• Innocentia Mgijima-Konopi
  • Programme Manager Disability Rights Unit, Centre for Human Rights, Faculty of Law, University of Pretoria, Atlantic Fellows for Health Equity South Africa (AFHESA) at Tekano.
  • LLB (Hons) (Witwatersrand), LLM (National University of Ireland, Galway)
  • The views expressed in this publication are those of the authors and do not necessarily represent those of Tekano, the Atlantic Institute, or their governing boards.
  • Mary Auma
  • Bachelor of Law (Makerere University, Uganda), LLM (University of Pretoria), LLD candidate (University of Pretoria)
  • The authors wish to thank Foluso Adegalu for his editorial assistance


1 Introduction

Several African countries recorded their first cases of the coronavirus disease (COVID-19) in March 2020, the same month the World Health Organisation (WHO) declared it a global pandemic.1 Within three months the virus has spread throughout the continent. By 29 December the Africa Centres for Disease Control and Prevention put the total number of COVID-19 cases in Africa at 2.6 million with 63 300 deaths recorded. 2 Though there are no official statistics on the number of persons with disabilities in Africa who have tested positive for or succumbed to COVID-19, the Working Group on The Rights of Older Persons and People with Disabilities in Africa in its statement on International Day of Persons with Disabilities acknowledged the potential heightened vulnerability of persons with disabilities on the continent to the pandemic reiterating that many persons with disabilities have pre-existing health conditions that may make them more susceptible to contracting the virus and experiencing more severe symptoms, leading to elevated mortality rates. 3

From the start of the pandemic anecdotal evidence emerged that most government’s COVID-19 responses did not fully take into account persons with disabilities. In response, several organisations who work towards combating discrimination against persons with disabilities launched the COVID-19 Disability Rights Monitor (DRM) initiative to collect, analyse and disseminate reliable quantitative and qualitative data on the impact of COVID-19 and related measures adopted by government on persons with disabilities globally.4 Data was collected from respondents from 134 countries through a survey conducted between 20 April and 8 August 2020. A report of the findings, Disability rights during the pandemic: A global report on the findings of the COVID-19 Disability Rights Monitor was launched in October 2020.5 For Africa, the monitoring report helps identify areas where states are failing to take sufficient measures to protect the rights of persons with disabilities in their response to the pandemic.

The discussion that follows focuses on aspects of the monitoring report related to gaps in the protection of right to health of persons with disabilities in Africa during the pandemic.6 The commentary will use the survey results to illustrate how the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (African Disability Protocol), once in effect, may provide additional guidance to states in responding more effectively to the health needs of persons with disabilities during possible further ‘surges’ of the COVID-19 pandemic as well as future health care emergencies.7 It concludes with a call for African states to expediently ratify the African Disability Protocol so it can come into force.

2 African regional instruments and the right to health of persons with disabilities during the COVID-19 pandemic

The right to health of persons with disabilities in African states, is well established under different African human rights instruments. The African Charter on Human and Peoples’ Rights (African Charter) provides that every individual shall have the right to enjoy the best attainable state of physical and mental health.8 It further stipulates that ‘the aged and the disabled’ shall have the right to special measures of protection in keeping with their physical or moral needs.9 The African Charter on the Rights and Welfare of the Child guarantees every child the right to enjoy the best attainable state of physical, mental and spiritual health.10 In addition to the these two instruments the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women obliges states to ensure that the right to health of women, is respected and promoted.11

Building on these existing regional instruments, the African Disability Protocol makes extensive provision for the protection of the right to health of persons with disabilities. Adopted on 30 January 2018 by the African Union Heads of States,12 the African Disability Protocol is the culmination to date of the African Union’s efforts to create a framework to safeguard the human rights of persons with disabilities on the continent. The potential of the Protocol to contribute to fostering a more inclusive and equitable society in which the human rights of persons with disabilities are respected is yet to be realised. It has not yet attained the 15 ratifications required for it to come into force.13.

Many of the provisions in the African Disability Protocol mirror the provisions of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).14 For instance, using language considerably similar to article 25 of the CRPD, article 17 of the African Disability Protocol guarantees the recognition of the right of every person with a disability to the highest attainable standard of health and requires states parties to take positive steps towards its realisation. There are aspects of article 17 of the Protocol that differ from the CRPD. The African Disability Protocol enjoins states to ensure that ‘health care services are provided using accessible formats and that communication between service providers and persons with disabilities is effective’.15 This obligation is not explicitly set out in the CRPD but rather implied in article 9 on accessibility.16 Similarly, the obligation on states to guarantee that persons with disabilities are provided with support in making healthcare decisions stated in the Protocol is implied under article 12 of the CRPD which deals with equal recognition before the law.17 The Protocol by drawing out these obligations puts emphasis on as well as broadens the understanding of these rights.

