Ratification of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Persons with Disabilities in Africa: An overview of the implications

The adoption of the Protocol to the African Charter on Human and People’s Rights on the Rights of Persons with Disabilities in Africa marked a pivotal juncture in the shifting approaches to disability in the African human rights system. The African Disability Protocol abandoned the medical and charity approaches to disability that are dominant in many of the preexisting African human rights instruments, in favor of a social and human rights approach to disability. This chapter argues that the unique lived experience of persons with disabilities in Africa dictated the shift from viewing disability in light of the medical model of disability to perceiving it as a human rights issue. Prior to the adoption of the Protocol, African human rights instruments had failed to translate into real change in the lives of persons with disabilities, making it necessary to reevaluate the approach to disability in the African human rights system. The process of rethinking approaches to disability did not take place in a vacuum. Global trends encapsulated in the Convention on the Rights of Persons with Disabilities had an enormous influence on this process. Using the social and human rights models of disability, the African Disability Protocol therefore takes stock of the unique African context while maintaining the gains and victories won in the Convention on the Rights of Persons with Disabilities.

In this article, we investigated dominant manifestations of spatial exclusion and inclusion of people with disabilities in Africa. Manifestations of spatial exclusion include: design that create inaccessible spaces; socially constructed spatialisation that prevents people with disabilities from using and enjoying spaces in the same way as people without disabilities and harmful cultural practices, like concealment and institutionalisation. Spatial inclusion is promoted through law and policy in support of universal design, inclusive urban development, elimination of concealment and deinstitutionalisation. The authors argue that there are signs of positive progress towards spatial inclusion, but that problems that impede the implementation of progressive laws, policies and practices will have to be dealt with to ensure spatial inclusion for people with disabilities in Africa. Points of Interest: The human rights disability model supports communities which value accessibility of all spaces to all. Accessibility is more than physical access; it is also allowing all people the full use and enjoyment of a space. Despite laws, policies and practices that support spatial inclusion, the built environment is mostly inaccessible to people with disabilities in Africa. Concealment, a reality in many African countries, is a harmful cultural practice that is spatially disabling. Spatial inclusion of people with disabilities can be realised with a greater commitment to all-inclusive design, avoiding placement of people with disabilities in mental and psychiatric institutions, developing accessible urban spaces and better implementation of laws and policies.

This article examines the role of diplomatic mechanisms in enhancing the implementation of decisions by the African Commission on Human and Peoples' Rights, with a specific focus on the rights of persons with disabilities. With the entry into force of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Persons with Disabilities in Africa in 2024, it is anticipated that more communications dealing with the rights of persons with disabilities will be submitted to and decided by the African Commission. Diplomatic and political mechanisms are identified as pragmatic and effective avenues for ensuring compliance with African Commission decisions, especially given the complex interplay between human rights norms, state sovereignty and political considerations. These diplomatic mechanisms facilitate constructive engagement and the formulation of tailored recommendations that align with the internal dynamics of states. Notwithstanding these benefits, many African states continue to struggle with fulfilling their obligations, particularly regarding the rights of persons with disabilities. This non-compliance weakens the Commission's effectiveness. The article highlights the detrimental impact of non-compliance relating to persons with disabilities, who face persistent attitudinal, environmental and systemic barriers. It argues that the failure to implement the Commission's decisions undermines the Commission's credibility and hampers the development of a robust human rights culture for persons with disabilities. To address these deficiencies, the article advocates the use of diplomatic mechanisms, such as negotiations, dialogue and cooperation, as catalysts for change. Through sustained engagement and dialogue, diplomatic efforts can encourage states to ensure that disability rights and inclusive policies are placed at the forefront of national policies, thereby strengthening implementation mechanisms. Ultimately, it is hoped that the African Commission and other stakeholders can play a more active role in advancing the rights and well-being of persons with disabilities across Africa.

