UNCRPD Ratification and Domestication Process in Zambia

                                                 A Thinking Paper

William Jennings Bryan: “Destiny is not a matter of chance; it is a matter of choice. It is not a thing to be waited for; it is a thing to be achieved.”

Helen Keller: “I cannot do everything, but I can do something. I must not fail to do the something that I can do.”

Mary Kay Ash: “Don't limit yourself. Many people limit themselves to what they think they can do. You can go as far as you mind lets you. What you believe, you can achieve.”

Abraham Lincoln: “Always bear in mind that your own resolution to success is more important than any other one thing.”

INTRODUCTION

Zambia is geographically a Southern African country and politically in Central Africa. It has about 13 to 14 million people according to the 2010 population and housing census. Zambia is a former colony of Britain, therefore it follows the common law system.
According to the World Report on Disability of 2011, 15% of every country’s population has some form of disability. This translates to close to two million people in Zambia has got some form of disability. However, the 2010 census gives an approximate population of between 350 000 to 400 000 people in Zambia has a disability. This gives a big margin in estimation. If there are close to 2 million people with disabilities in Zambia, then, this is a key population which needs not to be ignored in all national developmental activities and programmes across all sectors.
In this fast growing and developing era of new and high technology, the world is also experiencing a fast growing and developing shift in the way disability is viewed. This era has seen a shift from viewing disability as a charity and medical issue to more of a human rights and social issue. In short, disability is moving from being viewed using the medical model to using the social model.
In this article, we shall explore the medical and social perspectives of disability and look at the principles provided for by the UN Convention on the Rights of Persons with Disabilities. We shall also touch on the legal provision in the case of disability law in Zambia in as far as domestication of the UNCRPD is concerned. We shall then look at the current status of the process of domesticating and implementing the Persons with Disabilities Act of 2012 and of course the process of making the other laws comply with the principles of the UNCRPD.
THE UNCRPD
The United Nations Convention on the Rights of Persons with Disabilities was adopted in December 2006 and came into force on 3^rd May, 2008. Persons with disabilities consider the Convention is a landmark piece of international human rights law. It represents the official recognition of disability as a human rights issue on the international front. The UNCRPD symbolises a radical paradigm shift in conceptualising disability from a medical and charity model to a human rights and social model. It demands a move from viewing persons with disabilities as ‘objects’ of charity, medical treatment and social protection towards viewing persons with disabilities as ‘subjects’ with rights, who have the agency to claim these rights and make meaningful decisions for their lives as active members of society (United Nations, 2010).
The CRPD is the first internationally binding human rights instrument to comprehensively address the rights of persons with disabilities. The UNCRPD does not in any way create new rights for persons with disabilities. It merely seeks to clarify the applicability of existing human rights law in the specific context of disability. It shapes existing human rights law towards addressing the attitudinal and environmental barriers persons with disabilities face.
The CRPD looks at disability as resulting from the interaction of impairments with various barriers which hinders full and active participation in society on an equal basis with the non-disabled majority. This places the CRPD strongly within a social model, which is rights-based, as opposed to a medical model of disability which involves health-oriented legislative instruments. The UNCRPD embraces a social understanding of disability in which the societal constraints and barriers hinder full participation of persons with disabilities and inclusion in society. It looks at disability as not being caused by individual limitations but by the existing barriers in society. It is this understanding that creates the conceptual platform for articulating disability rights.
The text of the CRPD is comprised of twenty-five preamble paragraphs and fifty articles. It includes an introductory set of provisions outlining its purpose (Article 1) and key definitions (Article 2), along with articles of general (cross-cutting) application, to be applied across the treaty text (Articles 3 to 9). The CRPD also enumerates specific substantive rights elaborated across the full spectrum of civil, political, economic, social and cultural rights (Articles 10 to 30). Finally, it establishes a system of monitoring and implementation (Articles 31 to 40) and includes final provisions that govern the operation of the CRPD (Articles 41 to 50).
