The Persons with Disabilities Act and Legal Capacity of Persons with Disabilities

Persons with disabilities and being persons before the law

 

It is important to share experiences and knowledge because it is believed by many scholars and philosophical thinkers that experience or knowledge not shared in no experience or knowledge at all. I just came back from a conference on the “Implementation of Article 12 of the Convention on the Rights of Persons with Disabilities – from theory to practice”. The conference was held in Madrid, Spain from 20^th to 21^st November, 2011 and was well attended by lawyers, activitists, persons with disabilities including those with mental and intellectual disabilities and funders. It was financially supported by the Open Society Foundation.

It is my wish that such conferences could target decision makers like government officials and members of parliament. Article 12 of the CRPD is still a controversial piece of thought. It could be more controversial, but as one comes to interact with those who understand it and its implications, it becomes an interesting human rights issue for serious consideration. The Article is on equal recognition of persons with disabilities before the law.

To me, it seems persons with disabilities are not being recognized as persons before the law on an equal basis with other persons. It is so because, if persons with disabilities were recognized equally before the law, the Article would have been unnecessary.

The basis of the Article is to have persons with disabilities enjoy their legal capacity on an equal basis with others. Legal capacity in this circumstance entails having the capacity to act independently. Thus, recognizing the capacity of persons with disabilities to make their own decisions independently. I will deliberately not quote any section of Article 12 so that I write as freely and simply as possible.

It may seem impossible to have all categories of persons with disabilities exercise their capacity to make independent decisions. Yes, it seems so! But the implication of Article 12 of the CRPD is that persons with disabilities should be autonomous enough to make their own decisions despite being disabled. This is  were the controversy stands.

We have blind persons, deaf, deaf-blind, physically disabled persons, those with mental and intellectual disabilities. The question of legal capacity always raises dust when it comes to persons with mental and intellectual disabilities. Do persons with mental or intellectual disabilities need to enjoy their autonomy and independence of person to such an extent that they exercise independent decision making? I do not have the correct answer with me. But, the point is that persons with mental and intellectual disabilities are persons, therefore they are human. All human beings should exercise their human rights and fundamental freedoms on an equal basis. So, everyone, regardless of their mental and intellectual capacity have the right to enjoy their legal capacity.

I now are made to believe that what limits others from participating in the world activities on an equal basis with other is not their capacity but the barriers c4rated to limit their capacity to act independently. These barriers are created by mankind. If it is mankind that creates the barriers, then the same mankind can get rid of the barriers and provide conducive environments for all. Currently, the world order is created for some citizens, while barriers limit some, especially persons with disabilities.

Persons with disabilities, including those with mental and intellectual disabilities should exercise their free will and independence of making choices on an equal basis with others. No man or political/administrative system should interfere with this right. It is a legal right which goes with respect of the inherent dignity of the persons with disabilities. Persons with disabilities, including those with mental and intellectual disabilities have the freedom to choose where they want to live and with whom to live. This affirmed by Article 19 of the CRPD. They should make choices of when they want to engage in marriage, found a family and enjoy their family life. This right is affirmed by Article 23 of the Convention on the Rights of Persons with Disabilities. Persons with disabilities should be able to make choices on what type of vocational training they want to undergo; what type of employment they want to engage in and; what type of life they want to live. If they are persons like any other person, then, there is no argument about this.

Just imagine you are keeping twins of ten years in age. One of them is blind while the other is not. Both the boys come to you and say, “I want to play football now. Let me go.” How would you react to them? I can guess the reaction. You would quickly allow the one who is not blind and carry reservations on the blind boy. Why? Search for the answer!

The two boys have got the right to enjoy legal capacity. They have the right to make choices and decisions. Your decision on allowing them or not allowing one of them should not be based on the disability of the other child. Your judgment should not be pushed by the blindness of the other boy. It should purely be on the fact that the environment is not suitable for one of them. Therefore, what needs to be done is to create an environment which will allow the other blind boy enjoy his choice on an equal basis with the other boy. It is the environmental barriers, not the fault of the child. So! While giving this example which concerns children or minors, I take note that children may be ‘rights holders’ but may be limited by some laws to exercise their legal capacity on the basis of their age. The point then, should be on whether the other child is allowed, while the other is not, on the basis of his disability.

