Submission in response to the issue paper on the Domestication of the Convention on the Rights of Persons with Disabilities (CRPD)

The Helen Suzman Foundation ("HSF") has submitted its comments to the South African Law Reform Commission in response to the issue paper on the Domestication of the Convention on the Rights of Persons with Disabilities (CRPD).

The South African Law Reform Commission (SALRC) has approved the publication of the Issue Paper on the Domestication of the United Nations Convention on the Rights of Persons with Disabilities. (UNCRPD). The issue paper contains questions aimed at discovering the issues at hand and the extent of the need for law reform in the area of domesticating the UNCRPD.  

In this submission, the HSF seeks to respond to the following questions put forth in the issue paper:

  1. What should be the role of the South African Human Rights Commission (SAHRC), other chapter 9 institutions and provincial and local government?
  2. How should the CRPD be monitored? 

In its submission the HSF highlights that the role of the SAHRC is to be the independent mechanism necessary to discharge South Africa’s obligations in terms of art 33 of the CRPD to ‘promote, protect and monitor implementation’ of the CRPD. However, there must be a more cohesive and connected approach to its monitoring process.

The HSF has suggested that in order for the SAHRC to discharge its duties at the IMM of the CRPD, the work of various statutory bodies and offices which carry out functions that may implicate the rights of persons with disabilities, be shared with the SAHRC. This will ensure that the CRPD is monitored in an efficient, transparent and accountable manner.

This may be done in various ways through specifically: Mental Health Review Boards (MHRBs), the Health Ombud and the Disability Advisory Committee (DAC).

MHRBs and the Ombud must provide the SAHRC with any and all information that affects the rights of persons with disabilities. The SAHRC and MHRBs have overlapping monitoring functions. It is therefore submitted that each MHRB must produce a report at determined intervals to be provided to the SAHRC. Furthermore, the MHRBs play an oversight role in monitoring compliance with the Licensing Guidelines. It is vital that documents that are produced in accordance with these Guidelines- such as licences issued or reasons for refusal of a licence, reports on inspections of facilities, provincial audits of these facilities, and monthly operation reports produced by the facilities- automatically go before MHRBs. As such, it is submitted that the Licensing Guidelines be amended so that these are immediately provided to the relevant MHRB.

The health Ombud is empowered, either upon a complaint on his own initiative, to investigate the norms and standards of any health establishment. In order to monitor the CRPD, it is submitted that when the complainant is a person with disabilities, or acting on behalf of a person with disabilities, the Ombud should report such findings and recommendations to the SAHRC.

Lastly, the DAC as an important link between institutions, communities and those with disabilities, must conduct public consultations and serve as a source of accessible information in order to fully realise its mandate. The DAC must further hold an annual meeting during which each member representing their organisation could highlight their individual concerns and present them to the SAHRC for its consideration.

In order for the SAHRC to properly carry out its mandate as the independent monitoring mechanism, it is imperative that the bodies carrying out various functions on its behalf are open and transparent in their undertakings and assist the SAHRC in any and every way possible.

The HSF’s submissions in response to the issue paper can be found here.

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