1. Disability Rights under the African Framework
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There is currently no convention or treaty among African nations specifically addressing the rights of persons with disabilities. Nonetheless, the rights of persons with disabilities have been mentioned in various African conventions.
For example, the African Charter on Human and Peoples’ Rights (“African Charter”) (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms throughout the African continent. The African Charter includes rights and duties applicable both to individuals and groups (i.e. the right to equality and equal protection before the law (Article 3), right to life (Article 4), prohibition of torture, and cruel, inhuman and degrading treatment (Article 5), and right to work (Article 15)). Article 16(1) provides that every individual shall have the right to enjoy the best attainable state of physical and mental health and Article 18(4) provides that persons with disabilities have the right to special measures of protection in keeping with their physical or moral needs.
The African Charter on the Rights and Welfare of the Child contains reference to children with disabilities. Article 13 provides for special measures of protection, principles of self-reliance, participation, and access to children with disabilities.
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The Africa Decade of Disabled People, an initiative of the non-governmental community of Africa in cooperation with Member States and Governments of the Organization of African Unity, was proclaimed in 2000 to 2009 to further equalization of opportunities, full participation, and independence of persons with disabilities in society.
2. The African Commission on Human and Peoples’ Rights (“African Commission”)
The African Commission, based in Banjul, The Gambia, was established under Article 30 of the African Charter on Human and Peoples’ Rights (“African Charter”), and became operational on 21 October 1986. The African Commission reports to the Assembly of Heads of State and Government of the African Union. It promotes and protects human rights and basic freedoms in the Members States of the African Union as well as interprets and oversees the implementation of the African Charter. The African Commission hears complaints submitted by individuals, group of individuals, non-governmental organizations, and Members States concerning alleged violations of the African Charter (and may refer cases to the African Court on Human and Peoples’ Rights). It also examines reports submitted by various parties, such as the Members States and members of the African Commission, on the situation of human rights in its Members States. The African Commission carries out country visits and has established a system of Special Mechanisms, including Special Rapporteurs and Working Groups, to promote and protect the rights of specific groups. For example, the Working Group on Rights of Older Persons and People with Disabilities was established in 2007.
The African Commission has the power to make recommendations that it considers “useful” in a particular case. However, its findings and recommendations are not binding on Members States. There are also no provisions in the African Charter regarding the enforcement of the African Commission’s findings and recommendations.
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The Working Group on Rights of Older Persons and People with Disabilities was officially established in 2009 at the 45th ordinary session of the African Commission. The Working Group has the following mandates:
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Hold comprehensive brainstorming sessions to articulate the rights of older persons and persons with disabilities;
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Draft a Concept Paper for consideration by the Commission that will serve as a basis for the adoption of the Draft Protocol on Ageing and People with Disabilities(the Working Group has issued the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa in April 2016 (link));
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Facilitate and expedite comparative research on the various aspects of human rights of older persons and persons with disabilities on the continent(including socio-economic rights);
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Collect data on older persons and persons with disabilities to ensure proper mainstreaming of their rights in the policies and development programmes of Members States;
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Identify good practices to be replicated in Members States (the Working Group is responsible for seeking and receiving information from individuals, governmental and non-governmental organizations, and other stakeholders concerning the rights of older persons and persons with disabilities, and may raise awareness of such issues in its reports, press releases, or other activities);
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Submit a detailed report to the African Commission at each ordinary session, outlining the activities undertaken by that the Working Group in the year.
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In addition to the above, the African Commission also hears complaints by individuals and non-governmental organizations regarding alleged violations of one or more of the rights contained in the Banjul Charter.
3. The African Court on Human and Peoples’ Rights (“African Court”)
The African Court was established by Article 1 of the Protocol to the Banjul Charter (“Protocol”), which was adopted in June 1998 and came into force on 25 January 2004. The African Court has contentious and advisory jurisdiction over Members States that have ratified the Protocol concerning the interpretation and implementation of the Banjul Charter, its Protocol, and other human rights instruments ratified by the Members States.
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The African Court may hear complaints submitted by the African Commission on Human and Peoples’ Rights (“Commission”) and Members States to the Protocol or African Intergovernmental Organizations. Non-governmental organizations with observer status before the Commission and individuals from States which have made a declaration under Article 34 of the Protocol (accepting the jurisdiction of the African Court) may also submit a complaint. Further, Members States may submit a complaint to the African Court on behalf of an individual citizen.
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All pending and finalized cases of the African Court are accessible here.