It is not the fault of persons with disabilities that they do not get school, but the attitudes of society and barriers in the physical and learning environment. It is not the mental and intellectual disability that causes what you see as the problem, it is the systems, processes, attitudes, policies and laws. Persons with mental and intellectual disabilities can be supported to make decisions despite their perceived incapacity to act independently. There is some sense of capacity to act that they carry and this capacity must be used to support them enjoy their legal capacity on an equal basis with others. What should prevail every time they receive support in decision making is their will and preference. No one should make decisions on their behalf. Depending on the capacity to act they carry, they should be observed or listened to and allowed to enjoy their decision making.

According to Article 12 of the CRPD, it is the obligation of the state to put in place measures for supported decision making for persons with disabilities, especially those with mental and intellectual disabilities. Such measures include legislative measures. In Zambia, this is where the Persons with Disabilities Act come in. The law must be amended to recognize the legal capacity of persons with disabilities. The law must spell out measures to support persons with disabilities exercise their legal capacity on equal basis with others. For mental health users, such legal capacity should include making decisions in their treatment and rehabilitation. To make clear to you now, Article 12 observes that some categories of persons with disabilities cannot fully exercise their legal capacity without appropriate support. The support could come from qualified professionals or significant others.

It would be folly to have the Persons with Disabilities Act that does not expressly give persons with disabilities their right to exercise legal capacity on an equal basis with others. The Act should also place measures for supported exercise of legal capacity. By doing so, the Act would be amending other laws that place guardianship or ward ship on persons with disabilities. In Africa, many were incapacitate persons with disabilities, especially those with mental and intellectual disabilities from enjoying their right to exercise legal capacity. This includes laws in countries like Zambia, Malawi and South Africa. It would amend laws that allow for involuntary admission of mental health users to mental health facilities. This would mean amending laws that provide for involuntary treatment of mental health users. This sounds crazy, but it should be a reality.

Malawi s currently struggling to enact a new law the Equalization of Opportunities for Persons with Disabilities. This law should give persons with disabilities their right to exercise legal capacity. If not, then it should progressively be amended to do so and be adjusted for being enacted. In Zambia, the Persons with Disabilities Act 1996 is being reviewed. This is an opportunity for including issues around the right of persons with disabilities to exercise their legal capacity.

Finally, it should be realized that the Convention on the Rights of Persons with Disabilities is bringing about a ‘thinking-turn-around” from looking at reasons the disabilities as objects of pity, charity, welfare to subjects who are persons who are independent and have the capacity make decisions of their own choice.

February, 2012.

INTRODUCTION

Today in the World, persons with disabilities comprise a significant part of the population. According to the 2010 global population estimates, more than one billion people are estimated to live with some form of disability. This is estimated to be about 15% of the world’s population. According to the World Report on Disability (2011), this is higher than previous World Health Organization estimates, which date from the 1970s and suggested a figure of around 10%.

It is reported that the number of persons with disabilities is growing. The 2011 World Report on Disability states that there is a higher risk of disability at older ages, and national populations are growing older at unprecedented rates. The report further indicates that there is also a global increase in chronic health conditions which will influence the nature and prevalence of disability. These include conditions such as diabetes, cardiovascular diseases, and mental disorders. The World Report on Disability argues that patterns of disability in a particular country are influenced by trends in health conditions and trends in environmental and other factors – such as road traffic crashes, natural disasters, conflict, diet, and substance abuse.

The disability experience resulting from the interaction of health conditions, personal factors, and environmental factors varies greatly. While disability correlates with disadvantage, not all people with disabilities are equally disadvantaged. Women with disabilities experience gender discrimination as well as disabling barriers. School enrolment rates also differ among impairments, with children with physical impairment generally faring better than those with intellectual or sensory impairments. Those most excluded from the labour market are often those with mental health difficulties or intellectual impairments. People with more severe impairments often experience greater disadvantage, (World Report on Disability, 2011).

Disability disproportionately affects vulnerable populations. There is a higher disability prevalence in lower-income countries than in higher-income countries. People from the poorest wealth quintile, women, and older people have a higher prevalence of disability. People who have a low income, are out of work, or have low educational qualifications are at an increased risk of disability. Data from selected countries show that children from poorer households and those in ethnic minority groups are at significantly higher risk of disability than other children.

Due to the phenomenon that disability correlates with disadvantage, it is an obvious argument that the continent of Africa has a higher prevalence of disability. The population of Africa is estimated at 1billion. 15% of this population comes to 150million persons with disabilities. Such a population can not by any means be ignored by governments when it comes the enjoyment and exercise of human rights on an equal basis with other citizens without disabilities.

There are many barriers that hinder the full enjoyment of human rights and fundamental freedoms on an equal basis with other. These include inadequate protective policies and laws, inaccessibility, negative attitudes, inadequate educational and employment opportunities and bad traditional practices (especially in Africa). These barriers call for efforts to increase advocacy work for the purpose of improving the human rights status of persons with disabilities.

