Abstract
Disability rights are basic human rights, not special rights. Persons with disabilities have the same rights to non-discrimination, accessibility, equality of opportunity, inclusion and full participation in society as all people. Therefore, this article analyzed the Universal Declaration of Human Rights (UDHR) which stated that “All human beings are born free and equal in dignity and rights, and everyone is entitled to all the rights and freedoms without discrimination of any kind”. Likewise, this article analyzed the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which was adopted to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Keywords: Disability Rights, Human Rights, Persons with Disabilities (PWDs).
1. Introduction
Disability is part of the human condition. Globally over 1 billion persons, or 15% of the world’s population, live with some form of disability. When the family members of persons with disabilities are taken into account, an even greater number of people are affected by disability. As a result of global trends in population ageing and an increase in chronic health conditions, the incidence of impairment and disability among the general population is expected to increase (WHO & World Bank, 2011).
Although persons with disabilities are often said to constitute the world’s largest minority, in Africa, as in all regions of the world, persons with disabilities face exclusion, discrimination and challenges to the enjoyment of their fundamental rights and their inclusion in development. Persons with disabilities are disproportionately likely to live in poverty and, too often across Africa, do not have equal access to education, health care, employment opportunities, housing, social protection systems, justice, and cultural expression and participation in political life. The ability of persons with disabilities to participate in society is often frustrated because physical environments, transportation and information and communications systems are not accessible.
In many cases discrimination results, at least in part, from negative attitudes and perceptions, misunderstandings, and lack of awareness. For example, the misconception that persons with disabilities are not productive members of the workforce may lead employers to discriminate against applicants with disabilities, even if they are highly qualified to perform the work. Derogatory attitudes and discrimination from external sources also impact on the self-perceptions of persons with disabilities, creating additional barriers to participation in society and development. In many communities the language used to describe or refer to an individual with a disability may serve to reinforce oppression. Very often, offensive terminology makes its way into laws and policies. Misconceptions surrounding disability may also impact on the design and implementation of development programmes in a way that presents barriers to participation, as both agents and beneficiaries, by persons with disabilities.
Heightened levels of exclusion are often faced by individuals with specific types of disabilities, such as mental health, intellectual or psychosocial disabilities, as well as by those experiencing multiple discrimination on the basis of disability coupled with other aspects of identity, including gender, age (children, youth and older persons), ethnicity, race, indigenous or minority status or other categories. For example, in some societies customary laws or attitudes toward women may prohibit them from owning property or fully participating in public life. Members of racial or ethnic minorities are often prohibited from speaking their own language or practising their religion. A person with a disability who also belongs to another marginalized group may therefore face several layers of discrimination and barriers to his or her human rights (for example, a woman with a disability who belongs to an ethnic minority).
At the international level, governments have worked together to try to address the situation of persons with disabilities. In 2006 these efforts resulted in the adoption of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The Convention recognizes that disability is both a development and a human rights issue, requiring different action at different levels by multiple stakeholders.
2. Concept of Disability
“Disability is described as an evolving concept that results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”. Likewise, “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others” (UNCRPD, 2006).
3. Approaches of Understanding Disability
The situation of persons with disabilities is in many ways affected by societal perceptions of disability. How disability is understood or misunderstood can have a tremendous impact on all aspects of life for persons with disabilities and at all levels, for example from the ways in which one is treated within one’s community to the ways in which one is treated by policy-makers at national level in the course of their work. It is generally considered that there are four approaches of, or models for, understanding disability; they are mentioned below:
The Charity or Welfare Model
The Medical Model
The Social Model
The Human Rights Model
3.1. Charity or Welfare Model
Historically, disability has been seen as a charity issue. Under the charity model, disability has been seen in terms of tragedy. Persons with disabilities have been seen as helpless, to be pitied and in need of care. This perspective has viewed disability as a burdensome condition and persons with disabilities as passive, not active, members of society.
