SDG and PWDs: Ensuring Equal Access to Justice for Persons with Disabilities (SDG Target 16.3)
Abstract
The Sustainable Development Goals number 16 target 16.3 (SDG Goal 16.3) aims to achieve equal access to justice for all. Therefore, this article focuses on persons with disabilities (PWDs), by analyzing the international normative frameworks on access to justice for persons with disabilities. It also analyzed the situation of PWDs regarding access to justice, and current practices in some countries concerning access to justice for persons with disabilities. The article likewise concludes with suggestions on the way forward to ensure access to Justice for PWDs.
Keywords: Access to Justice, Persons with Disabilities (PWDs), Sustainable Development Goals (SDGs).
Introduction
The World Health Organisation (WHO) and the World Bank Report on Disability (2011), provides a global statistics on disability which indicates that 15% of the world’s population, or more than one billion people in the world today have a disability; and 80% of these people live in developing nations.
Access to justice, as a fundamental right in itself and as a pre-condition of the enjoyment of all other rights, is especially crucial for this category of vulnerable persons, and provides a unique tool to counter the discrimination (and often disrespect, lack of dignity or even violence) that they face. For example, persons with disabilities are frequently denied legal capacity and have difficulty accessing courts and quasi-judicial bodies. Paradoxically, however, those who need effective access to justice most are the ones most frequently encountering barriers to it (Stephanie, 2018).
The 2030 Agenda for Sustainable Development and its 17 SDGs provide a powerful framework to guide local communities, countries and the international community toward the achievement of disability-inclusive development. It pledges to leave no one behind, including people with disabilities and other disadvantaged groups, and has recognized disability as a cross-cutting issue to be considered in the implementation of all of its goals.
Therefore, the Sustainable Development Goals (Goal 16) focuses on promoting peaceful and inclusive societies for sustainable development, providing access to justice for all and building effective, accountable, and inclusive institutions at all levels. It has 12 targets in which target 16.3 is based on promoting the rule of law at the national and international levels and ensure equal access to justice for all, including people with disabilities (UN, 2018).
Persons with Disabilities (PWDs)
The UN Convention on the Rights of Persons with Disabilities (UNCRPD) (2006), described persons with disabilities as “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 the society on an equal basis with others”. A person with disability is therefore any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such impairment. In general, a physical or mental impairment includes hearing, mobility and visual impairments, chronic mental or physical illness and its related complex; and mental retardation that substantially limits one or more major life activities. Major life activities include walking, talking, hearing, seeing, breathing, learning, performing manual tasks, and caring for oneself.
Access to Justice
The issue of access to justice is not new to international human rights law, neither is it confined to the rights of persons with disabilities. Many people from disadvantaged groups, including people with disabilities, face barriers to accessing justice. Without access to justice their voices are not heard and they are unable to exercise their rights, challenge discrimination or hold decision-makers accountable, and as a result they can become more vulnerable and marginalized (Stephanie, 2018).
Sustainable Development Goals (SDGs)
The Sustainable Development Goals (SDGs) is a 2030 Agenda for Sustainable Development, adopted by the 193 Member States of the United Nations at the General Assembly in September 2015. It outlines a transformative vision for economic, social and environmental development and will guide the work of the Organization towards this vision for the 15 years.
Likewise, the 2030 Agenda provides a powerful framework to guide local communities, countries and the international community toward the achievement of Disability–Inclusive Development. The 2030 Agenda (SDGs) pledges to leave no one behind, including persons with disabilities and other disadvantaged groups, and recognizes disability as a cross–cutting issue to be considered in the implementation of all of its goals.
The 2030 Agenda for Sustainable Development, which includes 17 Goals and 169 targets as well as 238 indicators, sets out an ambitious vision for sustainable development and integrates its economic, social and environmental dimensions. This new Agenda enshrines the expectations, aspirations and priorities of the international community to be achieved by 2030 (UN, 2018).
SDG 16 and its Targets
Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels. Therefore, the SDG 16 the following targets:
Target 16.1: Significantly reduce all forms of violence and related death rates everywhere.
Target 16.2: End abuse, exploitation, trafficking and all forms of violence against and torture of children.
Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.
Target 16.4: By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime.
Target 16.5: Substantially reduce corruption and bribery in all their forms.
Target 16.6: Develop effective, accountable and transparent institutions at all levels.