 The UNCRPD avoids defining ‘disability’ but in its preamble it recognizes it as “an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others....” In its Article 1, the Convention looks at Persons with disabilities as including those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. The Convention puts the ‘blame’ on attitudinal and environment barriers as the ones responsible for hindering persons with disabilities from enjoying and exercising their rights on an equal basis with other persons. This should be the basis of beginning to understand disability rights and how to address them as we review and develop new policies, laws and programmes or indeed as we promote and protect the rights of persons with disabilities.
In view of the above, it is inevitable to state that the barriers cause exclusion and restriction in participation thus leading to discrimination. Article 2 of the UNCRPD defines ‘Discrimination on the basis of disability’ as “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation”.
In the Convention ‘reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
Article 3 outlines the General Principles which include: respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity and accessibility. These general principles should premise the thinking, planning and implementation of systems and processes in the whole governance and development field. These general principles should also influence the development of policies and laws and regulations and their interpretations. It should be borne in mind that these general principles apply to all persons with disabilities including those with psycho-social and intellectual disabilities.
In Article 4 of the Convention, State Parties are obliged to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. In this same Article, governments are obliged to abolish or amend any laws that are not in compliance with the UNCRPD.
Article 12 is all about equal recognition before the law. This Article is interesting because it emphasises the fact that persons with disabilities have the right to recognition everywhere as persons before the law. The Article states that “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. It further says that States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. The exercise of legal capacity applies to all persons with disabilities including those with psycho-social and intellectual disabilities.
The UNCRPD goes on to provide for accessibility, access to justice, the right to maintain fertility, access to health including reproductive health service, inclusive education and participation in public and political life. It promotes international cooperation in the implementation of its principles and provisions. States are also required to submit progress reports in as far as implementation is concerned after two years from the time of ratification.
In applying our laws or in the process of reviewing our policies and laws, we should always take into consideration the spirit of the UNCRPD at all times.
ZAMBIAN DISABILITY LAW
Zambia adopts the common law system and it therefore follows the dualistic system when it comes to ratification and domestication of international human rights instruments. This means that after ratification, the government should further adopt the provisions of the international instruments through enacting a local law that domesticates the instrument. Zamia uses the Cabinet to approve the ratification of international instruments. It domesticates them through Parliament.
The government passed a new disability law in July, 2012 and this law is cited as “The Persons with Disabilities Act of 2012”.
The Act is entitled as an Act to “…promote the participation of persons with disabilities with equal opportunities in the civil, political, economic, social and cultural spheres;  provide for mainstreaming of disability issues as an integral part of national policies and strategies of sustainable development; incorporate a gender perspective in the promotion of the full enjoyment of human rights and fundamental freedoms by persons with disabilities to the physical, social, economic and cultural environment, and to health, education, information, communication and technology; provide for the domestication of the convention on the Rights of Persons with Disabilities and its Optional Protocol and other international instruments on persons with disabilities to which Zambia is party, in order to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity….
The Act is the principle disability law. It states that “Subject to the constitution, where there is any inconsistency between the provisions of any other written law impacting on the rights persons with disabilities as provided in this Act or any other matter specified or prescribed  under this Act with respect to persons with disabilities, the provisions of this Act shall prevail to the extent of the inconsistency.
