African Disability Rights Protocol: A Roadmap for Ratification
Abstract
African Disability Rights Protocol was adopted in 2018 by the African Union but for it to become legally binding, member states of the African Union must sign and ratify it. Therefore, this article analyzed the purpose of the Protocol, general principles of the Protocol, general obligations of the Protocol, reasons for ratification of the Protocol as well as the process of ratification of the Protocol. Likewise, the article ended with a conclusion.
Keywords: Disability Rights, Protocol, Roadmap, Ratification.
1. Introduction
The African Union Assembly adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (Africa Disability Protocol) on 28 January 2018. The African Commission on Human and Peoples’ Rights (African Commission) prepared this document, through a collaborative process involving state representatives, civil society and disabled persons organizations to complement the African Charter on Human and Peoples’ Rights (African Charter). The African Charter does not make provision for persons with disabilities. The African Disability Rights Protocol addresses the continued exclusion of persons with disabilities. affecting persons with disabilities. The Protocol contextualizes the rights of persons with disabilities in Africa and provides for the specific protection of rights that are violated on the continent. The African Disability Rights Protocol also aims to provide a foundation that enables the African Union Member States to formulate or amend laws that impact persons with disabilities, thus curing the existing gap in constitutional and legislative protection of the rights of persons with disabilities.
2. Conceptual Clarification
2.1. Persons with Disabilities (PWDs)
The African Disability Protocol (2018) described that, persons with disabilities (PWDs) “include those who have physical, mental, psycho-social, intellectual, neurological, developmental or other sensory impairments which in interaction with environmental, attitudinal or other barriers hinder their full and effective participation in society on an equal basis with others”.
2.3. Protocol
Protocol The term 'protocol' is used for agreements less formal than those entitled 'treaty' or 'convention'. A protocol signifies an instrument that creates legally binding obligations at international law. In most cases this term encompasses an instrument which is subsidiary to a treaty. A protocol is annexed to a treaty and stipulates detailed measures or actions on a specific part of that treaty. When signatory parties enter into a treaty they are also bound to any protocols governed by the treaty.
3. African Disability Rights Protocol
The African Disability Rights Protocol is a human rights treaty that addresses forms of discrimination affecting people with disabilities living in African countries, including harmful practices, beliefs and superstitions.
Furthermore, the African Disability Protocol is the legal framework based on which member states of the African Union are expected to formulate disability laws and policies to promote disability rights in their countries.
The African Disability Protocol ensures that no one is truly left behind. It is unique to the continent and takes African practices and concerns into consideration so that the lives of people with disabilities improve. It tackles the ingrained issues of disability discrimination so that everyone can access health, education and employment without stigma.
The protocol addresses and encompasses specific issues such as customs, traditional beliefs, harmful practices and the role of the family, caregivers and community. It also deals with community-based rehabilitation and minority groups within the African disability community, including people with albinism. Although the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is the first comprehensive human rights treaty of this century, it does not address the unique challenges like the African Disability Protocol does.
The protocol takes into account the general comments and observations of the UNCRPD. It builds on the rights enshrined in the UNCRPD and Universal Declaration of Human Rights but uses a rights-based approach, but is more detailed and illustrative in representing the uniqueness of the African context.
The protocol was adopted in 2018 as the Disability Protocol to the African Charter on Human and People’s Rights (Banjul Charter). It will come into effect only after it is signed and ratified (made legally binding) by 15 member states of the African Union.
3.1. Purposes of the Protocol
The Article 2 of African Disability Rights Protocol explains that, “the purpose of the Protocol is to promote, protect and ensure the full and equal enjoyment of all human and people’s rights by all persons with disabilities, and to ensure respect for their inherent dignity”.
