AS ZAMBIA goes to the polls on January 20, 2015 we publish an excellent legal analysis of the electoral process and the participation of persons with mental disabilities.
Mental Health Users Network of Zambia
(MHUNZA)
The Rights to Decide and Participate in Elections by
Persons with Mental Disabilities
An Analysis of Legislation Pertaining to
the Electoral Process in Zambia
Supported by the Open Society Initiative of Southern
Africa
OSISA
Mental
Health Users Network of Zambia
P.
O. Box 34141,
Plot
47/D Mansa Road Emmasdale
Lusaka
Cell:
+260954176298
Phone: +260 211 240532.
Lusaka
Email: mhunza@coppernet.co.zm
1.0 INTRODUCTION
1.1 Brief
Background
1.1.1 Mental
Health Users Network of Zambia (MHUNZA) is a non-governmental organization
formed in 2000 and legally registered with the Registrar of Societies on the 02nd
January 2002 under registration number ORS/102/35/2672.
1.1.2 MHUNZA
was formed by four visionary persons who had experienced mental health problems
and had an experience with the mental health system. Over the years MHUNZA has
taken up the role of identifying the needs and priorities of persons with
mental disabilities, participating in the planning, implementation and
evaluation of services and measures concerning lives of persons with mental
disabilities and to contribute to public awareness and advocate for change.
1.1.3 MHUNZA
envisions a society free of stigma and discrimination against persons with
mental disabilities.
1.1.4 MHUNZA’s
mission is to advocate and promote the human rights of persons with mental
disabilities in order to minimize their vulnerability to stigma and
discrimination and enhance their full and equal enjoyment of their human rights
and fundamental freedoms.
1.1.5 In
2012-13, MHNZA carried out a research to establish laws and factors that
incapacitated persons with mental disabilities from exercising their legal
capacity. One leading area where they needed to exercise their legal capacity
but were denied was the area of participation in the electoral process. In view
of that evidence, MHUNZA decided to seek funds in order to influence law
reforms in the field of elections.
1.2 Purpose
of this Desk Review
1.2.1 The
purpose of this desk review is to establish the actual pieces of law that
affect persons with mental disabilities in exercising their legal capacity when
it comes to the electoral process. The review will be used as an evidence base
for MHUNZA to influence law reforms and change of attitudes and practices in
the field of elections in Zambia.
1.2.2 MHUNZA
members need to understand what the law says before they actually go into
advocacy. They also need to check the gaps in the legal system and electoral
processes to mobilize support from other stakeholders. Thus, this desk review
is necessary.
1.3 Methodology
1.3.1 The
view will be purely qualitative and will draw on the literature from the
targeted laws.
1.3.2 The
main targeted laws are the Constitution of Zambia; Electoral Act of Zambia;
Mental Disorders Act and the Persons with Disabilities Act.
2.0
THE CONVENTION ON THE RIGHTS
OF PERSONS WITH DISABILITIES (CRPD)
2.1
The United Nations
Convention on the Rights of Persons with Disabilities was adopted in December
2006 and came into force on 3rd 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).
2.2 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.
2.3
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 for
persons with mental disabilities.
2.4 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 mental disabilities from enjoying and exercising their
rights on an equal basis with other persons. This should be the basis of
beginning to understand mental disability rights and how to address them as we
review and develop new laws or indeed as we promote and protect the rights of persons
with mental disabilities.
2.5 In view of
the above, it is inevitable to state that the barriers cause exclusion and
restriction in participation in the electoral process, 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”.
2.6
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.
2.7
Article 3 (General Principles) of
the CRPD outlines the following: “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;
accessibility...”. All these principles apply to persons with mental
disabilities when it comes to participation in the electoral process.
2.8
The general obligation part
(Article 4) states that, “States Parties undertake 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. To this end, States Parties undertake: to adopt all appropriate
legislative, administrative and other measures for the implementation of the
rights recognized in the present Convention; to take all appropriate measures,
including legislation, to modify or abolish existing laws, regulations, customs
and practices that constitute discrimination against persons with disabilities.
