- Lucyline Nkatha Murungi
- LLM (University of Pretoria); LLD (University of the Western Cape);
- Head, Children and the Law Programme, The African Child Policy Forum, Addis Ababa Ethiopia
- (2014) 2 ADRY 323-327
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Although the core purpose of the sub-regional economic communities is the pursuit of economic integration, certain key opportunities have been identified for the inclusion of human rights, and particularly disability rights, in the purview of these Communities. This subsection reports on recent events relating to disability rights in one of these, namely the East Africa Community (EAC); there have been no notable developments in the Southern African Development Community (SADC) and the Economic Community of Western African States (ECOWAS) during the period under review.
This subsection builds on the discussion of the legal, policy, and institutional frameworks of the EAC, as well as entry points for the promotion and protection of the rights of persons with disabilities in the sub-region, which was undertaken in the 2013 volume of this Yearbook.1 The subsection is therefore an update on developments relative to disability rights that have taken place in the period between 2013 and part of 2014. Indeed, there have been only a few, but nevertheless noteworthy, developments in the policy, programmatic and implementation aspects of disability rights at the EAC.
One significant development is that Burundi finally ratified the CPRD in May 2014.2 The ratification effectively means that all countries in the EAC are now states parties to the CRPD,3 and therefore that a common and coordinated advocacy effort targeting the domestication and implementation of the CRPD is feasible. In addition, whereas the primary role for the implementation of the CRPD rests with states parties,4 the Convention envisages a limited role for regional integration organisations such as the EAC in its implementation, through cooperating in a range of ways for the advancement of the rights of persons with disabilities.5 The EAC Treaty does not bestow the Community with a mandate to ratify treaties, and indeed, the stage of integration at which the EAC is at does not allow the Community to ratify the Convention as an organisation.6 Nevertheless, a uniform position on the Convention amongst partner states is conducive to push a common agenda for the implementation of the Convention in the sub-region.
In 2012, the Secretariat of the EAC embarked on a process of drafting a Disability Policy. In 2013, the Draft Policy was confirmed by the Council of Ministers, which is the ultimate policy making institution of the Community.7 The Policy has since been adopted by the Sectoral Committee of the Council in 2013 and can now be formally applied as a reference and coordination point for action on disability rights within the EAC.8
In a decision of 2011, the East Africa Court of Justice (EACJ) found the Secretary General of the EAC to be in contravention of the Treaty for the delay in adopting a Protocol to extend the mandate of the Court to various other issues including human rights.9 In 2012, the applicant in that case filed a follow-up case to push for the implementation of the decision. In 2013, the EACJ delivered its verdict on the follow up matter, finding that in terms of the EAC Treaty, the Council of Ministers has a ‘determining’ mandate on the jurisdiction of the EACJ. Accordingly, the EACJ could not question the decision of the Council of Ministers to exclude human rights from the jurisdiction of the EACJ.10 This decision will, unfortunately, limit the potential of the EACJ as a platform for the enforcement of human rights, including disability rights.
