- Ngozi Chuma Umeh
- Barrister-at-Law (Nigerian Law School)
- LLB, LLM (Nigeria), LLD (Pretoria)
- NC Umeh ‘Progress towards inclusive primary education in selected West African countries’ (2018) 6 African Disability Rights Yearbook 263-276
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Using Nigeria, Ghana and Sierra Leone as the main case study, this commentary discusses developments on inclusive education in the West African Region. It evaluates the extent to which domestic legislation and policy framework in the three West African countries complies with the normative standards set in article 24 of Convention on Rights of Persons with Disabilities (CRPD) the commentary observes that none of the legislative and policy frameworks in the three West African States completely meets the standards set in article 24 of the CRPD or the newly adopted Protocol to the African Charter on Human Peoples’ Rights on the Rights of Persons with Disabilities.
A number of countries in West Africa have in recent years ratified the Convention on the Rights of Persons with Disabilities (CRPD)1 as well as international, regional and sub-regional human rights treaties asserting various aspects of the right to education of children with disabilities. While this is a positive development, the question arises as to whether these commitments have been translated into tangible progress in respect of the review of existing legislative and policy frameworks at domestic level. 2
Article 24 of CRPD enjoins state parties to ensure inclusive education for persons with disabilities at all levels without discrimination and on the basis of equal opportunity.3 Under article 24(2), five key state obligations relating to the realisation of the right to inclusive education may be identified, such as the duty to ensure that children with disabilities are not excluded from free and compulsory primary education on the ground of disability.4 The state responsibility to provide reasonable accommodation5 is also highlighted.6
The Committee on the Rights of Persons with Disabilities (RPD Committee) has adopted a General Comment on the right to inclusive education to guide further understanding of this right.7 According to the Committee, article 24(2)(a) inter alia requires the prohibition of the exclusion of persons with disabilities from the general education system that may occur, for example, through legislative provisions limiting their inclusion based on disability.8 Elaborating on the duty to provide reasonable accommodation, the Committee further states that policies committing to reasonable accommodation must be adopted at all education levels.9
In the African region, the international normative framework is expanded by the African Charter on Human and Peoples’ Rights (African Charter).10 This instrument sets out a number of provisions relevant to the right to education of children with disabilities. First, it guarantees freedom from discrimination11 as well as the right to education;12 second, it pays specific attention to the rights of the child13 and persons with disabilities.14 The African Charter on the Rights and Welfare of the Child15 (African Children’s Charter) similarly provides for the right to education16 of children with disabilities as well as special measures relating to children with disabilities. 17
At the sub-regional level the Revised Economic Community of West African States (ECOWAS) Treaty recognises the promotion and protection of human rights in line with the African Charter as one of its fundamental principles.18 Significantly, the ECOWAS Court of Justice has held that the right to education, as guaranteed in article 17(1) of the African Charter, is justiciable before this Court (despite the fact that it may not be justiciable at the domestic level - in this instance Nigeria). 19
Against this background, this commentary examines the legislative and policy frameworks relating to inclusive education of children with disabilities in three West African countries, namely, Nigeria, Ghana and Sierra Leone, in order to establish whether these frameworks have been adjusted to conform to the CRPD. Such an inquiry becomes especially pertinent when one considers that several of the enactments in question predate the adoption of the Convention.20
All three countries have ratified CRPD21 and also have national laws on education, children’s rights and the rights of persons with disabilities (Nigeria being an exception regarding the latter). The three countries follow a similar dualist approach to international law, which means that international treaties ratified by the country concerned must be enacted as national legislation to acquire the force of domestic law.22
This commentary, which focuses on primary23 education, will be limited to the two key obligations outlined above, namely, ensuring that children with disabilities are not excluded from free and compulsory primary education24 and providing reasonable accommodation in the context of education.25
In terms of structure, the commentary is divided into five parts, including the introduction. The second, third and fourth parts examine the relevant legislation and policies in Nigeria, Ghana and Sierra Leone respectively, with a view to assessing state compliance with the normative standards outlined above. The final part is the conclusion.
2 Legislative and policy framework: Nigeria26
2.1 Ensuring that children with disabilities are not excluded from compulsory free primary education
The Nigerian Constitution does not explicitly recognise the right to education.27 Instead, section 18(1) requires the Nigerian government to direct its policy towards ensuring equal and adequate education opportunities at all levels.28 Furthermore, the government must ‘as and when practicable’ provide free, compulsory and universal primary education.29
The Constitution does provide for the right to freedom from discrimination as a justiciable right.30 It sets out a closed31 list of so-called ‘prohibited grounds’. it worth noting that this list does not include disability.
The purpose of this Act32 is to give effect to the African Charter in Nigerian domestic law. This enables one to advance the argument that the prohibition of discrimination in the African Charter (which has been understood to include disability-based discrimination),33 as well as the assurance of the right to education,34 accordingly also form part of Nigerian law.
