Submission to the legal and justice sector reform commission

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.

Visit our blog on: www.disabilityrightswatch.blogspot.com 

Parents of chldren with disabilities and their children have teamed uo to take advocacy for their children;s rights to another level

Human Rights Watch Report calls for disability specific HIV services

The Human Rights Watch says the Zambian government and international donors should develop disability specific HIV services and ensure accessibility and non-discrimination within mainstream HIV services.
HRW launched its report, "We Are Al...so Dying of AIDS" Barriers to HIV services and Treatment for Persons with Disabilities in Zambia on Tuesday July 15 in the capital, Lusaka.
The report recognises that the Zambian government has made significant progress in scaling up its response to HIV generally, but few programs are accessible to people with disabilities and social stigma prevents their access to HIV services on an equal basis with others.
"Across the contimum of care - from education to testing to treatment - people with disabilities in Zambia face hurdle after hurdle." said Rashmi Chopra, Sandler fellow at Human Rights Watch and author of the report.
As a regional leader in developing and expanding comprehensive HIV services, Zambia should remove barriers and become a model for inclusion of people with disabilities.
The full report can be accessed on http://hrw.org/node/126103

WAWA takes time to explain Education for All

By Wamundila Waliuya

Education must be for all! I really like this statement but I do not understand it. If I understand it, then, it should mean that there should be no form of discrimination in the education system. Is it possible today? I think so.

Let us try to look at it from this point of view. The education system everywhere should carry teacher training programme for all; a curriculum for all; teaching methodology for all; physical infrastructure for all; a school and community for all; teachers for all; school support staff for all; communication modes and language for all; education planning and budget allocation for all. This sounds crazy! But I am trying to talk about a system that gives access, effective participation and progression for all learners.

I again sound vague when referring to ‘all’. Who are these all? It may mean all citizens interested in learning. All citizens interested to learn should find the education system ready to absorb and accommodate them appropriately. The teachers must be ready for them. The school infrastructure must be ready for them. The curriculum, both core and extra-curriculum must be ready for them. The community too must be ready for them. Everything reconciling with education and learning must be ready. No one interested to learn must be made to adjust to the education system. They should only fit into the already accommodating system.

I think I am still vague when referring to ‘all’ and ‘them’. Let us look further at this example. The school system must be able to be ready for them interested in using staircases and those who are not interested in stairs cases but are interested in lifts, escalators or ramps. The schooling system should also accommodate those who use print, large print and Braille or those who use all the modes of communication. The schooling system should be able to accommodate those who use speech and can hear; those who use speech but use sign language also; those who use sign language only etc. The schooling system should accommodate those who prefer to have extra time to learn and prefer to learn certain subjects that suitable for them. The schooling system should be able to set different examining methods for those who prefer to be examined differently. For instance, one learner would say, “I do not need to learn mathematics because I feel I can not assimilate it at the same speed as my colleagues can. My intellectual capacity can accommodate mathematics. So I would like to learn particular practical skills and be examined in that”. The education system should accommodate this learner who needs to learn too. Not all learners need mathematics, science, geography, history and book keeping. Some learners would only need communication skills, home economics and activities of daily living and be examined in these. Nothing is wrong with this. But we tend to force all subjects or courses on everyone. Why?

Let us look at another scenario. A teacher training curriculum planning technical team is sitting and one says, “Guys, let us make a curriculum for teacher training which will include the following: compulsory English language, sign language, tactile language, Braille and at list one local language. Of course bearing in mid other courses like psychology, sociology and teaching methodology”. The planner then says, “You are correct, the teaching methods should equip the teachers with skills to accommodate those who need more time to learn; those who need individualized attention; those who prefer sign language; those who prefer computers with screen reading software; those who prefer large print; those who use Braille”. The other joins in to say, “Let us not forget those learners who need more intensive support like orphans with stress, girls with stress and those with intellectual difficulties”. Another jokingly but seriously says, “Let us not forget the elderly who still want to go back to primary school.” This seems to be a serious technical team. What do you think? A newly graduating teacher should be proud to shout, “I am a teacher for all learners”.

