Presentation By
Ms. Edah Maina
Member & Vice President - Committee of Experts, UN CRPD
6th March 2009 at OHCHR, United Nations, Geneva
Mr. President,
Distinguished Members of the Human Rights Council, Ladies and Gentlemen
It is an honour to be here today, and to have the opportunity to establish this first
contact between the newly established Committee on the Rights of Persons with
Disabilities and the Human Rights Council. This is indeed an important platform to
bring to the fore issues that are the core of the convention and I thank the President of
the Council for extending his invitation.
1.
My contribution to this discussion will focus on Article 12 of the Convention i.e.
Equal recognition before the law
2.
The first issue that needs to be addressed in a discussion on article 12 is the
clarification of the term “legal capacity” in paragraph 2 of article 12 and its relation
(and possible overlapping) with the reaffirmation of the “right to recognition everywhere
as persons before the law” set out in paragraph 1 of the same Article. After clarifying
this fundamental legal notion, I will move on and outline key legal reforms that are
necessary to give effect to article 12 in national laws.
Mr. President,
3.
In order to understand what legal measures are required to implement article 12,
we must clarify that the two terms “recognition as a person before the law” and
“legal capacity” are distinct. The first endows the individual with status and capacity
in the legal order. This human right is not established by the CRPD, but it is already in
the UDHR and in the ICCPR, that is why CRPD says “reaffirm”. On the other hand, the
concept of legal capacity is wider, as it includes not only the capability to have
status and capacity in the legal order, but also entails the capacity to exercise
these rights and to undertake duties by way of one’s conducts.
4.
In general, it appears that no specific measures are required to give effect to
paragraph 1 of article 12 i.e. the right of persons with disabilities to be recognised
everywhere before the law. I say this because looking at the OHCHR information,
there is no situation in which the Human Rights Committee has noted in the course of
its interaction with States, on the basis of ICCPR, a country situation in which persons
with disabilities are not recognised as persons before the law. In the framework of
national reporting under CRPD, the Committee will be looking forward to specifically
examining this issue.
5.
On the other hand, we all are aware of the existence of many legal
frameworks, that regulate procedures through which a person with disabilities is
declared incompetent, in all or several areas of law; and that allow for the
appointment of a legal guardian, who takes decisions as a substitute for the
individual. Persons with mental and intellectual disabilities are most often the object
of such proceedings, which can also target persons with visual and hearing
impairments.
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Presentation By
Ms. Edah Maina
Member & Vice President - Committee of Experts, UN CRPD
6th March 2009 at OHCHR, United Nations, Geneva
Mr. President,
6.
Deep rooted assumptions and prejudices are the basis of the system of legal
incapacitation. It is often claimed that decisions to deprive a person of legal capacity
are taken in the subject’s interest. Areas of life that are compromised by the recognition
of a person as legally incompetent are most numerous. They include the right to
manage property, make a will and other inheritance related issues, petition the courts
and participate in legal proceedings such as marriages, choice of residence, issues
concerning health and treatment, just to name a few. I refer you here to the report of
your special rapporteur Mr. Novack on Torture and Disability
7.
These are the areas where legal reform is required to ensure compliance
with the Convention. In first instance, the adoption of legislation is required, that
recognises the right of all persons with disabilities, including of persons with
severe and profound disabilities, to have and exercise their legal capacity.
Furthermore, States are required to review all national laws in the light of article 12 and
abolish all legislation and practices that provide for the legal incapacitation of persons
based on their disabilities.
8.
In addition to recognising legal capacity to all persons with disabilities, the
Convention also stipulates that people with disabilities shall receive “the support they
might require” in exercising their legal capacity. This must translate in national
legislation in the legal recognition of the right of a person to receive appropriate
support in decision-making. Clearly, legislation on supported decision-making has
also to identify the necessary safeguards. This must include, for example, the
regulation of potential conflicts between one giving support and the supported person,
to be addressed through easily accessible procedures, that take into consideration
both the degree of support required, as well as the essentiality of the decision. In
addition, the possibility to nullify contracts in case a person was abused must be
regulated.
10.
I would like to stress that with the recognition of supported decision making, the
Convention has introduced a paradigm shift in international law. Supported decision
making means that there is no transfer of rights to other persons and that
persons with disabilities remain the holders of their legal entitlements, and are
entitled to exercise them. Traditional guardianship laws that declare the person
incompetent, and appoint a legal guardian to take decisions on the person’s behalf, are
incompatible with a system of supported decision-making, and need to be abolished,
as they formalise systems of replaced decision-making.
11.
The actual transition from a system of substitute to supported decision-making is
a process that requires not only legal measures, but also a broad range of measures to
be effectively implemented. These measures include educational measures from a
very early age to support development of decision making skills, promotion and support
of self advocacy and important work with family and carers of persons with disabilities.
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Presentation By
Ms. Edah Maina
Member & Vice President - Committee of Experts, UN CRPD
6th March 2009 at OHCHR, United Nations, Geneva
Mr. President,
12.
As I conclude, I would want to mention some cases, where results can be
appreciated even after a relatively short period of educational activities. Clearly, the
time and intensity required depends on the severity of the disability and other
consideration related to the social context. However, I can quote the experience I
personally gained in my work capacitating persons with mental and intellectual
disabilities to exercise their right to vote during the last Kenya general elections.
Persons with mental disabilities were given trained human readers who were able to
educate them on their civic rights and the procedures for voting. Under this
programme, 664 persons actually voted in the elections, from mainly rural
constituencies. This is a clear example that the paradigm shift from exclusion to
equality can be implemented including in rural areas of developing countries. It will be
a long road as you know that we need to tackle stigma and prejudices that have been
rooted in all societies for time immemorial.
Thank you.
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