Section 15 of the Child Rights Act, 200335 stipulates that every child in Nigeria has the right to ‘free, compulsory and universal basic education’, and confirms that it is the duty of the government to provide such education.36 Persons, authorities and institutions caring for children ‘in need of special protection measures’37 are required to make an effort, within available resources, to provide the assistance and facilities necessary for their education and preparation for employment.38
Despite these encouraging provisions, children with intellectual39 disabilities are expressly excluded from the domain of section 15.40 This exclusion does not resonate with the principles of CRPD (especially article 24), and demonstrates that the Act cannot be regarded as ensuring full legal protection for children with disabilities. 41
Section 2(1) of the UBE Act, 2004,42 the principal Nigerian legal instrument regarding education, imposes the duty on the government to provide free, compulsory and universal basic education for every child of primary and junior secondary school age43 and specifically includes children with disabilities.44 The substance of the Act, however, does not make reference to inclusive education. Instead, children with disabilities are expected to benefit from the entirety of the rights to free and compulsory primary education on the same basis as children without disabilities.
The present NPE 201345 includes a dedicated section on ‘special needs education’.46 The policy states that persons with special educational needs must be provided with inclusive education in mainstream47schools.48 On the other hand, persons with such needs ‘who cannot benefit from inclusive education’49 are limited to special schools. At the same time, the NPE states that the aims of special needs education include the provision of access to education for all persons, in an inclusive setting, and equalisation of educational opportunities.50 Notably, the NPE does not expressly prohibit the exclusion of children with disabilities from compulsory free primary education, despite the fact that the document was revised in 2013, that is, after Nigeria had ratified CRPD.
2.2 Obligation to provide reasonable accommodation51
The African Charter (understandably, given the date of its adoption) does not mention the term ‘reasonable accommodation’, but does stipulate that persons with disabilities are entitled to ‘special measures of protection’ in relation to their needs.52 Due to the effect of this Act, this entitlement has been introduced into Nigerian law.53 Such protective measures may (arguably) include providing reasonable accommodation in the context of education.
The NPE requires the Nigerian government to provide the funding, services and facilities necessary to ensure that persons with special education needs have ‘easy access to quality education’,54 which could similarly be construed as an obligation in respect of reasonable accommodation. The specific examples listed in the policy, which include text books in Braille, wheelchairs, computer technology and protective clothing and sunglasses,55 are reminiscent of ‘typical’ reasonable accommodation measures, even if the term is not expressly used.
3.1 Ensuring that children with disabilities are not excluded from compulsory free primary education
The Ghanaian Constitution of 1992 safeguards the right to equal educational opportunities and facilities.57 Basic education is stated to be free, compulsory and available to all.58 Article 29 of the Constitution further specifies that persons with disabilities must be protected against all treatment of a discriminatory nature.59 However, disability again is not listed among the prohibited grounds of discrimination.60
The Persons with Disability Act of 200661 goes beyond the Constitution in that it explicitly prohibits disability-based discrimination.62 It also provides for the right to compulsory63 free education for persons with disabilities,64 except where a child with a disability has been assessed by the Ministry of Education to be someone who ‘clearly requires’ being in a special school.65
Ghana’s Education Act, 200866 endorses the principle of free and compulsory basic education.67 It also addresses inclusive education, which is defined as entailing that all persons attending educational institutions are entitled to equal access to learning, achievement and the pursuit of excellence in all aspects of their education.68 The specific measures set out in section 5 are addressed below.
Ghana’s Inclusive Education Policy (IEP), 201569 inter alia seeks to redefine the delivery and management of educational services in order to respond to the diverse needs of all learners within the frameworks of Universal Design for Learning70 and Child Friendly Schools.71 One of the guiding principles underpinning this policy is that no child may be excluded from education based inter alia on disability.72
Article 17 of the Act, 200673 directs the Minister of Education to designate schools or institutions in each region to provide the facilities and equipment necessary ‘to enable persons with disability to fully benefit from the school or institution’. While this provision is encouraging, it stops short of articulating the concept of reasonable accommodation as envisaged in CRPD.
Ghana’s Education Act of 200874 recognises that institutions delivering education to children with disabilities75 must improve on existing infrastructure and provide additional facilities where necessary.76 Parents must request appropriate educational facilities (where these are not already in place); this is made subject to the availability of resources.77 Furthermore, designs for schools should be ‘user-friendly for children with special needs’.78 Although this is a positive prerequisite, the impression is created (especially when read with the following subsection)79 that the ‘design’ referred to here is limited to buildings and infrastructure. Although the Act does not make reference to reasonable accommodation, this provision may be seen as a move in this direction.
The policy objectives of the IEP, 2015 include the promotion of Universal Design for Learning.80 One of the strategies framed to achieve this is to make the relevant equipment and assistive devices available to children with disabilities to enable them to access quality education.
