• Yvette Basson
  • Lecturer, University of the Western Cape
  • LLB, LLM, LLD

  • Y Basson ‘The right to an adequate standard of living in the Protocol to the African Charter on Human
    and Peoples’ (2019) 7 African Disability Rights Yearbook
    258-267 http://doi.org/10.29053/2413-7138/2019/v7a13
  • Download article in PDF

1 Introduction

The Protocol to the African Charter on Human and People’s Rights on the Rights of Persons with Disabilities in Africa (African Disability Protocol) was adopted by the African Union (AU) on 29 January 2018.1 The primary purpose of this instrument is to ‘promote, protect and ensure the full and equal enjoyment of all human and people’s rights by all persons with disabilities’ on the African continent.2 The Protocol is thus potentially an important step forward in the achievement of equal rights by persons with disabilities in Africa.

Although not yet in operation, the African Disability Protocol stands alongside the United Nations Convention on the Rights of Persons with Disabilities (CRPD)3 in setting out human-rights standards in respect of persons with disabilities in the African region. While there are clear differences in emphasis between the two instruments, several commonalities may also be noted. One of these areas of overlap is the inclusion of the right to an adequate standard of living, set out in article 28 of the CRPD and article 20 of the African Disability Protocol respectively. Both of these documents guarantee the recognition of this right and require of states parties to take positive steps towards its realisation. The fulfilment of this right takes on particular urgency in the African context, where the living standard of persons with disabilities is often reported to be dismal4 - a function of the disproportionately limited access to education, employment and other means of support they experience. In order to assess and compare the potential of the two human-rights instruments to address the current situation, this commentary accordingly compares the scope and content of the provisions relating to the right to an adequate standard of living and examines the obligations imposed by each instrument on states. It then provides an overview of the implementation mechanisms of the African Disability Protocol, followed by a number of conclusions.

2 General obligations of states parties

Both the CRPD and the African Disability Protocol impose general obligations on states parties related to the rights of persons with disabilities. The CRPD provides that:

States Parties undertake to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. 5

Thereafter, article 4 lists a number of ways in which this full realisation of human rights and fundamental rights should be achieved, inter alia through the adoption of legislative measures to recognise the rights of persons with disabilities,6 the abolition of discriminatory laws and policies,7 and the development of universally designed goods, services, equipment and facilities for use by persons with disabilities. 8

The African Disability Protocol in turn enjoins states parties to:

[T]ake appropriate and effective measures, including policy, legislative, administrative, institutional and budgetary steps, to ensure, respect, promote, protect and fulfil the rights and dignity of persons with disabilities, without discrimination on the basis of disability.9

Further, article 4 of the Protocol also confirms that states parties must take steps to mainstream disability in legislation and policy,10 abolish discriminatory policies and laws11 and criminalise and campaign against harmful practices against persons with disabilities. 12

On a first reading, these general ‘operational’ obligations appear very similar. Upon closer inspection, the inclusion of certain steps to be taken by states parties in the African Disability Protocol shows a clear intent to contextualise the realisation of the rights of persons with disabilities on the African continent.13 For example, it explicitly mentions that states parties must take budgetary steps to ensure the full implementation of the Protocol,14 whereas the CRPD does not make express mention of such a requirement. Many countries in Africa do not prioritise spending on socio-economic issues, which makes the duty to allocate resources to the implementation of the Protocol particularly significant.15

This difference in emphasis is the first of many examples where the language between the two instruments differ in subtle, yet important ways. The African Disability Protocol has been drafted bearing in mind the unique experience of persons with disabilities on the African continent16 and therefore locates certain rights in this context to a greater extent than the CRPD does.17

3 The right to an adequate standard of living

3.1 Interpreting the provisions of the African Disability Protocol and the CRPD

As noted above, the right to an adequate standard of living of persons with disabilities is provided for in article 20 of the African Disability Protocol and article 28 of the CRPD respectively.

Article 20(1) provides that:

Persons with disabilities have the right to an adequate standard of living for themselves and their families, including adequate food, access to safe drinking water, housing, sanitation and clothing, to the continuous improvement of living conditions and to social protection.

It thus confirms the rights to an adequate standard of living and the related right to social protection. It also provides some insight as to the scope and content of the right to an adequate standard of living by listing certain components of this right, such as housing, adequate food and access to safe drinking water.

Article 28(1) of the CRPD sets out the following:

States Parties recognise the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realisation of this right without discrimination on the basis of disability.

The proper implementation of the right to an adequate standard of living may contribute towards persons with disabilities participating in society fully and equally with other people on a daily basis.18 In terms of the obligations created by article 28(1) of the CRPD, this means that states parties have a duty to ensure that persons with disabilities are provided with access to the means to ensure such full and equal participation. In doing so, states parties must make use of the measures listed in article 4 as discussed above. Similarly, article 20(1) of the African Disability Protocol attempts to ensure proper emphasis on the right to an adequate standard of living of persons with disabilities by incorporating specific obligations that are complemented by the general ones set out in article 4.

