African Disability Rights Yearbook Volume 6 2018

Description

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.

Sujets

• Droit
• JUSTICE

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2018
• Nombre de lectures: 0
• Langue: English
• Poids de l'ouvrage: 2 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

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PULP

AfricanDisability RightsYearbook 2018

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 Nkatha Murungi Assistant Director: Centre for Human Rights, Faculty of Law, University of Pretoria 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 (2018) 6ADRY 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 6 2018

2018

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: Minit Print, Hatfield, 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

© 2018

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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Rather bad than mad? A reconsideration of criminal incapacity and psychosocial disability in South African law in light of the Convention on the Rights of Persons with Disabilities 3 Heléne Combrinck

Legal capacity of parties with intellectual, psycho-social and communication disabilities in traditional courts in Kwazulu-Natal 27 Willene Holness & Sarah Rule

Protection of the rights of persons with mental disabilities to liberty and informed consent to treatment: A critique of Gordon Maddox Mwewa & Others v Attorney General & Another60 Felicity Kayumba Kalunga & Chipo Mushota Nkhata

Rearticulating ubuntu as a viable framework for the realisation of legal capacity in sub-Saharan Africa 82 Louis O. Oyaro

Implementing article 13 of the Convention on the Rights of Persons with Disabilities in South Africa: Reasonable accommodations for persons with communication disabilities 99 Robyn White & Dianah Msipa

Leaving the woods to see the trees: Locating and refocusing the activities of non-state actors towards the effective promotion of access to justice of persons with disability 121 Azubike Onuora-Oguno

SECTION B: COUNTRY REPORTS

République de Bénin Marianne Séverin

Union des Comores Youssouf Ali Mdahoma

Mauritania Kedibone Chembe & Babatunde Fagbayibo

Rwanda Olwethu Sipuka

The Gambia Satang Nabaneh

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SECTION C: REGIONAL DEVELOPMENTS

A step to zero attacks: Reflections on the rights of persons with albinism through the lens ofX v United Republic of Tanzania251 Benyam Dawit Mezmur

Progress towards inclusive primary education in selected West African countries 263 Ngozi Chuma Umeh

BOOK REVIEW

Peter Blanck & Eiliónoir Flynn (eds):The Routledge Handbook of Disability Law and Human Rights(2017) 277 Heléne Combrinck

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EDITORIAL

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

Section A of this volume features six articles by: Heléne Combrinck on criminal incapacity and psychosocial disability in South African law; Willene Holness and Sarah Rule on legal capacity of parties with intellectual, psycho-social and communication disabilities in traditional courts in Kwazulu-Natal; Felicity Kayumba Kalunga and Chipo Mushota Nkhata critique of the case ofGordon Maddox Mwewa and Others v Attorney General and Another;Louis Oyaro on ubuntu as a viable framework for realisation of legal capacity in sub-Saharan Africa; Robyn White and Dianah Msipa onreasonable accommodations for people with communication disabilities; and Azubike Onuora-Oguno on the role of non-state actors in promoting access to justice of persons with disability.

The majority of articles in this section emanate from papers which were presented at the conference on the right to legal capacity and access to justice for persons with disabilities that was convened by the Centre for Human Rights in November of 2017. The papers were subsequently reworked for publication in the Yearbook.

Section B contains reports on five new set of countries thus adding to the stock of countries that were reported on in previous volumes of the Yearbook: The country reports in this volume are: Bénin by Marianne Séverin, Union des Comores by Youssouf Ali Mdahoma, Mauritania by Kedibone Chembe and Babatunde Fagbayibo; Rwanda by Olwethu Sipuka and the Gambia by Satang Nabaneh

Section C contains two commentaries by Benyam Dawit Mezmur on the rights of persons with albinism through the lens ofX v United Republic of TanzaniaNgozi Chuma Umeh on progress towards inclusive and primary education in selected West African countries.

The 2018 volume ends with a book review ofThe Routledge Handbook of Disability Law and Human Rights edited by Peter Blanck and Eiliónoir Flynn. The book is reviewed by Heléne Combrinck.

The financial assistance of the Open Society Institute Budapest Foundation (OSI) a Hungarian charitable foundation within the Open Society Foundations (OSF), in particular the Higher Education Support Project (HESP) is gratefully acknowledged.

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

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SECTION A: ARTICLES

R ATHERBADTHANMAD ? A RECONSIDERATIONOFCRIMINAL 1 R IGHTSOF P ERSONSWITH D ISABILITIES INCAPACITYANDPSYCHOSOCIAL DISABILITYIN S OUTH A FRICANLAW HAPTER INLIGHTOFTHE C ONVENTIONONTHE C

Summary

Heléne Combrinck *

Article 12(2) of the Convention on the Rights of Persons with Disabilities requires the recognition that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Such acknowledgment implies that state parties to the Convention, including South Africa, will have to reassess their existing legal provisions relating to legal capacity. These legal measures typically include a rule to the effect that where a person accused of a criminal offence lacks criminal capacity as a result of an intellectual or psychosocial disability, he or she cannot be held liable in criminal law (often referred to as the ‘insanity defence’). This article examines the potential influence of the recognition of universal legal capacity in the CRPD on the insanity defence, with specific emphasis on the current position in South African law. It commences with an overview of the normative content of article 12 of the CRPD as it relates to the notion of criminal capacity and also considers the interpretations of this provision as proposed by academic commentators. These interpretations may be described as, first, an abolitionist position (calling for both the elimination of the insanity defence and the concomitant mandatory committal of the accused to forensic psychiatric institutions) and, second, an integrationist position (suggesting the development of disability-neutral rules on criminal capacity). A third approach strongly argues in favour of retaining the insanity defence while at the same time reconsidering the institutionalisation of an accused person following an acquittal based on this defence. The present South African legislative dispensation regarding criminal capacity is subsequently examined and measured against the CRPD. The article concludes with a number of observations in view of potential law reform.

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B Iur LLB Honns BA (North-West University) LLM (Cape Town) LLD (Western Cape); Associate Professor, Faculty of Law, North-West University, South Africa.

H Combrinck ‘Rather bad than mad? A reconsideration of criminal incapacity and psychosocial disability in South African law in light of the Convention on the Rights of Persons with Disabilities’ (2018) 6African Disability Rights Yearbook3-26 http://doi.org/10.29053/2413-7138/2018/v6a1

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