Although a definition of ‘accommodations’ is included in the IEP,81 the document’s policy objectives and strategies do not mention ‘reasonable accommodation’ as such. The duty to provide reasonable accommodation could nevertheless (potentially) be inferred from other measures, as listed above.
4 Sierra Leone82
4.1 Ensuring that children with disabilities are not excluded from compulsory free primary education
In terms of the Sierra Leone Constitution,83 the government must ensure that all citizens enjoy equal rights and adequate educational opportunities at all levels. This includes providing educational facilities at all levels so that all citizens have the opportunity to be educated to the best of their abilities.84 In addition, the rights of vulnerable groups, such as children, women and the disabled, should be safeguarded.85 The government’s educational policy must be directed towards free compulsory basic education at primary and junior secondary school levels.86 However, as is the case with the Nigerian Constitution,87 these provisions are framed as fundamental principles of state policy, which are expressly declared non-justiciable and unenforceable by section 14 of the Sierra Leone Constitution. Although the right to non-discrimination is included as an enforceable right, disability is not specified as a prohibited ground of discrimination. 88
Sierra Leone’s Education Act, 200489 provides that all its citizens have the right to basic education,90 which is compulsory.91 It further stipulates that basic education must be free in government-assisted primary and junior secondary schools (to the extent specified by the Minister of Education).92 Importantly, the principle of non-discrimination is emphasised, with disability explicitly listed as a prohibited ground. 93
The Child Rights Act, of 200794 stipulates that children with disabilities have the right to ‘special care, education and training’ wherever possible to develop their maximum potential and be self-reliant.95 Reference is not made to the duty to ensure that children with disabilities are not excluded from the general education system.
Significantly, the Persons with Disability Act of 201196 provide that persons with disabilities may not be denied admission to or expelled from educational institutions by reason only of disability.97 The right to free education of persons with disabilities nonetheless appears to be limited to tertiary education.98
The Education Sector Plan (ESP) 2018-202099 acknowledges that inclusive education for ‘children with special needs’ in mainstream schools is still a new phenomenon in Sierra Leone.100 In addition to inaccessible structures, a lack of appropriate facilities, teaching and learning materials and trained teachers to meet the needs of children with disabilities prevails.101 In order to address these shortcomings, the Ministry of Education, Science and Technology is currently in the process of developing an inclusive education policy. 102
While it could be argued that children with disabilities may benefit from the generalised outcomes formulated in the ESP (for example, Strategic Outcome 1.1 entails that all children will enter school and complete primary education),103 it is regrettable that the ESP does not specifically address the exclusion of children with disabilities from education.
The Constitution requires the government to provide the necessary structures, finance and supportive facilities for education (generally).104 This provision, however, hollowed out, first by the fact that it is framed as a principle of state policy and, second, by the addition of the qualification ‘as and when practicable’.
This Act requires the government to ensure the structural adaptation of educational institutions to make them ‘easily accessible’ to persons with disabilities,105 and every school is tasked with providing facilities for learning by persons with disabilities.106 Furthermore, educational institutions must take into account the special needs of persons with disabilities with respect to the use of school facilities, physical education requirements and similar considerations.107 While these provisions could be construed as an obligation to provide reasonable accommodation and/ or individualised support, neither concept is expressly mentioned.
Under Strategic Outcome 1.6 of the ESP, which entails the improvement of school infrastructure, the ESP undertakes to inter alia address the lack of classrooms to accommodate all students and the lack of ‘ramps for children with special needs’.108 Specifically, Intervention 1.6b resolves to ensure that by 2020 at least 15 per cent of existing schools have ramps for students with disabilities. This commitment is commendable, but does raise the concern that inclusive education is conceptualised narrowly to relate to accessibility of the built environment only. It is also problematic that the ESP does not include a reference to ‘reasonable accommodation’ as such.
As this brief survey shows, none of the legislative and policy frameworks in the three West African jurisdictions comprehensively lives up to the expectations arising from articles 24(2)(a) and (c) of CRPD. In respect of constitutional provisions, the shortcomings range from the omission of disability as a listed ground in the general prohibition of discrimination (all three constitutions) to the framing of the right to education as a non-justiciable directive of state policy (Nigeria and Sierra Leone). Significantly, the non-discrimination clauses in the constitutions examined are not conceptually linked to a denial of reasonable accommodation as a form of disability-based discrimination. 109
As far as the dedicated laws on education, children’s rights and the rights of persons with disabilities are concerned, it can be said that there is no single piece of legislation across the three countries which alone or in combination meets the standards set by article 24(2). Where legislation does include entitlements to education, this often is qualified by phrases such as ‘within available resources’110 and ‘wherever possible’.111 While these inadequacies are (to some extent) explicable in the case of legislation enacted before the adoption of CRPD, it is disconcerting that omissions still occur, for example, in Sierra Leone’s disability-specific legislation of 2011.112
In terms of policy, all three jurisdictions have certain constructive policy statements, such as the recognition that ‘special needs education’ should aim to provide access to education for all persons with disabilities in an inclusive setting113 and the prohibition of exclusion of children with disabilities from the general education system.114 One may observe that Ghana has made the most progress in the form of an inclusive education policy which not only acknowledges CRPD as underpinning framework,115 but also draws on key concepts from the Convention, such as universal design.116 On the other hand, Sierra Leone, which is yet to finalise its inclusive education policy, may be lagging behind.
