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 20th to 21st 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.
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