By
Wamundila Waliuya
(Executive
President)
Disability Rights
Watch)
A Paper Presented at
the Workshop on Removing legal barriers to treatment: Legal training on health
and human rights Held from 27th to 29th June, 2016 in
Johannesburg, South Africa, convened by the Southern Africa Litigation Centre
(SALC)
1.
INTRODUCTION
Persons with
disabilities have been facing challenges in seeking the protection of their
rights and fundamental freedoms through strategic litigation. These challenges
are several. The challenges range from personal perceptions persons with
disabilities have as vulnerable people; unaffordable legal fees; fear of the
justice system and so on.
This paper
attempts to address matters around the protection of persons with disabilities
in the process of their quest to litigate. The paper will address the rights
persons with disabilities hold; the challenges they face both in health and
litigation, and provide recommendations to resolve such matters. The paper is a
contribution to the panel discussion whose objective is to equip participants
with strategies to ensure that the interests, dignity and safety of vulnerable
clients with disabilities are protected in litigations.
2.
CHALLENGES
PERSONS WITH DISABILITIES FACE IN ACCESSING HEALTH SERVICES INCLUDING HIV
SERVICES
Persons with
disabilities face challenges in accessing health services, including HIV
services on an equal basis with other people without disabilities. Some of the
challenges include the following:
a. Absence of confidentiality especially
for persons who are deaf. The fact that persons who are deaf require sign
language interpreters compromises the needed confidentiality, especially when
accessing VCT services. Confidentiality is also limited for persons who are
blind and can not independently get to the HIV centres or read any
documentation on their own.
b. Inaccessible infrastructure: some of
the buildings providing HIV services are not physically accessible making it
difficult for persons with disabilities, especially those with physical
disabilities to access services.
c. Negative perception: in some sections
of society, persons with disabilities are viewed as people who are not sexually
active. This keeps them away from the HIV centres in fear of stigma and
discrimination.
d. Inadequate accessible IEC materials:
persons with disabilities have got little access to HIV IEC materials. This is
especially so for those who are blind and need to use Braille.
e. Long distance: persons with
disabilities find it difficult to access health facilities due to long distance
from their homes, especially in rural areas. In towns, they may be limited by
funds and the discomfort of inaccessible public transport.
f. Persons with multiple, intellectual
and mental disabilities find it difficult to make informed consent in VCT. This
is so because of the difficulty they have in communicating in ways that will be
easily understood by the service providers. Some of the service providers may
deny those services. In extreme circumstances they may be exposed to forced or
involuntary testing and treatment.
3.
THE
UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
a. Background
This
section of the paper will focus on the United Nations Convention on the Rights
of Persons with Disabilities. This is the Convention upon which DPOs are basing
their strategic advocacy. In all common law countries, the UNCRPD must be used
as a tool for persuasion or legal reform.
The United Nations Convention on the Rights of Persons
with Disabilities was adopted by the UN General Assembly in December, 2006. It
was adopted at the same time with its Optional Protocol. The Convention came
into force on 3rd May, 2008. According to paragraph (y) of the
preamble of the UNCRPD States Parties adopted the Convention after being “cconvinced that a
comprehensive and integral international convention to promote and protect the
rights and dignity of persons with disabilities will make a significant
contribution to redressing the profound social disadvantage of persons with
disabilities and promote their participation in the civil, political, economic,
social and cultural spheres with equal opportunities…”. If we need to
deliberately address the matter of protection on persons with disabilities in
litigation, then we need to deliberately uphold this condition.
The purpose of the
Convention is to promote, protect and ensure the full and equal enjoyment of
all human rights and fundamental freedoms by all persons with disabilities, and
to promote respect for their inherent dignity. The adoption
of the Conventions confirms the position of many disability rights activists
that disability is perfectly a human rights issue. It therefore affects all
development issues.
