The socio-economic rights of children with disabilities in South Africa: A comparison between the African Charter on the Rights and Welfare of the Child and the Convention on the Rights of Persons with Disabilities

5.1.1 African Charter on the Rights and Welfare of the Child

Gose identifies four foundational provisions or pillars that the Children’s Charter is based upon, namely, non-discrimination; the best interests of the child; the right to survival and development; and the right of the child to participate in matters concerning his or her well-being.34 Gose describes these as the ‘soul’ of the instrument.35

Article 3 of the African Children’s Charter contains the non-discrimination clause which provides as follows:

Every child shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.

One immediately notes that the article does not include disability as a prohibited ground of discrimination.36 Despite the fact that the article applies to all children, including children with disabilities, one cannot but lament the fact that the African Children’s Charter did not take advantage of the unique opportunity to affirm the importance of the rights and freedoms of children with disabilities.37 Nevertheless, the article’s relevance to all children, including children with disabilities, ensures that children with disabilities should not be discriminated against in their claim to the socio-economic rights set out in the Children’s Charter. In addition to the article applying to all children, the inclusion of the phrase ‘other status’ is an indication of the fact that the list provided is not an exhaustive one and that, therefore, recognition should be given to ‘other forms of differential treatment that cannot reasonably and objectively be justified’.38 This would include discrimination against persons with disabilities that would impair the recognition, enjoyment or exercise of their rights.39

Article 4 of the African Children’s Charter provides for the best interests of the child, and states that the best interests of the child should be the primary consideration in all actions affecting the child, which includes children with disabilities. State parties, therefore, should mould their laws and policies with the best interests principle in mind.40 This, in essence, would mean that states must be cognisant of the best interests and special needs of children with disabilities, particularly in their formulation of laws and policies aimed at meeting the needs of persons with disabilities, including laws and policies relating to socio-economic rights.41 Article 4 states that the best interests of the child must be of primary consideration. The use of the definite article ‘the’ elevates the influence the principle has over other considerations.42

Article 4(2) provides for the rights of children, including children with disabilities, to participate in matters concerning his or her well-being. Article 4(2) also provides that a child who is capable of communicating his or her own views should be provided the opportunity to do so in judicial and administrative matters affecting him or her. The views can be expressed directly by the child or through an impartial representative. Article 4(2) further provides that the child’s views must be taken into consideration by the relevant authorities. The child is placed in the position of an active participant who has an opportunity to, in one way or another, influence decisions taken in matters involving him or her.43

This article has limitations, such as the fact that the phrase ‘who is capable of communicating his or her views’ is restrictive in that this ability may relate to age, level of education and the ability to communicate verbally or to write.44 This does not take into account children who can communicate, not in the traditional manner, but through other means such as body language.45 This is especially unaccommodating for children with disabilities whose only means of communication are in ways other than speaking or writing, such as sign language.

The article is further limiting as it only provides for children’s views to be expressed in judicial and administrative proceedings and not in other forums or spaces that affect children, such as the family environment. This is restrictive in the area of socio-economic rights, as children with disabilities should be able to express their views, life experiences and needs when laws and policies on socio-economic rights are being formulated, without any restrictions. Article 7 seems to be a redeeming characteristic as it allows children, therefore also children with disabilities, to freely express their opinions in all matters. However, article 7 also contains the limitation that only children who are capable of communicating their views can express their opinions.

Article 5 of the African Children’s Charter provides for the right to survival and development. Article 5(2), which is important for purposes of this article, places the obligation on states, to the maximum extent possible, to ensure the survival, protection and development of the child. One of the ways in which article 5(2) could be interpreted is that states are placed under the obligation, among other things, to ensure the protection and provision of socio-economic rights, as this is one of the ways of making sure that children survive, grow and develop in the best manner possible. This especially includes children with disabilities. The limitation of this right, namely, the fact that states are given the option to do this to the maximum extent possible, could mean that states may argue that, because of scarce resources, they are not able to ensure that socio-economic rights are fully protected.46

