CHAPTER
3
THE SOCIO-ECONOMIC RIGHTS OF
CHILDREN WITH DISABILITIES IN
SOUTH AFRICA: A COMPARISON
BETWEEN THE AFRICAN CHARTER ON
THE RIGHTS AND WELFARE OF THE
CHILD AND THE CONVENTION ON THE
RIGHTS OF PERSONS WITH DISABILITES
Zita Hansungule* and Trynie Boezaart**
Summary
International law plays an important role in the promotion and protection of the
socio-economic rights of children with disabilities. International law bolsters the
mechanisms used to keep states accountable in the fulfilment of their obligations.
This article discusses two international law instruments, namely, the African
Charter on the Rights and Welfare of the Child and the Convention on the Rights
of Persons with Disabilities, with the aim to examine how they provide for and
protect the socio-economic rights of children with disabilities in the South African
context and, by implication, children in the African context as a whole. Socioeconomic rights place a duty on states to ensure that all people have access to the
basic necessities of life, which include education, health care, food and water. Access
to these and other services ensures that children with disabilities, like all other
children, grow and develop in a manner that is cognisant of their specific needs and
best interests. The discussion takes the form of a focused comparison of the two
instruments, through which similarities and differences will be highlighted. The
discussion further points out the different ways in which these instruments could
reinforce the protection provided in national law to ensure that the socio-economic
rights of children with disabilities in South Africa are protected and promoted.
*
**
LLB LLM (Pretoria); Senior Project Co-ordinator: Research, Monitoring and
Evaluation, Centre for Child Law, University of Pretoria, South Africa.
BA LLB LLD (Pretoria); Professor of Private Law, University of Pretoria, South Africa.
Z Hansungule & T Boezaart ‘The socio-economic rights of children with disabilities in South Africa: A
comparison between the African Charter on the Rights and Welfare of the Child and the Convention on
the Rights of Persons With Disabilites’ (2017) 5 African Disability Rights Yearbook 40-63
http://doi.org/10.29053/2413-7138/2017/v5n1a3
40
Socio-economic rights of children with disabilities in South Africa
1
41
Introduction
Children with disabilities constitute the majority of children in South
Africa who are in need of special protection and services to ensure their
maximum development and inclusion in different spheres of society.1
These protections and services are provided in different ways, including
through the protection and promotion of a number of socio-economic
rights. The article acknowledges the important role international law plays
in the protection and promotion of socio-economic rights. International
law bolsters and backs the mechanisms used to keep South Africa
accountable in the fulfilment of its obligations. The mechanisms referred
to in this instance are the Constitution and legislation2 that contain South
Africa’s obligations and ways in which these obligations are to be carried
out.
The international law instruments that will be the focus of the article
are the African Charter on the Rights and Welfare of the Child (African
Children’s Charter)3 and the United Nations (UN) Convention on the
Rights of Persons with Disabilities (CRPD).4 The African Children’s
Charter is identified as the human rights instrument developed to meet the
contextual needs of children in Africa. As such, it includes children with
disabilities in South Africa. The CRPD is identified as the recently-ratified
human rights instrument that focuses specifically on the rights of persons
with disabilities, including children with disabilities.5 Both these
instruments have an important role to play in ensuring the protection and
promotion of the socio-economic rights of children with disabilities in
South Africa. The article aims to provide a focused comparison of the two
instruments to highlight the similarities and differences between the
instruments. It will also point out the different ways in which these
instruments could reinforce the national protections utilised to ensure the
protection and promotion of the socio-economic rights of children with
disabilities in South Africa.
1
2
3
4
5
Department of Women, Children and Persons with Disabilities, Department of Social
Development and United Nations Educational, Scientific and Cultural Organisation
(UNESCO) Children with disabilities in South Africa: A situation analysis 2001-2011 (2012)
11-12.
These include the Children’s Act 38 of 2005; the Schools Act 84 of 1996; and the Social
Assistance Act 13 of 2004.
The African Charter on the Rights and Welfare of the Child was adopted July 1990,
OAU Doc.CAB/LEG/ 24.9/49 (entered into force 29 November 1999).
The United Nations Convention on the Rights of Persons with Disabilities was adopted
by the United Nations General Assembly on 13 December 2006 and opened for
signature in March 2007.
This article will refer to children with disabilities and not persons with disabilities when
it discusses the provisions of the CRPD and its implementation. This is done to
highlight the fact that children with disabilities form part of the wider group of persons
with disabilities who benefit from the CRPD in the same way and, in some cases, more
than adult persons with disabilities.
42
2
(2017) 5 African Disability Rights Yearbook
Socio-economic rights in the South African
context
Socio-economic rights place a duty on the state to ensure that all its
members have access to the basic necessities of life, such as education,
health care, food, water, shelter as well as access to housing.6 Access to
these rights and/or services ensures that members of society are able to
fully enjoy their other inter-related rights, such as the right to human
dignity, equality, non-discrimination, expression and political
participation.7
Socio-economic rights are set out and protected in the South African
Constitution. Some of these rights, and specifically those that will be the
focus of the article, are contained in sections 26 and 27 of the Constitution.
Section 26 provides, among other things, that everyone has the right to
adequate housing. It places a responsibility on the state to take reasonable
legislative and other measures to progressively realise this right within its
available resources. Section 27 provides that everyone has the right to have
access to health care, food, water and social security, as well as social
assistance if they cannot support themselves and their dependants. The
state must take reasonable legislative and other measures within its
available resources to ensure the progressive realisation of each of these
rights. These rights are applicable to ‘everyone’, including children with
disabilities.
Children, including children with disabilities, have additional socioeconomic rights set out in section 28(1)(c) of the Constitution. This section
provides that ‘[e]very child has the right … to basic nutrition, shelter, basic
health care services and social services’. Section 28(2) goes on to provide
that the best interests of a child should be considered paramount in all
matters concerning the child. This section does not contain the ‘available
resources’ and ‘progressive realisation’ limitations similar to the sections
26 and 27 rights. This also applies to the section 29(1)(a) right to basic
education.8 This has resulted in the conclusion that children have
‘immediate and effective access’ to the services and resources protected
therein.9 This is especially true as far as children who are in the care of the
state or in alternative care are concerned.10
6
7
8
9
10
J Brickhill & N Ferreira ‘Socio-economic rights’ in I Currie & J de Waal (eds) The Bill of
Rights handbook (2013) 564.
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 23;
Brickhill & Ferreira (n 6 above) 564.
Sec 29(1)(a) of the Constitution provides, inter alia, that ‘everyone has the right to a
basic education’.
