Advocacy Working Group in Action

We are grateful to the embassy of Finland for supporting the work of the advocacy working group for the rights of children with disabilities spearheaded by their parents. Here the working group meeting in Lusaka's George Compound to review progress on its work and develop new strategies.

Disability Rights Watch toasts release of persons with mental disabilities from Chainama East Prison

For Immediate Release I

August 11, 2014

This statement is released following the release of five persons with mental disabilities from prison by the Lusaka High Court last week.

Disability Rights Watch is pleased with the bold decision of the High Court to declare the long detention of the five mentally disabled persons illegal. In our view, this is a landmark judgment which will build up the portfolio of judgments which promote and protect the rights of persons with disabilities. The judgment has established a precedence in Zambia’s jurisprudence.

Disability Rights Watch DRW wishes to congratulate the Lusaka High Court for this landmark judgment. The organisation feels that it takes judicial activism to pass such judgments. DRW further congratulates the Legal Resources Chambers (LRC) for representing the petitioners with mental disabilities. We appeal to LRC to continue to take up more cases concerning persons with disabilities

Persons with mental disabilities who have been declared not fit to undergo trial and needed treatment have been detained for many years in our prisons. The conditions under which they are detained are not pleasant at all. Today, many more are still in prison without a fair trial and there is no one to stand for the protection of their rights to be only when found guilt after a fair trial.

The Convention on the Rights of Persons with Disabilities indicates that “States Parties shall ensure that persons with disabilities, on an equal basis with others: enjoy the right to liberty and security of person; are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty”.

Therefore, the continuous detention of persons with mental disabilities in prisons for long periods of time is in contradiction with international human rights law.

We wish to state here that the Zambian government ratified the Convention on the Rights of Persons with Disabilities and is bound to stick to its principles. Furthermore, the government enacted a progressive law which requires the courts to provide support for persons with disabilities to access court proceedings on an equal basis with other persons. The Persons with Disabilities Act of 2012 says 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. This includes persons with mental disabilities. The Act in part 2, section 8.(3) further states that there 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. In this case, the courts should now shape themselves to provide reasonable accommodation for persons with mental disabilities rather than detaining them for many years as they wait for psychiatry assessment.

An argument may be raised here that such people may be a danger to the community. This is a justifiable argument. It must however be realised that most of the people who commit crimes while in a state of mental crisis are usually triggered by social factors. It is the responsibility of the state and the citizenry at large to ensure factors that trigger mental crisis in many of the persons with mental disabilities are controlled. Steps should be taken to progressively develop community support services that will act as a measure to reduce mental disabilities. Such services include community based mental health services and community based rehabilitation. Families and communities should be educated on issues related to mental disability. Such education programmes should be supported by the state in such a way that the support is equated to that given to HIV/AIDS.

Now that the five persons were released from Chainama East Prison, a big question arises: is the family and community ready for them? This is why we are calling for a serious consideration to develop comprehensive community based support services for persons with mental disabilities.

We wish to congratulate the Lusaka High Court for the landmark judgment. It takes judicial activism to pass such judgments. We also congratulate the Legal Resources Chambers for representing the petitioners with mental disabilities. Will LRC continue to take up more cases concerning persons with disabilities.

 

Wamundila Waliuya,

August, 2014.

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”.