The African Union Convention on Ending Violence against Women and Girls: Opportunities, gaps and the potential impact on women and girls with disabilities

3.2.1 Definitions

Article 1 of the AU Convention defines violence against women as

all acts perpetrated against women and girls which cause or could cause them verbal, emotional, physical, sexual, psychological, or economic harm, including the threat to take such acts, or to undertake the imposition of arbitrary restrictions on, or deprivation of, fundamental freedoms in the private and public spheres, or cyberspace, in times of peace, armed conflict, transition, post-conflict, disaster and post disaster situations.

The scope of this definition is comprehensive in that it encompasses the public and private spheres, cyberspace, peace and conflict, and humanitarian situations. The novelty of this definition is the explicit inclusion of violence during and post conflict and violence in cyberspace. Though technologically facilitated violence has been a growing concern for human rights mechanisms and other entities, the AU Convention becomes the first regional human rights instrument to explicitly include cyberspace.17 This recognition is crucial for women with disabilities. According to UN Women, more than 50 per cent of girls and young women have experienced online violence.18 Women with disabilities are at a heightened risk of technologically facilitated gender-based violence including cyberbullying.19 According to the Global Disability Inclusion Report (GDIR), persons with disabilities may face increased difficulty in identifying phishing scams and predatory online behaviour due to the inaccessibility of cyber-protection, which makes them easy targets for exploitation and bullying.20 The expansion of the scope in the definition therefore offers additional protection and expands government obligations to eliminate violence against women with disabilities and ensure justice to victims of digital space violence.

3.2.2 State obligations on laws, access to justice, data and resources (article 5)

Article 5 mandates states to enact and enforce laws that eradicate violence against women and girls,21 ensure effective justice systems,22 conduct periodic census and surveys for evidence-based policies,23 and utilise gender-responsive budgeting.24 These obligations address key elements of preventing and eliminating violence against women and girls with disabilities. The jurisprudence of the CRPD Committee demonstrates that discriminatory laws advancing substituted decision-making, especially in relation to women with disabilities with or perceived psychosocial disabilities and those with intellectual disabilities, exacerbate reproductive violence such as forced sterilisation, forced abortion and forced contraception.25

The second obligation on data is pivotal. Data plays a significant role in policy making, including identifying barriers and enablers of violence against women and girls, especially those encountering multiple and intersectional discrimination such as women with disabilities. However, the availability of data and intersectional data on violence against women and girls disaggregated by gender and disability is limited.26 Article 4(1) states that one of the objectives of the Convention is to prescribe an enabling environment to systematically collect and use gender-disaggregated data on violence against women and girls, including by age. Though a critical provision, the explicit omission of data disaggregated by disability perpetuates an on-going global pandemic of lack of data disaggregated by gender and disability. On the other hand, article 32(a) of the African Disability Protocol obligates states to disaggregate statistics and data based on disability, gender, age and other relevant variables, including by ensuring that national population census and other surveys capture data on disability. For effective data collection, the Convention must be read with the African Disability Protocol which provides a robust framework for collecting disaggregated data by disability, age, gender and other relevant identities.

The obligation to ensure gender responsive budgeting is critical to resourcing measures to end and prevent violence against women and girls including those with disabilities. Without allocating resources for gender-based violence prevention and research, investing in services for survivors of violence, creating frameworks to eliminate disability-based discrimination, and guaranteeing accessibility, it is almost impossible to end violence against women with disabilities. It is worth noting though progress has been reported on gender responsive budgeting,27 globally the needs of women with disabilities including on addressing violence are under addressed.

3.2.3 Intersectionality and disability (article 7)

Traditionally, laws and policies addressing women have ignored women with disabilities.28 This invisibility has perpetuated the prevalence of multiple and intersecting forms of discrimination against women and girls with disabilities. Recognising that women do not experience discrimination as members of a homogenous group but rather, as individuals with multidimensional layers of identities, statuses and life circumstances is essential in addressing violence against women.29 It means acknowledging the lived realities and experiences of heightened disadvantage of women caused by multiple and intersecting forms of discrimination, which requires targeted measures with respect to disaggregated data collection, consultation, policymaking, enforceability of non-discrimination and the provision of effective remedies.30

Article 7 of the Convention explicitly recognises that violence intersects with other forms of discrimination, including disability. Additionally, the Preamble of the Convention notes the inter-generational and evolving nature of violence against women and girls in Africa and its interconnection with multiple forms of inequality and discrimination relating to disability. In terms of state obligations, article 7(2)(e) specifically requires states to enact and enforce national laws protecting women and girls with disabilities from all forms of violence, discrimination, and exploitation, and provide them with holistic and tailored support services. These provisions potentially hold strong protections for women with disabilities.