What is glaringly missing in all three jurisdictions is a commitment to the provision of reasonable accommodation. As indicated above,117 such an undertaking, at least at policy level, is essential for conforming to CRPD. Instead, duties regarding reasonable accommodation may have to be construed from general and vague phrases such as ‘easy access to quality education’,118and ‘user-friendly [school designs] for children with special needs’.119
This does not imply that no progress has been made. For example, Sierra Leone recently launched a free education programme, which will benefit 1,5 million children.120 This announcement is significant, given the confirmation in the country’s Education Sector Policy that the group of children most at risk of being left out of education due to unaffordable school fees includes chlidren with disabilities.121
It is also promising that the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (African Disability Protocol),122 adopted by the African Union Assembly of Heads of State and Government on 29 January 2018, is not only aligned with article 24 of the CRPD, but in certain instances also expands state duties regarding the right to education, for example, by requiring state parties to ensure that multi-disciplinary assessments are undertaken to determine appropriate reasonable accommodation and support measures for learners with disabilities. 123
It is hoped that, once in operation, the combined weight of CRPD and the African Disability Protocol will generate sufficient political will at national level for governments to take the practical steps necessary to realise the right to inclusive education of children with disabilities not only in West Africa, but in the broader African context as well.
1. Convention on the Rights of Persons with Disabilities GA Res A/RES/61/06, adopted on 13 December 2006, entered into force on 3 May 2008. Information from the United Nations (UN) treaty collection indicates that 17 out of 18 West African countries have signed and ratified the CRPD as at 28 March 2018 - see https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en (accessed 28 March 2018).
2. In terms of art 4(1)(b) of the CRPD, states parties undertake to take all appropriate legislative and other measures to modify or abolish existing laws and practices constituting discrimination against persons with disabilities.
5. See definition of ‘reasonable accommodation’ in art 2 of the CRPD: read with the definition of disability-based discrimination (also in art 2) it confirms that a denial of reasonable accommodation constitutes discrimination on the basis of disability. See also art 5(3) of the CRPD, which further addresses the duty to provide reasonable accommodation.
11. Art 2. Although this article does not list disability among the prohibited grounds of discrimination, it includes the phrase ‘or other status’. This has been read by the African Commission on Human and Peoples’ Rights to encapsulate analogous grounds such as disability - Purohit & Moore v Gambia (2003) AHRLR 96 (ACHPR 2003).
19. Registered Trustees of Socio-Economic Rights and Accountability Project (SERAP) v Federal Republic of Nigeria and Universal Basic Education Commission (No ECW/CCJ/APP/0808), 27 October 2009, para 20. See also discussion of the Nigerian Constitution in Part 2 below.
21. Dates of ratification are as follows: Nigeria on 24 September 2010; Ghana on 31 July 2012; Sierra Leone on 4 October 2010. Nigeria and Ghana ratified the Optional Protocol to the Convention on the same dates; Sierra Leone is yet to ratify it.
22. Constitution of the Federal Republic of Nigeria, 1999, as amended (Nigerian Constitution) sec 12; Constitution of the Republic of Ghana, 1992, as amended (Ghanaian Constitution) sec 75(2); Constitution of Sierra Leone Act 6 of 1991, as amended (Sierra Leone Constitution) proviso to sec 40(4).
26. For a more comprehensive overview of Nigerian legislation and policies relevant to disability, see NC Umeh and R Adeola ‘Country report: Nigeria’ (2013) African Disability Rights Yearbook 277-290.
28. The provisions regarding education, set out in sec 18, resort under Chapter II on Fundamental Objectives and Directive Principles of State Policy. By virtue of sec 6(6)(c) of the Constitution the right to education is therefore regarded as unenforceable in Nigerian courts.
41. In addition to the exclusion of children with intellectual disabilities in the Act itself, the Act furthermore has not yet been enacted in all states as required under the provisions on concurrent legislative powers in the Nigerian Constitution (Second Schedule, Part II). See eg M Ifijeh ‘UNICEF calls for adoption of Child Rights Acts in all states’ This Day 1 June 2017 https://www.thisdaylive.com/index.php/2017/06/01/unicef-calls-for-adoption-of-child-rights-acts-in-all-states/ (accessed 31 August 2018).