What an expensive education system! It is not expensive. It is inclusive. My question now is: where does the so called “special education” fall. Let’s talk.

Carolina retains her right to fertility by exercising her legal capacity

Carolina Banze, is a 37 years old lady who is schizophrenic. She lives in the neighborhood of Mahotas, Maputo City. Born in Maputo, Carolina Banze is married to Fenias Jaime Malhaule since 2003, also a mental health user. In 2008, Carolina got pregnant and gave birth to a baby girl. Immediately after birth she lifted the infant and attempted to kill her by throwing her into a flashing toilet within the ward. Another patient saw this and saved the baby. Carolina was immediately transferred to a psychiatry hospital.

At the psychiatry hospital, a female doctor approached her and asked her to be sterilized because it was not appropriate for Carolina to have children. Carolina says, “I refused saying that I needed children in future”. The sterilization procedure was not carried out. The child was taken by the State and is not at school. Carolina and the husband visit the girl regularly. She lives with a ‘god mother’ because Carolina refused to have her child adopted. She says,, “In future I will live with my child”.

This is a true reflection of the exercise of the right to legal capacity. The doctor allowed for free consent despite Carolina’s condition of being a mental health user. She also exercised her rights further by not allowing anyone to adopt her child on the basis of her mental state. We thank Carolina for giving us permission to publish her story. She is a member of the Mental Health Users Association of Mozambique. She is quite eloquent and always carrying a smile. She says, “It is wrong to sterilise women with psycho-social disabilities. We need children too”.

UNCRPD Ratification and Domestication Process in Zambia

                                                 A Thinking Paper

William Jennings Bryan: “Destiny is not a matter of chance; it is a matter of choice. It is not a thing to be waited for; it is a thing to be achieved.”

Helen Keller: “I cannot do everything, but I can do something. I must not fail to do the something that I can do.”

Mary Kay Ash: “Don't limit yourself. Many people limit themselves to what they think they can do. You can go as far as you mind lets you. What you believe, you can achieve.”

Abraham Lincoln: “Always bear in mind that your own resolution to success is more important than any other one thing.”

