© Friedrich-Ebert-Stiftung Professor Marius Olivier, Extra- ordinary Professor, University of Northwest, RSA; Adjunct-Professor, University of Western Australia, Perth, Australia; Director: Institute for Social Law and Policy The UNCRPD and SADC instruments 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung BACKGROUND BACKGROUND Insert your logo 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung BACKGROUND Adopted in 2006, came into force in 2008 Some developing countries played a crucial role in its adoption, among others South Africa; disability organisations crucially involved Highest number of signatories in history of a UN Convention on its opening day: 82 signatories (Convention); 44 (Optional Protocol – individual complaints mechanism) The most swiftly ratified international treaty: by April 2017: 160 signatories; 173 parties (Convention); 92 signatories and 92 parties (Protocol) SADC: 14 ratifications of the Convention (not Botswana); 10 ratifications of the Protocol (not Botswana, Madagascar; Malawi, Lesotho and Zambia, but Madagascar and Zambia have signed) Insert your logo 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung THE UNCRPD THE UNCRPD 2. Insert your logo 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung INSTITUTIONAL FRAMEWORK The Conference of States Parties to the CRPD was established as an international mechanism to consider “any matter with regard to the implementation of the Convention” in accordance with the Article 40 of the CRPD. The Committee on the Rights of Persons with Disabilities, a body of 18 independent experts elected at the Conference of States Parties every two years, meet in Geneva three times a year, to consider and review periodical national reports on implementation of the CRPD (civil society to play an important role in this regard), produce general comments of relevant provisions of the CRPD, and attend to the functions the Committee has under the Protocol – i.e. To receive complaints from individuals of alleged breaches of their rights; and To undertake inquiries in the event of grave or systematic violations of the Convention. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung INSTITUTIONAL FRAMEWORK In September 2006, the UN Inter-Agency Support Group on the Convention on the Rights of Persons with Disabilities (IASG) was established with a view to strengthen coordination and coherence of the work of UN agencies, funds and programmes and to promote their policies and mechanisms to be inclusive of and accessible to persons with disabilities. Appointment of Special Rapporteur on the Rights of Persons with Disabilities. Appointment of Special Envoy on Disability and Accessibility. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung IMPACT AND MILESTONES "Ten years on, remarkable progress has seen in the implementation of the Convention and continues to guide and support States in the formulation and enforcement of their legislations, strategies, policies and programmes that promote equality, inclusion and empowerment of persons with disabilities in society and development. The United Nations, together with Member States, Disabled People’s Organisations (DPOs) and other major stakeholders, have also been making efforts to mainstream the rights, needs and perspective of persons with disability in development frameworks at global, regional, national and local levels. Mainstreaming and disability-inclusion are increasingly recognised as an effective strategy and featured in international development frameworks and efforts, such as the 2030 Agenda for Sustainable Development, the Sendai Framework for Disaster Risk Reduction, the World Humanitarian Summit, and the New Urban Agenda.“ - 10th anniversary of the adoption of Convention on the Rights of Persons with Disabilities (CRPD) 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung IMPACT AND MILESTONES In 2011, a Guidance Note on Integrating the Rights of Persons with Disabilities in UN Programming at the country level for UN country teams was endorsed. Also in 2011, the WHO and the World Bank issued a joint World Report on Disability in which it estimated over 1 billion or 15% of individuals of the world population live with one or more types of disabilities. In September 2013, the General Assembly convened the High-Level meeting on Disability and Development the first ever at the level of Heads of State and Governments in the history of the United Nations. 2018: A Flagship Report on disability and development reflecting progress made in addressing the relevant internationally agreed development goals and the provisions of the CRPD. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung IMPACT AND MILESTONES In September 2015, the 2030 Agenda for Sustainable Development a set of new global development goals (SDGs) that promises leave no one behind and specifically include disability and persons with disabilities as cross cutting issues, under five goals in seven targets: Among others Goal 10: Emphasizing the social, economic and political inclusion of persons with disabilities. 11 x “Persons with disabilities” or “disability” are specifically mentioned in the 2030 Agenda for Sustainable Development. 6 x Persons in vulnerable situations are specifically mentioned in the 2030 Agenda for Sustainable Development. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung CORE PROVISIONS A human rights instrument with a social development focus, with a specific emphasis on inclusion and participation – "States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life." (Art 26(1)) Purpose: to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity (Art 1) Moving beyond a medical model of disability to include a social model – defining persons with disabilities to include – "those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.“ (Art 1) In sum, the social model emphasises the shortcomings of society in respect of disability, and the abilities and capabilities of people with disabilities themselves. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung CORE PROVISIONS Eight Guiding Principles Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons 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 Emphasis is placed on a national framework to promote, protect and monitor implementation of the Convention 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung CORE PROVISIONS Effectively, both direct and indirect discrimination are covered Extensive definitions of (see Art 2) – “Reasonable accommodation” – i.e. necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; “Discrimination on the basis of disability” – i.e. any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung CORE PROVISIONS Specific rights recognised in the Convention are – equality before the law without discrimination right to life, liberty and security of the person equal recognition before the law and legal capacity freedom from torture freedom from exploitation, violence and abuse right to respect physical and mental integrity freedom of movement and nationality right to live in the community freedom of expression and opinion respect for privacy respect for home and the family right to education right to health right to work right to an adequate standard of living right to participate in political and public life right to participate in cultural life 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung CORE PROVISIONS Health: Article 25 specifies that "persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability.“ Social protection: Article 28 requires States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that rights without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realisation of the rights, including measures; and to ensure among others – Access to appropriate and affordable service, device and other assistance for disability-related needs; Access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes; and Equal access by persons with disabilities to retirement benefits and programmes. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung CORE PROVISIONS General obligations are imposed on States Parties, e.g. to – Adopt legislation and administrative measures to promote the human rights of persons with disabilities, and to abolish discrimination; Protect and promote the rights of persons with disabilities in all policies and programmes; Stop any practice that breaches the rights of persons with disabilities; Ensure that the public sector respects the rights of persons with disabilities; Ensure that the private sector and individuals respect the rights of persons with disabilities; Undertake relevant research and development; Provide accessible information about assistive technology; Promote training on the rights of the Convention to professionals and staff who work with persons with disabilities; Consult with and involve persons with disabilities in developing and implementing legislation and policies and in decision-making processes. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung SADC SADC 3. Insert your logo 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung SADC SADC has lagged behind in promoting a regional policy and dedicated legal framework to govern Persons with Disabilities In particular, no SADC protocol exists that is exclusively dedicated to addressing the challenges which persons with disabilities face or to afford such persons the rights protected in the UNCRPD. The SADC Treaty (1992) stipulates in Art 6(3) that "SADC and Member States shall not discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture, ill health, disability, or such other ground as may be determined by the Summit." 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung SADC The SADC Charter of Fundamental Social Rights in the SADC (2003) contains provisions relating to the social protection of workers and stipulates: “SADC Member States shall create an enabling environment such that every worker in the SADC Region shall have a right to adequate social protection and shall, regardless of status and the type of employment, enjoy adequate social security benefits.” (Art 10) Disabled persons are also given priority in the Charter. Art 9 provides that Member States must ensure that such persons, irrespective of the origin and nature of each particular disability, are entitled to the implementation of comprehensive additional concrete measures, aimed at improving their social and professional integration. The measures shall relate to, in particular, according to the capacities of beneficiaries, vocational training, accessibility and mobility, means of transport and housing and appropriate organisation of work and workplaces to take into account their needs. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung SADC The Code on Social Security in the SADC (2003) stipulates in Art 12.2 (within the context of occupational injuries and diseases) that "All modalities of disablement should be covered, irrespective of whether the disablement occurs in the formal or informal sector." Art 14 concentrates on people with disabilities Art 14.1: Member States are encouraged to create an enabling environment that would ensure that persons with disabilities, irrespective of the origin and nature of their disabilities or incapacities, are entitled to social security. In particular, Member States are encouraged to ensure that persons with disabilities benefit from social safety net mechanisms. Art 14.2: Member States should ensure that social security instruments guarantee equality of access and coverage to persons with disabilities. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung SADC Art 14 of the SADC Code on Social Security (2007) Art 14.3: Member States should promote the social and professional integration of persons with disabilities, through measures such as rehabilitation, vocational training, accessibility and mobility, means of transport and housing and the appropriate organisation of work and the working environment. Art 14.4: Member States should ensure that the special needs (including the need for assistive devices) and circumstances of persons with disabilities are provided for in national social insurance and social assistance instruments. Article 9 of the SADC Protocol On Gender and Development provides that persons with disabilities must have their health, welfare and other rights promoted and protected, through enacting or reviewing laws and other measures. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung SADC Article 15 of the SADC Protocol on Health (1999) provides for States Parties to co-operate and assist one another to promote effective measures to prevent and manage disabilities; Increase access to improved technology related to assistive devices, and the creation of a barrier free environment for the equalisation of opportunities for persons with disabilities; and Promote community-based rehabilitation programmes. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung SADC Finally, provision in relation to persons with disabilities is also made in the SADC Employment and Labour Protocol (2014), especially in Art 17: Art 17.1: Member States shall ensure that persons with disabilities are afforded the rights protected in the United Nations Convention on the Rights of Persons with Disabilities of 2006, in particular employment and social protection rights. Art 17.2: Member States shall ensure that persons with disabilities, whatever the nature and origin of such disability, are entitled to additional concrete measures aimed at improving their social and professional integration, including through measures such as rehabilitation, vocational training, accessibility and mobility, provision of assistive devices, means of transport and housing and the appropriate organisation of work and the working environment. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung SADC SADC Employment and Labour Protocol (2014), especially in Art 17: Art 17.3: Member States shall undertake measures to curb discriminatory practices against persons with disabilities, and foster social acceptance and integration of persons with disabilities. Art 17.4: Social protection measures for persons with disabilities shall include persons with HIV and AIDS and afford such persons employment protection and access to employment benefits. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung CONCLUSIONS CONCLUSIONS 4. Insert your logo 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung CONCLUSIONS The UNCRPD is a document of considerable importance and extensive scope, and has an impressive support basis and wide-ranging impact. SADC has adopted a range of instruments which also, among others, contain explicit provisions on the rights, and context of persons with disabilities – however, this represents largely a fragmented picture. However, a dedicated SADC instrument is conspicuous by its absence. There is evidently a real and urgent need for a specific Protocol that will deal with issues affecting persons with disabilities from a thorough conceptual perspective and with a broad operational sweep, supported by credible implementation, enforcement and monitoring mechanisms – see in this regard the promotion of the adoption of such a Protocol by the Southern Africa Federation of the Disabled (SAFOD) 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung CONCLUSIONS SADC could take the lead of the AU and develop an appropriate SADC- focused disability instrument and ensure more emphatic mainstreaming of the rights of persons with disabilities in other instruments and thematic areas. In addition, SADC could consider ratifying the UNCRPD in its own right (as the EU did in 2010), as regional organisations are entitled to do so. SADC should encourage non-ratifying Member States to ratify both the Convention and the Protocol, and support its implementation across the Region. 2/16/2019 © Friedrich-Ebert-Stiftung

© Friedrich-Ebert-Stiftung Marius Olivier E-mail: olivier@isl-p.org Insert your logo 2/16/2019 © Friedrich-Ebert-Stiftung