Article 17 of the African Disability Protocol also contextualizes the right to health to the African context where many people continue to access healthcare services from informal health care providers.18 It extends the ambit of protection to persons with disabilities accessing informal health services by requiring states to guarantee ‘informal health services do not violate the rights of persons with disabilities’.19 Lastly the Protocol unlike the CRPD speaks to the need for non-stigmatising health campaigns and provision of pain relieving drugs to persons with disabilities which alludes to some of the experiences on the continent.20

3 Identifying gaps in the protection of right to health of persons with disabilities in Africa during the COVID-19 pandemic

3.1 Summary of data collated by the Disability Rights Monitor Research from Africa

The DRM survey received 397 responses from 34 countries in Africa.21 In terms of regional disaggregation Eastern Africa had the highest number of responses (185), followed by Western Africa (109).22 Figure 1 below shows responses per country. The highest number of responses came from South Africa (83), Nigeria (63) and Uganda (42).

Figure 1: Response per country
3.2 Composition of the response pool

The majority of the responses received as shown in Figure 2 were from persons with disabilities, their families, carers and organisations (386). There were only (7) official responses that came from governments and (4) from national human-rights institutions.

Figure 2: Respondents by identity

The respondents categorised themselves under different disability constituencies. The largest constituency represented was persons with physical disabilities (149), followed by deaf persons (92) as set out in Figure 3 below.

Figure 3: Disability constituency23

 

4 Access to medication and essential healthcare services by persons with disabilities in Africa during the COVID-19 pandemic: Survey findings

Though the degree and manner differed, several responses indicated that access to medical-care facilities, services and medication had been severely restricted or limited for persons with disabilities during the pandemic in their countries. This was predominantly linked to a suspension of disability-specific health services in many public hospitals at the onset of the pandemic, inflation and the rising cost of living linked to COVID-19; shortages in medication including psychiatric medication; denial of reasonable accommodation in accessing services and pre-existing poor access to good quality affordable health services in many countries.24 The discussion that follows examines certain of these key findings.

4.1 The impact of rising cost of living on medical care

Respondents from Uganda, Nigeria, Sierra Leone, Zimbabwe, Kenya and Nigeria said that the rising cost of living specifically linked to COVID-19 in their countries meant that many persons with disabilities whose livelihoods were already fragile before the onset of the pandemic could not afford medical care.

In a bid to curtail the spread of COVID-19 governments throughout the region adopted far-reaching measures including the restriction of movement of people and goods, the closure of international borders, lockdowns and curfews.25 These measures have had a substantial adverse impact in many countries on both national economic growth and individual livelihoods.26 For persons with disabilities in Africa the impact of this economic downturn was compounded by the fact that many in this group came into the COVID-19 crisis already experiencing barriers that precluded them from effectively participating in the economic activities of their countries.

As echoed by ILO’s policy brief issued in June 2020, prior to the onset of this crisis a high number of persons with disabilities compared to those without were less likely to be employed or have decent employment conditions, more likely to be in the informal economy and likely not adequately covered by social protection.27 The DRM survey showed that persons with disabilities who earn their livelihoods in the informal sector in particular were badly affected by the disruption in economic activities during the pandemic.28 A respondent from Nigeria pointed out that ‘the increase in the cost of living brought about by COVID-19 has made life very unbearable for persons with disabilities who are self-employed, their families and caregivers’.29

4.2 Access to disability-specific health services during the pandemic

Respondents reported that at the onset of the pandemic disability specific-health services (i.e rehabilitation services and therapies etc.) in a number of their countries’ public hospitals had been suspended to prioritise testing and treatment of COVID-19 patients. One of the respondents from South Africa expressed concern that ‘children with disabilities could not access early intervention programmes as all programmes has been suspended at hospitals and clinics as the government prioritised services to Covid-19 only’. A DPO reported that a number of hospital departments that repair wheelchairs and other assistive devices were closed. While governments prioritised the treatment of COVID-19 patients they failed to ensure that people with disabilities continue to access these crucial services. The impact of this disruption on the health of persons with disabilities affected is yet to be fully understood, but it could lead to mid to-long term worsening of existing conditions and late diagnosis of new impairments.

4.3 Access to medication

The shortages in psychiatric medication in Africa have been well documented, however the advent of the COVID-19 pandemic has made the shortages more acute with medication being out of stock or in short supply in many countries.30 Shortages of medication and related community based mental health services for persons with psychosocial disabilities during the pandemic was a concern for respondents from Uganda, South Africa, Zimbabwe and Kenya. DPO’s from these countries reported that some people with psychosocial disabilities in these countries had stopped taking the medication prescribed to them because they were unable to access it. In other instances, they received different medication to the one prescribed as a substitute. DPO’s expressed fears that these shortages in psychiatric medication may result in deterioration of the mental health of persons with psychosocial disabilities and possible relapses. In countries like Uganda where mental-health services are primarily accessed in psychiatric institutions and not community based, the closure of these institutions during the lockdown left persons who experienced a mental-health crisis during this period without help. The absence of additional measures to mitigate the psychological stress brought about by the pandemic and accompanying measures such as social isolation on both those with pre-existing mental health conditions and without was also mentioned.

