African Disability Rights Yearbook Volume 5 2017

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

Description

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 2017
• Nombre de lectures: 0
• Langue: English
• Poids de l'ouvrage: 5 Mo

Extrait

TheAfrican Disability Rights Yearbookaims to advance disability scholarship. Coming in the wake of the United Nations Convention on the Rights of Persons with Disabilities, it is the Irst 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 Ield of disability rights in the African region.

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ISSN: 2311-8970

Pretoria University Law Press PULP www.pulp.up.ac.za

Braille

African

Disability Rights

Yearbook

2017

PULP

AfricanDisability RightsYearbook 2017

Editors Charles Ngwena Convening Editor, Professor of Law, Centre for Human Rights, Faculty of Law, University of Pretoria Ilze Grobbelaar-du Plessis Senior Lecturer, Department of Public Law, Faculty of Law, University of Pretoria Heléne Combrinck Associate Professor, Faculty of Law, North- West University (Potchefstroom) Serges Djoyou Kamga Associate Professor, Thabo Mbeki African Leadership Institute, University of South Africa

Assisted by Innocentia Mgijima-Konopi Programme Manager, Disability Rights Unit, Centre for Human Rights, Faculty of Law, University of Pretoria Isabeau de Meyer Centre for Human Rights, Faculty of Law, University of Pretoria

International advisory board Tsitsi Chataika Senior Lecturer, Department of Educational Foundations, Faculty of Education, University of Zimbabwe Luke Clements Professor, School of Law, Leeds University, United Kingdom Therese Degener Professor, University of Applied Sciences, Bochum, Germany

Anna Lawson Professor, School of Law, Leeds University, United Kingdom Janet Lord Senior Researcher, Harvard Law School Project on Disability, Harvard University Christopher Mbazira Professor, Faculty of Law, Makerere University, Uganda Charlotte McClain-Nhlapo World Bank (serving on the Advisory Board of the African Disability Rights Yearbook in her personal capacity) Bonita Meyersfeld Professor, Director, Centre for Applied Legal Studies, School of Law, University of the Witwatersrand, South Africa Lawrence Mute Lecturer, School of Law, University of Nairobi; Member of the African Commission on Human and Peoples’ Rights, the African Commission Working Group on Older Persons and Persons with Disabilities, and Chair of the African Commission’s Committee for the Prevention of Torture in Africa Michael Ashley Stein Executive Director, Harvard Law School Project on Disability, Harvard University; Professor, William & Mary Law School, United States Gerard Quinn Professor, Centre for Disability Law and Policy, National University of Ireland, Ireland Monica Mbaru Justice of the Labour Court, Kenya

THIS YEARBOOK SHOULD BE CITED AS (2017) 5ADRY TheAfrican Disability Rights Yearbookpublishes peer-reviewed contributions dealing with the rights of persons with disabilities and related topics, with specific relevance to Africa, Africans and scholars of Africa.

TheYearbookappears annually under the aegis of the Centre for Human Rights, Faculty of Law, University of Pretoria.

TheYearbookis an open access online publication, see www.adry.up.ac.za

For subscriptions to receive printed copies and for guidelines to contributors, also see www.adry.up.ac.za

African Disability Rights Yearbook

Volume 5 2017

2017

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] [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

© 2017

The financial assistance of the Open Society Foundations is gratefully acknowledged

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TABLE OF CONTENTS

EDITORIAL

SECTION A: ARTICLES

The Basic Education Act of 2013 as a tool for advancing early childhood development and education for children with disabilities in Kenya Mirriam Nthenge

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‘Access to justice of children with disabilities in defilement cases; a myth or reality?’ 25 Bernadette Malunga, Ngeyi Ruth Kanyongolo & Ngcimezile Mbano-Mweso

The socio-economic rights of children with disabilities in South Africa: A comparison between the African Charter on the Rights and Welfare of the Child and the Convention on the Rights of Persons with Disabilities 40 Zita Hansungule & Trynie Boezaart

‘De-stigmatising psychosocial disabilities in South Africa’ Faraaz Mahomed & Michael Ashley Stein

Mental illness, stigma and disability rights in Ghana Magnus Mfoafo-M’Carthy& JeffGrischow

Albinism in Africa: A proposed conceptual framework to understand and effectively address a continental crisis’ Mark P Mostert & Martha M Weich

