Zambian court gets it right


A Zambian court last week delivered an important judgment on the rights of persons with psycho-social and mental disabilities at a time Lusaka is considering to reform its outdated mental health laws.

We should be inspired to follow this lead in Malawi.

In the case—Mwewa and Others v the Attorney General and Another—three people with psychosocial disabilities asked the court to declare the 1949 Zambian Mental Disorders Act unconstitutional.

They argued that the Act is a barrier to equal participation in society; provides for arbitrary and indefinite detention; leaves people with mental health needs unable to access services at primary healthcare level and leads to violations of people’s rights when exposed to abuse and inhumane conditions in psychiatric facilities.

The judgement stated that the language used in the Act was “highly offensive, derogatory and discriminatory” and the drafters of the law in 1949 “did not have anything in mind as far as the protection of human rights and fundamental freedoms is concerned.”

The court also ordered that mental health services should be availed at primary healthcare level and called for a thorough review of the 1949 Act.

News reports indicate that the Zambian government is planning to table a Mental Health Bill that will hopefully bring its laws in line with its obligations under the Convention on the Rights of Persons with Disabilities (CRPD).

The situation the petitioners in the Zambian case described is painfully familiar in Malawi.

Our laws inappropriately refer to people with psychosocial disabilities as “idiots”, “imbeciles” and people who are mentally “defective”.

The Mental Treatment Act similarly creates a system for indefinite and involuntary detention and treatment of people with psychosocial disabilities.

Mental health services remain largely inaccessible at primary healthcare level and people with disabilities often face discrimination when accessing healthcare services.Acts of violence and sexual abuse against people with disabilities often goes unpunished.

Like Zambia, Malawi is a signatory to the CRPD and enacted the Disability Act in 2012.

While the older legislation continues to see people with mental and psychosocial disabilities as second-rate citizens, the CRPD and Disability Act embraces an idea that disability is not inherent in the person –but a product of the interaction of an impairment with barriers in society that hinder the person from being an equal participant in their community.

The Act and CRPD commit Malawi to removing these societal barriers—and Malawi has many, including archaic laws, discrimination in our healthcare system and widespread stigma in out communities.

Even the recent Law Reforms on Elections have disregarded persons with disabilities to have self-representation in Parliament and other decision-making positions.

The Law Commission still regards persons with disabilities as a minority when World Bank Report of 2011 estimates the population at about  1.4 million.

This is an expression of direct discrimination. Persons with psychosocial disabilities are still not recognised to participate in the electoral process even in the proposed reforms.

The commission makes comparison of disability to minority groups who are in existence by choice, but no person chooses to have a disability.

As activists, we are often confronted with the idea that it is not possible for Malawi to live up to the ideals of the CRPD and the Disability Act.

Our Zambian neighbours are struggling with similar circumstances, but are showing us that change is possible.

The southern Africa region has the potential to be leaders internationally to show what is possible through a human-rights-based approach to disability that supports community-living and equality. May Malawi join our neighbours in leading the way! n

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