Legal capacity of and access to justice for refugees with disabilities in Africa
Michael Addaney
MSc MPhil
Doctoral candidate at the Research Institute of Environmental Law, Wuhan University; and visiting researcher at the Research Unit on Law, Justice and Sustainability of the Faculty of Law, North-West University

Ngozi Chuma Umeh
LLM PhD
Lecturer at the Department of Jurisprudence and International Law, Imo State University

Chantelle Gloria Moyo
LLB LLM
Legal practitioner and lecturer at the Herbert Chitepo Law School, Great Zimbabwe University

SUMMARY
Although the UN Convention on the Rights of Persons with Disabilities (CRPD) has rendered persons with disabilities more visible, their struggles are still often overlooked. One of the contexts within which this occurs is during forced migration. This is because specific barriers that Persons with Disabilities face in accessing protection and assistance when seeking asylum are yet to be recognised under international and domestic law. Therefore, through a critical and comparative approach, this paper examines the normative content of article 12 (equal recognition before the law) and article 13 (access to justice) of the CPRD to ascertain how these provisions have influenced domestic refugee laws, policies and practices in Ghana and Uganda. Furthermore, this paper considers how refugees with disabilities in these countries are recognised before the law, as well as their ability to access justice within the refugee status determination and resettlement processes. Finally, this paper contends for reforms in the substantive and procedural refugee laws and policies in these countries in a bid to guarantee access to justice for refugees with disabilities.

1 Introduction
For many decades, disability and forced migration have been a human rights issue. In 2016, the United Nations High Commissioner for Refugees (UNHCR) reported that over 65.6 million persons were forcibly displaced  worldwide  due  to  persecution,  conflict,  violence,  or human
rights violations.1  Sub-Saharan Africa hosts a large and growing number

UNHCR Global Trends: Forced Displacement in 2016 (2017) 2.

How to cite: Addaney; Umeh & Moyo ‘Legal capacity of and access to justice for refugees with disabilities in Africa’ 2019 De Jure Law Journal 335-357
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of refugees,2 mostly from Burundi, the Central African Republic, the Democratic Republic of the Congo, Eritrea, Somalia, South Sudan, and Sudan.3   For  instance,  there  were  737  400  newly  recognised refugees
from South Sudan, followed by Burundi (121 700 newly recognised), Eritrea (69 600), and Nigeria (64 700).4 It has been observed that about 15 percent of the world’s population has disabilities.5 Furthermore, it is
contended that the occurrence of disability is higher among forced displaces fleeing violent conflicts, who are exposed to high risk situations resulting  in  serious  injuries  such  as  mental,  physical  and/or  sensory
impairments.6 Currently, there is a paucity of statistical data on disability
among populations of displaced persons. The UNHCR estimates the number of forcibly displaced persons with disabilities at between 2.3 and
3.3 million, which represents between 7 and 10 per cent of forcibly displaced people; however, they often remain invisible within uprooted communities.7   The  invisibility  of  refugees  with  disabilities  is  not
surprising because many countries have effectively excluded disability from their refugee and migration systems.8
Despite the adoption of the CRPD in 2006,9 several studies have revealed that many countries have advanced disability exclusionary regimes in their refugee and migration systems.10 This reveals a range of

The 1951 Convention defines a refugee as a person who “owing to a well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable to or, owing to such fear,  is unwilling to avail himself of the protection of that country”. See art 1(A)(2) of the UN Convention Relating to the Status of Refugees, 28 July 1951. The 1969 OAU Convention offers an extended definition to include “people fleeing external aggression, occupation, foreign domination or events seriously disturbing public order”. See art 1(2) of the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 OAU Convention) (adopted 10 September 1969), 1001 UNTS 45.
UNHCR 14.
UNHCR 14.
WHO and World Bank World Report on Disability 2011 http://www.who.int/ disabilities/world_report/2011/report/en/ (last accessed 2019-07-08).
Women’s Refugee Commission, Disabilities among Refugees and Conflict- affected Populations (New York: Women’s Refugee Commission 2008) http:/
/womensrefugeecommission.org/programs/disabilities (last accessed 2019- 07-08).
UNHCR “People with Disabilities”, http://www.unhcr.org/pages/4a0c31 0c6.html (last accessed 2019-07-08).
Soldatica, Somersb, Buckleyc & Fleayd “‘Nowhere to be found’: disabled refugees and asylum seekers within the Australian resettlement landscape” 2015 Disability and the Global South 501-522.
Adopted 13 December 2006 by General Assembly Res A/RES/61/106 came into force 2008.
El-Lahib & Wehbi, Immigration and Disability: Ableism in the Policies of the Canadian State (2012) 55 International Social Work, 95-108; Mirza, Unmet Needs and Diminished Opportunities: Disability, Displacement and Humanitarian Healthcare (2011) 212; Soldatic & Fiske “Bodies Locked Up: Intersections of Disability and  Race  in  Australia’s  Immigration  System” 2009 Disability & Society 289-301; Kanter The development of disability rights under international law: From charity to human rights (2017).

tactics including refugee and asylum selection status determination processes that work to actively “screen out” persons with disabilities (PWDs) for refugee status or resettlement. Meanwhile, there is substantial empirical evidence to suggest that it is these very conditions
that force people across borders thereby creating high rates of disability and impairment.11 The challenges that PWDs encounter, in this regard, are still often overlooked and in most institutionalised settings their rights
to access justice and treatment before the law are usually violated. Though the CRPD in articles 12 and 13 recognises and safeguards equal recognition before the law and access to justice of PWDs respectively, the specific barriers that PWDs face in accessing protection and assistance when seeking asylum are yet to be recognised. For instance, apart from
provisions for access to social security in article 24(1)(b),12  the 1951 UN
Refugee Convention relating to the Status of Refugees (1951 Refugee Convention),13 provides little guidance on protecting the human rights of refugees with disabilities.
It is against this background that this paper adopts a critical and comparative approach to examine how refugees with disabilities are recognised and protected during the refugee status determination and resettlement processes, with particular emphasis on the right to legal
capacity,14 and the right to access to justice.15 The paper scrutinises the
normative contents of articles 12 and 13 of the CPRD and how these provisions have influenced domestic refugee laws and policies in Ghana and Uganda. Particularly, the paper analyses the cross fertilisation between domestic disability laws and refugee laws in the selected countries. Following this introduction, section two discusses legal capacity of and access to justice for refugees with disabilities under international law. Section three examines access to justice and legal capacity of refugees with disabilities in Ghana and Uganda to appraise their compliance with the CRPD and other substantive international

Meekosha & Soldatic “Human Rights and the Global South: The Case of disability” 2011 Third World Quarterly 1383.
Art 24(1) of the 1951 Convention obliges “Contracting States to accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters: (b) states that Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations: (i) There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition; (ii) National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension.”
UN Convention Relating to the Status of Refugees 189 UNTS 150, entered into force 22 April 1954.
UN Convention on the Rights of Persons with Disabilities (CRPD) 2515 UNTS 3, entered into force 3 May 2008, Art 12.
CRPD, Art 13.

human rights instruments. Section four summarises and concludes the discussion.

