PREPARED AND PRESENTED
BY
MR. GIDION KAINO MANDESI
BACHELOR OF LAWS (LL.B HONORS), FACULTY OF LAW UNIVERSITY
OF DAR ES SALAAM 1995
MASTERS IN LAW (LL.M.) IN INTERNATIONAL LEGAL STUDIES,
AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW, USA 1999
EXECUTIVE DIRECTOR
DOLASED TANZANIA
AND
CHAIRMAN OF INTERNATIONAL DISABILITY ALLIANCE (IDA)
CONTACT ADDRESS: DISABLED ORGANISATION FOR LEGAL AFFAIRS
AND SOCIAL ECONOMIC DEVELOPMENT (DOLASED)
KINONDONI ROAD, OPPOSITE KINONDONI MUSLIM SECONDARY
SCHOOL, PLOT 474, BLOCK 40
P. O. BOX 62963
DAR ES SALAAM
TELEPHONE: +255 22 2667977 OR MOBILE +255 713 404240
EMAIL: dolasedtanzania@yahoo.com
or gmandesi@hotmail.com
PRESENTED IN THE WORKSHOP ON EUROPEAN DISABILITY AND
DEVELOPMENT , BRUSSELS BELGIUM 20 TH -21 ST NOVEMBER 2006

UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES:
HOW WILL IT PROVIDE OPPORTUNITIES FOR PERSONS WITH
DISABILITIES IN THE SOUTH
1.
INTRODUCTION
In this paper, an attempt is made to highlight the importance of the
United Nations Convention 1 to guarantee the rights of persons with disabilities throughout the world. Much emphasis will be placed on addressing the question as to how the best way to implement the
Convention in order to bring positive impact on the lives of estimated
80 percent out of total world population of persons with disabilities who live in developing countries. As you know, the African Continent has a large number of persons with disabilities in both urban and rural areas who live in poverty and with very limited basic social services, opportunities and inadequate legal framework to promote and protect their basic rights and needs.
To start with, one can precisely argue that everyone is entitled to all basic the rights and freedoms set forth under the provisions of the international human rights law.
2 This implies that all international human rights instruments are also applicable to persons with disabilities as a human family. However, experience has indicated that the implementation these international human rights instruments has not provided sufficient protection of the rights of persons with disabilities. Further, it has been evidenced that there has been increasing recognition that improving the living conditions of persons with disabilities is a developmental challenges that has been dramatically overlooked 3 . This implies that for many previous years the inclusion and participation of persons with disabilities in many aspects of social life and development of the society where they live had fallen short of target.
It should be noted here that, several international instruments with legally non-binding nature 4 have significantly contributed to shifting the disability focus from a medical and welfare perspective on
1 See United Nations Convention on the Rights of Persons with disabilities as adopted in
August 25, 2006 by the 8 th session of the UN Ad Hoc Committee, in New York
2 Comprises International bill of human rights which includes, among other things, Universal
Declaration of Human Rights, 1948; International Covenant on Civil and Political Rights,
1966; International Covenant on Economic, Social and cultural Rights, 1966; etc
3 See summary report of UN Inter agency meeting held in August 10 – 11, 2006 at UN Head
Quarters New York
4 See the World Program of action concerning disabled persons, 1982 and UN Standard
Rules on the Equalization of Opportunities for Persons with Disabilities, 1993
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disability and to a social and human rights approach. This newly developed approach has led to the fact that disability is barely part of either the human rights or developmental agendas. Nowadays, the primary disability focus is based on promoting the inclusion and full participation of persons with disabilities in all aspects of the society concerned. Basic human rights and freedoms should be enjoyed and exercised by all people irrespective of one’s disability, gender or in any other kind. To ensure that this approach applies to persons with disabilities, it requires both state and non-state actors to undertake a leading role in promoting and protecting the rights of persons with disabilities.
2.
