The Feasibility and Desirability of an African Disability Rights Treaty: Further Norm-Elaboration or Firmer Norm-Implementation?

Abstract

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.

Legal Capacity of Parties With Intellectual, Psycho-Social and Communication Disabilities in Traditional Courts in Kwazulu-Natal

“…187 Viljoen and Biegon dismissed this argument on the basis that the CRPD does stress community living and supports. 188 While this argument is persuasive, the communitarianism inherent in African customary law and world view can be considered to be at odds with 'autonomy' and recognition of persons with disabilities as self-advocates with the right to represent themselves in disputes affecting them. Balancing the notion of equal recognition before the law for persons with disabilities, whether seen as individual autonomous beings in the 'Western' sense, or members of the community in the 'African' sense, is not necessarily mutually exclusive.…”

Politics, Disability Governance and Inclusiveness of Parasport Athletes in a Coronavirus Pandemic Aftermath in Africa: Observations from Nigeria

“…Also, according to the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Persons with Disabilities in Africa, people with disabilities have inalienable human rights and dignities that should be protected, safeguarded, and sustained in the continent and by her numerous intergovernmental public policy infrastructures as enshrined in the African Union Protocol, adopted January 29, 2018. Findings from studies [4,5] suggest that a conscious global effort towards domestication of the UN, AU, and every other supranational organizations' protocol and charter on disability inclusion persist state-qua-state.…”