SA needs an independent monitoring framework to implement rights of persons with disabilities

It is of great concern that despite the rights contained in international conventions and the Bill of Rights, there is still a large human rights implementation gap in South Africa.

This is partly due to a lack of adequate and efficient systems to monitor the implementation of these rights as well as what informs decision-making on the allocation of resources towards the realisation of these rights.

This is particularly the case when it comes to the rights of persons with disabilities. There is a lack of accurate information on how the rights of persons with disabilities will be realised, especially for them to access to education, employment and basic services.

The Convention on the Rights of Persons with Disabilities (CRPD), which South Africa ratified in 2007, sets out international human rights standards for persons with disabilities which, like other core human rights conventions, require both national and international monitoring as well as implementation measures.

The convention emphasizes the need to hold the state and private parties accountable for the implementation of these rights. Article 33(2), determines that state parties to the convention should establish an independent monitoring framework (IMM) and fund it adequately for its effective functioning.

The functions of the framework include reporting to the UN Committee on the CRPD every four years on how South Africa has implemented all the rights contained in the convention and expressed in the Bill of Rights and relevant domestic legislation.

However, as the IMM should be an independent institution, this report acts as a critique of South Africa’s implementation of the convention. The committee utilises the critique submitted by the IMM and other institutions to analyse and respond to the reports submitted by government. The committee is therefore highly dependent on the provision of accurate information to enable it to effectively assess the validity of the state parties’ reports.

In addition to monitoring, the IMM seeks to provide guidance, increase awareness and promote the rights and freedoms of persons with disabilities in the country. This will also help address the stigma associated with disability and influence policy.

A monitoring framework is therefore a core component of mainstreaming disability issues in South Africa.

Following South Africa’s appearance before the UN CRPD committee in September 2018, the UN committee made specific recommendations on South Africa’s initial state report submitted in 2015.

The committee recommended that the state should expedite the designation of the independent monitoring framework, proposing the SA Human Rights Commission (SAHRC) as the most suitable institution to do this. This is because the SAHRC is an “A” status independent National Human Rights Institution (NHRI) with the powers to monitor, promote and protect human rights in the country.

Following this, last year the SAHRC received a grant from the EU Dialogue Facility for its project on the establishment of the IMM in South Africa.

As a precursor, the SAHRC undertook research on existing independent monitoring frameworks in Europe in order to find best practices that can be adopted in South Africa.

The monitoring frameworks in Ireland, Northern Ireland, Spain and Belgium were studied.

The findings included that the majority of independent monitoring frameworks are housed within the NHRI in their respective countries. This is because these institutions play an important role in the advancement of the human rights agenda, good governance and sustainable development.

All the independent monitoring frameworks demonstrated specific measures taken to include persons with disabilities fully in the monitoring process itself in line with article 33(3) of the CRPD.

It is particularly positive that there is an appreciation from government of the need for such a monitoring structure. As South Africa endeavours to mainstream disability issues, it is important to ensure that monitoring frameworks and mechanisms function effectively.

The success of such a framework will require commitment from government, institutions such as the SAHRC, civil society organisations and other significant stakeholders. The development of such institutions will undoubtedly contribute positively to the improvement of adherence to the human rights norms upon which our democracy is built.

It is thus vital that government strengthens the SAHRC financially to enable it to effectively play the role of an independent monitor as envisioned in article 33 of the Convention on the Rights of Persons with Disabilities.

* Bokankatla Malatji is a commissioner with the SAHRC

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