S Liebenberg Socio-economic rights: Adjudication under a transformative constitution (2010)
234.
Centre for Child Law v MEC for Education, Gauteng 2008 (1) SA 233 (T) paras 227I-J.
Socio-economic rights of children with disabilities in South Africa
43
Despite these commendable constitutional protections, currently there
exists no jurisprudence or legislation that ‘gives substance to the meaning
of socio-economic rights’ or minimum core.11 International law and
regional law, therefore, are very important as they provide guidance on the
content of socio-economic rights and ways in which to measure progress
in the implementation thereof.12 In this regard, it is important to note a
constitutional obligation imposed by in section 39(1)(b) of the
Constitution, which provides that ‘[w]hen interpreting the Bill of Rights, a
court, tribunal or forum must consider international law’. The
Constitutional Court has recognised that ‘[i]nternational agreements and
customary international law provide a framework within which … [the Bill
of Rights] can be evaluated and understood’.13
3
An overview of the African Charter on the Rights
and Welfare of the Child
The African Children’s Charter has been signed and ratified by 41 African
11
12
13
P Proudlock ‘Children’s socio-economic rights’ in T Boezaart (ed) Child law in South
Africa (2009) 292 302-303. See also M Pieterse ‘Coming to terms with judicial
enforcement of socio-economic rights’ (2004) 20 South African Journal on Human Rights
406-407; D Blitchitz ‘Giving socio-economic rights teeth: The minimum core and its
importance’ (2001) 119 South African Law Journal 484. The Constitutional Court has
declined to be drawn into making decisions on the ‘minimum core’ applicable to socioeconomic rights in South Africa. In Mazibuko & Others v City of Johannesburg & Others
2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC) paras 59-60, the Constitutional Court
was of the view that ‘[f]ixing a quantified content might, in a rigid and counterproductive manner, prevent an analysis of context. The concept of reasonableness
places context at the centre of the enquiry and permits an assessment of context to
determine whether a government programme is indeed reasonable … [O]rdinarily it is
institutionally inappropriate for a court to determine precisely what the achievement of
any particular social and economic right entails and what steps government should take
to ensure the progressive realisation of the right. This is a matter, in the first place, for
the legislature and executive, the institutions of government best placed to investigate
social conditions in the light of available budgets and to determine what targets are
achievable in relation to social and economic rights.’ Statements of a similar nature
were made in Government of the Republic of South Africa & Others v Grootboom & Others
2001 (1) SA 46; 2000 (11) BCLR 1169 para 32 and in Minister of Health & Others v
Treatment Action Campaign & Others (No 2) 2002 (5) SA 721; 2002 (10) BCLR 1033 para
38. However, it could be argued that judicial precedent on the fulfilment and
implementation of socio-economic rights has, over the years, in an indirect manner,
started the process of determining the minimum core of socio-economic rights in the
Constitution. Eg, in relation to children’s socio-economic rights, a number of judgments
have discussed what it means to have access to basic education. Judgments have found
that it includes the provision of educator and non-educator posts (Centre for Child Law v
Minister of Basic Education & Others [2012] 4 All SA 35); the provision of school furniture
(Madzodzo & Others v Minister of Basic Education & Others 2014 (3) SA 441 (ECM)); the
provision of textbooks (Section 27 & Others v Minister of Education & Another 2013 (2) SA
40 (GNP) and Minister of Basic Education v Basic Education for All [2016] 1 All SA 369
(SCA); 2016 (4) SA 63 (SCA)).
Proudlock (n 11 above) 292.
S v Makwanyane & Another 1995 (6) BCLR 665; 1995 (2) SACR 1 paras 36-7, as quoted
in Currie & De Waal (n 6 above) 146.
44
(2017) 5 African Disability Rights Yearbook
countries, including South Africa.14 Nine countries have signed but not yet
ratified the Children’s Charter, and four countries have neither signed nor
ratified it.15 The African Children’s Charter arose as a result of frustration
felt by African countries towards the UN Convention on the Rights of the
Child (CRC) which was a product of a number of compromises that had
to be made to ensure consensus among states with different
backgrounds.16 Provisions that would have adequately covered issues
peculiar to the African context were not sufficiently addressed.17 For
example, the CRC failed to deal with the following issues distinct to the
African context:
• the disadvantages that the girl child experiences in the African context;
• widespread practices in the African context such as female genital
mutilation and circumcision;
• the important role, responsibilities and duties that the African context gives
to the family and community in the upbringing of children; and
• the socio-economic conditions that African children experience and are
exposed to that affect their survival.
The African Children’s Charter was developed in order to ensure that the
CRC was given specific application18 in the African context.19 A more
specific explanation of why the Children’s Charter came about, with the
above frustrations in mind, is that it was the result of a desire by African
states to deal with and address challenges peculiar to African children.20
This is recognised in the Preamble to the Charter, which states:
NOTING WITH CONCERN that the situation of most African children
remains critical due to the unique factors of their socio-economic, cultural,
traditional and developmental circumstances, natural disasters, armed
conflicts, exploitation and hunger, and on account of the child’s physical and
mental immaturity he/she needs special safe guards and care.
14
15
16
17
18
19
20
African Commission on Human and Peoples’ Rights ‘Ratification table: African
Charter on the Rights and Welfare of the Child’ http://www.achpr.org/instruments/
child/ratification/ (accessed 6 March 2016). South Africa ratified the African
Children’s Charter on 7 January 2000.
As above.
F Viljoen ‘The African Charter on the Rights and Welfare of the Child’ in Boezaart (n
11 above) 335; BD Mezmur ‘The African Children’s Charter versus the UN Convention
on the Rights of the Child: A zero-sum game?’ (2008) 23 South African Public Law
Journal 3-7; A Lloyd ‘A theoretical analysis of the reality of children’s rights in Africa:
An introduction to the African Charter on the Rights and Welfare of the Child’ (2002) 1
African Human Rights Law Journal 12-15.
F Viljoen ‘Supra-national human rights instruments for the protection of children in
Africa: The Convention on the Rights of the Child and the African Charter on the
Rights and Welfare of the Child’ (1998) 31 Comparative and International Law Journal of
Southern Africa 205.
As above.
Mezmur (n 16 above) 6.
Viljoen (n 17 above) 205.
