25th February, 2019.
For Immediate Publication
RE: MENTAL HEALTH BILL IN THE NATIONAL ASSEMBLY
This press statement is released in relation to the passing of the Mental Health Bill No. 1 of 2019 through first reading in the National Assembly and as a reaction to the statement made by the Ministry of Health Head of Media Relations Mr. Stanslous Ngosa on 22nd February, 2019. The statement is issued without any form of prejudice from the side of Disability Rights Watch (DRW) and should be construed as such.
Disability Rights Watch is delighted that at last the Mental Health Bill has entered the National Assembly and has passed the First Reading in the House. This is a huge stride towards the promotion and protection of the rights of persons with mental disabilities in Zambia. This process has been long overdue and is worth celebrating by all people who stand to promote the rights of persons with disabilities in Zambia. However, Disability Rights Watch has got serious concerns over the text of the Bill in as far as upholding international human rights standards and best practice; and of course upholding the Constitutional values and principles of the Republic of Zambia. The Bill contradicts itself in many sections and does not reflect the comprehensive submissions of the stakeholders who were involved in the consultative process of its development.
According to the statement issued by the Ministry of Health through its Head of Media Relations, the “Bill seeks to provide for respect, non-discrimination, autonomy, right to self-determination and legal capacity of individuals who have mental health problems, illnesses and disorders”. This is important in the lives of persons with mental disabilities who have for time immemorial continued to suffer discrimination, abuse, violence and exploitation. Persons with mental disabilities continue to suffer and still undergo some form of cruel, degrading and inhuman treatment and punishment within their families and the communities they live in and unfortunately even in mental health institutions. The arbitrary detention of persons with mental disabilities in police stations and certain and lawfully designated correctional facilities is still going on. This situation is perpetuated by the, according to the Ministry of Health statement, “outdated legal framework” which is the Mental Disorders Act of 1949. For real this old piece of legislation “from the colonial times” requires repealing and replacing with a more modern law which promotes and protects the rights and fundamental freedoms of persons with mental disabilities.
The new law as already stated, in its objects section, and as published by the Ministry of Health through its Head of Media Relations, should uphold the right of persons with mental disabilities to enjoy legal capacity on an equal basis with other persons as provided for by the UN Convention on the Rights of Persons with Disabilities in its Article 12 and the Persons with Disabilities Act of 2012 in section 8. It will be strange for disability rights organisations to fail to provide human rights protections in this prudent consultative process. We here submit
It goes without saying that a lot of laws in Zambia denounce persons with mental disabilities as persons of ‘unsound mind’ who do not have the right to enjoy legal capacity. Worse still, this notion is held within many institutions providing legal or law studies including Universities. The new Mental Health Bill should uphold the legal capacity of persons with mental disabilities to such an extent that they begin to be treated as persons who are right holders with the right to exercise those rights on an equal basis with other persons. The new law must promote and uphold the equal recognition of persons with mental disabilities as persons before the law. The new law should not by all means derogate the right to enjoy legal capacity by testing legal capacity using mental capacity. This will be total destruction in terms of aligning the law to international human rights standards and best practices. The current Bill does test legal capacity using mental capacity! The Bill contradicts itself in sections dealing with legal capacity!
Therefore, the Speaker of the National Assembly, Ministry of Health and the National Assembly Committee on Health, Community Development and Social Services and the whole National Assembly House, should take note of this and disallow the passing of a Bill that will not be in line with its own objects and international human rights standards and principles.
The enactment of the Bill should subsequently lead to the amendment of all other laws that continue to undermine the rights of persons with mental disabilities. This includes Article 13 of the Constitution of Zambia (Bill of Rights) which undermines the rights of persons with mental disabilities to personal liberty and it refers to them as persons with unsound mind. This is unfortunate and should not be tolerated in this era of human rights. This is why Disability Rights Watch stood strongly to support the amendment of the Bill of Rights in the 2016 referendum. We take this opportunity to call for the resumption of vigorous awareness raising campaigns on the need to amend the Bill of Rights through a national referendum before the 2021 general elections. This is so because the proposed Bill of Rights contains enhanced rights of persons with disabilities without any derogative terminologies like ‘unsound mind’. In view of this Disability Rights calls for the immediate undertaking for a referendum on the Bill of Rights.
