Submission to Judicial 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

• INTRODUCTION
  • 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).

• 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.

• CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
  • 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.
  • 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.
  • 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”.
  • 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”.
  • 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”.
  • 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.

 

• PERSONS WITH DISABILITIES ACT OF 2012
  • 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.
  • 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”.
  • 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.

 

• ISSUES WE ARE RAISING
  • 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.
  • 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.
  • 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.
  • The court buildings are not physically accessible.
  • 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.
  • 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.
• RECOMMENDATIONS
  • 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.
  • 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.
  • Zambia should ratify the optional protocol to the CRPD. The Persons with Disabilities Act provides for this.
  • 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.
  • 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.
  • 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.
  • 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.

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