Convention on Rights of Persons with disabilities: briefing by the Office on Status of Disabled Persons & Department of Foreign
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