Thursday 5 February 2015

The Rights of Children and Youths with Disabilities: the Role of Strategic Litigation


The Rights of Children and Youths with Disabilities: the Role of Strategic Litigation

By

Likando Kalaluka

1.     Introduction

The question whether the rights of children and youths with disabilities are observed hinges on the principles of equality and non-discrimination, and independent living. Equality and non-discrimination is premised on Article 5 of the Convention on the Right of Persons with Disabilities (CRPD)[1] which propounds that all persons are equal before and under the law and that prohibits all discrimination on the basis on disability. Equality and non-discrimination mostly attests to civil and political rights. On the other hand, independent living recognizes that persons with disabilities have the right, on equal basis with others, to live in their communities and that they are entitled to a range of in-home, residential and community support services necessary to enable them to living within the community and fully participate therein. The principle of independent living is informed by economic, social and cultural rights.

In order for children and youths with disabilities to participate fully in society, both civil and political rights and economic, social and cultural rights need to be enjoyed on equal basis with others. In instances where any of these rights are not observed or implemented with regards children and youths with disabilities, the latter, their parents or guardians or indeed disability rights civil society organisations may undertake any of the three options; lobby for the enforcement of such rights, advocate for the review of relevant laws, policies and procedures that and undermine the said rights or indeed institute strategic litigation to review the laws or enforce the observance of the said rights. 

This work will discuss the role of strategic litigation in shaping and reviewing the law relating to the rights of children and youths with disabilities, and also how the said rights may be enforced. Section 1 of this work has briefly introduced the objectives of this paper, while Section 2 will explore the substantive contents of the rights of children and youths with disabilities as provided for in the applicable national and international legal framework before analysing how the principles of equality and non-discrimination, and independent living conceptualise the how these rights may be implemented. In Section 3, regard will be had to the enforcement mechanisms available both at international and national level for purposes of securing enforcement of the rights of children and youths with disabilities. Section 4 will look at specific enforcement mechanisms for the rights of children and youths with disabilities both on the national and international level. Lastly, Section 5 will be the conclusion consisting of the author’s views on the issues raised in this paper.

 

2.      Normative Rights of Children and Youths with Disabilities

2.1 The Rights of Children with Disabilities under the CRPD

The Preamble to the CRPD under paragraph (r) recognizes that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on equal basis with other children. This underscores the desirability that children with disabilities need to enjoy all the human rights other children enjoy to enable them grow to their fullest potential. Further the said paragraph (r) recalls the State Parties’ obligations to uphold and protect the rights of children as provided for under the Convention on the Rights of the Child (Children’s Convention).[2] By referring to the Children’s Convention, the CRPD acknowledges that the rights of children with disabilities are not any different from the rights of any other child. Therefore, to appreciate the rights of children and youths with disabilities regard should be had to the rights of other children as provided for in the Children’s Convention.

Perusal of the Children’s Convention will show that all children have the rights (among others) to life,[3] freedom of expression,[4] freedom of association and assembly,[5] education,[6] protection from economic exploitation,[7] special care (in case of a disabled child)[8] and not to be discriminated against on grounds such as race, sex, religion, disability or other status.[9] It is noteworthy that most of the rights provided under the Children’s Charter apply to all children and that only Article 23 makes specific provisions touching on children with physical or mental disability. According to clause (3) of Article 23, the Children’s Charter provides:

“Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.”

The foregoing ensures that the necessary assistance to be availed to children with disabilities is actually accessible by requiring that such assistance is free of charge whenever possible.

Further, the CRPD, under its general principles, recognizes and respects the evolving capacities of children with disabilities and their right to preserve their identities.[10] That the capabilities of children with disabilities are evolving, is premised on the fact that children are still in their early stages of growth and development and as such they are capabilities are bound to change as they continue to grow. The CRPD also acknowledges the need for children to preserve their identities so as to foster full human development and also to fight stigma. Children and youth with disabilities are usually subjected to attitudinal prejudices and stigma as they seek to participate in the affairs of society. To help them overcome such stigma, it is important that their identities are preserved. 