51. In the interests of brevity, legislation and policies that do not make any reference to reasonable accommodation (or measures that may amount to such accommodation) have not been listed here. The same approach is followed in Parts 3 and 4.
70. Universal Design for Learning (UDL), which is aimed atmaking learning accessible to more learners in inclusionary programmes, entails that with modifications of inter alia teaching and learning materials and methods of communication, a much wider range of learners can be included in regular classroom instruction: IEP Annex 2.
120. AR Thomas ‘Sierra Leone launches free school education’ Sierra Leone Telegraph 19 August 2018, https://www.thesierraleonetelegraph.com/sierra-leone-launches-free-school-education/ (accessed 23 August 2018).
122. Office of the UN High Commissioner for Human Rights ‘African states affirm the rights of persons with disabilities in a new landmark protocol’ 15 February 2018. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22661&LangID=E (accessed 23 August 2018).
- Benyam Dawit Mezmur
- Associate Professor of Law, Dullah Omar Institute for Constitutional Law, Governance and Human Rights, University of the Western Cape, South Africa
- LLB (Addis Ababa) LLM (Pretoria) LLD (Western Cape);
The views expressed here are the personal views of the writer
- BD Mezmur ‘A step to zero attacks: Reflections on the rights of persons with albinism through the lens of X v United Republic of Tanzania’ (2018) 6 African Disability Rights Yearbook 251-262
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No fewer than 25 African countries have been identified where attacks on and killings of persons with albinism have in recent years been perpetrated. These attacks and killings raise multiple human rights questions. The communication of X v United Republic of Tanzania decided by the Committee on the Rights of Persons with Disabilities concerned a complaint by a person with albinism, who was attacked. Issues such as ratione materia; remedies; legal aid; delays in solving cases; being equal before and under the law, and equal and effective legal protection of the law; torture and re-victimisation; as well as protection of the integrity of the person are the thematic issues covered in the article. In conclusion, the implications of the Mr X decision and how it should reverberate beyond the borders of Tanzania are addressed.
Human rights violations perpetrated against persons with albinism have recently received increased attention, among others, in the form of media reports, studies,1 and country visits by human rights mechanisms. The
human rights situation of persons with albinism has also been considered at the United Nations (UN) level. For instance, in 2015 the Human Rights Council appointed an Independent Expert on the Enjoyment of Human Rights by Persons with Albinism (Independent Expert).2
No fewer than 25 African countries have been identified where attacks on and killings of persons with albinism have in recent years been perpetrated.3 In this respect, the United Republic of Tanzania stands out, and it has even been referred to as ‘ground zero’ of the crisis of trafficking in persons with albinism.4 The reasons why Tanzania is distinctive include, first, the relatively high number of persons with albinism in this country5 and, second, the disturbing number of attacks and killings reported here.6 Third, while the government of Tanzania and other stakeholders have undertaken a number of initiatives to prevent and address the violations, the attacks have continued.
Various human rights mechanisms have engaged with the Tanzanian government on the rights of persons with albinism. For instance, after the consideration of its combined third to fifth periodic report under the Convention on the Rights of the Child (CRC) in 2015, the CRC Committee recommended a number of measures aimed at preventing and addressing violations of the rights of children with albinism.7 A similar recommendation is contained in the Concluding Observations issued by the CEDAW Committee in 2016.8
Moreover, the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) as well as the Independent Expert have conducted missions to Tanzania in 2015 and 2017 respectively.9 In 2017 the Committee that monitors the implementation of the Convention on the Rights of Persons with Disabilities (CRPD), the CRPD Committee, in its decision on an
After this introduction, a brief overview of the X v United Republic of Tanzania communication is provided, followed by a discussion of certain of the admissibility considerations. Subsequently, selected elements of the merits of the case are scrutinised. The conclusion highlights the possible implications of the case beyond Tanzania.
The communication of X v United Republic of Tanzania13 concerned a complaint by a person with albinism, Mr X, who was attacked with clubs by two strangers while collecting firewood.14 Once he had been rendered unconscious, the two strangers hacked off half of his left arm. The attack took place on 10 April 2010 and was reported to the police.15 Even though he had been a farmer before the attack, Mr X no longer is self-sufficient.
