Convention on Rights of Persons with disabilities: briefing by the Office on Status of Disabled Persons & Department of Foreign
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JOINT MONITORING COMMITTEE ON THE IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF CHILDREN, YOUTH AND DISABLED PERSONS.25 May 2007
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: BRIEFING BY THE OFFICE ON THE STATUS OF DISABLED PERSONS AND DEPARTMENT OF FOREIGN AFFAIRS
Chairperson: Ms W Newhoudt-Druchen (ANC)
Documents handed out:
The Disability Convention and the Optional Protocol
Briefing notes by the Department of Foreign Affairs on the Convention [available here once adopted]
Statement to the General Assembly
Letter to the President: Explanatory Memorandum
Letter from the Chief State Law Advisor (see Appendix A)
Department of Foreign Affairs presentation on the Convention and Optional Protocol
SUMMARY
The Office on the Status of Disabled Persons briefed the committee on the Convention on the Rights of Persons with Disabilities and its optional protocol. The procedure to ratify the Convention, and the effect it would have once ratified, was explained. 84 countries had signed but so far only Jamaica had ratified the Convention. It required to be ratified by 20 countries before becoming operative. Once this Convention was ratified, South Africa would then be obliged to put into place systems, procedures and laws to ensure the Convention would be implemented correctly. A progress report on the implementation of this Convention would have to be submitted two years after ratification to the United Nations. The Office would be responsible for developing a national implementation plan for the Convention, would work in collaboration with the Joint Monitoring Committee and would set up disability focal points in the Departments to raise awareness nationally. A committee of experts would be appointed to write the implementation reports.
The Department of Foreign Affairs added explanations on the optional Protocol, which dealt with hearing complaints from an individual or groups of individuals, and the procedure should a South African complainant wish to lodge a complaint with the United Nations Committee. The Department detailed the consultation process.
Questions by members sought clarity on ratification, the consultation with civil society, the roadshow to be held, whether there would be a need to enact new legislation, the composition of the Committee of Experts, integration with the Southern African Development Community, the need to translate this document perhaps into South African sign language, and to re-write it in plainer language, and implementation of the Integrated National Disability Strategy. Further questions related to the reporting mechanism, assurances that the provisions of the Convention did not conflict with South African law, and whether there was a need to make a Declaration in relation to education for people with disabilities. Members resolved to adopt the Convention. It would be tabled in the house on 5 June, when a ten-minute statement would be read out.
MINUTES
The Chairperson mentioned that the Committee had already received a briefing on the Convention held in New York, which was signed on 30 March 2007. The Convention would be formally tabled for ratification on 5 June and if it was passed this would be a positive step forward for the country.
Briefing by the Office on the Status of Disabled Persons (OSDP)
Mr Benny Palime, Director, OSDP, explained the process of ratifying the Convention on the Rights of Persons with Disabilities (the Convention). The Convention had been signed on 30 March at UN Headquarters in New York. The State Law Advisors had given their approval that the Convention was consistent with local law. The Department of Foreign Affairs (DFA) had been consulted to check consistency with other international law. An explanatory memorandum and Cabinet Memorandum had been prepared, along with a statement on the implications. The documents had been registered with the Treaty Registrations at the UN Headquarters. The instrument of full powers had been signed, and was the first human rights treaty of the 21st century. South Africa had been one of the 84 countries to sign. Jamaica was the only country so far that had ratified the Convention and ha suggested that South Africa should also do so soon. Twenty countries needed to ratify before the Convention came into effect.
Mr Palime mentioned that the implications for signing the Convention were that South Africa qualified as a signatory to both the Convention and Optional Protocol. The act of signature indicated that South Africa agreed with the main idea of the Convention, and would not take any actions that violated the main idea, would be party to all the ideals of the Convention now and in the future. There were three main reasons to ratify the Convention. Firstly the Treaty would come into full force in South Africa. Secondly ratification would require South Africa to comply with the obligations described in all articles of the Convention, and with the optional protocols. Thirdly, as a matter of principle, the time between signing and ratification should not be prolonged.
Mr Palime referred to Section 231(2) of the Constitution, and stated that OSDP would have to provide necessary documentation for this process. A letter to the Speakers of the National Assembly and National Council Of Provinces (NCOP) had been prepared. He described the procedure to deposit an international instrument with the Depository Authority at UN Headquarters.