 Article 7 of the CRPD brings out two important points besides the requirement that children with disabilities are entitled to the full enjoyment of all human rights and fundamental freedoms on equal basis with other children. Firstly that, in all actions concerning children with disabilities, the best interest of the child shall be the primary consideration. The import of the ‘best interest’ consideration is that whenever there are conflicting interests between the interests of a child and those of older persons, the best interests of the child must prevail. At face value the ‘best interest’ consideration appears to be desirable, but it raises some difficulties issues of legal capacity and decision making.[11]  Secondly, Article 7 also brings out the need to ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children. This means that depending on the age of the child, he or she should have the right to express their views and to have such views respected.

An attempt to reconcile the ‘best interests’ consideration and the children with disabilities’ right to freely express their views on all matters and having such views respected, brings about difficulties as to whether the best interests consideration should over-ride the views of the child in issue.

 

2.2 The Rights of Youths with Disabilities under the CRPD

The CRPD does not have express provisions making reference to youths with disabilities. The contemporary rights that affect youths with disabilities relate to participation in the political affairs of their country, the right to sexual reproductive health, the right to education and vocational training. These rights, though applying to all persons, are directly relevant to youths are canvassed under the CRPD. This further confirms that the rights of persons (children or youths) with disabilities are not new rights per say but are the same rights which every other person is entitled to. The need to have the specifically mentioned in the CRPD is justified by the special procedures and laws necessary to implement the rights with respect to persons (children or youths) with disabilities.

Experience, right from the 1930 to date, has shown the ordinary law and its procedures could not enforce the rights of persons with disabilities. It is in this regard that it was considered inevitable to come up with an international instrument that could make the rights of persons with disabilities, a reality. It is in this regard that the CRPD was adopted by the United Nations General Assembly. The CRPD is considered to be very innovative international human rights treaty in that it has not shied away from introducing new terms and principles in the international human rights discourse. Two such new principles are the equality and non-discrimination, and independent living (which principles will be discussed in more detail under Section 2.4 hereunder).

 

2.3 The Rights of Children and Youths in African Regional Treaties

 Zambia ratifies the African Charter on Human and Peoples’ Rights (ACHPR) on 20th July 1987 and is bound to uphold and recognize the rights enshrined therein.  However, only Article 18(4) of the ACHPR makes expressly mention of persons with disabilities when it is provided that persons with disabilities have the right to special measures of protection in keeping with their physical or moral needs. Article 18 (2) also provides for the protection of the rights of children as stipulated in the international declarations and conventions. The ACHPR does not specifically state what the rights of children or youths with disabilities are.     

On the other hand the African Charter on the Rights and Welfare of the Child[12] (ACRWC) provides in Article 13 (1), that every child who is mentally or physically disabled shall have the right to special measures of protection in keeping with his or her physical and moral needs so as to ensure this or her dignity, self-reliance and active participation in society. The ACRWC further provides for the various rights of children generally.[13]

 

2.4  The Persons with Disabilities Act

The Persons with Disabilities Act (the Act) was enacted among others, to domestic the CRPD and indeed it has domesticated most of the CRPD provisions, though on a piece-meal basis.[14] In its interpretation clause, the Act defines a child as a person below the age of 18 years.[15] Further, the Section 21 of the Act requires the Government to progressively strive to achieve equalization of opportunities for and integration of persons with disabilities and ensure that children with disabilities enjoy all human rights on equal basis with others and that they are availed all necessary information of early stimulation and education in order to prevent development of disabilities.[16] This provision seeks to implement the principle equality and non-discrimination and independent living which will be discussed in more detail below.

Other provisions of the Act make it mandatory for parents or guardians of a child with disabilities to enroll such a child into a school and make it a criminal offence for such parent or guardian who fails to enroll the child into a school.[17] Section 25 also criminalises the refusal by any admission officer to admit a child with disabilities into a school on grounds on account of disability.[18] In order to detect, prevent and manage disability, the Act provides for the periodic screening of children.[19] Such early screening and diagnostic medical attention to children (and youths) is intended to determine the existence and onset of disability.

