Abusive Laws and the fight for reform
By Annabel Raw
You only have rights if you are a person: How Zambia is legislating away the rights of persons with psychosocial disabilities
“I cannot accept people to treat me like an animal. It hurts. It pains me. How can I survive if I cannot work? To deny people their rights is to challenge their humanity.” Golden Mwewa, 2018
ABUSIVE LAWS AND THE FIGHT FOR REFORM
For almost 20 years, persons with psychosocial disabilities in Zambia have fought to reform an archaic colonial law, the 1949 Mental Disorders Act. The Act allowed for persons with psychosocial disabilities to be detained indefinitely, on the basis of their disabilities, in prisons and overcrowded and unhygienicpsychiatric detention facilities. Under the law, places of psychiatric detention like Chainama Hills Mental Hospital, became institutions of abuse and deprivation rising to the level of torture. Victims of the system lacked effective legal recourse.
Without access to mental health and support services in their communities, persons with psychosocial disabilities were left either helpless or forced to submit to the institutionalised system of abuse. This has rendered social, economic and political participation for persons with psychosocial disabilities in Zambia almost impossible, confining people to lives of dependence and poverty.
Activists in Zambia have been making steady progress, however, and the Zambian government has shown a measure of will for reform.
In 2010, Zambia signed on to the United Nations Convention on the Rights of Persons with Disabilities(CRPD).
In 2012, Zambia enacted the Persons with Disabilities Act – a law that (mostly) domesticates the CRPD and which details the rights of persons with disabilities generally.
Despite this progress, the abuse and exclusion of persons with psychosocial disabilities under the Mental Disorders Act has remained the accepted exception in law.
CHALLENGING THE LAW IN COURT
I came to learn of this struggle for reform through my work at the Southern Africa Litigation Centre (SALC). SALC worked with organisations like Disability Rights Watch, Validity Foundation and the law firm Mushota and Associates, to support three persons with psychosocial disabilities to petition the High Court in 2017 to declare the Mental Disorders Act unconstitutional.
Getting to know the three petitioners – Golden Mwewa, Mulima Kasote and Sylvester Katontoka – helped me to appreciate how dehumanising the law is that governs their lives.
Golden, the first petitioner, is a gospel musician and songwriter. Golden sings about the painful circumstances of his life and his struggles with addiction. His music references the burdens of disability-related stigma and his gentle gratitude to those who have shown him kindness. Golden’s songs, like him, are tender and complex.
Mulima, the second petitioner, is thoughtful and sage, a calming presence. When he is having a bad day, his loving wife gives him the support he needs to get through his day. On easier days when he is feeling better, he works as a graphic designer and supports others as a psychosocial counselor.
Sylvester, the third petitioner, is a brilliant and insightful activist. He is the kind of person whose words, dense with meaning, leave you unravelling the poignancy of his thinking for days after speaking with him. Sylvester founded the Mental Health Users Network of Zambia (MHUNZA) where he remains as the organisation’s director.
L-R Golden Mwewa, Mulima Kasote and Sylvester Katontoka, the 1st-3rd petitioners
All three petitioners have faced extended periods of detention under the Mental Disorders Act on the sole basis of their disabilities. They attested to harrowing abuse in psychiatric detention facilities in their court case: being denied healthcare after being beaten, going without food, being chained in isolation, and being forced to take medication that made them feel worse. They explained how the legal regime isolated them from their communities and families and subjugated them as second-class citizens.
The State didn’t deny any of the abuse. It did not oppose their petition but argued that the Court shouldn’t declare the whole Act invalid because it had prepared a Bill that would be enacted shortly. The State put on record that it would repeal the Mental Disorders Act in full compliance with the CRPD.
With this reassurance, the Court declined to declare the Act invalid in its entirety. Instead, it declared only one, categorising provision of the Act unconstitutional and declared that the rights of persons with disabilities should be respected. Cautious not to overstep a strict separation of powers in its orders, the Court’s concerns about the law nevertheless came out strongly in its reasoning. The Court called for the “thorough review” of the Mental Disorders Act. It stated that the Act was “highly offensive, derogatory and discriminatory” and not drafted with human rights and fundamental freedoms in mind.