The African regional human rights system consciously makes broad provisions for protecting both civil and political rights as well as economic, social and cultural rights in the African Charter on Human and Peoples' Rights (ACHPR). The adoption of the Resolution on the Rights of Older Persons in Africa by the African Commission on Human and Peoples' Rights during its 41st Ordinary Session in Accra, Ghana, in May 2007 is a significant step towards implementing the AU Policy Framework on Ageing. The protection of persons with disabilities (PWDs) has also acquired significant importance both globally and in Africa. This chapter provides a critical analysis of the promotion and protection of the rights of older persons and PWDs in Africa. In order to strengthen the legal framework for the protection of the rights of older persons and PWDs in Africa, it is necessary to have a protocol to the ACHPR protecting rights. Keywords:ACHPR; Africa; African Commission; PWDs; Rights of Older Persons

This chapter discusses the human rights-based approach to disability justice through the United Nations Convention on the Rights of Persons with Disabilities 2006 (the Convention or CRPD) and the emerging African regional disability human rights framework. Through anecdotes from Tanzania, South Africa, Mozambique, Ghana, Uganda, Malawi and Kenya, the chapter argues that it is not the absence of laws and policies that has been the obstacle to disability justice in Africa, but rather the inability of existing human rights laws and policies to challenge negative cultural beliefs and social perceptions of disability. The recently established Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa 2018 (the Protocol) presents a unique opportunity to address this gap. However, the chapter will raise doubts about whether the Protocol can make a meaningful impact on the lives of people with disabilities in Africa without a substantial revision to the order in which duties are presented and articulated in the regional instrument.

This study recognizes the double jeopardy African queer persons with physical disabilities face. It also recognizes that cinematic representations are paths through public imagination and through which perceptions of minorities are curated. Cinematic representations of queer persons with physical disabilities can be reconfigured to guide the public imagination toward the inclusivity of queer persons with disabilities, and to influence corresponding law and practice. On the African continent, cinematic representations of queer persons with physical disabilities are almost nonexistent, which translates into a “crisis of imagination.” Existing normative human rights frameworks as well as prevalent, beliefs, norms, and attitudes have yet to embrace the full citizenship of human rights of these minorities. This article employs the joint lens of human rights and cultural citizenship as paths through which best practices for cinematic representation of queer persons with physical disabilities can be considered. This study argues for the belonging of queer persons with physical disabilities in African cinematic representations, public imagination across African communities, as well as the broader human rights project (including the United Nations Convention on the Rights of Persons with Disabilities; African Commission Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity; African Charter on Human and Peoples’ Rights; and Protocol to the African Charter on Human and Peoples’ Rights of Persons with Disabilities in Africa).

Several African countries recorded their first cases of the coronavirus disease (COVID-19) in March 2020, the same month the World Health Organisation (WHO) declared it a global pandemic. Within three months the virus has spread throughout the continent. By 29 December the Africa Centres for Disease Control and Prevention put the total number of COVID-19 cases in Africa at 2.6 million with 63 300 deaths recorded. Though there are no official statistics on the number of persons with disabilities in Africa who have tested positive for or succumbed to COVID-19, the Working Group on The Rights of Older Persons and People with Disabilities in Africa in its statement on International Day of Persons with Disabilities acknowledged the potential heightened vulnerability of persons with disabilities on the continent to the pandemic reiterating that many persons with disabilities have pre-existing health conditions that may make them more susceptible to contracting the virus and experiencing more severe symptoms, leading to elevated mortality rates. The discussion that follows focuses on aspects of the monitoring report related to gaps in the protection of right to health of persons with disabilities in Africa during the pandemic. The commentary will use the survey results to illustrate how the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (African Disability Protocol), once in effect, may provide additional guidance to states in responding more effectively to the health needs of persons with disabilities during possible further ‘surges’ of the COVID-19 pandemic as well as future health care emergencies. It concludes with a call for African states to expediently ratify the African Disability Protocol so it can come into force.