However, the Convention misses a crucial opportunity to provide an interpretative definition of intersectional and multiple discrimination, which can adversely impact on states parties’ understanding and recognition of factors that disproportionately expose women with disabilities to violence. Disability-based discrimination is similarly not defined, making it difficult to bring out specific elements that amount to discrimination on the basis of disability and intersects with violence such as denial of reasonable accommodation.

On a positive note, for African countries that have ratified the CRPD, the CRPD Committee through General Comment 6 on equality and non-discrimination31 defines intersectional32 and multiple discrimination,33 thus providing guidance on key elements to be considered when interpreting situations of intersectional and multiple discrimination.

3.2.4 Access to justice (article 12)

Access to justice is fundamental for the enjoyment and fulfilment of all human rights, including the right to be free from all forms of violence. Women with disabilities face significant barriers to accessing justice, due to discrimination based on gender and disability. Such barriers include restrictions on the exercise of legal capacity, lack of physical access to justice facilities, lack of accessible transportation to and from these facilities, obstacles in accessing legal assistance and representation, lack of information in accessible formats, and lack of training for professionals working in the field of justice. 34

Paternalistic or negative attitudes questioning the abilities of persons with disabilities to participate during all phases of the administration of justice may perceive women with disabilities, particularly women with intellectual or psychosocial disabilities, as being less credible witnesses which pose barriers to accessing justice in situations where the only evidence of abuse or another crime is the testimony of a woman with a disability, as is often the case with gender-based violence. As discussed earlier, national laws, policies, and plans may not reflect specific rights violations that women with disabilities experience, leaving them without legal remedies. For instance, the CRPD Committee defines institutionali-sation as a form of violence. However, in many jurisdictions mental health laws permit involuntary admission and treatment and detention in hospitals which amounts to violence. These outdated laws impact access to justice for survivors of violence.

The Convention calls for fair and non-discriminatory legal processes and rules of evidence to ensure survivors of violence can effectively pursue justice. This includes timely investigations, protective measures during legal proceedings and appropriate sanctions for perpetrators. One could argue that these provisions provide concrete protections for women. However, the Convention misses key provisions that would guarantee access to justice for women with disabilities. The ten principles of access to justice for persons with disabilities by the UN Special Rapporteur on the Rights of Persons with Disabilities require fulfilment of key obligations, which include amongst others the right to legal capacity, appropriate procedural accommodations and accessible information and facilities.35 The failure of the Convention to explicitly obligate states to provide reasonable accommodation and procedural accommodations poses an insurmountable challenge for women with disabilities especially those with or perceived psychosocial disabilities and intellectual disabilities. An additional gap is the failure to explicitly recognise the right to legal capacity. Though equality of opportunity and equal application of the law is one of the guiding principles of the Convention, no specific article addresses equality before the law and the obligations of states such as the duty to provide support to those who may require it to exercise their legal capacity. These omissions can have an adverse impact on the ability of women with disabilities to gain access to justice on an equal basis with other women.

3.2.5 Collaboration and cooperation (article 13)

Partnerships and collaboration play a fundamental role in the implementation and monitoring of human rights instruments. The role of civil societies has been underscored in several human rights instruments. For persons with disabilities and disabled peoples’ organisations (DPOs), effective and meaningful engagement in decision-making processes and monitoring is an obligation guaranteed by both the African Disability Protocol36 and the CRPD.37 Article 13 of the AU Convention reinforces this obligation by requiring states to partner with civil society and women’s organisations to create a coordinated response to violence against women and girls. This explicit obligation provides an opportunity for women with disabilities and representative organisations of women with disabilities to engage in national and African regional efforts to combat violence against women with disabilities. However, the reality is that women with disabilities and their representative organisations are excluded from key decision-making processes, including those relating to state reporting processes. To close this gap, there is a need to increase awareness among women with disabilities on existing accountability human rights mechanisms, to ensure that preconditions of meaningful and effective participation are guaranteed - such as accessibility and timely dissemination of information of upcoming sessions of the African Commission - and to financially resource these organisations. Additionally, the granting of Observer Status to the African Disability Forum increases the opportunity for more engagement by DPOs at the African Commission including organisations of women with disabilities.