It Part IV, the Act provides for strategic PLANNING FOR persons WITH DISABILITIES. It also provides for the general function of the Minister of Community Development, Mothers and Child Health. The key functions is to issue regulations and statutory instruments for the implementation of the Act. It further provides for the development of national strategies and Plan.
So, the actual implementation of the Persons with Disabilities Act of 2012 through a comprehensive National Implementation plan supported with adequate resources will actually be the true domestication and implementation of the UNCRPD in Zambia.
GOVERNMENT PROGRAMMES
ZAPD: the government established the Zambia Agency for Persons with Disabilities to administer and coordinate issues concerning disability in Zambia. The establishment of ZAPD is continued by the Persons with Disabilities Act of 2012. The Agency is designated as the focal point in as far as coordinating the implementation of the UNCRPD. Unfortunately it is inadequately resourced in terms of finances, human resource and technology.
MCDMCH: the Ministry of Community Development, Mother and Child Health is designated focal point ministry for matters pertaining to operationalisation of the Persons with Disabilities Act of 2012. The Minister in this ministry is empowered to issue regulations and statutory instruments for the implementation of the Act. The ministry is also responsible for managing the social protection programme through different schemes. This is in an attempt to reduce severe poverty. At the same time, it is in line with Article 28 of the UNCRPD (Social protection and adequate standard of living).
NTD: the National Trust for the Disabled is a trust fund meant to provide micro-loans to persons with disabilities for them to engage in small enterprises. The trust is inadequately funded.
TEVET: the Ministry of Education is running the Technical Education, Vocational and Entreprenuership Training with is aimed at empowering youths with enterprising skills. TEVETA is running an inclusive training programme intended to include youths with disabilities in their training. The programme is yielding some notable results. TEVETA is also in the process of aligning its inclusive training guidelines to the UNCRPD.
CURRENT STATUS
The government process of domesticating and implementing the provisions of the UNCRPD is ongoing. The government has in place the Act of 2012 that provides for the domestication of the UNCRPD and its optional protocol.
The optional protocol has not yet been ratified by the Government of the Republic of Zambia.
There is a National Disability Policy of 2013 in Zambia which has already been approved.
The government has already convened a stakeholder consultative meeting to map the development of the National Disability Implementation Plan whose aim is to implement the provisions of the Act and the UNCRPD. The process is on-going although not adequately funded.
The government is currently finalizing the Mental Health Law that domesticates some components of the UNCRPD concerning persons with psycho-social disabilities. This includes the right to legal capacity (including supported decision making).
The final draft Constitution of Zambia is still with the technical committee appointed by the President. It is yet to handover the draft to the President who is the appointing authority. The draft if it is as last seen last year has provisions on the rights of persons with disabilities including the prohibition of discrimination on the grounds of disability.
THINKING AROUND IMPLEMENTATION
In one of the advocacy training workshops, one member of the disability movement strongly called for the implementation of the UNCRPD by government. I threw back the question to the audience. What do you mean implementation of the UNCRPD? This was received with a chilling silence first. Then a whole lot of debate which left me to conclude that the majority of the members of the disability movement did not understand the whole process of domesticating and implementing the UNCRPD in Zambia.
The implementation is by strengthening ZAPD to effectively and efficiently deliver its mandate as provided for by the Act of 2012.
The other level of implementation is by having the Minister of Community Development deliver on his/her mandate as provided for by the Act of 2012. This includes ensuring that there is a comprehensive strategic implementation plan of the National Disability Policy.
The other level is by having all other ministers, working together with the Minister of Community Development to amend their laws to comply with the UNCRPD. At the same time the ministers should issue statutory instruments to enhance the implementation of the relevant clauses in the Act.
The Human Rights Commission should be designated as the independent monitoring mechanism for the implementation of the UNCRPD with the full participation of persons with disabilities as provided for by Article 33 of the UNCRPD.
Persons with disabilities and their representative organizations to use the provisions of the Persons with Disabilities Act to litigate and use the UNCRPD for persuasion purpose in their litigation actions.