3.2. Medical Model
Under the medical model, disability has been understood as a medical problem that needs medical or rehabilitation attention in order to “fix” or “cure” an individual. This perspective has viewed a person with disabilities as having a condition that sets him or her apart from the rest of society, or as “broken” or “sick” and needing to be made “normal,” if they are to participate in society. To be sure, persons with disabilities require medical care like all people. Moreover, disability may require certification from a medical doctor.
However, defining disability simply as a medical situation or in terms of charity overlooks the many barriers that prevent persons with disabilities from enjoying full participation in society and contributes to the marginalization and disempowerment of persons with disabilities.
3.3. Social Model
The social model of disability understands barriers in society as disabling – under this view, society limits the participation of persons with impairments by creating obstacles. These may take many forms, including institutional, attitudinal and physical barriers, as well as barriers to communication. For example, when a person who uses a wheelchair comes across a staircase, the result - that is, the interaction between the fact that the person is using a wheelchair and the inaccessibility of the staircase - is a disability.
Conversely, when a building has a ramp, persons who use wheelchairs can enter the building without any distinction between persons with or without disabilities. Likewise, if a teacher makes negative assumptions about a child with autism, these attitudes create a barrier to the child’s education: the disability in this case is the interaction between the cognitive functioning of the child and the negative attitudes of the teacher. Another example is persons who are blind. Where a teacher writes on the chalkboard but does not read aloud, a student who is blind cannot access the information. If the teacher read aloud or had another student read material aloud, the educational experience is made accessible.
The social model of disability regards people living with disabilities as full members of society who have important contributions to make to their families and community. It recognizes that persons with disabilities should determine the course of their lives to the same extent as other members of society and it paves the way for social action by persons with disabilities challenging barriers to participation, as well as exclusionary practices.
3.4. Human Rights Model
The human rights model of disability, as reflected in the UNCRPD, builds on the social model, placing it within a framework of rights and responsibilities. Under the human rights model, persons with disabilities are identified as rights holders and subjects of human rights law on an equal basis with all other persons. A person’s disability is recognized and respected as an element of natural human diversity on the same basis as race or gender, and the human rights model addresses disability-specific prejudices, attitudes and other barriers to the enjoyment of human rights. The human rights model further places the responsibility on governments and society for ensuring that the political, legal, social, and physical environments support the human rights and full inclusion and participation of persons with disabilities.
The social and human rights models of disability highlight the responsibility of countries to identify and remove barriers that inhibit human rights realization for persons with disabilities. Together the two models offer a holistic and progressive framework for promoting and protecting the rights and inclusion of the many persons with disabilities in all aspects of society and development.
4. Concept of Human Rights
Human rights are standards that recognize and protect the dignity of all human beings. Human rights govern how individual human beings live in society and with each other, as well as their relationship with the State and the obligations that the State have towards them.
Human rights law obliges governments to do some things, and prevents them from doing others. Individuals also have responsibilities: in using their human rights, they must respect the rights of others. No government, group or individual person has the right to do anything that violates another’s rights (UNICEF, 2015).
Human rights are rights we have simply because we exist as human beings - they are not granted by any state. These universal rights are inherent to us all, regardless of nationality, sex, national or ethnic origin, color, religion, language, or any other status. They range from the most fundamental - the right to life - to those that make life worth living, such as the rights to food, education, work, health, and liberty (UNHR, 2019).
4.1. Principles of Human Rights
Universal and inalienable
Human rights are universal and inalienable. All people everywhere in the world are entitled to them. No one can voluntarily give them up. Nor can others take them away from him or her.
The principle of universality of human rights is the cornerstone of international human rights law. This means that we are all equally entitled to our human rights. This principle is repeated in many international human rights conventions, declarations, and resolutions.
Human rights are inalienable. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.
Indivisible
Human rights are indivisible. Whether civil, political, economic, social or cultural in nature, they are all inherent to the dignity of every human person. Consequently, they all have equal status as rights. There is no such thing as a 'small' right. There is no hierarchy of human rights.
