Analysis: BRUCE CHOOMA
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.
It is interesting to observe that the tabling of the Bill comes after Republican President Edgar Lungu visited Chainama Mental Health Hospital on 1st January, 2019 where he made a call to recognise 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.
In light of this background there are 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.
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.
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 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 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!
The Bill wrongly refers, in the Preamble, to the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Care General Assembly Resolution 46/119 of 17th December 1991 which has been superseded by the UN Convention on the Rights of Persons with Disabilities.
While we recognise the provision of the Bill in Section 15 sub section 7 (d) where it stipulates that women, children and elderly persons shall be exempted from fees, the Bill fails to address the enhanced vulnerabilities of particular groups who frequently experience multiple forms of discrimination and abuse, including women with mental disabilities who frequently face higher levels of forced treatment, involuntary institutionalisation, violence and rape, including in psychiatric health facilities.
The Bill must include a specific clause on the protection of women with disabilities from any form of violence, abuse and exploitation within the community and in psychiatry facilities.
Children with mental disabilities also need special attention in the Bill because they are at an enhanced risk of experiencing violence compared to other children and who, in institutional settings, often experience higher rates of restraint, seclusion, immobilisation and punishment as well as harmful practices such as placement with adults.
The Bill must include a clause that will ensure that children with mental disabilities are placed in specialised and separate mental health wards or institutions with specific measures for gender and age appropriate treatment, rehabilitation and protection.
Older persons with mental disabilities, who often experience higher rates of isolation, neglect, abandonment, restrictive practices and heightened vulnerability to abuse and exploitation within their families and communities are not covered by the Bill.
The Bill should have a provision on community based services, with a clause on community based health services specifically directed to elderly persons who usually suffer from dementia.
The author is Coordinator, Disability Rights Watch.
Analysis: BRUCE CHOOMA