INTRODUCTION

Zambia is geographically a Southern African country and politically in Central Africa. It has about 13 to 14 million people according to the 2010 population and housing census. Zambia is a former colony of Britain, therefore it follows the common law system.
According to the World Report on Disability of 2011, 15% of every country’s population has some form of disability. This translates to close to two million people in Zambia has got some form of disability. However, the 2010 census gives an approximate population of between 350 000 to 400 000 people in Zambia has a disability. This gives a big margin in estimation. If there are close to 2 million people with disabilities in Zambia, then, this is a key population which needs not to be ignored in all national developmental activities and programmes across all sectors.
In this fast growing and developing era of new and high technology, the world is also experiencing a fast growing and developing shift in the way disability is viewed. This era has seen a shift from viewing disability as a charity and medical issue to more of a human rights and social issue. In short, disability is moving from being viewed using the medical model to using the social model.
In this article, we shall explore the medical and social perspectives of disability and look at the principles provided for by the UN Convention on the Rights of Persons with Disabilities. We shall also touch on the legal provision in the case of disability law in Zambia in as far as domestication of the UNCRPD is concerned. We shall then look at the current status of the process of domesticating and implementing the Persons with Disabilities Act of 2012 and of course the process of making the other laws comply with the principles of the UNCRPD.
THE UNCRPD
The United Nations Convention on the Rights of Persons with Disabilities was adopted in December 2006 and came into force on 3^rd May, 2008. Persons with disabilities consider the Convention is a landmark piece of international human rights law. It represents the official recognition of disability as a human rights issue on the international front. The UNCRPD symbolises a radical paradigm shift in conceptualising disability from a medical and charity model to a human rights and social model. It demands a move from viewing persons with disabilities as ‘objects’ of charity, medical treatment and social protection towards viewing persons with disabilities as ‘subjects’ with rights, who have the agency to claim these rights and make meaningful decisions for their lives as active members of society (United Nations, 2010).
The CRPD is the first internationally binding human rights instrument to comprehensively address the rights of persons with disabilities. The UNCRPD does not in any way create new rights for persons with disabilities. It merely seeks to clarify the applicability of existing human rights law in the specific context of disability. It shapes existing human rights law towards addressing the attitudinal and environmental barriers persons with disabilities face.
The CRPD looks at disability as resulting from the interaction of impairments with various barriers which hinders full and active participation in society on an equal basis with the non-disabled majority. This places the CRPD strongly within a social model, which is rights-based, as opposed to a medical model of disability which involves health-oriented legislative instruments. The UNCRPD embraces a social understanding of disability in which the societal constraints and barriers hinder full participation of persons with disabilities and inclusion in society. It looks at disability as not being caused by individual limitations but by the existing barriers in society. It is this understanding that creates the conceptual platform for articulating disability rights.
The text of the CRPD is comprised of twenty-five preamble paragraphs and fifty articles. It includes an introductory set of provisions outlining its purpose (Article 1) and key definitions (Article 2), along with articles of general (cross-cutting) application, to be applied across the treaty text (Articles 3 to 9). The CRPD also enumerates specific substantive rights elaborated across the full spectrum of civil, political, economic, social and cultural rights (Articles 10 to 30). Finally, it establishes a system of monitoring and implementation (Articles 31 to 40) and includes final provisions that govern the operation of the CRPD (Articles 41 to 50).
 The UNCRPD avoids defining ‘disability’ but in its preamble it recognizes it as “an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others....” In its Article 1, the Convention looks at Persons with disabilities as including those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. The Convention puts the ‘blame’ on attitudinal and environment barriers as the ones responsible for hindering persons with disabilities from enjoying and exercising their rights on an equal basis with other persons. This should be the basis of beginning to understand disability rights and how to address them as we review and develop new policies, laws and programmes or indeed as we promote and protect the rights of persons with disabilities.
In view of the above, it is inevitable to state that the barriers cause exclusion and restriction in participation thus leading to discrimination. Article 2 of the UNCRPD defines ‘Discrimination on the basis of disability’ as “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation”.
In the Convention ‘reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
Article 3 outlines the General Principles which include: respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity and accessibility. These general principles should premise the thinking, planning and implementation of systems and processes in the whole governance and development field. These general principles should also influence the development of policies and laws and regulations and their interpretations. It should be borne in mind that these general principles apply to all persons with disabilities including those with psycho-social and intellectual disabilities.
In Article 4 of the Convention, State Parties are obliged to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. In this same Article, governments are obliged to abolish or amend any laws that are not in compliance with the UNCRPD.
Article 12 is all about equal recognition before the law. This Article is interesting because it emphasises the fact that persons with disabilities have the right to recognition everywhere as persons before the law. The Article states that “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. It further says 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. The exercise of legal capacity applies to all persons with disabilities including those with psycho-social and intellectual disabilities.
The UNCRPD goes on to provide for accessibility, access to justice, the right to maintain fertility, access to health including reproductive health service, inclusive education and participation in public and political life. It promotes international cooperation in the implementation of its principles and provisions. States are also required to submit progress reports in as far as implementation is concerned after two years from the time of ratification.