This paper aims to give an analysis on the protection of the right to political participation for person with disabilities in Africa. To this end, I will seek to find out whether African countries have adhered to the standards set forth under the CRPD. Part one will explain the meaning of political participation in relation to persons with disabilities. Here I will also explain the different manifestation of political participation. Part two will give an overview of the African human rights system on the protection of person with disabilities. I will be focusing on whether the current system protects person with disabilities and importantly whether Africa needs a disability rights treaty different from CRPD. Part three will discuss the CRPD and the obligations it provides for states. Article 29 of the CRPD will also be discussed in detail explaining what is required. Part four will be critically reviewing domestic legislation of African countries that have signed and ratified the CRPD. The purpose is to assess whether these African countries have managed to adhere to the standards set forth by CRPD. Finally I will give recommendations on how African countries can effectively realise the right to political participation.

The Elgar Encyclopedia of Human Rights is the most comprehensive reference work in the field of international human rights protection. Comprising over 340 entries, presented alphabetically, and available online and in print, the Encyclopedia addresses the full range of themes associated with the study and practice of human rights in the modern world. The topics range from substantive human rights to the relevant institutions, legal documents, conceptual and procedural issues of international law and a wide variety of thematic entries. The Encyclopedia has a distinct focus on international human rights law but at the same time is enriched by approaches from the broader social, sciences making it a truly unique and multi-disciplinary resource.

Central to the discourse on disability is the question of systemic disadvantage, characterised by the discrimination, and often complete exclusion, of persons with disabilities (PWDs) in society. In an effort to address the problem, on 13 December 2006, the international community adopted the UN Convention on the Rights of Persons with Disabilities (CRPD), which entered into force together with its Optional Protocol on 3 May 2008. In Africa, prior to the advent of the CRPD, the idea of a specific treaty on disability rights had surfaced in 2003 at the first AU Ministerial Conference on Human Rights in Africa. During this meeting, African leaders recognised the broad violation of the rights of ‘vulnerable groups including persons with disability in general’ and called for the adoption of ‘a Protocol on the protection of the rights of people with disabilities and the elderly’. This call was answered in 2009 when the African Commission on Human and Peoples’ Rights (the African Commission) set a Working Group on the Rights of Older Persons and People with Disabilities to draft a concept paper that would serve as the basis for the adoption of a draft Protocol on the Elderly and People with Disabilities. The Working Group developed two draft protocols – one for the rights of older persons and the other one being the draft protocol on the rights of PWDs – at an expert meeting held in Accra, Ghana, hence the draft protocol on the rights of PWDs is called the ‘Accra draft’. However, the Accra draft was put on hold at the 49th Ordinary Session of the African Commission (28 April–12 May 2011) for further reflection.

Care is a complex issue that may be analysed using different perspectives and theories. It is also a biological imperative for human beings. For many people with disabilities, assistance and support are prerequisites to perform daily tasks and participate in society. In most cases, family is the primary provider of care and support and, within families; care is a role that falls disproportionally on women. The issue of unpaid carers (sometimes referred to as ‘caregivers’) may be analysed in terms of the gender equality impact that this role has as well as its social equality and human rights implications. Due to the fact that caring relationships involve carers as well as those they care for, public policies face the challenge of addressing the needs and claims of two groups which are different but related. In developed countries such as the United States, Spain and Australia, governments have developed policies to address this issue. In contrast, Africa and Latin America show that it is still an invisible concern. Family caregivers provide care in conditions of fragility and lack of resources that allow situations where the rights of persons with disabilities are violated and rights of their family are ignored.

