Why African States Should Ratify The African Disability Protocol
Elim Shanko (LLM Candidate - Human Rights and Democratisation in Africa, University of Pretoria)
This blog post welcomes the increasing ratification of The Protocol on the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (ADP). Since 2021, only Kenya, Rwanda, and Mali have ratified the ADP. States who have signed the ADP but are yet to ratify it, are encouraged to demonstrate their commitment to the protection of the rights of persons with disabilities (PWD) in Africa by hastening their pace toward ratification.
There are an estimated 60-80 million Africans who have disabilities today. Unfortunately, few African states sufficiently protect the rights of PWDs through legislation, leaving many vulnerable to various human rights violations. Exacerbated by the issue of poverty and gender discrimination on the continent, PWDs in Africa face intersectional marginalisation and suffering.
The ADP is a progressive human rights treaty which aims to push the boundaries on human rights protection for PWDs on the African continent. Adopted in 2018, the ADP protects the rights of African PWDs through an African lens; championing positive cultural practices and bringing attention to uniquely African challenges. To date, the ADP has only received 3 ratifications out of the 15 ratifications necessary for it to enter into force.
The UN Convention on the Rights of Persons with Disabilities (CRPD), adopted in 2006, is the global human rights treaty on persons with disabilities. With 47 African States being party to it, it is one of the most adopted UN treaties on the African continent. Although the CRPD has shown tremendous popularity on the continent, the need for a regional instrument addressing the hurdles and the values of the African continent cannot be ignored. The ADP was not drafted with the intention of replacing the CRPD, but rather complements its provisions to provide better protections for PWDs in Africa.
Despite the broad ratification of the CRPD by the African States, the CRPD does not adequately address some concerns within the African disability discourse. The ADP intends to broaden the rights provided by the CRPD while contextualising said rights to the African context. It expands the existing normative framework, giving appropriate attention to previously overlooked needs. Additionally, individuals and NGOs with observer status before the African Commission on the Human and Peoples Rights’ (African Commission) may submit individual communications with regard to violations of the ADP. To contrast, communications regarding the CRPD may only be submitted if the relevant state has ratified the Optional Protocol to the Convention on the Rights of Persons with Disabilities – thereby providing less stringent individual access to monitoring bodies.
As similarly reasoned during the creation of The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) and the African Charter on the Rights and Welfare of the Child (Children’s Charter), PWDs in Africa require a spotlight to their causes and thus a treaty to highlight those concerns. The progressive nature of the ADP lies in its unique attention to the plight of PWDs within Africa and their intersectional identities. The Protocol identifies protections for people with albinism (Preamble), protection from harmful cultural practices (Article 11), a right to a documented identity and equal protection before the law (Article 7), a restriction on harmful customary practices (Article 13), and intersecting protections for PWDs that come from other disadvantaged communities i.e. women, children and youth older persons (Articles 27, 28, 29, 30).
The ADP also extends beyond the CRPD insofar that it gives definitions for ‘deaf culture’ and ‘reasonable accommodations’ (Article 1). It also protects PWDs from discrimination by association (Article 5(2)), forced sterilization (Article 10), and emphasises the participation of PWDs in all aspects of their lives.
Existing African human rights treaties and mechanisms also fall short in capturing the extensive protections of PWDs in the way the ADP does. The African Charter on Human and Peoples’ Rights (Charter) only makes provision for PWDs under Article 18. Furthermore, of all the African Commission’s numerous thematic resolutions, not one focuses on disability rights. This is similarly evident in the matters heard by the African Commission as it has only heard one case concerning a disability rights matter (Purohit & Moore v Gambia). Likewise, the African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa Maputo provide limited protections for women and children with disabilities, neglecting the intersectional nature of the PWDs.
The ADP provides contextually relevant human rights protections for PWDs in Africa. It closes the gap for states whose constitutional provisions and legislation fall short in providing legal protections for PWDs. The ADP also goes further than the CRPD in the protections it offers and presents comprehensive socio-economic and political rights for PWDs – even those with intersecting identities. The ADP is not yet in force and it is, therefore, paramount that African Union member states ratify the instrument promptly. With that, we implore CSOs to champion the ADP and disseminate the knowledge on the protections it offers to PWDs in Africa.