Disability Rights Watch Zambia
Nexus Building
Malambo, Road
Lusaka, Zambia
The Chairperson,
Judicial and Legal Reform Commission,
Zambia.
Re:
Submission to the Judicial and Legal Reform Commission
1.0
INTRODUCTION
1.1
Disability
Rights Watch
The
Disability Rights Watch (DRW) is a non-profit making organization registered
under the Patents and Companies Registration Agency as a company by guarantee.
It was formed and registered in 2011. The aim of DRW is to ensure the promotion
and protection of the rights and fundamental freedoms of persons with
disabilities through strengthening the work of disabled persons’ organizations.
Its work is premised on the principles of the Convention on the Rights of
Persons with Disabilities (CRPD).
1.2
Persons
with Disabilities in Zambia
According
to the World Report on Disability (WHO, 2011), every population of a country
comprises 15% of persons with disabilities. In a population of around 13
million people, this is translated to close to two million people in Zambia
have disabilities. Currently these people still face problems in accessing
justice on an equal basis with other persons.
2.0
CONVENTION
ON THE RIGHTS OF PERSONS WITH DISABILITIES
2.1
Zambia
ratified the CRPD in 2010 but is yet to ratify its optional protocol. After
ratifying the CRPD the government went ahead to domesticate it by enacting the
Persons with Disabilities Act of 2012.
2.2 Article 4 (General
Obligations( of the Convention states that States Parties will undertake “to adopt all appropriate legislative, administrative and
other measures for the implementation of the rights recognized in the present
Convention”. The Article goes on to state that States will undertake to take all appropriate measures, including legislation, to
modify or abolish existing laws, regulations, customs and practices that
constitute discrimination against persons with disabilities; to take into account the protection and promotion of the
human rights of persons with disabilities in all policies and programmes; and to refrain from engaging in any act or practice that is
inconsistent with the present Convention and to ensure that public authorities
and institutions act in conformity with the present Convention.
2.3 Article 5 of the CRPD
says: “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”.
2.4 Article 12 of the CRPD
says, “States Parties reaffirm that persons with
disabilities have the right to recognition everywhere as persons before the law”.
It goes on to state that “States Parties shall recognize that persons with
disabilities enjoy legal capacity on an equal basis with others in all aspects
of life” and 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”.
2.5 In Article 13, the
Convention states that “States
Parties shall ensure effective access to justice for persons with disabilities
on an equal basis with others, including through the provision of procedural
and age-appropriate accommodations, in order to facilitate their effective role
as direct and indirect participants, including as witnesses, in all legal
proceedings, including at investigative and other preliminary stages”.
2.6 This Article goes on to
state that “in order to help to ensure
effective access to justice for persons with disabilities, States Parties shall
promote appropriate training for those working in the field of administration
of justice, including police and prison staff.
3.0
PERSONS
WITH DISABILITIES ACT OF 2012
3.1
The
government enacted the Persons with Disabilities Act in 2012. This Act
domesticates the CRPD. It provides for the rights of persons with disabilities
in Zambia. Part ii section 4 provides for the general principles that would
apply to all persons with disabilities and these include respect for inherent
dignity of persons with disabilities, individual autonomy including the freedom
to make one’s own choices, and independence of persons; non-discrimination; recognition
as persons before the law. The principles also include respect for physical and
mental integrity; independent living; full and effective participation and
inclusion in society; respect for difference and acceptance of persons with
disabilities as part of human diversity and humanity and equality of
opportunity. Other general principles are accessibility; gender equality;
respect for the evolving capacities of children with disabilities; and respect
for the right of children with disabilities to preserve their identities.
3.2
The
Persons with Disabilities Act in its section 8(1) states that “a person with
disability shall enjoy legal capacity on an equal basis with others in all
aspects of life”. Section 8(2) of the Act states that “the judicature shall
take necessary measures to ensure that persons with disabilities have equal and
effective protection and equal benefits of the law without discrimination”.
3.3
The
Act, in section 8(3) goes on to state that where a person with disability is a
party in any legal proceedings, the adjudicating body shall take into account
the condition of the person with disability and provide procedural and other
appropriate facilities to enable the person with disability to access justice and participate effectively in the
proceedings.
4.0
ISSUES
WE ARE RAISING
4.1
There
are still some laws which are not in harmony with the Persons with Disabilities
Act of 2012. These include laws like the Penal Code, Criminal Procedures Code,
Mental Disorders Act, Electoral Act and other laws pertaining to access to
justice and participation in public and political life. This includes the
Constitution of Zambia which discriminates persons declared of “unsound mind”.
These laws are not even in harmony with the spirit of the CRPD when Zambia
ratified this piece of internal human rights law.
4.2
Zambia
ratified the CRPD but has not ratified its optional protocol. This is in an
event where the Persons with Disabilities Act provides for the ratification of
the Optional Protocol.
4.3
Many
laws do not recognize the right to exercise legal capacity by persons with
disabilities, including those with mental and intellectual disabilities.
Section 8(1) of the Act of 2012 provides for the right to legal capacity.
4.4
The
court buildings are not physically accessible.
4.5
During
the whole justice process persons with disabilities are not provided with
reasonable accommodation, for instance sign language, Braille and other support
they may need when it comes to those with mental and intellectual disabilities.
4.6
The
human resource in the administration of justice is not trained to handle
persons with disabilities for the purpose of providing reasonable accommodation
and full participation.
5.0
RECOMMENDATIONS
5.1
The
government should ensure that all the laws are in harmony with the Persons with
Disabilities Act of 2012 when it comes to the right to exercise legal capacity;
access to justice; participation in public and political life; accessibility
and contracts.
5.2
The
draft Constitution should be quickly released to the public and the process of
enacting it expedited because persons with disabilities made progressive
submissions which includes their rights to personal development and
independence of person and the right to education. The Constitution should be
in line with the principles of the CRPD.
5.3
Zambia
should ratify the optional protocol to the CRPD. The Persons with Disabilities
Act provides for this.
5.4
The
Judicial Service Commission should ensure that all court buildings are adjusted
and modified for the purpose of making them physical accessible to persons with
disabilities. This includes placing signage to guide those who are hearing
impaired.
5.5
The
whole justice system should provide reasonable accommodation when it comes to
persons with disabilities. This includes providing sign language, Braille and
support measures for those who may need them especially those with mental and
intellectual disabilities.
5.6
Human
resource in the administration of justice should undergo training on issues
pertaining to the CRPD and the Persons with Disabilities Aact in order to
enable them handle issues of persons with disabilities appropriagtely. This
should include the revision of all the curricula used for traing such human
resource including the police, prison workers, lawyers and magistrates.
5.7
Persons
with disabilities should always be consulted in all matters that concern them.
This is to uhold the slogan “Nothing about us without us”.
We
pray that our issues will be attended to with the urgency they require.
Signed,
Wamundila
Waliuya,
Executive
President.
Submitted today, the 29 of July,
2014.
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