Inter-dependence and inter-relatedness
All human rights are interdependent. This means that one set of rights cannot be enjoyed fully without the other. That is to say, the realization of one right often depends, wholly or in part, upon the realization of others. For instance, the realization of the right to health may depend on the realization of the right to education or of the right to information. Also, making progress in civil and political rights makes it easier to exercise economic, social and cultural rights. Similarly, violating economic, social and cultural rights can negatively affect many other rights.
Equality and non-discrimination
All individuals are equal as human beings and by virtue of the inherent dignity of each human person. All human beings are entitled to their human rights without discrimination of any kind, such as race, color, sex, ethnicity, age, language, religion, political or other opinion, national or social origin, disability, property, birth or other status as explained by the human rights treaty bodies.
Participation and inclusion
Every person and all peoples are entitled to active, free and meaningful participation in, contribution to, and enjoyment of civil, political, economic, social and cultural development, through which human rights and fundamental freedoms can be realized.
Accountability and rule of law
States and other duty-bearers must comply with the legal norms and standards enshrined in human rights instruments. Where they fail to do so, aggrieved rights-holders are entitled to institute proceedings for appropriate redress before a competent court or other adjudicator, in accordance with the rules and procedures provided by law.
4.2. The Universal Declaration of Human Rights (UDHR) (1948)
The Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly on 10 December 1948, was the first legal document to set out the fundamental human rights to be universally protected.
All human rights are equally important, and all governments must treat human rights in a fair and equal manner, on the same footing and with the same emphasis. All states have a duty, regardless of their political, economic and cultural systems, to promote and protect all human rights for everyone without discrimination.
So no matter what distinctions people have, there is one basic principle that underlies all the rights outlined in the UDHR: that every human being has the same inalienable rights. This means human rights are the same for every man, woman and child across the world, no matter what their circumstances.
There can be no distinction of any kind: including race, colour, sex, sexual orientation or gender identity, language, religion, political or any other opinion, national or social origin, of fortune, of birth or any other situation. Universal means everyone, everywhere.
The UDHR also shows us that human rights are interdependent and indivisible. All of the 30 articles in the Declaration are equally important. Nobody can decide that some are more important than others. Taking away one right has a negative impact on all the other rights.
4.3. Human Rights Enshrined in the UDHR The following are human rights as enshrined in the UDHR:
Article 1: Right to Equality
Article 2: Freedom from Discrimination
Article 3: Right to Life, Liberty, Personal Security
Article 4: Freedom from Slavery
Article 5: Freedom from Torture and Degrading Treatment
Article 6: Right to Recognition as a Person before the Law
Article 7: Right to Equality before the Law
Article 8: Right to Remedy by Competent Tribunal
Article 9: Freedom from Arbitrary Arrest and Exile
Article 10: Right to Fair Public Hearing
Article 11: Right to be Considered Innocent until Proven Guilty
Article 12: Freedom from Interference with Privacy, Family, Home and Correspondence
Article 13: Right to Free Movement in and out of the Country
Article 14: Right to Asylum in other Countries from Persecution
Article 15: Right to a Nationality and the Freedom to Change It
Article 16: Right to Marriage and Family
Article 17: Right to Own Property
Article 18: Freedom of Belief and Religion
Article 19: Freedom of Opinion and Information
Article 20: Right of Peaceful Assembly and Association
Article 21: Right to Participate in Government and in Free Elections
Article 22: Right to Social Security
Article 23: Right to Desirable Work and to Join Trade Unions
Article 24: Right to Rest and Leisure
Article 25: Right to Adequate Living Standard
Article 26: Right to Education
Article 27: Right to Participate in the Cultural Life of Community
Article 28: Right to a Social Order that Articulates this Document
Article 29: Community Duties Essential to Free and Full Development
Article 30: Freedom from State or Personal Interference in the above Rights.
