By Wamundila
Waliuya,
Founding
President - Disability Rights Watch
Many African
countries are currently being governed using laws which were passed during the
pre-independence period. Essentially, this means that countries are running
using colonial rules and laws. Specifically, many countries have got mental
health laws that are archaic. Zambia is not an exception. It has the Mental
Disorders Act of 1951.
Thorough
perusal of this Act clearly indicates that the law was meant to detain those
people suspected of having mental problems in order to keep them away from
society. Some observers say that the law was meant for and directed to
Africans. The Act is very dehumanizing, demeaning, degrading and
discriminatory. It is extremely a bad law when it comes to respect and
promotion of human rights. Just from the onset, I feel the Mental Disorders Act
of Zambia must, as soon as possible, be declared null and void by the courts of
law. This can only be done if a petition is filed to the High Court demanding
for the nullification of this old law.
People may
ask me why I seem to rush for a petition rather than advocacy for the repealing
of the law. All efforts have been done by different organisations working in
the field of disability and mental health to have the law repealed but all such
efforts stand at still having the law intact and valid. Where strategic
advocacy has failed, the last resort is use of litigation. Therefore, strategic
litigation in the circumstances of the Mental Disorders Act of Zambia is
inevitable.
I know that
many people in Africa have not yet embraced the culture of strategic litigation
where social advocacy has failed when demanding for the respect, promotion and
protection of human rights. It is worse with Disabled People’s Organisations
and their members. Strategic litigation should not be viewed as an antagonistic
approach to resolving matters of human rights. It works very well when well
planned. The goodness of strategic litigation is that it establishes precedent
that has an impact on the larger population. Positive rulings from the courts
also establish case law that would be used across different jurisdictions. So,
strategic litigation seeking the nullification of the Mental Health Act of
Zambia is fully justifiable and it must commence! It must commence now!
What is the
justification for this petition? The Mental Disorders Act is Cap 305 of the
laws of Zambia. Therefore, it must comply with the provisions of the
Constitution of Zambia. But, when you read the Act, it is explicitly violating
the rights and fundamental freedoms of persons with mental disabilities. What
quickly comes to the fore of my mind is how the Act describes persons with
mental disabilities. It explicitly describes them as “idiot”, “imbecile”,
“feeble-minded” and “moral imbecile”. Really, does such a law deserve space in
a democratic country like Zambia which stands to promote human rights and
dignity?
In carrying such derogative terminology,
the Mental Disorders Act directly discriminates against persons with mental
disabilities. Such descriptions violate the inherent dignity of persons with
mental disabilities. The language is derogative and degrading in nature and
perpetuates discrimination against them. Society naturally believes in what is
written in law. So, society will believe in the use of the same language
because it is legal. It is written in law and anyone who uses such descriptions
against persons with mental disabilities is protected by law. I feel this
should not be allowed. This can only be stopped by having the Mental Disorders
Act declared null and void by the courts of law. A petition needs to be quickly
filed demanding for the nullification!
Perusing through the Mental Disorders Act of
Zambia, I find more violations. The Mental Disorders Act provides for the
detention of persons with mental disabilities on suspicion of their mental
disabilities. The law has established designated detention places or prisons
where such persons with mental disabilities must be detained. This clearly violates
the right to liberty and protection of the law of persons with mental
disabilities. Furthermore, the Act gives extensive powers to the Police and
members of the community to arrest and detain persons with mental disabilities
without due regard to their right to liberty, legal capacity, and respect to
constitutional protection of law. It is because of these provisions that
persons with mental disabilities continue to suffer chaining, locking and
detention. Persons with mental disabilities feel insecure in their own country.
Anyone can call for their detention and the law allows this. Is this acceptable
in this era? No! The Act must be declared null and void without delay.
The Constitution of Zambia, in its Bill of
Rights provides for a wide range of protection of rights and fundamental
freedoms. This includes protection from discrimination and protection of
liberty and security of person. The Persons with Disabilities Act of Zambia
also provides for the right to enjoy legal capacity in its section 8. It also
prohibits discrimination on the basis of disability. Section 3 of the Persons
with Disabilities Act of 2012 provides for the supremacy of the Act on all
matters related to disability rights. It therefore, repeals the Mental Disorders
Act. The Persons with Disabilities Act therefore prevails over the Mental
Disorders Act. I therefore remain wondering why the law is still valid and
being actively used. The law must not exist. It is an invalid law. But, it can
only become invalid if the courts declare so. So, a petition should be filed
immediately demanding for its invalidity and nullification. The time is now!
It should be noted that Zambia ratified
the United Convention on the Rights of Persons with Disabilities (UNCRPD) in
2010. The Government of the Republic of Zambia further domesticated the UNCRPD
through the enactment of the Persons with Disabilities of 2012. Therefore, the
State has the obligation to abide by the provisions of the UNCRPD and its
domestication law, which are the Persons with Disabilities Act of 2012.
The UNCRPD provides for the right to enjoy
and exercise legal capacity on an equal basis with other persons in all aspects
of life in its Article 12. This Article has been domesticated by section 8 of
the Persons with Disabilities. This means that legal capacity for persons with
mental disabilities is both internationally and domestically binding. With the
persuasion of the UNCRPD together with the binding previsions of the Persons
with Disabilities Act of 2012 and the Constitution of Zambia, the Mental
Disorders Act of 1951 is found discriminatory; inconsistent with the
Constitution of Zambia; inconsistent with the Persons with Disabilities Act of
2012. The Mental Disorders Act is inconsistent with international human rights
standards. It is not compliant to the provisions of the UNCRPD. In view of this
analysis, I am of the unreserved view that the Act must be declared null and
void. This declaration of the Act being invalid and void should be done through
an urgent petition to the High Court of Zambia.
30th January, 2017.
Wamundila Waliuya