The EAC regularly holds high level stakeholder conferences as one of the platforms to disseminate its policies and to push action amongst partner states on various issues. A biennial conference on disability is one such representative forum organised to monitor the implementation of the CRPD by EAC partner states. The inaugural EAC disability conference was held in Kampala-Uganda in the year 2010.11 One of the key outcomes of that conference was a call for the adoption of an EAC policy on persons with disabilities.12 The second conference was held in Nairobi-Kenya in June 2014, on the theme of ‘Empowerment: The disability concern in the EAC regional integration agenda’.13 The 2014 conference assessed partner states’ progress in the implementation of the CRPD, the integration of disability and participation of persons with disabilities in the post - 2015 United Nations agenda, an evaluation of progress by partner states towards attaining the Millennium Development Goals (MDGs) in relation to people with disability, as well as addressing partner states’ participation in the post-2015 development agenda.14
One of the key outcomes of the conference was the adoption of a Communiqué setting out recommendations for action in the aforementioned areas. Some key issues of interest in the Communiqué include its calls for the institutionalisation of the conference as a biennial forum to track progress on the implementation of both the CRPD and of the recommendations emanating from previous conferences. The Communiqué also urges the EAC Secretariat to ‘coordinate efforts in all Partner States to generate a common position on the post 2015 development agenda for PWD’15 and ‘to lobby the Africa group to advocate for a standalone Development Goal on PWD in the post 2015 development agenda.’16 The Communiqué further calls upon EAC partner states to mainstream disability concerns in all post MDGs and international sustainable development frameworks in spheres such as education, health, infrastructure, agriculture and employment,17and to lobby for the adoption of an 8th Pillar to the African Union Agenda 2063 focusing on special interest groups including persons with disabilities.18
The call for inclusion of disability concerns into the post 2015 development agenda is timely. The current international development agenda, as set out in the MDG framework, will end in 2015. States are therefore currently engaged in discussions on the focus of the next development framework for the period after 2015, that is, post 2015.19 As at the time of developing the MDGs, disability was not a core and visible issue to international policy makers.20 As a result, the MDGs did not specifically address disability, except in as far as non-discrimination was an integral part of the goal’s achievement as in the case of universal primary education.21 The exclusion of a specific disability focus in the MDGs contributed to the marginalisation of disability concerns in the UN development agenda for the past 15 years. Explicit recognition of disability in the post-2015 framework would therefore be instrumental in ensuring that persons with disabilities benefit from the development agenda, and that the CRPD is implemented.
The EAC is in the process of developing a child rights policy to act as a basis for the harmonisation of child rights standards in the sub-region, and to establish a framework for coordinated action amongst partner states towards matters affecting children.22 The Policy development process is opportune for ensuring the integration of the rights of children with disabilities into child rights action within the EAC.
In addition, the aforementioned 2nd EAC Conference on Persons with Disabilities (2014) called for the development of an EAC Disability Bill. If this recommendation is implemented, there is indeed an opportunity to integrate CRPD standards into the law of the EAC.
Evidently, there has been little change in disability rights in the EAC within the year, hence signalling a slow pace for the realisation of the rights in the sub-region. It is laudable that all EAC partner states are now states parties to the CRPD. It is also commendable that the EAC has adopted measures to anchor the disability rights agenda such as through the final adoption of the Disability Policy, as well as the periodic conference on disability. However, in light of the actions of the Council of Ministers to exclude human rights from the mandate of the EACJ, and the decision of the EACJ adjudging itself helpless in the circumstances, there is potential for the gains made in the protection of human rights, including the rights of persons with disabilities, in the EAC to be eroded.
2. See UN Enable ‘Convention and Optional Protocol Signatures and Ratifications’ http://www.un.org/disabilities/countries.asp?navid=12&pid=166 (accessed 20 June 2014).
6. CRPD, art 44. The EAC is at the third stage of integration, that is, a common market. See Murungi et al (n 1 above) 376. The competencies of the Community at this stage are largely on the freedom of movement of goods, services and people, as opposed to treaty making on behalf of partner states.
8. East Africa Community, Report of the 2nd Meeting of the 2nd Session of the East African Legislative Assembly, Bujumbura, Burundi 20 October-1 November 2013, available at http://www.google.com.et/url?sa=t&rct=j&q=&esrc=s&source=web& cd=6&ved=0CD4QFjAF&url=http%3A%2F%2Fwww.eala.org%2Fkey-documents%2 Fdoc_download%2F433-2nd-meeting-of-the-2nd-session-of-the-3rd-assembly-.html&ei =4MKnU7v2Eqet0QWB5YCQDg&usg=AFQjCNEqQX9fMfGBjytTzevq5iSUelCPzg&bvm=bv.69411363,d.d2k (accessed 20 June 2014).
10. Sitenda Sibalu v The Secretary General of the EAC Ref No 8 of 2012. It is important to note that in a move akin to retaliation on the EACJ for finding against the Council of Ministers and the Secretary General, the Council of Ministers met soon after the decision and decided to exclude the human rights and appellate mandates of the EACJ altogether, instead of extending the current mandate to these areas. This is a matter that the Court took notice of in its decision.