Socio-economic rights of children with disabilities in South Africa
45
The African Children’s Charter is an embodiment of the
acknowledgment that ‘each region, with its unique culture, traditions and
history, is best placed to handle and resolve its own human rights
situation’.21 The importance of the Charter (and other regional
instruments) is cemented by the UN General Assembly which affirms that
regional instruments that ensure the protection and promotion of human
rights could make a major contribution to the effective enjoyment of
human rights.22
In addressing African peculiarities and other concerns, the African
Children’s Charter aims to accomplish the goal of ensuring that the
African child receives care for his or her health and physical, mental, moral
and social development.23 This is achieved by taking into account the
virtues of the child’s cultural heritage and historical background.24
4
An overview of the Convention on the Rights of
Persons with Disabilities
The CRPD entered into force on 3 May 2008.25 Thirty-four African
countries, including South Africa, have ratified the Convention.26 The
working group that developed the CRPD consisted of delegates from seven
African countries, which included Cameroon, Comoros, Mali, Morocco,
Sierra Leone, South Africa and Uganda.27
The CRPD was developed to ensure the existence of an
internationally-affirmed document that articulates the manner in which
human rights and freedoms apply specifically to persons with disabilities,
including children.28 The CRPD is essentially a comprehensive and
integral international human rights instrument that has been developed to
promote and protect the rights and dignity of persons with disabilities.29 It
is the mechanism that ensures redress of the profound social disadvantage
21
22
23
24
25
26
27
28
29
Viljoen (n 17 above) 205-206.
Mezmur (n 16 above) 5.
Preamble African |Children’s Charter.
As above.
United Nations ‘Convention on the Rights of Persons with Disabilities’ http://
www.un.org/disabilities/default.asp?id=150 (accessed 9 March 2016).
J Lord & MA Stein ‘Prospects and practices for CRPD implementation in Africa’ in
C Ngwena et al African disability rights yearbook 2013 (2013) 98-99. South Africa ratified
the CRPD on 30 November 2007; see https://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en (accessed 7 March
2017).
The working group was established by an ad hoc committee created by the UN General
Assembly to analyse the possibility of developing a convention dealing with the rights
of persons with disabilities. The working group’s mandate was to elaborate on a draft
text of the Convention (see A Palacios & M Walls ‘Changing the paradigm – The
potential impact of the United Nations Convention on the Rights of Persons with
Disabilities’ in J Allain & S Mullally The Irish yearbook of international law (2006) 130).
Palacios & Walls (n 27 above) 100.
Preamble to the CRPD.
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(2017) 5 African Disability Rights Yearbook
that persons with disabilities experience despite the existence of various
other human rights instruments.30
The CRPD affirms a number of important principles that ensure the
protection and promotion of the rights of persons with disabilities. These
principles also guarantee the full enjoyment of the human rights and
fundamental freedoms of persons with disabilities without
discrimination.31 Disability is understood as an evolving concept resulting
from the interaction with attitudinal and environmental barriers that
hinder the full and effective participation in society by persons with
disabilities on an equal basis with others.32 The CRPD acknowledges that
discrimination on the basis of disability is a violation of the inherent
dignity and worth of the human person.33
5
A comparison between the protection of socioeconomic rights entrenched in the African
Children’s Charter and the CRPD
The African Children’s Charter and the CRPD have both been formulated
to protect particularly vulnerable groups of people, namely, African
children and persons with disabilities, who historically did not enjoy
sufficient protection through international instruments. This was the case
despite the fact that the international instruments applied to them equally
as to other people. The general international instruments, however, did not
meet their special needs in the same way the African Children’s Charter
and the CRPD do. What follows is a comparative examination of the
Children’s Charter and the CRPD and how they provide for the protection
and promotion of the socio-economic rights of African children with
disabilities, focusing on children in the South African context. The
discussion begins with the foundational principles that apply in all
circumstances, including those relating to socio-economic rights.
5.1
Foundational principles and provisions in the African
Children’s Charter and the CRPD specifically relating to
children with disabilities
The African Children’s Charter and the CRPD are both based on
foundational principles that guide the interpretation and application of
these instruments. They also contain provisions that relate specifically to
children with disabilities, which are highlighted in the next sections.
30
31
32
33
As above.
As above.
As above.
As above.
Socio-economic rights of children with disabilities in South Africa
5.1.1
47
African Charter on the Rights and Welfare of the Child
Gose identifies four foundational provisions or pillars that the Children’s
Charter is based upon, namely, non-discrimination; the best interests of the
child; the right to survival and development; and the right of the child to
participate in matters concerning his or her well-being.34 Gose describes
these as the ‘soul’ of the instrument.35
Article 3 of the African Children’s Charter contains the nondiscrimination clause which provides as follows:
Every child shall be entitled to the enjoyment of the rights and freedoms
recognised and guaranteed in this Charter irrespective of the child’s or his/her
parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion,
political or other opinion, national and social origin, fortune, birth or other
status.
One immediately notes that the article does not include disability as a
prohibited ground of discrimination.36 Despite the fact that the article
applies to all children, including children with disabilities, one cannot but
lament the fact that the African Children’s Charter did not take advantage
of the unique opportunity to affirm the importance of the rights and
freedoms of children with disabilities.37 Nevertheless, the article’s
relevance to all children, including children with disabilities, ensures that
children with disabilities should not be discriminated against in their claim
to the socio-economic rights set out in the Children’s Charter. In addition
to the article applying to all children, the inclusion of the phrase ‘other
status’ is an indication of the fact that the list provided is not an exhaustive
one and that, therefore, recognition should be given to ‘other forms of
differential treatment that cannot reasonably and objectively be
justified’.38 This would include discrimination against persons with
disabilities that would impair the recognition, enjoyment or exercise of
their rights.39
Article 4 of the African Children’s Charter provides for the best
interests of the child, and states that the best interests of the child should be
the primary consideration in all actions affecting the child, which includes
34
35
36
37
38
39
M Gose The African Charter on the Rights and Welfare of the Child (2002) 17. The CRC
Committee identified these principles as foundational principles to the implementation
of the CRC as well (see General Guidelines regarding the form and content of initial
reports to be submitted by States Parties under art 44, para 1(a) of the Convention: 19/
10/30 CRC/C/5 [13]).
Gose (n 34 above) 17.
H Combrinck ‘The hidden ones: Children with disabilities in Africa and the right to
education’ in J Sloth-Nielsen (ed) Children’s rights in Africa: A legal perspective (2008) 310.
As above.
General Comment 20 Non-discrimination in economic, social and cultural rights (art 2
para 2 of the International Covenant on Economic, Social and Cultural Rights) E/
C.12/GC/20 (2 July 2009) paras 15 & 27.
As above.
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(2017) 5 African Disability Rights Yearbook
children with disabilities. State parties, therefore, should mould their laws
and policies with the best interests principle in mind.40 This, in essence,
would mean that states must be cognisant of the best interests and special
needs of children with disabilities, particularly in their formulation of laws
and policies aimed at meeting the needs of persons with disabilities,
including laws and policies relating to socio-economic rights.41 Article 4
states that the best interests of the child must be of primary consideration.
