Ghana’s disability law undergoes transition
Africa, March 29 2017
ACCRA: The Persons with Disability Act 715, (2006) is undergoing an overhaul by stakeholders to ensure that it is compatible with the United Nations Convention on the Right of Persons with Disabilities (UNCRPD). Ghana ratified the convention in August 2012.
To them, there is an urgent need for Act 715 to be modified to introduce provisions that clearly and comprehensively touch on the human rights of Persons with Disabilities in the country as prescribed by the UNCRPD.
The goal of the UNCPRD is to significantly redress the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries.
The advocates, comprising the Ghana Federation of Disability Organisations(GFD), the Media Caucus on Disability(MCD-Ghana) as well as Mind- Freedom Ghana maintain that the move for the amendment seeks to domesticate the UNCRPD, reform the current PWD Act and propose appropriate Regulations through consultative processes.
According a draft gap analysis report on the UNCRPD commissioned by the aforementioned organisations, the call for amendment has become necessary because it determines the extent to which the PWDs Act conforms to international standards governing the rights of the disabled as codified in the UNCRPD.
Key Provisions of the UNCRPD
The draft gap analysis report, clarifies that unlike Ghana’s Disability (Act 715, 2006), the UNCRPD took the social model of disability into consideration and provides for an overarching protectionist regime, including equal recognition before the law under Article 12, access to justice under Article 13, liberty and security of person under Article 14, equality and non-discrimination under Article 5, accessibility under Article 9 and right to life under Article 10.
Other provisions straddles the rights of women and children with disabilities (Articles 6 and 7), awareness-raising (Article 8), situations of risk and humanitarian emergencies (Article 11), freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 15), freedom from exploitation, violence and abuse (Article 16), protecting the integrity of the person (Article 17), liberty of movement and nationality (Article 18), living independently and being included in the community (Article 19), personal mobility (Article 20), freedom of expression and opinion’ and access to information (Article 21), respect to privacy (Article 22), respect for home and the family (Article 23), right to education (Article 24), right to health (Article 25), right to habilitation and rehabilitation (Article 26), right to work and employment (Article 27), right to adequate standard of living and social protection (Article 28), right to participation in political and public life (Article 29), and right to participation in cultural life, recreation, leisure and support (Article 30).
The rest are consequential provisions for giving effect to the rights outlined, including, the duty imposed on state parties to continuously gather/collect statistics and data on persons with disability to aid in public policy formulation (Article 31), the desirability of international corporation for giving effect to the objects of the Convention (Article 32), and the formation of national implementation and monitoring committees (Article 33).
There is also the establishment of the international committee on the rights of persons with disabilities (Article 34) to which state parties are required to report on their efforts towards the implementation of the Convention within two years after the entry into force of the Convention for the state concerned and thereafter, every four years or as and when the Committee so requires (Article 35).
The rest of the UNCRPD guarantees persons with disabilities the right, among others, to make decisions generally about their lives, including where and how they live as well as the right to be free from torture and other abuses, such as forced medication or deprivation of food.
Assessing the conformity or otherwise of the Persons with Disabilities Act to the UNCRPD
In terms of conformity to disability rights guaranteed under the UNCRPD, the PWD Act is analysed within the general ambit of Ghana’s international obligations imposed under the UNCRPD and for which European countries such as Ireland and Bulgaria as well as the United States are currently making some progress to consolidate in their domestic legal regimes either through national legislations or interpretation of the courts (national or regional) and other judicial tribunals.
In general, the PWD Act is strikingly comprehensive in its coverage of areas of welfare enhancement of disabled persons to the neglect of some of the most important provisions enshrined in the UNCRPD.
Thus although it is refreshing to observe that the PWD Act lays particular emphasis on access to public services and other fundamental rights of the disabled specifically enshrined under Article 29 of the 1992 Constitution and several provisions of the UNCRPD, including “equality and non-discrimination” under Article 5, “Accessibility” to public places and services under Article 9, “freedom from exploitation, violence and abuse”.
Under Article 16, freedom to live independently and included in the community under Article 19, “personal mobility” under Article 20, “Respect for home and the family” under Article 23, right to “education” under Article 24, right to “health” under Article 25, right to “work and employment” under Article 27, and right to “adequate standard of living and social protection”.
Under Article 28, among others, it is equally important to recognise that the Act is lacking in important departments of disability rights protection contained in the Convention such as the rights of
“women with disabilities” under Article 6, the rights of “children with disabilities” under Article 7, the inherent “right to life” under Article 10, right to protection and safety in “situations of risk and humanitarian emergencies”.
Under Article 11, right to “equal recognition before the law” under Article 12, “liberty and security of person” under Article 14, “freedom from torture or cruel, inhuman or degrading treatment or punishment” under Article 15, “protecting the integrity of the person” under Article 17, right to “liberty of movement and nationality” under Article 18, “freedom of expression and opinion, and access to information” under Article 21, “respect for privacy” under Article 22, and “participation in political and public life” under Article 29, among others.
Thus although the areas covered under the PWD Act are no doubt in conformity with most of the rights enshrined in the UNCRPD, the Act in its present state excludes some of the most important UNCRPD protected rights and therefore needs some revision to conform totally with the broader content of the UNCRPD.
An important observation that seeks to highlight the fact that the PWD Act is not entirely exhaustive of the provisions of the UNCRPD is that it has failed to promote the right of persons with disability to participate in political and public life.
There is practically no provision on this matter in the PWD Act. In contrast, the UNCRPD, under its Article 29 headed “Political and Public Life”, provides: “States parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others.
Based on the analysis, the proponents emphasised that, the PWD Act, in its current form, requires some amendment or review to fill in the gaps and put it in total conformity to the UNCRPD.
In addition, since the Act is lacking the necessary depth for protecting disability rights, it is essential the country pauses a while, do the necessary audit of the Act and introduce the right legislative framework to give effect to the UNCRPD.