ADVOCACY POINTS AND OPPORTUNITIES

There are still a lot of opportunities to pursue the expediting of the domestication and implementation of the Persons with Disabilities Act of 2012 and the principles of the UNCRPD. These opportunities should not be left hanging without getting hold of them. The DPOs and their allies should quickly grab the ‘low hanging fruits’ now.
The government has already committed itself through many for a that the implementation of the Act and the principles of the UNCRPD are its priority. This is demonstrated through the convening of the stakeholder consultative meeting on the implementation plan which was held about two months ago, in December, in Lusaka. DPOs should ride on this and keep reminding government to expedite the process. The voice of the DPOs should be amplified over this process.
ZAFOD is running a project on the monitoring of the implementation of the UNCRPD. The project has got a qualified full time member of staff trained to scope legislation and monitor reforms towards compliance with the UNCRPD. The project is a proper tool to bring together DPOs to enhance a united and strong voice based on evidence.
ZAFOD and CBM are managing a project whose aim is to ensure the mainstreaming of disability issues. The major output of this project is to have a clear mainstreaming plan. This is a powerful tool to influence quicker change and implementation.
Civil society is strong in calling for the enactment process of the Constitution of Zambia to be clear and quickened. DPOs can ride on this voice and be visible.
PROCESS CHALLENGES
The Zambia Agency for Persons with Disabilities and the National Trust for the Disabled are inadequately funded for them to effectively and efficiently drive the implementation of disability programmes in Zambia. This is aggravated by the appointment of focal point persons in government ministries and departments who are not adequately skilled with disability equality and inclusion knowledge.
There is inadequate pressure from the disability fraternity to compel government to quicken the process of implementing the provision of the Persons with Disabilities Act of 2012 and change the rest of the laws to be in conformity with the principles of the UNCRPD.
There is inadequate skill among the disability fraternity in the interpretation of the UNCRPD in relation to local application, thus weakening the advocacy process.
Many DPOs are economically weak, thus rendering them incapable to carry out effective strategic advocacy. The majority do not even have advocacy strategies strategic plans.
The general civil society is not equipped with adequate knowledge on the Persons with Disabilities Act and the UNCRPD in order to make these be part of their advocacy agenda. ROLE OF THE DPOs
The DPOs have got a direct mandate to participate in the monitoring of the implementation of the UNCRPD. This is as provided for by Article 33 of the UNCRPD which states that “Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process”.
The DPOs may participate fully by being part of the monitoring mechanism put in place by the State or by establishing independent monitoring mechanisms led by civil society by officially recognized by the State as a monitoring mechanism.
In order to effectively monitor implementation, the DPOs need to have the necessary capacity in terms of understanding what they are monitoring and how they are monitoring that which they are monitoring. So, skills development is required within the DPOs.      
CONCLUSION AND RECOMMENDATIONS
1       Persons with disabilities form a significant group of citizens in the population of Zambia and are key in all national interventions meant for economic growth and development. It is in view of this that they need to be fully and effectively included in all programmes and at all levels. This can be effected through the expeditious implementation of the provisions of the Persons with Disabilities Act 2012 and further alignment of the rest of the Zambian laws to the principles of the UNCRPD.
2       There is need to develop regulations that will operationalise the provisions of the Persons with Disabilities Act 2012.
3       The process of developing and finalizing the National Disability Implementation Plan must be quickened with the full participation of persons with disabilities at all states. This national plan will be the base for the inclusion of persons with disabilities in all sectors of national development.
4       The government should ratify the Optional Protocol by December, 2014. The optional protocol provides for a complaint submission procedure to the UN Committee on Disability once ratified. Complaints from countries that have not ratified No suggestions be admitted.
5       The government should quicken the process of enacting the new Constitution of Zambia. Persons with disabilities made UNCRPD driven submissions that need not to be lost. The current Constitution does not include disability as a prohibited ground for discrimination. The last draft of the Constitution that was released to the public last year carried this. It also included sign language as a real language.
6       The government should start the process of submitting the first progress report on the implementation of the UNCRPD to the Committee on Disability. The report is long overdue since it was due in 2012. The DPOs should at the same time develop and submit their shadow report.
7       The government should designate the Human Rights Commission as the independent monitoring mechanism of the implementation of the UNCRPD with the full participation of persons with disabilities. A monitoring committee should be put in place and adequately funded.
8       Disabled People’s Organisation should step up their advocacy work to ensure the State is up to speed with the implementation of disability programmes as prescribed in the Persons with Disabilities and as provided for by the UNCRPD. The DPOs should join the rest of civil society in calling for the enactment of the new Constitution. DPOs should be visible within civil society.

 Hope is There; Never Give Up!

Wamundila Waliuya,
Disability Rights Watch,
February, 2014.
Lusaka, Zambia.
 

Mozambique man with psycho-social disability amputated

A 46 year old man of Maputo was amputated after developing injuries around his wrist due to chaining within the hospital. The named gentleman lives in Maputo, Mozambique with his father, sister and nephew. He has brought his complaint to our Maputo paralegal partners, the Forum for Disability Organisations in Mozambique.

The named man says that he has been living with the psycho-social disability since the age of 24. All along he has been receiving traditional medicine and it kept him stable. In 2013, his traditional healer died. So, he could not continue with his traditional therapy. This led to having him develop a crisis. In December, 2013 he was rushed to Maputo Central Hospital. Just because he tended to be violent, he was tied up with wires around his wrists. He continuously complained about serious pain to the hospital staff but they ignored him. “I remained in pain all the time I was in hospital,” he said in Portuguese.

After some days, he was discharged and released to go home. Upon reaching home, he complained of serious pain so the uncle and sister took him back to the hospital but this time at the surgical section. The doctor prescribed amputation. The gentleman says that since he was experiencing great pain he agreed to be amputated. His two relatives confirmed this. He was amputated.

The gentleman and his relatives want to take action against the hospital for tying him and causing injury, leading to amputation. The Maputo paralegal team is putting together facts to ensure the matter has sufficient legal merit to proceed with court action.

Definitely the man was not supposed to be tied to such an extent as to cause such bodily harm. Someone must account for this. It is for a long time since we have been calling for restraint from medical personnel and the society from subjecting people with psycho-social disabilities when they tend to be violent. The manner in which the said gentleman was treated is equivalent to torture, inhuman and degrading treatment and punishment. His mental and physical integrity was also injured. His liberty and security of person was also injured by these medical personnel. The liberty issue could have been justified but it was extreme and reasonable accommodation should have been provided. Today, the gentleman suffers double impairments, psycho-social and physical impairments. Tragedy! His functional capacity is now restricted and his ability to physically work is now limited. The amputation may cause the aggravation of his mental state.