11. See http://gender.eac.int/index.php?option=com_content&view=article&id=142: pwd-conference-kampala&catid=53:press-room&Itemid=183 (accessed 22 August 2014).
13. See http://gender.eac.int/index.php?option=com_docman&Itemid=189 (accessed 23 June 2014).
15. The abbreviation ‘PWD’ is reproduced here as used in the original text of the Communiqué. The author is aware that the use of this abbreviation is not unanimously accepted within the disability rights movement.
18. EAC Communiqué (n 14 above) para 4.3. The AU Agenda 2063 refers to the AU’s vision and roadmap towards an integrated, peaceful and prosperous Africa for the next 50 years. More on the vision can be found at http://agenda2063.au.int/en/about (accessed 23 August 2014).
19. Some of the deliberations on the Post-2015 development agenda are available at http://www.un.org/en/ecosoc/about/mdg.shtml (accessed 22 August 2014) and http://www.un.org/millenniumgoals/beyond2015-news.shtml (accessed 22 August 2014).
20. The 1990s were a particularly active decade for purposes of disability rights. However, as at the time of developing the MDGs, international support for a concrete disability agenda had not galvanised enough support to posit disability as a priority concern in the international development agenda or warranting a common position amongst countries. G Quinn & T Degener Human rights and disability: The current use and future potential of UN human rights instruments in the context of disability (2002) 29-46, 293-294 map the global discourse on disability rights before the CRPD, showing the vibrant discussion on the need for a responsive framework on disability at the global level, yet not achieving consensus on the need for a standalone treaty on the issue, even as of the year 2000.
- Lorenzo Wakefield
- LLM (University of the Western Cape);
- Research Fellow: Consortium on Crime and Violence Prevention
- (2014) 2 ADRY 319-322
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As the regional treaty body for the rights of children in Africa, the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) has the mandate to hold states parties to the African Charter on the Rights and Welfare of the Child (African Children’s Charter) to account on how they implement the provisions of this treaty.1 Even though article 13 of the African Children’s Charter gives specific recognition to the rights of children with disabilities in Africa, the other provisions of this treaty apply equally to children with or without disabilities.
The 2013 volume of the African Disability Rights Yearbook, contained an article on a specific activity related to the 2012 Day of the African Child2 theme, which was focused on the rights of children with disabilities.3 This update will focus on activities undertaken by the African Children’s Committee during 2013 and up to June 2014 that relate to the promotion, protection and realisation of the rights of children with disabilities in Africa.
The substantive provisions and mandate of the African Children’s Committee were discussed in the 2013 volume of the African Disability Rights Yearbook and will not be repeated in this update. This update will thus focus on two important aspects of the implementation of the African Children’s Committee’s mandate during 2013-2014, which are the ordinary sessions and states parties reports and a strategy for promoting the rights of children with disabilities in Africa.
The 22nd ordinary session of the African Children’s Committee was held during 4-8 November 2013 in Addis Ababa, while the 23rd ordinary session took place from 7-16 April 2014 at the same location. At the time of writing, a session report for the 23rd ordinary session was not available on the African Children’s Committee website.
During the 22nd ordinary session, the African Children’s Committee did not engage with any states parties on country reports. A reason for this could be due to the fact that states parties are not that responsive in reporting to the African Children’s Committee. The African Children’s Committee acknowledged this and launched a campaign on the importance of reporting that is combined with the 25-year anniversary of the African Children’s Charter during the 23rd ordinary session4 (During the 23rd ordinary session of the Committee engaged with the Government of Liberia on their initial country report on the implementation of the African Children’s Charter).5
The African Children’s Committee has dealt with matters relating to children with disabilities in the 22nd ordinary session. This was done by way of engagement with an organisation called ‘Under the Same Sun’ which made a presentation on the rights of children with albinism - specifically focused in Tanzania.6 Discrimination faced by persons with albinism is rife in the context of Tanzania. This is largely fueled by myths around albinism combined with the use of body parts of persons with albinism for rituals conducted by traditional healers.7 It is more than commendable for the African Children’s Committee to deal with the discrimination faced by children with albinism, largely because albinism has not found its position within the disability discourse. Kamga correctly argues that neither the United Nations Convention on the Rights of Persons with Disabilities, nor any of the African Human Rights Treaties (both the African Children’s Charter and the African Charter on Human and Peoples’ Rights) expressly acknowledges albinism as a disability.8
Unfair discrimination against persons with disabilities is universal, despite the type of disability that a person might have. However, what the case above in relation to children with albinism also illustrates is that discrimination faced by persons with disabilities varies from one country to another and one region to another and that one type of solution to dealing with this kind of discrimination is not sufficient. The varied nature of discrimination faced by persons with disabilities - and in this case children ‒ on the African continent was exactly what the African Children’s Committee was coming to terms with by engaging on issues in relation to children with albinism.
