ‘uniquely African’ human rights instrument.
The gradual acknowledgment of disability rights in the African human rights system should be seen against the background of two parallel historical trajectories. On the one hand, there was the growing recognition internationally of disability as a compelling human rights concern; on the other, the slow shift of the Organisation of African Unity (OAU) towards a human rights orientation.8 Considering that the African Charter was drafted and adopted at the beginning of the 1980s, this historical perspective assists towards understanding why this foundational
document contains limited references to disability,9 it also explains certain subsequent events, as appears below.
While the Charter must be read in its entirety, two of its provisions are of interest here. These are article 2 (the prohibition of discrimination) and article 18(4), which provides that the aged and the disabled have the right to ‘special measures of protection’ in keeping with their physical or moral needs.
Although article 2 does not explicitly include disability as one of the ‘listed’ grounds,10 the phrase ‘or other status’ implies that this is not a closed list. Disability-based discrimination can therefore be read in by analogy.11 Article 18(4), on the other hand, has been regarded as more problematic and has (correctly) been subjected to criticism, most notably for being ‘vague and unclear’12 and for conflating the rights of the aged with those of persons with disabilities.13
In the period following the adoption of the African Charter, disability rights began to slowly trickle into the regional system. For example, in 1985, the OAU adopted the Agreement for the Establishment of the African Rehabilitation Institute (ARI). The objectives of the ARI included ‘manpower development’14 and had a strong emphasis on rehabilitation. A further development was the adoption of the African Charter on the Rights and Welfare of the Child in 1990, with a specific article dedicated to the rights of children with disabilities.15
Biegon notes that the end of the UN Decade of Persons with Disabilities (1983-1992) coincided with the rise of democratisation across the continent in the 1990s that brought with it a more ‘favourable environment for the agitation of respect for and protection of human rights’.16 This was reflected in the Grand Bay (Mauritius) Declaration and Plan of Action, adopted by the OAU Ministerial Conference on Human Rights in Africa in April 1999.17 This Declaration notes that the rights of people with disabilities and people living with HIV/AIDS, in particular women and children, are not always observed and urges all African states to work towards ensuring the full respect of these rights.18 Significantly, in July 1999, the OAU Heads of State and Government adopted a resolution declaring the period 1999-2009 as the African Decade of Persons with Disabilities.19
In 2000, with the adoption of the Constitutive Act20 of the African Union (AU), and the transition from the OAU the AU, the move towards a human rights mandate for the regional body was formalised. This Act leaves no doubt about the human rights focus of the AU.21 This shift in emphasis also saw an acceleration in the endorsement of disability rights in the African system. For instance, the first AU Ministerial Conference on Human Rights in Africa, held in Kigali in May 2003, adopted a Declaration that included specific reference to persons with disabilities (among other concerns).22 Noting ‘the plight of the vulnerable groups including persons with disability in general’, delegates called upon member states ‘to develop a Protocol on the protection of the rights of people with disabilities and the elderly’.
It is notable that the main African instruments adopted since 2000, specifically the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol),23 the African Youth Charter,24 the African Charter on Democracy, and
Elections and Governance25 and AU Convention for the Protection and Assistance of Internally Displaced Persons26 all contain disability-related provisions. While these provisions have attracted some criticism in respect of their limited scope and occasionally unwieldy formulation,27 they do provide ‘an evolving convergence as to the standards to be achieved’28 by states in respect of the promotion and protection of disability rights in Africa.
The African Charter makes provision for the following mechanisms to monitor its implementation: state reporting; a communications procedure; and a judicial procedure. In the case of the former two, state reports and communications are received by the African Commission on Human and Peoples’ Rights (the African Commission). For the judicial procedure, the relevant institution is the African Court on Human and Peoples’ Rights. To date, the African Commission has examined only one disability-related communication. Biegon further observes correctly that disability has been conspicuously absent from both the Commission’s thematic resolutions and state reports submitted to the Commission.29 For the judicial procedure, the relevant institution is the African Court on Human and Peoples’ Rights, although at the time of writing no cases relating to disability have served before the court.30
It is not entirely implausible that the African Commission’s first dedicated efforts on disability rights in 2009 may have been inspired by the CRPD coming into force in 2008, given that it had not previously made attempts to act on the 2003 Kigali Declaration. In May 2009, the Commission expanded its pre-existing ‘Focal Point on the Rights of Older Persons in Africa’ to also include people with disabilities. This initiative is discussed below.