Recent legislation proposed or passed in Nigeria, Uganda and The Gambia has put the spotlight on the plights of homosexual persons living in sub-Saharan Africa. In Nigeria, discriminatory laws prohibit same-sex marriages and ban gay clubs and organisations. In Uganda, the Prohibition of the Promotion of Unnatural Sexual Practices Bill of 2014, with contents similar to the notorious Anti-Homosexuality Act, is being considered after a ruling by the Ugandan Constitutional Court rendering the Anti-Homosexuality Act unconstitutional. In The Gambia, the Penal Code has been amended recently to add the crime of 'aggravated homosexuality' with a lifetime prison sentence for any person found guilty. The rights to dignity and equality are protected under the African Charter on Human and Peoples' Rights; however, competing local and global values are arguably growing in Africa, challenging this right. This article explores two main problems: first, how the rights to dignity, equality and non-discrimination should generally be interpreted and applied under the regional African human rights system when related to sexual orientation. In this regard I draw on the interpretation of these rights under international human rights law as well as the jurisprudence of the European Court of Human Rights and its Inter-American counterpart. Second, it analyses the procedural or other hurdles that may stand in the way of brining a claim of discrimination based on sexual orientation to the African Commission on Human and Peoples' Rights or the African Court on Human and Peoples' Rights. In this regard, I specifically consider the general restrictions placed on individuals and NGOs in bringing complaints to the Court and the real potential of the Commission to act as a conduit to the Court in cases involving rights related to sexual orientation, bearing in mind its inconsistent approach to same-sex sexuality. The article addresses these questions by analysing some key developments by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The main objective is to utilise the approach of these institutions to explore both the legal avenues under the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights and the rights and obligations under the African Charter available to anyone who would want to challenge any domestic law criminalising same-sex consensual sexual acts and/or any of the other related prohibitions. Key words: Equality; dignity; sexual orientation; gay and lesbian rights; African Charter on Human and Peoples' Rights

In many African societies, access to sexual and reproductive health care services for adolescent girls remains very problematic. This is due to a number of reasons, including socio-cultural factors, influence of religion, negative attitudes of health care providers and legal and policy barriers. The situation is further compounded for adolescent girls with disabilities, as many of them are perceived as asexual and unable to make decisions about their sexual and reproductive health. Unfortunately, laws and policies related to sexual and reproductive health and rights (SRHR) of adolescent girls with disabilities tend to exclude their views, reinforcing stigma and discrimination against them. Using the substantive equality and inclusivity lens, this article argues that if adolescent girls with disabilities are to live a fulfilling and healthy life, they must have access to sexual and reproductive health services on an equal basis with others. More importantly, laws and policies to address gaps in access to SRHR services must adhere to rights-based principles, such as respect for dignity, non-discrimination, participation, and accountability, which are entrenched in different human rights instruments. Drawing exemplars from across the region, the paper notes that these human rights instruments require African governments, among other things, to remove various barriers to access to SRHR services for adolescent girls with disabilities.

George William Mugwanya. Human Rights in Africa: Enhancing Human Rights through the African Regional Human Rights System. New York: Transnational Publishers, 2003. xxvi + 504 pp. Appendix. Bibliography. Index. $135.00. Cloth. - Volume 47 Issue 2

The African Charter on Human and Peoples' Rights (African Charter or Charter) does not contain a clause permitting suspension of human rights during while major human rights instruments allow state parties to suspend some rights. The African Commission on Human and Peoplesâ?? Rights (African Commission or Commission) has repeatedly held that a declaration of a state of emergency cannot be invoked as a justification for violations or permitting violations of the African Charter. The silence of the African Charter and the position of the African Commission have not been welcomed by some scholars. The African Charter enjoys universal ratification as all member states of the African Union are parties thereto. Upon ratification, state parties have undertaken to adopt legislative and other measures to give effect to the rights recognised therein. However, an examination of their constitutions reveals that state parties have not taken sufficient legislative measures to ensure compatibility of their laws with the African Charter. As a result, many African constitutions contain clauses. This article argues that the omission of a clause from the African Charter was not a mistake. And it is not a defect in the Charter. Rather, it shows positive development of human rights norms in Africa and should not be seen as a defect. The arguments calling for incorporation of a clause fail to consider factors that may justify its absence. The incorporation of a clause in the African constitutions and consequently derogating from constitutional rights are violations of the African Charter and other international human rights treaties including the International Covenant on Civil and Political Rights (ICCPR). The article is organised in seven sections. The first section introduces the issues to be explored. The second section discusses the meaning of important terms such as derogation and public emergency, and the purpose served by derogating from human rights. The third section presents arguments against the absence of clauses together with the factors that may justify their absence. The fourth section makes a brief survey of the African constitutions to examine their compatibility with the African Charter. The fifth and sixth sections discuss the implication of derogating from the constitutional rights under the African Charter and other human rights instruments respectively. The last section makes some concluding remarks.