Following from the 2012 theme for the Day of the African Child on the rights of children with disabilities, the African Children’s Committee held a workshop in Cape Town, South Africa in December 2013 on monitoring the rights of children with disabilities in Africa. Stemming from this workshop the African Children’s Committee adopted a strategy on how it intends to hold states parties to account to realise the rights of children with disabilities.
The African Children’s Committee identified the following seven specific areas within the strategy, which are a cause of concern for children with disabilities in Africa that requires a level of action:
(g) The importance of statistics, research and evidence gathering.9
These seven areas of concern are all linked to a strategic thematic area based on the African Children’s Charter and matters relating to its implementation are given detailed discussion within the strategy.
The strategy goes further by requesting member states of the African Children’s Charter to adopt a three-fold approach to develop their own medium-term strategies that consists of development, implementation and monitoring and evaluation of the rights of children with disabilities.10 In relation to development, the strategy requires of member states to develop national action plans and reviewing the legislative and policy framework. In relation to the implementation phase, this entails strengthening service provision and having efficient and accessible complaints mechanisms for violation of rights.
States parties are not subject to complying with strategy documents, as they do not constitute binding treaties. States parties are however subject to the provisions of the treaty that they have ratified. In this case it would be the African Children’s Charter. Strategy documents of this nature are useful in that they give states parties guidelines on what is required by the African Children’s Committee when realising the rights of children with disabilities. Therefore developments of this nature should be welcomed. The implementation of this strategy is vitally important in order to realise the rights of children with disabilities in Africa. Thus constant monitoring of the implementation of this strategy should be undertaken.
As one can view from the developments of the activities of the African Children’s Committee, the rights of children with disabilities are not ignored or overlooked. The strategy on realising the rights of children with disabilities is welcomed and should be supported. The implementation thereof should also be supported with the necessary capacities in place.
3. See L Wakefield ‘Making Progress: The African Committee of Experts on the Rights and Welfare of the Child and the rights of children with disabilities’ (2013) 1 African Disability Rights Yearbook 369 372-374.
4. See: http://acerwc.org/25-years-anniversary-universal-ratification-of-and-reporting-on-the-acerwc/ for mention of this campaign. However, the weblink does not contain any detail on the campaign (accessed 14 July 2014).
5. This report was not available online at the time of writing and therefore one cannot engage with the content in relation to reporting on the implementation of the rights of children with disabilities, specifically looking at article 13 of the African Children’s Charter.
6. See: African Committee of Experts on the Rights and Welfare of the Child Report on the Twenty-second session of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), 4-8 November 2013, Addis Ababa, Ethiopia 14 and 15.
7. See: http://www.underthesamesun.com/sites/default/files/Myth%20Busting%20Bro chure%20-%20English.pdf (accessed 7 August 2014) for a factsheet on the myths of albinism and ‘Tanzanian witch doctors arrested over albino killing’ BBC News 14 May 2014 http://www.bbc.com/news/world-africa-27409965 (accessed 7 August 2014) for a newspaper article on the arrest of a traditional healer for the killing of persons with albinism.
8. See: SAD 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 & Comparative Law 219 229-230.
- Heléne Combrinck
- LLD (University of the Western Cape)
- Associate Professor, Centre for Disability Law and Policy, University of the Western Cape. Heléne Combrinck is the author of the section on the African Commission on Human and Peoples’ Rights.