UN CONVENTION ON DISABILITY RIGHTS
This is a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities 5 , based on the holistic approach in the work performed in the domains of social development, human rights and non-discrimination and taking into account the recommendations of the Commission on Human Rights and the commission Social
Development. It creates clear legal framework to ensure effective implementation of the rights of persons with disabilities involving government agencies, national human rights instrument which are independent, impartial and adequately resourced, as well as the civil society participation within State Parties. It further seeks to raise awareness on disability, including of the need to address the stereotypes and prejudices that deny persons with disabilities enjoyment of their fundamental human rights. It establishes a new treaty monitoring mechanism to work closely with intergovernmental mechanisms from General Assembly and the human rights council to the commission on social and development and with UN Agencies, programs and funds with ultimate aim to promote the international cooperation and assistance needed to facilitate the implementation of the convention by states of the their obligations to respect and ensure all persons with disabilities the enjoyment of all their human rights.
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In August 25, 2006, the international community through eight session of the United
Nations Ad Hoc Committee adopted the International Convention on the rights of persons with disabilities. It contains all aspects of the life of all persons with disabilities in all ages and genders. It further seeks to ensure that the fundamental human rights of persons with disabilities are included as an integral component of the development agenda and serve as the basis for programming
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Broadly speaking, the convention has elaborated the human rights of persons with disabilities in the fields such as equality, non discrimination and equal recognition before the law which include legal capacity with supportive modes; liberty and security of the person; personal integrity; accessibility; personal mobility and independent living; right to health, work and education and participation in political and cultural life. The convention represents the paradigm shift on disability approach from a medical and welfare perspective on disability to a social and human rights approach. This mean that major advances can be achieved by adopting such rights based approach towards disability issues.
Regarding the scope of the convention, it pertains all aspects of the life of persons with disabilities. That is to say, all persons with disabilities infants, children, adults, seniors, men, women, persons with physical, social, psychological and intellectual disabilities. The articles of the convention 6 can be grouped into two types. Type one includes articles that reinforce or interpret existing human rights by introducing a disability perspective into these rights e.g. the right to equality and non discrimination to equal recognition as a person before the law, respect for privacy and the right to education and to health. Category two comprises of articles that introduce more disability – specific rights, such as their right to live independently and to be included in the community, the right to seek, receive and impart information through the use of access to alternative modes of communication, accessibility, and the right to personal mobility; just to mention the few.
The Convention aims primarily to ensure that these rights are included as integral component of development agenda and serve as a basis for programming 7 . It further aims to serve as a tool for achieving the internationally agreed development goals like the millennium development goals which shows that not only can these rights not be achieved without integration into the development agenda. The development agenda can not be achieved without taking disability issues into account. Taking an example, there are
650 million persons with disabilities throughout the world and that the vast majority of them about 80% live in developing countries and are among the poorest of the poor. This makes the
6 See footnote 1 above
7 See articles 4 of the (1) of the International Convention on the Rights of persons with disabilities as adopted by 8 th Session of UN Ad Hoc Committee, which provides, inter alia, an obligation to state party to take into account the protection and promotion of human rights of persons with disabilities in all policies and programmes
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first millennium development goal aimed to eradicate extreme poverty and the hunger, unattainable without disability on the agenda. Furthermore, it is estimated that 98% of children with disabilities in developing countries are not in school. They need to be included in the second millennium development goal of achieving universal primary education. It is clear that the exclusion, both economic and social, that is a part of daily lives of persons with disabilities in developing countries is a major developmental issues and all development partners have an important role to play to minimize or to solve these problems. With regard to partnership paradigm, the process of effective implementation of the convention needs joint actions and efforts by all stakeholders i.e. non governmental sector, government agencies and development and funding agencies. This means that there is an obligation to partnership between organization of persons with disabilities and development and human rights actors. During the negotiation sessions, it has been evidenced that the role of non governmental organization is so important in negotiation and consultations in the elaboration of International Disability Convention. Through
International Disability Caucus, representatives of persons with disabilities and other civil society participants were involved and worked together with United Nations member states delegations as experts to prepare the draft convention. This has contributed to strengthening consultations between DPOs representatives and government delegations. As a result of this process, within four years the International Convention on the Rights of Persons with
Disabilities was concluded at the end of 8 th Session of the Ad Hoc
Committee.
