African Disability Rights Yearbook 2015

Charles Ngwena, Ilze Grobbelaar-Du Plessis, Helene Combrinck, Serges Djoyou Kamga

Description

The 2014 issue of the African Disability Rights Yearbook addresses disability rights within the foundational structure laid down by the inaugural issue. The structure comprises a tripartite division between: articles; country reports; and shorter commentaries on recent regional and sub-regional developments.The African Disability Rights Yearbook aims to advance disability scholarship. Coming in the wake of the United Nations Convention on the Rights of Persons with Disabilities, it is the first peer-reviewed journal to focus exclusively on disability as human rights on the African continent. It provides an annual forum for scholarly analysis on issues pertaining to the human rights of persons with disabilities.It is also a source for country-based reports as well as commentaries on recent developments in the field of disability rights in the African region.The African Disability Rights Yearbook publishes peer-reviewed contributions dealing with the rights of persons with disabilities and related topics, with specific relevance to Africa, Africans and scholars of Africa.The Yearbook appears annually under the aegis of the Centre for Human Rights, Faculty of Law, University of Pretoria.The Yearbook is an open access online publication, see www.adry.up.ac.zaAbout the editors:Charles Ngwena is Professor, Department of Constitutional Law and Legal Philosophy, Faculty of Law, University of the Free State, South Africa.Ilze Grobbelaar-du Plessis is a senior lecturer and holds the degrees BIuris LLB LLM LLD from the University of Pretoria.Helene Combrinck is Associate Professor at the Centre for Disability Law and Policy, University of the Western Cape.Serges Djoyou Kamgais is Senior Lecturer at TMALI (UNISA).

Sujets

• Droit
• Justice

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2015
• Nombre de lectures: 0
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

African Disability Rights Yearbook

Volume 3 2015

2015

African Disability Rights Yearbook

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISSN: 2311-8970 EISSN: 2413-7138 Open access online: http://www.adry.up.ac.za

© 2015

The financial assistance of the Open Society Foundations is gratefully acknowledged

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TABLE OF CONTENTS

EDITORIAL

SECTION A: ARTICLES

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The sexual and reproductive health rights of women with disabilities in Africa: Linkages between the CRPD and the African Women’s Protocol 3 Lucyline Nkatha Murungi & Ebenezer Durojaye

Sexual and reproductive rights of women with disabilities: Implementing international human rights standards in Lesotho 31 Itumeleng Shale

How assessments of testimonial competence perpetuate inequality and discrimination for persons with intellectual disabilities: An analysis of the approach taken in South Africa and Zimbabwe 63 Dianah Msipa

Unpaid carers of persons with disabilities in Africa and Latin America: Gender, human rights and invisibility 91 Marina Mendez Erreguerena

Confronting the double marginalisation of girls with disabilities: Practical challenges for the realisation of the right to education for girls with disabilities under the Disability Act of Malawi 109 J Nyanda

The hugger-mugger of enforcing socio-economic rights in Ghana: A threat to the rights of persons with disabilities 135 Justice Srem-Sai

SECTION B: COUNTRY REPORTS

Eritrea Futsum Abbay

Lesotho Itumeleng Shale

Morocco Arlene S Kanter

Sierra Leone Romola Adeola

Swaziland Simangele Daisy Mavundla

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Tunisia Arlene S Kanter

SECTION C: REGIONAL DEVELOPMENTS

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Disability rights and emerging disability legislation in selected African jurisdictions: A diagnostic commentary 291 Enoch MacDonnell Chilemba

The right to political participation for people with disabilities in Africa 309 William Aseka Oluchina

BOOK REVIEW

AS Kanter:The development of disability rights under international law: From charity to human rights(2014) Tsitsi Chataika

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EDITORIAL

The editors of theAfrican Disability Rights Yearbook(ADRY) are pleased to announce the publication of the third volume of theADRY. Whilst maintaining the foundational structure of the inaugural issue, namely, a tripartite division between articles, country reports and commentaries on regional developments, the 2015 Yearbookhas added, a new feature in the form of a book review section.