4.4 Access to prevention, testing, treatment of COVID-19

With regards to whether persons with disabilities in Africa were able to obtain information about prevention of COVID-19 in accessible formats, personal protective equipment and treatment of COVID-19 on an equal basis with others, 61 per cent of respondents (273) expressed uncertainty as to whether persons with disabilities in their countries had access to COVID treatment on an equal basis with others. Twenty-three respondents were of the view that persons with disabilities were being deprived of treatment, whilst 61 respondents believed that persons with disabilities had equal access to treatment.

Figure 4: Access to COVID-19 treatment

The data from the survey showed that most countries had made a commendable attempt to ensure that persons with disabilities could access information on COVID-19 as well as the countries’ response in accessible formats including sign language and audio formats. A number of respondents however pointed out that information provided was generic and not disability specific. Concern was raised regarding Hospital triage guidelines. Fears arose that the application of triage protocols result in persons with disabilities being disadvantaged from or not prioritised to receive lifesaving resources, such as ventilators, where there are shortages.31

5 How the African Disability Protocol may guide states in protecting the right to health of persons with disabilities in future pandemic

There are a select set of obligations that will arise from the Protocol, once it comes into operation, which could be particularly relevant to the possible further ‘surges’ of the COVID-19 pandemic and future health care emergencies. Firstly, the Protocol recognizes, in the Preamble of article 17 that persons with disabilities have the right to the enjoyment of the highest attainable standard of health. It requires states to ensure persons with disabilities have access to health facilities, goods and services on a non-discriminatory basis.32 Similar to the CRPD discrimination on the basis of disability is defined in article 1 of the Protocol as ‘any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others.’33 The Protocol in addition also stipulates that the denial of reasonable accommodation itself constitutes discrimination on the basis of disability. 34

In interpreting the right to health in the African Charter, the African Commission on Human and Peoples’ Rights (African Commission) has stressed that the minimum core obligations imposed on a state are to ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalised groups.35 The African Commission has stated that states are obliged to ensure that national plans prioritise members of vulnerable and disadvantaged groups in access to healthcare and take steps to ensure that individuals, especially those belonging to vulnerable and disadvantaged groups, are not prevented from accessing healthcare services and goods.36 The African Commission has further reiterated that states are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons (including persons with disabilities) to health services.37 The African Children’s Committee also echoed a similar opinion as the African Commission in the case of IHRDA and Open Society Justice Initiative (OSJI) (on behalf of children of Nubian descent in Kenya) v Kenya.38

The Protocol therefore once operational reinforces the existing duty of states to prioritise the health needs of persons with disabilities as they constitute a vulnerable group, particularly it could be inferred during health care emergencies where such vulnerability is heightened. Healthcare services including services targeted at addressing those health emergencies ought to be provided on an equal basis without discrimination on the ground of disability. States have a duty of care to provide persons with disabilities with the reasonable accommodation they need in accessing these services. The Protocol places a special emphasis on the importance of providing services using accessible formats.

 The Protocol once in force will reinforce the duty of states to provide persons with disabilities with the same range, quality and standard of healthcare as provided to other people. Much like in article 25(a) of the CRPD article 17(2)(a) of the Protocol speaks to states’ obligations to ensure that where the state has systems of free and affordable healthcare people with disabilities should be able to access these on an equal basis with others without discrimination. States therefore must ensure that persons with disabilities do not receive inferior or substandard healthcare compared to fellow citizens during pandemics. Healthcare personnel are required to provide care of the same quality to persons with disabilities as others. Health care policies and practices developed by states during health emergencies to guide healthcare workers on which patients to prioritise to receive life-saving resources, such as admission to the intensive care unit and a ventilator, in the event of shortages may not exclude or disadvantage persons with disabilities on the basis of their disability.

6 Conclusion

The Protocol as highlighted here has the potential once in force to corroborate some key obligation under the right of health in both the CRPD and African Charter amongst others and assist in guiding states to avoid some of the violations witnessed under the current pandemic. Its potential will remain unrealized until African states ratify it.

 


1. World Health Organisation (WHO) ‘WHO Director-General's opening remarks at the media briefing on COVID-19’ 11 March 2020 https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 (accessed 26 November 2020).

2. Coronavirus Disease 2019 (COVID-19) https://africacdc.org/covid-19/ (accessed 29 December 2020).

3. ‘Statement of the Working Group on the Rights of Older Persons and People with Disabilities in Africa of the African Commission on Human and Peoples’ Rights’, At the Occasion of the International Day of Persons with Disabilities, 3rd December 2020.

4. ‘Covid-19 Disability Rights Monitor’ https://covid-drm.org/ (accessed 21 October 2020).

5. ‘Disability Rights during the pandemic: A global report on the findings of the COVID-19 Disability Rights Monitor’ (Disability Rights Monitor Report) (2020).

6. It is important to note that COVID-19 holds implications for a number of additional rights as well, this commentary is however limited to the right to health.

7. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (African Disability Protocol) art 17.

8. The African Charter on Human and Peoples’ Rights (ACHPR), art 16.

9. (n 8) art 18.