The World Health Organisation and the World Bank Group produced the World Report on Disability 2011 to provide the evidence for innovative policies and programmes that could improve the lives of people with disabilities, and facilitate implementation of the United Nations Convention on the Rights of Persons with Disabilities, which came into force in May 2008. The UN Convention on the Rights of Persons with Disabilities reinforces our understanding of disability as a human rights and development priority. Unfortunately, many countries in Africa have not yet ratified the Convention. On the other hand, those who have ratified have not yet put in place measures to domesticate it.

It is important that countries implement the provisions of the CRPD. Where countries are unable to implement the provisions, there is need to have these implemented through the inclusion within the framework of International Cooperation. Technical assistance is therefore necessary from the developed countries to the less developed countries. It is important also that the UN system shows commitment towards assisting countries to implement the CRPD.

The Disability Rights Watch has therefore made strides to develop this strategic plan for the purpose of contributing towards the promotion and protection of the rights of persons with disabilities in Africa. The strategic plan is also meant to fulfill of the Disability Rights Watch’s mission and objectives. While the name of the organization is specifically focusing on “disability rights”, it is observed that the CRPD does not create new rights for persons with disabilities, and that disability rights are the actual human rights enshired in the UN charter, Convenant on Civil and Political Rights and Convenant on Economic, Social and Cultural Rights.

2.0   RECOGNITION OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Through a few partners in the disability movement:

2.1   realizing that the phenomenon of advocacy around the protecting and promoting the  uman rights and fundamental freedoms of persons with disabilities is dynamic and has dramatically changed since the adoption of the Convention on the Rights of Persons with Disabilities by the General Assembly of the United Nations in December, 2006;

2.2   Stressing the relevance of mainsteaming disability issues is a key strategy to full inclusion for sustainable development;

2.3   Concerned that many Disabled People’s Organisations in Africa have little capacity to advocate for the full promotion and protection of the rights and fundamental freedoms of individual persons with disabilities;

2.4   recognizing that the use of national and international human rights laws as tools for sustainable development in which persons with disabilities are fully included and involved is key:

2.5   Affirming the need for all countries to sign and ratify the Convention on the Rights of Persons with Disabilities;

2.6   recognizing that the Convention on the Rights of Persons with Disabilities provides for principles that promote and protect the rights and fundamental freedoms of persons with disabilities, and that such principles should be incorporated in domestic policies, laws and programmes of all State Parties to the Convention;

2.7   Taking note of the fact that the CRPD does not in any way create new rights for persons with disabilities:

a disability rights organisation based on the use of international and national law for inclusive sustainable development was incorporated and, is called the Disability Rights Watch (DRW). The organisation is incorporated as a limited company by guarantee operating as a non-profit civil society organization which is non-political and non-partisan.

3.0   ORGANISATION AND ESTABLISHMENT

3.1   Disability Rights Watch was registered as a limited company by guarantee in November, 2011. It is operating as non-profit organization.

3.2   Vision

The vision of the company shall be “persons with disabilities in Africa enjoying their rights and fundamental freedoms equally with the rest of the people and their inferent dignity respected equally”.

3.3   Mission statement

The mission sstatement of the company is “to defend, protect and promote the economic, social, cultural, civil and political rights and fundamental freedoms of persons with disabilities and ensure the respect of their inherent dignity on an equal basis like any other people in Africa”.

3.4   Objectives

The objective of DRW are:

3.4.1          Advancing and defending of human rights

To defend and protect persons with disabilities from all forms of discrimination, exploitation, violence and abuse;

3.4.2          Publicity and promotion of human rights

To promote the rights and fundamental freedoms of persons with disabilities outlined in the United Nations Convention on the Rights of Persons ith Disabilities (CRPD)and other international human rights convenants and conventions;

3.4.3          Demonstration of models

To demonstrate and model ideal situations of fulfilling the enjoyment of human rights by persons with disabilities in all aspects of life;

3.4.4          Capacity building of Disabled People’s Organisations

To build the advocacy capacity of Disabled People’s Organisations and their umbrella federations and bodies in Africa;

3.4.5          Litigation and legal precedence

To establish legal precedents to promote the rights and fundamental freedoms of persons with disabilities and to use these precedents for the purpose of transforming laws across Africa;

3.4.6          Promotion of domestication of Convention on the Rights of Persons with Disabilities

To develop and promote best practice on the domestication of the Convention on the Rights of Persons with Disabilities (CRPD) across Africa.