A. Introduction

 Artificial Intelligence (AI) is ushering in a transformative era across various sectors of society, carrying with it profound implications for persons living with disabilities (PLWDs), particularly within the African context. These Ai systems are deployed by both public and private actors, and they wield the potential to significantly enhance accessibility and independence for people with disabilities. In the African context, where resources and specialized services are often scarce, AI can assume a pivotal role in bridging critical gaps in healthcare, education, and employment.

At the same time, the integration of AI to support individuals with disabilities in Africa is not without its formidable challenges. These obstacles encompass the lack of requisite data infrastructure and digital literacy, the limited availability of AI technologies in local languages, and economic barriers that impede access to these transformative technologies to mention a few. In this contribution, we take a closer look at the rights of PLWDs and the impact that AI will have on these rights.

B. Significance of protection the rights of people living with Disabilities

As confirmed by the WHO, the global population of people with disabilities is estimated to be around 1.3 billion—equivalent to one in every six persons.[1] According to the report, this speaks to the widespread prevalence of disability across different regions and communities. In African, the figure stands at around 40% of the population includes PLWDs, with 10% to 15% being school-aged children. School enrollment rates for children with disabilities are significantly lower compared to their non-disabled counterparts, estimated at only 5% to 10%. Additionally, it is reported that 70% to 80% of PLWDs of working age are unemployed. The challenge for many PLWDs lies in securing meaningful work opportunities.[2]

At the same time, persons living with disabilities are often among the poorest in societies worldwide, facing widespread stigma, exclusion and discrimination. Many persons living with disabilities suffers multiple and intersecting discrimination, owing to their disability, as well as their race, socio economic status, nationality, and age for example.[3] This results in visible and invisible barriers to employment, education, healthcare, and full societal participation, etcwhich in turn limits their opportunities for prosperity and well-being.[4] The World Report on Disability further notes that as a result of these challenges, children with disabilities are more likely not to complete their education than children without disabilities; further that persons with disabilities are more likely to be unemployed and also likely to earn less and this worsens with the severity of the disability; and that persons with disabilities often do not receive the much needed health care, which they are most likely not able to afford.

Various international and regional legal frameworks protect the human rights of persons living with disabilities. The significance of this protection is underlined in case law and scholarly journals, which emphasise the need for upholding the rights of persons living with disabilities, as they are among the more vulnerable member of society, in need of special legal and social protection and inclusion.

In Purohit and Another v The Gambia the African Commission confirmed the significance of protecting the human rights of PLWDs. It notes that “[h]uman 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. It is therefore 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.”[5] The Commission goes on to affirm that PLWDs would like to share the same hopes, dreams and goals and have the same rights to pursue those hopes, dreams and goals just like any other human being – a right which lies at the heart of the right to human dignity.

C. Legal protection of persons living with disabilities

 The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is a landmark instrument which sets the global standard for disability rights.[6] It “marks a paradigm shift in attitudes and approaches to persons with disabilities, from a medical to a rights-based perspective.[7] The convention is shifting the focus towards advocating for the inclusion, participation, and empowerment of persons with disabilities across various human rights, development, and humanitarian agendas. Moreover, it is premised on the principle of inclusive equality, going beyond traditional non-discrimination to actively promote full and equal societal participation of persons with disabilities. Article 5 enshrines legal equality and non-discrimination, affirming that all individuals are equal under the law.

The CRPD encompasses a broad spectrum of rights, including civil, political, economic, social, and cultural aspects. Key provisions include the rights to live independently and be included in the community,[8] personal mobility,[9]education,[10] and health,[11] ensuring equal rights for persons with disabilities. Accessibility is also a central theme in the CRPD,[12] highlighting the need to eliminate visible and invisible barriers in physical, digital, informational, and communication domains to support independent living and full participation.

1. Universal Declaration of Human Rights

Article 1 of the 1948 Universal Declaration of Human Rights (UDHR) establishes the principles of equality and dignity for every human being. Article 2 extends this, stating, “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind,” encompassing various grounds such as race, color, sex, and language. Notably, while Article 2 does not explicitly mention disability, it is inferred that the phrase ‘other status’ includes persons with disabilities, aligning with the UDHR’s inclusive spirit.[13]

2. The International Covenant on Economic, Social and Cultural Rights

The ICESCR implicitly protects the rights of PLWDs. It treats disability as part of the “other status” category, thereby safeguarding against discrimination. While General Comment 19 of the ICESCR delineates standards for social security systems, emphasising the need for availability, adequate coverage, and accessibility. Additionally, Article 11 of the ICESCR expands the right to an adequate standard of living, which includes access to essential needs such as food, clothing, housing, and continuous improvement of living conditions. These right complements the right to social security.