It should be noted here, by the legal practitioners anew
all other judicial officials, that the UNCRPD does not in any way represent a
new set of human rights for persons with disabilities. It adopts the same human
rights outlined in the UN Declaration of Human Rights, and as affirmed by the
two International Covenants on Human Rights. What the UNCRPD does is simply to
focus on the same rights using a disability magnifier. Equal access to quality legal
representation is one of the key human rights issues the Convention focuses on.
The UNCRPD carries “heavy human
rights implications” on the lives of persons with disabilities and their
families. Before we dwell on the provisions of the Convention, it is essential
to understand the medical and social model of perceiving disability. The
medical model of perceiving disability focuses on the impairment a person has
as being the cause of the difficulties a person with the impairments faces in
their life. It looks at the impairment as being the problem that needs to be
‘fixed’ or ‘repaired’ or maybe ‘corrected’ in order for the person having the
impairment to function in a manner desirable to the rest of society. So, the
medical model blames the person and the impairment they have as being
responsible for all their limitations in life. The model is shaped in such a
way that it calls for the changing of the person with the impairment so that
they fit in society.
On the other hand, the social model
focuses on the environment as having barriers that hinder the person with
impairment from participating effectively in the affairs of the society. The
social model looks at society as having attitudinal and environmental barriers
that limit the effective involvement and participation of persons with
impairments in economic, social, cultural, political and civil affairs of their
society. So, the social model apparently blames the society as being
responsible for the inadequacies in the effective inclusion of persons with
impairments. The model seems to say, “Change the society by removing all the
barriers so that persons with impairments would participate on an equal basis
with other citizens of the world”.
In simple terms, the medical model
targets to fix the person with impairment while the social model targets to fix
the barriers in the society. This is the model upon which the principles of the
UNCRPD are premised. This is the same model upon which efforts to remove legal
barriers in accessing quality health on an equal basis with other people should
be premised.
It is obvious now that the UNCRPD focuses on
addressing the barriers and obstacles persons with disabilities face in their
day-to-day life as they attempt to enjoy and exercise their economic, social,
cultural, political and civil rights, including the rights to equal access to
quality health through the use of litigation. Arguably, this means that focus
should be on breaking the legal barriers and obstacles that hinder persons with
disabilities to litigate for the purpose of accessing quality health on an
equal basis with other people.
This brings us to the point of understanding the term
‘disability’. Although the UNCRPD does not explicitly define ‘disability’, it
views ‘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 tends to place the Convention
within the context of the social model which is rights-based. So, all efforts
and strategies to protect litigants with disabilities should be based on the
social model which is right-based.
Furthermore, what the UNCRPD brings with it is the
spirit of equality, non-discrimination, dignity and independent living. These
addresses the discrimination persons with disabilities have been suffering
without any protection from a binding international human rights law. The Convention
seeks to promote and protect the rights of persons with disabilities and
further promotes the respect for their inherent dignity.
b. Relevant provisions of the UNCRPD
As already observed above, the UNCRPD
does not explicitly define the term “disability”. However, in its preamble, the
Convention recognises “disability” 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 view
of this, the UNCRPD states that “Persons with disabilities include 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”.
This on its own signifies the importance
of viewing persons with impairments as being disabled by the barriers they meet
as they interact with the environment. These barriers include attitudinal,
environmental and institutional barriers.
For the purpose of this paper which
is on breaking legal barriers faced by persons with disabilities when
litigating, it is important to look at some of the definitions provided by the
Convention. Language and communication are some of the major barriers persons
with disabilities face.
The UNCRPD says that "Communication" includes languages, display of
text, Braille, tactile communication, large print, accessible multimedia as
well as written, audio, plain-language, human-reader and augmentative and
alternative modes, means and formats of communication, including accessible
information and communication technology. It further says that "Language"
includes spoken and signed languages and other forms of non spoken languages.
In the effort to break legal barriers, the above perceptions of communication
and language should be adopted. The failure to allow the use of the above modes
of communication and language are a form of discrimination on the basis of
disability.