- Lawrence M Mute
- LLB, University of Nairobi, LLM (Law in Development), University of Warwick
- Commissioner, African Commission on Human and Peoples’ Rights; Chair, Committee for the Prevention of Torture in Africa; Member, Working Group on Older Persons and People with Disabilities in Africa; Rights and Governance Consultant
- (2014) 2 ADRY 309-317
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Heléne Combrinck is the author of the section on the African Commission on Human and Peoples’ Rights. Lawrence Mute is the author of the section on perspectives on an African Protocol on the Rights of Persons with Disabilities.
The historical picture of disability rights in the African regional human rights system can be described as one of ‘underutilised potential’.1 The foundational instrument, namely the African Charter on Human and Peoples’ Rights (the African Charter),2 contains a dedicated provision on the rights of persons with disabilities;3 although this article has been subjected to some criticism, it is noteworthy for its recognition of the principle that persons with disabilities are entitled to specific measures in accordance with their requirements.4
In recent years, a number of significant shifts towards inclusion of disability rights have become apparent,5 with disability rights gradually making their way into the major instruments of the system such as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol).6
This subsection examines the work relating to disability rights of one institution in the African system during 2013, namely the African Commission on Human and Peoples’ Rights (African Commission). A specific aspect, the draft Protocol on the Rights of Persons with Disabilities, as recently completed by the Working Group on the Rights of Older Persons and People with Disabilities in Africa,7 is discussed below.
The African Commission held two ordinary sessions (the 53rd and 54th) and two extraordinary sessions (the 13th and 14th) during 2013. These sessions took place in Gambia, with the exception of the 14th extraordinary session, which was held in Kenya.
In terms of both the African Charter and the African Women’s Protocol, states are required to submit reports to the Commission every two years on the steps taken to implement these two instruments. It is significant to note that the majority of the reports submitted to or considered by the Commission during 2013 included reference to the rights of persons with disabilities.8 This related either to the implementation of article 18(4) - for
example, in the reports of Burundi,9 Cameroon10 and Mozambique11 ‒ or another right, such as the right to health - in the case of Senegal.12 The report of Malawi, which includes a section on the implementation of the African Women’s Protocol (the only one submitted during this period to do so), also covers the position of women with disabilities.13
It is significant to note that the rights of persons with disabilities are increasingly acknowledged in the Commission’s activity reports in the section describing the human rights situation in Africa. For example, in its 34th activity report, the Commission observes that the provision of free sunscreen for people with albinism and the accompanying sensitisation campaign in Kenya is a positive development, as is the adoption by the United Republic of Tanzania of measures to stop the killing of persons with albinism, including through the education of local communities and prosecutions to bring the perpetrators to justice.14
In its 35th Activity Report, the Commission notes as a positive development the adoption of Lesotho’s National Disability Policy, which recognises that persons with disabilities should have equal access to education, training, employment, health and other aspects of life.15 On the other hand, it expressed concern about the fact that persons with disabilities, and people with albinism, continue to experience prejudice in some countries, with a disproportionate toll on women with disabilities and/or albinism.16
The Commission firstly adopted a resolution17 renewing the mandate of the Working Group on Older Persons and People with Disabilities.