3. African Charter

The African Charter on Human and Peoples’ Rights, while not explicitly mentioning PLWDs, it does implicitly protects their rights through various provisions. Article 2 of the Charter prohibits discrimination, guaranteeing that everyone is entitled to the rights and freedoms recognised in the Charter without distinction of any kind. Although disability is not explicitly listed as a ground for non-discrimination, the inclusion of the phrase “or other status” suggests that the list is not exhaustive.

Next, Article 16 of the Charter recognises the right of every individual to enjoy the best attainable state of physical and mental health. Article 18(4) of the Charter is more directly relevant to persons with disabilities. It explicitly states that “aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.”[14] This provision been criticised for its lack of clarity and specificity, for being vague and unclear, and for conflating the rights of the aged with those of persons with disabilities.[15]

4. Protocol to The African Charter on Human and Peoples’ Rights on The Rights Of Persons With Disabilities In Africa

The Protocol to The African Charter on Human and Peoples’ Rights on The Rights of Persons With Disabilities In Africa significantly bolsters the rights of persons with disabilities in Africa. The Protocol to the African Charter is a landmark legal instrument designed to promote the implementation of universal human rights specifically for PLWDs, addressing critical issues such as poverty, systemic discrimination, and harmful practices. This development is particularly crucial considering the profound vulnerabilities that persons with disabilities face across the continent.

The Protocol emphasizes the need for greater inclusion of concerns of people with disabilities in national laws, policies, and budgets. It seeks to ensure increased accountability and closer oversight of how States implement their human rights obligations. The Protocol builds on the principles of the CRPD, reinforcing rights such as the exercise of legal capacity and protection against interference with such capacity.

Notably, these human rights instruments protecting PLWDs are silent on AI. This is primarily because these instruments were conceived, drafted and adopted before the advent and widespread adoption of AI technologies. Consequently, they were formulated without the foresight of this rapid technological advancements and the specific risks and opportunities that AI would bring.

5. Impact of Ai on rights of persons living with disabilities

The impact of AI on the rights of PLWDs in Africa presents both opportunities and risks. AI has the potential to greatly benefit PLWDs, particularly in promoting inclusive equality in areas such as employment, education, personal mobility, accessibility, communication and independent living.[16] For instance, AI can enhance assistive technologies, improving personal mobility and communication for persons with disabilities. Machine Learning technologies like eye-tracking and voice-recognition software can support PLWDs with accessing information and education, as well as in facilitating communication. Adaptive learning platforms, which are tailored to the unique needs of students with disabilities can provide personalized learning experiences, while speech-to-text software can be employed to address the shortage of sign language interpreters.[17]

Moreover, AI systems are increasingly contributing to improved outcomes in healthcare for persons with disabilities. They aid in diagnosing illnesses, recommending treatments, and can be extended to rehabilitation contexts. In the mental health domain, AI is being used to structure peer support and provide mental health services, demonstrating its expanding role across various aspects of disability support and healthcare. These advancements highlight AI’s potential to significantly enhance the quality of life and independence for persons with disabilities.[18]

At the same time however, AI systems also pose risks of discrimination, exclusion and violation of human rights of PLWDs. As a start, Ai systems are often trained on data sets that lack representation from communities with disabilities, racial minorities, or diverse genders and identities.[19] This can result in the exclusion of persons with disabilities from employment opportunities and other essential services. However, even where this data is representative, algorithmic discrimination can nonetheless still occur because of algorithmic proxy reliance.[20]

