Africa at Crossroads: The United Nations Convention on the Rights of Persons with Disabilities

I. INTRODUCTIONThe United Nations Convention on the Rights of Persons with Disabilities ("CRPD") and its Optional Protocol were adopted by the U.N. General Assembly on December 13, 2006 and came into force on May 3, 2008. 1 This followed General Resolution 56/168 on December 1, 2001 that established an Ad Hoc Committee to consider proposals for a comprehensive and integral international convention to promote and protect the rights of persons with disabilities based on the holistic principles of social development, human rights, and non-discrimination.2 The Committee held eight sessions in total, the last of which was on December 5, 2006 and completed the drafting process of the CRPD and its Optional Protocol, the first of its kind. On the first day of enactment, the Convention and its Optional Protocol garnered a record of eighty-two and forty-four signatories, respectively.3 Currently, 147 U.N. member states have ratified the Convention. Of these, ninety-two States have signed the Optional Protocol.4The CRPD was based on eight guiding principles: respect for inherent dignity and individual autonomy; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women; respect for the evolving capacities of children with disabilities; and respect for the right of children with disabilities to preserve their identities.5 The text of the Convention expanded the scope of the human rights based approach by explicitly applying it to persons with disabilities.6 The Convention signaled a move away from the singular impairment based medical model toward an empowering, outward looking social model of disability.7Meanwhile, during its first Ministerial Conference on Human Rights in May 2003, the African Union ("AU") urged member states to develop a protocol on the rights of people with disabilities, among other matters.8 Although it took awhile, the African Commission on Human and People's Rights ("Commission") transformed the Focal Point on the Rights of Older Persons into a combined Working Group on the Rights of Older Persons and People with Disability in its forty-fifth session in 2009. The Commission tasked the Working Group with drafting a concept paper to provide the group a basis for adopting a draft protocol on persons with disabilities.9 The Working Group took it a step further and developed and released the Draft Protocol on Ageing and People with Disabilities for review in mid2010.10 Human rights experts and organizations such as the Disabled Persons Organizations ("DPOs") immediately criticized the draft protocol for its non-inclusive conception.11 As a result, the Working Group began seeking public comments for a new protocol.12 Nonetheless, the Working Group initiated an Africa-specific protocol for persons with disabilities.13 Thus, determining the best way to develop African regional disability rights is essential. Is the best solution to develop an African regional disability protocol or is it to prioritize the CRPD?This article aims to consider the feasibility of developing an independent African disability protocol as compared to prioritizing the CRPD. First, to provide context, the article briefly discusses disability trends in Africa and assesses the sufficiency of the existing legal and institutional African human rights framework on disability. Second, this article critically examines the justifications for an Africa-specific disability protocol compared to the reasons for prioritizing the CRPD. Third, based on this comparison, this article recommends prioritizing the CRPD under the current circumstances. In its discussion, this article considers: how African states were involved in formulating the CRPD; the issues and concerns relating to human rights systems in Africa; issues relating to formulating treaties in Africa; and the efficiency or adequacy of African regional human rights institutions. …