In many instances, persons with disabilities are classed under the
umbrella of “vulnerable people”. This is correct only when it is related to
discrimination. The UNCRPD states that "Discrimination on the basis of
disability" means 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. The Convention says discrimination on the basis of
disability includes denial of reasonable accommodation. It further says that "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.
The justice system should get rid of discrimination on the basis
of disability. This is the largest barrier hindering persons with disabilities
seeking justice in the health sector through litigation. Provision of
reasonable accommodation. In protecting persons with disabilities from
discrimination on the basis of their disabilities, the UNCRPD provides some
general principles upon which any measures to be taken should be based.
Article 3 of the Convention provides the general principles. These
general principles are 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; accessibility; equality
between men and women; respect for the evolving capacities of children with
disabilities and respect for the right of children with disabilities to
preserve their identities.
It is clear that the above principles
provide a basis for effective protection of persons with disabilities when
seeking justice in the health sector through litigation. The principles provide
a ground for which legal practitioners can break the legal barriers throughout
the litigation process. The principles also provide a base upon which they can
frame their arguments in the efforts to address barriers in the health care
system.
Equality and non-discrimination is a
key principle which should always be carried by every practitioner in the quest
to protect persons with disabilities who choose litigation as a tool to redress
discrimination in the health care system. Article 5 of the UNCRPD provides for
equality and non-discrimination. Article 5 (1) states that “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”. Legal practitioners should ensure
they uphold this provision.
Paragraph 2 of Article 5
of the UNCRPD states that “States Parties shall prohibit all discrimination on
the basis of disability and guarantee to persons with disabilities equal and
effective legal protection against discrimination on all grounds:. This
provision strengthens the legal protection of persons with disabilities and it
equally needs to be upheld by the legal practitioners.
The UNCRPD further says
that “in order to promote equality and eliminate discrimination, States Parties
shall take all appropriate steps to ensure that reasonable accommodation is
provided”. Remember, reasonable accommodation is defined above. In this
instance, reasonable accommodation includes the provision of sign language for
those who are deaf; Braille materials for those who are blind; easy to
understand language for those with intellectual disabilities; support persons
to enhance supported decision making for those who have mental disabilities;
large print for persons with visual impairments; language interpreters for
those who can not speak English or any official language being used. The
institutions delivering justice should at all times be physically accessible to
allow all categories of persons with disabilities, especially those with
physical disabilities move independently for the purpose of respecting their
dignity.
The UNCRPD recognises girls and women
with disabilities as a more vulnerable group in its Article 6. It says that States Parties recognise that women and girls with
disabilities are subject to multiple discrimination, and in this regard shall
take measures to ensure the full and equal enjoyment by them of all human
rights and fundamental freedoms. This is essential for legal practitioners.
While viewing persons with disabilities as being vulnerable due to
discrimination, it is essential to note that girls and women are particularly
facing multiple discrimination on the basis of their gender and low economic
status. Furthermore, girls and women with multiple, intellectual and mental
disabilities face more discrimination than other girls and women on the basis
of the nature of their impairments. It therefore needs specific measures to
address their protection.
The other more vulnerable group is
children with disabilities. The UNCRPD emphasizes the recognition of children
with disabilities in Article 7. Apart from stating that in all actions concerning children with disabilities, the
best interests of the child shall be a primary consideration, Article 7 (2)
states that “States Parties shall 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, and to be provided with disability and
age-appropriate assistance to realize that right”.
This requires that in all
matters affecting children with disabilities who wish or whose representative
wishes to take the route of litigation, the best interest of that child should
be of primary consideration. Furthermore, the interests of the child with a
disabilities should be based on what the child has expressed. The impairment of
the child should not be in any way being a ground not to litigate or
participate in the litigation process. Age and disability appropriate measures
should be taken to reasonably accommodate that child with a disability. Such
measures include the respect and protection of the dignity of that specific
child at the time of litigation and in the future of the child. Professional
support persons or probation officers should always be available to provide age
and disability related assistance and protection to the child with a disability.