2 Steps towards protection: legal capacity of and access to justice for refugees with disabilities under international law
The protection and material needs of refugees with disabilities has received little to no attention over the past decades. It has been observed that refugees with disabilities suffer triple disadvantage.16
Firstly, they are outside of their country of origin; secondly, they are usually stripped of the protections of a State of citizenship or habitual residence and live in fear of persecution if returned to the country from which they have fled; and thirdly, being hampered by physical, mental,
intellectual or sensory impairments hinders their full and effective participation in society.17
Refugees with disabilities can be categorised among vulnerable persons in the world because their experience of forced migration is compounded by the manifold and varied challenges, which flow from
impairment.18 Even in countries where they do have legal recognition
and protection, refugees with disabilities are normally harassed by police through physical abuse and intimidation. Addaney observes that in most African countries beleaguered by economic crises and social problems, refugees,  especially  those  with  disabilities,  are  used  as  suitable
scapegoats.19   Nevertheless,  refugees  with  disabilities  are  entitled  to
protection under international human rights and refugee law.20 These laws provide the framework within which the protection of and assistance to refugees with disabilities should be undertaken.
For several decades persons with disabilities were overlooked by the international human rights community.21 For instance, the Universal Declaration of Human Rights (UDHR) adopted by the United Nations

Crock, Ernst & Mccallum “Where Disability and Displacement Intersect – Asylum Seekers and Refugees with Disabilities” 2013 International Journal of Refugee Law 735.
CRPD, Art 1; Crock, Ernst & Mccallum 736.
Crock, Ernst & Mccallum 737.
Addaney “Toward Promoting Protection: Refugee Protection and Local Integration in Sub-Saharan Africa” 2017 Studia Migracyjne – Przegląd Polonijny 71.
Goodwin-Gill “The politics of refugee protection” 2008 (27) Refugee Survey Quarterly 8.
As alluded to in Kayess & French “Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities” 2008 8 Human Rights Law Review 1-34; Ngwena “Disabled people and the search for equality in the workplace: An appraisal of equality models from a comparative perspective” unpublished PhD thesis University of Free State 2010.

General Assembly (UNGA) in 1948 is recognised as the first international human rights law instrument.22 It provides that “all human beings are born free and equal in dignity and rights”,23 and establishes “a common standard of achievement for all peoples and all nations”.24 While the
UDHR is a declaration and not a formal agreement, it is argued that it has assumed the position of jus cogens and therefore it is now binding due to its recognition as part of customary international law.25 The UDHR, the International Covenant on Civil and Political Rights (ICCPR),26 and the International   Covenant   on   Economic   Social   and   Cultural  Rights
(ICESCR),27   together   constitute   the  International  Bill   of  Rights.28
However, none of these instruments include disability within the list of protected groups.29 It was not until 2006 that the UN adopted the CRPD as  its  first  international human  rights instrument addressing specifically
the rights of PWDs.30
Moreover, United Nations (UN) has adopted specialised human rights conventions on behalf of other groups, including a specific convention on the rights of refugees.31  Refugees with disabilities are thus at the meeting
point of two main international human rights instruments, the 1951 Refugee Convention which has been in existence since the past six decades, and the CRPD. However, the CRPD signifies a momentous

Certain customs and principles have become so widely accepted that they have become binding as customary international law. To establish an international custom, the party must show a widespread practice by states  of confirming to the alleged rule, together with evidence that states have followed this practice because they believe that they are under  an  obligation to do so. As such, customary human rights law may be found binding on all states without regard for whether a particular state has consented. It has been argued that the UDHR has assumed the position of a binding customary law. See, Hannum “The status of the Universal Declaration of Human Rights in national and international law” 1995 Georgia Journal of International and Comparative Law 287; Hunnan (ed) Guide to International Human Rights Practice (1999) 10; Addaney “A step forward in the protection of urban refugees: The legal protection of the rights of urban refugees in Uganda” 2017 African Human Rights Law Journal 218.
Universal Declaration of Human Rights, G.A. Res. 217A (111), U.N.Doc 810 at Preamble (1948).
Goodwin-Gill 8.
See, Hunnan Guide to International Human Rights Practice (1999) 10.
Adopted 16 December 1966 by United Nations General Assembly Resolution 2200A (XXI) and entered into force on the 3 of January 1976 in accordance with art 27.
ICCPR, Art 49.
Kanter “The Globalization of Disability Rights Law” 2003 (30) Syracuse Journal of International Law and Commerce 241.
See, Art 25 of the UDHR and art 12 of the IESCR refer to disability in connection to social security and health issues, not as a human right.
UN CRPD.
See, 1951 Refugees Convention; Convention on  the  Elimination  of  All  Forms of Discrimination against Women, entered into force  3  September 1981; Convention on the Rights of the Child,  entered  into  force  2 September 1990, https://treaties.un.org/doc/source/titles/english.pdf (last accessed 2019-04-08).

paradigm change in the understanding of PWDs as rights holders.32 Responding to the intellectual and influences of the international disability rights movement, the CRPD discards the “medical/ welfare”
model of disability which observes PWDs as “objects of charity, medical treatment and social protection”.33 Rather, the CRPD conceptualises PWDs as rights holders who can “claim those rights as active members
of  society”.34   Therefore,  the  CRPD  indicates  a  revolutionary   move
towards acceptance of the “social” model of disability which recognises that a person’s disability is formed more by society than by bodily impairment.35 The CRPD provides that “persons with disabilities consist
of 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”.36
In this manner, the CRPD perceives disability from a social model of disability.
The enunciation in the ICCPR and ICESCR is the recognition of the “inherent dignity and the equal and inalienable rights of all members of the human family”.37 These guarantees, in essence, extend to refugees
with disabilities since it has been observed that human rights responsibilities are owed regardless of whether an individual is a citizen of a state or not.38 The General Comment No 31 on the nature of the
general obligation imposed on states parties to the Covenant by the Human Rights Committee clarifies that “the enjoyment of Covenant rights is not limited to citizens of states parties but must also be available to all individuals, regardless of nationality or statelessness, such as
asylum  seekers,  refugees,  migrant  workers  and  other  persons”.39
General Comment No15 on the position of aliens under the Covenant confirms that “the rights set forth in the Covenant apply to everyone, irrespective of reciprocity and irrespective of his or her nationality or
statelessness”.40 These imply that the protection offered by the ICCPR
and ICESCR covers refugees. This view is supported by well-established principles of treaty interpretation;41  as the CRPD is premised on the