It also adopted a resolution aimed at the prevention of attacks and discrimination against persons with albinism.18 This resolution expressed concern about reports of systematic attacks against persons with albinism, including against women and children, and welcomed the steps taken and efforts made by the countries concerned, including initiating legal action against perpetrators of attacks against persons with albinism and public condemnation of attacks against persons with albinism. It reminds states parties of their obligations under articles 2 and 18(4) of the African Charter and calls upon state parties to, inter alia, take effective measures to eliminate all forms of discrimination against persons with albinism, and to increase education and public awareness-raising activities.19 It requests states parties to include in their reports submitted to the African Commission under article 62 of the Charter information on the situation of persons with albinism (including good practices in protecting and promoting the rights of persons with albinism).20
The Commission has further adopted a resolution on Women’s Right to Land and Productive Resources,21 which notes that women living with disabilities, amongst others,22 are more affected by marginalisation and calls on states parties to put in place special measures to protect the property rights of women with disabilities. 23
The Working Group on Older Persons and People with Disabilities in Africa (the Working Group) was established by the African Commission on Human and Peoples’ Rights (the Commission) in accordance with Resolution 143/45 of 2009. The terms of reference of the Working Group include researching and vocalising the rights of persons with disabilities and advising the Commission on the adoption of a Protocol on the Rights of Persons with Disabilities (Disability Protocol).24
The Working Group is chaired by Commissioner Yeung Kam John Yeung Sik Yuen; and presently its members are Commissioner Reine Alapini-Gansou, Commissioner Pansy Tlakula, Commissioner Lawrence Murugu Mute, Dr Tavengwa Machekano Nhongo, Dr Nadia Abdel-Wahab El-Afify, Dr Isabel Anita Gbenisola Aboderin, Mr Kudakwashe Dube and Dr Elly Macha.25
An early initiative by the Working Group to prepare a continental disability rights instrument was unsuccessful on account of a number of reasons. First, there was inadequate consultation with stakeholders. Also, there was a certain amount of conceptual and normative conflation, for example on whether the disability rights instrument should be framed as a charter or a protocol. 26
In 2011, the Working Group was expanded to include more experts as well as members with disabilities. Subsequently, the Working Group finalised a concept paper for the Disability Protocol in 2012 and prepared Draft I of the Disability Protocol in 2013. The Working Group adopted Draft II of the Disability Protocol (Draft Protocol) in March 2014 and invited stakeholders’ views and reviews.27
A number of considerations continue to inform the Working Group as it is preparing the Disability Protocol. First, Africa’s human rights architecture has evolved steadily to a point where specifically-binding instruments have given recognition to and affirmed the human rights of all the most marginalised groups on the Continent. There are African human rights instruments providing affirmations to the rights and protections for children ‒ the African Charter on the Rights and Welfare of the Child (ACRWC),28 women ‒ the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol),29 youth ‒ the African Youth Charter (AYC),30 and internally displaced persons - African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa.31 Indeed, the Working Group itself in 2012 finalised a draft protocol covering the rights of older persons. The Working Group surmises that Africa’s human rights architecture will remain lopsided and incomplete without a human rights instrument affirming or reaffirming the rights of persons with disabilities.
Second, while it is true that some of the above-listed African rights instruments make mention of persons with disabilities, their content is by and large informed by the deficit/medical rather than the social/rights model of disability.32 Furthermore, the rights of persons with disabilities in some of those instruments are made subject to progressive realisation and availability of resources while other rights in those instruments are not similarly treated.33 It is therefore necessary that the rights of persons with disabilities are set out correctly to conform to the letter and spirit of the Convention on the Rights of Persons with Disabilities (CRPD).
Third, a far more pragmatic consideration is the reality that African states as well as the bureaucracy of the African Union Commission (AUC) need a home-grown instrument with which to drive the disability rights agenda in Africa. While at least 45 African states have ratified the CRPD34 and 33 African States have ratified its Optional Protocol,35 Africa’s recent difficult relationship with the International Criminal Court36 illustrates the unfeasibility of simply assuming that the Continent will pliantly look outwards for the inspiration to protect and promote the rights of its people.