The 2021 report of the Special Rapporteur on the rights of persons with disabilities, Gerard Quinn, to the Human Rights Council focuses on the impact of Ai on rights of PLWDs. It acknowledges AI’s potential to significantly enhance inclusive equality in areas like employment, education, and independent living, while also highlighting its associated risks, particularly in terms of discrimination and privacy concerns. The report emphasizes the legal frameworks established by the Convention on the Rights of Persons with Disabilities, which provide benchmarks for assessing AI’s risks and opportunities, covering a range of rights including privacy, autonomy, employment, and non-discrimination.The report highlights the discriminatory impact of AI in employment, education, and healthcare, and stresses the need for active consultation and participation of persons with disabilities in AI development. It outlines the challenges posed by AI in reinforcing existing barriers, especially in job automation.[21]

According to a Strathmore University report titled AI Assistive Technologies (ATs) for Persons with Disabilities (PWDs) in Africa,[22] in low and middle-income countries, where over 80% of persons with disabilities reside, the availability of Assistive Technologies is often limited.[23] This scarcity exacerbates the challenges faced by PLWDs in the digital realm. The report notes further that many individuals with disabilities encounter significant barriers when accessing government websites, especially in the context of e-government, with such barriers contributing to their increased exclusion, amplifying economic and social inequalities. This issue was notably observed in Kenya during the COVID-19 pandemic, as government and other services shifted predominantly online, further marginalizing persons with disabilities.[24]

Moreover, the report notes that AI models used in automated decision-making often fail to accurately interpret cues from persons with disabilities. For instance, they might misread the actions of individuals on the autism spectrum or fail to recognize gestures from people with amputated limbs.

In General Comment No. 25 (2020), the Committee on Economic, Social and Cultural Rights draws our focus to the potential for discrimination against persons with disabilities when scientific advancements fail to consider their unique needs and characteristics. The Committee emphasises the importance of including persons with disabilities in scientific decision-making processes, while also stressing the necessity of providing reasonable accommodations to ensure that individuals with disabilities can fully benefit from scientific progress and its applications.[25]

The Special Rapporteur on the rights of persons with disabilities has noted concerns about the use of AIin decision-making processes, particularly in the insurance industry, where AI-driven decisions can lead to increased premiums for consumers. The Special rapporteur notes that a significant issue with these AI systems is their lack of transparency; the underlying logic and rationale behind their decisions are often unclear or completely opaque. This “black box” nature of machine learning and automated decision-making systems presents substantial challenges for the general population, and is especially problematic for PLWDs, who are already at a disadvantage in health and life insurance markets. The opacity of these AI systems’ decision-making processes tend to exacerbate existing patterns of inequality and present additional barriers for PLWDs .[26]

The Special Rapporteur on the rights of persons with disabilities has made recommendations for addressing some of these challenges in the context of Ai. These include implementing disability-inclusive human rights impact assessments of AI, ensuring that AI tools undergo assessments from a disability rights perspective, and insisting on the obligation of reasonable accommodation in the operation of AI systems. Additionally, states are urged to include disability considerations in their AI strategies and to adhere to disability-inclusive public procurement standards.[27]

D. The Impact of Ai on Disability Rights: Situated in the African context

In Africa, where persons with disabilities often face barriers to accessing services and opportunities, (where available) AI has the potential to significantly improve the quality of life for PLWDs. However, and in the African context specifically, there are unique factors that animate the impact of Ai on the rights of PLWDs. One of the challenges in the African context is the digital divide. Assistive technologies are not readily available in many African States, where they are, they tend to be accessible to a minority of persons living with disabilities, depending on a number of intersecting factors such as race, class, socio-economic, geographic, and health factors.

In addition, limited technological infrastructure, lack of access to technology tools and services, and low levels of digital literacy tends to exacerbate inequalities in access to Ai technologies and services – potentially leaving persons with disabilities even further behind. Moreover, the majority of AI technologies are developed outside Africa and often do not account for local languages or local contexts and needs. Research shows that Ai systems are already perpetuating existing discriminatory patters and creating new forms of discrimination against persons with disabilities, particularly those from African descent, and those who identify as women for example.

E. An intersectional perspective

Intersectionality, a concept originating from critical race theory, examines how various social and identity categories like race, gender, class, and disability intersect to create unique experiences of advantage and disadvantage. When discussing AI’s impact on persons with disabilities, this perspective reveals a more nuanced understanding of the challenges and opportunities presented by AI technologies.