10. African Charter on the Rights and Welfare of the Child, art 24.

11. Protocol to the African Charter on Human and Peoples’ Rights and on the Rights of Women in Africa, art 14.

12. African Disability Protocol (n 7).

13. https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-persons-disabilities-africa (accessed 18 December 2020). Nine countries have signed the Protocol at the time of writing, namely Angola, Burkina Faso, Cameroon, Central African Republic, Gabon, Mali, Rwanda, South Africa and Togo.

14. UN Convention on the Rights of Persons with Disabilities (UNCRPD) UN Doc A/RES/61/06 (2006).

15. African Disability Protocol (n 7) art 17 (f).

16. UN Committee on the Rights of Persons with Disabilities, General Comment No 2 (2014), Article 9: Accessibility para 40.

17. CRPD (n 14) art 12(3).

18. M Sudhinaraset, M Ingram, HK Lofthouse & D Montagu ‘What is the role of informal healthcare providers in developing countries? A systematic review.’ (2013) 8 (2) PLoS One.

19. African Disability Protocol (n 7) art 17(2)(i).

20. African Disability Protocol (n 7) art, 17(2)(h).

21. Covid-19 Disability Rights Monitor (n 4). A comprehensive discussion of the methodology of the research falls outside the scope of this commentary but can be found on page 16-21 of the report.

22. Disability Rights Monitor Report (n 5) 19.

23. The survey allowed for respondents representing organisations to select multiple constituencies where they represented more than one.

24. Disability Rights Monitor Report (n 16) 43.

25. ‘COVID-19 and the World of Work: Ensuring the inclusion of persons with disabilities at all stages of the response’ (2020) ILO policy brief.

26. ‘Six charts show how COVID-19 is an unprecedented threat to development in Sub-Saharan Africa’ IMF News 13 April 2020 https://www.imf.org/en/News/Articles/2020/04/13/na0413202-six-charts-show-how-covid-19-is-an-unprecedented-threat-to (accessed 15 Nov 2020).

27. COVID-19 and the World of Work (n 25).

28. ‘COVID-19 Disability Rights Monitor: Irene from Kenya’ https://www.youtube.com/watch?v=11J7Y02fFVA (accessed 17 December 2020) ; ‘COVID-19 Disability Rights Monitor: Sithembile from Eswatini’ https://www.youtube.com/watch?v=0CH0xlc Tv70 (accessed 17 December 2020).

29. The results from the survey show that the strict and indiscriminate enforcement of lockdown and curfew measures, often accompanied by police brutality, also made persons with disabilities and their families afraid and at times unable to leave their homes to access health services and other essential supplies.

30. C Sunkel & M Viljoen ‘Shortage of psychiatric medications in South Africa’ (2017) 4(1) page 15-16. https://doi.org/10.1016/S2215-0366(16)30422-9 (accessed 18 Dec-ember 2020).

31. EL McKinney, V McKinney & L Swartz ‘COVID-19, disability and the context of healthcare triage in South Africa: Notes in a time of pandemic’ (2020) 9 Africa Journal of Disability 2.

32. African Disability Protocol (n 7), art 17(1) & 17(2)(a).

33. African Disability Protocol (n 7), art 1 (our emphasis) & CRPD, art 2.

34. African Disability Protocol (n 7), art 1 definition of discrimination on the basis of disability.

35. African Commission ‘Principles and guidelines on the implementation of economic, social and cultural rights in the ACHPR’ para 67a.

36. African Commission (n 35) para 67x.

37. Monim Elgak & Others (represented by FIDH & OMCT) v Sudan Communication 379/09, African Commission on Human and Peoples’ Rights, 15th Extra Ordinary Session, 07-14 March 2014 (2014) para 136.

38. Communication 002/09, African Committee of Experts on the Rights and Welfare of the Child (ACERWC), 22 March 2011.


  • Edmore Masendeke
  • LLM, PhD student, University of Leeds. Edmore is an Early Stage Researcher on the DARE (Disability Advocacy Research in Europe) Network and a PhD student at the University of Leeds.

  • E Masendeke ‘Disability, Cyclone Idai and the COVID-19 pandemic: preparedness of African countries for disability-inclusive responses in emergency situations’ (2020) 8 African Disability Rights Yearbook 243-252
     http://doi.org/10.29053/2413-7138/2020/v7a11
  • Download article in PDF

1 Introduction

On 11 March 2020, the World Health Organisation (WHO) declared the outbreak of a novel coronavirus disease 2019 (COVID-19), a respiratory disease which started in Wuhan, China, in December 2019, to be a pandemic following a surge in case numbers in Italy, Iran, South Korea and Japan.1 In that same month, most African countries recorded their first COVID-19 cases.2 For Madagascar, Mozambique, Zimbabwe and Malawi, this was barely a year after another humanitarian emergency. In mid-March 2019, the four countries were hit by Cyclone Idai, a tropical storm that was characterised by heavy rains and flooding, which killed around 1 000 people and affected over 2 million people.3 Among those affected were people with disabilities.4