Specialised assistance and protection should be provided for children with
deafblindness, intellectual, mental and developmental disabilities. It is
recommended not to have such child related cases heard in public throughout the
legal process at all levels.
The principle of
accessibility is another important principle in protecting persons with
disabilities in litigation processes. Article 9 of the UNCRPD outlines
provisions on accessibility. Paragraph 1 of the Convection demands that “To
enable persons with disabilities to live independently and participate fully in
all aspects of life, States Parties shall take appropriate measures to ensure
to persons with disabilities access, on an equal basis with others, to the
physical environment, to transportation, to information and communications,
including information and communications technologies and systems, and to other
facilities and services open or provided to the public…”. The key phrase here
is “in all aspects of life”. This includes the field of justice delivery. Of
course justice delivery includes equal access to legal representation. Truly,
access to justice includes access to the physical environment, transport and
communication.
Article 9, paragraph 2 (b )requires
that State Parties take appropriate measures to “ensure
that private entities that offer facilities and services which are open or
provided to the public take into account all aspects of accessibility for
persons with disabilities”. Provision of accessibility here then affects the
private law firms that are to represent persons with disabilities.
Accessibility should begin from the chambers of law firms. If the chambers of
the law firms are not accessible in terms of physical environment,
communication, language and transport, they create a huge barrier for persons
with disabilities to equally access justice in their quest to access quality
health care on an equal basis with other people.
Article 12 of the UNCRPD is one of
the most interesting but challenging item of the UNCRPD. Article 12 is on equal
recognition of persons with disabilities as persons before the law. The UNCRPD recognises persons with disabilities as persons
everywhere before the law. The Convention also holds the reality that persons
with disabilities have got the right to enjoy their right to legal capacity on
an equal basis with others in all aspects of life. The Convention further
states that “State Parties shall take appropriate measures to provide
access by persons with disabilities to the support they may require in
exercising their legal capacity”. The Article requires State Parties to ensure
that safeguards are provided to avoid abuse. It further says that “such
safeguards shall ensure that measures relating to the exercise of legal
capacity respect the rights, will and preferences of the person...and apply for
the shortest time possible and are subject to regular review by a competent,
independent and impartial authority or judicial body”.
This provision of the Convention is
essential in the quest to protect persons with disabilities who choose the litigation
route in championing their right to quality health care services on an equal
basis with others. Although it covers all persons with disabilities, it touches
more on persons with mental and intellectual disabilities who are legally
declared as ‘incompetent’ or ‘of unsound mind’. In the spirit of substantive
equality, the UNCRPD upholds equal access to justice for all categories of
persons with disabilities while taking into considerations their different disability
related circumstances.
The right to legal capacity includes
access to support one may require in exercising their legal capacity. This may
be in circumstances where the decision making capability of a person with a
disability is restricted, but it should not in any way be interpreted as a test
for legal capacity. Mental capacity is not related to legal capacity! Legal
capacity is an inherent right. Rationally, persons with disabilities should
access the support they may require in exercising their legal capacity in the
process of litigation.
In simple terms, legal capacity
refers to the right of a person with disability to make their own decision and
be able to exercise those decisions. Legal capacity means the right of persons
with disabilities to self-determination in life. It means persons with
disabilities’ ability to control their lives. Legal capacity includes the right
to supported decision making in self-determination and making own choices. It
includes the right to own property and manage one’s financial affairs.
The rights to legal capacity are an essential
aspect of the legal system and legal practitioners should carry out further
reading on this subject. If not well understood, it may negatively affect the
rights of persons with disabilities in their quest to seek legal protection.
This is so, especially for persons with intellectual and mental disabilities.