 

2.5 Equality and Non-Discrimination and Independent Living

Article 5 of the CRPD provides that’s all persons are equal before and under the law and that, they are entitled to equal protection and equal benefit of the law. The principle equality and non-discrimination is premised on the need to take appropriate and necessary steps for the purposes of equalizing opportunities for persons with disabilities. The understanding here is that society inherently discriminates against the persons with disabilities such that there is need to take such steps so as to level the playing field. In this regard, the CRPD requires State Parties to take all appropriate steps to ensure that reasonable accommodation[20] is provided.

This requirement is crucial to the enjoyment of human rights as it recognizes that if things are left as they currently are, it is highly unlikely (if not impossible) that children and youths with disabilities will ever enjoy their human rights at all, or at least on equal basis with others. Therefore, the principle calls for substantial equality whereby persons who are equally situated be treated equally while those who are unequally situated be treated unequally and that discrimination may occur where there is a failure to treat differently persons with disabilities so as equalise their opportunities to participate in society on equal basis with others.[21] However, different and favorable treatment accorded to persons with disabilities for purposes of equalizing their opportunities in societies does not amount to discrimination. Therefore, treating a child with a disability more favorably than other children for purposes of enabling the such a child to fit in the classroom environment is not discrimination, while treating other children favorably than a child with disability on account of that child’s disability, is discrimination.

On the other hand, Article 19 of the CRPD epitomises the assertion that persons with disabilities are entitled to live in the community and participate in society with choices equal to others, and that they are entitled to in-house support and services.[22] The principle of independent living[23] does not mean that persons with disabilities should live in splendid isolation, but rather that they should live within their communities and exercise choice, on equal basis with other, as regards the residence and other support services they require.

The principle of equality and non-discrimination together with the principle of independent living operate to ensure that children and youths with disabilities enjoy their human rights and fundamental freedoms on equal basis with others and also that they are not excluded from society.     

 

3.  Enforcement mechanism of the Rights of Children and Youths with Disabilities

Enforcement mechanisms refer to the available tools which may be used to facilitate the observance and respect of the rights and freedoms of children and youths with disabilities. These are available at the international level, Africa regional level and at national level. We will now discuss these mechanisms in detail.

3.1 International Mechanism

At the international level, we will consider the CROD which is the main human rights treaty on disability. Article 34 of the CRPD provides for the establishment of the Committee on the Rights of Persons with Disabilities (the Committee) which has authority to consider reports submitted by State Parties to the CRPD on measures taken to give effect to the State Parties’ obligations under the CRPD and also on the progress made in that regard.[24] Upon receipt and consideration of such reports, Article 36 of the CRPD states that the Committee shall make such suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the State Party concerned. While the State Parties’ reports are useful in providing peer review of the progress made by State Parties in comply with the provisions of the CRPD, it is not very helpful in terms enforcing the rights of children and youths with disabilities who suffer discrimination and exclusion from participating in societal activities on equal basis with others.

In this regard, no complaints or communications alleging human rights abuses of children and youths with disabilities may be entertained by the Committee unless the State in issue has ratified both the CRPD and its Optional Protocol.[25] The provisions allowing communications from or on behalf of individuals or groups of individuals provide an avenue for the Committee to consider individual complaints of human rights abuses of children and youths with disabilities. However, ratifying the CPRD and its Optional Protocol does not make the CRPD and or its Optional Protocol part of the national law and as such their provisions cannot be relied upon before national courts.[26] This position was confirmed in the case of Attorney General v. Roy Clarke[27] where the Supreme Court held that if the provisions of an international treaty are not domesticated in Zambia, the said provisions only have persuasive value. 

Therefore, in order to have maximum benefit from the comprehensive provisions of the CPRD even before national courts, legislations should be enacted that will domesticate the provisions of the CRPD, that is, specifically incorporate the provisions of the CRPD into Zambian law. The Persons with disabilities Act has domesticated most of the provisions of the CRPD by reproducing some of its provisions.[28]  

 

3.2 African Regional Mechanism

Article 30 of the ACHPR establishes the African Commission on Human and Peoples’ Rights (the Commission) whose mandate include the promotion of human and peoples’ rights and the interpretation of all the provisions of the ACHPR.[29] Under Article 60 of the ACHPR, the Commission is mandated to draw inspiration from various international human rights instruments. The mandate to draw inspiration from other international instruments is crucial to the protection of human rights of children and youths with disabilities as the ACHPR’s text is not very elaborate in proving for the substantive rights and procedures for the protection of human rights.