Studies show that people with disabilities are generally disproportionately affected by natural disasters and emergency situations5 and their needs are often not, or inadequately, addressed in emergency response plans and preparations.6 Such vulnerability and inequality often stem from several factors, including a lack of information and knowledge of disability issues among governments and relief organisations;7 financial constraints leading to the lack of prioritisation of disability issues and people with disabilities;8 as well as stigma and discrimination.9 The failure to involve people with disabilities in disaster response planning and preparation also contributes to people with disabilities’ needs not being addressed, or being inadequately addressed, in emergency response plans and preparations.10

For both the COVID-19 pandemic and Cyclone Idai, the four African countries have had to develop and implement emergency response plans and preparations. As emergency response plans and preparations for COVID-19 are still being adjusted and implemented as the disease continues to spread, it may be too early to assess them. However, it is the opportune time to assess the four countries’ emergency response plans and preparations for Cyclone Idai and possibly draw some lessons from them, which may be useful to the emergency response plans and preparations for COVID-19.

Therefore, this comment provides an assessment of the extent to which disability issues were addressed in the four countries’ emergency response plans and preparations for Cyclone Idai and a discussion of the lessons learnt which may be of relevance to the emergency response plans and preparations for COVID-19. The assessment will be made against relevant provisions of the Convention on the Rights of Persons with Disabilities (CRPD) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (African Disability Protocol), which are discussed in the next section.

2 State obligations to ensure that disability issues are addressed in emergency response plans and preparations

Disability-inclusive emergency response plans and preparations have been promoted through several international and regional laws, policies and guidelines. Here, however, I only focus on the CRPD and the African Disability Protocol as they are the most comprehensive legal frameworks safeguarding the human rights of people with disabilities at the global and regional level. Adopted by the United Nation’s General Assembly on 13 December 2006,11 the CRPD is the leading disability-specific articulation of human rights. Internationally, it has been widely acknowledged as such including through wide ratification. At the time of writing this comment, the CRPD has been ratified by 181 countries, including 43 African countries, and the European Union.12 The African Disability Protocol was adopted by the African Union on 29 January 2018,13 but has not yet achieved the 15 ratifications that it requires to become operational. Although it is not yet in operation, the African Disability Protocol stands alongside the CRPD in providing a comprehensive disability specific articulation of human rights in the African context.14 Thus, many provisions of the African Disability Protocol correspond to the provisions of the CRPD, but they have been contextualised to reflect the situation of people with disabilities.15 The African Disability Protocol also contains additional provisions on issues which are not emphasised or explicitly mentioned in the CRPD, but are important for the promotion, protection and fulfilment of the rights of people with disabilities in Africa.

Among their similarities, both the CRPD and the African Disability Protocol require state parties to ensure the protection and safety of persons with disabilities in situations of risk. Accordingly, article 11 of the CRPD enjoins state parties to take ‘all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters’.16 Similarly, article 12 of the Protocol requires state parties to ‘[t]ake specific measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, forced displacements, humanitarian emergencies and natural disasters’.17

While article 11 of the CRPD and article 12 of the African Disability Protocol are similar in a broad sense, the African Disability Protocol explicitly mentions forced displacement as a situation of risk whereas the CRPD does not do so. This draws attention to the gravity of the problem of forced displacement in Africa and the need to address disability issues in such situations. Although it is a worldwide phenomenon, forced displacement is more pronounced in Africa than any other continent.18 It is reported that Cyclone Idai caused the displacement of 4.5 million people.19

Beyond article 11 of the CRPD and article 12 of the African Disability Protocol, other provisions of both instruments are relevant for the development and implementation of emergency response plans and preparations which are disability inclusive. First, the general principles of both instruments provide guidance to the inclusion of disability issues in this context.20 In addition to the seven principles listed in the CRPD, the African Disability Protocol specifies ‘reasonable accommodation’21 and ‘best interest of the child’22 as general principles. Given that these two concepts are not common practice in Africa, they needed to be specifically mentioned to ensure that they are prioritised in the implantation of the Protocol.

Second, the general obligations of both instruments outline the steps which state parties should take in implementing these instruments.23 While most of these steps are similar in both instruments, the African Disability Protocol requires state parties to take additional steps or pay attention to some things that were not explicitly mentioned in the CRPD, primarily as a way of contextualising the rights of people with disabilities to the African context. For instance, the African Disability Protocol requires states parties to ‘[put] in place adequate resources, including through budgetary allocations, to ensure the full implementation of this Protocol’,24 whereas the CRPD does not make express mention of such a requirement. As Yvette Basson notes, ‘[m]any countries in Africa do not prioritise  spending on socioeconomic issues, which makes the duty to allocate resources to the implementation of the Protocol particularly significant’.25

Differences also exists in the scope of the guidelines for the involvement of people with disabilities in decision-making processes. The CRPD requires state parties to ‘closely consult’ and ‘actively involve’ people with disabilities in ‘the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities’.26 The African Disability Protocol, on the other hand, requires state parties to ensure that people with disabilities effectively participate in ‘all decision-making processes including the development and implementation of legislation, policies and administrative processes to implement this Protocol’.27