While AI technologies have the potential to offer significant benefits to persons with disabilities, these benefits are not uniformly accessible. For instance, individuals with disabilities who belong to marginalized racial or ethnic groups, or who live in poverty, may face compounded challenges in accessing these technologies. In regions with limited infrastructure and lower socio-economic conditions, such as many parts of the continent, the promise of AI may remain largely unfulfilled for many PLWDs.

Furthermore, an intersectionality lens highlights that the development and deployment process of AI can also inadvertently reinforce existing social biases. AI algorithms, largely shaped by developers from homogenous backgrounds, may not adequately reflect the diverse needs and experiences of persons with disabilities, particularly those belonging to other marginalized groups. For example, a voice recognition system may not be trained to understand speech patterns of individuals with certain disabilities, or it might lack the capability to interpret various accents commonly found in multicultural or linguistically diverse regions.

Further, an intersectional perspective emphasizes the importance of inclusive policy-making and AI governance – a core tenet of the disability rights legal framework. Ensuring that the voices and data of persons with disabilities, particularly those from other marginalized groups, are included in the development and regulation of AI is vital.

An intersectional assessment further reveals that persons with disabilities will experience AI different ways, depending on the totality of the circumstances acting upon them. For instance, a Black woman with a visual impairment living in a low-income region of Africa may experience the impact of AI differently than a White man with a hearing impairment in a high-income Western country, or in an urban centre like Cape Town. The former might face challenges due to the lack of AI technologies adapted to local languages or contexts, compounded by gender and racial biases embedded in AI algorithms. This could limit her access to AI-driven assistive technologies, impacting her right to information and communication. This lets us know that the intersection of disability with socioeconomic status can profoundly affect access to AI technologies. Wealthier individuals may afford cutting-edge AI solutions that offer greater independence and quality of life, while those from lower socioeconomic backgrounds may struggle to access even basic AI-enabled devices or services.

Another example could be a person with a physical disability in a rural area where internet access is limited. The potential of AI in enhancing mobility through smart prosthetics or wheelchairs may be out of reach due to connectivity issues and economic barriers. This contrasts with urban dwellers with physical disabilities who might benefit more directly from such technologies. In regions such as Africa, where technology access and digital literacy are limited, there is a risk that the benefits of AI may not be evenly distributed, potentially exacerbating existing disparities. Additionally, it is imperative that AI development adopts an inclusive approach, ensuring that these technologies are accessible and advantageous for all individuals with disabilities, including those at the intersection of multiple marginalised identities.

F. Conclusion

The examination of the impact of AI on the rights of PLWDs reveals a multifaceted landscape marked by both opportunities and challenges. AI holds the potential to revolutionize the lives of individuals with disabilities, offering unprecedented access to information, communication, and personal autonomy. It is a catalyst for inclusive educational and healthcare systems, improved accessibility, and empowerment for persons with disabilities, ushering in a promising era.

Nevertheless, this potential is accompanied by substantial risks. The digital divide, economic, social and legal barriers,ethical, and the risk of perpetuating discriminatory patterns pose significant concerns.

Legal frameworks like the UN Convention on the Rights of Persons with Disabilities (CRPD) establish a foundational framework for safeguarding the rights of persons with disabilities in the era of AI. However, these frameworks must continuously adapt to keep pace with the evolving AI landscape. Collaborative efforts among policymakers, technologists, and disability advocates are vital to ensuring that AI development aligns with the principles of equality, accessibility, and non-discrimination.

The advent of AI presents a distinctive opportunity to reimagine and reshape an inclusive society. While grappling with the associated challenges, it is essential to harness AI’s potential to dismantle existing barriers and construct a world where individuals with disabilities can fully exercise their rights and participate on equal footing in all spheres of life.

References

[1] ‘Global Report on Health Equity for Persons with Disabilities’ <https://www.who.int/teams/noncommunicable-diseases/sensory-functions-disability-and-rehabilitation/global-report-on-health-equity-for-persons-with-disabilities> accessed 8 January 2024.

[2] ‘Disability Is Not Inability: Addressing The Disability Divide In Africa Using Smart Technologies | AUDA-NEPAD’ <https://www.nepad.org/blog/disability-not-inability-addressing-disability-divide-africa-using-smart-technologies> accessed 9 January 2024.