Umeh “Reading ‘disability’ into the non-discrimination  clause  of  the Nigerian Constitution” 2016 African Disability Rights Yearbook 53; Ngwena “Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa: A case study of contradictions in inclusive education” 2013 African Disability Rights Yearbook 139.
Crock, Ernst & Mccallum 735.
Kayess & French 1.
Crock, Ernst & Mccallum 735.
CRPD, Art 1.
The preambles of the ICCPR and the ICESCR.
Crock, Ernst & Mccallum 740.
Human Rights Committee, “General Comment No 31”, UN doc CCPR/C/21/ Rev.1/Add.13, 26 May 2004, para 10.
Kayess & French 1.
Crock, Ernst & Mccallum 745.

principle of universality.42 The CRPD “promotes, protects and ensures the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities”.43  The Preamble also recalls
the “inherent dignity, worth and the equal and inalienable rights of all members of the human family”, and further recognises that “everyone is
entitled to all the rights and freedoms set forth in the UDHR without distinction of any kind”.44
Article 11 affirms the provisions of the CRPD with the 1951 Refugee Convention by obliging States Parties to:
“take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to protect persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the
occurrence of natural disasters.”45
Without controversy, situations of risk include the three scenarios already argued that usually force people from their homes, producing refugee flows. Nevertheless, efforts to relate the protections of the CRPD
to refugees will undoubtedly continue to face political resistance.46 This
is principally because of the current prevailing climate where asylum seekers  are regarded  as a  burden  on  already  overstretched economies
and the adoption of tight border control mechanisms to stem the inflow of forced migrants.47
Furthermore, despite the relevance of the 1951 Refugee Convention, it applies only to PWDs who meet the definition of refugee provided in article  1A(2)  of  the  Convention  as  modified  by  the  1967  Optional
Protocol and the 1969 OAU (now AU) Refugee Convention.48 For persons
seeking asylum or resettlement, their ability to meet the definition remains critical. It is argued that at the most basic level, the cognitive
impairments of a person can affect his or her ability to demonstrate fear or to articulate a claim of any kind.49 Consequently, article 1A(2) of the 1951  Refugee   Convention  necessitates   that  a   refugee’s   fear   of
persecution should be “well-founded”. The term “well-founded fear” implies both subjective and objective elements such that asylum seekers must not only fear persecution but that the fear must be rational.50 In
practical  terms,  these  elements  pose  challenges  for  refugees  with

This principally relates to the idea of appropriating the fundamental requirements of dignity and equality to everyone irrespective of  class,  status or body characteristics.
CRPD Art 1.
CRPD preamble (a) and (b).
CRPD Art 11.
Crock, Ernst & Mccallum 755.
Crock, Ernst & Mccallum 755.
1969  OAU Convention.
1969  OAU Convention.
UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1992, rev edn) para 38–41.

disabilities including those whose refugee claims are not substantively related to their disability. Particularly, the need to demonstrate personal fear  can  be  a  challenge  for  refugees  with  mental  or  intellectual
disabilities, who do not have the psychological or cognitive ability to appreciate the situations that are logically dangerous.51 While some refugees with disabilities may be incapable of realising fear, others may
hold fears that are forced by their mental or intellectual disability.
Addressing situations that involve refugees with disabilities requires the application of the principle of reasonable accommodation,52 by the
appropriate bodies to make suitable allowances for persons with disabilities. Where a person with an intellectual or mental disability is
expressing a pathological fear, a sensitive approach needs to be taken in the application of the Convention’s definition.53 The starting point for analysing article  12 and article 13 should be  that  State  parties  to the
CRPD are obliged under international human rights law to provide reasonable accommodation to persons with disabilities. Non provision of reasonable accommodation during the refugee status determination process and/or resettlement process of refugees with disabilities could constitute discrimination in view of the provisions of article 2 and 5.
Similarly, the rights of refugees and persons with disabilities are recognised and guaranteed by regional human rights instruments. As such, regional treaties have also been used as mechanisms to enforce human rights protection for refugees with disabilities. The African Charter on Human and Peoples’ Rights (African Charter) is the fundamental mechanism of the African human rights system. It recognises and protects individual rights as well as peoples’ rights including some socio-economic rights as well as civil and political
rights.54 The African Charter plainly emphasises that:
“the virtues of the historical tradition and the values of African civilization should inspire and characterise the reflection on the concept of human and peoples’ rights by recognising that fundamental human rights stem from the attributes of human beings, which justifies their international protection and
as well as that the reality and respect of peoples’ rights should necessarily guarantee human rights.”55
Furthermore, the African Charter considers that the enjoyment of rights and freedom have implications on the performance of duties by everyone towards their family and society, the state and other legally

Crock & Berg Immigration, Refugees and Forced Migration: Law, Policy and Practice in Australia (2011) 383.
52 CRPD Art’s 5(3), 14(2), 18(2)(c), 18(5), 27(1)(i).
Crock, Ernst & Mccallum 758.
Van Reenen & Combrinck “The UN Convention on the rights of persons with disabilities in Africa: Progress after 5 years” 2011 International Journal on Human Rights 132.
African Charter Preambular para 4, 5.

recognised communities.56 In these respects, the African Charter is in compliance with and complements the CRPD.57
Substantively, the African Charter provides for the right of everyone “to the enjoyment of the rights and freedoms recognised and guaranteed in the Charter without distinction of any kind such as race, ethnic group,
colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status”.58 Clearly, it can be argued that refugees and PWDs fall under the “other status” category and
thus enjoy the guarantee offered by this provision. Article 3 further provides that “every individual shall be equal before the law and shall be entitled to equal protection of the law”.59 In interpreting and applying this provision in the Purohit  and  Another  v  The  Gambia, the African
Commission on Human and Peoples’ Rights (the African Commission) held that “articles 2 and 3 basically form the anti-discrimination and equal  protection  provisions   of  the  African  charter”.60   The   African
Commission further held that:
“Article 2 lays down a principle that is essential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises, while article 3 is important because it guarantees fair and just treatment of individuals within a legal system of a given country. These provisions are non-derogable and therefore must be respected in all circumstances in order for anyone to enjoy all the other rights provided for
under the African Charter.”61
The implication of this interpretation is that refugees with disabilities are to enjoy all the rights recognised and protected under the African Charter. In addition, article 4 recognises that everyone is “entitled to respect for his life and the integrity of his person”. Though not directly related to equal recognition and access to justice, this provision protects the core personhood and autonomy of an individual. The African Charter also guarantees that “every individual shall have the right to the respect of his dignity inherent in a human being and to the recognition of his
legal status”.62  The African Commission has held that “human dignity is
an inherent basic right to which all human beings, regardless of their mental capabilities or disabilities as the case may be, are entitled to without discrimination”.63  It has contended that human dignity is “an
inherent right which every human being is obliged to respect by all means possible and on the other hand it confers a duty on every human being to respect this right”.64 Article 13(3) of the African Charter further
guarantees that “every individual shall have the right of access to public