The use of the definite article ‘the’ elevates the influence the principle has
over other considerations.42
Article 4(2) provides for the rights of children, including children with
disabilities, to participate in matters concerning his or her well-being.
Article 4(2) also provides that a child who is capable of communicating his
or her own views should be provided the opportunity to do so in judicial
and administrative matters affecting him or her. The views can be
expressed directly by the child or through an impartial representative.
Article 4(2) further provides that the child’s views must be taken into
consideration by the relevant authorities. The child is placed in the
position of an active participant who has an opportunity to, in one way or
another, influence decisions taken in matters involving him or her.43
This article has limitations, such as the fact that the phrase ‘who is
capable of communicating his or her views’ is restrictive in that this ability
may relate to age, level of education and the ability to communicate
verbally or to write.44 This does not take into account children who can
communicate, not in the traditional manner, but through other means such
as body language.45 This is especially unaccommodating for children with
disabilities whose only means of communication are in ways other than
speaking or writing, such as sign language.
The article is further limiting as it only provides for children’s views to
be expressed in judicial and administrative proceedings and not in other
forums or spaces that affect children, such as the family environment. This
is restrictive in the area of socio-economic rights, as children with
disabilities should be able to express their views, life experiences and needs
when laws and policies on socio-economic rights are being formulated,
without any restrictions. Article 7 seems to be a redeeming characteristic
as it allows children, therefore also children with disabilities, to freely
express their opinions in all matters. However, article 7 also contains the
limitation that only children who are capable of communicating their
views can express their opinions.
40
41
42
43
44
45
Gose (n 34 above) 26; Lloyd (n 16 above) 17.
As above.
As above.
Viljoen (n 16 above) 338.
Gose (n 34 above) 124; Viljoen (n 16 above) 338.
As above.
Socio-economic rights of children with disabilities in South Africa
49
Article 5 of the African Children’s Charter provides for the right to
survival and development. Article 5(2), which is important for purposes of
this article, places the obligation on states, to the maximum extent
possible, to ensure the survival, protection and development of the child.
One of the ways in which article 5(2) could be interpreted is that states are
placed under the obligation, among other things, to ensure the protection
and provision of socio-economic rights, as this is one of the ways of
making sure that children survive, grow and develop in the best manner
possible. This especially includes children with disabilities. The limitation
of this right, namely, the fact that states are given the option to do this to
the maximum extent possible, could mean that states may argue that,
because of scarce resources, they are not able to ensure that socioeconomic rights are fully protected.46
Article 13 of the African Children’s Charter, which deals specifically
with the protection necessary to ensure the advancement of the rights of
children with disabilities, is linked to these foundational pillars for children
with disabilities. Article 13(1) of the Children’s Charter provides that
children with disabilities have the right to special measures of protection to
meet their physical and moral needs. These special measures of protection
must be provided under conditions that respect their dignity and promote
self-reliance and active participation in their communities.47 Article 13(2)
of the African Children’s Charter details the special measures that states
must undertake in order to comply with article 13(1).48 Article 13(2)
provides as follows:
State parties to the present Charter shall ensure, subject to available resources,
to a disabled child and to those responsible for his care, of assistance for
which application is made and which is appropriate to the child’s condition
and in particular shall ensure that the disabled child has effective access to
training, preparation for employment and recreation opportunities in a
manner conducive to the child achieving the fullest possible social
integration, individual development and his cultural and moral development.
The article makes the assistance to be provided subject to available
resources.49 However, the Children’s Charter only requires that the
circumstances of the child’s special situation be taken into account. The
Charter does not go into as much detail as the CRC where in articles 23(2)
and (3) it is provided that the circumstances of the parents or the caregivers
must be taken into account and that services must be provided free of
charge where possible.50 The fact that the African Children’s Charter does
not state that the circumstances of the parents or caregiver be taken into
account could allow for services to be extended to a larger group of
46
47
48
49
50
Gose (n 34 above) 44.
As above.
Gose (n 34 above) 90.
As above.
Art 13(2) African Children’s Charter; arts 23(2) & (3) CRC; Gose (n 34 above) 90.
50
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children than the CRC covers, whose parents or caregivers could care for
them without state assistance.51 The list of services to be provided does not
include education, health care services and rehabilitation which are
provided for in the CRC.52
5.1.2
Convention on the Rights of Persons with Disabilities
Article 3 of the CRPD sets out the foundational provisions or pillars of the
CRPD as indicated below:
(a) respect for inherent dignity, individual autonomy including the freedom
to make one’s own choices, and independence of persons;
(b) non-discrimination;
(c) full and effective participation and inclusion in society;
(d) respect for difference and acceptance of persons with disabilities as part
of human diversity and humanity;
(e) equality of opportunity;
(f) accessibility;
(g) equality between men and women;
(h) respect for the evolving capacities of children with disabilities and respect
for the right of children with disabilities to preserve their identities.
For purposes of this article, only three of the above will be dealt with,
namely, respect for inherent dignity; non-discrimination; and respect for
the evolving capacities of children with disabilities. These pillars have been
described as the ‘moral compass’ of the CRPD.53
Respect for the inherent dignity of all human beings, including
children with disabilities, requires that all treatment and interaction be
carried out in a manner that is respectful and shows concern.54 Respect for
the inherent dignity of all must filter into how all other human rights,
including socio-economic rights, are applied and interpreted.55 Basser
notes the importance of respect for inherent human dignity by stating the
following:
[Respect for inherent dignity] means that people must be treated as ends in
themselves, first as people and only then as people with particular
characteristics. For people with disabilities this means asking the question
about whether the treatment or interaction is predicated on preserving and
51
52
53
54
55
As above.
Art 23(3) CRC.
R Kayees & P French ‘Out of darkness into light? Introducing the Convention on the
Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 27.
Currie & De Waal (n 13 above) 251.
As above.
Socio-economic rights of children with disabilities in South Africa
51
protecting the moral worth of the individual, not some idea about the person’s
disability …56
The African Children’s Charter does not contain a provision specifically
requiring respect for inherent dignity. Therefore, in this regard the CRPD
plays a very important role. The CRPD ensures that the inherent dignity
of children with disabilities is placed at the forefront of actions purporting
to protect and provide services to these children. The promotion and
protection of the socio-economic rights and the resultant formulation of
laws and policies as well as the provision of services to children with
disabilities must be buttressed by respect for the inherent dignity of such
children.