In the process of protecting persons
with disabilities in the litigation process, the issue of equal access to
justice arises. The protection of persons with disabilities in litigation
includes the necessity to uphold equal access to justice. Equal access to
justice begins from the time the persons with disabilities raise a complaint of
human rights violation or any matter, either civil or criminal, to the relevant
authority in the justice system. The issue of legal capacity also applies at
this early stage. Article 13 of the UNCRPD is on access to justice. Paragraph 1
of the Article 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”. This is interesting!
The first thing to
observe is that “appropriate accommodations” should be provided. This arises
from the principle of reasonable accommodation. It also touches on the principle
of legal capacity in terms of supported decision making for adults with
disabilities and age appropriate assistance for children with disabilities.
Secondly, it covers for the “investigative and other preliminary stages” which
touches on all levels of the justice system. The legal practitioners should
take note of these two aspects of equal access to justice by persons with
disabilities. It affects the families, communities, police and other law
enforcement institutions, judiciary, law firms and quartz human rights
institutions including Human Rights Commissions and the Office of the Public
Protector where they exist.
Looking at the way the
issue of access to justice affects different institutions at different levels,
there is an obvious need to equip personnel working within the justice system
on the human rights issues of persons with disabilities. Without training, it
will be difficult to effectively protect persons with disabilities involved in
strategic litigation. The UNCRPD demands that personnel in the justice system
should be trained. Article 13 (2) requires 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”. This includes lawyers, Judges, Magistrates, judicial
clerks and health practitioners providing medical information as expert
witnesses. The training and awareness raising should be spread across all levels
including students of law and health practice. In many instances persons with
disabilities, especially those with mental disabilities are always detained in
police stations of prisons while seeking justice, but especially when they are
suspects of criminal offences. In many instances they have been detained or
imprisoned while waiting for medical or psychiatry assessment. Some have been improved
for more than 30 years without trial. Such imprisonment has been on the basis
on their disability, the disability being mental disability.
Article 14 provides for the liberty
and protection of the security of a person. The Article states 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”. This
means the existence of a mental disability shall not justify the deprivation of
liberty. This is crucial in the process of protecting of persons with
disabilities in the litigation process. In other words, no individual with a
disability, including mental disability should be deprived of their liberty on
the basis of their disability during the litigation process. In this
discussion, it includes offenders with mental disabilities! But the UNCRPD is
further progressive on this matter.
Paragraph (2) of Article
14 states that “States Parties shall ensure that if persons with disabilities
are deprived of their liberty through any process, they are, on an equal basis
with others, entitled to guarantees in accordance with international human rights
law and shall be treated in compliance with the objectives and principles of
this Convention, including by provision of reasonable accommodation. This is
the more reason that this paper emphasised Article 3 and Article 12 of the
UNCRPD. In addition the aspect of reasonable accommodation has been stressed.
It is within the hands of
legal practitioners to provide reasonable accommodation. It is within the
powers of the legal representatives to demand for the protection of liberty and
protection of person; legal capacity and respect for inherent dignity for all
persons with disabilities. Positive reflection should be done in terms of
protecting the rights of persons with intellectual ad mental disabilities.
Article 21 (a) requires that State
Parties ensure that persons with disabilities receive information on an equal
basis with other people by “accepting and
facilitating the use of sign languages, Braille, augmentative and alternative
communication, and all other accessible means, modes and formats of
communication of their choice by persons with disabilities in official
interactions…”. This Article is in support of Article 9 of the UNCRPD which
covers accessibility.
During the
process of protecting persons with disabilities who are litigating, the
protection of their privacy is essential. This applies to all persons with
disabilities especially those who are blind, deaf or have intellectual and
mental disabilities. Article 22 (1) says that No person with disabilities,
regardless of place of residence or living arrangements, shall be subjected to
arbitrary or unlawful interference with his or her privacy, family, home or
correspondence or other types of communication or to unlawful attacks on his or
her honor and reputation. The Article further says that persons with
disabilities have the right to the protection of the law against such
interference or attacks. Legal practitioners should ensure that the privacy of
litigants with disabilities is protected throughout the litigation process.
