The Southern Africa Litigation Centre is worked with Zambia Deaf Youth and Women (ZDYW) in a case challenging the refusal to register a deaf student for tertiary studies. In 2020, Kasongo Kafwembe (the Petitioner), was refused entrance to enroll at the Zambia Centre for Accountancy Studies (ZCAS) University for a degree programme in Computer Network Repair because he is deaf. The reason advanced by the University was that they did not have the facilities to cater for deaf students. The Petitioner was referred to enroll at the University of Zambia or the Copperbelt University as they allegedly had facilities to enable the education of deaf persons. However, neither institution offered the degree programme the Petitioner wanted to enroll in. This case revealed the absence of reasonable accommodations for deaf individuals in some higher learning institutions in Zambia, highlighting the gaps in access to education for persons with disabilities in Zambia.
Background
In November 2020, the Petitioner went to ZCAS University intending to collect application forms to apply for enrolment in the Computer Network Repair degree programme. However, ZCAS University officials who issued the forms refused to issue them because he was deaf. Thereafter, the Petitioner sought the intervention of the University’s Vice Chancellor through his Executive Assistant, who undertook to secure an appointment for him to resolve this issue. However, the Petitioner later received communication that he could not be enrolled in the University because it did not have facilities for deaf students. The Vice Chancellor’s Executive Assistant also advised him to instead enrol with the University of Zambia or the Copperbelt University as the said institutions allegedly had facilities to enable the education of deaf persons. The Petitioner checked with both universities and established that neither institution offered the Computer Network Repair programme, and to the best of his knowledge, only ZCAS had it.
The Petitioner already had the foundational basis to position him to undertake the subject degree programme, having attained a Diploma in Computer Studies from ZIBSIP College after a three (3) year course of study, which he undertook without difficulty. The Petitioner also had industrial work experience as, at the time, he was working with the National Pension Scheme Authority (NAPSA), where he was employed as a Web Chat Agent in its Call Centre.
Case in the High Court
Consequently, the Petitioner filed a Petition in the High Court arguing that ZCAS University’s discriminatory actions find facilitation in the government’s negligent failure to prescribe rules, issue guidelines, and put in place measures to oblige educational institutions not to discriminate against the Petitioner and other persons with disabilities in enrolment for higher education courses as obligated by Section 22 of The Persons with Disabilities Act No. 6 of 2012 of the Laws of Zambia. Section 22 of the Persons with Disabilities Act obligates the State to ensure that the education system is inclusive at all levels and early lifelong learning. The Petition was also anchored on Article 23 (2) and (3) of the Bill of Rights in the Zambian Constitution, which provides for non-discrimination on various grounds which do not include disability.
It was further argued that Zambia is a signatory to the Convention on the Rights of Persons with Disabilities (“UNCRPD”) whose State Parties recognize the right of persons with disabilities to education, which right is to be realised without discrimination and on the basis of equal opportunity. State Parties are obligated by Article 24 of the UNCRPD to ensure an inclusive education system at all levels and lifelong learning is availed to persons with disabilities. In realising this right, the State Parties are supposed to ensure, inter alia, that person with disabilities are not excluded and receive the support required within the general education system to facilitate their effective education. He alleged that his right to protection of the law and protection from discrimination on the grounds of disability had been violated and sought various reliefs, including:
- An order compelling ZCAS University to avail the Petitioner Application Forms for the Degree Programme of Computer Network Repair and not to hinder him from lodging the completed application form;
- A declaration that ZCAS University’s refusal to issue the Petitioner with application forms for enrolment into the degree programme to facilitate consideration of his application was discriminatory and in breach of Article 23 of the Constitution;
- A declaration that the State’s failure to promulgate rules, issue guidelines and put in place measures to ensure non-discrimination of the Petitioner in enrolment in higher education courses violates the Persons with Disabilities Act and the Constitution;
- An Order that the Petitioner be availed Application Forms for entrance into the Degree Programme of Computer Network Repair and the said application be fairly processed for consideration for admission into the programme;
- An order that the State promulgate rules, issue guidelines, and put in place measures to ensure non-discrimination of the Petitioner, as a person with a disability, in enrolment in higher education courses as obligated by the Persons with Disabilities Act; and
- Damages.
Decision of the High Court
On 5 September 2024, the High Court delivered a judgement dismissing the Petition. The Court held that although it was clear that the Petitioner was treated differently on the basis of his disability, it did not amount to discrimination under Articles 23(2) and (3) of the Bill of Rights. The decision relied on a Supreme Court judgement in a similar case involving a Petition by a group of deaf persons who were denied driver’s licences. In that case, the Supreme Court held that discrimination on the basis of disability was excluded in Article 23, and the Petitioners could, therefore, not base their claim on a violation of the Bill of Rights. This was despite acknowledging that another provision in the amended Constitution, Article 266, now had a broader definition of ‘discrimination’. The Court held that Article 266 is inapplicable as it would amount to an amendment of the Bill of Rights, which can only be amended by a Referendum. The High Court, being bound by the decision of the Supreme Court, held that the reliefs were untenable under the mode of commencement used but that the Petitioner could commence a fresh action under the Persons with Disabilities Act if he so wished.
The Southern Africa Litigation Centre (SALC) and Zambia Deaf Youth and Women supported the case and Messrs PNP Advocates provided legal representation.
Judgment
5th September 2024 – High Court Judgement
