Analysis: BENEDICT TEMBO
TWO persons with mental disabilities and the Mental Health Users Network of Zambia (MHUNZA) have brought a legal petition in the Zambian High Court seeking repeal of the Mental Disorders Act of 1949.
The petitioners argue that the Act unconstitutionally infringes on the rights of persons with mental and psycho-social disabilities.
The first petitioner is Gordon Madox Mwewa, a gospel musician and songwriter, while the second petitioner is Mulima Santa Kasote, a graphic designer and psycho-social counsellor.
The third petitioner is Sylvester Katontoka, the executive director and founder of the Mental Health Users Network of Zambia (MHUNZA). All the three petitioners are persons living with mental or psycho-social disabilities, who have experienced the impact of the Mental Disorders Act.
The Attorney General is the first respondent while the Zambia Agency for Persons with Disabilities (ZAPD) is the second respondent and opposes only the relief sought in relation to it in this matter in which Disability Rights Watch has been admitted as amicus curiae (a friend of the court).
The petitioners argue that the 1949 Act perpetuates an outdated and oppressive system of treatment and care for persons with mental and psycho-social disabilities.
They argue that the Act violates their human rights to dignity; equality; non-discrimination; freedom from torture, inhuman and degrading treatment; personal liberty; protection from deprivation of property; and constitutional protection of the law.
The petitioners aver that the Mental Disorders Act is unconstitutional and is therefore invalid.
They argue in addition that the Mental Disorders Act has been effectively repealed by the 2012 Persons with Disabilities Act, which domesticates the UN Convention on the Rights of Persons with Disabilities Act.
The petitioners are asking that the court make the following orders:
1. To declare that the Mental Disorders Act is unconstitutional and therefore void.
2. To declare that the Act is incompatible with the Persons with Disabilities Act and therefore invalid.
3. To declare that persons with mental and psycho-social disabilities enjoy the same right to informed consent to treatment and admission to healthcare facilities as all other persons.
4. To declare that the detention of persons with mental and psycho-social disabilities on the grounds of their disability is unlawful.
5. To direct the Zambia Agency for Persons with Disabilities to monitor the enforcement of the judgment and report to the Court on its implementation.
The Mental Disorders Act, enacted in Zambia during the colonial era, refers to people with mental and psycho-social disabilities in derogatory language and enforces a system of indiscriminate arrest, indefinite detention (including in prisons) and forcible treatment without procedural protections.
The Act perpetuates a two-tier healthcare system: mental health users are not able to access care at primary healthcare level and are forced to engage services available only in centralised psychiatric institutions in coercive and abusive circumstances.
The petitioners attest to how the Act has enforced a system of abuse, violence, confinement, isolation, the unregulated use of physical and medical restraints, and the denial of people’s legal capacity and human dignity.
The Attorney General submitted that it was flawed for the petitioners to argue or allege that the Persons with Disabilities Act, which is of course a law of general application, repealed the Mental Disorders Act, which is a specific law, a special law that deals with persons suffering from not any other disability but mental disorder.
The Attorney General argues that in established principles of interpretation, a general law yields to a specific law where the law operates in the same field on the same subject.
The Attorney General further submitted that there is no breach of human rights instanced by the Mental Disorders Act as the Persons with Disabilities Act No 6 of 2012 extends to persons with Mental Disabilities and takes their needs into account in accordance with the requirements of the Convention on the Rights of Persons with Disabilities.
They thought that the matter was before the court irregularly as the process of enacting the Mental Health Bill was already under way.
In their amicus curie submissions, DRW touched on the following matters:
1. An explanation of the paradigm shift that the CRPD introduced towards a social and human rights model of disability.
2. The violation of human rights that the Mental Disorders Act’s approach to people with psychological and mental disabilities creates and how this is harmful to mental health outcomes.
3. The concept of community-based care mandated by the Convention on the Rights of Persons with Disabilities CRPD.
4. The relationship between the right to legal capacity and the right to informed consent to medical treatment and medical admission.
5. The importance of the court’s ruling on the petition.
6. The absence of legal and empirical justifications for the human rights violations caused by the Mental Disorders Act.
The author is editorials editor at the Zambia Daily Mail.