Mr X argued that his rights under the CRPD, in particular article 5 on equality and non-discrimination, had been violated. He reasoned that he had been discriminated against as a result of his albinism and that ‘the violence and the non-access to justice that he has suffered are generalised practices against people with albinism’.16 He further contended that his rights under article 15 to freedom from torture or cruel, inhuman or degrading treatment or punishment had been violated because the state party failed to take effective measures to protect him from the attacks and physical and mental abuse by non-state actors.17 The author also relied on article 17 on the protection of the integrity of the person ‘since he was exposed to barbaric forms of suffering’.18
Mr X, through his counsel, submitted that the communication should benefit from the exception to the requirement that all available domestic remedies must have been exhausted.19 First, counsel lamented that the relevant authorities had instituted no investigation.20 Second, because a private prosecution is not possible in Tanzania, it was submitted that there was no remedy in the domestic criminal law.21 As far as civil remedies are concerned, the CRPD Committee was informed that such litigation must be initiated through submission of an application to the High Court of the place of residence of the victim.22 In this instance, the High Court closest to Mr X’s place of residence was approximately 300 kilometers away, which had a financially prohibitive effect.23 The author furthermore cited a similar case where a constitutional petition brought by persons with albinism as victims had been unduly prolonged (since 2009) as a result of intermittent changes to the panel of judges.24
The state party marshalled a number of arguments to motivate why the complaint did not comply with the requirement of exhaustion of domestic remedies.25 It provided information that a criminal case had been opened and that the trial of a suspect in the attack on the author had commenced.26 However, the author testified in court that the accused person was not among his attackers and as a result the prosecutor subsequently withdrew the case. The state noted that ‘[t]he investigation of the attack against the applicant is ongoing’.27
The state further averred that the possibility for private prosecutions existed under section 99 of the Criminal Procedure Act, Cap 20.28 Another option available to the author was to submit a human rights application before the courts under the Basic Rights and Duties Enforcement Act (Basic Rights Act).
As far as the author’s limited financial resources were concerned, the state contended that Mr X should have approached a ‘number of legal aid centres and non-governmental organisations assisting indigents’,29 alternatively, the same advocate who brought this communication in Geneva should have assisted him in filing a constitutional case in Tanzania. 30
The Committee, finding in favour of the author and essentially dismissing all the state’s arguments on admissibility, noted two points. First, the primary responsibility to prosecute, investigate and punish is that of the state, and this is a non-delegable duty.31 Second, a civil claim and an award of compensation alone cannot be seen as an effective remedy. Moreover, given the unpredictable duration of similar cases under the Basic Rights Act, the Committee felt that it would be unreasonable to require the author to initiate additional proceedings.32 On the merits, the Committee agreed with the author on the alleged violations of articles 5, 15, and 17 (read with article 4) of the CRPD.
As mentioned above, the state relied on several arguments regarding inadmissibility, but the CRPD Committee was not swayed. This section examines certain of the issues in this matter associated with admissibility.
The question of whether persons with albinism fall within the definition or description of persons with disabilities is not a settled issue. For instance, in South Africa a debate has taken place about the applicability to persons with albinism of the Employment Equity Act of 1998.33 Moreover, there are examples of conflicting statements by individuals with albinism as well as their representative organisations on whether they prefer to be considered a person with a disability.34
While the ratione materiae competence of the CRPD Committee had not been questioned, the Committee nonetheless assigns a full paragraph to clarify why persons with albinism resort under the description of ‘persons with disabilities’ set out in article 1 of the CRPD.35 This deliberative approach taken by the Committee to reflect on why it believes it has such competence is commendable.36
The requirement to exhaust available domestic remedies before approaching an international process is a relatively well-settled rule of international law.37 Other UN treaty bodies as well as regional bodies and courts also require this.38
in addition to ordinary judicial and administrative appeals, authors must also avail themselves of all other judicial remedies, including constitutional complaints, to meet the requirement of exhaustion of all available domestic remedies, insofar as such remedies appear to be effective in the given case and are de facto available to an author. 39
The concept of ‘unreasonable delay’ as a basis for an exception40 to the requirement to exhaust local remedies is open to interpretation. What could be considered as prolonged in one context could be seen as a reasonable delay in another, and different domestic considerations and other possible variations are inevitable.
However, attempts to invoke economic or administrative reasons for the unreasonable delay of a case are often considered to be unconvincing by treaty bodies.41 For instance, in a number of cases, prime among which are Bernard Lubuto v Zambia42 and Lalith Rajapakse v Sri Lanka,43 the Human Rights Committee (HRC) did not accept the economic situation of the state party (being a developing country) or administrative constraints (a heavy work load at the High Court) to be acceptable reasons for the unreasonable delay of cases.