Article 20(1) provides that an adequate standard of living inter alia includes access to safe drinking water and sanitation. In this regard, the African Disability Protocol provides more information on what is required, since the CRPD provides only for the access to clean water services by persons with disabilities.19 The express inclusion of these two elements, which have historically proved to be socially and politically critical,20 reminds us that many persons with disabilities in Africa do not yet have access to these basic necessities (which may not be as urgent a priority in so-called ‘developed’ countries that are states parties to the CRPD).21 Access to safe drinking water and sanitation should therefore be emphasised in the ‘continuous improvement of living conditions’ of persons with disabilities in Africa.22

The interpretation of the phrase ‘adequate standard of living’ leads to two questions: what is adequate and which elements are essential for a living standard to be regarded as adequate? In ensuring such an adequate standard of living, states parties may be expected to provide persons with disabilities with access to a range of goods and services.23 However, it is clear that an adequate standard of living consists of more than simply having access to the necessities specifically mentioned in this article. The realisation of the right to an adequate standard of living therefore demands more from states parties than merely making these requirements available.24 An exact list of the necessities contributing to the achievement of an adequate standard of living for persons with disabilities cannot readily be compiled, because the right is highly subjective and what is required must be determined on a case-by-case basis.25 However, it is argued here that certain goods and services, namely those expressly enumerated in article 20(1), can clearly be considered part of the right to an adequate standard of living for persons with disabilities. This list should therefore not be seen as an exhaustive one, but rather as a guideline for the provision of certain minimum necessities. In terms of what can be considered ‘adequate’, this can only be determined on a case-by-case basis, since the needs of individual persons with disabilities may differ greatly.26

3.2 Duties of states parties to ensure the right to an adequate standard of living

Both the African Disability Protocol and the CRPD impose clear obligations on states parties in the realisation of the right to an adequate standard of living. Article 20(1), read with article 20(2),27 provides that states parties must provide certain goods and services in the realisation of the right. Similarly, article 28(1) of the CRPD provides that: ‘States Parties ... shall take appropriate steps to safeguard and promote the realisation of this right’.28 It is generally accepted that the guarantee or recognition of a particular right by a state party gives rise to obligations to respect, protect and fulfil the right concerned.29 Second, the general obligations incorporated in article 4 of the Protocol are also applicable to the right to an adequate standard of living of persons with disabilities.

Article 20(1) further calls for the ‘continuous improvement of living conditions’ of persons with disabilities. This commitment is also found in article 28(1) of the CRPD, although, as mentioned previously, the obligation to continuously improve living conditions on states parties is clearer in the latter. Essentially, this confirms that states parties have an obligation to ensure the progressive realisation of the right to an adequate standard of living for persons with disabilities. This is indicated by the constituent elements, such as adequate food and housing. As explained by the UN Committee on Economic, Social and Cultural Rights, ‘progressive realisation’ does not require that a right be fully implemented and realised immediately, but rather that states parties must ensure the realisation of the right over time.30 States parties must therefore evaluate and monitor the standard of living of persons with disabilities within their territory and, importantly, must endeavour to constantly improve on that position.31

At the same time, it is noteworthy that the right to an adequate standard of living is interwoven with a prohibition of disability-based discrimination: article 20(2) contemplates the full enjoyment by persons with disabilities of this right, ‘on the basis of equality’. Similarly, article 28(1) of the CRPD makes reference to safeguarding and promotion of this right ‘without discrimination on the basis of disability’. Addressing disability-based discrimination is an obligation of immediate implementation, and therefore not subject to progressive realisation. 32

3.3 Related rights

The right to an adequate standard of living cannot be implemented independently of other rights. This is evidenced by the numerous links to and overlaps with other rights in the CRPD as well as the African Disability Protocol. Significantly, both documents include a reference to the indivisibility and interrelatedness of all human rights in their respective Preambles.

The right to social protection is an example of the overlap of the right to an adequate standard of living with other rights. The inclusion of the right to social protection in article 20 of the African Disability Protocol and article 28 of the CRPD is a clear indication that the two rights are inter-connected and that their content may be similar. For example, both articles incorporate the need for the provision of housing to persons with disabilities in the right to an adequate standard of living,33 and the right to social protection has historically included this as well. 34

Another significant link can be found between the right to an adequate standard of living and the right to life in the community as provided for in article 14 of the African Disability Protocol and article 19 of the CRPD. According to article 14(1), ‘[e]very person with a disability has the right to live in the community with choices on an equal basis with others’. Article 14(2) requires states parties to provide certain goods and services in the realisation of this right. These include rehabilitation services,35 which in turn overlap with article 18 which specifically guarantees the right to rehabilitation services. It is submitted here that these facilities and services should therefore be added to those listed in article 20 as essential for an adequate standard of living.

The right to an adequate standard of living should further be interpreted with reference to the inherent dignity of persons with disabilities, which constitutes one of the general principles of the CRPD.36 It is understood that an adequate standard of living can only be achieved if the person or persons in question are able to live a life of dignity through having their basic needs met.37

Other rights guaranteed in the Protocol that overlap with the right to an adequate standard of living include the right to be protected from exploitation, violence and abuse in various contexts (articles 9(2)(c) and 10(2)(d)). Since persons with disabilities are substantially more likely to experience violence (including from those who are involved in their daily care),38 this right is particularly important in ensuring equal participation in society. The right to barrier-free access to the physical environment (article 15(1)),39 the right to education (article 16) and the right to decent work (article 19) all tie in with employment opportunities in the workplace on an equal basis with persons without disabilities. The right to participate in political and public life (article 21) also contributes towards full participation in society by ensuring that the voices of persons with disabilities are heard when making decisions relating to governance. 40

4 Implementation of the African Disability Protocol

The Protocol sets out a number of measures aimed at implementation and enforcement.41 First, states parties are required to show in their periodic reports42 to the African Commission on Human and Peoples’ Rights (ACHPR) which measures they have taken towards the full realisation of the rights recognised in the Protocol.43 Mute and Kalekye explain that the adoption of the Protocol may have a significant impact on the approach of the ACHPR to disability rights in its examination of periodic state reports: they note that the lack of a normative framework has until now necessitated a consideration of ‘generalities’ rather than a focus on specific aspects such as legal capacity.44 This is accordingly one area where the advent of the Protocol may yield visibly positive results.