Article 13 of the African Children’s Charter, which deals specifically with the protection necessary to ensure the advancement of the rights of children with disabilities, is linked to these foundational pillars for children with disabilities. Article 13(1) of the Children’s Charter provides that children with disabilities have the right to special measures of protection to meet their physical and moral needs. These special measures of protection must be provided under conditions that respect their dignity and promote self-reliance and active participation in their communities.47 Article 13(2) of the African Children’s Charter details the special measures that states must undertake in order to comply with article 13(1).48 Article 13(2) provides as follows:

State parties to the present Charter shall ensure, subject to available resources, to a disabled child and to those responsible for his care, of assistance for which application is made and which is appropriate to the child’s condition and in particular shall ensure that the disabled child has effective access to training, preparation for employment and recreation opportunities in a manner conducive to the child achieving the fullest possible social integration, individual development and his cultural and moral development.

The article makes the assistance to be provided subject to available resources.49 However, the Children’s Charter only requires that the circumstances of the child’s special situation be taken into account. The Charter does not go into as much detail as the CRC where in articles 23(2) and (3) it is provided that the circumstances of the parents or the caregivers must be taken into account and that services must be provided free of charge where possible.50 The fact that the African Children’s Charter does not state that the circumstances of the parents or caregiver be taken into account could allow for services to be extended to a larger group of children than the CRC covers, whose parents or caregivers could care for them without state assistance.51 The list of services to be provided does not include education, health care services and rehabilitation which are provided for in the CRC.52

5.1.2 Convention on the Rights of Persons with Disabilities

Article 3 of the CRPD sets out the foundational provisions or pillars of the CRPD as indicated below:

(a) respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

(b) non-discrimination;

(c) full and effective participation and inclusion in society;

(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

(e) equality of opportunity;

(f) accessibility;

(g) equality between men and women;

(h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

For purposes of this article, only three of the above will be dealt with, namely, respect for inherent dignity; non-discrimination; and respect for the evolving capacities of children with disabilities. These pillars have been described as the ‘moral compass’ of the CRPD.53

Respect for the inherent dignity of all human beings, including children with disabilities, requires that all treatment and interaction be carried out in a manner that is respectful and shows concern.54 Respect for the inherent dignity of all must filter into how all other human rights, including socio-economic rights, are applied and interpreted.55 Basser notes the importance of respect for inherent human dignity by stating the following:

[Respect for inherent dignity] means that people must be treated as ends in themselves, first as people and only then as people with particular characteristics. For people with disabilities this means asking the question about whether the treatment or interaction is predicated on preserving and protecting the moral worth of the individual, not some idea about the person’s disability ...56

The African Children’s Charter does not contain a provision specifically requiring respect for inherent dignity. Therefore, in this regard the CRPD plays a very important role. The CRPD ensures that the inherent dignity of children with disabilities is placed at the forefront of actions purporting to protect and provide services to these children. The promotion and protection of the socio-economic rights and the resultant formulation of laws and policies as well as the provision of services to children with disabilities must be buttressed by respect for the inherent dignity of such children.

Article 5 of the CRPD touches on equality and non-discrimination of persons, including children with disabilities. The article, among other things, provides that all persons are equal before and under the law and are entitled to equal protection by and benefit of the law without having to suffer any discrimination. States bear the responsibility to prohibit all forms of discrimination on the basis of disability and to guarantee to all persons with disabilities equal and effective protection against all forms of discrimination. In order to fulfil their obligations, states must take all appropriate steps to ensure that reasonable accommodation is provided. Finally, article 5 recognises that it may be necessary to take specific measures to hasten or achieve the equality of persons with disabilities. It notes that this will not be considered discrimination under the CRPD.

This clause differs from article 3 of the African Children’s Charter. It applies specifically to persons with disabilities and, therefore, captures the protection needs of children with disabilities more clearly. It does not list the grounds on which a person should not be discriminated against, but broadens the scope of protection by stating that all discrimination on the basis of disability is prohibited. Read with article 3 of the Children’s Charter, this would offer stronger protection to children with disabilities in South Africa, as there would be the recognition that children with disabilities should not be discriminated against because they are children or on the basis of their disability.

Article 5 of the CRPD places the responsibility on states to ensure equality and non-discrimination, while article 3 of the African Children’s Charter does not specifically mention who is responsible for ensuring that children are not discriminated against. The Children’s Charter focuses on the child as the rights bearer, whereas the subject in the provision of the CRPD is the state.57

It may be argued that the African Children’s Charter offers broader protection against discrimination in the sense that it is not only the state that has the duty of non-discrimination, but everyone that the child comes into contact with. The CPRD, on the other hand, focuses only on the state as duty bearer.