Article 5 of the CRPD touches on equality and non-discrimination of
persons, including children with disabilities. The article, among other
things, provides that all persons are equal before and under the law and are
entitled to equal protection by and benefit of the law without having to
suffer any discrimination. States bear the responsibility to prohibit all
forms of discrimination on the basis of disability and to guarantee to all
persons with disabilities equal and effective protection against all forms of
discrimination. In order to fulfil their obligations, states must take all
appropriate steps to ensure that reasonable accommodation is provided.
Finally, article 5 recognises that it may be necessary to take specific
measures to hasten or achieve the equality of persons with disabilities. It
notes that this will not be considered discrimination under the CRPD.
This clause differs from article 3 of the African Children’s Charter. It
applies specifically to persons with disabilities and, therefore, captures the
protection needs of children with disabilities more clearly. It does not list
the grounds on which a person should not be discriminated against, but
broadens the scope of protection by stating that all discrimination on the
basis of disability is prohibited. Read with article 3 of the Children’s
Charter, this would offer stronger protection to children with disabilities in
South Africa, as there would be the recognition that children with
disabilities should not be discriminated against because they are children
or on the basis of their disability.
Article 5 of the CRPD places the responsibility on states to ensure
equality and non-discrimination, while article 3 of the African Children’s
Charter does not specifically mention who is responsible for ensuring that
children are not discriminated against. The Children’s Charter focuses on
the child as the rights bearer, whereas the subject in the provision of the
CRPD is the state.57
56
57
LA Basser ‘Human dignity’ in MH Rioux et al (eds) Critical perspectives on human rights
and disability law (2011) 36.
Gose (n 34 above) 18.
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(2017) 5 African Disability Rights Yearbook
It may be argued that the African Children’s Charter offers broader
protection against discrimination in the sense that it is not only the state
that has the duty of non-discrimination, but everyone that the child comes
into contact with. The CPRD, on the other hand, focuses only on the state
as duty bearer.
Article 5 of the CRPD recognises that specific measures may need to
be implemented to accelerate ensuring the equality of persons, including
children with disabilities, and that this will not be considered
discrimination. This is especially important in the context of socioeconomic rights, where children with disabilities are often in a worse
position than other children in their access to socio-economic rights.58
Article 3 of the African Children’s Charter makes no mention of this.
The inclusion of respect for the evolving capacities of children with
disabilities in article 3 of the CRPD is ground-breaking as children with
disabilities often have been seen to have little or no capability or
competence to learn and develop themselves.59 Article 3 ensures that steps
are taken to equip children with disabilities with the ability to develop the
capacity for learning, developing and decision making, something that is
possible through the socio-economic right to education.60 This also is not
specifically contained in the African Children’s Charter. A combined
reading of the Children’s Charter rights and the CRPD, therefore, ensures
the comprehensive protection of children with disabilities.
As in the case of the African Children’s Charter, linked to the pillars,
the CRPD contains a provision that deals specifically with children with
disabilities in article 7. Article 7 provides:
58
59
60
1
State parties shall take all necessary measures to ensure the full
enjoyment by children with disabilities of all human rights and
fundamental freedoms on an equal basis with other children.
2
In all actions concerning children with disabilities, the best interests of
the child shall be a primary consideration.
See, eg, Western Cape Forums for Intellectual Disability v The Government of the Republic of
South Africa 2011 (5) SA 87 (WCC), where children with severe and profound
intellectual disabilities (that is, having IQ levels of 20-35 and less than 20 respectively)
were not provided with education by the state. The children had to rely on services
provided by centres run by non-governmental organisations. The centres were also
unable to cater for all children with severe and profound intellectual disabilities. The
state only provided subsidies to these centres. These subsidies were not sufficient to
meet the children’s educational needs and were far less than that given to other
children.
B Byrne ‘Minding the gap? Children with disabilities and the United Nations
Convention on the Rights of the Persons with Disabilities’ in M Freeman Law and
childhood studies (2011) 427; UNICEF ‘Using the human rights framework to promote
the rights of children with disabilities: Discussion paper – An analysis of the synergies
between CRC, CRPD and CEDAW’ (2009) 15.
Byrne (n 59 above) 427-428.
Socio-economic rights of children with disabilities in South Africa
3
53
State parties shall ensure that children with disabilities have the right to
express their views freely on all matters affecting them, their views being
given due weight in accordance with their age and maturity, on an equal
basis with other children, and to be provided with disability and ageappropriate assistance to realise that right.61
First, one immediately notes that, unlike the African Children’s Charter,
which states that the best interests of the child should be the primary
consideration, the CRPD provides that the best interests of the child shall
be a primary consideration in matters affecting the child. The formulation
of the CRPD is unfortunate,62 as it weakens the influence of the best
interests principle, and incurs the risk that other values could prevail over
the best interests of children with disabilities.63
Second, article 7(3) of the CRPD states that children with disabilities
have the right to express their views freely on all matters affecting them. It
does not, as in the case of the African Children’s Charter, place a
restriction on how this expression of views is to be executed. The CRPD’s
protection of children’s participation, therefore, is broader than that
provided for in the Children’s Charter.
5.2
Socio-economic rights included in the African Children’s
Charter and the CRPD
The above discussions have clearly defined children with disabilities, like
all children, as rights bearers of various human rights, including socioeconomic rights, whose rights are independent of the societies and families
they come from.64 This acknowledges the fact the children with disabilities
are ‘distinct members of the moral community with distinct interests [and
needs] who are appropriately viewed as self-originating sources of valid
moral claims with an equal moral status’.65
A comparative enquiry will now be carried out on some of the socioeconomic rights provided to children with disabilities as distinct rights
bearers by the African Children’s Charter and the CRPD. This is done to
highlight the similarities in and differences between the instruments and
the ways in which they can complement and support each other in the
furtherance of the socio-economic rights of children with disabilities in
South Africa. This is important as socio-economic rights ensure that
children with disabilities have access to their basic needs for survival,
growth and development.66 Three socio-economic rights will be dealt
61
62
63
64
65
66
Art 7 CRPD.
This formulation in the CRPD is similar to that provided for in art 3(1) of the CRC.
Byrne (n 59 above) 429.
A Nolan Children’s socio-economic rights, democracy and the courts (2014) 7.
As above.
Gose (n 34 above) 81.
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(2017) 5 African Disability Rights Yearbook
with, namely, the right to education; the right to health and related rights;
and the right to social security.