Mr Palime noted that once this Convention was ratified, South Africa would then be obliged to put into place systems, procedures and laws to make ensure the Convention would be implemented correctly. A progress report on the implementation of this Convention would have to be submitted two years after ratification to the United Nations. Already South Africa was improving in disability compliance. OSDP had requested the Deputy Minister of DFA to assist with the instrument so that if the President should delegate duties to her, then the process would be easier. The Secretariat of United Nations would advise the DFA, through its mission in New York, of any changes to the status of the Treaty before ratification. Once the ratification was confirmed there could be no further changes to the status of the Treaty. The content of the Convention was not subject to change at this stage.
The implementation of the Convention would demonstrate a practical way of protecting the rights of persons with disabilities and to improve their quality of life and status. The OSDP would be responsible for developing a national implementation plan for the Convention, would work in collaboration with the Joint Monitoring Committee (JMC) and would set up disability focal points in the Departments to raise awareness nationally. OSDP would implement, monitor and evaluate the process. It would need more money in the next financial year because of the road show planned, as well as training and manual-development costs.
Mr Palime stated that there had been some debate on the question of reasonable accommodation and definition of disability. A section on the general obligation was included, to require UN member countries to implement the Convention within the law of general application. Further articles related specifically to women and children with disability. These were contained separately in recognition that they were the most vulnerable groups. Articles were also included relating to accessibility, and these covered communication issues, access to infrastructure, barriers to access and so forth. These should be studied thoroughly. There were long debates in New York as to whether the optional protocol should be a separate document or form part of the Convention. Mexico decided there should be a separate protocol, since disability was a human rights issue. No conclusion was reached as to whether the Convention office must be in Geneva or New York. The Convention stated that there must be a special appointment of a person to ensure proper implementation.
Mr Palime said that a committee of experts would be appointed to write the reports, including those relating to legislative amendments, and would appreciate some of the Members of this Committee being included.
Discussion
Ms F Mazibuko (ANC) commended Mr Palime and his office. She requested clarity on what ratification meant and what instrument he referred to. She requested clarity on the Depository Authority of the UN, and the implementing tools referred to.
Mr Palime replied that before the Convention came into force in South Africa this would require ratification by Parliament. Once this was given South Africa could not do anything that contradicted what was stated in the Convention. Ratification would bind the country to the Convention. South Africa would then have to report to the UN, would be bound to act within the Convention, and could be visited by a UN envoy at any time. The Convention would be included as a binding international instrument. The term "accession" was more or less the same as "ratification". The confirmation of ratification by Parliament would take the form of a Minute prepared by OSDP and signed by the President.
Ms Mazibuko was concerned about issues of women and children, and the references to mainstreaming and suggested that the OSDP must encourage every programme to be completed.
Ms Mazibuko agreed that a roadshow should be held, but suggested that the private sector must also be included, and that specific campaigns must be held to note the rights and ensure that they were not violated. Every citizen must take responsibility to become aware of the Convention and act in accordance with it.
Mr T Setona (ANC) requested clarity on the consultation process with civil society around this Convention. His view was that the history of the disability sector could not be treated differently. Consultation was a fundamental issue and the people affected should be informed, and he was worried that there might not have been sufficient consultation before finalising this agreement.
The Chairperson asked if the road show was intended to be for the general public or only for departments in the provinces.
Mr Palime replied that he was sensitive when it came to consultation with the civil society, and had been criticised about this by the Mail & Guardian newspaper. He insisted that consultation with civil society was a key focus area in his office. The disability sector was the second most politicised sector in the country. He wanted to guard against people using this to further their own interests or in order to generate funding, and caution needed to be exercised that all those claiming to be from civil society were in fact so. On 4 and 5 July 2007 the OSDP would be having a National Disability Summit, which would broaden the scope for consultation within the sector. OSDP was trying to reform the Federal Council, which had collapsed. The Office of the Presidency did not give funding to the Federal Council, and funding had needed to be sourced from elsewhere over the last two years. National Treasury had not indicated that OSDP would get funding for the Federal council, which was supposed to be an umbrella body to represent all disability groups. OSDP would start by training government officials and the provinces within this road show to ensure that they implemented the Convention. Civil society would not be ignored, but OSDP would work with it after first working with the government sector.