Further, the ACHPR will have the mandate to interpret the provisions of the Protocol45 and may refer matters of interpretation and enforcement to the African Court on Human and Peoples’ Rights.46 This court will have the mandate to hear disputes arising from the implementation of the Protocol.47

At the time of writing, five countries have signed the Protocol and none have ratified it.48 The Protocol will only acquire legal effect once 15 AU member states have ratified it, which means that the Protocol is not yet binding on any of the 54 member states.49 However, this instrument is complementary to the CRPD, which has been signed and ratified by the majority of AU member states.50 The CRPD is also expressly referred to in the Preamble of the African Disability Protocol as an instrument that confirms the rights of persons with disabilities. The lack of ratification to date of the Protocol should thus not necessarily be seen as an absence of commitment to the rights confirmed therein; although the reasons for the lack of ratification of the Protocol are unclear, the relatively short period since its adoption must be borne in mind.

5 Conclusion

From the foregoing discussion, it becomes apparent that the importance of the right to an adequate standard of living cannot be overemphasised. Not only does the right to an adequate standard of living have a direct impact on the dignity of persons with disabilities, but the ideal of full and equal participation in society is wholly dependent on the goods and services included in the scope and content of this right. Unfortunately, the enforcement mechanisms provided for in the African Disability Protocol remain only theoretical at this stage, since there has been no ratification of the instrument to date.

Until such time as the African Disability Protocol is ratified by AU member states, the reporting and monitoring mechanisms in the CRPD are the only way to measure the extent of implementation of the right to an adequate standard of living in member states that have ratified the CRPD. This is not an ideal situation - as mentioned previously, the African Disability Protocol has been drafted with the unique socio-economic and other challenges present in Africa in mind. This is evident in the unique details added to the African Disability Protocol that are lacking in the CRPD. The African Disability Protocol is therefore the ideal instrument to make strides in realising the right to an adequate standard of living for persons in Africa.

 

 


1. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, adopted on 29 January 2018 https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-persons-disabilities-africa (accessed 3 September 2019). The Protocol was adopted in terms of art 66 of the African Charter on Human and Peoples’ Rights (African Charter), which allows for the acceptance of additional protocols to supplement its provisions.

2. Art 2 African Disability Protocol.

3. GA Res A/RES/61/06, adopted on 13 December 2006, entered into force on 3 May 2008.

4. See in this regard eg LO Oyaro ‘Africa at crossroads: The United Nations Convention on the Rights of Persons with Disabilities’ (2015) 30 American University International Law Review 347 352-353.

5. Art 4 CRPD.

6. Art 4(1)(a CRPD.

7. Art 4(1)(b) CRPD.

8. Art 4(1)(f) CRPD.

9. Art 4 African Disability Protocol.

10. Art 4(b) African Disability Protocol.

11. Art 4(c) African Disability Protocol.

12. Art 4(d) African Disability Protocol.

13. For a helpful overview of the drafting history of the Protocol, see LM Mute & E Kalekye ‘An appraisal of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’ (2016) East African Law Journal 68 70-76.

14. Art 4 African Disability Protocol.

15. A Odusola et al (eds) Income inequality trends in Sub-Saharan Africa (2017) 179.

16. This is evident from the Preamble to the Protocol, which makes reference to ‘the lack of a substantive binding African normative and institutional framework for ensuring, protecting, and promoting the rights of persons with disabilities’ and the need to establish such a framework through the African Union.

17. Examples include: the recognition in the Preamble of the maiming or killing of persons with albinism as a worrying phenomenon the continent; the definitions of ‘harmful practices’ and ‘ritual killings’ are to be read with art 11, which addresses the duties of states parties in respect of eradication of harmful practices committed against persons with disabilities; and the undertaking to protect (amongst others) closely related family members, children and caregivers against discrimination based on their association with persons with disabilities (art 5(2)(c) Protocol).

18. Icelandic Human Rights Centre ‘The right to an adequate standard of living’ http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/substantive-human-rights/the-right-to-an-adequate-standard-of-living (accessed 3 September 2019).

19. Art 28(2) CRPD.

20. BS Levy & VW Sidel ‘Water rights and water fights: Preventing and resolving conflicts before they boil over’ (2011) 101 American Journal of Public Health 779.

21. Goal 6 of the United Nations Development Programme’s Sustainable Development Goals highlights the challenges faced in providing access to safe drinking water and sanitation, see http://www.africa.undp.org/content/rba/en/home/sustainable-development-goals/goal-6-clean-water-and-sanitation.html (accessed 3 September 2019).

22. Art 20(1). See also discussion below.

23. Y Wiid ‘The right to social security of persons with disabilities in South Africa’ LLD thesis, University of the Western Cape, 2015 152.