The Mental Health Bill also, according to Ministry of Health statement, “sets out a community based approach to mental health provision which in turn will promote their livelihood”. This is excellent and in its text, this is what the Bill should explicitly state. This should lead to the de-institutionalisation of many persons with mental disabilities who mostly are kept in psychiatry institutions for unnecessary long periods. This should also see the provision of mental health services at primary health care level in order to bring the services to as close to the community as possible. The current scenario of referring all persons with mental health issues to Chainama Mental Health Hospital in Lusaka is undesirable and requires to be changed drastically. Families and communities should also be empowered with knowledge to take the full responsibility over their members who have mental health issues just like they do when any of their members suffer from other health conditions.
Prudently, the Bill “also establishes the National Mental Health Council which will provide oversight in the management and implementation of mental health services in a way that is compatible with the international best practices”. This component of the Bill is exciting on face value reading especially that it brings out the issue of “international best practices”. The most essential ‘international best practice, should be premised on the principles of the UN Convention on the Rights of Persons with Disabilities. It is in view of this that Disability Rights Watch wants to see a Bill whose whole text upholds these CRPD principles. The CRPD principles include respect for inherent dignity, autonomy including the right to make one’s own choices, independent living, non-discrimination, full and effective participation, respect for difference, accessibility and equality of opportunities. This is what the new Mental Health Bill should uphold, provide and protect. If it falls short of these principles then it falls short of international human rights standards and the suggested international best practice by the Ministry of Health through its Head of Media Relations.
The intentions of the Bill are clear and stand within the provisions of international human rights standards in its objects section. But unfortunately the text of the current Bill falls short of the above principles and international best practices. In some sections it recognises the legal capacity of persons with mental disabilities while in many sections it widely denies persons with mental disabilities their legal capacity. It still promotes the detention of persons with mental disabilities and strongly gives the powers to health practitioners and family members to make decisions on behalf of persons with mental disabilities. Persons with mental disabilities are viewed as persons who have got no rights to make decisions or to be supported to make decisions. If other people who are not persons with mental disabilities are allowed to make decisions and choices or participate in the process of receiving care, treatment and rehabilitation, why should a law like the Mental Health Bill deny that right to persons with mental disabilities? This will compromise the quest to make the Mental Health Bill compatible to international best practices, which should not happen as desired by the Ministry of Health and the State in general.
According to the UN Committee on the Rights of Persons with Disabilities General Comment No. 1 on Article 12, all persons with disabilities have got legal standing and the agency to exercise their rights. They are right holders and have got the right to exercise those rights. We, as Disability Rights Watch, know that many people are of the view that persons with mental disabilities cannot make decisions of their own. This is a wrong notion in as far as the human rights angle is concerned! The UN CRPD Article 12 is clear in that it provides that persons with disabilities should access the support they may require in exercising their legal capacity. This includes supported decision making for persons with mental disabilities. The Mental Health Bill No. 1 of 2019 must be very clear, explicit and elaborate on this!
Disability Rights Watch is of the view that the Mental Health Bill No. 1 of 2019 which has so far passed the First Reading stage in the National Assembly requires critical scrutiny and amendments in many of its sections. Mental Health Bills are a controversial matter internationally and Zambia should set a standard in enacting a law which complies with international human rights standards and principles. The consultative process the National Assembly has embarked on through its Committee on Health, Community Development and Social Services is very much desired and comes at the right time although very short notice was given for stakeholders to make submissions. Disability Rights Watch takes this opportunity to thank the President, Mr. Edgar Lungu for his visit to Chainama Mental Health Hospital on 1st January, 2019 and especially for his call to recognize persons with mental disabilities as persons of equal standing in society as any other persons. His stance on the rights of persons with mental disabilities should form part of the driving will for the development of a human rights based Mental Health law in Zambia. The voice of the President of Zambia on human rights matters should be upheld as policy statements that should be embraced as His Excellency’s submission to the promotion and protection of human rights of all persons residing in Zambia. Therefore, President Edgar Lungu’s visit and proclamation while at Chainama Mental Health Hospital on 1st January, 2019 should not be viewed as a charity visit but a Presidential policy position on the promotion and protection of the rights and fundamental freedoms of persons with mental disabilities. Therefore, the development and consultative process of the Mental Health Bill should seriously take the President’s position as a crucial contribution towards the repeal process of the Mental Disorders Act of 1949.