DWYPD briefing on African Charter on Human and People’s Rights on the Rights of Persons with Disabilities in Africa

Meeting report

Department briefing on ratification of Protocol

Ms Phuti Mabelebele, Chief Director: Advocacy and Mainstreaming Rights of Persons with Disabilities, Department of Women, Youth and Persons with Disabilities (DWYPD), said that the Department had presented the African Union (AU) Protocol to the Portfolio Committee about the steps to be followed up to the finalisation of the ratification by Parliament. She requested the Select Committee approve the ratification of the Protocol and recommendations for the processes to be passed on to Parliament for voting.

As background to this request, she said heads of state had adopted the Protocol to the African Charter on Human and People’s Rights on the Rights of Persons with Disabilities in Africa on 29 January 2018. The aim of the protocol was that all persons with disabilities had full and equal human and people’s rights and that those rights were protected. The protocol was an African instrument to advance the rights of persons with disabilities, cognisant of the obligations contained in the UN Convention on the Rights of Persons with Disabilities (UNCRPD), ratified by South Africa in 2007.

South Africa had signed the AU Protocol on the Rights of Persons with Disabilities on 29 April 2019, thereby signalling the country’s support and intention to ratify the Protocol. The Department of Social Development (DSD) had consulted widely with relevant departments, civil society, and Chapter Nine Institutions regarding the required mechanism to domesticate the Protocol. The presidential minute had been issued to ensure that South Africa signed the protocol.

Ms Mabelebele said South Africa was working towards an inclusive and equal society and was committed to implementing the plans in the National Development Plan (NDP) by 2030. In 2015, the Cabinet had approved the White Paper on the Rights of Persons with Disabilities, which brought together the NDP, the obligations contained in the UNCRPD, as well as Agenda 2063 and Agenda 2030 on Sustainable Development. The protocol provided South Africa with an opportunity to learn from other African countries, advance the rights of persons with disabilities, and strengthen the African perspective in the domestication process of the UNCRPD currently underway. The protocol would be a guide to the current medium term strategic framework (MTSF) to ensure disability-equitable implementation of all seven priorities.

All instruments in government had been considered to ensure that they successfully addressed the rights of persons with disabilities and implementation of the Protocol. The implementation process would be guided by Article 34.2 of the Protocol, Article 33.2 of the UNCRPD, and Article 34 of the African Union Disability Protocol. The South African Human Rights Commission (SAHRC) was empowered by Section 13(1)(b) of the South African Human Rights Commission Act, 2013, to monitor the implementation and compliance with international and regional conventions and treaties.

The Protocol was in line with the Constitution and would elevate the rights of children with disabilities, women with disabilities and older persons with disabilities. There was no additional financing or organisational personnel needed. Ratification of the Protocol would strengthen the promotion and protection of the rights of persons with disabilities. Once ratified, the Department would pursue a country-wide awareness campaign. The Protocol enhanced current arrangements.

The National Assembly and the National Council of Provinces had to first consider the Protocol for purposes of ratification. Once ratified, the Department of International Relations and Cooperation (DIRCO) would deposit the instrument of ratification with the African Union. To ensure that the courts could enforce the anti-discrimination laws and fair judgments on case law, Article 34.1 of the Protocol required that the Protocol be domesticated through the development of national legislation. The Department expected the AU Protocol to be integrated with the UNCRPD.

South Africa had made an undertaking to the AU on 29 April 2019 to ratify the Protocol and commence with the process for domestication immediately after ratification.  South Africa’s failure to ratify the Protocol would be damaging to its reputation and may compromise service delivery and protection of the rights and human dignity of persons with disabilities.
 
The Protocol, once ratified, would be able to fulfil constitutional requirements and would be enforceable through local legislation by the courts after its domestication. When the National Assembly and the National Council of Provinces (NCOP) approved, Section 231(2) would provide the mandate that would bind the Republic to the international agreement.

Recommendation

The DWYPD recommended that the Select Committee approve the ratification by Parliament for further processing to deposit the Protocol at the head offices in Addis Ababa.

Ms Mikateko Maluleke, Director-General (DG), DWYPD, clarified that the domestication would happen only after the ratification of the instrument.  Domestication occurred after ratification to ensure that there was a legal framework when implementing the instrument. The protocol was very similar to the United Nations (UN) Convention on the Rights of Persons with Disabilities, and already had binding obligations in terms of the convention. As a member of the AU, South Africa also had to sign with the AU because the obligations were similar to those of the UN.

The South African Law Reform Commission was in the process of domesticating the UN Convention on the Rights of Persons with Disabilities. The AU protocol would be automatically included when the UN Convention on the Rights of Persons with Disabilities was ratified. Regarding enforcing the protocol, the Constitution states that an instrument could be enforced only once it had undergone the domestication process.

The South African Law Reform Commission was in the process of creating legislation. Last year, an issue paper was gazetted, and there had been consultations. They were incorporating the inputs from the consultations and were in the process of deciding to create one piece of legislation, or whether multiple pieces would have to be created. There was a White Paper that had incorporated the UN Convention on the Rights of Persons with Disabilities.
 
Dr Barbara Loots, Parliamentary Legal Advisor, said there were no legal impediments that would prevent the Select Committee’s support in the NCOP vote for the AU protocol. The protocol aligned with the sentiments in the Bill of Rights. Legislation and other frameworks would allow for domestication. Legally, there was nothing that prevented the Select Committee from also asking for a report on the progress with the implementation of the Protocol and the legal framework that it had been given. Regarding the obligation of Section 231: Purpose of Ratification, Parliament's Legal Department aligned itself with the opinions they had expressed in the past.

The Members of the Select Committee were satisfied with the presentation and had no questions for the DWYPD.

Adoption of Protocol

The Chairperson said that after considering the AU Protocol, the Committee recommends that the NCOP, in terms of Section 231(2) of the Constitution, approve the Protocol to the African Charter on Human and Peoples Rights on the rights of persons with disabilities in Africa.

The Committee endorsed the Protocol report. There were no objections.

The Chairperson commented that the report was important for all people with disabilities in South Africa. The Protocol would help to improve the lives of persons with disabilities as well as ensure that government, through Parliament and the Department, adhered to legislation.

Committee Minutes

The Committee adopted its minutes of 15 March 2022.

The meeting was adjourned.