24. D Moeckli & S Shah (eds) International human rights law (2010) 196.

25. As above.

26. The Committee on Economic, Social and Cultural Rights (Committee on ESCR) has provided guidance in determining ‘adequacy’ in the context of the right to housing, which may also be applicable more broadly: see Committee on CESCR General Comment 4: The right to adequate housing (1991) UN Doc E/1992/23 dated 13 December 1991 para 8.

27. Art 20(1)-(2) African Disability Protocol.

28. Emphasis added.

29. The Committee on ESCR first adopted the following analysis of state duties: ‘The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil the right.’ (Emphasis added): Committee on ESCR General Comment 14: The right to the highest attainable standard of health (2000) UN Doc E/C.12/2000/4 dated 11 August 2000 para 33. This approach has subsequently been applied extensively in respect of a range of rights.

30. Committee on ESCR General Comment 3: The nature of states parties’ obligations (1990) UN Doc E/1991/23 dated 14 December 1990 para 9; see also Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities https://www.un.org/development/desa/disabilities/resources/handbook-for-parliamentarians -on-the-convention-on-the-rights-of-persons-with-disabilities/chapter-two-the-conven tion-in-detail-4.html (accessed 3 September 2019).

31. The Committee on ESCR has further noted that states parties should move ‘as expeditiously and effectively as possible’ towards the full realisation of the right concerned and that deliberately retrogressive measures must generally be avoided - see General Comment 3 (n 30 above) para 9.

32. See Committee on the Rights of Persons with Disabilities (CRPD Committee) General Comment 6: Equality and non-discrimination (2018) UN Doc CRPD/C/GC/6 dated 26 April 2018 para 12.

33. Art 20(1) African Disability Protocol and art 28(1) CRPD both include the right to housing in the right to an adequate standard of living.

34. Art 28(2) CRPD. See also the International Labour Organisation ‘Social protection systems for and to prevent homelessness and facilitate access to adequate housing’ (2019) https://www.un.org/development/desa/dspd/wp-content/uploads/sites/22/2019/06/ILO-Geneva-SP-and-homelessness_220519-DRAFT.pdf (accessed on 4/12/2019).

35. Art 14(20(e).

36. See art 3(a) CRPD, which closely corresponds with art 3(a) African Disability Protocol.

37. Committee on Economic Social and Cultural Rights General Comment 12: The right to adequate food (1999) dated 12 May 1999 (item 4). See also Y Wiid ‘The right to social security of persons with disabilities in South Africa’ LLD thesis, University of the Western Cape, 2015 150.

38. World Health Organisation ‘Violence against adults and children with disabilities’ https://www.who.int/disabilities/violence/en/ (accessed 4 December 2019).

39. Significantly, art 15(2)(a) of the Protocol, which sets out the measures to be taken by states parties to ‘facilitate full enjoyment’ of this right, stipulates that such measures should apply to rural as well as urban settings.

40. JC Bricout & DB Gray ‘Community receptivity: The ecology of disabled persons’ participation in the physical, political and social environments’ (2006) 8 Scandinavian Journal of Disability Research (2006)1.

41. Art 34 African Disability Protocol.

42. In terms of art 62 of the African Charter.

43. Art 34(1) African Disability Protocol.

44. Mute & Kalekye (n 13 above) 78.

45. Art 34(3) African Disability Protocol. The arguments against the adoption of an African regional instrument on disability rights in the form of a protocol to the African Charter included the concerns first that African human rights institutions, such as the ACHPR, have not historically paid a great deal of attention to the promotion of the rights of persons with disabilities and second, that these institutions are already under-resourced and overburdened and would therefore find it difficult to monitor the implementation. See generally Oyaro (n 4 above) 359-360, 367.

46. Art 34(4) African Disability Protocol.

47. Art 34(5) African Disability Protocol.

48. African Union ‘Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa - Status list’ https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-persons-disabilities-africa (accessed 3 September 2019).

49. Article 38(1) African Disability Protocol.

50. United Nations ‘Convention on the Rights of Persons with Disabilities’ https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4 &clang=_en (accessed 3 September 2019).

  • Anastasia Holoboff
  • Senior Legal Advisor, Women Enabled International
  • BFA (NYU), JD (Cardozo)
  • Suzannah Phillips
  • Deputy Director, Women Enabled International
  • BA (Harvard), JD (Columbia)

  • A Holoboff & S Phillips ‘Leveraging the international human rights system to advance local change for
    South African women with disabilities’ (2019) 7 African Disability Rights Yearbook 247-257 
    http://doi.org/10.29053/2413-7138/2019/v7a12
  • Download article in PDF

1 Introduction

Forty-nine African countries have to date ratified the Convention on the Rights of Persons with Disabilities (CRPD).1 While the high rate of ratification is something to be celebrated, holding each state to account for their obligations under the treaty requires engagement and diligence on the part of civil society. The United Nations (UN) treaty monitoring body system is an essential mechanism to hold states to account for their duties under the treaties each state has ratified.

Every state that has ratified a human rights treaty periodically undergoes a ‘review’ by the treaty-monitoring body to assess whether it is complying with its obligations under the treaty, which results in recommendations 2 (called ‘concluding observations’) on what the state should do to better implement the treaty. Civil society has an important role to play in this process: every UN treaty body provides space for civil society to submit written information - often colloquially referred to as ‘shadow reports’ - to supplement the information shared by the government. 3 Providing this supplemental information is crucial to fill in any gaps or to correct misinformation in the state’s own report, as treaty-body experts seldom have the capacity to do any independent research on an issue.