The Commission is further empowered to receive and investigate communications of alleged violations of human rights by one State Party from another.[30] However, the Commission will not entertain any communication of human rights violations unless it is satisfied that all local (national) remedies have been exhausted (if they exist) or unless it is obvious to the Commission that the procedure for achieving the remedies will be unduly prolonged. The communication in Purohit & Moore vs. Gambia[31] is instructive. In that communication, a complaint was lodged with the Commission alleging that the Lunatics Detention Act[32] of Gambia which provided for the compulsory detention of persons with mental or intellectual disabilities. The Commission determined that the provisions of the Lunatics Detention Act are discriminatory against persons with disabilities and urged the Government of Gambia to repeal the said Act.

 

3.3 National Mechanisms

The Zambian Constitution[33] prohibits discrimination on the grounds of race, tribe, sex, place of origin, marital status, political opinions colour or creed[34] but does not list down disability as one of the grounds upon which discrimination is prohibited. However, the Constitution does make express reference to disability its provisions under the Directive Principles of State Policy where it is stated:[35]

      “the State shall endeavour to provide to persons with disabilities, the aged and other

disadvantaged persons such social benefits and amenities as are suitable to their needs and are just and equitable.”     

It is however, noteworthy that the foregoing provisions being party of the Directive Principles of State Policy, they are not legally enforceable.[36]

In its Article 28, the Constitution provides for the enforcement of the rights provided for under part III of the Constitution in the following terms:

“if any person alleges that any of the provisions of Articles 11 to 26 inclusive has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply for redress to the High Court which shall --

(a) hear and determine any such application;

(b) determine any question arising in the case of any person which is referred to it in pursuance of clause (2);

and which may, make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of Articles 11 to 26 inclusive.”      

It follows therefore that if any child or youth with disabilities allege that his or her rights have been violated or are about to be violated, he or she institute court proceedings and the High Court has wide jurisdiction to remedy the violation.

 

4.  Strategic Enforcement the Rights of Children and Youths with Disabilities

The rights of children and youths with disabilities may be enforced through litigation and civil advocacy and lobbying. In this Section, we will focus on enforcement the rights herein through litigation. However, whether litigation will be successful in enforcing the rights of children and youths with disabilities depends on how well prepared the litigants and their legal representatives are for the entire court process. There is need for a strategic approach to litigation.[37] Strategic litigation involves advance planning as regards the parties, choice of forum and targeted problem area and the applicable law. Further, strategic litigation plays a major role in domesticating international good practices and laws, and the nullification of suppressive laws.

 

4.1 The Parties to the litigation

Before instituting court proceedings, it is imperative to carefully consider who is to be the plaintiff (or complainant). Children and youths under the age of 18 are considered to be minors and as such incapable of commencing court proceedings in their own name. Due to the entrenched stigma which persons with disabilities go through, most persons (including children and youths) with disabilities would rather not engage in contentious court proceedings which most of the times are prolonged and very technical.[38] Therefore, it is important that children and youths with disabilities are encouraged not to shy away from litigating human rights abuses so as to avoid recurrences and also to set up precedents. Where the children and youths with disabilities have not yet attained majority age (18 years), it is important to commence litigation in the names of their parents or guardian, otherwise referred to ‘guardians ad litem’.

In matters where human rights abuses relate to youths (who are have attained the age of 18), the court proceedings should be commenced in the names of the person whose disability rights have been abused. It is only when such persons are not willing to maintain court proceedings in their names, then litigation may be in the name of the person or civil society organisations which has sufficient interest in the matter. This is to avoid busy bodies that have no locus standi or interest in the matter from engaging into unnecessary litigation. In the case of Arthur Lubinda Wina, Frederick Titus Jacob Chiluba, Vernon Johnson Mwanga, Akashambatwa Mbikusita Lewanika, Levy Patrick Mwanawasa, Ephraim Chibwe and Andrew Kashita v. The Attorney-General[39] the High Court had this to say about the locus standi:

“To be 'legally aggrieved' a person must be not merely dissatisfied with or even prejudiced by an action or decision. He must also have been deprived of or refused something to which he was legally entitled. . . . He must be able to point to some 'encroachment or vested right.'”