African Charter Preambular para 6.
Van Reenen & Combrinck 133.
African Charter Art 2.
African Charter Art 3.
Purohit and Another v The Gambia 2003 AHRLR 96 (ACHPR 2003) 49.
Purohit and Another v The Gambia
African Charter, Art 5.
Purohit and Another v The Gambia para 57.
Van Reenen & Combrinck 133.

property and services in strict equality of all persons before the law”.65 Therefore, the African Charter guarantees the equality of all persons.66
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) set out to adequately protect the rights of women in Africa.67 Article 24(a) obliges
States Parties to ensure the protection of some categories of women including those from marginalised population groups and to provide an environment  suitable  to   their  condition   and   their  special   physical,
economic and social needs.68 This provision is of critical importance to
refugee women with disabilities because States Parties are to reasonably accommodate them at all levels of societal interactions. Significantly, States Parties are “to provide suitable legal and other remedies to any woman whose rights or freedoms, as herein recognised, have been
violated”.69 Similarly, the AU (formerly OAU) in 1969 adopted a regional
Convention governing the specific aspects of refugee problems in Africa (1969 OAU Convention). The 1969 OAU Convention’s definition of a refugee is considered more inclusive and progressive than other regional
conventions.70 The 1969 OAU Convention obliges member states “to use
their best endeavours consistent with their respective legislation to receive refugees and to secure the settlement of those refugees who for well-founded reasons are unable or unwilling to return to their country of
origin or nationality”.71  While this provision is relevant in protecting the
rights of refugees with disabilities in Africa, some states can exploit the excesses by adopting repressive laws to the contrary.72
Taking the discussion further, conceptually, scholars and practitioners have attempted to unpack the content of “equal recognition before the law” and “access to justice” as enshrined in articles 12 and 13 of the CRPD. Regarding equal recognition before the law, article 12(1) and (2) of the CRPD provides that:

African Charter, Art 13(3).
African Charter, Art 19 provides that “all peoples shall be equal; they shall enjoy the same respect and shall have the same rights”. Nothing shall justify the domination of a people by another.
MS Nsibirwa “A brief analysis of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women” 2001 (1) African Human Rights Law Journal 41.
Maputo Protocol Art 24(a).
Maputo Protocol Art 25(a).
The definition of refugee in art 1 of the 1969 OAU Convention incorporates the definition of the 1951 Convention by removing the temporal or geographic restrictions with further extension in the definition. Para 2 of art 1 provides that “[t]he term refugee shall also apply to every person who,  owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality”.
1969 OAU Convention Art 21(1).
Addaney 2017 African Human Rights Law Journal 218.

“(1) States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. (2) States Parties shall
recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”73
Although it has been argued that article 12 is the most contentious, it is also the most important and “revolutionary” provision in the Convention.74 The revolution of article 12 rests in its acknowledgment
that all persons with disabilities possess legal capacity and have the right to exercise it on an equal basis. Primarily, this provision is a complete shift from substituted decision-making to supported decision-making.75
It symbolises “the legal aspects of living independently, exercising autonomy and having the freedom to make one’s own choices”.76 Arguably, legal capacity implies legal autonomy, which is the right to
make one’s own choices. Schulze argues that legal capacity as used in the CRPD envelops all aspects of the capacity to act, which is the right to exercise his or her capacity in all aspects of life such as civil, criminal, as
well as public.77 Crucially article 12(3) of the CRPD obliges state parties
to provide access to the support that persons with disabilities may require in exercising their legal capacity. Legal capacity is not defined in the Convention. However, legal capacity has been conceptualised as how
we give effect to our preferences and choices in the real world.78  In
effect, legal capacity consists both of the recognition of a person as a right holder and the ability to exercise those rights. It can therefore be argued that enjoyment of legal capacity under article 12 is a “prerequisite for the equal enjoyment of all the other rights enshrined in the CRPD  especially
article 13 (the right to access to justice)”.79
On access to justice, article 13(1) of the CRPD provides that:

CRPD Art 12(1) and (2).
Minkowitz “The United Nations Convention on the Rights of Persons with Disabilities and the right to be free from non-consensual psychiatric interventions” 2007 Syracuse Journal of International Law and Commerce 405.
Zinkler “Supported decision-making in the prevention of compulsory interventions in mental health care” 2019 Front Psychiatry 137; Szmukler “Capacity”, “best interests”, “Will and Preferences” and the UN Convention on the Rights of Persons with Disabilities” 2019 World Psychiatry 34.
M Schulze Understanding the UN Convention on the Rights of Persons with Disabilities: A Handbook on the Human Rights of Persons with Disabilities (2009) 60.
Schulze 63.
Pearl “Article 12 of the United Nations Convention on the Rights of Persons with Disabilities and the Legal Capacity of Disabled People: The Way Forward?” 2013 Leeds Journal of Law and Criminology 11.
Gombos, Benkó B & Kovács “Written submission on the right to equal recognition before the law: Based on the case of Hungary” Submitted to the Committee on the Rights of Persons with Disabilities by the Mental Disability Advocacy Centre and the Hungarian Association for Persons with Intellectual Disability” (2009) 14, http://www.ohchr.org/EN/HRBodies/CRPD
/Pages/DayGeneralDiscussion21102009.aspx (last accessed 2019-04-08).

“States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all
legal proceedings, including at investigative and other preliminary stages.”80
The inclusion of access to justice in article 13 of the CRPD is a substantiation that persons with disabilities face challenges in accessing legal representation, resources as well as protection. The meaning of the term “justice” can vary between regions, countries and cultures. However, the idea of justice is common to all and generally includes concept of fairness, accountability and equity of outcome. Therefore, “access to justice” encompasses people’s effective admission to the recognised and unofficial systems, procedures, information as well as locations used in the administration of justice. Bowd posits that “access to justice” encompasses the fairness with which litigants are treated, the
justness of results delivered, the speed with which cases are processed, and the responsiveness of the system to those who use it”.81 He further asserts that access to justice broadly means the equity with which those
from differing backgrounds are able to gain from the justice delivery system.82 Beyond seeking legal protection or remedies, there are numerous ways in which individuals can participate in the justice system
including being judges, witnesses, jurors, and lawyers. In addition one may serve as a defendant in a civil or administrative case.83 Larson observes that challenges such as stereotyping in the refugee status
determination and resettlement processes in particular exacerbate these disadvantages for persons with disabilities.84
Despite the recognition and protection offered in these international treaties, several barriers can be faced in terms of a country’s institutional structure for administering justice such as poor law enforcement and ineffective court systems. Bhabha opines that these are often complex, involving  combined  forms  of  inaccessibility  and  other  types  of
discrimination.85 The implications of such barriers are significant in the
case of refugees with disabilities as lack of access to justice can compound the disadvantages they face, leaving them unable to protect their rights and at risk of ongoing abuse including physical and sexual violence.