Article 5 of the CRPD recognises that specific measures may need to be implemented to accelerate ensuring the equality of persons, including children with disabilities, and that this will not be considered discrimination. This is especially important in the context of socio-economic rights, where children with disabilities are often in a worse position than other children in their access to socio-economic rights.58 Article 3 of the African Children’s Charter makes no mention of this.

The inclusion of respect for the evolving capacities of children with disabilities in article 3 of the CRPD is ground-breaking as children with disabilities often have been seen to have little or no capability or competence to learn and develop themselves.59 Article 3 ensures that steps are taken to equip children with disabilities with the ability to develop the capacity for learning, developing and decision making, something that is possible through the socio-economic right to education.60 This also is not specifically contained in the African Children’s Charter. A combined reading of the Children’s Charter rights and the CRPD, therefore, ensures the comprehensive protection of children with disabilities.

As in the case of the African Children’s Charter, linked to the pillars, the CRPD contains a provision that deals specifically with children with disabilities in article 7. Article 7 provides:

1. State parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.
2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.
3. State parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realise that right.61

First, one immediately notes that, unlike the African Children’s Charter, which states that the best interests of the child should be the primary consideration, the CRPD provides that the best interests of the child shall be a primary consideration in matters affecting the child. The formulation of the CRPD is unfortunate,62 as it weakens the influence of the best interests principle, and incurs the risk that other values could prevail over the best interests of children with disabilities.63

Second, article 7(3) of the CRPD states that children with disabilities have the right to express their views freely on all matters affecting them. It does not, as in the case of the African Children’s Charter, place a restriction on how this expression of views is to be executed. The CRPD’s protection of children’s participation, therefore, is broader than that provided for in the Children’s Charter.

5.2.1 Right to education

The African Children’s Charter recognises the right to education in article 11, which places an obligation on state parties to promote and protect access to education. Article 11(1) states that every child has the right to education. Article 11(2) sets out the aims of education, which include the promotion and development of children’s personalities, talents and mental and physical abilities to the fullest potential; the fostering of respect for human rights and fundamental freedoms set out in African regional and international instruments; the promotion of children’s understanding of primary health care; and the preservation and strengthening of positive African morals, traditional values and cultures. Article 11(3) sets out the obligations placed on state parties, which include the provision of free and compulsory basic education and the implementation of special measures in respect of female, gifted and disadvantaged children, to ensure equal access to education for all sectors of the community.

The CRPD recognises the right of children with disabilities to education in article 24. Article 24(1) of the CRPD states that the right to education must be realised on the basis of non-discrimination and equal opportunity. It provides that an inclusive education system must be ensured at all levels. This reiteration and affirmation of the need for and importance of non-discrimination and equality in the context of education is important for children with disabilities as it ensures that the educational environment is one that is free of discrimination, and affirms the specific needs that children with disabilities have and the different ways they are able to contribute. This is not contained in the African Children’s Charter and, therefore, it is very important that the two instruments are read together when dealing with the rights of children with disabilities to education.

The aims of education are also set out in article 24(1) of the CPRD. Among others, these include the full development of human potential, a sense of dignity and self-worth, as well as the strengthening of respect for human rights, fundamental freedoms and human diversity; the development by persons with disabilities of their personalities, talents and creativity, as well as their mental and physical abilities, to their fullest potential; and enabling persons with disabilities to effectively participate in a free society. These aims, although in some ways similar, are different in the sense that they are formulated to apply specifically to persons with disabilities. It should, therefore, be read in conjunction with the aims set out in the African Children’s Charter, as this will ensure that children with disabilities receive the most out of their education in the South African context.

Article 24(2) contains the obligations on state parties to ensure that the right to education is fully realised. States should ensure that persons with disabilities are not excluded from receiving education on the basis of disability, and that children with disabilities are not excluded from receiving free and compulsory basic education. This is similar to article 11(3) of the African Children’s Charter, which also provides for free and compulsory basic education. However, article 24(2) goes further and provides that inclusive, quality and free education should be accessed by persons with disabilities on a basis of equality with others. The distinct requirements of children with disabilities should be reasonably accommodated, and support should be provided in the education system in order to facilitate effective education. In order to make the most of academic and social development, effective individual support measures must also be provided.

