Cape Town Office




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Cape Town Office
3rd Floor Greenmarket Place • 54 Shortmarket Street • Cape Town 8001 • South Africa

PO Box 5227 • Cape Town 8000 • South Africa

Tel: (021) 481 3000 • Fax: (021) 423 0935 • Website • www.lrc.org.za

PBO No. 930003292

NPO No. 023-004




line 8



Ref: MM/CM/END/DISABILITY


24 July 2015

Mr. Jorge Araya

Secretary

Committee on the Rights of Persons with Disabilities



GENEVA
BY EMAIL: jaraya@ohchr.org
RE: DRAFT GENERAL COMMENT ON ARTICLE 6: WOMEN WIT DISABILITIES


  1. We refer to your invitation for comment on the draft General Comment on article 6: Women with Disabilities. We hereby submit our inputs on the draft general comment and trust that they will be favourably received.




  1. We are grateful for, and welcome this opportunity to contribute to the Draft General Comment.


INTRODUCTION TO THE LEGAL RESOURCES CENTRE (“LRC”)


  1. The LRC is a national public interest, non-profit law clinic in South Africa that was founded in 1979. The LRC has since its inception shown a commitment to work towards a fully democratic society underpinned by respect for the rule of law and constitutional democracy. The LRC uses the law as an instrument of justice to facilitate the vulnerable and marginalised to assert and develop their rights; promote gender and racial equality and oppose all forms of unfair discrimination; as well as to contribute to the development of human rights jurisprudence and to the social and economic transformation of society.




  1. The LRC, through its Equality and Non-Discrimination project (“the project”), focuses on empowering marginalised and vulnerable groups by utilising creative and effective solutions to achieve its aims. These include using a range of strategies including impact litigation, law reform initiatives, participation in development processes, education and networking within and outside of South Africa. Within the arena of equality and non-discrimination, the LRC has viewed the rights of vulnerable and marginalised persons including disabled persons, sexual minorities, women, children, refugees and sex workers as being integral to the pursuit of social justice.




  1. It is in this context that we seek to ensure that the existing legal apparatus available and in development are appropriately cognisant of the rights and realities of vulnerable and marginalised groups. We believe that this will ensure that their experiences of discrimination and prejudice are reduced and eventually diminished. Furthermore, we believe that the national, regional and international laws are collaboratively an instrumental tool in securing substantive equality for vulnerable individuals. Through strategic litigation, the LRC has played a pivotal role instrumental in developing a strong jurisprudence for equality and non-discrimination in South Africa.




  1. We commend the Committee for the Draft General Comment on Article 6 of the Convention on the Rights of Persons with Disability (hereinafter Convention). We particularly would like to commend the Committee for emphasizing that human existence goes beyond the binary gender/sex of men and women and recognised transgender and intersexed persons who are often overlooked in many similar documents and contexts. Additionally, we commend the Committee for recognising and emphasising that disabled women are entitled to enjoy the right to reproductive and sexual health. In our own context in South Africa, there have been a number of reports where disabled women and girls are automatically deemed to be persons who cannot enjoy reproductive and sexual rights with some unfortunately being sterilised without their consent.




  1. In the following paragraphs we would like to highlight some of the areas or issues that we think the Committee needs to give further attention to.




    1. Definition of terms:




      1. There are terms that the Committee has utilised that in our opinion would be best served if a definition is provided. These terms are continuously utilised in disability related cases and issues; it would therefore go a long way to provide some guidance internationally on what these terms entail as they crucial in addressing and combatting discrimination. In our opinion, the following terms should be defined –

  1. social inclusion/exclusion and

  2. reasonable accommodation.




    1. Violence:




      1. In our opinion the Committee correctly noted that violence against women and girls with disability is one of the main concerns in the protection of their rights. We further commend the extensive list of manifestations of violence which disabled women and girls face that the Committee identified.




      1. However, we are concerned that the general comment does not emphasise that the violence targeted at women and girls with disability impairs or nullifies the enjoyment by women of human rights and fundamental freedoms as underscored in General Comment 19 of the CEDAW Committee.1 Given the far reaching nature of violence on women and girls with disabilities, the obligation to combat and protect women and girls from violence must be emphatically noted in this General Comment.




      1. Additionally, the obligation to provide women and girls with legal and other remedies as well as psychological support must also be noted as part of addressing the concern. Equally important is the need to note the crucial nature of ensuring that women and girls have access to justice within the context of violence.




      1. We would urge the committee to consider incorporating some of the recommendations and obligations in General Comment 19 of CEDAW to ensure that there is consistent message on how to address violence targeted at women and girls and that this includes disabled women and girls.




    1. Levels of vulnerability within women and girls with disability:




      1. We wish to note that the draft comment of the Committee should also highlight that even within women and girls with disability, the levels of vulnerabilities differ. Women and girls with disability in rural areas may need additional protection simply because of their location which often inhibits their ability to enjoy human rights and seek recourse should their rights be violated. Furthermore, migrant/refugee women and girls with disability may also suffer similar fate because of their immigration status which is often regarded as one that excludes any access to rights and freedoms like health care services, access to justice, education and so forth. The limitation of rights of vulnerable persons within women and girls with disability differ and as such the recommendations on Article 6 must also ensure that they include targeted responses relating to the marginalised within this marginalised group.




    1. Advancing vs realization of rights of women with disability:




      1. We commend the Committee for clearly noting that the rights in Article 6 are immediately realisable and state parties “must immediately begin to take steps towards the realization of the rights in Article 6.” We are however concerned that this emphasis is diluted in some parts of the draft general comment where state parties’ obligations are stated as advancing women and girls with disability.




      1. With the obligations under Article 6 being immediately realizable, state parties must take measures to facilitate, provide and promote a women and girls’ enjoyment of this right. We are concerned that this is not clearly evident in the general comment when the committee speaks of the obligation to fulfill. Instead the emphasis is only on development, advancement and empowerment of women and girls as well as the provision of information about services and rights. In our opinion, while these are crucial, the Committee must promote and underscore active steps that will ensure the realization of rights of disabled women and girls.




      1. We believe that this is in line with the provisions of Article 6(1) which requires State parties “to take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms.” (own emphasis) This is the same for Article 6(2) which emphasis advancement, development and empowerment of women and girls “for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention.” (Own emphasis) in light of this, we submit that the realization and enjoyment of rights is a crucial part of the obligation of State Parties in Article 6.




  1. We trust that our submission will be favourably received and will be useful to the Committee. Please do not hesitate to contact the writers should you have any queries or questions.

ENDS

Prepared by



Mandivavarira Mudarikwa (mandy@lrc.org.za), Charlene May (Charlene@lrc.org.za) and Faathima Mohammed (Faathima@lrc.org.za)

on behalf of the



Legal Resources Centre, South Africa


1 Para 7 of General Comment 19.

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