While both instruments require state parties to ensure the involvement of people with disabilities in decision-making processes, there are three differences in the scope of these obligations. First, the CRPD requires state parties to ensure that people with disabilities are also involved in ‘other decision-making processes concerning issues relating to persons with disabilities’ in addition to issues relating to the implementation of the Convention28 whereas the African Disability Protocol only requires state parties to ensure that people with disabilities are involved in issues relating to the implementation of the Protocol.29 This may be an oversight by the drafters of the Protocol. Consequently, it may pose a limitation on the participation of people with disabilities in decision-making processes which are not explicitly mentioned in the Protocol. Second, the African Disability Protocol mentions that people with disabilities should be involved in the development and implementation of administrative processes,30 while the CRPD does not. Finally, while the CRPD emphasises the participation of children with disabilities,31 the African Disability Protocol emphasises the participation of children with disabilities as well as that of women with disabilities.32 Women with disabilities face double discrimination - as people with disabilities and as women - and the latter is compounded by patriarchy in Africa,33 therefore it was important to make the participation of women with disabilities in decision-making processes an explicit requirement in the African Disability Protocol.

Article 31 of the CRPD and article 32 of the African Disability Protocol on statistics and data collection are also relevant to the development and implementation of emergency response plans and preparations which are disability inclusive. These provisions respond to the historic death of disability data, which has been one of the contributing factors to the exclusion of people with disabilities in the development and implementation of legislation and policies, including emergency response plans and preparations.34 While the CRPD encourages the collection of appropriate information, including statistical and research data, to enable the formulation and implementation of policies to give effect to the Convention,35 the African Disability Protocol encourages ‘the systematic collection, analysis, storage and dissemination of national statistics and data covering disability to facilitate the protection and promotion of the rights of persons with disabilities’.36 Two differences can be seen in these texts. First, beyond encouraging the collection of information, the African Disability Protocol also encourages analysing, storing and disseminating information.37 Second, while the CRPD encourages collecting information for ‘the formulation and implementation of policies to give effect to the Convention’,38 the African Disability Protocol encourages collecting information ‘to facilitate the protection and promotion of the rights of persons with disabilities’.39 Thus, the latter reimagines not only the use of statistics and information for issues beyond the Protocol, but also for the protection and promotion of the rights of persons with disabilities more broadly.

Finally, article 32 of the CRPD on international cooperation and article 33 of the African Disability Protocol on cooperation are also relevant to the development and implementation of emergency response plans and preparations which are disability inclusive. While the CRPD highlights the need for international cooperation as broadly referring to all forms of possible cooperation among state parties, the African Disability Protocol spells out the forms of cooperation among state parties. This includes cooperation at international, continental, sub-regional and bilateral level.40 Emergency relief programmes often involve some level of cooperation. Therefore, the requirements of the two instruments are that emergency relief programmes are inclusive of, and accessible to, people with disabilities when some level of cooperation is involved.41 Thus, the state party and its partners have a responsibility to ensure that their emergency response plans and preparations are disability inclusive.

In summary, both the CRPD and the African Disability Protocol set out the human rights standards which state parties should follow to ensure the protection and safety of people with disabilities during situations of risk. This includes collecting disaggregated data on people with disabilities and involving people with disabilities in decision-making processes. The African Disability Protocol also emphasises the need to allocate financial resources for the implementation of the provisions of the Protocol. As I have already mentioned in the introduction, the failure to do these things are among the main causes of the historic exclusion of people with disabilities and disability issues in emergency response plans and preparations. The next section discusses the extent to which these standards were followed during Cyclone Idai.

3 The extent to which disability issues were addressed in emergency response plans and preparations for Cyclone Idai

Cyclone Idai affected the lives and wellbeing of many people with disabilities. While it is not known how many precisely, Help and Healing International, formally known as CBM, carried out a survey and identified nearly 5 000 people with disabilities in need of humanitarian assistance in Zimbabwe and Malawi.42 According to Light for the World, it is estimated that over 100 000 people with disabilities were affected by Cyclone Idai in Mozambique.43 However, there are no statistics for Madagascar. It is important to note that these statistics were provided by international organisations which specifically assist people with disabilities or minorities and that these organisations conducted their surveys after broader government and non-government surveys, which contained very little information about the effects of the Cyclone on people with disabilities.44

Help and Healing International reports that many of the people with disabilities who they identified in Malawi and Zimbabwe had not been captured in broader government and non-government surveys and records.45 They had also failed to access relief aid.46 Light for the World reports that only 1 000 people with disabilities had been identified and received assistance in Mozambique.47 This was partially due to the government and non-government organisations using different definitions of ‘persons with disabilities’, with some of them having limited or lacking knowledge of ‘impairment types’; using diverse vulnerability criteria, some of which excluded people with disabilities based on their impairment type or its severity; collecting data at various times after the cyclone, but not making follow-ups; and excluding disabled peoples’ organisations (DPOs) in data collection and identification processes.48 Similarly, UNICEF Zimbabwe highlighted that the failure to capture disaggregated data of children with disabilities increased the risk of failure to address their unique needs.49 In its third situation report on the Cyclone, Unicef reported having identified and assisted 255 children with disabilities in a preliminary disability related assessment in Chimanimani, Zimbabwe. 50