3.2. General Principles of the Protocol
The Article 3 of African Disability Rights Protocol explains that, “the Protocol shall be interpreted and applied in accordance with the following general principles:
Ensuring respect for and protection of the inherent dignity, privacy, 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 difference and acceptance of persons with disabilities as part of human diversity and humanity;
Equality of opportunity;
Accessibility;
Reasonable accommodation
Equality between men and women;
The best interests of the child;
Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
3.3. General Obligations of the Protocol
The Article 4 of African Disability Rights Protocol explains that, “States Parties shall take appropriate and effective measures, including policy, legislative, administrative, institutional and budgetary steps, to ensure, respect, promote, protect and fulfil the rights and dignity of persons with disabilities, without discrimination on the basis of disability, including by:
Adopting appropriate measures for the full and effective implementation of the rights recognised in the present Protocol;
Mainstreaming disability in policies, legislation, development plans, programmes and activities and in all other spheres of life”.
4. Ratification of African Disability Rights Protocol
4.1. Status of Ratification of African Disability Rights Protocol
The Protocol requires the deposit of 15 instruments of ratification by AU Member States to come into force. This target has not yet been reached, so the Protocol is not yet in force. So far, only Mali, Kenya, and Rwanda have ratified the African Disability Protocol. The countries that have signed the protocol are: Angola, Burkina Faso, Cameroon, Central African Republic, Gabon, Mali, Malawi, Mozambique, Rwanda, South Africa, and Togo.
4.2. Reasons for Ratification of African Disability Rights Protocol
The following are reasons why States Parties should ratify the African Disability Rights Protocol:
(A) Ratification by 12 more states will ensure that the Protocol enters into force. At the regional level, the requisite number of ratifications will bring the Protocol into effect, allowing persons with disabilities on the continent to enjoy its protection.
(B) States Parties that are already party to African Charter should extend existing protection to include disability rights. The African Disability Rights Protocol merely confirms and extends the rights under the African Charter to persons with disabilities who did not enjoy recognition when the African Charter was drafted. Moreover, the protection of the rights of persons with disabilities under the African Charter is not comprehensive.
(C) 51 African States already are party to the UNCRPD. Cameroon has signed but not ratified the UNCRPD. South Sudan and Eritrea are the only countries in Africa, which have neither signed nor ratified the UNCRPD. The African Disability Rights Protocol adds value to and is premised on the provisions of the UNCRPD. By ratifying the African Disability Rights Protocol, States will largely be confirming the provisions of the UNCRPD but placing them in an African context and making them more relevant to the African people. The African Disability Rights Protocol takes into account the lived realities of persons with disabilities in the continent while maintaining the core values and principles as set out in the UNCRPD. Some of the Africa disability related concerns include; harmful practices, HIV/AIDS, rights of older persons, duties of persons with disabilities, and right to communal living.
(D) States Parties would also, by ratifying the African Disability Rights Protocol, strengthen the African human rights framework. The African Disability Rights Protocol will improve the monitoring mechanisms for the protection of persons with disabilities under the African Union. This is because African Countries will be under an obligation to report on the progress of their implementation process. Prior to the African Disability Rights Protocol, most disability issues were dealt with in non-binding instruments such as Grand Bay (Mauritius) Declaration and Plan of Action (dealt with HIV/AIDS). The binding nature of the ADR Protocol will strengthen the enshrined rights and monitoring mechanisms as seen above.
(E) Ratifying the African Disability Rights Protocol will also lead to the mainstreaming of disability rights around the continent, thus creating more awareness. Raising public awareness on disability can have multifold objectives such as sharing information to citizens without disabilities, including employers, about the rights and abilities of persons with disabilities and the existence of prejudices, which are difficult to eradicate and often based on myths.
(F) Ratification of the African Disability Rights Protocol will encourage domestic protection of the rights of persons with disabilities: Despite the wide ratification of the UNCRPD, the treaty is often not fully implemented in domestic law. The UNCRPD Committee continues, in its concluding observations on reports submitted by different African countries, to urge States Parties to strengthen their efforts to give full effect to the UNCRPD in domestic law and ensure its direct application in domestic courts. The African Disability Rights Protocol will encourage the full incorporation and implementation of the rights of persons with disabilities into domestic law.
(G) The African Disability Rights Protocol offers an opportunity for African States to show that they are serious about protecting the human rights of persons with disabilities in Africa. African States were very active in the negotiations and drafting of the African Disability Rights Protocol. In addition, the African Charter recognises the indivisibility of all human rights – civil, cultural, economic, political and social – and the need for them to be protected to the same degree. Ratifying the African Disability Rights Protocol would correspond well with the gains made so far at the regional as well as national levels to protect the rights of persons with disabilities.
