The African Commission on Human and Peoples’ Rights (ACHPR) has adopted a draft protocol on the rights of persons with disabilities, intended to complement the African Charter on Human and Peoples’ Rights and address continued exclusion, harmful practices, and discrimination affecting those with disabilities, especially women, children, and the elderly. The protocol, adopted during the ACHPR’s 19th Extraordinary Session, is the culmination of the African Union’s focus on the rights of persons with disabilities, which began in 1999 with the declaration of the African decade for persons with disabilities and the creation of a Working Group tasked with drafting this new instrument. The protocol guarantees equal protection of economic, social, cultural, civil, and political rights to individuals with “physical, mental, intellectual, developmental or sensory impairments” and will require States parties to implement affirmative actions to advance their equality. See Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (adopted 25 February 2016), art. 1(g).
The intent in drafting the protocol was to lay out the rights of persons with disabilities in an continental context, drawing from the United Nations Convention on the Rights of Persons with Disabilities but also addressing additional issues specific to Africa. The draft protocol, accordingly, addresses issues faced by persons with disabilities in Africa, such as increased rates of poverty; systemic discrimination; and risk of violence and abuse, particularly for those with albinism and women and girls with disabilities. Id. at preamble. The protocol also seeks to provide a foundation from which Member States can formulate or adjust legislation impacting persons with disabilities. Id. The ACHPR has in the past found State law on persons with disabilities incompatible with international norms. See ACommHPR, Purohit and Moore v. Gambia, Communication No. 241/01, 33rd Ordinary Session, 29 May 2003.
Purpose and Scope
The protocol requires States parties to ensure that people with disabilities are not discriminated against and enjoy equality. The text details the particular rights of persons with disabilities to: life, liberty, security of person, to be free from harmful practices, to protection in situations of risk, to equal recognition before the law, access to justice, to live in the community, accessibility, education, health, rehabilitation and habilitation, work, an adequate standard of living and social protection, participation in political and public life, self-representation, freedom of expression and opinion, participation in recreation and culture, and family. Id. at arts. 4-21. It also recognizes the particular vulnerabilities and rights of women, children, youth, and older persons with disabilities. Id. at arts. 22-25. Additionally, the protocol extends rights to family and caregivers of people with disabilities who might otherwise be subject to discrimination as a result of their association. Id. art. 3. The protocol recognizes the specific protection needs of disabled people in periods of armed conflict or other humanitarian situations, as well. Id. art. 7.
The protocol specifically requires States to take necessary steps to promote equality and to provide reasonable accommodations. These affirmative steps and special measures are not be considered discrimination, pursuant to the text. See Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, art. 3. This positive obligation specifically applies to access to basic economic and social spheres, such as employment under just and favorable conditions, education, and health care and conditions of health. Id. arts. 12, 13, 15. People with disabilities are also guaranteed rights to equal opportunity to participate in politics and governance, liberty and humane treatment, free speech and expression, and access to justice. Id. arts. 5, 9, 17, 19.
Background and Next Steps in the Process
At the start of the African decade for the rights of persons with disabilities, Members States requested the ACHPR to develop a protocol on the rights of persons with disabilities during the African Union 2003 Ministerial Conference in Human Rights. See Louis O. Oyaro, Africa at Crossroads: The United Nations Convention on the Rights of Persons with Disabilities, 30 Am. J. Int’l L. 349, 360 (2015). African States had previously conveyed their concerns over the rights of persons with disabilities on issues such as discrimination, poverty, negative effects of traditional practices, forced abortion, abuse and violence during armed conflict, and the roles of families and caretakers. See id. at 360-61. During the ACHPR’s 45th Ordinary Session in 2009, it added a focus on the rights of persons with disabilities to the pre-existing Working Group on the Rights of Older Persons, establishing a new combined special mechanism, the Working Group on the Rights of Older Persons and People with Disabilities. The Working Group has since drafted protocols on both the rights of persons with disabilities and the rights of older persons. See ACHPR, Working Group on the Rights of Older Persons and People with Disabilities.
After initial drafts of a disability rights protocol drew criticism from civil society, the Working Group sought comments for a draft that would address issues specific to the region. See Louis O. Oyaro, Africa at Crossroads: The United Nations Convention on the Rights of Persons with Disabilities, 349-50. The Working Group went on to produce another draft protocol in 2013 and a second draft in 2014, both of which were opened to comments. See African Commission on Human and Peoples’ Rights, Comments invited on Draft Protocol on the Rights of Persons with Disabilities in Africa.
Now that the African Commission has adopted the draft protocol, the next step is to transmit it to the treaty-making process of the African Union (AU), through which it can become a binding legal instrument open to ratification by Member States. See African Commission on Human and Peoples’ Rights, Intersession Activity Report of Commissioner Yeung Kam John Yeung Sik Yuen (2016).
The ACHPR held in 2003 that Gambia’s legislative regime regarding persons with disabilities was not compatible with the African Charter on Human and Peoples’ Rights (African Charter). The complaint alleged that Gambia, a Member State of the African Union and State party to the African Charter, branded persons with mental illness as “lunatics” in its national legislative framework, did not provide adequate facilities for those detained under its Lunatics Detention Act, and had disenfranchised those in detention for their disability. The ACHPR found the practices in violation of the rights to equal protection and non-discrimination, protected by articles 2 and 3 of the African Charter, on the basis of disability and in violation of substantive rights, such as the right to human dignity. See ACHPR, Purohit and Moore v. Gambia, 29 May 2003.
For more information on the African Commission on Human and Peoples’ Rights or the UN Committee on the Rights of Persons with Disabilities, visit IJRC’s Online Resource Hub.