DRW: Judicial System insensitive to mentally disabled persons

By Meluse Kapatamoyo

The Disability Rights Watch (DRW) has called on government to ensure that persons with mental disabilities are adequately represented in the courts to avoid them being detained unnecessarily.

This comes in the wake of five persons with mental disabilities who were released from Chainama East Prison recently.

 

DRW president Wamundila Waliuya appealed to the Legal Resource Chambers (LRC) to take up more cases for persons with mental disabilities who have been declared unfit to undergo trial.

DWR President Wamundila Waliuya

"Many need treatment and have been detained for many years in our prisons. The conditions under which they are detained are not pleasant at all. Today, many more are still in prison without a fair trial, and there is no one to stand for the protection of their rights when found guilty after a fair trial," he said.

 

The Persons with Disabilities Act of 2012 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. This includes persons with mental disabilities.

It further states 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 that person access justice and participate effectively in the proceedings.

The Convention on the Rights of Persons with Disabilities indicates that “States Parties shall ensure that persons with disabilities, on an equal basis with others: enjoy the right to liberty and security of persons; are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty”.

Mr Waliuya added that “the continuous detention of persons with mental disabilities in prisons for long periods is in contradiction with international human rights law. An argument may be raised here that such people may be a danger to the community. This is a justifiable argument. It must however be realised that most of the people who commit crimes while in a state of mental crisis are usually triggered by social factors."

He said it was the states’ and the citizens’ responsibility to ensure that factors that trigger mental crisis in persons with mental disabilities were controlled.

 

"Steps should be taken to progressively develop community support services that will act as a measure to reduce mental disabilities. Such services include community based mental health services and community based rehabilitation. Families and communities should be educated on issues related to mental disability. "

However, Mr Waliuya congratulated the High Court for its landmark decision to declare the long detention of five mentally disabled persons illegal.

"DRW congratulates the LRC for representing the petitioners with mental disabilities. In our view, this is a landmark judgment which will build up the portfolio of judgments which promote and protect the rights of persons with disabilities. The judgment has established precedence in Zambia’s jurisprudence."

But he added, "in this case, the courts should now shape themselves to provide reasonable accommodation for persons with mental disabilities rather than detaining them for many years as they wait for psychiatry assessment." PYM