Mr T Setona stated that the Convention would be one of the most interesting pieces of international instruments Parliament would ever ratify. He said it would be interesting to engage with other departments and ministries on some of the fundamental assumptions underlying this particular instrument.
Mr Setona asked Mr Palime whether it was anticipated that there must be legislative development, or whether OSDP would merely engage in programmes of action. He further enquired what period the report would cover.
Mr Palime replied that he did not envisage that there would necessarily be a Disability Act in this country. However, he would be willing to consider civil society opinions once Parliament had ratified the Convention. This committee should advise whether there was a need for a Disability Act, or whether matters could be dealt with sufficiently under the Promotion of Equality and Prevention of Unfair Discrimination legislation.
Mr Setona asked who should be included in the Committee of Experts.
Mr Palime replied that the committee of Experts comprised of people who would be able to compile manuals for the country, handbooks for Parliament and pamphlets on this Convention. Such Committee would also have to advise the OSDP on the implementation within government, the scope of the projects and the steps to follow. He would set up this committee within the next six months.
Mr Setona noted that the Department of Public Service and Administration (DPSA) was not representative of all disabled people in the country, and asked how Mr Palime would engage with those disabled groups that were not part of the DPSA.
The Chairperson asked whether the Report would be submitted immediately after ratification or after signature by the necessary twenty countries.
Mr Setona said there would be challenges in terms of capacity and money and perhaps Mr Palime should already be engaging with the Ministry and National Treasury to give profile to the OSDP. He asked if there were challenges in engaging with the Ministry and other stakeholders in giving more profile to this directorate.
Mr A Madella (ANC) agreed that this was an important Convention and wanted to know the strategic approach to be followed in understanding Article 44 relating to reasonable integration within the context of the Southern African Development Community (SADC) and Parliament.
Mr Palime replied that he was currently engaging with the Secretariat of the African Decade Programme on Disability. There was a continental plan of action and the Secretariat was currently operating in 20 countries. Mr Palime needed to ensure that the Secretariat would be on board. South Africa had a steering committee on the Decade Programme so that they could implement. South Africa was willing to be a pilot project country for the implementation of the Convention. If this approach was adopted, then there was a need for engagement with the selected countries so that they reported accordingly to the African Union and had a protocol Agenda to the Summit of the State.
Mr Palime said that the sector could be strengthened provided it could be asked to get its house in order. During negotiations with Director Generals (DG) he had not encountered any problems or resistance. He had been dealing with them also through the Clusters. Disability strategies were also being drafted and once again there had been a good response.
Mr M Moss (ANC) noted that this document took five years. There must have been extensive lessons learned on how the process should take place. He also asked how Mr Palime would incorporate those groups not covered by DPSA.
The Chairperson stated that she would need to go through the documents again. She noted that DEAFSA was lucky in managing to obtain funding to translate its Constitution into South African Sign Language. She would like to see this document being conveyed in more simple language so that the general public would be able to understand it. There was also a need to explain and define the terminology used.
Mr Palime apologised for the jargon, and agreed that OSDP would put that strategy into place so that everyone could understand the Convention. It would also be translated into the official languages, and this could be done by 3 December, but it would not be available to the public until properly edited. He suggested that if approval was given by Treasury, a portion of the funding received could be redirected into this process.
Ms P Bhengu (ANC) mentioned that there had been disabled people who established the Integrated National Disability Strategy (INDS) but little had been done by government to implement it. She wanted to know how the Convention would change the lives of disabled people for the better and how could Mr Palime convince disabled people that this Convention would guarantee them the ability to become actively involved in the decision making process in relation to disability programmes.
Mr Palime agreed with Ms Bengu and suggested that OSDP would have to convince the civil society sector of disabled people's organisations. He stressed that South Africa was bound by this Convention to implement certain actions, and no official could implement anything contrary to this Convention. The INDS was an excellent disability policy, and had even been plagiarised by other countries. OSDP would have an implementation plan for the Convention and he would draft a plan for each article's implementation. This might affect the consideration of whether or not a Disability Act should be passed. One of the articles in Convention spoke to the consultation process of people with disabilities. Another looked at legal capacity of people with severe disabilities. It addressed issues in depth.
The Chairperson shared the concerns raised by Ms Bhengu but reminded the Committee that its task was to monitor departments and ensured that they followed and implemented this Convention. The Committee needed to be firm.