2.9 Article
5 of the CRPD is on equality and noon-discrimination. It says 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. It goes on to state that States Parties shall prohibit all
discrimination on the basis of disability and guarantee to persons with
disabilities equal and effective legal protection against discrimination on all
grounds.
2.10
Article 12 is all
about equal recognition before the law. This Article is interesting because it
emphasizes 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 mental disabilities.
2.11
The right to
participate in public and political life is guaranteed in Article 29 of the
CRPD. Article 29 states that States Parties shall guarantee to persons with disabilities political rights and the opportunity to
enjoy them on an equal basis with others, and shall undertake to: ensure that
persons with disabilities can effectively and fully participate in political
and public life on an equal basis with others, directly or through freely
chosen representatives, including the right and opportunity for persons with
disabilities to vote and be elected.... The Article says this could be done by
States “ensuring that voting procedures, facilities and materials are appropriate,
accessible and easy to understand and use; protecting the right of persons with
disabilities to vote by secret ballot in elections and public referendums
without intimidation, and to stand for elections, to effectively hold office
and perform all public functions at all levels of government, facilitating the
use of assistive and new technologies where appropriate. The Article goes on to
state that the States should ensure participation by “guaranteeing the free
expression of the will of persons with disabilities as electors and to this
end, where necessary, at their request, allowing assistance in voting by a
person of their own choice.
2.12
In applying our laws or in the process of
reviewing our laws, we should always take into consideration the spirit of the
UNCRPD at all times. Persons with mental disabilities are recognized by the
CRPD as can be seen in Article 1 and all the principles and provisions of the
CRPD apply to them on an equal basis with other people.
3.0 ZAMBIA
AGENCY FOR PERSONS WITH DISABILITIES
3.1 Establishment
of the Agency
3.1.1 The
Zambia Agency for Persons with Disabilities was established in 1996 through the
repealed Persons with Disabilities Act of 1996. It was then continued through
the new Persons with Disabilities Act of 2012.
3.1.2
The Persons with Disabilities Act 20112
establishes the Agency though the title section which states that:
“An Act to continue the existence of the
Zambia Agency for Persons with Disabilities and define its functions and
powers; promote the participation of persons with disabilities with equal
opportunities in the civil, political, economic, social and cultural
spheres....”
The Agency
is established under the Ministry of Community Development, Mother and Child
Health.
3.2 Functions
of the Agency
3.2.1 The
Agency is loaded with many functions. The Persons with Disabilities Act 2012
provides for these functions. The functions of the Agency includes; to plan,
promote and administer services for persons with disabilities; to develop and
implement measures to achieve equal opportunities for persons with disabilities
by ensuring , to the maximum extent possible, that they obtain education,
employment, participate fully in sporting, recreation and cultural activities
and are afforded full access to community and social services; and to promote
research into all aspects of disabilities. The other functions are to promote
public awareness in all aspects of disabilities: to recommend to any state
organ or institution any measures to prevent discrimination against persons
with disabilities: and to identify provisions in any law that hinders the
implementation of the Act, and any policies and national strategies on disability and recommend necessary reforms
to the government.
3.3 Structure
of the Agency
3.3.1 The
Agency is headed by the Director General who is the Chief Executive Officer of
the organization. Under the Director General are different Directors which
include Director of Administration and Finance and Director of Research and
Rehabilitation.
3.3.2 Below
these officers are several other officers supporting the Directors. Each of the
ten provinces has got a Provincial Coordinator with District Coordinators in
each of the districts. The Director General is answerable to the Guard. The
Board elects its own Chairperson and Vice Chairperson. The whole Board is
appointed by the Minister of Community Development, Mother and Child Health.
3.4 Strengths
and Weaknesses of the Agency
3.4.1 The
Agency is well placed since it is established by an Act of Parliament. It has
such a structure that it could coordinate all issues regarding to persons with
disabilities. It is the focal point when it comes to matters of coordinating
the implementation of the UNCRPD. Therefore, the Agency carries the strength to
ensure elections in Zambia include persons with mental disabilities.