Paragraph 2 of
Article 22 further says that “States Parties shall protect the privacy of
personal, health and rehabilitation information of persons with disabilities on
an equal basis with others”. It is important to ensure all health information
of persons with disabilities is protected.
Article 25 is
specifically on health. The Article says that States Parties recognize that
persons with disabilities have the right to the enjoyment of the highest
attainable standard of health without discrimination on the basis of
disability. The Article also states that the State shall provide persons with
disabilities with the same range, quality and standard of free or affordable
health care and programmes as provided to other persons, including in the area
of sexual and reproductive health.
Article 25 requires health professionals to provide care of the
same quality to persons with disabilities as to others, including on the basis
of free and informed consent by, raising awareness of the human rights,
dignity, autonomy and needs of persons with disabilities through training and
the promulgation of ethical standards for public and private health care.
The UNCRPD is very progressive in as
far as promoting and protecting the rights of persons with disabilities seeking
equal access to health care through litigation. It is the responsibility of the
legal practitioners to ensure that that the provisions of the Convention are
interpreted in such a way that all forms of discrimination are eliminated in
the process of litigating.
4.
PROTECTING
THE RIGHTS OF LITIGANTS WITH DISABILITIES
a. Risks Persons with Disabilities May
Face
As can be observed in the discussion above persons with
disabilities face certain risks directly linked to their disabilities. Such
risks include the following:
i)
Compromise
of their privacy and confidentiality during the litigation process due the
communication and language barriers especially for those who are blind, deaf
and those with intellectual disabilities.
ii)
Loss
of dignity due to inaccessible infrastructure where persons with physical
disabilities are lifted up the stairs.
iii)
Denial
of the right to informed consent when it comes to decision making in the
litigation process due to mental and intellectual disability.
iv)
Compromise
of the anonymity of children with disabilities thus creating fear in the child
with a disability and their parents.
v)
Withdrawal
of the court case by persons with disabilities due to pressures coming as a
result of the length of court cases; poor or expensive transport and
inaccessibility to the courts.
vi)
Withdrawal
of cases by persons with disabilities due to high legal fees.
b. Measures to Protect Persons with
Disabilities in Litigation – the Case of Zambia
In
Zambia, there is a law titled “Persons with Disabilities Act of 2012). This Act
protects the rights of persons with disabilities and it domesticates the
UNCRPD. The Persons with Disabilities Act affirms the provisions of the UNCRPD
Article 12 by providing in its paragraph 8 (1) that “A person with disability
shall enjoy legal capacity on an equal basis with others in all aspects of
life”. Interestingly, this paragraph mirrors the provision of UNCRPD Article
12. The protection of the rights of persons with disabilities to participate in
the process of litigation without any form of discrimination is guaranteed in
this paragraph. Informed consent both in litigation and in accessing health
services is guaranteed here, including for those persons with mental and
intellectual disabilities.
It
should be noted that legal capacity includes supported decision making. It also
includes advance directives for persons with mental disabilities. Advance
directive means, giving instructions on how a person with a mental disability
should be treated by the justice institutions when they are in a crisis. This
instruction may be formal or informal to a next of kin, a close friend or any
attorney.
The
Persons with Disabilities Act directly seeks protection of persons with
disabilities in litigation by addressing the judiciary. Paragraph 8 (2) states
that “The Judicature shall take necessary measures to ensure that persons with
disabilities have equal and effective protection and equal benefit of the law
without discrimination”. This calls for the State to ensure that the justice
system is fully accessible and promoting and protecting the principle of
respect for inherent dignity, non-discrimination and independent living. This
is a huge challenge to legal practice and the judicial officials.
Paragraph
8 (3) of the Persons with Disabilities Act places the burden of ensuring equal
access to justice on the judiciary. This is one of the progressive provisions
of the Persons with Disabilities Act when it comes to the protection of all
categories of persons with disabilities to participate on an equal basis in the
justice system. The Act states 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”.