CRPD Art 13(1).
Bowd Access to justice in Africa: Comparisons between Sierra Leone, Tanzania and Zambia (2009) 1.
Bowd supra.
Lord, Guernsey, Balfe, Karr, De Franco & Flowers, Human Rights Yes! Action and Advocacy on the Rights of Persons with Disabilities (2009) 8.
Larson “Access to justice for persons with disabilities: An emerging strategy” 2014 Laws 220.
Bhabha “Disability Equality Rights in South Africa: Concepts, Interpretation and the Transformation Potential” 2009 South African Journal of Human Rights 218.

3 Measuring up to the CRPD: access to justice and legal capacity of refugees with disabilities
Ghana and Uganda have committed to protect the rights of PWDs and refugees by ratifying the relevant international and regional human rights instruments.   These   include   the   1951   Refugee   Convention;86    the
International Convention on the Elimination of All Forms of Racial Discrimination (CERD);87 the ICCPR;88 the ICESCR,89 and the Convention on the Elimination of all forms of Discrimination against
Women (CEDAW).90 Furthermore, these countries have both signed and
ratified the Convention on the Rights of the Child (CRC),91 the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW),92  and the CRPD.93 At
a  regional  level,  these  countries  have  signed  and  ratified  the African

Ghana acceded to the 1951 Convention on 18 March 1963 (Optional Protocol on 30 August 1968); Uganda acceded to the 1951 Convention and its Optional Protocol on 27 September 1976, http://www.unhcr.org/protec tion/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol. html (last accessed 2019-06-08).
Ghana signed and the CERD on 8 September 1966; Uganda signed and ratified on 21 November 1980; https://treaties.un.org/pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en (last accessed 2019-06-08).
Ghana signed and ratified on 7 September 2000; Uganda signed and ratified on 21 June 1995, https://treaties.un.org/pages/ViewDetails. aspx?src=IND&mtdsg_no=IV-4&chapter=4&lang=en (last accessed 2019-06-08).
Ghana signed and ratified  on  7  September  2000;  Uganda  acceded  on  21 January 1987, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND& mtdsg_no=IV-3&chapter=4&lang=en (last accessed 2019-06-08).
Ghana signed the CEDAW on 17 July 1980 and ratified on 2January 1986; Uganda signed on 30 July 1980 and ratified on 22 July 1985, https:// treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&cha pter=4&lang=en (last accessed 2019-06-08).
Ghana signed the CRC on 29 January 1990 and ratified on 5 February 1990; Uganda  signed  and  ratified  on  17  August  1990,  https://treaties.un.org/ pages/viewdetails.aspx?src=treaty&mtdsg_no=iv- 11&chapter=4&lang=en (last accessed 2019-06-08).
Ghana signed and ratified on 7 September 2000; Uganda acceded to it on
14 November 1995, https://treaties.un.org/Pages/ViewDetails.aspx?src= IND&mtdsg_no=IV-13&chapter=4&clang=_en (last accessed 2019-06- 08).
Ghana signed the CRPD on 30 March 2007 and ratified on 31 Jul7 2012; Uganda signed on 30 March 2007 and ratified on 25 September 2008, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no= IV-15&chapter=4&clang=_en (last accessed 2019-06-08).

Charter,94 its Maputo Protocol,95 the African Charter on the Rights and Welfare of Children (the African Children’s Charter)96 and the 1969 OAU Refugee.97 Their respective Constitutions, along with several laws, subsidiary  legislation  and  policies,  relate  to  the  rights  of  PWDs and
refugees. However, similar to other countries in Africa, these countries are faced with challenges in the domestication and application of the CRPD as emphasised by Mgijima-Konopi that “most African countries face significant challenges in formulating, domesticating and implementing disability rights to make the rights guaranteed in the CRPD
a reality for persons with disabilities on the continent”.98 Consequently,
the relevant national legislation and policies of Ghana and Uganda are discussed below in relation to article 12 and article 13 of the CRPD.
3 1 Equal before the law? achieving social justice for refugees with disabilities in Ghana
In Ghana, there were over 18 457 persons of concern to UNHCR by the end of June 2016, comprising of 16 409 refugees and 2 048 asylum- seekers from about 25 different countries.99 The UNHCR in Ghana
prioritises mainstreaming access to basic social services for refugees into the national system and securing durable solutions for refugees.100 Most
of the refugees have been in Ghana for over five years, with the latest influx being that of Ivorian Refugees in 2011; other refugee groups arrived mostly in the 90s or early 2000s.101 Therefore, finding durable

Ghana deposited on 3 March 1989, ratified on 24 January 1989 and signed on 3 July 2004; Uganda deposited on 27 May 1986, signed on 18 August 1986 and ratified on 10 May 1986, http://www.achpr.org/instruments/ achpr/ratification/ (last accessed 2019-06-08).
Ghana signed on 31 October 2003, ratified on 13 June 2007 and deposited on 20 July 2007; Uganda signed on 18 December 2003 and ratified and deposited on 22 July 2010, http://www.achpr.org/instruments/women- protocol/ratification/ (last accessed 2019-06-08).
Ghana signed on 18 August 1997, ratified on 10 June 2005 and deposited  on 15 July 2005; Uganda signed on 26 February 1992, ratified on August 1994    and    deposited    on    21    October    1994,    http://www.achpr.org/ instruments/child/ratification/ (last accessed 2019-06-08).
Ghana signed on 10 September 1969, ratified on 19 June 1975 and deposited on 18 August 1983; Uganda signed on 10 October 1969, ratified on  24  July  1987  and  deposited  on  7  August  1987,  http://www.achpr.org/ instruments/refugee-convention/ratification/ (last accessed 2019-06-08).
Mgijima-Konopi “The Jurisprudence of the Committee on the Rights of Persons with Disabilities and its Implications for Africa” 2016 African Disability Rights Yearbook 269.
United  Nations  Office  in  Ghana  “Refugees”  http://gh.one.un.org/content/ unct/ghana/en/home/our-work/cross-cutting-themes/refugees.html         (last accessed 2019-06-08).
United  Nations  Office  in  Ghana  “Refugees”  http://gh.one.un.org/content/ unct/ghana/en/home/our-work/cross-cutting-themes/refugees.html         (last accessed 2019-06-08).
UNHCR “UNHCR in Ghana: Protection and Solutions Strategy” Briefing note, August 2016, http://gh.one.un.org/content/dam/unct/ghana/docs/ Agencies%27%20Publications/UNHCR/UNCT-GH-UNHCR-Ghana-Briefing- Notes.pdf (last accessed 2019-06-08).

