Developments regarding disability rights during 2013: The African Charter and African Commission on Human and Peoples’ Rights

2.1 State reporting

In terms of both the African Charter and the African Women’s Protocol, states are required to submit reports to the Commission every two years on the steps taken to implement these two instruments. It is significant to note that the majority of the reports submitted to or considered by the Commission during 2013 included reference to the rights of persons with disabilities.8 This related either to the implementation of article 18(4) - for

example, in the reports of Burundi,9 Cameroon10 and Mozambique11 ‒ or another right, such as the right to health - in the case of Senegal.12 The report of Malawi, which includes a section on the implementation of the African Women’s Protocol (the only one submitted during this period to do so), also covers the position of women with disabilities.13

2.2 Recognition of human rights situation of persons with disabilities

It is significant to note that the rights of persons with disabilities are increasingly acknowledged in the Commission’s activity reports in the section describing the human rights situation in Africa. For example, in its 34th activity report, the Commission observes that the provision of free sunscreen for people with albinism and the accompanying sensitisation campaign in Kenya is a positive development, as is the adoption by the United Republic of Tanzania of measures to stop the killing of persons with albinism, including through the education of local communities and prosecutions to bring the perpetrators to justice.14

In its 35th Activity Report, the Commission notes as a positive development the adoption of Lesotho’s National Disability Policy, which recognises that persons with disabilities should have equal access to education, training, employment, health and other aspects of life.15 On the other hand, it expressed concern about the fact that persons with disabilities, and people with albinism, continue to experience prejudice in some countries, with a disproportionate toll on women with disabilities and/or albinism.16

2.3 Resolutions

The Commission firstly adopted a resolution17 renewing the mandate of the Working Group on Older Persons and People with Disabilities.

It also adopted a resolution aimed at the prevention of attacks and discrimination against persons with albinism.18 This resolution expressed concern about reports of systematic attacks against persons with albinism, including against women and children, and welcomed the steps taken and efforts made by the countries concerned, including initiating legal action against perpetrators of attacks against persons with albinism and public condemnation of attacks against persons with albinism. It reminds states parties of their obligations under articles 2 and 18(4) of the African Charter and calls upon state parties to, inter alia, take effective measures to eliminate all forms of discrimination against persons with albinism, and to increase education and public awareness-raising activities.19 It requests states parties to include in their reports submitted to the African Commission under article 62 of the Charter information on the situation of persons with albinism (including good practices in protecting and promoting the rights of persons with albinism).20

The Commission has further adopted a resolution on Women’s Right to Land and Productive Resources,21 which notes that women living with disabilities, amongst others,22 are more affected by marginalisation and calls on states parties to put in place special measures to protect the property rights of women with disabilities. 23

3.1 Background

This subsection provides a personal perspective on the approach being taken to prepare an African human rights instrument on the rights of persons with disabilities.

The Working Group on Older Persons and People with Disabilities in Africa (the Working Group) was established by the African Commission on Human and Peoples’ Rights (the Commission) in accordance with Resolution 143/45 of 2009. The terms of reference of the Working Group include researching and vocalising the rights of persons with disabilities and advising the Commission on the adoption of a Protocol on the Rights of Persons with Disabilities (Disability Protocol).24

The Working Group is chaired by Commissioner Yeung Kam John Yeung Sik Yuen; and presently its members are Commissioner Reine Alapini-Gansou, Commissioner Pansy Tlakula, Commissioner Lawrence Murugu Mute, Dr Tavengwa Machekano Nhongo, Dr Nadia Abdel-Wahab El-Afify, Dr Isabel Anita Gbenisola Aboderin, Mr Kudakwashe Dube and Dr Elly Macha.25

An early initiative by the Working Group to prepare a continental disability rights instrument was unsuccessful on account of a number of reasons. First, there was inadequate consultation with stakeholders. Also, there was a certain amount of conceptual and normative conflation, for example on whether the disability rights instrument should be framed as a charter or a protocol. 26

In 2011, the Working Group was expanded to include more experts as well as members with disabilities. Subsequently, the Working Group finalised a concept paper for the Disability Protocol in 2012 and prepared Draft I of the Disability Protocol in 2013. The Working Group adopted Draft II of the Disability Protocol (Draft Protocol) in March 2014 and invited stakeholders’ views and reviews.27

3.2 Key considerations

A number of considerations continue to inform the Working Group as it is preparing the Disability Protocol. First, Africa’s human rights architecture has evolved steadily to a point where specifically-binding instruments have given recognition to and affirmed the human rights of all the most marginalised groups on the Continent. There are African human rights instruments providing affirmations to the rights and protections for children ‒ the African Charter on the Rights and Welfare of the Child (ACRWC),28 women ‒ the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol),29 youth ‒ the African Youth Charter (AYC),30 and internally displaced persons - African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa.31 Indeed, the Working Group itself in 2012 finalised a draft protocol covering the rights of older persons. The Working Group surmises that Africa’s human rights architecture will remain lopsided and incomplete without a human rights instrument affirming or reaffirming the rights of persons with disabilities.