Through the judgment, Golden, Mulima and Sylvester had made valuable progress, even if the bulk of the Act remained intact.
The partial nature of the petitioners’ victory became apparent almost immediately, however. Shortly after the judgment, Golden was arrested at MHUNZA’s offices, ostensibly on the premise of the Mental Disorders Act. Armed police jumped MHUNZA’s walls and seized him at gunpoint. We couldn’t find Golden until weeks later when he was released from Chainama Hills Hospital, thin and distressed.
BREAKING THE PROMISE FOR REFORM
Throughout 2018, the government repeatedly promised to table “a mental health bill” but failed to make a version public. Emboldened by the judgment, Golden, Mulima, Sylvester and other activists continued to press their government in good faith to see this promised CRPD-compliant Bill.
Sylvester, Golden, Mulima, disability rights activists and representatives of the Ministry of Health in Lusaka, May 2018
Years before, in 2014, organisations of persons with disabilities had actively participated in consultation processes in developing a Bill that they believed embodied the spirit of the CRPD and protected their rights. With the process since 2014 shrouded in secrecy and with no version being made public in the years intervening, there was no way to tell how badly the contents of the Bill had regressed from its promising origins.
Finally, on 13 February 2019, the Solicitor General Gazetted the Mental Health Bill. The contents of the Bill were shocking. While paying occasional lip-service to the CRPD and human rights, its provisions explicitly undermined those rights. While it repealed the Mental Disorders Act, it preserved all the detention orders made under its provisions. Most troubling was the Bill’s foundation in section 4, a provision which denied legal capacity to persons with psychosocial disabilities.
Dispensing with usual time frames for public consultation, a few organisations were given short notice to appear before a Parliamentary Committee to present submissions on the Bill. Despite being given (in some cases) a mere weekend to prepare, MHUNZA, Sylvester and other disability law experts like Disability Rights Watch, presented detailed and compelling submissions to the Parliamentary Committee. They called for a fundamental reform of the Bill and section 4 in particular through a consultative process. SALC, international human rights groups, disability law experts and organisations of persons with disabilities expressed their solidarity with local activists’ calls for meaningful consultation to review the Bill in line with the CRPD.
Just a few days after the Committee’s hearings closed, the Committee presented its report to Parliament recommending to send the Bill back for redrafting. The National Assembly unanimously adopted the Committee’s recommendations.
Golden and Sylvester were at Parliament that day. They were thrilled. Sending the Bill back for redrafting was an opportunity for the government to engage in proper consultation in line with the core mantra of the disability rights movement, “nothing about us without us!”.
Sylvester and Golden with disability rights activists at Parliament, March 2019
To their immense disappointment, following a few weeks of silence and without any further consultation, a Bill was tabled for a final reading in April, enacted and assented to as the Mental Health Act 6 of 2019. The final version had but one word changed from the original Bill – a change of the word “neuroleptic” medication to “psychiatric” medication in a provision detailing medical services. Everything else was left unchanged – no least, the controversial section 4.
THE PERIL OF SECTION 4
Section 4 of the (now enacted) Mental Health Act is poorly drafted and difficult to understand.
In essence, it says that persons with psychosocial disabilities who are considered to lack the ability to make an “independent decision” (that is to say, lacking “mental capacity” in terms of the Act) are not entitled to enjoy their right to legal capacity and are legally disqualified from performing a function that requires legal capacity. If, for example, Mulima needed his wife’s support to help him make a decision on a day when he was struggling, he could be deemed to lack mental capacity and therefore to lack legal capacity.
There is no need for a court order in order for an individual decision-maker to deprive you of your legal capacity. But if a court does declare you to “not have legal capacity” under section 4, you become “disqualified” for all legal purposes.
It’s possible to read the provision without immediately grasping its full implications. But its effects are sweeping and dangerous and entirely at odds with human rights.
WHY DOES LEGAL CAPACITY MATTER?
As explained in the CRPD, legal capacity is an inherent human right. It is the right to be recognised as a person in law – to be a subject of rights and duties.