Section A of the 2015 volume features six chapters. The majority of the chapters in this section emanate from papers which presented at the conference on the human rights of women with disabilities that was convened by the Centre for Human Rights in November of 2014. The papers were subsequently reworked for publication in theYearbook. The first two chapters focus on the sexual and reproductive health and rights of women. The first chapter is against the backdrop of the persistence of disability-related discrimination that is detrimental to the sexual and reproductive health of women. Lucyline Nkatha Murungi and Ebenezer Durojaye make a case for exploring synergies between the Convention on the Rights of Persons with Disabilities (CRPD) and the Protocol to the African Charter on Human and Peoples’ Rights and maximally using the synergies to respect, protect, promote and fulfil the sexual and reproductive health and rights of women. In the second chapter, using the CRPD as a human rights benchmark, Itumeleng Shale puts the sexual and reproductive health and rights spotlight on Lesotho. The author evaluates the extent to which the county’s legal and policy framework for protecting women’s sexual and reproductive health is consonant with the state obligations arising from the CRPD.

The third chapter by Dianah Msipa highlights that competence to testify and access to justice in respect of witnesses with intellectual disabilities who have experienced sexual assaults and abuse are areas that have historically been at the receiving end of discriminatory laws and practices. Focusing on the criminal justice systems of South Africa and Zimbabwe and drawing from normative standards developed by the CRPD and critical disability theory, the author argues that any assessment of the competence witnesses with intellectual disabilities to testify should now be for the purposes of determining requisite accommodations rather than findings of incompetence and excluding testimonies. In the fourth chapter, with a spotlight on the African and Latin American regions, Marina Mendez Erreguerena examines the provision of care for persons with disabilities and interrogates the intersection between gender equality and support for the carers. The author observes that, in contrast to the global North, the provision of care in the African and Latin American regions is mainly undertaken by women in family settings and in the form of ‘informal care’ which is not formally recognised or supported through resource allocation by the state. The author makes a case for reforming law and policy to recognise the contribution and rights of carers.

The fifth chapter by Jim Nyanda highlights that girls with disabilities experience more than a single axis of discrimination. It focuses on access to education in Malawi. Against the backdrop of standards laid down by the CRPD, the chapter assesses the extent to which the Disability Act of Malawi of 2012 is compliant with the international human rights to education. It argues that the Act falls short of the state obligations imposed convention in a number of respects.

The last chapter by Justice Srem-Sai breaks from the focus on women and girls with disabilities to examine the justiciability of socioeconomic rights in the legal system of Ghana. This is with a view to creating an enabling legal environment for the realisation of the rights of persons with disabilities at the domestic level. The article’s point of departure is that the justiciability of socioeconomic rights is a central assumption in the regime of disability rights inscribed in the CRPD which Ghana has ratified. Against a backdrop of the Constitution of Ghana in which socioeconomic rights are inscribed only as directive principles (rather than justiciable rights) and domestic judicial interpretation which has been equivocal on the justiciability of socioeconomic rights, the author argues that in order to clearly render socioeconomic rights justiciable, it would serve well to amend the Constitution of Ghana and accord socioeconomic rights a clearer status.

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Furthermore, it is suggested that Ghana can look at other jurisdictions, including India and South Africa and draw normative guidance on juridical mechanisms for the enforcement of socioeconomic rights.

In Section B of theADRY, a new set of countries are reported on – six in all – thus adding to the stock of countries that were reported on in the 2013 and 2014 volumes. The country reports in this volume are on:Eritreaby Futsum Abbay; Lesothoby Itumeleng Shale;Sierra LeoneRomola Adeola; by Swaziland by Simangele Daisy Mavundla;Moroccoby Arlene Kanter assisted by Inviolata Sore and Daniel Van Sant; andTunisiaalso by Arlene Kanter assisted by assisted by Sore and Daniel Van Sant.

