A thematic Convention on the rights and dignity of Persons with disability (PWD) should go a long way in ensuring conditions that are appropriate to the situations of developing and developed countries, without compromising the commitment to the promotion and protection of the rights and dignity of PWD. Currently, a number of international instruments exist which address diverse categories of human rights that people are entitled to by virtue of being human. A few contain scatterings of disability related provisions but for the most part, rights and concerns of people with disability have largely remained unsatisfactorily addressed at the international level. Civil Society efforts to highlight the plight of PWD have contributed in bringing disability related issues into international human rights discourse, but this effort must be carried forward by other key actors on the international scene if any significant gains or momentum in the disability movement are to be secured.
Persons with disability have for long been exposed to prejudice and discrimination as a result of their inability to cope at the same level as able-bodied people in similar circumstances. In order to rectify this, clearly there is need for a Convention that will establish or consolidate norms for the promotion and protection of the rights of people with disabilities. Such a Convention should also highlight the important aspect at the national level of legislative, administrative, judicial and Constitutional measures to ensure that people with disabilities will fully realise and enjoy their human rights in the area of civil, political, economic, social and cultural rights. The Convention should be an enabling instrument which promotes the removal of all barriers in the environment that hinder PWD from realising their full potential and advancement.
In order to integrate disability issues, all disability sensitive and responsive provisions that are contained in the International Bill of Rights, the Convention on the Rights of the Child, the Convention on the Elimination on all Forms of Discrimination against Women and other international and regional human rights instruments should be secured and affirmed in the Convention on the Rights and Dignity of PWD. In other words, no provision in the Convention should represent a step backwards or offer the PWD less protection than they enjoy today. Where necessary, all disability - sensitive provisions contained in international instruments should instead be improved even further to address the existing gaps. The following are proposed as being crucial to the discourse on the human rights of PWD;
One of the strongest tenets of human rights is the principle that rights should be enjoyed by all regardless of any superseding factors such as race, nationality, ethnicity, colour, social or political beliefs, sex, age, language, religion, social status to mention but a few. Differential treatment accounts for the majority of human rights violations in the world today, although in its applicability to disability it is more subtly shrouded. In their everyday life PWD face a lot of prejudice and discrimination in the area of civil, political, economic, social and cultural rights by virtue of their physical, mental, sensory and other limitations. This prevents them from having equal access to the opportunities available to able-bodied persons, and from enjoying their rights on an equal footing, putting PWD at a decided disadvantage. This calls for a Convention that will elucidate the human rights of PWD to ensure that they enjoy the full range of human rights, in the context of their special needs and in recognition of the need to consider and eliminate the reasons that have prevented PWD from realizing fully their human rights.
The Convention should unequivocally provide for the right of PWD to equal opportunities to enable access and utilisation of the various systems and structures in society and the environment in all spheres to be available to PWD. This will create an obligation for State parties to the Convention to provide special services or information in the appropriate form to PWD in order for them to take full advantage of all opportunities.
In light of the special needs of PWD, some rights specific to PWD only and requiring special measures by the State may need to be guaranteed in a thematic Convention. This may result in disparity of treatment between PWD and other people, but is in no way to be regarded as discriminatory, the aim being to correct imbalances suffered by PWD as a result of marginalisation. The Convention should provide for mainstreaming and inclusion as good principles where appropriate but also ensure that this does not result in isolation or exclusion for PWD. Some disabilities do not need mainstreaming and inclusion but special or particular measures before they can be integrated in the mainstream programmes. Gender responsiveness is also important and must be integrated in the Convention.
The principles of equality, non-discrimination, equal opportunity, empowerment and participation should be embedded in the Convention on the Rights and Dignity of Persons with disability. In providing for people with disabilities, these principles have to be interpreted to suit their circumstances.
The importance of defining the concept of disability cannot be overemphasized. For a long time, disability discourse has viewed the disabled person as the one with the problem, instead of rightly placing the problem as a function of the limiting social and physical environmental. It is now imperative that the barriers preventing PWD from realizing their rights fully be identified as external in order to adopt a rights based approach in designing programs and policies that will offer real and substantial solutions for PWD.
The definitive aspects of the Convention should recognise that the rights of PWD are an entitlement, not a privilege, and emphasise that PWD have the same rights as able-bodied people. These rights are inherent and PWD have a right to exercise and enjoy them. Additionally, the Convention should make a clear distinction between the terms impairment, disability and handicap. The definitions must strike a balance between recognising the necessity of addressing individual needs of PWD and the shortcomings of society, which hinder achievement of equality and non- discrimination. The many dimensions of handicap, for example social and physical handicap have to be handled singularly in the Convention in order to be relevant to the disabled concept. This means that rights and dignity in the Convention although formulated at a general level should specifically relate to each handicap.
It is imperative that disability issues be seen as human rights issues as opposed to the traditional conceptualisation of disability as a medical or welfare issue. A Convention being adopted will emphasize the necessary shift to the rights based approach in all disability issues.
