On 2 November 2021, the Supreme Court of Zambia heard the appeal in the case of Frankson Musukwa and Others v Road Transport and Safety Agency, an appeal against the dismissal by the High Court of a constitutional challenge to the denial of driving licences to deaf people in Zambia.
Background
On 15 November 2019, the petitioners filed an application in the High Court of Zambia challenging the constitutionality of the application of section 62 as read with sections 59 and 68 of the Road Traffic Safety Act No.11 of 2002 for denying deaf people driving licences. They argued that the sections violated their rights to equality and freedom from discrimination, freedom of movement and privacy as enshrined in the Constitution of Zambia. The application of the law was also not in line with the Persons with Disabilities Act No. 6 of 2012 which provides for the enjoyment of rights for persons with disabilities on the same basis as others, including the right to non-discrimination based on disability, and equal participation in all aspects of life. In addition, the application of the law was not in line with the United Nations Convention on the Rights of Persons with Disabilities (CRPD), to which Zambia is a State Party, and international best practice. Deaf people are routinely issued with driving licenses and are allowed and able to drive in other countries within the SADC region such as South Africa, Botswana, Namibia, and Zimbabwe.
The High Court dismissed the application, finding that the application of the law was not a violation of the petitioners’ right to movement and that the application of the Act, though discriminatory, was justified “to protect”. This, despite the Court acknowledging that the law was not in line with international human rights instruments like the Convention on the Rights of Persons with Disability (CRPD) and that there was expert evidence to show that deaf drivers do not constitute a safety risk for road traffic users.
The petitioners filed an appeal to the Supreme Court of Zambia, arguing that the High Court misdirected itself in law and fact when it held that the application of the Road Traffic Act to deny driving licenses to deaf persons did not violate their right to protection of the law and freedom of movement and that the discrimination against them would reasonably be found to be justifiable.
On 16 May 2024, the Supreme Court of Zambia dismissed the appeal on the grounds that the agency did not infringe on the petitioners’ rights to the protection of the law, freedom of movement, and non-discrimination.
In coming to its decision, the Court held that “the right to protection of the law embraces access to a court of justice established by law,” and since the Petitioners were able to access courts, this right was not infringed. The Court also noted that the right to freedom of movement, which is “concerned with the liberty of the individual to move freely without hindrance,” was not infringed as they were not denied the right to move freely within the Republic of Zambia.
The Court held that Article 23 of the Constitution, which deals with protection against discrimination, excluded discrimination on the basis of disability and that the definition of discrimination under Article 266, which included disability as a ground of discrimination, was not applicable as the Bill of Rights was not amended, which can only happen through consent of the majority through a referendum.
The Supreme Court acknowledged that the proceedings could still be initiated under the protective umbrella of the Persons with Disabilities Act, a crucial legislation safeguarding people with disabilities from discrimination.
The Appellants are represented by Gilbert Phiri of PNP Advocates and supported by the Southern Africa Litigation Centre.
Read our statement here