It is encouraging to note that certain of the AU’s organs have now also assumed responsibility for the promotion of disability rights. For example, the Pan-African Parliament (potentially) deals with disability issues through its Committee on Gender, Family, Youth and People with Disabilities.31
In November 2012, the third Session of the AU Conference of Ministers of Social Development adopted the theme of ‘promoting the rights and welfare of persons with disabilities’.32 Under this banner, delegates examined a number of disability-related reports, including the Reviewed Continental Plan of Action on the African Decade of Persons with Disabilities (2010-2019); the Draft African Union Disability Architecture (AUDA); a report on the restructuring of the African Rehabilitation Institute (ARI); and the proposed Protocol on the Rights of Persons with Disabilities.33
As noted above, the Kigali Declaration of 2003 called on Member States to develop a Protocol (to the African Charter) with the purpose of protecting the rights of persons with disabilities and the elderly. The African Commission subsequently appointed a ‘Focal Point on the Rights of Older Persons in Africa’ in November 2007.34 In order to remedy the omission of people with disabilities, the Focal Point was expanded in 2009 to become a ‘Working Group on the Rights of Older Persons and People with Disabilities in Africa’.35 The five-member Working Group was mandated inter alia to draft a concept paper for consideration by the African Commission that would serve as the basis for the adoption of a Draft Protocol on Ageing and People with Disabilities.
Members of the Working Group attended an Expert Seminar on the Rights of Older Persons and People with Disabilities in Accra, Ghana from 26-28 August 2009. While the objective of the seminar was to initiate the drafting of a (single) Protocol on the Rights of Older Persons and People with Disabilities in Africa, two distinct documents emerged from the event. The first draft Protocol, which related to ‘Older Persons’, enjoyed further consultation and was later submitted to the African Commission
for consideration.36 The second product of the Expert Seminar, relating to persons with disabilities, had a far stormier course ahead.
This document, known as the ‘Accra Draft’, has been criticised for having been developed without the participation of persons with disabilities; at a time when the principle of ‘nothing about us without us’ is finally gaining recognition in human rights discourse, through the CRPD and its emphasis on participation, this omission in itself should have been sufficient to sink the Accra Draft before it even set sail. Second, as Kamga points out, the Accra Draft presented a diluted version of international standards, most notably the CRPD, without adequately - if at all - introducing an ‘Africa-specific’ perspective;37 that was the reason d’etre for a supplementary regional instrument. It is therefore hardly surprising that the Accra Draft was in 2011 ‘put on hold’ for further reflection.38
At its 49th Ordinary session,39 the African Commission reconstituted the Working Group to include three new members to bring expertise on disability.40 The Working Group subsequently resolved to develop a concept note on the desirability of a Protocol; the completed concept note on the Rights of Persons with Disabilities in Africa and its deliberations on this note persuaded the Working Group in 2012 that such a Protocol is indeed needed.41
Significantly, the Third Session of Ministers of Social Development resolved at its November 2012 meeting that the Working Group should finalise the drafting of the Protocol on the Rights of Persons for adoption in 2014. The draft Protocol should be circulated to Member States and persons with disabilities should be consulted in the drafting of the Protocol. The Protocol should be presented for discussion by the next session of the AU Conference of Ministers of Social Development (scheduled for 2014).
The debates about the adoption of an ‘African Disability Protocol’ have thus now to some degree been settled, at least in respect of whether it is regarded as needed by the Working Group.42 Questions remain on the
form such an instrument should take.43 Among the alternatives proposed have been a new, separate African-specific treaty on the rights of persons with disabilities, with a new treaty body; alternatively, that a new set of treaty standards should be adopted, but without establishing a treaty body, which would be akin to the African Women’s Protocol.44 Whether the maxim ‘from Africa always something new’45 will be applicable to the African Disability Protocol remains to be seen.
It has also been proposed that the existing potential of the African human rights system to realise the rights of people with disabilities should be explored more fully. This may, for example, entail the adoption by the African Commission of thematic resolutions that could act as guidelines to the interpretation of the African Charter.46 This could supplement an African Disability Protocol, especially while the drafting of the latter remains underway. The proposal has considerable merit and should be further explored by disability rights advocates.
1. One example is the work of the UN Committee on the Rights of the Child: Byrne demonstrates how the CRPD has pervaded the approach of this Committee to the interpretation of art 23 of the Convention on the Rights of the Child, with specific reference to the right to education. See B Byrne ‘Hidden contradictions and conditionality: Conceptualisations of inclusive education in international human rights law’ (2013) 28 Disability & Society 241.