In applying our laws or in the process of reviewing our policies and laws, we should always take into consideration the spirit of the UNCRPD at all times.
ZAMBIAN DISABILITY LAW
Zambia adopts the common law system and it therefore follows the dualistic system when it comes to ratification and domestication of international human rights instruments. This means that after ratification, the government should further adopt the provisions of the international instruments through enacting a local law that domesticates the instrument. Zamia uses the Cabinet to approve the ratification of international instruments. It domesticates them through Parliament.
The government passed a new disability law in July, 2012 and this law is cited as “The Persons with Disabilities Act of 2012”.
The Act is entitled as an Act to “…promote the participation of persons with disabilities with equal opportunities in the civil, political, economic, social and cultural spheres;  provide for mainstreaming of disability issues as an integral part of national policies and strategies of sustainable development; incorporate a gender perspective in the promotion of the full enjoyment of human rights and fundamental freedoms by persons with disabilities to the physical, social, economic and cultural environment, and to health, education, information, communication and technology; provide for the domestication of the convention on the Rights of Persons with Disabilities and its Optional Protocol and other international instruments on persons with disabilities to which Zambia is party, in order to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity….
The Act is the principle disability law. It states that “Subject to the constitution, where there is any inconsistency between the provisions of any other written law impacting on the rights 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.
It Part IV, the Act provides for strategic PLANNING FOR persons WITH DISABILITIES. It also provides for the general function of the Minister of Community Development, Mothers and Child Health. The key functions is to issue regulations and statutory instruments for the implementation of the Act. It further provides for the development of national strategies and Plan.
So, the actual implementation of the Persons with Disabilities Act of 2012 through a comprehensive National Implementation plan supported with adequate resources will actually be the true domestication and implementation of the UNCRPD in Zambia.
GOVERNMENT PROGRAMMES
ZAPD: the government established the Zambia Agency for Persons with Disabilities to administer and coordinate issues concerning disability in Zambia. The establishment of ZAPD is continued by the Persons with Disabilities Act of 2012. The Agency is designated as the focal point in as far as coordinating the implementation of the UNCRPD. Unfortunately it is inadequately resourced in terms of finances, human resource and technology.
MCDMCH: the Ministry of Community Development, Mother and Child Health is designated focal point ministry for matters pertaining to operationalisation of the Persons with Disabilities Act of 2012. The Minister in this ministry is empowered to issue regulations and statutory instruments for the implementation of the Act. The ministry is also responsible for managing the social protection programme through different schemes. This is in an attempt to reduce severe poverty. At the same time, it is in line with Article 28 of the UNCRPD (Social protection and adequate standard of living).
NTD: the National Trust for the Disabled is a trust fund meant to provide micro-loans to persons with disabilities for them to engage in small enterprises. The trust is inadequately funded.
TEVET: the Ministry of Education is running the Technical Education, Vocational and Entreprenuership Training with is aimed at empowering youths with enterprising skills. TEVETA is running an inclusive training programme intended to include youths with disabilities in their training. The programme is yielding some notable results. TEVETA is also in the process of aligning its inclusive training guidelines to the UNCRPD.
CURRENT STATUS
The government process of domesticating and implementing the provisions of the UNCRPD is ongoing. The government has in place the Act of 2012 that provides for the domestication of the UNCRPD and its optional protocol.
The optional protocol has not yet been ratified by the Government of the Republic of Zambia.
There is a National Disability Policy of 2013 in Zambia which has already been approved.
The government has already convened a stakeholder consultative meeting to map the development of the National Disability Implementation Plan whose aim is to implement the provisions of the Act and the UNCRPD. The process is on-going although not adequately funded.
The government is currently finalizing the Mental Health Law that domesticates some components of the UNCRPD concerning persons with psycho-social disabilities. This includes the right to legal capacity (including supported decision making).
The final draft Constitution of Zambia is still with the technical committee appointed by the President. It is yet to handover the draft to the President who is the appointing authority. The draft if it is as last seen last year has provisions on the rights of persons with disabilities including the prohibition of discrimination on the grounds of disability.
THINKING AROUND IMPLEMENTATION
In one of the advocacy training workshops, one member of the disability movement strongly called for the implementation of the UNCRPD by government. I threw back the question to the audience. What do you mean implementation of the UNCRPD? This was received with a chilling silence first. Then a whole lot of debate which left me to conclude that the majority of the members of the disability movement did not understand the whole process of domesticating and implementing the UNCRPD in Zambia.
The implementation is by strengthening ZAPD to effectively and efficiently deliver its mandate as provided for by the Act of 2012.
The other level of implementation is by having the Minister of Community Development deliver on his/her mandate as provided for by the Act of 2012. This includes ensuring that there is a comprehensive strategic implementation plan of the National Disability Policy.
The other level is by having all other ministers, working together with the Minister of Community Development to amend their laws to comply with the UNCRPD. At the same time the ministers should issue statutory instruments to enhance the implementation of the relevant clauses in the Act.
The Human Rights Commission should be designated as the independent monitoring mechanism for the implementation of the UNCRPD with the full participation of persons with disabilities as provided for by Article 33 of the UNCRPD.
Persons with disabilities and their representative organizations to use the provisions of the Persons with Disabilities Act to litigate and use the UNCRPD for persuasion purpose in their litigation actions.

