27 February 2018

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (Protocol) an instrument of the African Union, was adopted at the 30th Ordinary Session of the African Union Assembly, held in Addis Ababa on 30 January 2018. This historic protocol, which has been in development since 1999, focuses specifically on promoting and upholding the rights of the 84 million people with disabilities living in Africa.

In a press release by the Office for the High Commissioner for Human Rights, Catalina Devandas, the UN Special Rapporteur on the rights of people with disabilities affirmed the significance of the Protocol, and stated that it ‘should lead to considerable improvements in the lives of African people with disabilities’. Ms Devandas encouraged all 53 States Parties to the African Charter to ratify the protocol, which will enter into force 30 days after ratification by 15 or more of the States Parties.

Article 12 of the Protocol specifically addresses the right to education for people with disabilities, and contains the following provisions:

1. Every person with a disability has the right to education.

2. States Parties shall ensure to persons with disabilities the right  to education on an equal basis with others. Persons with disabilities shall on no account be presumed to be uneducable or untrainable.

3. The education of persons with disabilities shall be directed to:

a. The full development of human potential, sense of dignity and self-worth;

b. The development by persons with disabilities of their personality, talents, skills, professionalism and creativity, as well as their mental and physical abilities, to their fullest potential;

c. Educating persons with disabilities in a manner that promotes their participation and inclusion in society;

d. The preservation and strengthening of positive African values.

4. States Parties shall take appropriate and effective measures to ensure that inclusive quality education for persons with disabilities is realised fully, including by:

a. Ensuring that persons with disabilities can access free, quality and compulsory basic and secondary education;

b. Ensuring that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others, including by ensuring the literacy of persons with disabilities above compulsory school age;

c. Ensuring reasonable accommodation of the individual's requirements  is provided, and that persons with disabilities receive the support required to facilitate their effective education;

d. Ensuring effective individualised support measures are provided in environments that maximise academic and social development, consistent with the goal of full inclusion;

e. Ensuring appropriate schooling choices are available to persons with disabilities who may prefer to learn in particular environments;

f. Ensuring that persons with disabilities learn life and social development skills to facilitate their full and equal participation in education and as members of the community;

g. Ensuring that multi-disciplinary assessments are undertaken to determine appropriate reasonable accommodation and support measures for learners with disabilities, and regular assessments and certification for learners are undertaken regardless of their disabilities;

h. Training education professionals, including persons with disabilities, on how to educate and interact with children with specific learning needs;

i. Facilitating respect, promotion, preservation and development of sign language.

From a right to education perspective, the provisions of the Protocol largely align with Article 24 of the Convention on the Rights of Persons with Disabilities (CRPD). However, the CRPD, in Article 24 (2) (a), promotes an education system which is inclusive for all learners, and recognises the damaging effects on people with disabilities of exclusion from the mainstream education system by being forced into ‘special’ schools. Further, CRPD General Comment 4 makes clear that excluding or segregating people with disabilities from the general education system constitutes discrimination. Nonetheless, Article 12 (4) (e) of the Protocol appears to not conform with the overall goal of inclusive education, as set out by the CRPD committee in General Comment 4, insofar as it offers people with disabilities the choice to opt out of mainstream education by ‘[e]nsuring appropriate schooling choices are available to people with disabilities who may prefer to learn in particular environments’ (Protocol 12 (4)(e)).

Conversely, the Protocol expands the normative scope of the right to education of people with disabilities as set out in international law in relation to free quality and compulsory basic and secondary education, not simply compulsory primary education (ICESCR, Article 13 (2) (a); CRPD 24 (2) (b)), and also by [e]nsuring that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning’ (Protocol 12 (4) (b)).

You can find more information on this issue in the Persons with Disabilities section of our website.