5. Concept of Disability Rights
Disability rights are human rights. Everyone deserves to be included and live a full life in their community — accessing the same public spaces, transportation, information, healthcare services, education, and work/employment opportunities as anyone else.
Disability is a human rights issue because, even though persons with disabilities have the same human rights as other populations, historic disadvantages and discrimination present numerous barriers in realizing these on an equal basis. Harmful attitudes, myths, prejudices and stereotypes regarding disability reinforce and perpetuate disability discrimination, and persons with disabilities, in all regions of the world, face a range of violations of their fundamental rights. These include, among many others, lack of equal access to public services and social protection, lack of access to justice and denial of the right to live independently in the community. The Convention does not create new rights
for persons with disabilities. Rather, it applies human rights affirmed in earlier instruments in the context of disability, setting out measures to address more comprehensively the specific challenges facing persons with disabilities.
5.1. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)
The Convention on the Rights of Persons with Disabilities was adopted unanimously by the United Nations General Assembly in 2006. It is the first legally-binding international human rights convention to specifically address the human rights of persons with disabilities. Persons with disabilities from around the world participated in its drafting, as representatives of government, civil society and national human rights institutions. The UNCRPD therefore reflects the actual experience of persons with disabilities and covers civil, political, economic, social and cultural rights. In addition the UNCRPD underscores that persons with disabilities very often live in poverty. As a consequence the UNCRPD emphasizes State obligations in the area of international cooperation. It sets forth the principle that development programmes must be inclusive of persons with disabilities and their representative organizations. Therefore, basic structure and major components of the UNCRPD are reviewed below:
Purpose of the UNCRPD
The purpose of the UNCRPD under Article 1 is to:
‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.
Article 1 makes clear that persons with disabilities are entitled to the same human rights as all other persons. The UNCRPD does not aim to create new rights; rather, it seeks to apply the existing human rights law framework to the context of disability. In this sense, it provides guidance to States Parties on how human rights law should apply to the lives of persons with disabilities.
General Principles of the UNCRPD
The general principles of the UNCRPD, set out in Article 3, provide guidance for understanding and interpreting the human rights provisions in the UNCRPD. The following general principles as follows:
Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons.
Non-discrimination.
Full and effective participation and inclusion in society.
Respect for differences and acceptance of persons with disabilities as part of human diversity and humanity.
Equality of opportunity.
Accessibility.
Equality between men and women.
Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
State Parties are obliged to take into account the general principles of the UNCRPD in the development of national laws, policies, and practices that affect persons with disabilities. The general principles must also be applied in the interpretation of the human rights set out in the UNCRPD as well as in the monitoring and implementation of UNCRPD measures.
The following examples illustrate how the general principles should be applied in interpreting the UNCRPD’s provision:
International cooperation and disability inclusive development: The right of persons with disabilities to benefit from international cooperation as both participants and beneficiaries means that they must be included in development decision-making, reflecting the principles of participation and inclusion.
Community living and the principle of dignity, autonomy and choice: The right of persons with disabilities to live in the community means that housing options must reflect principles of dignity, respect, and choice, and facilitate the autonomy of persons with disabilities to live where and with whom they choose.
Access to justice and the principle of non-discrimination: State parties to the UNCRPD are required to undertake measures to ensure that persons with disabilities may effectively access justice systems. A failure to provide reasonable accommodation to ensure that persons with disabilities can participate in court proceedings as parties to a dispute, as witnesses, as jurors or as lawyers contravenes the principle of nondiscrimination.
Education and the principle of equality of opportunity: The right of persons with disabilities to education requires that students with disabilities have equality of
opportunity in accessing all levels of education.
Political participation and the principle of accessibility: persons with disabilities have the right to participate in political and public life. Measures to ensure that persons
with disabilities are able to exercise their right to vote or participate in political processes must comply with the principle of accessibility.
Linguistic identity and the principle of respect for difference: the right of persons with disabilities to participate in the cultural life of their community includes the right to linguistic identity. Policies to protect the right of deaf persons to use sign language, including the adoption of sign language as a national or official language, reflect the principle of respect for differences in the context of linguistic rights.