solutions is of utmost importance to allow refugees to acquire or re- acquire the full protection of the State. The 1992 Constitution of Ghana (the 1992 Constitution),102  along with other subsidiary legislation and
policies, relates to the rights of refugees with disabilities in Ghana. Amongst them, the most relevant are the 1992 Constitution, the Refugee Law of 1992 and the Persons with Disability Act of 2006. After decades of  political  crises  and  frequent  military  takeovers,  the  Provisional
National Defence Council of Ghana promulgated a new Constitution in 1992,103 which was later amended in 1996.104 The 1992 Constitution  was enacted and adopted as a “framework of government which shall
secure for current generation and posterity the blessings of liberty, equality of opportunity and prosperity” and “in a spirit of friendship and peace  with  all  peoples  of  the  world”.105   It  declares  and  affirms the
commitment to “freedom, justice, probity and accountability”.106  The
Bill of Rights guarantees the basic human rights and freedoms that must be respected and upheld by all organs of state, all natural and legal
persons in Ghana, and shall be enforceable by the Courts as provided in the Constitution.107
Article 17 of the Constitution further guarantees everyone’s “equality and freedom from discrimination”108 and provides that “a person shall not be discriminated against on grounds of gender, race, colour, ethnic
origin, religion, creed or social or economic status”.109 However, article
17 does not recognise disability as a protected ground of discrimination, rather article 29 seems to reflect disability related principles by providing for the protection of the rights and welfare of PWDs in Ghana. It guarantees  that  “disabled  persons  shall  be  protected  against  all
exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature”.110 It also provides that “in any judicial proceedings in which a disabled person is a party, the legal procedure applied shall
take his physical and mental condition into account”.111 As already
argued, the fundamental rights guaranteed in the Constitution are to be upheld by all state agencies and natural persons. Therefore, courts and all administrative tribunals dealing with refugee protection issues are obliged to comply with this constitutional imperative. This call is influenced by the development of disability laws and policies in Ghana, especially article 8 which mandates parliament to enact such laws as are necessary to ensure the enforcement of the guarantees enshrined in
article  29.112  In addition,  the Directive Principles of State Policy “guide

Constitution of the Fourth Republic of Ghana (Promulgation) Law of 1992.
Constitution of Ghana.
Constitution of the Republic of Ghana (Amendment) Act of 1996.
Constitution of Ghana preamble para 1 and 2.
Constitution of Ghana preamble para 3.
Constitution of Ghana preamble Art 12(1).
Constitution of Ghana preamble Art 17.
Constitution of Ghana preamble Art 17(2).
Constitution of Ghana Art 29(4).
Constitution of Ghana Art 29(5).
Constitution of Ghana Art 29(8).

all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and
implementing any policy decisions, for the establishment of a just and free society”.113
In 1992 Ghana adopted the Refugee Law which recognises the 1951 UN Refugee Convention, the 1967 Protocol and the 1969 OUA Refugee Convention and recalls that “it is necessary to give effect to these Conventions  and  Protocol  in  order  that  the  provisions  of  these
instruments shall  have  the  force of law  in  Ghana”.114  Different from
other refugee laws on the continent, article 11 of the Refugee Law contains the rights and duties of a refugee, and provides that, “a person granted refugee status in Ghana shall be entitled to the rights and be subject to the duties specified in the 1951 Refugee Convention, its 1967
Protocol  as  well  as  the  1969  OAU  Refugee  Convention”.115   These
Conventions are attached as a Schedule to the Law. This is innovative as refugees in Ghana are entitled to all the rights enshrined in these treaties. Part 2 of the Law, establishes a Refugee Board (the Board).116 The Board is mandated to perform inter alia the following duties:
“(a) receive and consider applications for refugee status; (b) recognise any person or group of persons as refugees for the purposes of this Law; (c) register and keep a register of persons recognised as refugees under this Law;
(f) endeavour to ensure the provision of adequate facilities, advice and services for the reception and care of refugees in Ghana; (h) advise the Secretary on all matters relating to refugees.”117
This provision is significant because it meets international refugee protection standards. Jastram and Achiron observe two conditions that states must meet to effectively protect the rights of refugees.118  The first
is adopting domestic refugee legislation and policies that are compliant with international standards to provide a basis for the protection of refugees. The second is integrating international human rights laws into domestic legislation, specifically in critical areas where the 1951 Refugee
Convention  and  the  1969  OAU  Refugee  Convention  are  silent.119
Meeting these criteria would require states to institute an expert body to examine asylum applications to guarantee the availability of procedural safeguards at various levels and to speed up the process.120

Constitution of Ghana Art 34(1).
Refugee Law of Ghana, Preamble para 3.
Refugee Law Art 11.
Refugee Law Art 4.
Refugee Law.
Jastram & Achiron “Refugee protection: A guide  to  international  refugee  law” (2001) http://www.ipu.org/pdf/publications/refugee_en.pdf (last accessed 2019-04-08).
Jastram & Achiron supra.
UNHCR The 1951 Convention and its 1967 Protocol: The legal framework for protecting refugees (2010) 2.

Regarding the protection of PWDs, the Persons with Disability Act of Ghana,121 was enacted in 2006. It has eight parts. Part 1 sets out the “general” rights of PWDs to inter alia include family life and social activities, freedom from exploitation and discrimination as well as accessibility  of both public  places  and services.122  Part  2  sets  out the
rights relating to employment and rehabilitation.123 Part 3 provides for
the rights to education and training.124 Part 4 sets out the rights relating to transportation.125 Part 6 provides for the right to healthcare.126 However, there is no provision for equal legal capacity in the Act. The Act
is silent on the concept of equal legal capacity for PWDs and most importantly, it does not provide a definition for disability. Thus, this weakens the application and enforcement of the Act.
In instances where a PWD is a party to judicial proceedings, article 5 provides that “the adjudicating body shall take into account the condition of the PWD and provide appropriate facilities that enable the person with disability to participate effectively in the proceedings”. Though this provision seems to comply with articles 2, 12 and by extension article 13 of the CRPD, the concepts of “reasonable accommodation”, “legal capacity” and “access to justice” are not specifically defined. Therefore, there is a lack of clarity on the application of article 5 of the CRPD. However, the Parliament of Ghana having ratified the UNCRPD on 12
March  2012,127  Ghana is consequently  obligated to  submit   regular
reports to the Committee on the Rights of Persons with Disabilities (CRPD) reporting on the legislative, judicial, policy and other measures being undertaken to domestically implement the rights affirmed in the Convention. These reports should particularly indicates the measures being taken in promoting, protecting and ensuring 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.128 Ghana’s first report should have been submitted in 2014 (two years after
ratification). However, due to implementation challenges, Ghana was only able to submit the report in June 2018. According to the report, citing the 2010 Population and Housing Census organised by the Ghana Statistical Service, three percent of Ghanaians (737 743) were classified
as People with disabilities.129

Persons with Disability Act of Ghana (Act 715) of 2006.
Disability Act Art 1-8
Disability Act Art 9-15.
Disability Act Art 16-22.
Disability Act Art 23-30.
Disability Act Art 31-35.
See, Status of ratification of CRPD, https://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en	(last accessed 2019-06-08).
Ministry of Gender, Children & Social Protection of Ghana (MGCSP), United Nations Convention on the Rights of Persons with Disabilities: Ghana’s  Initial State party Report, CRPD/C/GHA/1, 5 June 2018, https:// tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?sym bolno=CRPD%2fC%2fGHA%2f1&Lang=en (last accessed 2019-06-08).
MGCSP Ghana’s Initial State party report 2018.