In the present instance, the CRPD Committee gave adequate weight to the fact that other persons with albinism who had been victimised and who had brought a case in March 2009 were still waiting to be heard at the time of the adoption of the decision by the Committee in 2017.44 This constituted a delay of eight years. Moreover, the difficulties faced by the High Court in composing a bench of three judges to decide on the merits of each application submitted under the Basic Rights Act would be difficult to justify. After all, it has been held that it is not merely an overall delay, but also a delay between various stages of the domestic court process45 (for example, from arrest to preliminary investigation, to trial, and to appeal, respectively) that could constitute unreasonable delay. It therefore is not surprising that the Committee concluded that it did not find it reasonable to expect Mr X ‘to initiate additional proceedings of unpredictable duration’ under the Basic Rights Act.46
The second component of the exception to the requirement of exhausting domestic remedies is that the latter is not expected where the domestic remedies are unlikely to bring effective relief.47 An appraisal of the effectiveness and availability of domestic remedies should not be done solely by looking into the formal remedies available in the domestic legal system. The CRPD Committee also has to take realistic account of the general legal, political, as well as social context in which these remedies may operate. For instance, the Tanzanian government has mostly been uncooperative towards calls by the Universal Periodic Review to address the challenges faced by persons with albinism in Tanzania.48 It may be argued that the recommendations of treaty bodies regarding the shortcomings in the investigation and prosecution of perpetrators of attacks, as outlined above,49 have similarly had limited effect. It then begs the question whether the recurrence of rights violations committed against persons with albinism in Tanzania has risen to a threshold where one may conclude that there is official tolerance by the state authorities which is of such a nature as to make domestic proceedings futile or ineffective.50
The main contention of the complainant, Mr X, was that he had been denied a remedy as the relevant authorities had not exercised due diligence in investigating and prosecuting the alleged perpetrators. In such a situation, the remedy being sought can only provide redress in respect of the applicant’s complaints and offer a reasonable prospect of success through the criminal justice process. As a result, the argument on the part of the state that the complainant should pursue civil proceedings or additional proceedings before the High Court under the Basic Rights Act could not stand.51
The availability as well as effectiveness of legal aid and the link to the exhaustion of local remedies are significant.52 In the case of Mr X, the state party challenged the assertion that the complainant did not have the financial resources to institute a civil case. It contended that there were a number of legal aid service providers, including non-governmental organisations (NGOs), that assist indigent persons to bring cases to court in Tanzania.53
This argument potentially raises a number of issues. First, the extent to which there is an obligation54 in international human rights law to provide legal aid to victims or witnesses, especially in civil cases, needs to be clarified.55 Second, it is not only the availability of a legal aid scheme that could be the subject of an inquiry, but also its accessibility and efficiency.56
An additional consideration requiring reflection in the provision of legal aid to persons in marginalised positions, including persons with albinism, is the manner in which a means test for legal aid is applied. For instance, it is argued that where family members may be complicit in attacks (or have another conflict of interest), a means test based on the total household income should not be applicable.57 Rather, the criteria should focus only on the income of the person applying for legal aid.
The challenges that Tanzania faces in providing legal aid and legal assistance have been brought into the spotlight in a recent case decided by the African Court on Human and Peoples’ Rights (African Court). The African Court’s sixth merits judgment involved 10 Kenyans who underwent an extra-legal rendition from Mozambique to Tanzania, allegedly for having been involved in robbing a bank in Tanzania. The African Court weighed, along with the seriousness of the offence the accused were charged with, Tanzania’s obligations under the African Charter on Human and Peoples’ Rights (African Charter), but also other instruments such as the International Covenant on Civil and Political Rights (ICCPR). It found a violation of article 7(1)(c) of the African Charter as ‘the applicants were entitled to legal aid at all stages of the proceedings’ and such assistance was not provided. 58
It is not clear why the CRPD Committee did not reflect on the state’s arguments regarding legal aid. This omission means that the opportunity to interrogate and clarify some of the issues raised above unfortunately has been missed for now.
Article 5(1) of the CRPD emphasises that all persons are equal before and under the law. They are also entitled, without any discrimination, to the equal protection and benefit of the law. Article 5(2) imposes far-reaching positive obligations on the state to prohibit disability-based discrimination and to guarantee to persons with disabilities equal and effective legal protection against discrimination. The main elements tying Mr X’s case to article 5 are the following: attacks for body parts exceptionally affecting persons with albinism; the absence of the effective investigation and prosecution of Mr X’s attackers; and the impunity that prevails more than eight years after the criminal attack.59 The CRPD Committee found a violation of article 5 of CRPD and concluded that the author had been a victim of direct discrimination based on his disability. Since direct discrimination includes ‘detrimental acts or omissions based on prohibited grounds’,60 the characterisation of Mr X’s treatment as ‘direct discrimination’ is appropriate.
The Committee further observed that the dereliction of duty on the part of the state to prevent and punish such acts put the victim and other persons with albinism ‘in a situation of particular vulnerability’61 which prevents them from living in society on an equal basis with others.62
Mr X argued that the attack against him constituted torture. However, the CRPD Committee, referring to the definition of torture in article 1 of the Convention against Torture (CAT), expressed the view that since the violence against the author was perpetrated by private individuals, these acts did not amount to ‘acts of torture’.63
However, this is not where the matter ends. The Committee underscored, with reference to ICCPR,64 the principle that the state obligation65 to prevent and punish the acts in article 15 of the CRPD applies to acts committed by both state and non-state actors.66
Furthermore, the Committee viewed the personal toll exacted on the author by the state party’s failure to ensure the speedy and effective prosecution of the suspected perpetrators as re-victimisation, which amounts to psychological torture and/or ill-treatment of Mr X. Based on these reasons, a violation of article 15 of the CRPD therefore was still found.67 It may be posited that the CRPD Committee should have paid closer attention to the link between the psychological torture and/or ill-treatment experienced by the author and the failure on the part of the state to provide him with information on the status of the investigation.