It is thus very important for governments to put in place laws that recognize people with different mental impairments as people just like any other person. Such mental health laws should outline the rights of people with mental illnesses as they receive mental health care services. Tied, chaining and beating should be banned and considered an offence. Mozambique does not have a mental health law in place. It has a draft Bill but that Bill does not comply with international human rights principles. Other countries in Africa have got colonial era Laws that treat people with mental illnesses as lunatics meant to be kept in prisons. Malawi has a draft Bill which does not comply with international human rights principles. So, what prevails is the colonial law of 1949. Zambia produced a Mental Health Bill this year. It is yet to be submitted to the Ministry of Justice. It somehow attempts to comply in some sections. We would to see this Bill pushed to Parliament in the next sitting for enactment. Let us all stand up to protect the rights of our beloved comrades.

Wamundila Waliuya.

Woman with psycho-social disability to be sterilized

THE issue of the sterilization of a woman with a psycho-social disabilities running on our face book page was raised from Malawi. A mother, working together with a named nurse, intended to have her daughter, who is above thirty, sterilized on the basis of her psycho-social condition. We work with a paralegal organization which reported the matter to us. The organization was given advice to intervene. The mother has since suspended the sterilisation but had vowed to do so despite human rights issues being raised.

The issue of sterilizing girls and women with psycho-social and intellectual disabilities is not new in Africa.

The time has come to stop the scourge. Girls and women with psycho-social and intellectual disabilities are equally recognized as persons before the law and this must remain as such. This should not call for any debate because they are persons. The issue of their condition does not in anyway reduce their personhood. In view of this, they must enjoy respect for their inherent dignity; respect for their mental and physical integrity and freedom to make choices. Right!

The African governments should ensure that girls and women with psycho-social and intellectual disabilities enjoy and exercise their rights on an equal basis with others. This is to comply with the provisions of the Convention on the Rights of Persons with Disabilities (CRPD). In its Article 6, the CRPD states that “States Parties recognize that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms”.

The CRPD recognizes persons with disabilities as persons before the law. In Article 12 it states that, “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. ‘In all aspects of life’ by the way. Legal capacity in this instance means a person has got rights; are able to exercise those rights; have got autonomy, including the freedom to make their own choices; they are independent and can make decisions independently and be able to execute those decisions. I know this has raise your eye balls when it comes to this lady with a psycho-social disability. Or, that other lady with an intellectual disability. Just hold on.

Article 12. (3) of the CRPD says, “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. If a person is unable to communicate their choices, will or preference, then the support they require to do so should be provided. The support may be in form of another person who has had a long relationship with the person with a psycho-social or intellectual disability, and there must be proven trust. This person who gives the support should be able to interpret the choices, will and preference of the person with a disability. But, it is this support which is not there. It is up to the States to begin thinking about this. The civil society should also start pushing for this.

If nothing is done, the sterilization of girls and women with psycho-social and intellectual disabilities will continue. The CRPD continues to state that “States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that: …persons with disabilities, including children, retain their fertility on an equal basis with others”. So, the lady in Malawi has got the right to maintain her fertility. Am I correct?

The same CRPD (Article 25) further says that, “States parties shall: provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes”. If the government and many other NGO provide reproductive and sexual health education to others, why not provide to girls and women with psycho-social and intellectual disabilities? Discrimination!

It is sad that the governments, through their institution, is the first to perpetuate this inhuman and degrading treatment on girls and women with psycho-social and intellectual disabilities. The hospitals are the ones who conduct the operations. I think gynecologists have got international standards on sterilization? Is forced sterilization aloud? We shall remain up to speed to protect the rights of these distinguished girls and women. They need the protection of the law. Infact, the CRPD (Article 5) states that, “States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law”.

So, the lady in Malawi needs support to make a choice on the type of contraception she needs. Not forced sterilisation. Some one can obviously communicate with her. Some one should be able to interpret her choices, will and preference. Maybe the same mother? Or the psychiatry nurse close to her?

Wamundila Waliuya.