Engagement in the shadow-reporting process is one of the most important tools for civil society to use to push for the implementation of international human rights law in a way that is responsive to the specific human rights concerns of a given community, such as women with disabilities. Women with disabilities make up one in five women globally.4 Across the world women with diverse disabilities face increased rates of violence,5 routine violations of their sexual and reproductive health and rights,6 and enduring poverty.7 Yet, the majority of human rights treaties do not include articles addressing disability or gender and most state reports to treaty bodies overlook women with disabilities when discussing the country’s human rights situation. Thus, utilising the shadow-reporting system to inform the treaty bodies about the lived experiences of women with disabilities is an essential mechanism to ensure concluding observations issued by the treaty bodies address issues of concern for women with disabilities. Doing so is a vitally important means of building both legal and cultural norms at the international and domestic levels that include women with disabilities and their issues.

This commentary will provide insight into effective civil society engagement in this process using the experience of a coalition of civil society organisations in the 2018 country review of South Africa by the Committee on the Rights of Persons with Disabilities (CRPD Committee), the expert body charged with monitoring compliance with this treaty. Using Women Enabled International’s experience working with a coalition of South African disability and human rights organisations to illuminate the process, this commentary will further examine the strategic considerations during the shadow reporting process and address the importance of drawing on successful results to support domestic advocacy.8

2 South African shadow reports to the CRPD Committee

2.1 Background

South Africa ratified the CRPD in 2007.9 Accordingly in 2018 South Africa came up for its first periodic review before the CRPD Committee,10 to assess how well it was complying with its obligations under the CRPD.11 Seeking to leverage this opportunity to address the pervasive intersectional discrimination facing women and girls with disabilities12 in South Africa, local civil society organisations Cape Mental Health, the Centre for Human Rights at the University of Pretoria, Epilepsy South Africa, Khuluma Family Counselling, Lawyers for Human Rights, Port Elizabeth Mental Health, SA Federation for Mental Health, the Teddy Bear Clinic for Abused Children and Professor Helene Combrinck from North-West University,13 with support from international human rights organisation Women Enabled International, decided to engage in the shadow-reporting process. Through this engagement we aimed to bring to the CRPD Committee’s attention the experiences of South African women with disabilities and South Africa’s failure to fulfil its duties towards them under the CRPD.

Similar to women with disabilities around the world, South African women with disabilities are discriminated against and subjected to harmful stereotypes based on both their gender and disability. South African women with disabilities, particularly black women, women in rural areas, and women with intellectual or psychosocial disabilities are regularly discriminated against and denied access to justice or essential support, services, and accommodations necessary to uphold their rights and live independent lives free from discrimination and violence.14 All women in South Africa face an extremely high risk of gender-based violence15 and for women with disabilities the risk of violence is even greater, particularly the risk of sexual violence.16 South African women with disabilities also face unique forms of discrimination in healthcare settings, especially when accessing sexual and reproductive health information and services, frequently finding that these services are unavailable, unaffordable, inaccessible, or discriminatory.17

Our coalition submitted two shadow reports to the CRPD Committee throughout the review process - one submission to the Committee’s pre-sessional working group18 to inform the list of issues19 and one in advance of the session in which the state report was reviewed.20 Given the severe challenges faced by South African women with disabilities, and based on the expertise of coalition members in these areas, the coalition agreed to focus the shadow reports on the ways in which these issues play out in violation of South Africa’s obligations to respect, protect, and fulfil the rights protected under the CRPD. Both reports contained three categories of information: factual information pertaining to key issues facing women with disabilities (for example global and local statistics, domestic laws and policies, case studies); analysis of relevant international human rights legal standards; and suggested questions and recommendations.

Each report addressed the following key issues: first, how South Africa fails to fully recognise and take action to address the multiple forms of discrimination that women with disabilities experience in South Africa in violation of its obligations under article 6 of the CRPD (women with disabilities).21 Second, the ways in which South African women with disabilities cannot access justice on an equal basis with others due to a range of barriers, both physical and legislative, in violation of article 13 of the CRPD (access to justice).22 Third, South Africa’s failure to address the exceedingly high levels of gender-based violence experienced by women with disabilities through exercising due diligence to prevent, protect against, investigate, prosecute, and punish gender-based violence, while ensuring that women and girls have access to appropriate support services when they experience such violence, in violation of articles 15 (freedom from torture or cruel, inhuman or degrading treatment or punishment) and 16 (freedom from exploitation, violence and abuse) of the CRPD.23 Fourth, South Africa’s failure to fulfil its duties under both articles 23 (respect for home and the family) and 25 (health),24 as South African women with disabilities do not receive sufficient sexual and reproductive health and rights education and information; lack access to accessible health facilities; and face discrimination in the healthcare settings where they do have access. 25 Lastly, the reports addressed the lack of data collection disaggregated by disability and gender in violation of South Africa’s obligations under article 31 (statistics and data).26

2.2 Selecting a coalition

A key strategic consideration in submitting written information to a treaty body will be whether an organisation wants to submit information alone or in coalition with other organisations, and will depend on a range of factors, including each coalition member’s mandate and the issues to be raised. Coalition shadow reports can be effective in demonstrating that the content of the report is not just the position of one organisation, but that of several, lending greater authority to the information presented. In addition, because treaty-body experts are often inundated with a large amount of information during the session, coalition shadow reports have the benefit of reducing the number of reports the committee members receive, allowing them to focus more on the content of each report.