Department of Foreign Affairs (DFA): Briefing on Convention
Ms Louise Graham, Deputy Director: Vulnerable Groups, DFA, noted that the issues she would be dealing with had already been described by Mr Palime, and there was an overlap despite two departments being involved.
She summarised the adoption of the Convention and the import of that adoption for South Africa. The reasons for South Africa to be amongst the first of the countries to sign related both to political imperatives and the fact that South Africa had been involved with the drafting of the protocol from the beginning and was involved in the advocacy initiative for it even before the United Nations started the process of drafting a formal international treaty. Before the Convention existed there had been United Nations standard rules on equalisation of opportunities for people with disabilities, dating from 1993. It took 13 years to move from the standard rules to an international legally binding instrument. An ad hoc Committee had been the framework for international intergovernmental negotiations, and considered proposals for an international Convention. It had also considered the work done in several commissions. A number of institutions in South Africa, including government departments and the S A Human Rights Commission were leaders in the process. The Convention and optional protocols were adopted by consensus. The optional protocol, which might not be signed by some States if it was not applicable, was agreed on as a compromise solution. The complaints procedure had been taken out of the Convention and the optional protocol now had a specific provision for hearing complaints from an individual or groups of individuals, outside of the formal governmental processes. South Africa would have to submit a report on the implementation of the Convention. The UN Committee would also have the right to hear complaints from individuals or groups of individuals in South Africa who felt that government had violated their rights in terms of this Convention. Before approaching the UN Committee complainants must exhaust domestic remedies, and there had even been a suggestion that continental remedies should be considered before taking matters to the international stage.
The OSDP and DFA would consult with all relevant departments. They would need to give a clear indication of the implementation of this Convention in terms of organisational structures, personnel and legal implications. OSDP had already undertaken a study in August 2000 and a report was prepared by the Human Rights Commission, entitled “Towards a barrier free society in South Africa”. There was provision for other bodies also to be consulted, and this would presumably include the Chapter 9 institutions. South Africa was obliged to report on the full implementation of the Convention after two years. South Africa would be issued with a list of questions, clarifications were required and a line function minister would defend the report with a team of experts from this country. The international Committee of the Convention would make recommendations for improvements, changes and issues that would relate to the Convention. There was recognition that very few countries would immediately be able to comply with the full requirements of the Convention and optional protocol. There was an assumption that South Africa could declare that there would be progressive realisation of these rights, as was the case with the International Covenant on Economic Social and Cultural rights. However, South Africa would not be excused from its obligations and there could be questions, recommendations or strong comments on areas where South Africa did not comply.
Discussion
The Chairperson asked questions around the general obligations. She felt that the State Law Advisors should be asked if there was a way to enact the Convention into domestic laws, whether there was a need to do that, and, if so, after how long.
Mr Palime noted that in regard to domestic law OSDP had consulted with the DFA and Department Of Justice (DOJ) to ensure compliance and harmonisation with domestic laws. DOJ assured OSDP that the Convention was not objectionable and had addressed issues of human rights. A number of pieces of existing legislation did already protect the rights of people with disability, including the Social Assistance Act, Labour Relations Act, Skills Development Act, Employment Equity Act, and the equality legislation and the system of equality courts. If a Disability Act was to be drafted consideration would need to be given whether it should repeal and replace provisions in other Acts or need to amend them.
Mr Setona referred to the group that Mr Palime mentioned, which was concerned with rewriting the Integrated National Disability Strategy (INDS) and wanted him to comment on consultation. He also wanted to know the need for rewriting and the consultation process prior to that redrafting process.
Mr Setona asked what was the reporting mechanism to the Committee, and whether that would include civil society’s opinion specifically, or whether it was assumed that government would draft the country’s report. He wanted to know if the view of the sector would be involved through any consultation process. Mr Setona emphasised the importance of consultation so that transformation took the voice of civil society.
Mr Palime responded that the review of INDS was based on 2 premises. When it was first written in 1997 there was no definition of disability. The rewriting was aimed at re-defining some of the issues, and upgrading the standard of the current policy. It would now need to include certain issues that were in the Convention. The rewriting would involve consultation with DPSA at provinces, and with the Federal Council.
The Chairperson asked what Article 4 (a) meant, and whether there were laws needing to be abolished or amended.