National level monitoring and the principle of participation and inclusion: the UNCRPD requires State parties to undertake measures to put in place monitoring at national level.
Including persons with disabilities and their representative organizations in national-level monitoring of UNCRPD implementation and ensuring that their voice is heard in discussions on development of the periodic report for submission to the UNCRPD Committee reflects respect for the principle of participation and inclusion.
Employment and equality between men and women: the right of persons with disabilities to employment requires State parties to undertake measures that will ensure that both women and men with disabilities have equal access to employment opportunities and that discriminatory laws on the basis of sex are repealed.
Decision-making and respect for the evolving capacity of the child: The UNCRPD recognizes that children with disabilities are entitled to have their views heard, as are all children. This right respects the evolving capacity of children with disabilities.
General Obligations under the Convention
Following Article 3 on General Principles, Article 4 of the UBCRPD sets out General
Obligations, clearly defining the specific actions governments must take to ensure that the rights of persons with disabilities are respected, protected, and fulfilled. Therefore, actions to be taken by State Parties are as follows:
Adopt legislation and administrative measures to promote the human rights of persons with disabilities.
Adopt legislative and other measures to abolish discrimination.
Protect and promote the rights of persons with disabilities in all policies and programmes.
Stop any practice that breaches the rights of persons with disabilities.
Ensure that the public sector respects the rights of persons with disabilities.
Ensure that the private sector and individuals respect the rights of persons with disabilities.
Undertake research and development of universally-designed goods and services and accessible technology for persons with disabilities and encourage others to undertake such research.
Provide accessible information on assistive technology to persons with disabilities.
Promote training on the rights of the Convention for professionals and staff who work with persons with disabilities.
Consult with and involve persons with disabilities in developing and implementing legislation and policies and in decision-making processes that concern them.
Many of the general obligations in the UNCRPD are common to other human rights conventions. However, the general obligations of State parties with respect to the rights of persons with disabilities include certain unique requirements that are not mentioned in other human rights instruments. These include such things as promoting universal design of goods and services and undertaking research on accessible technologies and assistive technologies. It is crucial to understand these principles as foundational, overarching obligations that are applicable to every other subject within the UNCRPD.
One objective of this comprehensive article on general obligations is to counteract the historic failure of States to truly understand their obligations to persons with disabilities as fundamental human rights obligations. States have tended to view these responsibilities as representing exceptional treatment or special social measures, not as essential requirements under human rights law. Clearly expressing them as general obligations in the Convention is an important step towards reversing this harmful way of thinking.
Specific Rights set out in the UNCRPD
The body of the UNCRPD sets out the standards – the rights and obligations – relating to persons with disabilities. While the UNCRPD does not aim to establish new rights for persons with disabilities, it applies existing rights as appropriate to persons with disabilities, and outlines the specific responsibilities of Governments and other actors in relation to those rights.
Human Rights defined in the UNCRPD are as follows:
Article 5: Equality before the law and non-discrimination;
Article 10: Right to life, liberty and security of the person;
Article 12: Equal recognition before the law and legal capacity;
Article 13: Right of access to justice on an equal basis with others;
Article 14: Liberty and security of the person;
Article 15: Freedom from torture or cruel, inhuman or degrading treatment or punishment;
Article 16: Freedom from exploitation, violence and abuse;
Article 17: Protecting the integrity of the person;
Article 18: Liberty of movement and nationality;
Article 19: Living independently and being included in the community;
Article 21: Freedom of expression and opinion, and access to information;
Article 22: Respect for privacy;
Article 23: Respect for home and the family;
Article 24: Right to education;
Article 25: Right to health;
Article 27: Right to work and employment;
Article 28: Right to an adequate standard of living and social protection;
Article 29: Right to participate in political and public life;
Article 30: Right to participate in cultural life, recreation, leisure and sport.