Moreover, coalition reports allow each non-governmental organisation (NGO) to contribute according to its specific expertise, strengthening the overall impact of the advocacy. For the South Africa CRPD Committee reports, our coalition was formed to reflect members of civil society across both the disability rights and mainstream human rights fields in South Africa. Each person brought expertise in different aspects of the lived experience of South African women with diverse disabilities and was able to contribute research or anecdotal evidence from their practices into the reports. Women Enabled International, as an international NGO, provided the expertise on the international human rights treaty body processes, international law, and issues facing women with disabilities generally. By working together, we were able to emphasise to the CRPD Committee the particularly acute situation of women with disabilities in South Africa.

2.3 Engagement in the list of issues process: Setting the agenda

There are typically two stages during a treaty body’s review of a state when civil society can submit a shadow report to inform the process. Treaty bodies typically send states a List of Issues, either before or after a state has submitted its report to the treaty body.27 The List of Issues focuses the agenda for the state review, indicating the topics that the treaty body is most interested to focus on during the in-person dialogue. Civil society generally has the opportunity to submit information to inform the topics on the List of Issues (stage 1). States will then reply to the List of Issues, and civil society has another opportunity to provide information following the state’s response (stage 2).

Choosing to submit a report at the List of Issues stage is often crucial to ensuring that the treaty body addresses one’s priority issues, as the List of Issues determines in large part the focus of the dialogue28 during the state’s review. By submitting a shadow report to inform the development of the List of Issues, civil society can be more successful at influencing the treaty body to address their issues in the dialogue between the treaty body and the state and in the concluding observations. Failure to have one’s issues included on the List of Issues does not preclude one from including those issues in subsequent shadow reports, but it can make it more of a challenge to obtain concluding observations on that issue.

To ensure that the CRPD Committee considered the unique issues facing South African women with disabilities as they related not only to article 6 (women with disabilities), but other CRPD articles as well, our coalition submitted a shadow report to the CRPD Committee pre-sessional working group for South Africa that was developing the List of Issues. Our report addressed the key issues affecting South African women with disabilities and was primarily based on published statistics and research. Successful reports are tailored to include information and questions based on one’s ultimate advocacy goals. At this stage of the review process, the objective is to encourage the treaty body to interrogate what the state is doing to address the issues raised in the submission; accordingly, our coalition’s submission included suggested questions for the List of Issues. For instance, ‘What steps is South Africa taking to ensure the expansion of current gender-based violence services to include women with disabilities (for example, Thuthuzela Care Centres)?’

This strategy proved effective, as the CRPD Committee’s List of Issues for South Africa contained 15 out of the 37 questions pertaining to women with disabilities or a related issue highlighted in our coalition’s report.29 The majority of our coalition’s questions were reflected in one way or another in the List of Issues, including some specific questions about services and trainings relating to gender-based violence. For example:

Please provide information about: ... (b) Access by women and girls with disabilities to the Thuthuzela Care Centres, which provide support services for survivors of sexual offences and domestic violence, and to programmes providing psychosocial redress and legal aid for women with disabilities who are exposed to gender-based violence.30

2.4 Engagement in the state party review: Session shadow report

After the state replies to the List of Issues, and before the session at which the treaty body will have a dialogue with the state party, there is the second opportunity for civil society to submit additional information or submit an initial report. Strategically if an NGO submitted information for the List of Issues, this stage presents an opportunity for civil society to provide new, updated, or expanded information pertaining to the List of Issues and responding to the state’s report. It is advisable to avoid repetition of information contained in the first report unless necessary to emphasise an important point.

Accordingly, our coalition used this second opportunity to expand the coalition to include other South African disability-service providers who could provide further information about the lived experiences of South African women with disabilities. As a result, the second report contained anecdotal reports and information from mental health service providers in several provinces across South Africa and additional research to respond to the specific List of Issues released by the CRPD Committee as well as South Africa’s state report. Moreover, where the objective of the first report was to inform the List of Issues, this second report sought to inform the specific recommendations the CRPD Committee would make in its concluding observations. Accordingly, the second report contained suggested questions for CRPD Committee members to pose to South Africa during their in-person dialogue and offered specific recommendations for concluding observations. Given the demands on committee members’ time, providing advance questions and suggested language can be useful for committee members and an effective strategy for ensuring one’s issues are addressed.

For example, our coalition’s second report encouraged the CRPD Committee to ask South Africa what steps it was taking to respect the legal capacity of women with disabilities. We also requested that the Committee specifically recommend the amendment of a South African law that allowed third-parties to consent to sterilisation and abortion on behalf of a woman with a disability. This again proved to be a successful technique as this recommendation was reflected in the CRPD Committee’s concluding observations. Specifically, the Committee called on South Africa to:

Revise the Sterilization Act (1998) and Choice on Termination of Pregnancy Act (1996), and remove provisions allowing for sterilization and termination of pregnancy under a substitute decision-making regime, and bring them into line with general comment No 1. 31

2.5 In-person session advocacy

Following the shadow-reporting process, the treaty body will engage in an interactive, in-person dialogue with the state party’s delegation informed by the state report and any civil society reports received. There is an opportunity during this in-person session in Geneva, Switzerland for civil society to engage further in both formal and informal ways. Many treaty bodies have formalised opportunities for civil society to brief them either before or during the session through country briefings open to civil society.32 It is advisable (and often required) that organisations contact the secretariat of the treaty body prior to the session to indicate a desire to participate in a country briefing.