Ms Graham mentioned the obligations that South Africa would have to comply with under Article 4. There was a need to unpack what the Convention meant before DFA and OSDP could report back on the implementation. There would be implications for the organisation, personnel, and finance, not only for OSDP but also for every relevant government department. There would also be legal implications concerning whether there should be a National Disability Act or whether the provisions of the Convention must be enacted in a new piece of South African legislation.
She reiterated that the DOJ was of the opinion that the provisions of the Convention were not in conflict with the South African law, but did not state whether the country fully complied with the requirements of that Convention. In Education, there might be serious financial implications. Article 24 (2) referred to ensuring that people with disabilities receive free quality education at primary and secondary level on an equal basis. This could be interpreted in two ways. It could either mean that free education must be provided at a primary and secondary level, (which was not currently the case) or it could mean that children with disabilities must not be discriminated against, or it could mean that free education must be provided for children with disabilities at both primary and secondary level. This would be something the Department of Education would have to consider seriously before ratification. Furthermore there may be a need to make a declaration to the effect that the principles of non-discrimination were understood, but that this should not be regarded as imposing an obligation to provide free education, but rather as confirmation that if the Department were in future to provide free education then disabled children must enjoy this right too.
Ms Graham noted that she could recount the DFA's past experiences with reporting. South Africa had submitted a country report on a human rights instrument, and when it was decided that this report did not show sufficient consultation with civil society, then civil society could present an alternate report to the international committee. The most recent report submitted by Minister Brigitte Mabandla on the International Covenant on Civil and Political Rights was held back and put through an extensive national consultative process to bring all of civil society on board, so that South Africa only presented one unified report to the Committee. The Committee rules of procedure provided that not only government, but also civil society, may freely and equally participate in the deliberations of the Committee when a country report was being considered. As already mentioned, there was a provision that domestic remedies must be exhausted and there had been a trend where individuals were referred to continental remedies before they went to the global and international level.
Mr Madella reminded the Committee that it had received reports indicating a contradiction with existing policy. Many children, especially those with mental disabilities, were excluded from the current education system. He mentioned that he would not be happy with a declaration as was suggested, but would like to adopt the Convention as it stood and look at the cost implications as they came. The South African Human Rights Commission had a wide range of public hearings on access to education and, although not focusing on challenges of disabled children in education, had mentioned in its report that this was an area that warranted extensive investigation, due to the preliminary findings that there was widespread discrimination against disabled students. He wanted to know the cost implications but was not sure if it was the JMC’s responsibility. If this kind of cost analysis would inform their decision to ratify then the time constraints would be a challenge. He further mentioned that some of the articles had already been covered by other local legislation. He moved for adoption of the Convention, rather than a declaration.
Ms Graham clarified that the issue of education was an example, and that there might be similar implications for other departments, such as housing. She had not meant to imply that a reservation should simply be given. A declaration could be made to set out South Africa's interpretation of an article, although she appreciated that in general it would be preferable to give a straight ratification without additional declarations or reservations. Differing interpretations of an article could be clarified at a later stage.
The Chairperson asked Members to consider the adoption of the Protocol. Members duly proposed and seconded, and resolved to adopt it. The Chairperson noted that the Protocol would be tabled in the house on 5 June, when a ten-minute statement would be read out.
The meeting was adjourned.
APPENDIX A
Date: 23 February 2007
To: B S Palime
From: S. Netshitomboni : Chief State Law Advisor
Attention B S Palime
CONVENTION ON THE RIGHTS OF PERSONS 'WITH DISABILITIES AND ITS OPTIONAL PROTOCOL:YOUR UNNUMBERED MINUTE RECEIVED ON 19 FEBRUARY 2007
1. We have scrutinised the draft "Convention on the Rights of Persons with
Disabilities and its Optional Protocol" (hereinafter referred to as "the Convention'') on An urgent basis in terms of paragraph 520(a) of the Manual on Executive Acts of the President of the Republic of South Afrit;a with a view to possible conflict with the domestic law of the Republic of South Africa and no provision of the Convention, as far as we could ascertain, is in conflict with the domestic law of the Republic of South Africa.
2. The Presidency’s attention is drawn to the provisions of section 231 of the Constitution of the Republic of South Africa, 1996 which must be adhered to.
CHIEF STATE LAW ADVISOR
S NETSHITOMBONI
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