The failure by governments and mainstream non-government organisations to capture people with disabilities in their surveys and records has also been regarded as an attitude problem.51 In Mozambique, Unicef was informed that mainstream organisations were not prepared to assist people with disabilities.52 Instead of including people with disabilities in their programmes, these organisations passed them on to disability-specific organisations:

Rather than taking up these cases themselves, they (mainstream humanitarian actors) shift responsibility towards other organisations. It seems like there is a general assumption among humanitarian actors that women and men, girls and boys with disabilities require separate services, while in fact they can also be included in their general programmes. This reflects the need to change attitudes about women and men, girls and boys with disabilities and recognise that everyone has the same basic needs with possible additional specific requirements. 53

Despite the above challenges, however, several organisations, especially those with a disability-specific focus, collected data and information about people with disabilities and used it to address their specific needs. In addition to the above-mentioned organisations, member charities of the Disasters Emergency Committee (DEC), working in Mozambique, Zimbabwe and Malawi, collected disaggregated data at the outset and used it to identify specific groups, such as people with disabilities, and develop emergency response plans that addressed their specific needs.54 In addition, these charities actively sought the input of the identified groups when they were designing their intervention programmes.55 This enabled these charities to identify and address the specific needs of people with disabilities.

4 Making emergency response plans and preparations for COVID-19 disability inclusive: Drawing lessons from Cyclone Idai

The current COVID-19 pandemic places people with disabilities in a potentially more vulnerable position than the general population.56 While they may not be inherently at a greater risk of infection because of their disability status, people with disabilities face greater risk of exclusion in respect to the extent to which emergency response plans and preparations addresses their specific situation.57 This notwithstanding, people with disabilities with certain pre-existing medical conditions also fall in the at-risk category.58 Therefore, measures need to be taken to ensure that the needs of people with disabilities are addressed in the emergency response plans and preparations for COVID-19. Some of the measures which countries should take are outlined below.

Many persons with disabilities were overlooked in initial relief efforts during Cyclone Idai due to the lack of disaggregated data and statistics on people with disabilities and the effects of the cyclone on their lives. Therefore, national governments should collect disaggregated data on persons with disabilities affected by COVID-19 and its effects on their lives. Furthermore, governments should conduct research into the risk factors which may have contributed to infection, including identifying any possible gaps in existing emergency response strategies and their implementation. This information can be used as feedback in the further development and implementation of emergency response plans and preparations for COVID-19, which can help make these plans and preparations more disability inclusive.

The exclusion of people with disabilities and their representative organisations during Cyclone Idai also resulted in many needs of people with disabilities going unmet. Therefore, people with disabilities and their representative organisations should be invited to provide technical support in emergency response plans and preparations for COVID-19. This will help make these plans and preparations more disability inclusive.

Finally, disability should be mainstreamed in all emergency response planning and preparation processes. Some organisations side-lined people with disabilities in their emergency relief programmes for Cyclone Idai because they did not have a specific focus on disability issues. Therefore, disability issues should be an integral part of emergency response planning and preparation processes for all state and non-state actors. This will force state and non-state actors, including international collaboration partners, to think about disability issues in the development and implementation of their emergency response plans and preparations for COVID-19.

5 Conclusion

The foregoing discussion shows that while the CRPD and the African Disability Protocol requires state parties to ensure the protection of people with disabilities in situations of risk and humanitarian emergencies, not all the emergency response plans and preparations for Cyclone Idai were disability inclusive. Consequently, many disabled people did not benefit from initial emergency relief aid. These are gaps that should be addressed in the emergency response plans and preparations for COVID-19. These gaps can be addressed by collecting disaggregated data on persons with disabilities, involving people with disabilities in decision-making processes, including through their representative organisations, and mainstreaming disability in all emergency response planning and preparation processes.

 


1. WHO ‘WHO Director-General's opening remarks at the media briefing on COVID-19’ (11 March 2020) https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 (accessed 22 October 2020).

2. Wikipedia ‘COVID-19 pandemic in Africa’ (21 October 2020) https://en.wikipedia.org/wiki/COVID-19_pandemic_in_Africa (accessed 22 October 2020).

3. D Phiri, M Simwanda & V Nyirenda ‘Mapping the impacts of Cyclone Idai in Mozambique using Sentinel-2 and OBIA approach’ (2020) 82 South African Geographical Journal 1.

4. Light for the World ‘Access to humanitarian aid: Challenges and recommendations for women and men, girls and boys with disabilities’ (2019) Unicef http://www.light-for-the-world.org/sites/lfdw_org/files/download_files/policy_paper_lftw_unicef_-_def_di gital_accessible_0.pdf(accessed 29 September 2020).

