DEFENDING THE RIGHTS OF PERSONS WITH DISABILITIES

MANY parents of children with disabilities in Zambia today hide their children in homes and deny them an opportunity to socialise and access social development amenities. Sadly, this situation obtains even among very educated Zambians. The attitude of many people is still negative towards persons with disabilities in general. The truth is that no one chooses to live with a disability as it can happen to anyone at any time of their life.

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 translates to two million people in Zambia living with disabilities. Currently this disadvantaged group faces serious problems in accessing social services and justice on an equal basis with other persons. Our society must refrain from seeing disability as a condition on someone but must begin to see disability as a result of our inability to create an environment where all people can participate and live independent lives even if they have any form of physical impairment.

Zambia ratified the United Nations Convention on the Rights of Persons with Disabilities (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. The CRPD is the first internationally binding human rights instrument to comprehensively address the rights of persons with disabilities. The UNCRPD does not in any way create new rights for persons with disabilities. It merely seeks to clarify the applicability of existing human rights law in the specific context of disability. It shapes existing human rights law towards addressing the attitudinal and environmental barriers persons with disabilities face.

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.

It is worrying that despite having a progressive piece of legislation on disability, 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.

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.

Government programmes aimed at improving the welfare of persons with disabilities remain hugely inadequate and poorly funded.

The government established the Zambia Agency for Persons with Disabilities (ZAPD) to administer and coordinate issues concerning disability in Zambia. The establishment of ZAPD is continued by the Persons with Disabilities Act of 2012. The Agency is designated as the focal point in as far as coordinating the implementation of the UNCRPD. Unfortunately it is inadequately resourced in terms of finances, human resource and technology.

In the most recent months the agency was literally shut down by person with disabilities themselves due to its failure to operate to their expectations. It underwent a staff restructuring exercise that left a lot of its employees retired with unsatisfactory packages that sparked protests.

The Ministry of Community Development, Mother and Child Health MCDMCH is designated focal point ministry for matters pertaining to operationalisation of the Persons with Disabilities Act of 2012. The Minister in this ministry is empowered to issue regulations and statutory instruments for the implementation of the Act. The ministry is also responsible for managing the social protection programme through different schemes. This is in an attempt to reduce severe poverty. At the same time, it is in line with Article 28 of the UNCRPD (Social protection and adequate standard of living).

The National Trust for the Disabled (NTD) is a trust fund meant to provide micro-loans to persons with disabilities for them to engage in small enterprises. The trust is inadequately funded and almost invisible in may of the country’s 103 districts.

It is important that many Zambians take interest in matters relating to the welfare of persons with disabilities and play an active role in the promotion and

protection of their rights.

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