Target 16.7: Ensure responsive, inclusive, participatory and representative decision-making at all levels.
Target 16.8: Broaden and strengthen the participation of developing countries in the institutions of global governance.
Target 16.9: By 2030, provide legal identity for all (universal identity), including birth registration.
Target 16.10: Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements.
Target 16.a: Strengthen relevant national institutions, including through international cooperation, for building capacity at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime.
Target 16.b: Promote and enforce non-discriminatory laws and policies for sustainable development (UN, 2018).
SDG 16 and PWDs
SDG 16, target 16.3 is promoting equal access to justice for all persons, including persons with disabilities. Thus, ensuring equal access to justice for persons with disabilities contributes to their legal empowerment, allowing them to be able to use the law, the legal system and legal services to protect and advance their rights and interests as citizens, contributing to a more inclusive and sustainable society. Equal access to justice for persons with disabilities is linked to their right to recognition everywhere as persons before the law and to the enjoyment of legal capacity. However, access to justice remains elusive for many persons with disabilities due to environmental, institutional, financial and attitudinal barriers (UN, 2018).
International Normative Frameworks on Access to Justice for Persons with Disabilities
Under SDG 16, target 16.3 calls for ensuring equal access to justice for all, including PWDs. Hence, Article 13 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) requires States Parties to ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations in all legal proceedings; and calls for the promotion of appropriate training for those working in the administration of justice. The right to recognition everywhere as persons before the law and to the enjoyment of legal capacity are covered in article 12 of the UNCRPD, which reaffirms that persons with disabilities have the right of recognition everywhere as persons before the law, guarantees the right to legal capacity for persons with disabilities, and requires States Parties to take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
According to General Comment No. 1 of the Unites Nations Committee on the Rights of Persons with Disabilities, ‘equal recognition before the law’, included in article 12, requires governments to move away from substitute decision-making (in which a proxy makes legal decisions on behalf of the person with disabilities) in favour of supported decision-making, in which persons with disabilities enjoy full recognition and equality under the law and can exercise their legal capacity to make legal decisions. In the supported decision-making paradigm, the individual receives support from a trusted individual, network of individuals or entity to make legal decisions (UN, 2019).
The Situation of Persons with Disabilities Regarding Access to Justice
For many persons with disabilities, access to justice remains a challenge. In five countries around 2012, on average, among persons with disabilities who needed legal advice, 86% were not able to receive it. This unmet need for legal advice among persons with disabilities is very high in all five countries, ranging from 65% in Zimbabwe to 96% in Lesotho. Many persons with disabilities face various obstacles/barriers to access education, and without education, persons with disabilities may lack the skills to seek legal advice. Lower education levels and barriers to employment also lead to less financial resources to meet the high costs of legal services. Those who are able to overcome these obstacles/barriers and seek legal advice will face further barriers. Lack of disability awareness among legal officers is an ongoing obstacle for persons with disabilities to enjoy equal access to justice. Moreover, legislation, legal information and documents are still not always disseminated in an accessible manner. Legal services, court rooms and police stations remain in many places inaccessible and lacking reasonable accommodations. In five developing countries, on average, 31% of persons with disabilities indicated that the courts and the police stations were not accessible. About 15% of persons with disabilities in South Africa and about 45% of persons with disabilities in Lesotho experienced that lack of accessibility. Equal access to justice for all, including persons with disabilities, cannot be achieved without their equal recognition before the law and the enjoyment of legal capacity. The Constitution is the cornerstone of a country’s rule of law and the legal system for all the citizens. However, among the 193 United Nations Member States, four guarantee the rights of persons with disabilities in their Constitutions but allow for exceptions if disability prevents persons from exercising their rights, thus compromising equal recognition before the law and the enjoyment of legal capacity. In addition, upon ratification of the CRPD, another nine countries expressed restrictions on the enjoyment of legal capacity by all persons with disabilities: six countries declared that their understanding of article 12 is to have both substituted and supported decision making; and three countries indicated existing conditions or restrictions to legal capacity (UN, 2019).
Current practices
More and more countries are adopting accessibility guidelines for public buildings, an effort which would also benefit the accessibility of courts and police stations. To further enhance the accessibility of justice, beyond accessibility of the premises, some countries took the following initiatives: employment of sign language interpreters at courts for persons with disabilities who are identified as a survivor, witness or alleged offender; establishment of standby teams of disability experts; establishing services by special investigators and speech language pathologists in support of communications in investigations involving persons with disabilities, particularly those with intellectual disabilities; and issuing summonses in language that is easy to understand for persons with intellectual disabilities. To address financial barriers, in some countries, persons with disabilities benefit from exemptions from paying court fees. There are also civil society initiatives to provide free legal advisory services and legal support for persons with disabilities.