Regarding effective implementation monitoring of the convention, each development agency should play a key role in the process 8 .
Article 32 of the Convention establishes and defines the roles and responsibilities to be performed by different stakeholders on disability and development within the framework of International cooperation. Further, effective participation of UN system entities, multinational and bilateral development partners, regional system entities like European Union and African Union, as well as national entities including organization of persons with disabilities should be involved in effective implementation and monitoring of the rights
8 See articles 33 on national implementation and monitoring and articles 34 to 40 of the
Convention on the Rights of persons with disabilities concerning international monitoring mechanisms
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set forth under the convention for the benefit of all persons with disabilities around the world.
3.
WHY UN CONVENTION SO IMPORTANT IN THE SOUTH
For the developing country in the South, in particular in Africa, Latin
America and Asia where majority world disabled population live, this
UN convention is so important because it creates a new binding powerful legal source for better advancement and safeguarding disability rights at all aspects of social life and development. It is one of the powerful vehicles for bringing social positive changes, progress and development for all persons with disabilities in all ages and genders; i.e. female and male disabled children, young and adults.
Further, it is useful in promoting in the developing country in the
South the imaging global legal jurisprudence which views and regards disability as a cross cutting issues, as well as a social and human rights issue. This implies that disability should not be seen as a matter of concern to the individuals with disabilities and their families alone, it ought to be the concern of the all community where disabled persons live, as well as all development partners at national, regional and international levels.
The key principles of the convention 9 which include, inter alia,
“equality” of opportunity, accessibility and “non-discrimination”, full and effective participation and inclusion in society together with the notion of “reasonable accommodation” and “affirmative action”
(positive measures) are so important to be incorporated in particular national legislation and policy to guarantee basic human rights and freedoms for persons with disability in the developing countries. This will help to ensure full realization of fundamental human rights and freedoms by persons with disabilities in their domestic jurisdiction.
This will greatly help to ensure that persons with disabilities are entitled to have the same basic human rights and freedoms just like those persons who have no disability/impairment. Thus, laws and policies at domestic levels will be formulated or the existing one to be amended in order to comply with the UN Convention to promote and protect the rights and dignity of people with disabilities.
9 See article 3 on general principles of the Convention on the Rights of persons with disabilities as adopted by UN 8
New York th Session of the Ad Hoc Committee in 25 th August, 2006 in
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4.
Conclusion
To sum up this paper one can therefore say that International cooperation and assistance between and among states is so essential to support realization of fundamental human rights and freedoms by persons with disabilities as enshrined in the convention 10 . This could be achieved by establishing and sustaining partnership with relevant international and regional organizations and civil society in particular organizations of persons with disabilities in order to mainstream disability component in the development plans and programs at all levels. Capacity building through exchange and sharing of information, experiences, training programs and best practices on disability and development should be provided in the developing country in the South. Research, access to scientific and technical knowledge and economic assistance should be available in the development assistance packages for developing country in the South with the conditions those international cooperation and assistance must take into account disability aspect. This could be achieved within the framework of international cooperation and assistance for respecting, promoting, protecting and fulfilling disability rights at local, national, regional and international levels. Poverty reduction initiatives programmes sponsored by multinational and bilateral developing agencies to support developing countries will now include persons with disabilities as active participants to secure income through their own efforts. This will help to improve the quality of life of persons with disabilities in developing countries in the South, in particular, in Africa,
Latin America and Asia with a very low record human development.
10
In pursuant with article 32 of the International Convention on the Rights of Persons with disabilities concerning International cooperation, it is now agreed that international development programs should be inclusive of and accessible to persons with disabilities.
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