Section C contains two commentaries that address African regional dimensions. The first commentary by Enoch McDonnell Chilemba discusses the emergence of disability-specific legislation in the African region through the prism of a selected range of African countries. The discussion seeks to establish whether domestic legislative initiatives are compliant with the CRPD. Against the backdrop of the right to political participation in article 29 of the CRPD, the second commentary in this section by William Aseka Oluchina, seeks to evaluate the extent to which African regional human rights systems and selected African states are compliant with the convention’s standards.

As indicated at the beginning of this editorial, a new feature in this third volume of the Yearbook is a book review section. In this volume, Tsitsi Chataika reviews The development of disability rights under international law: From charity to human rights (2014) by Arlene Kanter.

The financial assistance of the Open Society Foundations, in particular the Higher Education Support Project (HESP), Human Rights Initiative (HRI) and Open Society Initiative for Southern Africa (OSISA) is gratefully acknowledged.

Editors Charles Ngwena(convening editor) Ilze Grobbelaar-du Plessis Heléne Combrinck Serges Djoyou Kamga

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SECTION A: ARTICLES

1 HAPTER C

Summary

T HESEXUALANDREPRODUCTIVE HEALTHRIGHTSOFWOMENWITH DISABILITIESIN A FRICA : L INKAGESBETWEEN THE CRPD ANDTHE A FRICAN W OMEN ’ S P ROTOCOL

Lucyline Nkatha Murungi* & Ebenezer Durojaye**

Despite efforts made to address discriminatory practices against women in the last twenty years, women still encounter challenges with regard to their sexual and reproductive health and rights. In many African countries, women’s autonomy to exercise sexual and reproductive health choices is often undermined by cultural and religious practices as well as social attitudes and beliefs about the sexuality of women. Women with disabilities experience more barriers as exacerbated by social attitudes and systemic responses to disability which tend to diminish the sexual needs of persons with disabilities. Both the UN Convention on the Rights of Persons with Disabilities (CRPD) and the Protocol to the African Charter on the Rights of Women in Africa (African Women’s Protocol) have provisions which are relevant to sexual and reproductive health rights. Both instruments also recognise the increased vulnerability of women with disabilities to abuse or denial of their rights as a result of the intersection of disability and gender.

While there are some differences in the approach to sexual and reproductive health and rights, the two instruments underscore the need for non-discrimination and for purposive measures to enable women with disabilities to exercise and benefit from sexual and reproductive health services on a basis of equality with other women in the communities in which they live. The provisions of the CRPD would seem to build upon a bold path charted by the African Women’s Protocol in the recognition of the sexual and reproductive health and rights of women. Cumulatively, both instruments, along with other international and regional human rights instruments provide a solid basis for the protection of the sexual and reproductive health rights of women with disabilities.

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LLB (Moi), LLM (UP), LLD (UWC); Research Fellow, Dullah Omar Institute, University of the Western Cape. LLB (Lagos), LLM, LLD (Free State); Senior Researcher and Head, Social Economic Rights Project, Dullah Omar Institute, University of the Western Cape.

To cite: LN Murungi & E Durojaye ‘The sexual and reproductive health rights of women with disabilities in Africa: Linkages between the CRPD and the African Women’s Protocol’ (2015) 3African Disability Rights Yearbook1-30 http://dx.doi.org/10.17159/2413-7138/2015/v3n1a1

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Introduction

Generally, sexual and reproductive rights are some of the most controversial, underdeveloped, and least understood spheres of rights, especially in Africa. The sexual and reproductive rights of women with disabilities are even more susceptible to abuse fuelled by negative social attitudes and beliefs. Indeed, women with disabilities experience multiple barriers in the exercise of their rights due to the intersection of age, gender, disability, and in some cases other factors of vulnerability such as displacement or social and economic marginalisation. It is therefore significant that the African Women’s Protocol lays a foundation for the protection of sexual and reproductive rights of women. The provisions of the Protocol on sexual and reproductive rights of women in Africa are a strong starting point for enhanced protection of such rights. The Protocol specifically led the way in the recognition of sexual and reproductive rights as part of the right to health.