Draft Disability Bill in Mozambique

THE government of Mozambique has put in place a technical committee to drive the process of developing a new disability law to be called “The Rights of Persons with Disabilities Bill”. This is a positive move because the rights of persons with disabilities are constantly and consistently being violated with impunity. The disability law in Mozambique will re-enforce the UN Convention on the Rights of Persons with Disabilities which was ratified by Mozambique in 2012. The government of Mozambique has also put in place clear Terms of Reference for the technical committee and a road map for its work. We hope the road map will be ‘walked through’ without any breach.

It is very important for persons with disabilities in Mozambique to ensure that they participate full and effectively throughout the process of developing this new law. The participation should be through their representative organizations and at the same time as individuals. Currently, the Bill is a its ‘raw stage’ and it needs a lot of panel beating in  order to align it to the UN Convention on the Rights of Persons with Disabilities (CRPD). The people of Mozambique should ensure that the law promotes community based rehabilitation; inclusive education; accessibility; participation in public and political life; access to health care and access to justice. The law should also ensure persons with disabilities have got the right to enjoy and exercise legal capacity. The people of Mozambique should make sure they make the law reflect the principles of the CRPD as enshrined in its Article 3. The law should protect persons with disabilities from being denied their liberty on the basis of their disability.

It should also come to the attention of Mozambicans that the new law should at the same time not promote residential segregated schools for learners with disabilities because this contradicts the principles off the CRPD. The first Bill which was presented to the technical committee on Friday, 9^th May promotes special educational needs and residential schools. A better way of putting this to reflect inclusive education should be found. The Bill also has a section which spells out the duties of persons with disabilities. One of such duties tries to say that persons with disabilities should not use their disability to their advantage. This is difficult to understand. What the Bill should do is to promote and protect the rights of persons with disabilities as spelt out its objects. It should not include anything which seems to derogate the given rights. The Bill needs a lot of serious work.

The Bill has got a tight roadmap which starts from January 2014 with the putting in place of the technical committee and end in November, 2014 when it is handed over to the Mozambican Cabinet. The roadmap does not go further to show when the Bill will be in Parliament for enactment. Mozambicans should watch out for why it ends with Cabinet instead of Parliament. It might be stuck in Cabinet or just ‘got lost’. By the way, 2014 is an election year for Mozambique and this could be one of those issues that might be rushed up to Cabinet level and be stuck there because after November, elections would have passed.

Looking at the Bill, you observe that there is need to educate people on the principles and provisions of the CRPD. There need for citizens to understand issues around inherent dignity, autonomy and independence of person. There is also need to understand non-discrimination and equal protection before the law. Issues of legal capacity, inclusive education and community based rehabilitation must be understood to advocate for a law that is in line with the CRPD.

Zambia already has got a law called “Persons with Disabilities Act 2012”. It is very important that citizens, including persons with disabilities, familiarize themselves with this law. It is a good piece of law because it protects persons with disabilities from discrimination on the basis of disability. It also provides for persons with disabilities their right to exercise legal capacity. We all know that the current Constitution of Zambia does not take disability as a prohibited ground for discrimination. But the Persons with Disabilities Act 2012 does so. The last draft Constitution which was being discussed last year also does so. Persons in Zambia should join the many citizens calling for the release of the final Draft Constitution to the public so that they participate in checking whether their issues remain as intact as they submitted them.

Wamundila Waliuya

May 2014.

Sterilization of Women and Girls with Disabilities

 What is Sterilization?

In many parts of the world, women rely on access to a range of methods to control their fertility, including voluntary sterilization. However, too often, sterilization is not a choice. Sterilization is defined as “a process or act that renders an individual incapable of sexual reproduction.”

Forced sterilization occurs when a person is sterilized after expressly refusing the procedure, without her knowledge or is not given an opportunity to provide consent. Coerced sterilization occurs when financial or other incentives, misinformation, or intimidation tactics are used to compel an individual to undergo the procedure. Women with disabilities are particularly vulnerable to forced sterilizations performed under the auspices of legitimate medical care or the consent of others in their name.

Background

Systemic prejudice and discrimination against women and girls with disabilities continues to result in widespread denial of their right to experience their sexuality, to have sexual relationships, and to found and maintain families. The right to bodily integrity and the right of a woman to make her own reproductive choices are enshrined in a number of international human rights treaties and instruments. However, throughout the world, an alarming number of women and girls with disabilities have been, and continue to be, denied these rights through the practice of forced sterilization. Sterilization is an irreversible medical procedure with profound physical and psychological effects. Forced sterilization is an act of violence, a form of social control, and a violation of the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment.