3.4.2 However,
the Agency has got some weaknesses. The biggest challenge is that it wholly
depends on funding from the State. It does not in any way generate its own
funds. The Agency also does not have any human resource to handle coordination
matters concerning persons with mental disabilities. It therefore has got no
capacity to champion law reforms which are inclusive of persons with mental
disabilities.
4.0 ELECTORAL
COMMISSION OF ZAMBIA
4.1 Establishment
of the ECZ
The Electoral Commission of Zambia was
established by the Electoral Act of 1991 which was repealed by the Electoral
Act of 2006. So, it is an independent body established by an Act of Parliament.
4.2 Strengths
and Weaknesses of the Commission
4.2.1 The
strength of the Commission is that it is an independent body established y an
Act of Parliament. It has the powers to make independent decisions when it
comes to the inclusion of persons with mental disabilities in elections. It
also has got access to ZAPD another State organ mandated t advise. The
Commission is responsible for voter education and aiming of all voter educators
and lections officers.
4.2.2 On
the other hand, the Commission is weakened by the Electoral Act which
discriminates persons with “unsound mind”. The Commission does also not have
human resource adequately trained on matters concerning mental disability.
5.0 PRESENTATION
OF THE LAWS
5.1 The
Constitution of Zambia
5.1.1 The
Constitution of Zambia, in its Part II on citizenship (As amended by Act No. 18
of 1996) explicitly denies citizenship to persons deemed as of unsound mind. In
paragraph (2) of this Part, the Constitution says, “An application for registration as a citizen under this Article shall
not be made by or on behalf of any person who, under any law in force in
Zambia, is adjudged or otherwise declared to be of unsound mind”.
5.1.2 PART
III of the constitution focuses on the PROTECTION OF THE FUNDAMENTAL RIGHTS AND
FREEDOMS OF THE INDIVIDUAL but the protection of the right to personal liberty
is taken away in the case of a person who
is, or is reasonably suspected to be, of unsound mind, addicted to drugs or
alcohol or a vagrant, for the purpose of his care or treatment or the
protection of the community.
5.1.3 The
constitution as amended in 1996 indicates under Part V 65, paragraph 1(b) A person
shall not be qualified to be elected as a member of the National Assembly if
among other reasons, “that person is
under any law in force in Zambia, adjudged or otherwise declared to be of
unsound mind”. The law further goes on to disqualify an MP from remaining
MP if he or she is declared f unsound mind. The Constitution of Zambia further
bars anyone who has been declared of unsound mind from voting.
Part 13 of the constitution on chiefs
and house of chiefs prohibits any traditional leader who is declared as of
unsound mind from being a member of the house of chiefs. It further bars anyone
who is declared of unsound mind to hold any other Constitutional office
including that of the President of the Republic.
5.2 The
Electoral Act of Zambia
5.2.1 The
Electoral Act of 2006 was assented to on 12th May. It is an Act to provide for a comprehensive
process for elections to the office of President and to the National Assembly;
to empower the Electoral Commission of Zambia in matters relating to elections
and enable the Commission to make regulations providing for the registration of
voters and for the manner of conducting elections; to provide for offences and
penalties in connection with elections; to provide for the appointment of
conflict management officers; to provide for election petitions and the hearing
and determination of applications relating to elections to Parliament.
5.2.2 Section
7 (d) (Disqualification of registration as a voter) states “No person shall be registered as a voter, who...under any law in force
in Zambia, is adjudged or otherwise declared to be of unsound mind, or is
detained under the Criminal Procedure Code during the pleasure of the
President”.
5.2.3 Section
24 (a) (Special vote) in sub-paragraph (1) says that “The Commission shall
allow a person to apply for a special vote if that person cannot vote at a
polling station in the polling district in which the person is registered as a
voter, due to that person’s physical infirmity or disability or pregnancy”.
5.2.4 The
Electoral Act in its section 60 (2) (Assistance to certain voters) states that
a person may assist a voter in voting if the voter requires assistance due to a
physical disability, the voter has requested to be assisted by that person and
the presiding officer is satisfied that, that person has attained the age of 18
years.