In addition to the country briefings, civil society present in Geneva can engage in informal conversations with individual treaty-body experts during breaks in the session. These sessions may also present advocates with the opportunity to communicate directly with the state delegation, which can be useful for subsequent advocacy to ensure implementation of the concluding observations. It is especially helpful to seek out the expert(s) who have been assigned as rapporteur33 for the country in question and/or the expert(s) who are asking questions around the relevant treaty provisions. Other advocacy strategies to consider are requesting the opportunity to hold a private thematic briefing with the treaty body during its session or holding a ‘side event’ during the session to raise key issues informally.

Following submission of our coalition’s shadow reports, Women Enabled International sent an email to key CRPD Committee members notifying them of the reports and highlighting important issues. Furthermore, while no coalition members were able to be present for the treaty-body session when South Africa was being reviewed, Women Enabled International was present during another country review during the same session and had the opportunity to meet informally with the rapporteur for South Africa and advocate for the five key issues highlighted in our coalition’s reports.

3 Concluding observations

The CRPD Committee published its concluding observations on the initial report of South Africa on 23 October 2018.34 The principal areas of concern and recommendations to South Africa included 33 references to women with disabilities or gender.

Every issue raised in our coalition’s reports was reflected in some manner in the concluding observations. Each of the five key issues that our coalition highlighted in the reports - multiple and intersecting discrimination faced by South African women with disabilities; access to justice; gender-based violence; sexual and reproductive health and rights, including forced sterilisation and forced abortion; and the lack of disaggregated data - was reflected in the final concluding observations. This success underscores that strategic engagement in the state-reporting process can play an important role in translating the often opaque language of international human rights treaties into concrete suggestions for strengthening human rights at the domestic level.

4 Conclusion

The shadow-reporting process is a critical component of the international human rights system and necessary to ensure that the rights enumerated in international human rights treaties like the CRPD lead to long-term change for individuals living in the countries that have ratified treaties.

It is incumbent on anyone who engages in the shadow reporting process to commit to advocacy aimed at ensuring implementation of the concluding observations at the country level. Implementation will vary on the country context and is most effective when considered as part of initial shadow-reporting strategy. When contemplating implementation strategies effective starting points can include developing or growing a coalition to coordinate implementation advocacy based on the concluding observations; engaging with local and national government, especially those officials who were engaged with the review process; and raising awareness through media strategies. Regardless of the strategy chosen, engagement of people with disabilities is essential for both long-term change and realisation of the promise made by the CRPD.

Particularly for marginalised groups, such as women with disabilities, using the international human rights system to raise awareness about priority issues and increase pressure on one’s government to intensify its capacity and fulfil its obligations towards marginalised groups can be an especially effective technique. Following our successful engagement with the CRPD Committee’s review of South Africa, our South African coalition members are now taking stock of how best to promote the concluding observations to effect long-term change for women with disabilities in South Africa.

 

 


2. See art 36(1) CRPD.

3. The Committee on the Rights of Persons with Disabilities (CRPD Committee) makes provision for the participation of civil society organisations in its consideration of state reports: see generally CRPD Committee ‘Guidelines on the participation of disabled persons’ organisations and civil society organisations in the work of the Committee’ CRPD/C/11/2 (14 May 2014) Annex II (Guidelines Civil Society).

4. World Health Organisation and World Bank World report on disability (2011) 28.

5. Women Enabled International ‘Women Enabled International Facts - The right of women and girls with disabilities to be free from gender-based violence’ (undated) https://www.womenenabled.org/pdfs/Women%20Enabled%20International%20Fact s%20-%20The%20Right%20of%20Women%20and%20Girls%20with%20Disabilities% 20to%20be%20Free%20from%20Gender-Based%20Violence%20-%20ENGLISH%20-%20FINAL.pdf?pdf=GBVEnglish (accessed 20 November 2019) . See eg D Šimonović (Special Rapporteur on violence against women, its causes and consequences) ‘Report of the Special Rapporteur on violence against women, its causes and consequences on her mission to South Africa’ UN Doc A/HRC/32/42/Add.2 (14 June 2016) paras 9-10; Management Sciences for Health & UNFPA ‘We Decide - Young persons with disabilities: Equal rights and a life free of violence’ (May 2016); T Meer & H Combrinck ‘Invisible intersections: Understanding the complex stigmatisation of women with intellectual disabilities in their vulnerability to gender-based violence’ (2015) 29 Agenda 29; E Naidu et al ‘On the margins: Violence against women with disabilities’ Centre for the Study of Violence and Reconciliation 35 (2005) http://www.iiav.nl/epublications/2005/On_the_Margins.Pdf (accessed 20 November 2019) .

6. Women Enabled International ‘Women Enabled International Facts - Sexual and reproductive health and rights of women and girls with disabilities’ (undated) https://www.womenenabled.org/pdfs/Women%20Enabled%20International%20Facts%20-% 20Sexual%20and%20Reproductive%20Health%20and%20Rights%20of%20Women%20and%20Girls%20with%20Disabilities%20-%20ENGLISH%20-%20FINAL.pdf?pdf= SRHREasyRead (accessed 20 November 2019). See eg P Chappell ‘(Re)thinking sexual access for adolescents with disabilities in South Africa: Balancing rights and protection’ (2016) 4 African Disability Rights Yearbook 124; DisAbled Women’s Network of Canada / Réseau d’actions des femmes handicapées du Canada (DAWN Canada) ‘More than a footnote: A research report on women and girls with disabilities in Canada’ February 2019; W Holness ‘Informed consent for sterilisation of women and girls with disabilities in the light of the Convention on the Rights of Persons with Disabilities’ (2013) 27 Agenda at 35.