Fourth, though, the Working Group is careful to make the explicit acknowledgement that the CRPD is the novel global standard-bearer on the rights of persons with disabilities. Any new disability rights instrument must not undermine the minimum standard established in the CRPD. Consequently, the Working Group’s treatment of key disability concepts such as legal capacity is consistent with the standard established in the CRPD. 37
Finally, the Working Group is proceeding on the basis that this Protocol offers a veritable opportunity for raising the bar for the rights of persons with disabilities in Africa by establishing further affirmations and clarifications to tackle Africa’s specificities and realities. The Draft Protocol, therefore, covers issues which received no traction in the CRPD despite being of concern in Africa. For example, it provides for:
(1) Protection of parents, guardians and caregivers from discrimination on the basis of their actual or apparent association with persons with disabilities; 38
(2) Protection of persons with disabilities from harmful practices; 39
(3) Provision for their equal right to hold documents of identity; 40
(4) Protection against use of traditional forms of justice to deny persons with disabilities access to appropriate and effective justice; 41
(5) Calibration of provisions on living in the community to have specific regard for community based rehabilitation services which are a key feature of Africa’s approach to disability; 42
(7) Clarification that the support required by persons with disabilities to enjoy their legal capacity must respect their rights, will and preferences, and must not amount to substituted decision-making;45 and
(8) Unlike the CRPD but in consonance with Africa’s human rights standards, the Draft Protocol makes explicit mention that all persons with disabilities too have responsibilities to other individuals, their families and to the community. 46
An important choice which the Working Group has made is that this disability rights instrument should be framed as a Protocol rather than a Charter. It is essential that the rights of persons with disabilities remain anchored on Africa’s flagship human rights instrument, the African Charter, which in article 18(4) provides that: ‘The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs’. It is particularly vital that an artificial wall should not be created between the content of the African Charter and the content of a disability rights instrument. It is even possible that the content of the African Charter will gradually be interpreted to fit the modern conceptual framing on the rights of persons with disabilities to be established in the Protocol. The Draft Protocol hence is intended to be an organic progression from the norms established in the African Charter in the same way that the Maputo Protocol developed from provisions in the African Charter.47
Framing this instrument as a Protocol also makes practical sense. A Disability Rights Charter would have required the initiation and execution of a totally new institutional infrastructure to monitor the instrument’s implementation; whereas a Protocol would be managed institutionally by the African Commission on Human and Peoples’ Rights. A Protocol would offer far more convenience for states parties to fulfil their reporting obligations relating to disability as set out in the Protocol alongside their overall reporting obligations under the Charter. Finally, framing the rights of persons with disabilities in a Protocol linked to the African Commission will not only mean that the Commission’s established Communications infrastructure can be deployed immediately to offer redress to victims, but that complainants may also take advantage of the special standing which the African Commission has before the African Court on Human and Peoples’ Rights to prosecute human rights cases.
The Working Group continues to be extremely keen on getting feedback on the Draft Protocol. The Draft will in due course be reviewed to take account of feedback, before being presented to the Commission for consideration and adoption. Following that, it will be submitted to the AUC for onward processing including deliberation by African states before its possible adoption by the African Union.
The year under review offers optimistic evidence that disability rights are making further inroads into the African regional human rights system, with specific reference to the work of the African Commission. At the same time, it may be said that there are further opportunities that may be explored, for example, a greater integration of disability rights in the work of the Commission’s special thematic mechanisms.48 The introduction of the draft African Protocol on the Rights of Persons with Disabilities, while not uncontroversial, offers further potential for deepening an understanding of disability rights on the continent.
7. The first African Union (AU) Ministerial Conference on Human Rights in Africa, held in Kigali in 2003, adopted a Declaration that included specific reference to persons with disabilities and called on member states to develop a Protocol on the protection of the rights of people with disabilities and the elderly ‒ MIN/CONF/HRA/Decl 1(1), adopted by the First AU Ministerial Conference on Human Rights in Africa on 8 May 2003. The African Commission subsequently appointed a ‘Focal Point on the Rights of Older Persons in Africa’ in November 2007, which was expanded in 2009 to become a ‘Working Group on the Rights of Older Persons and People with Disabilities in Africa’. For an overview of an initial draft Protocol prepared by the Working Group, see Combrinck (n 5 above) 367; SAD 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 219 224.
9. Republic of Burundi ‘First Implementation Report’ (2010): http://www.achpr.org/files/sessions/50th/state-reports/2nd-achpr50_staterep_burundi_2010_eng.pdf (accessed 30 June 2014) 48. The Burundi report was considered in 2011; the Committee adopted its concluding observations at its 13th Extraordinary Session in February 2013.
10. Republic of Cameroon ‘Third Periodic Report’ (2013): http://www.achpr.org/files/sessions/54th/state-reports/3-2008-2011/staterep3_cameroon_2013_eng.pdf (accessed 30 June 2014) paras 546-562.