5.2.1
Right to education
The African Children’s Charter recognises the right to education in article
11, which places an obligation on state parties to promote and protect
access to education. Article 11(1) states that every child has the right to
education. Article 11(2) sets out the aims of education, which include the
promotion and development of children’s personalities, talents and mental
and physical abilities to the fullest potential; the fostering of respect for
human rights and fundamental freedoms set out in African regional and
international instruments; the promotion of children’s understanding of
primary health care; and the preservation and strengthening of positive
African morals, traditional values and cultures. Article 11(3) sets out the
obligations placed on state parties, which include the provision of free and
compulsory basic education and the implementation of special measures in
respect of female, gifted and disadvantaged children, to ensure equal
access to education for all sectors of the community.
The CRPD recognises the right of children with disabilities to
education in article 24. Article 24(1) of the CRPD states that the right to
education must be realised on the basis of non-discrimination and equal
opportunity. It provides that an inclusive education system must be
ensured at all levels. This reiteration and affirmation of the need for and
importance of non-discrimination and equality in the context of education
is important for children with disabilities as it ensures that the educational
environment is one that is free of discrimination, and affirms the specific
needs that children with disabilities have and the different ways they are
able to contribute. This is not contained in the African Children’s Charter
and, therefore, it is very important that the two instruments are read
together when dealing with the rights of children with disabilities to
education.
The aims of education are also set out in article 24(1) of the CPRD.
Among others, these include the full development of human potential, a
sense of dignity and self-worth, as well as the strengthening of respect for
human rights, fundamental freedoms and human diversity; the
development by persons with disabilities of their personalities, talents and
creativity, as well as their mental and physical abilities, to their fullest
potential; and enabling persons with disabilities to effectively participate in
a free society. These aims, although in some ways similar, are different in
the sense that they are formulated to apply specifically to persons with
disabilities. It should, therefore, be read in conjunction with the aims set
out in the African Children’s Charter, as this will ensure that children with
disabilities receive the most out of their education in the South African
context.
Socio-economic rights of children with disabilities in South Africa
55
Article 24(2) contains the obligations on state parties to ensure that the
right to education is fully realised. States should ensure that persons with
disabilities are not excluded from receiving education on the basis of
disability, and that children with disabilities are not excluded from
receiving free and compulsory basic education. This is similar to article
11(3) of the African Children’s Charter, which also provides for free and
compulsory basic education. However, article 24(2) goes further and
provides that inclusive, quality and free education should be accessed by
persons with disabilities on a basis of equality with others. The distinct
requirements of children with disabilities should be reasonably
accommodated, and support should be provided in the education system
in order to facilitate effective education. In order to make the most of
academic and social development, effective individual support measures
must also be provided.
Further provisions on the right to education contained in the CRPD
(and not in the African Children’s Charter) are detailed in articles 24(3)
and 24(4) of the CRPD. Article 24(3) sets out the measures states parties
must employ in order to ensure that persons with disabilities learn life and
social development skills that will facilitate full and equal participation in
education and their communities. These measures include:
• facilitating the learning of braille, alternative script, augmentative and
alternative models, means and formats of communication and orientation
and mobility skills, and facilitating peer support and mentoring;
• facilitating the learning of sign language and the promotion of the
linguistic identity of the deaf community; and
• ensuring that the education of persons, and in particular children, who are
blind, deaf or deaf and blind, is delivered in the most appropriate
languages and modes and means of communication for the individual, and
in environments which maximise academic and social development.
Article 23(4) provides that in order to ensure that the right to education is
realised for persons with disabilities, the teachers employed, including
teachers with disabilities, should be proficient in sign language and/or
braille. Professionals and staff that work at all levels of education should
also be trained, among others, in disability awareness, the use of
appropriate means of communication and educational techniques and
materials to support persons with disabilities.
The provisions supporting the right to education in the African
Children’s Charter and the CRPD clearly indicate that the CRPD
elaborates on the right in more detail than the Children’s Charter.67 The
more detailed provisions of the CRPD are aimed at ensuring that states
67
Save the Children See me, hear me: A guide to using the UN Convention on the Rights of
Persons with Disabilities to promote the rights of children (2009) 108.
56
(2017) 5 African Disability Rights Yearbook
understand what the right to education means for children with disabilities
and what their responsibilities are in this regard.
A comprehensive and well-rounded approach to the application of
both the African Children’s Charter and the CRPD should be carried out
with the aim to ensure that children with disabilities in the South African
context and African context in general have unhindered access to
education. This is important for disabled children in South Africa, as it is
reported that close on 500 000 children with disabilities do not attend
school and that hundreds of thousands who are in school have fallen
behind.68 These alarming figures are linked to a number of shortcomings
in the education system, such as that children with disabilities face
discriminatory attitudes and admission practices69 as they try to access
mainstream or special public schools,70 and that children with disabilities
are exposed and vulnerable to violence and abuse.71
Another shortcoming in the South African education system is that
children with disabilities who attend public schools, particularly special
schools, often do not receive quality education.72 A number of issues that
have been identified that affect the quality of education children with
disabilities are exposed to include the standard of curriculum delivery in
special schools; a lack of requisite and specialised skills on the part of
teachers to adapt teaching practices; poor provision of learner and teacher
support material; unequal distribution of educators to schools catering for
children with disabilities; and a lack of accessible transport.73 All these
challenges, and many others, affect the ability of children with disabilities
to acquire –
essential learning tools (such as literacy, oral expression, numeracy and
problem solving) and the basic learning content (such as knowledge, skills,
values, and attitudes) required by human beings to be able to survive, to
develop their full capacities, to live and work in dignity, to participate fully in
development, to improve the quality of their lives, to make informed
decisions, and to continue learning. The scope of basic learning needs varies
68
69
70
71
72
73
Human Rights Watch Complicit in exclusion: South Africa’s failure to guarantee an inclusive
education for children with disabilities (2015) 2.
School governing bodies and principals often make arbitrary decisions about whether
they will accommodate children with disabilities. Children with, among others,
intellectual disabilities, multiple disabilities and autism are often on the receiving end of
these decisions. Human Rights Watch (n 68 above) 2.
Human Rights Watch (n 68 above) 2-3.
Human Rights Watch 2; J Bornman ‘Accessing justice via key role players: A view from
South Africa’ in DN Bryen & J Bornman (eds) Stop violence against people with disabilities
(2014) 46-48.
Human Rights Watch (n 68 above) 2; Department of Basic Education ‘Report on the
implementation of education: White Paper 6 on inclusive education – An overview for
the period 2013-2015’ (2015) 34-53.
Department of Basic Education (n 71 above) 34-53.
Socio-economic rights of children with disabilities in South Africa
57
with individual countries and cultures, and inevitably, changes with the
passage of time.74
The African Children’s Charter and the CRPD should be used to keep the
South African government accountable in its obligation to address the
above challenges and ensure better access to education for children with
disabilities.