The CRPD builds upon the gains of the African Women’s Protocol through a number of provisions that enhance the protection of women’s sexual and reproductive rights. In its preamble, the Convention recognises the inherent dignity and worth of every human being as a basis for the rights contained therein. The CRPD establishes a strong basis for the protection of the sexual and reproductive health of women and girls with disabilities in a number of ways. First, it takes special cognisance of the higher risk of abuse that women and girls with disabilities face in access to their rights and therefore calls for special measures to be taken to ensure equality of access to rights. Secondly, the CRPD sets out general principles on the interpretation and implementation of disability rights. These principles have an impact on the kind of measures necessary to ensure sexual and reproductive health rights. The principles are anchored in the social model of thinking about disability which demands a shift in attitudes towards disability in all areas of rights including sexuality and 1 reproduction. In addition, while the CRPD does not specifically address the sexual rights of persons with disabilities, it does call for equal access to ‘sexual and reproductive health programmes’ for persons with disabilities on a basis of equality with all other people.

This article seeks to establish the extent to which the standards set out in the African Women’s Protocol and the CRPD promote and protect the sexual and reproductive rights of women with disabilities in Africa. This is important because the sexual and reproductive needs of people with disabilities, particularly women with disabilities, are often treated lightly. By critically evaluating the standards set out in both instruments as well as the resulting approach to sexual and reproductive health and rights, the

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See generally C BarnesUnderstanding the social model of disability(2009) for a discussion of the social model of disability.

The sexual and reproductive health rights of women with disabilities in Africa 5

article identifies the linkages and synergies between the African Women’s Protocol and the CRPD in the protection of sexual and reproductive rights of women in Africa.

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Evolution of sexual and reproductive health as human rights

Sexual and reproductive health and rights as currently recognised developed from the right to the highest attainable standard of mental and physical health guaranteed in numerous human rights instruments. The first recognition of the right to health was contained in the preamble to the Constitution of the World Health Organization in 1946, where it was noted that the enjoyment of the right to health is a fundamental right of all 2 individuals. Thereafter, attempts have been made to give recognition to this right in other human rights instruments such as the Universal 3 Declaration on Human Rights, which despite being a non-binding human rights instrument, is widely accepted as an authoritative human rights instrument worldwide. In fact, the UDHR has almost attained the status of customary international law due to its influence in the drafting of many 4 national constitutions.

However, the most authoritative recognition of the right to health is found in article 12 of the International Covenant on Economic, Social and 5 Cultural Rights (ICESCR). Article 12 of the ICESCR recognises the right of everyone to the enjoyment of the highest attainable standard of mental and physical health. The Committee on Economic, Social and Cultural Rights in its General Comment No 14 has explained that the right to health necessarily includes the right to sexual and reproductive health care 6 services.

Attempts at recognising sexual and reproductive health and rights as human rights gained momentum during the 1990s mainly due to the

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The Constitution of the WHO was adopted by the International Health Conference, New York, 19-22 June 1945; opened for signature on 22 July 1946 by the representatives of 61 states; 14 UNTS 185. See art 25 of the Universal Declaration of Human Rights, GA Res 217 A (III), UN Doc A/810 (10 December 1948). JP Humphrey ‘The Universal Declaration of Human Rights: Its history, impact and juridical character’ in BG Ramcharam (ed)Human rights: Thirty years after the Universal Declaration(1979) 21 28. International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966; GA Res 2200 (XXI), UN Doc A/6316 (1966) 993 UNTS 3 (entered into force 3 January 1976). UN Committee on Economic, Social and Cultural Rights (Committee on ESCR) ‘The Right to the Highest Attainable Standard of Health’ General Comment No 14, UN Doc E/C/12/2000/4 para 21.