5. BH Morrow ‘Identifying and mapping community vulnerability’ (1999) 23 Disasters 11; GA Tobin & JC Ollenburger ‘Natural hazards and the elderly’ (1992) FMHI Publications Paper 16; B Wisner et al (2004) ‘At Risk: Natural hazards, people’s vulnerability and disasters’ 2nd ed (2004).

6. B Wisner 'Business-as-usual disaster relief' (2012) 23 Capitalism Nature Socialism 123.

7. F Smith, E Jolley & E Schmidt Disability and disasters: The importance of an inclusive approach to vulnerability and social capital (2012); Light for the World (n 4).

8. W Lunga et al ‘Disability and disaster risk reduction as an incongruent matrix: Lessons from rural Zimbabwe’ (2019) 11 Jàmbá n1.

9. Smith, Jolley & Schmidt (n 7). 

10. Smith, Jolley & Schmidt (n 7); HT Sullivan & MT Häkkinen ‘Preparedness and warming systems for special needs: Ensuring everyone gets the message (and knows what to do)’ (2011) 29 Geotechnical and Geological Engineering 225.

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

12. United Nations Department of Economic and Social Affairs Disability ‘Convention on the Rights of Persons with Disabilities (CRPD)’ United Nations Department of Economic and Social Affairs Disability https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html (accessed 11 Sep-tember 2020).

13. 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 14 September 2020). 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.

14. J Mureriwa ‘Some reflections on the draft African Disability Protocol and socio-economic justice for persons with disabilities’ (2011) 12 ESR Review: Economic and Social Rights in South Africa 3.

15. Mureriwa (n 14).

16. Art 11 CRPD.

17. Art 12(a) African Disability Protocol.

18. Internal Displacement Monitoring Centre ‘Africa report on internal displacement’ (2019) https://reliefweb.int/sites/reliefweb.int/files/resources/201912-Africa-report.pdf (accessed 29 September 2020).

19. Phiri, Simwanda & Nyirenda (n 3).

20. Art 3 CRPD; art 3 African Disability Protocol.

21. Art 3 African Disability Protocol, Principle (g).

22. Art 3 African Disability Protocol, Principle (i).

23. See Art 4 CRPD; art 4 African Disability Protocol.

24. Art 4 African Disability Protocol, General Obligation (i).

25. Y Basson ‘The right to an adequate standard of living in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa’ (2019) 7 African Disability Rights Yearbook 258 at 260.

26. Art 4(3) CRPD.

27. Art 4 African Disability Protocol, General Obligation (j).

28. Art 4(3) CRPD.

29. Art 4 African Disability Protocol, General Obligation (j).

30. As above.

31. Art 4(3) CRPD.

32. Art 4 African Disability Protocol, General Obligation (j).

33. S Majiet & A Africa ‘Women with disabilities in leadership: The challenges of patriarchy’ (2015) 29 Agenda 101.

34. JH Madans, ME Loeb & BM Altman ‘Measuring disability and monitoring the UN Convention on the Rights of Persons with Disabilities: The work of the Washington Group on Disability Statistics’ (2011) 11 BMC Public Health S4. BioMed Central, AH Eide & ME Loeb ‘Data and statistics on disability in developing countries’ (2005) Disability Knowledge and Research Programme Executive Summary.

35. Art 31 CRPD.

36. Art 32 African Disability Protocol.

37. As above.

38. Art 31 CRPD.

39. Art 32 African Disability Protocol.

40. Art 33 African Disability Protocol.

41. MA Stein ‘Mainstreaming and accountability: (Really) including persons with disabilities in development aid and humanitarian relief programming’ (2013) 31 Nordic Journal of Human Rights 292.

42. Hope and Healing International ‘Finding and assisting survivors with disabilities: Cyclone Idai emergency rapid assessment by Hope and Healing International and its partners’ (2019) https://blog.hopeandhealing.org/wp-content/uploads/2019/07/HH-Rapid-Assessment-Cyclone-Idai.pdf (accessed 26 October 2020).

43. Light for the World (n 4).

44. Hope and Healing International (n 42); Light for the World (n 4).

45. Hope and Healing International (n 42).

46. As above.

47. Light for the World (n 4).

48. As above.

49. Unicef ‘Deafening silence on disability Cyclone Idai’ (8 May 2019) https://www.unicef.org/zimbabwe/stories/deafening-silence-disability-cyclone-idai (accessed 26 October 2020).

50. As above.

51. Light for the World (n 4); Unicef ‘Aid out of reach’ (2019) https://www.unicef.org/mozambique/media/2396/file/Aid%20out%20of%20reach.pdf (accessed 26 October 2020).

52. Unicef (n 51).

53. As above.

54. Disasters Emergency Committee (DEC) ‘2019 Cyclone Idai Appeal Six-Month Report’ (2010) https://www.dec.org.uk/sites/default/files/dec_2019_cyclone_idai_six_mon th_report.pdf (accessed 29 September 2020).

55. As above.

56. WHO ‘Disability Considerations during the COVID-19 outbreak’ (26 March 2020) https://www.who.int/publications/i/item/WHO-2019-nCoV-Disability-2020-1 (accessed 26 October 2020).

57. As above.

58. As above.

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