5.2.2
Health and health-related rights
It has been acknowledged that access to health care services is a challenge
for children with disabilities in South Africa.75 This needs to be addressed
in a manner compliant with international law as articulated, inter alia, in
the African Children’s Charter and the CRPD. The challenges faced
include the following:
a lack of access to the physical environment, lack of access to information in
accessible formats; discriminatory and negative attitudes toward persons with
disabilities displayed by health and support personnel; a lack of appropriately
trained and skilled health personnel concerned with disability … inaccessible
and unaffordable transport, particularly in rural and impoverished
communities.76
In order to address the above barriers to access health care services, the
provisions of the African Children’s Charter and the CRPD must be
implemented as a matter of urgency. The Children’s Charter contains
provisions relating to health and health services in article 14, which in
article 14(1) begins by providing that every child should enjoy the best
attainable state of physical, mental and spiritual health. The CRPD, in
article 25, provides that state parties have the responsibility to recognise
the right of persons with disabilities to enjoy the highest attainable
standard of health without discrimination. States are further required to
ensure that all appropriate measures are taken to ensure that persons with
disabilities have access to health services, including health-related
rehabilitation that is gender sensitive. The African Children’s Charter
provides for the ‘best attainable’ state of health, while the CRPD mentions
the ‘highest attainable’ standard of health. This differentiation in
expression does not seem to result in any major difference.77 However, the
CRPD does re-affirm that access to health must not be hindered by
discrimination, something the Children’s Charter fails to do.
74
75
76
77
UNESCO ‘World declaration on education for all and framework for action to meet
basic learning needs’ (1990) art II.
Department of Women, Children and Persons with Disabilities ‘Baseline country
report to the United Nations on the implementation of the Convention on the Rights of
Persons with Disabilities’ (2013) 50.
As above.
Gose (n 34 above) 82. Gose compares the African Children’s Charter and the CRC (art
24(1)) which has the same wording as the CRPD.
58
(2017) 5 African Disability Rights Yearbook
The African Children’s Charter differentiates between physical,
mental and spiritual health, while the CRPD does not contain such
differentiation. In making this differentiation, the Children’s Charter
ensures that there is no ambiguity regarding the meaning of health and,
instead, broadens the concept of health.78 The CRPD states that health
services must be gender-sensitive highlighting women’s issues and, in this
case, issues of the girl child, which the Children’s Charter does not do.79
The CRPD also refers to the provision of rehabilitation services to persons
with disabilities. This is particularly important for children with disabilities
who are in need of rehabilitation services for their continued development
and growth.
Article 14(2) of the African Children’s Charter provides that state
parties must take certain steps to pursue the full implementation of the
right to health. These measures, among others, include a reduction in the
infant and child mortality rate; the provision of necessary medical
assistance and health care to all children, with an emphasis on developing
primary health care services; the provision of adequate nutrition and safe
drinking water; the use of appropriate technology, within the framework
of primary healthcare, to combat disease and malnutrition; and measures
to ensure that parents, children, community leaders and community
workers are informed of and supported in the use of basic knowledge of
child health and nutrition. All these special measures take cognisance of
the context in which African children, and in this instance children with
disabilities, find themselves, and aim to meet the needs of children in these
contexts.
The CRPD complements the protection granted to children with
disabilities by the African Children’s Charter by requiring state parties to
the CRPD to implement certain measures aimed at targeting the specific
needs of children with disabilities. These are set out in article 25 and
include the following: providing the same range, quality and standard of
free or affordable health care and programmes as provided to other
persons; and providing health services specifically needed by persons with
disabilities, which include early identification and intervention and
services aimed at minimising or preventing further disabilities. This is of
particular importance to children with disabilities who would benefit from
early identification and intervention.80 Article 25 also requires state parties
to provide health care services as close as possible to the communities
where the children with disabilities find themselves, and to prevent the
78
79
80
As above.
Apart from its reference in art 14(2)(e) to appropriate health care for expectant and
nursing mothers and its reference in art 11(3)(e) to the obligation of state parties to take
special measures in respect of female children in the promotion of the right to
education.
Save the Children (n 67 above) 122.
Socio-economic rights of children with disabilities in South Africa
59
discriminatory denial of health care or health services, food and fluids on
the basis of disability.
It is interesting to note that neither the African Children’s Charter nor
the CRPD contains a limitation clause stating that the right to health is to
be provided to the maximum extent possible or within the available
resources.81 This, therefore, could result in a ‘higher level of protection,
and result in constant pressure on the state … to further the full
achievement of the right’.82
5.2.3
Right to social security and social assistance
Children with disabilities often find themselves in contexts of extreme
poverty which make them ‘vulnerable to infection, and less likely to have
resistance to illness or access to healthcare. They are more likely to lack
clean water and sanitation, and are more exposed to accidents.’83 This is
also the case in the South African context.84 One way of addressing
poverty and its effects is through the provision of social security grants to
assist in the provision of basic economic and social needs.85
Unfortunately, the African Children’s Charter does not contain a
provision on the right to social security or even the right to an adequate
standard of living.86 There is no provision directing the state to provide
such needed assistance to children with disabilities.87 This omission has
been described as ‘extremely disturbing’, particularly in the African
context.88
Article 28 of the CRPD provides some cure as it contains a provision
on an adequate standard of living and social protection. Here, the CRPD
recognises the fact that children with disabilities require a larger income to
assist them to develop and grow adequately.89 Therefore, article 28 places
specific obligations on state parties.90
Article 28(1) of the CRPD places an obligation on state parties to
recognise that children with disabilities have a right to an adequate
81
82
83
84
85
86
87
88
89
90
Gose (n 34 above).
As above.
Save the Children (n 67 above) 124. See also World Bank Convention on the Rights of
Persons with Disabilities: Its implementation and relevance for the World Bank (2007) 15.
Save the Children (n 67 above) 124.
S Rosa & M Dutschke ‘Child rights at the core: The use of international law in South
African cases on children’s socio-economic rights’ (2006) 22 South African Journal on
Human Rights 231.
Gose (n 34 above) 120; Rosa & Dutschke (n 85 above) 231; A Skelton ‘Girls’ socioeconomic rights in South Africa’ (2010) 26 South African Journal on Human Rights 145.
Skelton (n 86 above) 145.
Gose (n 34 above) 120.
Save the Children (n 67 above) 126.
As above.
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(2017) 5 African Disability Rights Yearbook
standard of living which includes access to adequate food, clothing and
housing as well as the continuous improvement of their living conditions.
