Zambia: Challenging the Mental Disorders Act

SALC supported a petition by three persons with psychosocial disabilities and the Mental Health Users Network of Zambia (MHUNZA) to repeal the Mental Disorders Act of 1949 in Mwewa and Others v the Attorney General and Others. The Petitioners argued that the Act unconstitutionally infringes on the rights to dignity, liberty and to freedom from discrimination of persons with mental disabilities and denies persons with mental disabilities the protection of the legal capacity as required by the 2012 Persons with Disabilities Act. This is due, amongst others, to the following features of the Mental Disorders Act:

• it’s use of discriminatory and derogatory language to describe and categorise persons with mental disabilities;
• its sanction of detention of persons with disabilities on grounds of their disability, including in criminal detention facilities;
• it’s permissions of psychiatric treatment without informed consent;
• it’s denial of legal capacity to persons with mental disabilities without equal and effective protection of the law; and
• the creation of a two-tier healthcare system depriving persons with mental disabilities with access to mental healthcare services at primary healthcare level and failing to provide adequate and appropriate healthcare and rehabilitation.

On 9 October 2017, the High Court declared a definitional provision of the Act unconstitutional and invalid, criticising the Act on human rights grounds. While declining to grant the full relief sought by the Petitioners,  the Court called for a “thorough review”of the Mental Disorders Act. It further affirmed that all persons with mental disabilities should be treated humanely at all mental health facilities, raising concern with treatment and conditions the Court described as torture and inhumane treatment. The Court further affirmed that all persons with disabilities have a right to receive healthcare services without discrimination and that mental health services should be made available at primary health care level. The Petitioners were represented by Ms Chipo Nkhata and Ms Felicity Kalunga of Mushota and Associates. Disability Rights Watch was admitted as amicus curiae (friend of the court). Disability Rights Watch was represented by Mr Katindo Mwale and Mr Brian Mwanza of the Legal Resources Foundation. Judgment Summary Petition Summary High Court Papers: Petitioners’ Submissions 1st Respondent’s Submissions 2nd Respondent’s Submissions Amicus Curiae Submissions Judgment