Author: Farirai Sinothando Sibanda
Master’s Candidate, Centre for Human Rights, University of Pretoria
It is a gross injustice that disability rights in Africa have previously not been prioritised given that 80% of persons with disabilities live in developing countries. However, this situation seems to be gaining some attention with most African states having ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) with the exception of three, namely Cameroon, South Sudan and Eritrea. Following this trajectory, in 2018, the African Union (AU) member states adopted the African Disability Protocol which will enter into force after ratification by 15 AU member states. Despite its potential to enhance persons with disabilities’ enjoyment of their rights, as of March 2022, the African Disability Protocol has only been ratified by three countries namely; Mali, Kenya, and Rwanda which is disappointingly low.
The UNCRPD is a key instrument in advancing the rights of persons with disabilities, but it lacks the specificity to the African context. Due to poverty and other issues in Africa, the situation of persons with disabilities, especially women, differs radically from that in other regions. Article 6 of the UNCRPD addresses women in two general provisions by obligating states to protect them from discrimination, ensure enjoyment of their rights and empower them. However, it does not specify the actions that states must take to fulfil these obligations. Resultantly, the UNCRPD does not adequately address the unique situation of persons with disabilities in Africa.
Women with disabilities in Africa are reportedly three times more likely to have unmet needs for health care; three times more likely to be illiterate; twice less likely to be employed, and twice times less likely to use the internet. The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa attempts to address the needs of women with disabilities through article 23, which obligates state parties to take specific measures commensurate with women with disabilities’ physical, economic, and social needs as well as their participation in decision-making; and to ensure that their right to freedom from violence, including sexual abuse, discrimination based on disability and the right to be treated with dignity.
The African Disability Protocol provides the most extensive elaboration of the rights of women with disabilities in article 27. Article 27 obligates state parties to ensure that the barriers that hinder the participation of women with disabilities in society are eliminated, thus recognising that lack of participation may be attributable to societal barriers and not lack of interest. Therefore, the state parties need to be proactive in their efforts to eliminate these barriers. State parties are further required to ensure that women with disabilities are included in mainstream women’s organisations and programmes. This provision seeks to ensure that women with disabilities are not treated as an afterthought in the women’s rights movement. It aims to ensure that women with disabilities are included in women’s organisations not just as beneficiaries but rather as members of these organisations.
The African Disability Protocol also obligates state parties to ensure that women with disabilities access information, communication, and technology. Given that today’s world is increasingly digitised, this is a timely innovation. Access to information, communication, and technology is a necessity for anyone living in this digital age and this provision reaffirms that women with disabilities must have the same level of access as everyone else.
Article 27(h) stipulates that state parties must ensure that women with disabilities have access to income-generating opportunities and credit facilities. This is contextually relevant to the African continent given that poverty and exclusion is higher among persons with disabilities. By obligating state parties to guarantee access to income-generating opportunities and credit facilities, the Protocol requires states to actively create opportunities through which women with disabilities can earn a living and be independent.
Article 27(k) also obligates state parties to ensure that the sexual and reproductive health rights of women with disabilities are guaranteed, and that these women have the right to retain and control their fertility and are not sterilised without their consent. This is progressive, particularly in the African context where the sexual and reproductive rights of women with disabilities are susceptible to violation fuelled by negative social attitudes and beliefs. These abuses include forced sterilisation, which is quite prevalent. Thus, this provision is unique to the African Disability Protocol, which seeks to ensure that women with disabilities are protected from such abuses. Furthermore, this provision recognises that women with disabilities are women and may indulge in sexual relations and should retain their bodily autonomy in those relationships, like other women.
Considering the extensive protections that the African Disability Protocol provides to women with disabilities, AU member states need to ratify this instrument expeditiously, so it can come into effect. To that end, human rights, disability rights and women’s organisations need to intensify their advocacy efforts to popularise the African Disability Protocol and call for its ratification.
About the Author:
Farirai is a Zimbabwean lawyer and a Master’s Candidate in the LLM in Human Rights and Democratisation in Africa Program at the Centre for Human Rights, University of Pretoria.
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