ADVOCACY POINTS AND OPPORTUNITIES

There are still a lot of opportunities to pursue the expediting of the domestication and implementation of the Persons with Disabilities Act of 2012 and the principles of the UNCRPD. These opportunities should not be left hanging without getting hold of them. The DPOs and their allies should quickly grab the ‘low hanging fruits’ now.
The government has already committed itself through many for a that the implementation of the Act and the principles of the UNCRPD are its priority. This is demonstrated through the convening of the stakeholder consultative meeting on the implementation plan which was held about two months ago, in December, in Lusaka. DPOs should ride on this and keep reminding government to expedite the process. The voice of the DPOs should be amplified over this process.
ZAFOD is running a project on the monitoring of the implementation of the UNCRPD. The project has got a qualified full time member of staff trained to scope legislation and monitor reforms towards compliance with the UNCRPD. The project is a proper tool to bring together DPOs to enhance a united and strong voice based on evidence.
ZAFOD and CBM are managing a project whose aim is to ensure the mainstreaming of disability issues. The major output of this project is to have a clear mainstreaming plan. This is a powerful tool to influence quicker change and implementation.
Civil society is strong in calling for the enactment process of the Constitution of Zambia to be clear and quickened. DPOs can ride on this voice and be visible.
PROCESS CHALLENGES
The Zambia Agency for Persons with Disabilities and the National Trust for the Disabled are inadequately funded for them to effectively and efficiently drive the implementation of disability programmes in Zambia. This is aggravated by the appointment of focal point persons in government ministries and departments who are not adequately skilled with disability equality and inclusion knowledge.
There is inadequate pressure from the disability fraternity to compel government to quicken the process of implementing the provision of the Persons with Disabilities Act of 2012 and change the rest of the laws to be in conformity with the principles of the UNCRPD.
There is inadequate skill among the disability fraternity in the interpretation of the UNCRPD in relation to local application, thus weakening the advocacy process.
Many DPOs are economically weak, thus rendering them incapable to carry out effective strategic advocacy. The majority do not even have advocacy strategies strategic plans.
The general civil society is not equipped with adequate knowledge on the Persons with Disabilities Act and the UNCRPD in order to make these be part of their advocacy agenda. ROLE OF THE DPOs
The DPOs have got a direct mandate to participate in the monitoring of the implementation of the UNCRPD. This is as provided for by Article 33 of the UNCRPD which states that “Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process”.
The DPOs may participate fully by being part of the monitoring mechanism put in place by the State or by establishing independent monitoring mechanisms led by civil society by officially recognized by the State as a monitoring mechanism.
In order to effectively monitor implementation, the DPOs need to have the necessary capacity in terms of understanding what they are monitoring and how they are monitoring that which they are monitoring. So, skills development is required within the DPOs.      
CONCLUSION AND RECOMMENDATIONS
1       Persons with disabilities form a significant group of citizens in the population of Zambia and are key in all national interventions meant for economic growth and development. It is in view of this that they need to be fully and effectively included in all programmes and at all levels. This can be effected through the expeditious implementation of the provisions of the Persons with Disabilities Act 2012 and further alignment of the rest of the Zambian laws to the principles of the UNCRPD.
2       There is need to develop regulations that will operationalise the provisions of the Persons with Disabilities Act 2012.
3       The process of developing and finalizing the National Disability Implementation Plan must be quickened with the full participation of persons with disabilities at all states. This national plan will be the base for the inclusion of persons with disabilities in all sectors of national development.
4       The government should ratify the Optional Protocol by December, 2014. The optional protocol provides for a complaint submission procedure to the UN Committee on Disability once ratified. Complaints from countries that have not ratified No suggestions be admitted.
5       The government should quicken the process of enacting the new Constitution of Zambia. Persons with disabilities made UNCRPD driven submissions that need not to be lost. The current Constitution does not include disability as a prohibited ground for discrimination. The last draft of the Constitution that was released to the public last year carried this. It also included sign language as a real language.
6       The government should start the process of submitting the first progress report on the implementation of the UNCRPD to the Committee on Disability. The report is long overdue since it was due in 2012. The DPOs should at the same time develop and submit their shadow report.
7       The government should designate the Human Rights Commission as the independent monitoring mechanism of the implementation of the UNCRPD with the full participation of persons with disabilities. A monitoring committee should be put in place and adequately funded.
8       Disabled People’s Organisation should step up their advocacy work to ensure the State is up to speed with the implementation of disability programmes as prescribed in the Persons with Disabilities and as provided for by the UNCRPD. The DPOs should join the rest of civil society in calling for the enactment of the new Constitution. DPOs should be visible within civil society.