Further provisions on the right to education contained in the CRPD (and not in the African Children’s Charter) are detailed in articles 24(3) and 24(4) of the CRPD. Article 24(3) sets out the measures states parties must employ in order to ensure that persons with disabilities learn life and social development skills that will facilitate full and equal participation in education and their communities. These measures include:

• facilitating the learning of braille, alternative script, augmentative and alternative models, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring;
• facilitating the learning of sign language and the promotion of the linguistic identity of the deaf community; and
• ensuring that the education of persons, and in particular children, who are blind, deaf or deaf and blind, is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximise academic and social development.

Article 23(4) provides that in order to ensure that the right to education is realised for persons with disabilities, the teachers employed, including teachers with disabilities, should be proficient in sign language and/or braille. Professionals and staff that work at all levels of education should also be trained, among others, in disability awareness, the use of appropriate means of communication and educational techniques and materials to support persons with disabilities.

The provisions supporting the right to education in the African Children’s Charter and the CRPD clearly indicate that the CRPD elaborates on the right in more detail than the Children’s Charter.67 The more detailed provisions of the CRPD are aimed at ensuring that states understand what the right to education means for children with disabilities and what their responsibilities are in this regard.

A comprehensive and well-rounded approach to the application of both the African Children’s Charter and the CRPD should be carried out with the aim to ensure that children with disabilities in the South African context and African context in general have unhindered access to education. This is important for disabled children in South Africa, as it is reported that close on 500 000 children with disabilities do not attend school and that hundreds of thousands who are in school have fallen behind.68 These alarming figures are linked to a number of shortcomings in the education system, such as that children with disabilities face discriminatory attitudes and admission practices69 as they try to access mainstream or special public schools,70 and that children with disabilities are exposed and vulnerable to violence and abuse.71

Another shortcoming in the South African education system is that children with disabilities who attend public schools, particularly special schools, often do not receive quality education.72 A number of issues that have been identified that affect the quality of education children with disabilities are exposed to include the standard of curriculum delivery in special schools; a lack of requisite and specialised skills on the part of teachers to adapt teaching practices; poor provision of learner and teacher support material; unequal distribution of educators to schools catering for children with disabilities; and a lack of accessible transport.73 All these challenges, and many others, affect the ability of children with disabilities to acquire -

essential learning tools (such as literacy, oral expression, numeracy and problem solving) and the basic learning content (such as knowledge, skills, values, and attitudes) required by human beings to be able to survive, to develop their full capacities, to live and work in dignity, to participate fully in development, to improve the quality of their lives, to make informed decisions, and to continue learning. The scope of basic learning needs varies with individual countries and cultures, and inevitably, changes with the passage of time.74

The African Children’s Charter and the CRPD should be used to keep the South African government accountable in its obligation to address the above challenges and ensure better access to education for children with disabilities.

5.2.2 Health and health-related rights

It has been acknowledged that access to health care services is a challenge for children with disabilities in South Africa.75 This needs to be addressed in a manner compliant with international law as articulated, inter alia, in the African Children’s Charter and the CRPD. The challenges faced include the following:

a lack of access to the physical environment, lack of access to information in accessible formats; discriminatory and negative attitudes toward persons with disabilities displayed by health and support personnel; a lack of appropriately trained and skilled health personnel concerned with disability ... inaccessible and unaffordable transport, particularly in rural and impoverished communities.76

In order to address the above barriers to access health care services, the provisions of the African Children’s Charter and the CRPD must be implemented as a matter of urgency. The Children’s Charter contains provisions relating to health and health services in article 14, which in article 14(1) begins by providing that every child should enjoy the best attainable state of physical, mental and spiritual health. The CRPD, in article 25, provides that state parties have the responsibility to recognise the right of persons with disabilities to enjoy the highest attainable standard of health without discrimination. States are further required to ensure that all appropriate measures are taken to ensure that persons with disabilities have access to health services, including health-related rehabilitation that is gender sensitive. The African Children’s Charter provides for the ‘best attainable’ state of health, while the CRPD mentions the ‘highest attainable’ standard of health. This differentiation in expression does not seem to result in any major difference.77 However, the CRPD does re-affirm that access to health must not be hindered by discrimination, something the Children’s Charter fails to do.