(H) The African Disability Rights Protocol offers enhanced regional assistance and cooperation in the protection of the rights of persons with disabilities. The African Disability Rights Protocol provides guidance about cooperation measures already included in the African Charter. Article 33 of African Disability Rights Protocol notes that States Parties must take steps to cooperate through sharing research, technical, human and financial resources in order to achieve the full realisation of the rights in the African Disability Rights Protocol.
4.3. Process of Ratification of African Disability Rights Protocol
1. The procedures through which states become bound to international human rights treaties, such as African Disability Rights Protocol, has internal and external dimensions.
2. At the external level, the state may sign, ratify or accede to the treaty.
3. Often, immediately after a treaty has been adopted, states that are present may sign the treaty. States may however also sign the treaty at a later stage. Signature does not bind a state to apply the treaty provisions. It merely indicates that they state has taken note of the treaty and sets out its intention at a later stage to be bound by the treaty by ratifying it.
4. States may then at any stage ratify the treaty. Ratification has to follow the prescribed internal (domestic) process. Once this process has been completed, it is of crucial importance that the state prepares an ‘instrument of ratification’ and deposits this with the office of the AU Legal Counsel in Addis Ababa. Without the deposit, the state’s ratification does not take effect.
5. Sometimes a state may also ‘accede’ to a treaty. Accession takes place when a state has not signed a treaty, but decided to become bound. Put very simply, accession is when signature and ratification coincides. Accession has the same legal effect as ratification. In other words, a state that has not yet signed, need not first sign and later ratify the Protocol, but can do it ‘all at once’ by acceding to the Protocol.
6. At the internal level, the process through which the state become bound to a treaty depends on the relevant constitutional and other legal requirements.
7. In most states, it is standard that the text of the instrument is submitted to the line ministry/department responsible for Justice and Constitutional affairs for scrutiny to ensure that it is consistent with domestic law. It is also standard that the text of the Agreement is submitted to the Department/ministry responsible for International Relations and Cooperation for scrutiny to ensure that it is consistent with international law. A cabinet memorandum is often prepared by the line ministry/department responsible, and submitted to the cabinet secretariat. The process then mostly proceed to parliament.
8. Once the domestic process has been completed, the relevant department/ministry develops the ratification instrument.
9. The relevant department then ensures that the Instrument of Ratification or Accession is deposited with the AU Legal Counsel.
5. Conclusion
The African Disability Rights Protocol is a protocol to the African Charter on Human and Peoples’ Rights. The Disability Protocol, the newest human rights treaty in the African system, is still awaiting enough
ratifications to enter into force. Once 15 states ratify the protocol, it will be binding on those states that have ratified it.
The African Disability Rights Protocol was developed in line with the UN Convention on the Rights of Persons with Disabilities (UNCRPD). It prohibits discrimination against persons with disabilities on all grounds (Article 5), including denial of reasonable accommodations (Article 1), and recognizes their full legal capacity (Article 7). The Disability Protocol addresses harmful practices such as witchcraft, abandonment, concealment, ritual killings or the association of disability with omens, that infringe on the rights of persons with disabilities (Article 11). The Disability Protocol also recognizes intersectional forms of discrimination and includes separate articles specifically addressing rights of women (Article 27), children (Article 28), youth (Article 29) and older persons with disabilities (Article 30). It provides that women with disabilities should be ensured full participation in society, “protected” from sexual and gender-based violence, and guaranteed sexual and reproductive rights. It also requires integration of gender perspectives into all policies, legislation and programs.
How can we ensure that the African Disability Rights Protocol is ratified? It is vital that advocacy work should be continued to ensure the ratification of the Protocol. Likewise, it is critical that stakeholders and advocates should call on all African Union States to ensure their ratification and implement the Protocol. We must all join together and work towards the ratification so that the lives of millions of people with disabilities in Africa can be improved. Therefore, the African Disability Rights Protocol will only come into effect only after it is ratified by 15 member states of the African Union as target.
