The Southern Africa Litigation Centre worked with Zambia Deaf Youth and Women (ZDYW) to challenge the constitutionality of denying driver’s licenses to Deaf persons in Zambia. The case challenged the constitutionality of provisions of the Road Traffic Act No.11 of 2002 that were relied on to deny deaf drivers the issuance of licences based on their deafness.
Background
ZDYW had been concerned for some time that deaf people were being denied driver’s licenses in Zambia despite there being no evidence that deaf people pose any greater danger when driving compared to other drivers. In many SADC countries, deaf people can hold valid driving licenses. Deaf persons possessing international driver’s licenses are permitted to drive lawfully in Zambia but may not obtain Zambian driver’s licenses on the basis of their disability. ZDYW was troubled by this as it was discriminatory that Zambians who are deaf and cannot afford to get international driver’s licenses in countries like South Africa were not allowed to drive. In contrast, deaf foreign nationals possessing international licenses can drive lawfully in Zambia.
Consequently, on 15 November 2019, Frankson Musukwa, on behalf of ZDYW and his own behalf, Wencyslouv Buumba Makondo and Alick Nkhomo (the Petitioners) filed a Petition against the Road Transport and Safety Agency (RTSA) in the High Court of Zambia challenging the constitutionality of the application of Section 62 as read with Section 59 and Section 68 of the Road Traffic Act No.11 of 2002. These sections deny deaf persons from obtaining driver’s licences solely based on being deaf.
The Petitioners sought a determination and declaration that RTSA’s decision to refuse to allow deaf persons to obtain, renew or extend provisional and driver’s licenses in terms of the Road Traffic Act. In particular, RTSA’s refusal to allow the 2nd Petitioner to obtain a driver’s licence despite having been found medically fit to drive by a doctor obtained a provisional driver’s licence, and successfully completed a driving course. The 3rd Petitioner was found medically fit to drive, completed a driving course, obtained a provisional driving licence, and later a driver’s licence. He drove for five years without any collisions or road traffic offences. The 3rd Petitioner’s licence expired, and he obtained a new medical certificate and attempted to renew the licence but was informed that his licence had been erroneously issued to him. RTSA then proceeded to suspend the 3rd Petitioner’s licence on unknown grounds.
Case in the High Court
The Petitioners argued that the RTSA had violated their rights and, by extension, the rights of all deaf persons as guaranteed by the Constitution of Zambia. They also argued that RTSA’s application of Section 62 of the Road Traffic Act to preclude deaf people from obtaining provisional and driver’s licences and renewing driver’s licences unconstitutionally infringes on the rights of deaf people to liberty, protection of the law, freedom of movement, freedom of expression and conscience, right to privacy and property and freedom from discrimination. The application of the law was also not in line with the United Nations Convention on the Rights of Persons with Disabilities (CRPD), to which Zambia is a state party. International best practice stipulates that deaf people are routinely issued driving permits and are allowed to drive in other countries within the SADC region, such as South Africa, Botswana, Namibia and Zimbabwe.
Therefore, the Petitioners sought a determination and declaration that all deaf persons who are medically fit qualify to be issued provisional licences and driver’s licences upon satisfying the requisite tests to assess their driving competence. They also sought an order directing RTSA to commence issuing, renewing, and extending provisional and driver’s licences to deaf persons who are certified medically fit and satisfy the requisite tests to assess their driving competence.
The denial of driver’s licences to persons with hearing impairments violates their right to freedom of movement, their right to equality and freedom from discrimination, freedom of movement and privacy, which are protected rights under the Zambian Constitution. The provisions of the Road Traffic Safety Act were 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.
On 4 June 2021, the High Court of Zambia issued a Judgement dismissing the application. The Court held that applying 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. Even though the court acknowledged that the law was not in line with international human rights instruments such as the CRPD and that there was expert evidence to show that drivers with hearing impediments do not constitute a risk to safety for road traffic users.
Supreme Court
The Petitioners appealed to the Supreme Court, which dismissed the appeal, holding that no constitutional rights were breached and that the Petitioners could use the Persons with Disabilities Act to challenge any violations.
Judgments
High Court of Zambia
Supreme Court Judgment -MUSUKWA AND OTHERS VS RTSA
16 May 2024 – Zambia Supreme Court issues crashing judgment for deaf drivers.
11 June 2021 – Zambia High Court dismisses constitutional challenge to the denial of driving licences to deaf people.
29 Oct 2021 – Denial of driving licenses to deaf people.
Blogs/Articles & Opinions
30 June 2021: A missed opportunity for inclusion- the case of Musukwa and others v RTSA
Case in the News
5 August 2021 AfricanLii – Courts consider litigation by deaf drivers, TV viewers.