5.3 The
Persons with Disabilities Act
5.3.1
“The Persons with Disabilities is entitled as
an Act to continue the existence of the Zambia Agency for Persons with
Disabilities and define its functions and powers; promote the participation of
persons with disabilities with equal opportunities in the civil, political,
economic, social and cultural spheres. Furthermore, it is an Act to 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. The Act also to provide for the regulation and registration if
institutions that provide services to persons with disabilities and
organisation of, and for persons with disabilities; continue the existence of
the National Trust Fund for persons with disabilities; 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….
5.3.2
In Part 2,
section (5) the Act states that “every person has a duty to uphold the rights
of persons with disabilities and respect and safeguard the dignity of persons
with disabilities”. In section (6) the Act gores on to state that “a person shall not discriminate against a
person with disability. It also says that …a person with disability shall not
be deprived of the right to choose their place of residence, to live with
person’s family or the right to participate in social, political, economic,
creative or recreational activities. In section 8 (1) the Act recognizes that
“a person with disability shall enjoy legal capacity on an equal basis with
others in all aspects of life”.
5.3.3
Division 6 of the Persons with Disabilities
Act is on public and political life. Section 51 states that “the minister shall
take measures t ensure that the persons with disabilities effectively and fully
participate in the political and public life on an equal basis with others,
directly or through freely chosen representatives, including the right and
opportunity for persons with disabilities to vote and to be elected…”.
5.3.4
Sub-section (a) of section 51 gives powers to
the Minister to allow persons with disabilities to participate fully by
ensuring that voting procedures, facilities and materials are appropriate,
accessible and easy to understand and use: and by (b) Protecting the rights of
persons with disabilities to vote by secret ballot in elections and public
referenda without intimidation and to stand for election, to effectively hold
office and perform all public functions at all levels of government, facilitate
the use of assistive and new technologies, where appropriate.
5.4 Mental
Disorders Act and the draft Mental Health Bill
5.4.1 The
Mental Disorders Act of 1951 is old and it promotes the medical model of
approaching mental health services. It refers to persons with mental
disabilities as idiots and imbeciles. It further promotes the detention of
people suspected to have ‘mental disorders’ and may be a danger to themselves
and society. It does not allow them to participate in any of the public and
political life activities. It advocates for institutionalization in psychiatric
centers.
5.4.2 The
draft Mental Health Services Bill of 2014 attempts to look at mental health
from the social model point of view. It brings out the right to supported
decision making. It also promotes the right to legal capacity and assisted
decision making in accessing health services. It strongly advocates for
community mental health services thus allowing persons with mental disabilities
in participate in public and political life activities.
6.0 BRIEF
DISCUSSION
6.1 The
Constitution of Zambia
6.1.1 The
current Constitution of Zambia still has some aspects of limiting persons with
mental disabilities from fully and effectively participate in public and
political life as articulated by Article 29 of the UNCRPD. Persons with mental
disabilities has got the right to nationality and the basis of nationality is
citizenry. The Constitution still states that people with “unsound mind” may
not apply for citizens in Zambia. Citizenship is the pillar for free and full
participation in matters of political life including voting and being voted in
to office.
6.1.2 The
Constitution goes on to deny people of “unsound mind” from voting, being voted
into political office including as an MP, councilor and President. It also
excludes people of “unsound mind” from entering the house of chiefs even if
they are a ruling chief in their area.
6.1.3 The
Constitution is directly discriminatory in its text according to the definition
of ‘discrimination on the basis of disability” given in the UNCRPD. The
Constitution s clear on distinction, exclusion and restriction on the basis of
disability.
6.1.4 Persons
with mental disabilities are full citizens of Zambia despite their disability.
They have got the right to participate in public and political life on an equal
basis with others. They must be recognised as persons before the law everywhere
on an equal basis with others. They have got the right to enjoy legal capacity
in all aspects of life. Therefore, they have got the right to vote and be voted
into political office. They also have got the right to access the support they
may need in exercising the right to vote or being voted into office.