The Persons with Disabilities Act
ensure the protection of the interests, will, preference and dignity of persons
with disabilities in litigation. It protects the right of persons with
disabilities to reasonable accommodation. Legal practitioners in Zambia should
ensure that this part of the Act is enforced at all times when any person with
a disability is litigating. It is essential to develop jurisprudence around
this provision so that other common law countries may utilize the judgment.
In the Zambian courts a judgment was
passed concerning liberty and access to justice for persons with mental
disabilities detained while waiting for trial or psychiatry assessment. In the
case of Situmbeko Anaenyi and others Vs. the Attorney General of Zambia, in
which the five persons who remained detained in Chainama East Hospital
petitioned the State in April, 2014, seeks the following reliefs:
a)
a
declaration that their indefinite detention without trial was a violation of
their rights to a fair hearing within reasonable time as provided under
Articles 18 (1) of the constitution of Zambia.
b)
Declaration
that their indefinite detention without trial constituted a violation of their
right to liberty as enshrined in Article 11 and 13 (30 of the constitution of
Zambia.
c)
A
order that they be released then.
The Judge held that there was no
evidence suggesting that the failure of any of the petitioners to appear before
the court and take plea was on account of their own default. Even if they were
found to be of unsound mind by reason of schizophrenia after being examined by
psychiatrists and remained in the same state of mind since then, the law, as it
was set out in the Mbaye case, required that they be sent back to court….
Consequently, the Judge held that the
continued detention of all the petitioners at Chainama East Prison was illegal
on account that they were not afforded a fair hearing within reasonable time as
was guaranteed by Article 18 (1) of the constitution.
In view of the above the Judge
ordered that Anaenyi Situmbeko, Yona Lungu, Emmanuel Mwape, Stephen Phiri and
John Bwembya be released forthwith. The Judge found out that their detention
taking into consideration their schizophrenic condition was unreasonable.
This was a landmark Judgment that
stands to promote and protect the rights of persons with disabilities,
especially those with mental disabilities, to equal access to justice. Their
schizophrenic condition did not in any way require that they be detained for
long periods of time without trial. The longest detention was for 35 years.
5.
CONCLUSION
AND RECOMMENDATIONS
a. Conclusion
It is obvious that persons with disabilities face a lot
of challenges when taking their cases to court. Such challenges either stop
persons with disabilities from litigation or withdraw their cases from court.
The challenges are several. Most of the challenges are addressed by the UNCRPD.
The case of the Persons with Disabilities Act of Zambia sets an example of how
law should protect the rights of litigants with disabilities. It is very
important for other jurisdiction to emulate the case of Zambia. Strategic
advocacy is required from Disabled People’s Organisations whose governments
have ratified the Convention to ensure the enactment of disability laws that
domesticate it.
It is very important that legal practitioners take
pro-active steps to ensure the protection of persons with disabilities in
litigation. Persons with disabilities should also be encouraged and
strengthened to use strategic litigation as a tool for advocacy to ensure the
promotion and protection of their rights and fundamental freedoms.
b. Recommendations
In order to ensure that the interests, dignity and
safety of persons with disabilities in litigation are protected the following
recommendations are provided. These recommendations should be treated as
strategies to enhance the protection of persons with disabilities in litigation.
i)
Persons
with disabilities should be allowed to communicate in languages or
communication modes of their own choices and such languages or communication
modes should include sign language and Braille.
ii)
Persons
with disabilities who require the support in exercising their legal capacity should
be provided with that support by the State or they choose the support they
require and if possible, provide their own support which should be accepted by
the justice system throughout the litigation process. The support includes
supported decision making, sign language interpretation, and human readers for
blind persons, Braille and simplified language for those who require it.
iii)
The
will and preference of persons with disabilities should always be recognised at
all times in the process of litigation by persons with disabilities. The
principle of “the best interest of…” should be replaced by the principle of
“the best interpretation of the will and preference of…” which strongly
reflects exercise of legal capacity. It also promotes the principle of free and
informed consent in both the litigation process and health services decision
making. Legal practitioners should never allow substituted decision making in
both litigation processes and access to health processes.
iv)
All
institutions in the delivery of justice should ensure that all their premises
are physically accessible to all categories of persons with disabilities.