The challenges identified in the report include the exclusion of specific measures taken by the state targeting refugees with disabilities; making refugees with disabilities experience multiple forms of discrimination. There was also no statistics on refugees with disabilities in Ghana in the report. Arguably, the state has made a lot of efforts in promoting and protecting the rights of persons with disabilities. However, the initial country report concluded that although “the laws of Ghana gives recognition to every citizen irrespective of one’s socio-economic status, due    to     inadequacy    of    appropriate    and    accessible    forms   of
communication and inaccessible physical structures, persons with disabilities do not enjoy equal recognition before the law.”130 In order to domesticate the Convention, the report revealed that the Persons with
Disability Act 715 of 2006 was being reviewed to comply with the provisions of the CRPD.131 The CRPD Committee is yet to issue a concluding observation on Ghana’s initial country report.
3 2 Hidden and forgotten: Securing justice for refugees with disabilities in Uganda
Uganda has an estimated 1.277 million refugees and asylum seekers.132 After decades of political and constitutional volatility, the Constituent
Assembly of Uganda promulgated a new Constitution in 1995, which was later amended in 2005.133 One of the principal objectives of the new Constitution   is   strengthening   the   framework   for   protecting   and
preserving fundamental  human rights and  freedoms.134  Towards the
realisation of this objective, Chapter IV contains a Bill of Rights, which guarantees the basic human rights and freedoms that must be respected and upheld by all organs of state, private entities and individuals alike.135
It declares that the fundamental rights and freedoms of the individual are inherent and not granted by the State.136  The equality clause includes  an
anti-discrimination provision which specifically lists disability as a prohibited ground of discrimination.137 Article 45 of the Constitution provides that “the rights, duties, declarations and guarantees relating to
the fundamental and other human rights and freedoms specifically provided under the Bill of Rights shall not be regarded as excluding others not specifically mentioned”.138 The implication of this provision
is that the human rights protected in international and regional instruments  ratified  by  Uganda  cannot  be  debarred  from  the  rights

MGCSP Ghana’s Initial State party report 40.
MGCSP Ghana’s Initial State party report 18.
World Bank and UNHCR “Refugee Agency: An Assessment of Uganda’s Progressive Approach to Refugee Management” http://www.regionaldss. org/sites/default/files/Uganda-%20Approach%20to%20Refugee%20Man agement%20Final%20Report.pdf (last accessed 2019-06-08).
Preamble Ugandan Constitution.
Preamble Ugandan Constitution.
Ugandan Constitution Art 21(2).
Ugandan Constitution Art 20.
Ugandan Constitution Art 21(2).
Ugandan Constitution Art 45.

guaranteed in the Bill of Rights.139 However, the inspiring international legal and regional framework has not always translated into respect for the human rights of refugees in general and refugees with disabilities in particular. For instance, gross human rights violations such as arbitrary
detention and the use of torture by the government have been continually observed over the last decade.140 Although human rights have   received   at   least   some   legislative   attention   since   Uganda’s
independence, “the specific rights of refugees have been neglected notwithstanding the country’s long history as a refugee-hosting nation”.141
Even though the rights of refugees are not explicitly guaranteed like that of PWDs,142 the Bill of Rights specifies a wide ranging set of human
rights. Article 21(1) provides that “all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law”.143 In
addition to the Bill of Rights, “the National Objectives and Directive Principles of State Policy”, comprise of principles that are intended to direct all organs and agencies of the State including citizens and all other bodies and persons in applying or interpreting the Constitution or any other law and in implementing policy decisions. The Directive Principles specify that society and the state are to recognise the right of persons
with  disabilities  to  respect  and  human  dignity.144  The  Directive
Principles further direct that the state must advance the development of sign language for the Deaf.145 However, the Directive Principles are only directive and not justiciable.
Uganda has also developed the Persons with Disabilities Act of 2006 (PDA). The Act was enacted in 2006 as the primary disability legislation in   Uganda.146    This   Act   provides   for   legal   protection   and equal
opportunities for persons with disabilities and vulnerable groups in accordance with articles 32 and 35 of the Constitution.147 Equal opportunity in its widest sense covers the provisions of articles 12 and 13
of the CPRD. The PDA predates the adoption of the CRPD. However, the philosophy  and international  change  in  attitudes  towards persons with

See, Addaney 2017 African Human Rights Law Journal 218-243.
Human Rights Watch “Uganda: Kenyan activists at risk of torture” Press Release http://www.hrw.org/en/news/2010/09/16/uganda-kenyan-activists- risk-torture (last accessed 2019-06-08); Addaney “Enhancing the protection space for refugees in Kenya and Uganda” 2016 Africa Policy Journal 71.
Addaney 2017 African Human Rights Law Journal 220: Sharpe &
Namusobya “Refugee status determination and the rights of recognized refugees under Uganda’s Refugees Act 2006” 2012 International Journal of Refugee Law 563.
Ugandan Constitution Art 32-35.
Ugandan Constitution Art 21(2).
Ugandan Constitution Principle XVI.
Ugandan Constitution Principle XXIV. 146 Act 20 of 2006.
Articles 32 and 35 of Ugandan Constitution provide for Affirmative action for marginalised groups and Rights of persons with disabilities respectively.

disabilities that was later reflected in the CRPD, appears to have influenced the drafting of the text to a large extent. For example, the objectives of the PDA inter alia include:
“the promotion of dignity and equal opportunities to PWDs, encouraging the people and all sectors of government and society to recognise, respect and accept difference and disability as part of humanity and human diversity and promoting a positive attitude and image of persons with disabilities as
capable and contributing members of society”.148
In addition, the Act makes provision for a redress mechanism in Part VIII,149 and makes provision for offences and penalties in Part IX.150 The PDA makes it an offence for any person to contravene, or to aid another
person to contravene, any of its provision and a conviction attracts a fine.151 Though the PDA imposes obligations on the State, it has been criticised for its “cautious approach” of using the language of human
rights in a minimalist approach.152 In addition, some practical problems
have surfaced since the enactment of the Act. The most disturbing one is a disagreement between the Ministry of Justice and the National Union of  Disabled  People  of  Uganda  concerning  the  justiciability  of the
legislation.153 The Ministry maintains that the language of the PDA is
“aspirational” and therefore not enforceable whereas, it is considered that since the legislation derives its validity from the Constitution of Uganda, questions regarding its justifiability or otherwise have to be resolved in line with the Constitutional imperatives.
In addition, the 2006 Ugandan Refugee Act (Refugee Act)154 provides that refugees shall be entitled to all rights contained in all international laws that Uganda has ratified. This implies that refugees have access to
the courts of law and legal assistance under the applicable laws of Uganda.155 This means that by virtue of the section 29 (1) (h) of the Refugee Act, refugees with disabilities also enjoy this right. The practice
is that there is no special attention accorded to refugees with disabilities. Refugees with disabilities are still socially excluded, compared to their counterparts who are not disabled.156 The laws are general and do not
explicitly mention either refugees or PWDs.157 Furthermore, there are
practical  challenges  associated  with  identifying  and  recording  the