11. Republic of Mozambique ‘Combined report 1999-2010’ (2012): http://www.achpr. org/files/sessions/55th/state-reports/1-1999-2010/report_initial_and_combined_199 9_2010_eng.pdf (accessed 30 June 2014) paras 304-331.
12. Republic of Senegal ‘Periodic Report’ (2013): http://www.achpr.org/files/sessions/53rd/state-reports/3rd-2004-2013/periodic_report_2004_2013_eng.pdf (accessed 30 June 2014) para 304.
13. Republic of Malawi ‘Report to the African Commission on Human and Peoples’ Rights 1995-2013’ (2013): http://www.achpr.org/files/sessions/14th-eo/state-reports/1-1995 -2013/staterep1_malawi_2013_eng.pdf (accessed 30 June 2014) paras 241-243.
14. http://www.achpr.org/files/activity-reports/34/achpr53eos13_actrep34_2013_eng.pdf (accessed 30 June 2014) para 20(a)(x) and (xi).
15. http://www.achpr.org/files/activity-reports/35/achpr54eos14_actrep35_2014_eng.pdf (accessed 30 June 2014) para 28(a)(v).
24. http://www.achpr.org/mechanisms/older-disabled/ (accessed 21 May 2014).
‘(1) hold comprehensive brainstorming sessions to articulate the rights of older persons and people with disabilities;
(2) draft a Concept Paper for consideration by the African Commission that will serve as a basis for the adoption of the Draft Protocol on Ageing and People with Disabilities;
(3) facilitate and expedite comparative research on the various aspects of human rights of older persons and people with disabilities on the continent, including their socio-economic rights;
(4) collect data on older persons and people with disabilities to ensure proper mainstreaming of their rights in the policies and development programmes of Member States;
(5) identify good practices to be replicated in Member States; and
(6) submit a detailed Report to the African Commission at each Ordinary Session.’
25. http://www.achpr.org/sessions/55th/resolutions/269/ (accessed 10 August 2014).
26. See: Secretariat of the African Decade for Persons with Disabilities ‘The Architecture for an African Disability Rights Treaty’, available at: african-decade.co.za/.../Architecture_for_an_African_Disability_Rights_... (accessed 22 May 2014).
27. http://www.achpr.org/news/2014/04/d121 (accessed on 21 May 2014)
28. African Charter on the Rights and Welfare of the Child, OAU Doc.CAB/LEG/24.9/49 (1990), entered into force on 29 November 1999: http://caselaw.ihrda.org/doc/acrwc/view/ (accessed 8 September 2014).
29. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted 11 July 2003: www.achpr.org/instruments/women-protocol/ (accessed 8 September 2014).
31. African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted 22 October 2009: http://au.int/en/content/african-union-convention-protection-and-assistance-internally-displaced-persons-africa (accessed 8 September 2014).
32. See Article 13 of the ACRWC which makes reference to ‘handicapped children’; Article 23 of the African Women’s Protocol which provides for ‘special protection of women with disabilities’; and Article 24 of the AYC which makes reference to ‘mentally challenged youth’. All these provisions overemphasise special measures at the expense of the overall rights of persons with disabilities.
33. For example, Article 13 of the ACRWC requires states parties to provide appropriate assistance to a disabled child who applies for it subject to availability of resources. States are also required to use their available resources to progressively realise accessibility for persons with disabilities. Significantly, this Charter does not apply the principle of progressive realisation to any of the economic and social rights which it establishes, raising the question why it was found necessary to apply the principle in relation to the rights of children with disabilities.
36. Following the 2013 election of an ICC indictee as President of Kenya, the African Union urged its members not to comply or cooperate with the ICC: ‘Can the International Criminal Court and the African Union repair relations?’ Africa in focus 26 December 2013 http://www.brookings.edu/blogs/africa-in-focus/posts/2013/12/26-international-criminal-court-mbaku (accessed 21 May 2014).
43. For example in the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 (5) SA 87 (WCC), it was submitted that the state made no direct provisions to educate children with severe or profound disabilities because they were uneducable and no amount of education would benefit them. Rather, parents would be left to impart life skills to such children.
47. Article 18(3) of the African Charter provides that: ‘The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions.’