The Centre for Human Rights, Faculty of Law, University of Pretoria, welcomes the recently improved pace of ratification of the 2018 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (African Disability Protocol). In the past 12 months, Mali, Kenya and Rwanda have ratified the African Disability Protocol. We applaud these three states for demonstrating commitment and political will to promote and protect the rights of persons with disabilities. However, three ratifications in four years represent a very slow ratification rate. Fifteen ratifications are required for its entry into force. At the current rate of ratification, it would take decades for the Africa Disability Protocol to take effect. An acceleration in ratifications is therefore urgently needed.
African Disability Protocol as uniquely African
The African Union adopted the African Disability Protocol on 29 January 2018, ten years after the coming into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on 3 May 2008. Despite those 50 African states having ratified the CRPD, this has not yet translated into social, policy or legal reforms on the continent. In part, this is because the experience of persons with disabilities in Africa is distinct from that of persons with disabilities from other parts of the globe. The adoption of the African Disability Protocol was the culmination of decades of advocacy by disability rights advocates on the continent fighting for a disability rights specific treaty that would address issues peculiar to Africa. The social context in Africa is unique and the CRPD does not adequately capture these nuances, making it necessary to have an African instrument that retains the rights contained in the CRPD while simultaneously reflecting the African context.
The Protocol retains the rights in the CRPD such as the right to equality and non-discrimination (Arts 5 and 6); the right to equal recognition before the law (Art 7); the right to life (Art 8); the right to access justice (Art 13); the right to health (Art 17); and the right to work (Art 19). Crucially, the African Disability Protocol contains rights that reflect the African experience. Of note is the inclusion of harmful practices in Article 11 to which countless persons with disabilities, particularly persons with albinism on the continent have been subjected. In its preamble, the Protocol defines harmful practices as ‘behaviour’, attitudes and practices based on tradition, culture, religion, superstition, or other reasons, which negatively affect the human rights and fundamental freedoms of persons with disabilities or perpetuate discrimination. The inclusion of Article 30 on older persons with disabilities reflects the important position that older persons generally occupy in African culture. Article 31, which outlines the role of persons with disabilities as duty bearers, exemplifies the African philosophy of community, ubuntu and interconnectedness according to which relationships of reciprocity are the cornerstone of African citizenship.
The African Disability Protocol also reformulates rights that are also in the CRPD to suit the African context. For example, in response to the fact that the right to political and public participation is often restricted in legislation, Article 21 of the Protocol requires member states to amend laws that restrict the right to vote, stand for or remain in office. Under Article 13(2), the right of access to justice includes customary law forms of justice that are part and parcel of African justice systems. Recognising that persons with disabilities, particularly persons with intellectual and psychosocial disabilities, are sometimes denied documents of identity, the African Disability Protocol includes the right to hold documents of identity as part of the right to legal capacity in Article 7. The right to living independently in the community found in the CRPD is couched as the right to live in the community in the African Disability Protocol, signifying the importance of the ideal of community in African culture.
Not yet in force
Although the African Disability Protocol has enormous potential to bring about the social change that so many persons with disabilities in Africa desperately need, unless member states ratify the Protocol, its benefits will remain out of reach for Africans with disabilities.
The African Disability Protocol is not yet in force as it is yet to receive the required 15 ratifications to enter into force. According to Article 38(1), the Protocol will enter into force thirty days after the deposit of the fifteenth instrument of ratification by a member state. Only 11 AU member states ( have signed the Protocol. However, to become bound to the Protocol, states must follow up their signature with ratification.
The Centre for Human Rights therefore strongly urges member states of the African Union that have not ratified the African Disability Protocol to do so without delay. 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.
At the domestic level, ratifying the Protocol is an important step in incorporating its provisions into domestic law for the protection of persons with disabilities in Africa. The African Disability Protocol will further inspire African states to review their constitutions that in many instances do not include critical issues such as disability as a prohibited ground in the on-discrimination provision and to adopt national disability-specific legislation which will comprehensively protect the rights of persons with disabilities.
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