Second, while it is true that some of the above-listed African rights instruments make mention of persons with disabilities, their content is by and large informed by the deficit/medical rather than the social/rights model of disability.32 Furthermore, the rights of persons with disabilities in some of those instruments are made subject to progressive realisation and availability of resources while other rights in those instruments are not similarly treated.33 It is therefore necessary that the rights of persons with disabilities are set out correctly to conform to the letter and spirit of the Convention on the Rights of Persons with Disabilities (CRPD).

Third, a far more pragmatic consideration is the reality that African states as well as the bureaucracy of the African Union Commission (AUC) need a home-grown instrument with which to drive the disability rights agenda in Africa. While at least 45 African states have ratified the CRPD34 and 33 African States have ratified its Optional Protocol,35 Africa’s recent difficult relationship with the International Criminal Court36 illustrates the unfeasibility of simply assuming that the Continent will pliantly look outwards for the inspiration to protect and promote the rights of its people.

Fourth, though, the Working Group is careful to make the explicit acknowledgement that the CRPD is the novel global standard-bearer on the rights of persons with disabilities. Any new disability rights instrument must not undermine the minimum standard established in the CRPD. Consequently, the Working Group’s treatment of key disability concepts such as legal capacity is consistent with the standard established in the CRPD. 37

Finally, the Working Group is proceeding on the basis that this Protocol offers a veritable opportunity for raising the bar for the rights of persons with disabilities in Africa by establishing further affirmations and clarifications to tackle Africa’s specificities and realities. The Draft Protocol, therefore, covers issues which received no traction in the CRPD despite being of concern in Africa. For example, it provides for:

(1) Protection of parents, guardians and caregivers from discrimination on the basis of their actual or apparent association with persons with disabilities; 38

(2) Protection of persons with disabilities from harmful practices; 39

(3) Provision for their equal right to hold documents of identity; 40

(4) Protection against use of traditional forms of justice to deny persons with disabilities access to appropriate and effective justice; 41

(5) Calibration of provisions on living in the community to have specific regard for community based rehabilitation services which are a key feature of Africa’s approach to disability; 42

(6) Provision against any presumption that persons with disabilities may be uneducable43or untrainable;44

(7) Clarification that the support required by persons with disabilities to enjoy their legal capacity must respect their rights, will and preferences, and must not amount to substituted decision-making;45 and

(8) Unlike the CRPD but in consonance with Africa’s human rights standards, the Draft Protocol makes explicit mention that all persons with disabilities too have responsibilities to other individuals, their families and to the community. 46

An important choice which the Working Group has made is that this disability rights instrument should be framed as a Protocol rather than a Charter. It is essential that the rights of persons with disabilities remain anchored on Africa’s flagship human rights instrument, the African Charter, which in article 18(4) provides that: ‘The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs’. It is particularly vital that an artificial wall should not be created between the content of the African Charter and the content of a disability rights instrument. It is even possible that the content of the African Charter will gradually be interpreted to fit the modern conceptual framing on the rights of persons with disabilities to be established in the Protocol. The Draft Protocol hence is intended to be an organic progression from the norms established in the African Charter in the same way that the Maputo Protocol developed from provisions in the African Charter.47

Framing this instrument as a Protocol also makes practical sense. A Disability Rights Charter would have required the initiation and execution of a totally new institutional infrastructure to monitor the instrument’s implementation; whereas a Protocol would be managed institutionally by the African Commission on Human and Peoples’ Rights. A Protocol would offer far more convenience for states parties to fulfil their reporting obligations relating to disability as set out in the Protocol alongside their overall reporting obligations under the Charter. Finally, framing the rights of persons with disabilities in a Protocol linked to the African Commission will not only mean that the Commission’s established Communications infrastructure can be deployed immediately to offer redress to victims, but that complainants may also take advantage of the special standing which the African Commission has before the African Court on Human and Peoples’ Rights to prosecute human rights cases.

The Working Group continues to be extremely keen on getting feedback on the Draft Protocol. The Draft will in due course be reviewed to take account of feedback, before being presented to the Commission for consideration and adoption. Following that, it will be submitted to the AUC for onward processing including deliberation by African states before its possible adoption by the African Union.