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The identity question versus appropriateness of legal anti- discrimination measures: Endorsing the disability rights approach to albinism 118 Abdallah Possi & Ally Possi

SECTION B: COUNTRY REPORTS

Djibouti Djibril Ismail Cher

Madagascar Isambilo Rabearison-Andrianjara

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SECTION C: REGIONAL DEVELOPMENTS

The right to the highest attainable standard of mental health in selected African countries: A commentary on how selected mental health laws fare against article 25 of the Convention on the Rights of Persons with Disabilities 179 Elizabeth Kamundia

Disability rights developments in the East African Community post-2012 207 Damalie Naggita-Musoke

BOOK REVIEW

Elizabeth BarnesMinority body: A theory of disability Charles Ngwena

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EDITORIAL

The editors of theAfrican Disability Rights Yearbook(ADRY) are pleased to announce the publication of the fifth volume of theADRY.

Section A of this volume features seven articles by: Mirriam Nthenge on early childhood development and education for children with disabilities in Kenya; Bernadette Malunga, Ngeyi Ruth Kanyongolo, and Ngcimezile Mbano-Mweso on access to justice of children with disabilities in defilement cases in Malawi; Zita Hansungule and Trynie Boezaart on socio-economic rights of children with disabilities in South Africa; Faraaz Mahomed and Michael Ashley Stein on de-stigmatising psychosocial disabilities in South Africa; Magnus Mfoafo-M’Carthy andJeff Grischow and on mental Illness, stigma and disability rights in Ghana; Mark Mostert and Martha Weich on a framework for addressing trafficking of body parts of persons with albinism: and Abdallah Possi and Ally Possi on the intersection between identity and anti-discrimination measures for protecting persons with albinism. The last two articles, which focus on albinism, stem from papers presented at a conference on albinism that was convened in 2016 by the Centre for Human Rights, University of Pretoria.

Section B contains reports on two countries:Djiboutiby Djibril Ismail Cher; andMadagascarby Isambilo Rabearison-Andrianjara.

Section C contains two commentaries by: Elizabeth Kamundia on the intersection between right to the highest attainable standard of mental health and article 25 of the CRPD in selected African countries; and Damalie Naggita-Musoke on East African disability rights developments.

The 2017 volume ends with a book review of Elizabeth Barnes’sThe minority body: A theory of disability.The book is reviewed by Charles Ngwena.

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

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SECTION A: ARTICLES

T HE B ASIC E DUCATION A CTOF 2013 AS ATOOLFORADVANCINGEARLY 1 CHILDHOODDEVELOPMENTAND EDUCATIONFORCHILDRENWITH HAPTER DISABILITIESIN K ENYA C

Summary

Mirriam Nthenge*

The focus of this article is access to early childhood development and education (ECDE) by children with disabilities in Kenya. In general, ECDE has received minimal protection, if any, under international human rights law, including in the UN Convention on the Rights of Persons with Disabilities. The article argues that despite the gap in the international human rights framework on the rights of children with disabilities to access ECDE, domestically the Basic Education Act of 2013 provides an enabling framework to safeguard this right. To this end, the article argues that equality and non-discrimination, which underlie basic education law, provide a stronghold for advocating and implementing ECDE for children with disabilities in Kenya.

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Introduction

Education is an empowerment and multiplier right. Access to quality education enables one to profit from other rights and is a prerequisite for 1 individuals to have control over their lives. It is through education that individuals develop their human potential, sense of dignity and self-worth 2 as well as their mental and physical abilities. Education builds a pathway for one to claim and advocate one’s rights. For instance, it facilitates the acquisition and enhancement of skills for one to enjoy one’s right to work.

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LLM (National University of Ireland, Galway); Open Society Foundation Disability Rights Scholar 2014/2015. The author would like to thank Dr Shivaun Quinlivan, Sarah Hofmayer and Elizabeth Kamundia for their constructive feedback. F Coomans ‘Clarifying the core elements of the right to education’ http://aihr- resourcescenter.org/administrator/upload/documents/core.pdf (accessed 11 November 2016). Arts 24(1)(a), (b) & (c) Convention on the Rights of Persons with Disabilities (CRPD).

M Nthenge ‘The Basic Education Act of 2013 as a tool for advancing early childhood development and education for children with disabilities in Kenya’ (2017) 5African Disability Rights Yearbook3-24 http://doi.org/10.29053/2413-7138/2017/v5n1a1

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