While all human rights are indivisible, interdependent and interrelated, certain provisions are fundamentally cross-cutting and have a broad impact on all other articles. Sometimes referred to as articles of general application, these articles are therefore placed at the beginning of the Convention to reinforce their importance. Article 3, General principles, and Article 4, General Obligations, both discussed above, clearly fall into this category. Additional UNCRPD articles of general application include:
Article 5, which sets out the fundamentally important obligation of equality and non-discrimination that applies with respect to all civil, political, economic, social and cultural rights.
Articles 6 and 7 on women and children with disabilities respectively, which relate to members of the disability community who may experience multidimensional discrimination based on disability, gender or age. The UNCRPD is to be understood and interpreted in keeping with the concept of gender equality and age equality.
Article 8 on awareness raising, which underscores the important role that stigma and stereotypes can play in marginalizing persons with disabilities, ultimately creating the conditions in which discrimination can flourish. Accordingly Article 8 requires State parties to undertake measures to combat harmful stereotyping through various means of awareness raising and training, among others.
Article 9, which outlines the concept of accessibility, applicable in relation to physical environments as well as information and communication, and requires State parties to undertake measures to enhance access in all spheres
The UNCRPD also articulates the responsibility of States Parties to take action to create the appropriate enabling environments to ensure that persons with disabilities can fully enjoy their human rights on an equal basis with others. Relevant UNCRPD articles include:
Article 9 on accessibility, which is a fundamental prerequisite for the ability of persons with disabilities to live independently and fully participate in society and development.
Article 11 on situations of risk and humanitarian emergencies, which requires State parties to take action to ensure that persons with disabilities are protected in situations of risk and humanitarian emergencies.
Article 13 on access to Justice, which is both a fundamental right and also essential for protecting all other economic, social, cultural, civil and political rights of persons
with disabilities.
Article 20 on personal mobility, which requires State parties to take measures to ensure mobility to promote independence for persons with disabilities, which impacts on the ability to participate in all aspects of society and development.
Article 26 on habilitation and rehabilitation, which are required for persons with disabilities to enable maximum independence and ability.
Conclusion
Traditional approaches to disability have, in many ways, given rise to stigmatization
and discrimination against persons with disabilities. Although this is increasingly well recognized, the charity and medical models continue to be reflected in the laws and policies of many countries in Africa and elsewhere around the globe. Legal and policy frameworks based on the charity and medical models contribute to the marginalization of persons with disabilities, for example by excluding persons with disabilities from decision-making processes and by separating persons with disabilities into segregated schools, long-term care institutions, and sheltered workshops for employment. When persons with disabilities are unable to participate fully in development, the result is social isolation and human rights violations.
With the adoption of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the world started a new chapter for the one billion people living with a disability. It formalized the obligation of Member States to guarantee the rights of persons with a disability, and provided a framework for people to claim their equal human rights and inclusion in society.
Furthermore, UNCRPD moves away from traditional models of disability, and views disability as a rights issue as well as a development issue, with a focus on the participation of persons with disabilities in asserting their rights and development. Therefore, States Parties are held accountable for implementation of the UNCRPD by the monitoring mechanisms and reporting requirements of the UNCRPD.
References
UDHR (1948). Universal Declaration of Human Rights. Retrieved from: https://www.standup4humanrights.org/en/article.html
UNHR (2019). Human Rights. Retrieved from: https://www.ohchr.org/en/what-are-human-rights on 23 September, 2022.
UNICEF (2015). Introduction to Human Rights Based Approach. Retrieved from: https://www.unicef.org/child-rights-convention/what-are-human-rights on 21 September, 2022.
UNCRPD (2006). Convention on the Rights of Persons with Disabilities. Retrieved from: http://www.un.org/esa/socdev/enable/rights/convteexte.htm on 20 September, 2022.
WHO and World Bank, (2011). World report on disability. Geneva: WHO. Retrieved from: http://www.who.int/disabilities/world_report/2011/report.pdf on 12 September, 2022.