7. CRPD Committee General Comment 3: Women and girls with disabilities (2016) UN Doc CRPD/C/GC/3 dated 2 September 2016 para 59.

8. Further, more detailed information on the treaty body state reporting process and other UN human rights mechanisms can be found in the following publication: Women Enabled International ‘accountABILITY toolkit: A guide to using UN human rights mechanisms to advance the rights of women and girls with disabilities’ (2017) https://www.womenenabled.org/atk.html (accessed 15 November 2019).

9. Office of the High Commissioner for Human Rights ‘Status of ratifications: South Africa’ http://indicators.ohchr.org/ (accessed 15 November 2019).

10. As parties to the CRPD, states are required under article 35 to submit a comprehensive report to the CRPD Committee on measures taken by the state to fulfill its obligations under the Convention. States must submit their first report within two years of ratification and at least every four years thereafter. Art 35(1)-(2) CRPD. Unfortunately, there is currently a backlog in the Committee’s review of state reports which is why South Africa was only scheduled for review in 2018. This delay is due to a number of factors, including states submitting late reports, budget constraints of the Committee, and the volume of material to review.

12. This commentary and the CRPD Committee submissions address the situation of South African women with disabilities throughout their life cycle. Any reference to ‘women with disabilities’ should be interpreted to include girls with disabilities unless otherwise indicated.

13. Helene Combrinck’s contributions to the submissions were made in her personal capacity and as such do not represent the views of the Faculty of Law or the North-West University.

14. See C Capri et al ‘Intellectual disability rights and inclusive citizenship in South Africa: What can a scoping review tell us?’ (2018) 7 African Journal of Disability 1 5 https://doi.org/10.4102/ajod.v7i0.396 (accessed 15 November 2019); T Meer & H Combrinck ‘Help, harm or hinder? Nongovernmental service providers’ perspectives on families and gender-based violence against women with intellectual disabilities in South Africa’ (2017) 32 Disability & Society 37; T Meer & H Combrinck ‘Invisible intersections: Understanding the complex stigmatisation of women with intellectual disabilities in their vulnerability to gender-based violence’ (2015) 29 Agenda at 14; Naidu et al (n 5 above) 35.

15. See eg Šimonović (n 5 above) paras 9-10.

16. Reasons predicted for this heightened risk for women with disabilities include: their social isolation and dependence on others, a lack of knowledge about their rights and the obstacles faced in accessing social support services and justice mechanisms. See Šimonović (n 5 above) para 30; Meer & Combrinck (n 14 above) at 38. See also General Comment 3 (n 7 above) para 33.

17. See R Johns & C Adnams ‘My right to know: Developing sexuality education resources for learners with intellectual disabilities in the Western Cape, South Africa’ (2016) 4 African Disability Rights Yearbook 114; Chappell (n 6 above) 134-138; Holness (n 6 above) 36; VN Mgwili & B Watermeyer ‘Physically disabled women and discrimination in reproductive health care: Psychoanalytic reflections’ in B Watermeyer et al (eds) Disability and social change: A South African agenda (2006) 262-266.

19. The first report to inform the List of Issues can be found on the OHCHR UN Treaty body database website at https://tbinternet.ohchr.org/_layouts/15/treatybody external/Download.aspx?symbolno=INT%2fCRPD%2fICO%2fZAF%2f30268&Lang =en (accessed 15 November 2019).

20. The second report to inform the review can also be found at the OHCHR website at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbol no=INT%2fCRPD%2fCSS%2fZAF%2f31996&Lang=en (accessed 15 November 2019).

21. Art 6 CRPD.

22. Art 13 CRPD.

23. Arts 15 & 16 CRPD.

24. Arts 23 & 25 CRPD.

25. See Johns & Adnams (n 17 above) 114-118; Chappell (n 6 above) 124; Holness (n 6 above) 36; Mgwili & Watermeyer (n 16 above) 262-266.

26. Art 31 CRPD.

27. Rule 48bis of the Committee’s Rules of Procedure (2016) file:///Users/alr/Downloads/G1622964.pdf (accessed 15 November 2019).

28. Working Methods of Committee (2011) Part I para A file:///Users/alr/Downloads/G1145155.pdf (accessed 15 November 2019).

29. See CRPD Committee List of issues in relation to the initial report of South Africa CRPD/C/ZAF/Q/1 (25 April 2018).

30. CRPD Committee (n 29) para 17(b).

31. Concluding Observations on the initial report of South Africa, CRPD Committee (23 October 2018) UN Doc CRPD/C/ZAF/CO/1 (2018) para 33(a).

32. Working Methods of Committee (2011) Part II para E file:///Users/alr/Downloads/G1145155.pdf (accessed 15 November 2019).

33. Working Methods of Committee (2011) Part I para E file:///Users/alr/Downloads/G1145155.pdf (accessed 15 November 2019).

34. CRPD Committee (n 30 above).

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