Promoting Human Rights & Rule of Law in South Africa
31 January, 2017
Guest Blog post by Wamundila Waliuya, Founding President – Disability Rights Watch
Many African countries are currently being governed using laws which were passed during the pre-independence period. Essentially, this means that countries are running using colonial rules and laws. Specifically, many countries have got mental health laws that are archaic. Zambia is not an exception. It has the Mental Disorders Act of 1951.
Thorough perusal of this Act clearly indicates that the law was meant to detain those people suspected of having mental problems in order to keep them away from society. Some observers say that the law was meant for and directed to Africans. The Act is very dehumanizing, demeaning, degrading and discriminatory. It is extremely a bad law when it comes to respect and promotion of human rights. Just from the onset, I feel the Mental Disorders Act of Zambia must, as soon as possible, be declared null and void by the courts of law. This can only be done if a petition is filed to the High Court demanding for the nullification of this old law.
People may ask me why I seem to rush for a petition rather than advocacy for the repealing of the law. All efforts have been done by different organisations working in the field of disability and mental health to have the law repealed but all such efforts stand at still having the law intact and valid. Where strategic advocacy has failed, the last resort is use of litigation. Therefore, strategic litigation in the circumstances of the Mental Disorders Act of Zambia is inevitable.
I know that many people in Africa have not yet embraced the culture of strategic litigation where social advocacy has failed when demanding for the respect, promotion and protection of human rights. It is worse with Disabled People’s Organisations and their members. Strategic litigation should not be viewed as an antagonistic approach to resolving matters of human rights. It works very well when well planned. The goodness of strategic litigation is that it establishes precedent that has an impact on the larger population. Positive rulings from the courts also establish case law that would be used across different jurisdictions. So, strategic litigation seeking the nullification of the Mental Health Act of Zambia is fully justifiable and it must commence.
What is the justification? The Mental Disorders Act is Cap 305 of the laws of Zambia. Therefore, it must comply with the provisions of the Constitution of Zambia. But, when you read the Act, it is explicitly violating the rights and fundamental freedoms of persons with mental disabilities. What quickly comes to the fore of my mind is how the Act describes persons with mental disabilities. It explicitly describes them as “idiot”, “imbecile”, “feeble-minded” and “moral imbecile”. Really, does such a law deserve space in a democratic country like Zambia which stands to promote human rights and dignity?
In carrying such derogative terminology, the Mental Disorders Act directly discriminates against persons with mental disabilities. Such descriptions violate the inherent dignity of persons with mental disabilities. The language is derogative and degrading in nature and perpetuates discrimination against them. Society naturally believes in what is written in law. So, society will believe in the use of the same language because it is legal. It is written in law and anyone who uses such descriptions against persons with mental disabilities is protected by law. I feel this should not be allowed. This can only be stopped by having the Mental Disorders Act declared null and void by the courts of law.
Perusing through the Mental Disorders Act of Zambia, I find more violations. The Mental Disorders Act provides for the detention of persons with mental disabilities on suspicion of their mental disabilities. The law has established designated detention places or prisons where such persons with mental disabilities must be detained. This clearly violates the right to liberty and protection of the law of persons with mental disabilities. Furthermore, the Act gives extensive powers to the Police and members of the community to arrest and detain persons with mental disabilities without due regard to their right to liberty, legal capacity, and respect to constitutional protection of law. It is because of these provisions that persons with mental disabilities continue to suffer chaining, locking and detention. Persons with mental disabilities feel insecure in their own country. Anyone can call for their detention and the law allows this. Is this acceptable in this era? No! The Act must be declared null and void without delay.
The Constitution of Zambia, in its Bill of Rights provides for a wide range of protection of rights and fundamental freedoms. This includes protection from discrimination and protection of liberty and security of person. The Persons with Disabilities Act of Zambia also provides for the right to enjoy legal capacity in its section 8. It also prohibits discrimination on the basis of disability. Section 3 of the Persons with Disabilities Act of 2012 provides for the supremacy of the Act on all matters related to disability rights. It therefore, repeals the Mental Disorders Act. The Persons with Disabilities Act therefore prevails over the Mental Disorders Act. I therefore remain wondering why the law is still valid and being actively used. The law must not exist. It is an invalid law. But, it can only become invalid if the courts declare so. So, a petition should be filed immediately demanding for its invalidity and nullification. The time is now!
It should be noted that Zambia ratified the United Convention on the Rights of Persons with Disabilities (UNCRPD) in 2010. The Government of the Republic of Zambia further domesticated the UNCRPD through the enactment of the Persons with Disabilities of 2012. Therefore, the State has the obligation to abide by the provisions of the UNCRPD and its domestication law, which are the Persons with Disabilities Act of 2012.
The UNCRPD provides for the right to enjoy and exercise legal capacity on an equal basis with other persons in all aspects of life in its Article 12. This Article has been domesticated by section 8 of the Persons with Disabilities. This means that legal capacity for persons with mental disabilities is both internationally and domestically binding. With the persuasion of the UNCRPD together with the binding previsions of the Persons with Disabilities Act of 2012 and the Constitution of Zambia, the Mental Disorders Act of 1951 is found discriminatory; inconsistent with the Constitution of Zambia; inconsistent with the Persons with Disabilities Act of 2012. The Mental Disorders Act is inconsistent with international human rights standards. It is not compliant to the provisions of the UNCRPD. In view of this analysis, I am of the unreserved view that the Act must be declared null and void. This declaration of the Act being invalid and void should be done through an urgent petition to the High Court of Zambia.
30th January, 2017.