Many countries have incorporated substitute decision-making (e.g. guardianship) rather than supported decision-making in their legislation. But there are positive initiatives from some countries in favour of abolishing substitute decision-making in favour of supported decision-making for persons with disabilities. For example, Germany has ceased the application for full guardianship since 1992. In Sweden, a ‘legal mentor’ acts as the individual's agent with the individual's consent from Sweden and, at any point, the individual may terminate the mentorship and therefore, the wishes of the individual are met at every stage of their decision-making (UN, 2019).
Conclusions and the Way Forward
According to UN (2019), persons with disabilities face barriers to accessing justice due to the inaccessibility of courts, police stations and legal documents as well as a lack of disability awareness of legal officers, and laws that limit their legal capacity and equal recognition before the law. Yet, persons with disabilities are at a higher risk of violence and discrimination and may have a greater need for justice. Existing evidence from developing countries shows that most persons with disabilities who need to access legal services do not receive these services. Measures to improve access to justice for persons with disabilities have been taken but other measures need to be targeted to citizens with disabilities: basic legal services provision, legal support and financial support with legal fees.
The UN (2019) views that, to achieve equal access to justice for persons with disabilities, the following actions must be included:
(1) Make courts, police stations, and other legal services and documents fully accessible for persons with disabilities. Ensure that facilities are physically accessible and legal documents are available in an accessible format. Provision of basic legal services and legal support should accommodate the specific needs of citizens with disabilities. Countries can use opportunities like the construction or renovation of court buildings to improve accessibility as it is usually less costly than to undertake renovations only for accessibility. Accessibility of legal premises and documents should be addressed in a systemic way through national guidelines.
(2) Empower persons with disabilities to exercise their legal rights and access justice. Training should be offered to persons with disabilities on legal information and their legal rights to enhance their ability to exercise their rights. All training should be provided in accessible formats.
(3) Raise awareness of disability and offer disability training among legal service providers and legal officers on the specific needs of persons with disabilities and how to strengthen the quality of legal services for persons with disabilities. All training should be provided in accessible formats.
(4) Promote supported decision-making and promote legal support services for persons with disabilities. There is a lack of legislative frameworks and policies in most jurisdictions as guardianship law and practice continue to dominate. These laws and policies will need revision to move towards supported legal decision-making. Financial resources and capacity-building will be needed to develop and maintain the supported decision-making model. It will be necessary to provide training and education as well as training for the service providers of legal support.
(5) Conduct studies on the factors behind the unmet need for legal services among persons with disabilities, to identify the challenges and barriers that persons with disabilities experience when seeking justice.
(6) Use disability surveys to collect and disseminate data on the unmet need for legal services among persons with disabilities and on the accessibility of courts and police stations. Disability surveys target the population of persons with disabilities and can be used to monitor unmet need for legal services and the percentage of persons with disabilities who report that courts and police stations are not accessible. The number of persons with disabilities surveyed should be high enough to allow for disaggregation by sex, age, ethnicity, and urban versus rural location.
References
Stephanie, P. (2018). “Inaccessible Justice: Human Rights, Persons with Disabilities and the Legal System,” 17 ILSA Journal of International and Comparative Law, 281 (Spring 2018). Retrieved from: http://sites.google.com/site/womenenabled/access-to-justice on June, 2022.
United Nations (UN) (2019). Disability and Development Report Realizing the Sustainable Development Goals by, for and with persons with disabilities. New York: UN Press.
United Nations (UN) (2018). The 2030 Agenda and the Sustainable Development Goals: An opportunity for Latin America and the Caribbean (LC/G.2681-P/Rev.3). Santiago: UN Press.
UN (2006). Convention on the Rights of Persons with Disabilities (UNCRPD). Retrieved on March 14, 2022 from https://www.un.org/development/desa/disbilities/convention-on-the-rights-ofpersons-with-disabilities/article-1-purpose.html
WHO & World Bank (2011). World Report on Disability. Retrieved on March 19, 2022 from: http://www.who.int/disabilities/world_report/2011/report/en/