The African Children’s Charter differentiates between physical, mental and spiritual health, while the CRPD does not contain such differentiation. In making this differentiation, the Children’s Charter ensures that there is no ambiguity regarding the meaning of health and, instead, broadens the concept of health.78 The CRPD states that health services must be gender-sensitive highlighting women’s issues and, in this case, issues of the girl child, which the Children’s Charter does not do.79 The CRPD also refers to the provision of rehabilitation services to persons with disabilities. This is particularly important for children with disabilities who are in need of rehabilitation services for their continued development and growth.

Article 14(2) of the African Children’s Charter provides that state parties must take certain steps to pursue the full implementation of the right to health. These measures, among others, include a reduction in the infant and child mortality rate; the provision of necessary medical assistance and health care to all children, with an emphasis on developing primary health care services; the provision of adequate nutrition and safe drinking water; the use of appropriate technology, within the framework of primary healthcare, to combat disease and malnutrition; and measures to ensure that parents, children, community leaders and community workers are informed of and supported in the use of basic knowledge of child health and nutrition. All these special measures take cognisance of the context in which African children, and in this instance children with disabilities, find themselves, and aim to meet the needs of children in these contexts.

The CRPD complements the protection granted to children with disabilities by the African Children’s Charter by requiring state parties to the CRPD to implement certain measures aimed at targeting the specific needs of children with disabilities. These are set out in article 25 and include the following: providing the same range, quality and standard of free or affordable health care and programmes as provided to other persons; and providing health services specifically needed by persons with disabilities, which include early identification and intervention and services aimed at minimising or preventing further disabilities. This is of particular importance to children with disabilities who would benefit from early identification and intervention.80 Article 25 also requires state parties to provide health care services as close as possible to the communities where the children with disabilities find themselves, and to prevent the discriminatory denial of health care or health services, food and fluids on the basis of disability.

It is interesting to note that neither the African Children’s Charter nor the CRPD contains a limitation clause stating that the right to health is to be provided to the maximum extent possible or within the available resources.81 This, therefore, could result in a ‘higher level of protection, and result in constant pressure on the state ... to further the full achievement of the right’.82

5.2.3 Right to social security and social assistance

Children with disabilities often find themselves in contexts of extreme poverty which make them ‘vulnerable to infection, and less likely to have resistance to illness or access to healthcare. They are more likely to lack clean water and sanitation, and are more exposed to accidents.’83 This is also the case in the South African context.84 One way of addressing poverty and its effects is through the provision of social security grants to assist in the provision of basic economic and social needs.85

Unfortunately, the African Children’s Charter does not contain a provision on the right to social security or even the right to an adequate standard of living.86 There is no provision directing the state to provide such needed assistance to children with disabilities.87 This omission has been described as ‘extremely disturbing’, particularly in the African context.88

Article 28 of the CRPD provides some cure as it contains a provision on an adequate standard of living and social protection. Here, the CRPD recognises the fact that children with disabilities require a larger income to assist them to develop and grow adequately.89 Therefore, article 28 places specific obligations on state parties.90

Article 28(1) of the CRPD places an obligation on state parties to recognise that children with disabilities have a right to an adequate standard of living which includes access to adequate food, clothing and housing as well as the continuous improvement of their living conditions. States must ensure that this right is promoted without any discrimination on the basis of disability. Article 2 of the CRPD defines ‘discrimination on the basis of disability’ in the following manner:

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, of all human rights and fundamental freedoms ...

Article 28(2) places the obligation on state parties to ensure that the social protection of children with disabilities is recognised and enjoyed without discrimination on the basis of disability. To accomplish this, states must take certain measures which, among other things, include the following: ensuring equal access to clean water and appropriate and affordable services, devices and other assistance to meet disability-related needs; and ensuring access to social protection programmes and poverty reduction programmes. States must also ensure that children with disabilities living in poverty enjoy financial assistance to cover disability-related expenses.