Across the globe, forced sterilization is performed on young girls and women with disabilities for various purposes, including eugenics-based practices of population control, menstrual management and personal care, and pregnancy prevention (including pregnancy that results from sexual abuse). The practice of forced sterilization is part of a broader pattern of denial of the human rights, including reproductive rights of women and girls with disabilities. This denial also includes systematic exclusion from comprehensive reproductive and sexual health care, limited voluntary contraceptive choices, a focus on menstrual suppression, poorly managed pregnancy and birth, involuntary abortion, and the denial of rights to parenting. These practices are framed within traditional social attitudes that characterize disability as a personal tragedy or a matter for medical management and rehabilitation. The difficulty some women with disabilities may have in understanding or communicating what was done to them increases their vulnerability to forced sterilization. A further aggravating factor is the widespread practice of legal guardians or others making life-altering decisions for persons with disabilities, including consenting to sterilization on their behalf.

In many countries, the practice of forced sterilization continues to be debated and justified by governments, legal, medical, and other professionals, and family members and carers as being in the “best interests” of women and girls with disabilities. However, arguments for their “best interests” often have little to do with the rights of women and girls with disabilities and more to do with social factors, such as avoiding inconvenience to caregivers, the lack of adequate measures to protect against the sexual abuse and exploitation of women and girls with disabilities, and the lack of adequate and appropriate services to support women with disabilities in their decision to become parents. Such measures include making sexual education and parenting programs available and accessible, training in self defense and assertiveness, providing the necessary personal assistance and support services in the community that will reduce the risk of sexual abuse, monitoring closed settings in which women and girls with disabilities are often placed (such as orphanages, psychiatric hospitals, and institutions), and providing alternative methods of contraception which are not irreversible or as intrusive as sterilization.

Safeguards to prevent forced sterilization should not infringe the rights of women with disabilities to choose sterilization voluntarily and be provided with the necessary supports to ensure that they can make and communicate a choice based on free and informed consent.

International Human Rights Standards

The Convention on the Rights of Persons with Disabilities provides a basis for upholding the rights of per- sons with disabilities and contains specific articles of relevance to the issue of involuntary sterilization. Article 23 reinforces the right of people with disabilities to found and maintain a family and to retain their fertility on an equal basis with others. Article 12 affirms the right of persons with disabilities to recognition everywhere as persons before the law and to enjoy legal capacity on an equal basis with others, including access to the support they may require to exercise their legal capacity. Article 25 clearly articulates that free and informed consent should be the basis for providing health care to persons with disabilities. The Committee on the Rights of Persons with Disabilities recommended “the abolition of surgery and treatment without the full and informed consent of the patient” in one of its first recommendations to a state party.

The Committee on Economic, Social and Cultural Rights has stated that forced sterilization of girls and women with disabilities is a breach of Article 10, protecting the family, of the International Covenant on Economic, Social and Cultural Rights.10 The Human Rights Committee addresses the prohibition of forced sterilization in the International Covenant on Civil and Political Rights through Article 7, prohibiting torture, cruel, inhuman or degrading treatment; Article 17, ensuring the right to privacy; and Article 24, mandating special protection for children.11 The Committee Against Torture has recommended that States take urgent measures to investigate promptly, impartially, thoroughly, and effectively all allegations of involuntary sterilization of women, prosecute and punish the perpetrators, and provide the victims with fair and ad- equate compensation.12

The Committee on the Rights of the Child has identified forced sterilization of girls with disabilities as a form of violence13 and noted that State parties to the Convention on the Rights of the Child are expected to prohibit by law the forced sterilization of children with disabilities.14 The Committee has also explained that the principle of the “best interests of the child” cannot be used to justify practices which conflict with the child’s human dignity and right to physical integrity.

The Committee on the Elimination of Discrimination against Women has considered forced sterilization a violation of a woman’s right to informed consent, infringing on her right to human dignity and physical and mental integrity.16 The Committee has clarified that except where there is a serious threat to life or health, the practice of sterilization of girls, regardless of whether they have a disability, and of adult women with disabilities in the absence of their fully informed and free consent, should be prohibited by law.17

The United Nations Special Rapporteur on violence against women has asserted that forced sterilization is a method of medical control of a woman’s fertility. It violates a woman’s physical integrity and security and constitutes violence against women.