A civil society organization which has, as its objections the promotion of rights of persons with disabilities, deemed to be legally aggrieved and as has locus standi to commence court proceedings alleging violations of the rights of children and or youths with disabilities. In Sela Brotherton (suing as Secretary of the Zambia Federation of Disability Organizations) v Electoral Commission of Zambia,[40] a civil society organisation successfully commence court proceedings in its own name and obtained judgment which found among others, that the Electoral Commission of Zambia had discriminated against persons with disabilities in the manner it carried out its public functions.

As stated earlier, Constitution in its Article 28 empowers the High Court with wide discretionary powers to deal with violations of human rights as provided under the Bill of Rights of the Constitution. In Attorney General v. Law Association of Zambia[41] the Supreme Court interpreted Article 28 in the following terms:

“Article 28 of the Constitution does not require a person to demonstrate that the matter complained of should directly affect him.”

It therefore follows that owing to the importance of the human rights, there is no requirement for a litigant to demonstrate that the matter complained of directly affect him.

Also linked to the rightful parties to strategic litigation is the usually high cost of litigating disability rights violations. Owing to the close linkage between disability and poverty, children and youth with disabilities usually do not have the resources to meet the high legal costs of litigations.[42] It follows therefore that civil society organisations should mobilise financial and other resources so as to alleviate the costs of litigation on the families of children and youths with disabilities.

 

4.2 Choice of Forum

As intimated above, the Article 28 of the Constitution gives the High Court wide discretionary powers to remedy human rights violation. It follows therefore that litigation where human rights violations are in issue should be commenced in the High Court.

 

4.3 Targeted Problem areas

In order to ascertain the disability rights problem areas, the Zambia Federation for Disability Organisations[43] (ZAFOD) conducted access audits in most public places such as bank, educational facilities, hotels and local authority buildings.[44] The access audits showed that most of the audited buildings were inaccessible to persons with physical disabilities, especially those using wheel chairs. ZAFOD then then embarked on precedent setting litigation with a view of obtaining favorable judgment which will apply to other persons with disabilities in similar circumstances. The importance of such precedent setting litigation is that it gives priority areas which affect the majority of persons with disabilities.    

 

4.4 Domesticating International Treaties

In Roy Clarke v. Attorney General[45] it was held:

“In applying and construing Zambian statutes, courts of law can take into account international instruments to which Zambia is a signatory.  However, these instruments are only of persuasive value, unless they are domesticated in the laws.”

           

It follows that undomesticated international laws have no binding effect on Zambian courts unless they are domesticated. However, the above holding of the Supreme Court states that the courts of law may take into account provisions of undomesticated provisions of international law which though not binding, have persuasive value. Once the superior courts in Zambia have been persuaded by such provisions of international law, the latter become part of the Zambia legal jurisprudence through the principle of judicial precedent whereby decisions of superior courts are binding on lower courts. In this regard, litigation may be targeted at domesticating provisions of international law especially that Governments are usually reluctant in initiating domestication through statutory law.

 

4.5 Nullification of Suppressive Laws

The Supreme Court and the  High  Court of Zambia have jurisdiction to struck down and declare as null and void, any provisions of statutory law should the provisions of such statutory law be found to inconsistent with the Constitution.[46] This is because the Constitution is the supreme law of the Country and as such any other law which is inconsistent with it is void to the extent of its inconsistence. Therefore, any statutory provisions which impact negatively on the rights of persons with disabilities may be challenged in courts of law on the ground that they are inconsistent with the Constitution. Admittedly, the current Zambian Constitution does not expressly prohibit discrimination on the grounds of disability. However, it in the case of Sela Brotherton (suing as Secretary of the Zambia Federation of Disability Organizations) v Electoral Commission of Zambia,[47] the High Court found that the Defendant discriminated against persons with disabilities not withstanding that the Constitution does not expressly list disability as one of the ground upon discrimination is prohibited.

