Chapter Five: National legislation and the Convention - Procedural measures to promote implementation | Division for Inclusive Social Development (DISD)

PROCEDURAL MEASURES TO PROMOTE IMPLEMENTATION

The role that parliamentarians might play in the lead-up to ratification has been discussed earlier in this Handbook. Once a State has ratified or acceded to the Convention, significant obligations arise, and legislatures can play an important role in ensuring that they are met. As first steps to take after the Convention is signed and ratified, parliaments should:

Undertake a comprehensive review

Article 4 (1) (b) of the Convention obliges States parties “to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.” Accordingly, one of the most important steps that a State should take as soon as possible after it has become a party to the Convention, and preferably after it has signed the Convention, is to undertake a comprehensive review of existing law to determine to what extent it is consistent with the treaty. The State should also identify any new legislative and policy measures to be undertaken in order to give effect to the Convention. A detailed timetable for this legislative review and reform should also be developed.

A comprehensive review of this kind can be particularly useful for the State when it prepares its initial report under the Convention, due within two years of ratification. The initial report will set a baseline for the realization of the rights of persons with disabilities, indicate the areas where reform is a priority, and help to develop a programme to improve the situation in a deliberate, planned and monitored manner.

There are a number of ways in which such a review might be conducted. A special independent statutory body might be established to conduct the review and report to the Government, or an existing body, such as an equality commission, national human rights commission or disability commission, might be assigned the task. Parliament, itself, might establish a committee to oversee the process or assign that task to one of its existing bodies.

The framework of the Convention should be the standard against which the level of enjoyment of human rights by persons with disabilities is measured. Persons with disabilities should participate extensively in the process, both as members of the review body and as contributors. The review should not be a one-time event. The body should either be given continuing responsibility for oversight or should ensure that there is an independent review of the implementation of its recommendations after a reasonable period, for example, three to five years.

South Africa has made a lot of progress in the area of disability, self-representation and policy reform. This Convention, however, will cement and ensure that despite the change in political dimension, if and when it happens, the country will be able to continue to protect, and have a responsibility to, disabled people and their families, as well as ensure that they are treated as first-class citizens like all other non-disabled peers.

Hendrietta Bogopane-Zulu, MP (South Africa)

Ensure that all laws are consistent with the Convention

Ensuring that new laws and regulations are consistent with, and advance the goals of, the Convention is as important as reviewing existing laws. The Convention obliges States to take the rights of persons with disabilities into account in all policies and programmes (article 4 (1) (c)). Government officials should thus ensure that their proposals comply with the Convention when they are developing policies and legislation.

The legislature has a critical role to play in scrutinizing new legislation. Parliaments should ensure that there is a stage of the legislative process at which legislation can be examined for its compliance with the Convention. This might involve establishing a committee of its members to review legislative proposals or handing that responsibility to an existing committee or committees that scrutinize legislation for adherence to human rights principles. Once again, it is essential to include persons with disabilities and disability organizations in this process. Parliaments may need to make special efforts to ensure that persons with disabilities are aware of the processes and of draft legislation, and to facilitate the submission of their views to the legislature.

Some parliaments require the executive branch of government to provide a statement affirming that the legislation is compatible with relevant international standards or to provide an assessment of the impact of the legislation on a particular group when it presents draft legislation to parliament. A disability-impact statement, either free-standing or as part of a human rights-impact assessment, would help to focus the Government’s attention on the issue.

Engage persons with disabilities in the legislative process

Persons with disabilities should be actively engaged in drafting legislation and in other decision-making processes that affect them – just as they were actively engaged in drafting the Convention itself. They should also be encouraged to offer observations and guidance when laws are implemented. There are a variety of ways to ensure that all views are considered, including through public hearings (with sufficient advance notice and publicity), by inviting written submissions to the relevant parliamentary committees and by sharing all comments received with the wider public, through parliamentary websites and other media.

Parliament should ensure that its laws, proceedings and documentation are made available in accessible formats, such as large print, Braille and plain language, in order to ensure that persons with disabilities can fully participate in developing legislation generally, and specifically in relation to disability issues. The premises of parliament and other venues where it may hold hearings should also be accessible to persons with disabilities.

Involve provincial or state-level parliaments

Mirroring the language of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, article 4 (4) of the Convention states that the Convention’s provisions “extend to all parts of federal States without any limitations or exceptions.” In some federal States, the primary responsibility and power to implement certain provisions of the Convention might rest with the provinces or constituent units. A failure to exercise that power could render the State, as a whole, in breach of its international obligations. There is no defence that the central Government did not formally have power in that area. This provision does offer some opportunities, since provincial or state legislatures might be able to implement their own legislative and other initiatives, within the area of their competence, to give effect to the provisions of the Convention, adding to any measures that are undertaken by the central Government.

Footnotes

3. A more comprehensive discussion on citizen involvement in the parliamentary process can be found in Parliament and Democracy in the Twenty-first Century: A Guide to Good Practice (Geneva, Inter-Parliamentary Union, 2006), pp. 79-87.

CHECKLIST FOR PARLIAMENTARIANS

How I can help translate the Convention into national law

Ensure that the supreme law of the land (constitution or basic law) protects and recognizes the civil, cultural, economic, political and social rights of persons with disabilities.
Ensure that existing legislation is reviewed for its compliance with the Convention.
Ensure that all areas included in the Convention are incorporated in national laws, both existing and new laws.
Ensure that persons with disabilities and their organizations are consulted during the law-making process.
Ensure that the relevant institutions and mechanisms are established at the parliament level to ensure that any new legislation adopted is consistent with the Convention.
Ensure adequate funding is allocated in the national budget for the various sectors relevant to the realization of the rights of persons with disabilities.
Make use of parliamentary procedures such as
- Oral and written questions;
- Submission of bills; and
- Parliamentary debate.
Raise awareness about the rights of persons with disabilities through
- Debate within your political party;
- Alliances with other parliamentarians, to strengthen your lobbying capacity;
- Partnerships with organizations of persons with disabilities; and
- Public-information campaigns.