Why Ghana cannot boast of a robust disability law
Following a detailed consultation initiated on December 19, 2001, the UN adopted the Convention on the Rights of Persons with Disabilities (UNCRPD) on December 13, 2006.
The Convention came into force on May 3, 2008 on receiving its 20th ratification.
Ghana’s PWD Act
Before Ghana’s ratification of the UNCPRD, the country at then had already enacted the PWD Act in 2006 in fulfilment of the protection of certain fundamental human rights guaranteed to persons with disability under the 1992 Constitution.
Ghana in March 2007 signed the United Nations Convention on the Rights of Persons with Disabilities as well as in August 2012 ratified it and became the 119th country in the world to ratify the Convention.
In view of that, the ratification of the UNCPRD by Ghana further demonstrates a significant step towards upholding and protecting the human rights of the some 5 more than five million persons with disabilities living in the country who account for the country one fifth of the population.
Nature and Scope of the National Council on Persons with Disability
The PWD Act establishes a National Council on Persons with Disabilities (NCRPD) with the core mandate of proposing and evolving policies and strategies that would enable persons with disability enter and participate in the mainstream of the national development process.
Its primary responsibility: was to monitor and evaluate disability policies and programmes, formulate strategies for broad-based inter-sectoral, interdisciplinary involvement and participation in the implementation of the national disability policy,
It was also to advise the Ministry on Disability issues and submit to the Minister proposals for appropriate legislation on disability, mobilise resources for the attainment of its object, Coordinate activities of organisations of persons with disability, and international organisations and non- governmental organisations that deal with disability, among others.
Article 1 of the UNCRPD clearly communicates the purpose of the Convention: to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
The article further clarifies and define specific group of persons to which the Convention applies, to include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
Background Context and Analysis of NCRPD
The global and international law context within which the UNCRPD was agreed to can be gleaned principally from (a) the principles proclaimed in the Charter of the United Nations, the Universal Declaration of Human Rights and in all other International Covenants on Human Rights and equal opportunities, all of which recognise the inherent dignity and worth and the equal and inalienable rights, without distinction of any kind, of all members of the human family as the foundation of freedom, justice and peace in the world.
(B) The global recognition of the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and especially, the need for persons with disabilities to be guaranteed their full enjoyment without discrimination.
Respect for National Sovereignty and the Domestic Ratification Context
The UNCPRD recognises the sovereignty of all nations without which there could be no international co-operation for improving the living conditions of persons with disabilities.
In recognition of this principle of sovereignty, the UNCPRD not only requires formal consent by ratification of a signatory state before it could be bound by the terms of the UNCPRD (Article 43) but also confers on each sovereign state the right to denounce the UNCPRD after ratifying it (Article 48).
What this means is that a state, by virtue of its sovereignty, cannot be coerced into signing, ratifying or otherwise acceding to the UNCPRD.
Introductory Commentary and Purpose of the Convention
Since its adoption by the UN in December 2006, the UNCRPD has undoubtedly been the subject of much commentary. The Convention is viewed as a potentially far-reaching legal instrument, which combines socio-political, economic and civil rights.
Two theoretical models of disability dominate global discourse on the protection of rights of persons with disabilities: the medical model of disability and the social model of disability.
Whereas the medical model perceives individual impairment as an inhibitor to equality, the social model emphasises the physical and social environment as cause for exclusion.
Consequently, the UNCRPD invokes the social model of disability to advocate attitudinal change in which persons with disabilities have rights on an equal basis with others in contradistinction from the traditional paternalistic medical model of disability.
Analysis of the Contextual Framework and Provisions of the Persons with Disability Act, 2006 (Act 715)
The question here is whether the PWD Act, in its current form, adequately protects all the rights and addresses all the concerns relating to the protection of the rights of persons with disability recognised in the UNCPRD.
If not, which aspects of the Act needs to be amended or otherwise reviewed for giving effect to the protected rights of the disabled enshrined in the UNCPRD? Put differently, to what extent can Ghana, as a state party to the UNCPRD, honestly claim that its PWD Act entirely conforms to the rights of persons with disability protected in the UNCPRD? And lastly, how responsive is the PWD Act for the welfare of persons with disabilities?
The Legislative Object and Purpose
The long title to the PWD Act sets out in broad terms its legislative object and purpose. The primary purpose of the Act is to provide a framework for protecting the rights of persons with disability, to establish a National Council on Persons with Disability and to provide for related matters.
“Person with Disability” means “an individual with a physical, mental or sensory impairment including a visual, hearing or speech functional disability which gives rise to physical, cultural or social barriers that substantially limits one more of the major life activities of that individual.”
This framework includes the establishment of the National Council on Persons with Disabilities, the overall objective of which is to ensure that the rights of persons with disabilities are adequately protected in accordance with law.
International Law Context
Considering the fact that Ghana is a vibrant actor in the comity of nations, the PWD Act could not have been enacted without considering international legal principles governing the protection of the rights of the disabled.
Thus although the PWD Act was enacted at a time the UNCRPD and its accompanying Protocol was not adopted and/or assented to or otherwise ratified by any member of the international community, the enactment of the Act, in addition to the mandatory constitutional requirements, was highly influenced by existing global discourse on the urgency for protecting disability rights at the time.
Having now ratified the UNCRPD and its accompanying Protocol, one critical issue that shall be considered in the body of this report is whether Ghana is under obligation to review its PWD Act in strict conformity with the provisions of the UNCRPD (to be discussed infra).
Evaluating the Conformity or Otherwise of the PWD Act to the UNCRPD
In terms of conformity to disability rights guaranteed under the UNCRPD, the PWD Act is analyses within the general ambit of Ghana’s international obligations imposed under the UNCRPD and for some are 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.
This analysis is done with the comprehensiveness and depth of the PWD Act, its clarity and internal coherence or consistency as well as the extent to which it takes account of the general welfare of persons with disability.
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” among others.
Conclusion and Recommendations
Based on the analysis it is apposite to emphasise 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 amending or reviewing the Act, it is recommended that the drafters of a new Act should take account of those provisions of the UNCRPD which have either not been provided for in the Act at all or where provided, are not laborious enough to give complete effect to similar provisions in the UNCRPD. For instance, the Act should be redrafted to take account of the following provisions of the UNCRPD:
The rights of “women with disabilities”, the rights of “children with disabilities”, the inherent “right to life”, right to protection and safety in “situations of risk and humanitarian emergencies”, right to “equal recognition before the law” and the “liberty and security of person”.
The others are “freedom from torture or cruel, inhuman or degrading treatment or punishment”, “protecting the integrity of the person”, right to “liberty of movement and nationality”, “freedom of expression and opinion, and access to information”, “respect for privacy” and “participation in political and public life” among others.
Taking into consideration the fact that some cultures in Ghana still perceive disability as inequality, especially with regards to traditional leadership and political activism, Article 12 on equal recognition before the law is more particularly desirous of inclusion in our law.
In conclusion, this statement is adding up to the call by the Disability Right Fund (DFR) Coalition who membership comprises of the Ghana Federation of Disability Organizations, Media Caucus on Disability and MindFreedom on government to review the PWD Act.
By Amadu Kamil Sanah
Source: GNA