The Persons with Disabilities Act,[48] as stated above, domesticates several provisions of the CRPD. However, the provisions of other statutes do not enhance the rights of persons with disabilities. For instance, the Mental Disorders Act[49] does not only refer to persons with disabilities in derogatory terms such as “idiots” and “imbeciles” but also discriminates against them in several ways.[50] Strategic litigation may be commenced to annul the suppressive and discriminatory provisions of the Mental Disorders Act in that they are inconsistent with the provisions of the Persons with Disabilities Act which prohibits discrimination on the ground of disability.[51] Such litigation would be pursuant to Section 3 of the Persons with Disabilities Act which reads:

“Subject to the Constitution, where there is any inconsistency between the provisions of any other written law impacting on the rights of 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.”

In this regard, suppressive and discriminatory provisions of other statutes may be rendered non effective on account of being inconsistent with the Persons with Disabilities Act.

 

5.  Conclusion

The CRPD is a rigorous basis for the promotion and enforcement of the rights of children and youths with disabilities in that it introduces two key principles, independent living and equality and non-discrimination. These principles are a vehicle by which human rights are operationalized and enforced. Further, the CRPD also gives illustrative provisions as to the key rights of children and youths with disabilities. The Children’s Convention is another key international treaty that provides for the rights of children. However, the Children’s Convention does not have sufficient disability rights-specific provisions. While admittedly, the disability rights movement has not created new rights, the need for disability rights-specific provisions is necessary as disability rights cannot be properly enforced under the general wordings of human rights. There is therefore, need for more disability rights-specific provisions in the Children’s Convention.

On the African regional level, the ACPHR enhances the enforcement of the rights of children and youths with disabilities when it empowers the Commission to draw inspiration from other international human rights treaties when determining communications or complaints of human rights violations. This particular provision is important as the ACPHR boasts of only a single provision that expressly seeks to promote and protect disability rights. It is therefore imperative that the Commission is able to draw inspiration from the detailed disability rights provisions of, among others, the CRPD.

Besides the general provisions prohibiting discrimination, the Zambian Constitution does not expressly provide for disability rights, save for the non-justiciable rights mentioned under the Directive Principles of State Policy. The Constitutional provisions therefore need to be revised as they currently do not guarantee the protection of the rights and freedoms of children and youths with disabilities. The Persons with Disabilities Act is perhaps a shining beacon in that it domesticates the key provisions of the CRPD and subordinates the provisions of other statutes in so far as they are inconsistent with any of its provisions.  

The available enforcement mechanisms of rights of children and youths with disabilities appear to be satisfactory. However, there is need to adopt a strategic approach to litigation in order to ensure that litigation bears the desired results. This work has shown that litigation should not be hurried but should be planned. Due care must be taken in arriving at the right parties taking into account the locus standing of the persons to be made parties to the intended court proceedings. Regard should also be had to the rightful forum and the intended goals of the litigation with utmost care being given to ensure the success of the litigation. However, it is important children and youths with disabilities being shielded from having to bear the legal costs of litigation as such costs may be exorbitant and prohibitive. Civil society organisations should therefore mobilize resources to meet the costs of strategic litigation.

 

Endorsed by:

Wamundila Waliuya,

Executive President,

Disability Rights Watch.

January 2015.     