States must ensure that this right is promoted without any discrimination
on the basis of disability. Article 2 of the CRPD defines ‘discrimination on
the basis of disability’ in the following manner:
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 …
Article 28(2) places the obligation on state parties to ensure that the social
protection of children with disabilities is recognised and enjoyed without
discrimination on the basis of disability. To accomplish this, states must
take certain measures which, among other things, include the following:
ensuring equal access to clean water and appropriate and affordable
services, devices and other assistance to meet disability-related needs; and
ensuring access to social protection programmes and poverty reduction
programmes. States must also ensure that children with disabilities living
in poverty enjoy financial assistance to cover disability-related expenses.
6
Oversight of the implementation of the African
Children’s Charter and the CRPD
The implementation of both the African Children’s Charter and the CRPD
is overseen by monitoring bodies established by the instruments. The
African Committee of Experts on the Rights and Welfare of the Child
(African Children’s Committee) was established by the African Children’s
Charter to promote and protect the rights and welfare of the child.91 State
parties to the Children’s Charter are required to report to the Children’s
Committee on the measures they have adopted to give effect to the
Children’s Charter and the progress made in the enjoyment of the rights in
the Charter.92 The Committee on the Rights of Persons with Disabilities
(CRPD Committee) was established by the CRPD.93 State parties that
have ratified the CRPD are required to submit to the Committee reports on
measures taken to give effect to their obligations under the CRPD.94
91
92
93
94
Art 32.
Art 43.
Art 34.
Art 35.
Socio-economic rights of children with disabilities in South Africa
6.1
61
African Committee of Experts on the Rights and Welfare
of the Child
In 2013 the South African government submitted its initial report to the
African Children’s Committee highlighting measures taken to further its
obligations under the African Children’s Charter.95 The report was
considered by the Children’s Committee, which produced Concluding
Observations. The Concluding Observations set out a number of
observations on the manner in which the African Children’s Charter is
being observed in order to protect children’s rights. The following was said
with regard to the rights of children with disabilities:
• The African Children’s Committee noted a number of challenges in efforts
made to realise the rights of children with disabilities, including inadequate
disaggregated data; barriers to accessing of facilities and social services;
poor quality of services to children with disabilities such as rehabilitative
services; inadequate integration of the social model in various policies and
practices; and limited monitoring frameworks. It recommended that efforts
to realise the rights of children with disabilities in line with the African
Children’s Charter be strengthened.96
• The African Children’s Committee recommended that South Africa take
all necessary measures to ensure the realisation of inclusive education.
Such measures must take into account the individual educational needs of
children; must cater for children’s specific needs by re-evaluating curricula,
incorporating special needs education in training of teachers and other
personnel involved in education; and providing and improving basic
infrastructures suitable to children with disabilities.97
• The African Children’s Committee urged South Africa to improve the
effective implementation of laws, policies, and practices through capacity
building and training, that promote substantive equality of children in
general, including children with disabilities.98
• The African Children’s Committee recommended that South Africa
provide for care and dependency grants for children with disabilities.99
The Concluding Observations challenge and place a responsibility on the
South African government to improve services and assistance rendered to
children with disabilities and to remove barriers that hinder children with
disabilities from fully developing their potential. South Africa recently
submitted its second country report to the African Children’s Committee
95
96
97
98
99
Republic of South Africa (2013) ‘South Africa’s Initial Country Report on the African
Charter on the Rights and Welfare of the Child – Reporting Period: January 2000 –
April 2013’.
African Committee of Experts on the Rights and Welfare of the Child (2014)
‘Concluding Recommendations by the African Committee of Experts on the Rights
and Welfare of the Child on the Republic of South Africa Initial Report on the Status of
Implementation of the African Charter on the Rights and Welfare of the Child’ para 50.
Para 53 African Children’s Committee.
Para 21 African Children’s Committee.
Para 41 African Children’s Committee.
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(2017) 5 African Disability Rights Yearbook
(for the period May 2013 to May 2016) providing updated information and
data on the implementation of policies and legislation on the protection
and promotion of children’s rights in line with the African Children’s
Charter. It will be interesting to see how the Committee interacts with this
report, particularly in light of its 2014 Concluding Observations.
6.2
Committee on the Rights of Persons with Disabilities
South Africa recently submitted its initial country report to the CRPD
Committee.100 The report acknowledges that
[c]hildren with disabilities remain extremely vulnerable to exclusion, abuse
and inequality, particularly in impoverished communities. This is because of
failures in the service delivery system, persistent harmful traditional beliefs
associated with disability, lack of access to relevant information by parents
and families, lack of effective early identification and intervention across
sectors for young children, lack of equal access to compulsory education,
failure of the judicial system to protect children with disabilities, as well as
failure to ensure justice where abuse has occurred, and inadequate training
for caregivers working with children with moderate to severe intellectual and/
or severe physical disabilities.101
The CRPD Committee is yet to issue Concluding Observations on South
Africa’s report. It is hoped that the Committee will engage rigorously with
the report and produce Concluding Observations that can be used for the
improved protection and implementation of the rights of children with
disabilities by the state and for advocacy by non-state actors.
7
Conclusion
The African Children’s Charter and the CRPD differ but have similar ways
of providing protection to children with disabilities. They both have a
common goal, which is to provide the most comprehensive and effective
protection to children with disabilities. This is borne out by the fact that
they require children with disabilities to be treated as rights bearers with
dignity and respect, in a non-discriminatory manner that takes into
account their views and their best interests.
As regards socio-economic rights, the African Children’s Charter
appears to provide some of these protections in a general sense,
understandably so, since it aims to protect a large group of children,
namely, children in the African context. The CRPD, which focuses mainly
on persons with disabilities, including children, delves deeper into the
100 Committee on the Rights of Persons with Disabilities consideration of reports
submitted by state parties under article 35 of the Convention: Initial reports of state
parties due in 2009: South Africa CRPD/C/ZAF/1 (24 November 2015).
101 Para 378 CRPD.
Socio-economic rights of children with disabilities in South Africa
63
needs of children with disabilities and how the human rights system can
promote, protect and assist in the provision of these needs.
Taken together in an interpretively comprehensive manner, the
African Children’s Charter and the CRPD complement each other in the
protection they provide to children with disabilities in South Africa and the
broader African context. These two instruments, when viewed as
mechanisms aimed at achieving a common goal, may be used to bring
substance and content to the socio-economic rights of children with
disabilities provided for by national law. South Africa is duty bound to
ensure that the rights, including socio-economic rights, of children with
disabilities are protected and fulfilled as provided for by both the African
Children’s Charter and the CRPD.