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)
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). 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,
freedom of expression,
freedom of association and assembly,
education,
protection from economic exploitation,
special care (in case of a disabled child)
and not to be discriminated against on grounds such as race, sex, religion,
disability or other status.
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.
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. 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
(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.
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.
In its interpretation clause, the Act defines a child as a person below the age
of 18 years.
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. 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.
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.
In order to detect, prevent and manage disability, the Act provides for the
periodic screening of children.
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
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.
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.
The principle of independent living
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.
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.
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.
This position was confirmed in the case of Attorney General v. Roy Clarke 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.
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.
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.
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
is instructive. In that communication, a complaint was lodged with the
Commission alleging that the Lunatics Detention Act
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
prohibits discrimination on the grounds of race, tribe, sex, place of origin,
marital status, political opinions colour or creed
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:
“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.
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.
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.
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
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
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.
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
(ZAFOD) conducted access audits in most public places such as bank, educational
facilities, hotels and local authority buildings.
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
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.
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,
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
does not only refer to persons with disabilities in derogatory terms such as
“idiots” and “imbeciles” but also discriminates against them in several ways. 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.
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.