[1] Convention on the Rights of Persons with Disabilities, General Council Resolution 61/106 (2006) >http://www.un.org/disabilities/convention/conventionfull.shtml>accessed on 19 January 2015.
[2] Convention on the Rights of the Child, General Assembly resolution 44/25 of 20 November 1989 >http://www.ohchr.org/en/professionalinterest/pages/crc.aspx> accessed on 19 January 2015.
[3] Art 6, (n 3) above.
[4] Art 13, see above.
[5] Art 15, see above.
[6] Art 28, see above.
[7] Art 32, see above.
[8] Art 23, see above.
[9] Art 3, see above.
[10] Art 3 CRPD, n1.
[11] Legal capacity defines a persons’ legal universe and implicit in that is the question of making own decisions which assumes a very critical position when it comes to persons (or children) with intellectual and psychosocial disabilities. In this regard, further questions arise as to such persons with disabilities should be assisted (or facilitated) to make own decisions, or whether there should be substituted decision making whereby other persons such as psychiatrist, friends or relatives make decisions on behalf of the person with the said disabilities as long as those decisions are in the person’s best interest. A profound discussion of the difficulties that arise from the concept of legal capacity and decision making may be found at…
[12] Organization of African Unity (Document CAB/LEG/24.9/49 (1990)> http://www.au.int/en/sites/default/files/Charter_En_African_Charter_on_the_Rights_and_Wlefare_of_the_Child_AddisAbaba_July1990.pdf> accessed on 23 January 2015..
[13] See above.
[14] L Kalaluka ‘Towards an Effective Litigation Strategy of Disability Rights: The Zambian Experience’ (2013) 1 ADRY 175.
[15] Persons with Disability Act, (n 2) Sec 2.
[16] Persons with Disabilities see above Sec 21.
[17] See above sec 24.
[18] Unless such disability is assessed by the Zambia Agency for Persons with Disability to be such that it requires a child to be in a Special School.
[19] Persons with Disabilities Act (n 2) sec 30.
[20] According to article 2 of the CRPD reasonable accommodation refers to the taking of necessary and appropriate modification and adjustments to policies, practices and environmental infrastructure, without imposing a disproportionate or undue burden, to ensure to PWDs enjoy or exercise all human rights and fundamental freedoms, on equal basis with others.
[21] Oddný Mjöll Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality’ in Oddný Mjöll Arnardóttir and Gerard Quinn (eds),  The UN Convention on the Rights of Persons with Disabilities (Martinus Nijhoff Publishers 2009) 13.
[22] CRPD (n 1) Art 19.
[23] The principle of independent living was conceived in response to a practice mostly in Europe and North America where persons with disabilities were isolated in residential institutions and exclude from main stream societal activities such as employment, education, health, housing, transport and employment. (See Ruth Townsley, ‘The Implementation of Policies Supporting Independent Living for Disabled Persons in Europe: Synthesis Report’ (Academic Network of European Disability Experts (ANED) – VT/2007/005, January 2010) > http://www.disability-europe.net/content/aned/media/ANED-Task%205%20Independent%20Living%20Synthesis%20Report%2014.01.10.pdf> (accessed on 23 January 2015)  
[24] CRPD (n 1) art 35.
[25]Optional Protocol to the CRPD (N 1) ART 1 (2).
[26] Kalaluka (n 13) 182.
[27] Roy Clarke v Attorney General (2008) Z R 38 vol 1(SC).
[28] See secs  2, 4, 5, 6, 7, 8, 9 and 10 domesticates arts 1, 2, 4, 5, 12 and 23 of the CRPD respectively.
[29] ACHPR Art 45.
[30] See above, Art 47 and 49.
[31] Comm No 241/2001.
[32] Lunatics Detention Act of Gambia, 1917.
[33] Chapter 1 of the Laws of Zambia.
[34] See above, Art 23.
[35] See above, Art 112 (f).
[36] See above, Art 111.
[37] M A Stein et al ‘Cause Lawyering for Persons with Disabilities’ (2010) 123 Harvard Law Review 1658.
[38] S Gloppen ‘Public Interest Litigation, Social Rights and Social Policy’ Arusha Conference 12 December 2005. See also the Institute for Security Studies, ‘Access to Justice in Africa: Comparisons between Sierra Leone, Tanzania and Zambia,’ (Policy Brief no 13, October 2009).
[39] (1990 - 1992) Z.R. 95 (H.C.).
[40] (2011) HP/0818.
[41] (2008) 1 ZR 21 (SC).
[42] D Mont, ‘Measuring Disability Prevalence’ 2007 (SP Discussion Paper No 0706) 1>http://siteresources.worldbank.org/DISABILITY/Resources/Data/MontPrevalence.pdf> accessed on 27 January 2015.
[43] An umbrella body of civil society organisations dealing with awareness promotion of disability rights in Zambia.
[44] In interview W Waliuya, Human rights and education Advisor, Africa Development Department at Power International (Lusaka, Zambia, June 2012).
[45] n 28 above.
[46] Constitution of Zambia (n 34) art 1 (3).
[47] (2011) HP/0818.
[48] Persons with Disabilities Act( n 2).
[49] Mental Disorders Act, Cap 305 of the laws of Zambia.
[50] Kalaluka (n 13) 176.
[51] Persons with Disabilities Act (n 2) sec 6(1).