Disability rights in the African regional human rights system during 2011 and 2012

1 Introduction

The history of disability rights at the African continental level has been described as (at best) one of ‘benign neglect’.6 However, as noted, there have also been a number of significant shifts in this dispensation. In order to understand the current position, this subsection commences with an overview of the foundational framework, with specific reference to the African Charter on Human and Peoples’ Rights (the African Charter),7 and looks at the implementation mechanism for this framework. It then examines recent events, with an emphasis on the debates regarding the need for a new, ‘uniquely African’ human rights instrument.

2 The normative framework

The gradual acknowledgment of disability rights in the African human rights system should be seen against the background of two parallel historical trajectories. On the one hand, there was the growing recognition internationally of disability as a compelling human rights concern; on the other, the slow shift of the Organisation of African Unity (OAU) towards a human rights orientation.8 Considering that the African Charter was drafted and adopted at the beginning of the 1980s, this historical perspective assists towards understanding why this foundational

document contains limited references to disability,9 it also explains certain subsequent events, as appears below.

While the Charter must be read in its entirety, two of its provisions are of interest here. These are article 2 (the prohibition of discrimination) and article 18(4), which provides that the aged and the disabled have the right to ‘special measures of protection’ in keeping with their physical or moral needs.

Although article 2 does not explicitly include disability as one of the ‘listed’ grounds,10 the phrase ‘or other status’ implies that this is not a closed list. Disability-based discrimination can therefore be read in by analogy.11 Article 18(4), on the other hand, has been regarded as more problematic and has (correctly) been subjected to criticism, most notably for being ‘vague and unclear’12 and for conflating the rights of the aged with those of persons with disabilities.13

In the period following the adoption of the African Charter, disability rights began to slowly trickle into the regional system. For example, in 1985, the OAU adopted the Agreement for the Establishment of the African Rehabilitation Institute (ARI). The objectives of the ARI included ‘manpower development’14 and had a strong emphasis on rehabilitation. A further development was the adoption of the African Charter on the Rights and Welfare of the Child in 1990, with a specific article dedicated to the rights of children with disabilities.15

Biegon notes that the end of the UN Decade of Persons with Disabilities (1983-1992) coincided with the rise of democratisation across the continent in the 1990s that brought with it a more ‘favourable environment for the agitation of respect for and protection of human rights’.16 This was reflected in the Grand Bay (Mauritius) Declaration and Plan of Action, adopted by the OAU Ministerial Conference on Human Rights in Africa in April 1999.17 This Declaration notes that the rights of people with disabilities and people living with HIV/AIDS, in particular women and children, are not always observed and urges all African states to work towards ensuring the full respect of these rights.18 Significantly, in July 1999, the OAU Heads of State and Government adopted a resolution declaring the period 1999-2009 as the African Decade of Persons with Disabilities.19

In 2000, with the adoption of the Constitutive Act20 of the African Union (AU), and the transition from the OAU the AU, the move towards a human rights mandate for the regional body was formalised. This Act leaves no doubt about the human rights focus of the AU.21 This shift in emphasis also saw an acceleration in the endorsement of disability rights in the African system. For instance, the first AU Ministerial Conference on Human Rights in Africa, held in Kigali in May 2003, adopted a Declaration that included specific reference to persons with disabilities (among other concerns).22 Noting ‘the plight of the vulnerable groups including persons with disability in general’, delegates called upon member states ‘to develop a Protocol on the protection of the rights of people with disabilities and the elderly’.

It is notable that the main African instruments adopted since 2000, specifically the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol),23 the African Youth Charter,24 the African Charter on Democracy, and

Elections and Governance25 and AU Convention for the Protection and Assistance of Internally Displaced Persons26 all contain disability-related provisions. While these provisions have attracted some criticism in respect of their limited scope and occasionally unwieldy formulation,27 they do provide ‘an evolving convergence as to the standards to be achieved’28 by states in respect of the promotion and protection of disability rights in Africa.

3 Institutions

The African Charter makes provision for the following mechanisms to monitor its implementation: state reporting; a communications procedure; and a judicial procedure. In the case of the former two, state reports and communications are received by the African Commission on Human and Peoples’ Rights (the African Commission). For the judicial procedure, the relevant institution is the African Court on Human and Peoples’ Rights. To date, the African Commission has examined only one disability-related communication. Biegon further observes correctly that disability has been conspicuously absent from both the Commission’s thematic resolutions and state reports submitted to the Commission.29 For the judicial procedure, the relevant institution is the African Court on Human and Peoples’ Rights, although at the time of writing no cases relating to disability have served before the court.30

It is not entirely implausible that the African Commission’s first dedicated efforts on disability rights in 2009 may have been inspired by the CRPD coming into force in 2008, given that it had not previously made attempts to act on the 2003 Kigali Declaration. In May 2009, the Commission expanded its pre-existing ‘Focal Point on the Rights of Older Persons in Africa’ to also include people with disabilities. This initiative is discussed below.

