The United Nations General Assembly in 2006 adopted the Convention on the Rights of Persons with Disabilities (CRPD), sparking debate in Africa about the desirability and feasibility of adopting an African pendant to this UN treaty. Two main rationales that support an 'African' treaty on the rights of persons with disabilities (PWDs) are examined in this article. The first is a process argument that contends that African participation in the elaboration of the CRPD was inadequate. The second, substantive argument suggests that the CRPD, itself, is defective, as it does not adequately address issues pertinent to and reflecting the life world of Africans with disabilities. Concluding that both rationales lack persuasive force, the authors identify two alternative courses of action. First, they argue that the CRPD should be prioritised and used to its fullest extent before attempts are made to elaborate parallel African standards to the CRPD. Among the measures to be prioritised are increased ratification, domestication, presentation of state and alternative civil society reports, and submission of individual complaints. Second, given that all African Union (AU) member states (except South Sudan) are party to the African Charter on Human and Peoples' Rights, they contend that the existing mechanisms under the African human rights system should first be fully exploited. Although the African human rights system may not have delivered sufficient results when it comes to PWDs, it has taken some tentative steps and has further unexplored potential. There is both a need and the potential for the regional system to play its part in advancing the rights of PWDs. In particular, the African Commission on Human and Peoples' Rights could draw inspiration from the recent adoption of its first General Comment (on art 14(1)(d) and (e) of the Women's Protocol) to spell out the implications of the African Charter for PWDs. Formulating a new treaty is a complex and time-consuming exercise that will further delay the effective implementation of states' obligations. However, if the option of an African-specific treaty gains wide support, it should take the form of a protocol to the African Charter, with the African Commission as monitoring mechanism, and not as a separate treaty with a self-standing treaty monitoring body.
This chapter discusses the compliance/implementation studies in the African human rights system, in which Frans Viljoen has a proven record of thought leadership. It begins by tracing the evolution of the African human rights system, looking at the African Commission on Human and Peoples’ Rights (ACHPR); the African Committee of Experts on the Rights and Welfare of the Child (ACERWC); and the African Court on Human and Peoples’ Rights (ACtHPR). The chapter then identifies five major trends in compliance/implementation studies. These include the increasing usage of empirical research; the seeming preference for in-depth case studies of particular cases or countries; the interrogation of unexamined truisms or assumptions; the redirecting of the analytical lens to sub-regional courts and tribunals; and the evaluation of the mechanisms of the regional bodies for monitoring compliance. The chapter argues for more energy to be channelled towards generating interdisciplinary research, a task that calls for greater involvement of non-lawyers in the enterprise of studying compliance and implementation in the African system. It also suggests that much more attention should be directed at understanding the broader impact of the decisions of regional bodies, that is, the indirect effects of the decisions at the domestic level such as changes in societal attitudes and public discourse.
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