It involves the ability to make legally binding decisions and to enter into legal relationships with people. In line with the fundamental right to equality before the law, every human person has a right to enjoy their legal capacity.
Under human rights law, States may not deny a person’s right to enjoy their legal capacity on the basis of their mental capabilities or disability as done in section 4 of the new Act.
Mental capacity is something that varies in all people. Every person’s ability to understand information and process that information to make decisions is different. My abilities are different to yours. That difference should not be a basis on which to deny either of us our inherent human right to exist as a person in law.
As with variation in individuals’ mental capacities, different people may need different levels of support to make decisions at different times in their lives. The CRPD recognises therefore that a support person may, for example, assist a person with a psychosocial disability to understand or communicate a decision during a time of crisis and to make a decision in line with the person’s will and preferences. Their role is not to make decisions on someone else’s behalf or to substitute the will of the individual as in the case of guardians or proxies. The CRPD also requires States to implement certain safeguards to protect against the abuse of the support person’s role.
Contrary to the CRPD, section 4 of the Mental Health Act establishes a system of guardianship where you are deemed to lack legal capacity to allow a third person to make all decisions on your behalf without any effective safeguards to ensure your will and preferences are respected.
The effect is devastating.
Without legal capacity, you have no right to have rights. You have no right to decide what happens to your body – whether you want to take medication, whether you want to undergo invasive and risky surgery, whether you want to have sex, or where you want to live. Without legal capacity, you can’t exercise legal rights of ownership – you can’t spend your own money or decide what happens to your property. Without legal capacity, you can’t rent a house, open a bank account, or get married.
Without legal capacity, someone like Sylvester could not continue to function as the director of a non-profit organisation like MHUNZA, an organisation which he founded.
MAKING PEOPLE WITH PSYCHOSOCIAL DISABILITIES POLITICALLY INVISIBLE
If the dangerous consequences of section 4 are not immediately apparent, the legislature has wasted no time in enforcing its drastic implications by cross-referencing the Mental Health Act in a slew of new laws.
A cynical example is the newly-enacted National Dialogue Act. This Act gives effect to a critical process in Zambia’s political future that will be developing electoral and constitutional reforms. In establishing a process to determine who participates and is represented in the democratic reform process, the Act references section 4 of the Mental Health Act to disqualify persons with psychosocial disabilities from participating.
With these seemingly small provisions, persons with psychosocial disabilities are being politically sterilised and erased. The stake of Zambian citizens like Golden, Mulima and Sylvester in their country’s future is being dissolved.
Without the right to have rights, Golden, Mulima and Sylvester have a shrinking recourse to assert their human rights as persons and to do the very things that define us as human beings – to make decisions that determine how we live our lives; to be a part of a community. This is not just regressive and a betrayal of the Zambian government’s promises of reform but a deep loss to Zambian society, which only stands to be enriched by the immense contributions that talented and passionate people like Golden, Mulima and Sylvester have to make.
A VISION FOR EQUALITY AND INCLUSION
When working with the petitioners on their court case, Sylvester was insistent with his lawyers that he, Golden and Mulima be involved and in control of all aspects of their case. By living the mantra of the disability rights movement (“nothing about us without us!”) his insistence on our diligence as lawyers in including him was about more than just ensuring the substance of the legal arguments spoke to the petitioners’ interests: their participation itself was an act of citizenship, empowering their claim as persons entitled to rights. Sylvester said:
“Our participation is based on our belief that all people are entitled to a say in the decisions that affect us. Recognising this fact, it is about using and organizing our sources of power to claim our rights.”
I believe we all have so much to gain from Golden, Mulima and Sylvester’s leadership and from the kind of just and empathetic society that is obtainable when persons with psychosocial disabilities are embraced as equal members of our communities. And it’s not too late for the Zambian government to fulfill its promises for a CRPD-compliant law. An inclusive and consultative process should be urgently convened to amend the flaws in the Mental Health Act. In the meanwhile, parliament should urgently repeal section 4 in its entirety.
[*The term “psychosocial disability” is used here to refer to the disabilities of people with either diagnosed or perceived mental health conditions, which in interaction with various social barriers, may hinder their full and effective participation in society on an equal basis with others.]