6.2 The
Electoral Act of Zambia
6.2.1 The
Electoral Act has got some shortcomings too. It explicit does not allow anyone
who is declared of “unsound mind” to be registered as a voter. Thus, if one is
denied the right to be registered, they are denied the right to vote. This is
again direct discrimination on the basis of disability. While the polling
station officers may suspect a person to be having a mental disability and
allow such a person to vote, the Act requires thus such a person be examined
before they are allowed to register.
6.2.2 In
our many surveys as MHUNZA, reports indicate that the denial of legal capacity
is at community level. In this instance, it is the law.
6.3 The
Persons with Disabilities Act
6.3.1 The
Persons with Disabilities Act is a new law of 2012. It domesticates the UNCRPD
and it a lot of its text it replicates the UNCRPD language. It is apparently a
progressive piece of law when it comes to the right to legal capacity and
participation in public and political life.
6.3.2 It
recognizes the right to freely participate in political activities of Zambia.
It also recognizes the right to enjoy legal capacity n all aspects of life.
6.3.3 The
Act fully reflects Article 29 of the UNCRPD. In this aspect, it requires that
the Electoral Act of 2006 be amended since the Persons with Disabilities Act
has a superiority clause in as far as disability issues are concerned.
Furthermore, it now necessary to issue regulations concerning participation of
persons with disabilities in the electoral process.
6.4 Mental
Disorders Act and the draft Mental Health Bill
6.4.1 The
Mental Disorders Act is very old and is in the process of being repealed
through the development of the new Mental Health Services Bill of 2014 which is
with the Ministry of Justice. The new Bill promotes community based mental
health services
6.4.2 Community
Based mental health services mean that there will be some support services
within the community to allow persons with mental disabilities participate in
the communities’ activities including political activities. With a lot of
awareness raising and education, it will make life better for persons with
mental disabilities who are usually institutionalized and denied their rights
to vote or be voted into political office.
7.0 CONCLUSION
AND RECOMMENDATIONS
7.1 Conclusion
7.1.1 It
is clear that the laws in Zambia discriminate persons with mental disabilities
in as far as exercising their right to vote and be voted into political office.
The clause “of unsound mind” is derogative when used on people with mental
disabilities in as far as the Persons with Disabilities Act is concerned.
7.1.2 If
the law is explicitly discriminating, why should society not discriminate. The
political systems use these laws to establish and mage themselves. In doing so,
again, persons with mental disabilities are negatively affectively.
7.1.3 It
is of our view that the laws have got discrepancies. If the Constitution and
the Electoral Act equate a person “of unsound mind” to a Person with a Disability,
then the law is contradictory because the Act of 2012 clearly promotes the
rights of persons with mental disabilities.
7.2 Recommendations
7.2.1 The
Government of Zambia should harmonise the laws governing elections with the
provisions of the Persons with Disabilities Act 2012. This will remove the
contradictions currently there in as far as participation of persons with
mental disabilities is concerned in the electoral process.
7.2.2 Government
should expedite the process of enacting the new Mental Health Bill. The Bill
should be in harmony with the Persons with Disabilities Act and the UNCRPD.
7.2.3 Government,
through the Zambia Agency for Persons with Disabilities begin to carry out
awareness raising campaigns on the rights of persons with mental disabilities.
This is one of the mandate of ZAPD in the Act of 2012. The awareness campaigns
should include information on the UNCRPD and the Persons with Disabilities Act.
7.2.4 The
Electoral Commission of Zambia should include persons with mental disabilities
in all their public activities especially in the voter education process.
7.2.5 The
Electoral Commission of Zambia should train its members of staff and other
agents on issues concerning persons with mental disabilities and their right to
vote and be voted into political and public office.
7.2.6 Mental
Health Users should scale up their advocacy work to have immediate law reforms
in Zambia. This advocacy should be done in conjunction with other DPOs.
June,
2014,
Lusaka,
Zambia.