[3] ‘A/HRC/49/52: Artificial Intelligence and the Rights of Persons with Disabilities – Report of the Special Rapporteur on the Rights of Persons with Disabilities’ (OHCHR) <https://www.ohchr.org/en/documents/thematic-reports/ahrc4952-artificial-intelligence-and-rights-persons-disabilities-report> accessed 10 January 2024.

[4] ‘Disability: The Convention on the Rights of Persons with Disabilities’ <https://www.who.int/news-room/questions-and-answers/item/why-is-the-convention-on-the-rights-of-persons-with-disabilities-important> accessed 9 January 2024.

[5] Purohit and Another v The Gambia (2003) AHRLR 96 (ACHPR 2003), at para 57.

[6] ‘Convention on the Rights of Persons with Disabilities’ (OHCHR) <https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-persons-disabilities> accessed 9 January 2024; ‘Disability: The Convention on the Rights of Persons with Disabilities’ (n 4).

[7] Stein, M. A., & Lord, J. E., “Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential” (Human Rights Quarterly, 2010).

[8] Article 19.

[9] Article 20.

[10] Article 24.

[11] Article 25.

[12] Article 9.

[13] Yvette Basson, ‘State Obligations in International Law Related to the Right to an Adequate Standard of Living for Persons with Disabilities’ (2017) 21 Law, Democracy and Development 68.

[14] See ‘Disability Rights in the African Regional Human Rights System during 2011 and 2012 (Regional Developments) [2013] ADRY 9’ <https://www.saflii.org/za/journals/ADRY/2013/9.html> accessed 8 January 2024.

[15] Ibid.

[16] ‘Disability Is Not Inability: Addressing The Disability Divide In Africa Using Smart Technologies | AUDA-NEPAD’ (n 2).

[17] Human Rights Council, Report of the Special Rapporteur on the rights of persons with disabilities, Rights of persons with disabilities, A/HRC/49/52, 2021, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G21/397/00/PDF/G2139700.pdf?OpenElement

[18] ‘A/HRC/49/52: Artificial Intelligence and the Rights of Persons with Disabilities – Report of the Special Rapporteur on the Rights of Persons with Disabilities’ (n 3).

[19] Shrinking the ‘Data Desert’: Inside Efforts to Make AI Systems More Inclusive of People with Disabilities” (Source 2020) https://news.microsoft.com/source/features/diversity-inclusion/shrinking-the-data-desert/ accessed 7 January 2024.

[20] Anupam Datta and others, ‘Proxy Non-Discrimination in Data-Driven Systems’ (arXiv, 25 July 2017) <http://arxiv.org/abs/1707.08120> accessed 19 October 2023; Paula Pedigoni Ponce, ‘Direct and Indirect Discrimination Applied to Algorithmic Systems: Reflections to Brazil’ (2023) 48 Computer Law & Security Review 105766.

[21] Human Rights Council, Report of the Special Rapporteur on the rights of persons with disabilities, Rights of persons with disabilities, A/HRC/49/52, 2021, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G21/397/00/PDF/G2139700.pdf?OpenElement

[22] Josephine Kaaniru, AI Assistive Technologies (ATs) for Persons with Disabilities (PWDs) in Africa, Strathmore University, 2023, available at https://cipit.org/wp-content/uploads/2023/10/Report-AI-Assistive-Technologies-ATs-for-Persons-with-Disabilities-PWDs-in-Africa2-2.pdf

[23] Ashrita Saran, Howard White, and Hannah Kuper, ‘PROTOCOL: Effectiveness of Interventions for People with Disabilities in Low‐ and Middle‐Income Countries—an Evidence and Gap Map’ (2019) 15 Campbell Systematic Reviews https://onlinelibrary.wiley.com/doi/10.1002/cl2.1006

[24] Ibid.

[25] ‘General Comment No. 25 (2020) on Article 15: Science and Economic, Social and Cultural Rights’ (OHCHR) <https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-25-2020-article-15-science-and> accessed 10 January 2024.

[26] ‘A/HRC/49/52: Artificial Intelligence and the Rights of Persons with Disabilities – Report of the Special Rapporteur on the Rights of Persons with Disabilities’ (n 3).

[27] Human Rights Council, Report of the Special Rapporteur on the rights of persons with disabilities, Rights of persons with disabilities, A/HRC/49/52, 2021, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G21/397/00/PDF/G2139700.pdf?OpenElement