Article 17 captioned ‘Protecting the integrity of the person’ states that ‘[e]very person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others’. Its drafting history suggests that it is intimately associated with article 12 (legal capacity) and article 15 (torture), and issues such as forced interventions and consent, forced sterilisations, corrective surgeries and harmful practices.68
Among others, the CRPD Committee found the failure by the state to prevent acts of violence suffered by the complainant as a violation of article 17 read together with article 4. While article 4 on ‘General obligations’ is the second-longest provision in the CRPD, the obligation to take ‘other measures for the implementation of the rights recognised in the present
Convention’,69 to address discrimination,70 and the obligation ‘to ensure that public authorities and institutions act in conformity with the present Convention’71 seem more suited to the case at hand. The application of article 17 to the case of Mr X outside of the usual general issues (consent, forced sterilisation, and so forth) that have in the past been applied by the CRPD Committee is also a welcome move which protects the physical and mental integrity of persons with albinism.
A number of issues emanating from the case of Mr X may be the subject of debate. These include the Committee’s statement that ‘generally speaking, the state party has not adopted any measures to prevent this form of violence against persons with albinism and to protect them therefrom’.72 For instance, the government has established the National Committee on Violence against Women, Children and People with Albinism. 73
On a positive note, the time it took to deal with the communication from the time of submission to the decision is commendable. The communication was submitted on 23 June 2014 (initial submission) and the decision is dated 18 August 2017, a little over three years. Maintaining this level of relative efficiency in the future may be a challenge, especially with the growing number of pending communications before the CRPD Committee.74
The government of Tanzania has in recent years displayed an increased willingness to cooperate with international and regional mechanisms on the issue of the rights of persons with albinism. For example, the African Children’s Committee’s mission in 2015 was facilitated by the government, and the 2017 visit of the Independent Expert took place at the invitation of the government.75 Part of the litmus test for this improved commitment on the part of the government will be the extent and urgency of its implementation of the CRPD Committee’s recommendations76 in the communication of Mr X.
The implications of the Mr X decision should reverberate beyond the borders of Tanzania. In particular, the African state parties to the CRPD should draw from the jurisprudence in the case of Mr X to ensure that they adopt all appropriate legislative, administrative and other measures for the promotion and protection of the rights of persons with albinism. After all, success in part depends on the extent to and urgency with which the world manages to bring the no fewer than 25 African countries where attacks on persons with albinism have in recent years been perpetrated to zero.
1. See eg International Bar Association Waiting to disappear”: International and regional standards for the protection and promotion of the human rights of persons with albinism (2017); ‘Report of the Human Rights Council Advisory Committee on the study on the situation of human rights of persons living [sic] with albinism’, 10 February 2015, UN Doc A/HRC/28/75.
7. The state party was urged inter alia to expedite the investigation and prosecution of all cases of violence involving children with albinism so that no perpetrator can escape with impunity, and to provide the victims with rehabilitation and redress; ‘Concluding Observations Tanzania’ (2015) UN Doc CRC/C/TZA/CO/3-5 para 3.
9. See African Children’s Committee ‘Report on investigative mission on the situation of children with albinism in temporary holding shelters - Tanzania’ (2016); Report of the Independent Expert (n 5).
19. According to art 2(d) of the Optional Protocol, instances where the application of domestic remedies is unreasonably prolonged or unlikely to bring effective relief constitute an exception to the exhaustion of local remedies rule.
33. See CG Ngwena & JL Pretorius ‘Conceiving disability, and applying the constitutional test for fairness and justifiability: A commentary on IMATU v City of Cape Town’ (2007) 28 Industrial Law Journal 747.
34. See eg M Mswela ‘Does albinism fit within the legal definition of disability in the employment context: A comparative analysis of the judicial interpretation of disability under the SA and the US non-discrimination laws’ (2017) 21 Potchefstroom Electronic Law Journal 1 at 3.
38. See eg art 41(1)(c) of ICCPR and arts 2 & 5(2)(b) of the First Optional Protocol; arts 50 & 56(5) of the African Charter on Human and Peoples’ Rights; art 46 of the American Convention on Human Rights.
55. According to the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Principle G (Legal Aid and Legal Assistance), an accused person or a party to a civil case has the right to have free legal assistance where the interests of justice so require and the person lacks the means to pay for it.
68. M Keys ‘Article 17: Protecting the integrity of the person’ in VD Fina, R Cera & G Palmisano (eds) The United Nations Convention on the Rights of Persons with Disabilities: A commentary (2017) 327-330.