2. It may be argued that the recent establishment of academic programmes specialising in disability rights, including those offered by the Centre for Disability Law and Policy at the University of the Western Cape and the disability rights modules developed under the auspices of the Centre for Human Rights at Pretoria University have been instrumental in this regard.
3. The term ‘African human rights system’ has been described as the ‘ architecture of norms and institutions comprised in the core pan-continental human rights treaties adopted under the Organisation of African Unity or African Union’ - Secretariat of the African Decade of Persons with Disabilities The Architecture for an African Disability Rights Mechanism (2011) 20. This meaning is also adopted here.
5. For a helpful discussion of the notions of ‘norm acceptance’ and ‘norm implementation’ see CH Heyns & F Viljoen ‘The regional protection of human rights in Africa: An overview’ in PT Zeleza & PJ McConnaughay (eds) Human rights, the rule of law, and development in Africa (2004) 129-143. These concepts are utilised for purposes of this section.
8. See J Biegon ‘The promotion and protection of disability rights in the African human rights system’ in I Grobbelaar-Du Plessis & T van Reenen (eds) Aspects of disability law in Africa (2011) 56-57, where these two historical paths are tracked.
9. At the international level, the conceptual and philosophical shift from a medical or welfare approach to disability to the social model had begun to materialise in the adoption of two Declarations on the Rights of People with Disabilities during the 1970’s (the Declaration on the Rights of Mentally Retarded Persons in 1971 and the Declaration on the Rights of Disabled Persons in 1975 respectively) and would also result in the adoption of the World Programme of Action concerning Disabled Persons in 1982. However, at the time this shift was by no means ‘systemically’ entrenched. See G Quinn & T Degener Human rights and disability: The current use and future potential of United Nations human rights instruments in the context of disability (2002) 30.
10. ‘Every individual is entitled to enjoy the rights and freedoms recognised and guaranteed in the Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.’ (Emphasis added).
11. This view was expressed by the African Commission on Human and Peoples’ Rights in the communication brought before it in Purohit & Another v The Gambia (2003) AHRLR 96 (ACHPR 2003). For further discussion see Biegon (n 8 above) 70-71; SA Kamga ‘A call for a Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’ (2013) 21 African Journal of International and Comparative Law 219 237.
13. Secretariat of the African Decade of Persons with Disabilities (note 3 above) 5. It could be argued that this commingling has in recent years held back the development of both sets of rights - see the discussion below.
15. Art 13. See also the commentary in this section Lerenzo Wakefield on ‘Making progress: The African Committee of Experts of the Rights and Welfare of the Child and the rights of children with Disabilities’.
19. OAU Council of Ministers and the Assembly of State and Government in July 2000 in Lome, Togo. This was ‘renewed’ when the AU declared 2010-2019 as the second African Decade on the Rights of Disabled Persons.
21. See eg article 3(h), which states that one of the objectives of the AU is to ‘promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments’.
30. The current status of the African Court can best be summarised as ‘all dressed up and nowhere to go’. Having largely overcome its initial logistic problems, the African Court is now being held back by the reluctance on the part of states to ratify the Protocol establishing the Court and to make the Declaration allowing individuals and NGOs to submit cases directly to the Court. For a more detailed discussion of the status quo, see M Killander & AK Abebe ‘Human rights developments in the African Union during 2010 and 2011’ (2012) 12 African Human Rights Law Journal 199 213-216.
35. 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, adopted at 45th Ordinary session of ACHPR held in Banjul, Gambia 13-27 May 2009.
41. See Commissioner YKJ Yeung Sik Yuen ‘Intersession Activity Report’ (13 April 2012) http://www.achpr.org/sessions/51st/intersession-activity-reports/older-disabled (accessed 20 September 2013); Commissioner YKJ Yeung Sik Yuen ‘Report of the Chairperson of the Working Group on the Rights of Older Persons and People with Disabilities in Africa’ presented during the 52nd Ordinary Session of the ACHRPR in held in Yamoussoukro, Cote d’Ivoire, 9 - 22 October 2012, para 8.
43. A comprehensive discussion of the background and a consideration of the different options is provided in Secretariat of the African Decade on Persons with Disabilities (n 3 above) 5-47. Kamga takes this one step further by providing a thought-provoking argument for the adoption of a Protocol to the African Charter - see Kamga (n 11 above) 235-249.
44. See Secretariat of the African Decade on Persons with Disabilities (n 3 above) 36-45. One may assume that such a Protocol would be subject to the same limitations in norm enforcement as the Women’s Protocol.