The Convention should provide for PWD to have an equal share in the improvements in the living conditions resulting from economic and social development. The living conditions of PWD in under-developed countries means that they are doubly at risk and marginalized by their various incapacities. This is aggravated by conditions of poverty and lack of basic conditions to alleviate the plight of PWD, which serves to underscore inequality. Any meaningful initiatives to address the needs and problems of PWD must of necessity consider how to equitably allocate economic resources in order to increase the economic means and capacity of disabled persons.
In areas where the economic and social welfare systems are weak, disabled persons feel the negative impact most, they lack access to credit facilities and being largely discriminated against in the income generating sectors. In addition, PWD are usually viewed as economic burdens due to their limited ability to earn stable income. The Convention should provide for the empowerment of PWD to enable them exercise their human rights particularly in the field of employment. PWD must have equal opportunities for productive and gainful employment in the mainstream labour market.
It should be noted that certain forms of disability require constant health care and medication. In addition, health conditions have a large role to play in the prevention of disability e.g. during pregnancy and at childbirth, immunization, malnutrition and lack of proper medication in ailing children can result in disability in various manifestations. PWD also lack information to make appropriate choices regarding treatment or benefit from technical advances in the medical field. In particular, certain rights like the right to employment without discrimination, the right to benefit from social welfare schemes and to free education and health services should be guaranteed. Such initiatives should in particular take into consideration the special needs of certain vulnerable groups, such as women, the elderly, youth and children, in order to tackle structural causes of inequality.
The Convention must promote action aimed at preventing the occurrence of physical, intellectual, psychiatric and sensory impairments in addition to preventing impairments that cause a permanent functional limitation or disability. In addition it should address the need for the rehabilitation of PWD with the aim of enabling PWD to reach and maintain their optimal physical, sensory, intellectual, psychiatric and social functional levels by securing their rights to tools that change their lives towards a higher level of independence. It is also recommended that the Convention provide for the States obligation to introduce programs of action to make the physical environment accessible and undertake measures to provide access to information communication and technology.
The Convention should create an obligation for governments to have comprehensive data on disability in order to formulate and implement credible and appropriate programs and action plans to enable PWD achieve their full abilities and dignity as human beings. In addition, it should provide that State parties identify, mobilise and commit adequate and additional resources and strengthen the capacities of institutions working for and with PWD in order to ensure the implementation of the provisions of the Convention.
States should desist as far as possible from relying on the usual defence of limitations in economic and financial resources in promoting the rights of PWD. The indivisibility and interrelatedness of rights is now an established principle in international human rights discourse, and States should endeavour to attain a holistic package to the benefit of PWD. The crucial role of international aid and cooperation in alleviating financial constraints of countries in development and particularly disability issues should be encouraged in the Convention to the fullest extent possible.
PWD are invariably excluded from mainstream activities in all spheres of life, and often even in formulating their own interventions in addressing their problems. The participation of PWD at all stages of programmes aimed at ensuring their human rights should be targeted. This should cut across the various stages of consultations at the stage of needs assessment, programme identification, prioritisation and design, implementation, monitoring and evaluation, in order to ensure that the needs and welfare of PWD are genuinely being taken into consideration. The involvement of other key stakeholders in the disability movement such as health professionals, policy makers, legislators, legal personnel, civil society organisations, service delivery organisations, community leaders and families of disabled persons should be included. This will improve their capacity to engage and articulate issues pertinent to the protection and promotion of their human rights.
The Convention should call on member states to develop comprehensive laws on disability covering rights, education, economic development, participation, social status, accessibility, employment and related services and make welfare provisions for the persons with multiple disabilities and integration of PWD programs into society activities. Member states should develop policies and legislation on the provision of the devices, facilities and services, taxation of equipment for people with disabilities and enforce the provisions of legal instruments pertaining to PWD.
In addition, it will be important for States to engage in continued awareness raising on disability for all people, including people with disabilities themselves. The awareness raising should be at all levels of society including families of people with disabilities, communities and the international level. To this end, continuous representation of PWD at all levels of society, and the provision of skills training and education for people with disabilities should be secured.
Countries should have National Engagement Inventories indicating where particular services for specific categories of disability can be accessed and comprehensive data on disability indicating the total population of people with disabilities in each member state.
In order to ensure compliance with the standards outlined in the Convention, it is vital that the Convention prescribe international mechanisms and institutional structures for ensuring State compliance at the domestic level of recognized norms as set out in the instrument. This would require a scrutiny of policies, programs, legislative, judicial and administrative measures undertaken at national level to ensure that PWD are exercising their guaranteed rights. PWD should be represented on such monitoring bodies.
It is recommended that the current monitoring structures and mechanisms established under the six major Human Rights Treaties be replicated so as to monitor disability related issues. The role of this body would also carry out the traditional monitoring functions of receiving and analysing country reports, establishing complaints procedures for both interstate and individual/NGO communications regarding violations of rights. This Committee should also comprise of disabled persons who have expert knowledge of disability issues, as a means of increasing participation and visibility of PWD at international norm establishing levels.
17 June 2003