It is encouraging to note that certain of the AU’s organs have now also assumed responsibility for the promotion of disability rights. For example, the Pan-African Parliament (potentially) deals with disability issues through its Committee on Gender, Family, Youth and People with Disabilities.31

In November 2012, the third Session of the AU Conference of Ministers of Social Development adopted the theme of ‘promoting the rights and welfare of persons with disabilities’.32 Under this banner, delegates examined a number of disability-related reports, including the Reviewed Continental Plan of Action on the African Decade of Persons with Disabilities (2010-2019); the Draft African Union Disability Architecture (AUDA); a report on the restructuring of the African Rehabilitation Institute (ARI); and the proposed Protocol on the Rights of Persons with Disabilities.33

4 Recent developments

As noted above, the Kigali Declaration of 2003 called on Member States to develop a Protocol (to the African Charter) with the purpose of protecting the rights of persons with disabilities and the elderly. The African Commission subsequently appointed a ‘Focal Point on the Rights of Older Persons in Africa’ in November 2007.34 In order to remedy the omission of people with disabilities, the Focal Point was expanded in 2009 to become a ‘Working Group on the Rights of Older Persons and People with Disabilities in Africa’.35 The five-member Working Group was mandated inter alia to draft a concept paper for consideration by the African Commission that would serve as the basis for the adoption of a Draft Protocol on Ageing and People with Disabilities.

Members of the Working Group attended an Expert Seminar on the Rights of Older Persons and People with Disabilities in Accra, Ghana from 26-28 August 2009. While the objective of the seminar was to initiate the drafting of a (single) Protocol on the Rights of Older Persons and People with Disabilities in Africa, two distinct documents emerged from the event. The first draft Protocol, which related to ‘Older Persons’, enjoyed further consultation and was later submitted to the African Commission

for consideration.36 The second product of the Expert Seminar, relating to persons with disabilities, had a far stormier course ahead.

This document, known as the ‘Accra Draft’, has been criticised for having been developed without the participation of persons with disabilities; at a time when the principle of ‘nothing about us without us’ is finally gaining recognition in human rights discourse, through the CRPD and its emphasis on participation, this omission in itself should have been sufficient to sink the Accra Draft before it even set sail. Second, as Kamga points out, the Accra Draft presented a diluted version of international standards, most notably the CRPD, without adequately - if at all - introducing an ‘Africa-specific’ perspective;37 that was the reason d’etre for a supplementary regional instrument. It is therefore hardly surprising that the Accra Draft was in 2011 ‘put on hold’ for further reflection.38

At its 49th Ordinary session,39 the African Commission reconstituted the Working Group to include three new members to bring expertise on disability.40 The Working Group subsequently resolved to develop a concept note on the desirability of a Protocol; the completed concept note on the Rights of Persons with Disabilities in Africa and its deliberations on this note persuaded the Working Group in 2012 that such a Protocol is indeed needed.41

Significantly, the Third Session of Ministers of Social Development resolved at its November 2012 meeting that the Working Group should finalise the drafting of the Protocol on the Rights of Persons for adoption in 2014. The draft Protocol should be circulated to Member States and persons with disabilities should be consulted in the drafting of the Protocol. The Protocol should be presented for discussion by the next session of the AU Conference of Ministers of Social Development (scheduled for 2014).

The debates about the adoption of an ‘African Disability Protocol’ have thus now to some degree been settled, at least in respect of whether it is regarded as needed by the Working Group.42 Questions remain on the

form such an instrument should take.43 Among the alternatives proposed have been a new, separate African-specific treaty on the rights of persons with disabilities, with a new treaty body; alternatively, that a new set of treaty standards should be adopted, but without establishing a treaty body, which would be akin to the African Women’s Protocol.44 Whether the maxim ‘from Africa always something new’45 will be applicable to the African Disability Protocol remains to be seen.

It has also been proposed that the existing potential of the African human rights system to realise the rights of people with disabilities should be explored more fully. This may, for example, entail the adoption by the African Commission of thematic resolutions that could act as guidelines to the interpretation of the African Charter.46 This could supplement an African Disability Protocol, especially while the drafting of the latter remains underway. The proposal has considerable merit and should be further explored by disability rights advocates.