 Hope is There; Never Give Up!

Wamundila Waliuya,
Disability Rights Watch,
February, 2014.
Lusaka, Zambia.
 

Mozambique man with psycho-social disability amputated

A 46 year old man of Maputo was amputated after developing injuries around his wrist due to chaining within the hospital. The named gentleman lives in Maputo, Mozambique with his father, sister and nephew. He has brought his complaint to our Maputo paralegal partners, the Forum for Disability Organisations in Mozambique.

The named man says that he has been living with the psycho-social disability since the age of 24. All along he has been receiving traditional medicine and it kept him stable. In 2013, his traditional healer died. So, he could not continue with his traditional therapy. This led to having him develop a crisis. In December, 2013 he was rushed to Maputo Central Hospital. Just because he tended to be violent, he was tied up with wires around his wrists. He continuously complained about serious pain to the hospital staff but they ignored him. “I remained in pain all the time I was in hospital,” he said in Portuguese.

After some days, he was discharged and released to go home. Upon reaching home, he complained of serious pain so the uncle and sister took him back to the hospital but this time at the surgical section. The doctor prescribed amputation. The gentleman says that since he was experiencing great pain he agreed to be amputated. His two relatives confirmed this. He was amputated.

The gentleman and his relatives want to take action against the hospital for tying him and causing injury, leading to amputation. The Maputo paralegal team is putting together facts to ensure the matter has sufficient legal merit to proceed with court action.

Definitely the man was not supposed to be tied to such an extent as to cause such bodily harm. Someone must account for this. It is for a long time since we have been calling for restraint from medical personnel and the society from subjecting people with psycho-social disabilities when they tend to be violent. The manner in which the said gentleman was treated is equivalent to torture, inhuman and degrading treatment and punishment. His mental and physical integrity was also injured. His liberty and security of person was also injured by these medical personnel. The liberty issue could have been justified but it was extreme and reasonable accommodation should have been provided. Today, the gentleman suffers double impairments, psycho-social and physical impairments. Tragedy! His functional capacity is now restricted and his ability to physically work is now limited. The amputation may cause the aggravation of his mental state.

It is thus very important for governments to put in place laws that recognize people with different mental impairments as people just like any other person. Such mental health laws should outline the rights of people with mental illnesses as they receive mental health care services. Tied, chaining and beating should be banned and considered an offence. Mozambique does not have a mental health law in place. It has a draft Bill but that Bill does not comply with international human rights principles. Other countries in Africa have got colonial era Laws that treat people with mental illnesses as lunatics meant to be kept in prisons. Malawi has a draft Bill which does not comply with international human rights principles. So, what prevails is the colonial law of 1949. Zambia produced a Mental Health Bill this year. It is yet to be submitted to the Ministry of Justice. It somehow attempts to comply in some sections. We would to see this Bill pushed to Parliament in the next sitting for enactment. Let us all stand up to protect the rights of our beloved comrades.

Wamundila Waliuya.