PDA Art 3.
PDA Art 41.
PDA Art 43.
PDA Art 43(1) and (2).
Mbazira Enforcing the Rights of Persons with Disabilities to Have Access to a Barrier-Free Physical Environment in Uganda: Is Litigation an Option? Kampala: Legal Action for Persons with Disabilities (2009) 14.
Human Rights Watch As if We Weren’t Human: Discrimination and violence against women with disabilities in Northern Uganda (2010) 65.
The Refugee Act of Uganda (Act 21) 2006, Art 29(1)(h).
Refugee Act Art 28 and 29(1)(h).
Crock M et al. “Protection of Refugees with Disabilities: Uganda Fieldwork Report” 2013 http://blogs.usyd.edu.au/refugees-disabilities/ (last accessed 2019-06-08).
Ugandan Constitution Art 21(2).

specific disabilities especially those of refugees. Most of these people, specifically  those  with  hearing,  visual  and  mental  disabilities  go
unidentified or even when identified, there are no special provisions in the existing refugee or persons with disabilities laws.158 The implementation of the law is also a problem, especially the procedure for
applying for refugee status. Article 19 of the Refugee Act provides that after an application has been lodged by an asylum seeker, the Eligibility Committee shall take a decision and inform the applicant within 14 days. However, in practice, it takes longer and sometimes over a year before a
decision is taken.159
In updating the CRPD Committee on measure being undertaken by the government of Uganda in implementing the Convention, the State party report,160 underscored article 11 of the Ugandan Constitution in
relation to situations of risk and humanitarian emergencies. The government of Uganda reiterated that, under the Constitution of Uganda, article 35 prohibits discrimination against persons with disabilities and clarified  that  this  prohibition  logically  extends  to  situations  of  risk
including armed conflict, humanitarian emergencies and the occurrence of natural disasters as required by article 11 of the Convention.161 On access to justice, as provided in article 13 of the CRPD, the government
of Uganda contended that the various entities of the justice system including police and courts are covered by the provisions of Part V of the Persons with Disabilities Act.162  The report further clarified that section
25 of the Act prohibits such entities to exclude a person with disability from accessing the services, including by refusing to provide the service to the person or by making it impossible or unreasonably difficult for the
person to use the service.163 In addition, the report contended that the
Act provides positive duties for service providers, both in terms of physical accessibility of the service as well as a duty to provide auxiliary aid or services to enable a person with a disability to use the service.164
In its concluding observations relating to Uganda’s initial state party report, the CRPD Committee commended the measures taken by the State to promote the rights of persons with disabilities.165 Regarding
equality and non-discrimination in article 5 of the CRPD, the CRPD Committee was concerned about persisting discrimination against persons with disabilities, including in particular persons with albinism, persons with intellectual and/or psychosocial disabilities, and on other grounds as well the insufficient legal remedies to protect them against

Crock et al. supra.
Crock et al. supra.
CRPD: Uganda’s Initial State party Report, CRPD/C/UGA/1, 10 March 2015, 21-22.
CRPD: Uganda’s Initial State party Report.
CRPD: Uganda’s Initial State party Report para 111.
CRPD: Uganda’s Initial State party Report para 111.
CRPD: Uganda’s Initial State party Report para 111
CRPD, Concluding observations on the initial report of Uganda, CRPD/C/ UGA/CO/1, 12 May 2016.

such discrimination.166 It was further concerned about the non- recognition of reasonable accommodation in the legislation of the State party. The CRPD Committee consequently recommended to the State party to among others:
“(a) Provide for legal protection against disability-based discrimination and multiple and intersectional forms of discrimination faced by persons with disabilities; (b) Incorporate the concept of reasonable accommodation in its legislation as defined in article 2 of the Convention and recognize the denial
of reasonable accommodation as a form of discrimination based on disability”.167
Concerning situations of risk and humanitarian emergencies in article 11 of the CRPD, the Committee was concerned about “the absence of specific provisions for refugees with disabilities in Northern Uganda
through the Peace, Recovery and Development Plan.”168 The Committee
thus recommended that the State party should “monitor, in close consultation with organizations of persons with disabilities, the implementation of the Peace, Recovery and Development Plan to ensure that the requirements of persons with disabilities, including refugees with disabilities,  are  addressed  in  the  post-conflict  districts  of  Northern
Uganda.”169   These  recommendations  by  the  Committee  when   fully
addressed by the government of Uganda will go a long way in addressing most of the challenges faced by refugees with disabilities in that country especially in accessing justice during the status determination and resettlement processes.

4 Conclusion
This paper examined the normative content of article 12 (equal recognition before the law) and article 13 (access to justice) of the CPRD to ascertain how these provisions have influenced domestic disability and refugee law, policy and practice in Ghana and Uganda. Although it underscores the significance of enacting disability specific legislation as
one of the most appropriate measures for implementing disability rights,170  it however observed that just affording equal recognition to
PWDs in national constitutions and/or legislation will not in itself guarantee their protection. The paper revealed that while the CRPD has inspired national disability frameworks, little explicit provision in domestic refugee protection systems has been made for the rights of refugees with disabilities, especially the right to equal recognition before the law as well as the right to access to justice. Consequently, refugees with disabilities continue  to  encounter many  difficulties  in  seeking the

CRPD, Concluding observations on the initial report of Uganda para 8.
CRPD, Concluding observations on the initial report of Uganda para 9(a)(b) and (c).
CRPD, Concluding observations on the initial report of Uganda para 20(b).
CRPD, Concluding observations on the initial report of Uganda para 21(c).
CRPD Committee Guidelines on treaty-specific document (2009) Annex para A3 2(b).

protections accorded to them by the Refugee Convention. The paper therefore argues that for refugees with disabilities to effectively go through refugee status determination and resettlement processes, States must adopt a number of positive measures to overcome the obstacles that may prevent them from successfully going through these processes. Addressing this gap requires the incorporation of articles 12 and 13 of the CRPD into national refugee protection regimes. This will provide refugees with disabilities with legitimate human rights claims, useful for engaging state institutions constructively. This will ensure the construction of enabling disability laws and policy frameworks that have the potential to promote and protect the rights of refugees with disabilities.