Accessibility audits of such premises can be carried out by trained personnel
from the DPOs with the provision of recommendations for relevant adjustments.
v)
Institutions
in the delivery of justice should ensure that the right of children with
disabilities to express themselves in the litigation process is upheld. This
right should be accompanied with the provision of age and disability
appropriate assistance. Where the dignity and future social standing of the
child with a disability is compromised, anonymity of the child should be
upheld. The child should not be exposed to the public through public hearings
and media coverage.
vi)
Legal
practitioners representing persons with disabilities should always ensure that
the respect for inherent dignity, autonomy and independence of persons with
disabilities is upheld throughout the litigation process. This calls for the
upholding of the other General Principles outlined in Article 3 of the UNCRPD
throughout the litigation process.
vii)
Legal
practitioners should always ensure that the issue of legal capacity, which
includes supported decision making and recognition of the will and preference
of the person with a disability, covers the aspect of free and informed consent
in the whole litigation process. The aspect of free and informed consent should
be upheld in decisions in the litigation process and decisions in consenting to
any medical and health services including reproductive and HIV services.
viii)
Legal
practitioners should at all times of the litigation process protect the rights
of persons with disabilities to mental and physical integrity. As already
indicated in the text of this paper, violation of the right to mental and
physical integrity comes in many forms which legal practitioners should
continuously guard against. This includes the avoidance of lifting persons
using wheelchairs up the stairs into the chambers of both the law firms and
courts.
ix)
Legal
practitioners should observe at all times the multiplicity of discrimination
faced by girls and women with disabilities. This occurs even in circumstances
where girls and women with disabilities are seeking respect for the realisation
of their rights through litigation. Violation occurs on men, including men with
disabilities. Therefore, legal practitioners should always mix the gender and
disability vulnerability when it comes to women with disabilities.
x)
Legal
practitioners should take deliberatye4 measures to learn and uphold the rights
of those persons with disabilities who require intensive support. Such persons
with disabilities may include persons with intellectual and mental
disabilities.
The general recommendation is that
legal practitioners from the common law countries should endeavour to develop jurisprudence
around the right to equal access to medical and health services for persons
with disabilities. Jurisprudence on the equal access to medical and health
services for persons with disabilities will:
a.
Develop
case law upon which legal practitioners will base their argument for redress on
the matter of equal access to quality medical care and health for persons with
disabilities.
b.
Strengthen
and build the capacity of persons with disabilities and their representative
organisations to demand for the protection of the rights of persons with
disabilities in seeking judicial redress on discrimination cases in the health
sector.
c.
Create
awareness among both the general public and persons with disabilities on the inherent
rights for persons with disabilities to seek quality health services on an
equal basis with other citizens and that the violation of such rights can be
appropriately be redressed through litigation.
d.
Establish
case law to amend all other laws that limit, restrict or impede the exercise of
persons with disabilities to equal and effective participation in the whole
justice system including litigation by persons with disabilities and their
representative organisations.
e.
Awareness
raising is key. This will demand for awareness development and education of the
judicial workers and other justice syste4m workers on matters affecting persons
with disabilities in accessing equal access to justice with the upholding of equality;
respect to inherent dignity, including informed consent; non-discrimination;
independent living and accessibility.
Further
Resources
1. The United Nations Convention on the
Rights of Persons with Disabilities
2. General Comment on Article 12 (2014)
of the United Nations Committee on the Rights do Persons with Disabilities.
3. The Persons with Disabilities Act of
2012, Zambia.
4. Visit: www.disabilityrightswatch.net.
