• Robyn White
  • Doctoral Candidate, Centre for Augmentative and Alternative Communication, University of Pretoria
  • BA (Free State), Honours in Augmentative and Alternative Communication (AAC) (Pretoria), Master’s in AAC (Pretoria)
  • Dianah Msipa
  • Doctoral Candidate, Centre for Human Rights, University of Pretoria
  • LLB (Hons) (Newcastle), LLM (McGill)

  • R White & D Msipa ‘Implementing article 13 of the Convention on the Rights of Persons with Disabilities in South Africa: Reasonable accommodations for persons with communication disabilities’ (2018) 6 African Disability Rights Yearbook 99-120
    http://doi.org/10.29053/2413-7138/2018/v6a5
  • Download article in PDF

Summary

Research has revealed that persons with communication disabilities are at high risk of becoming victims of crime and are often repeat victims. Most people who are victims of crime turn to the criminal justice system for recourse by reporting the crime to the police and testifying in a criminal trial against the accused perpetrator. However, persons with communication disabilities may find accessing and participating effectively in the criminal justice system difficult. This is because participation in the criminal justice system is predominantly through oral testimony and, more often than not, people with communication difficulties are not offered the correct support to enable them to participate effectively in the criminal justice system. Article 13 of the Convention on the Rights of Persons with Disabilities guarantees the right of persons with disabilities to access justice on an equal basis with others through the provision of ‘procedural and age-appropriate accommodations’. With South Africa as the jurisdictional focus, this chapter will use the human rights model for disability to demonstrate that all persons with communication disabilities can and should participate in the criminal justice system on an equal basis with others. The article will proceed to suggest specific accommodations which may be made in South African courts to give effect to South Africa’s obligations under article 13 of the CRPD to ensure effective access to justice for persons with communication disabilities.

1 Introduction

Research has revealed that persons with disabilities are particularly at high risk of experiencing various forms of violence and are often repeat victims.1 Two studies funded by the World Health Organisation (WHO) recently confirmed the prevalence and risk of violence against adults and children with disabilities.2 Data extrapolated from 21 557 adults with disabilities shows that 33.3 per cent had reported that they had experienced violence in the 12 months prior to participating in the study.3 Of these people, 24 per cent had psychosocial disabilities; 6.1 per cent had intellectual disabilities; and 3.2 per cent did not disclose the type of disability they have.4 In another study, data obtained from 18 000 children with disabilities demonstrated that 20 per cent of these children, which is a staggering one in five children with disabilities, experienced physical violence, and 14 per cent had been sexually abused.5 People who experience crime often turn to the criminal justice system for redress. In most countries, including South Africa, this ability to turn to the law for protection and redress is a right protected and guaranteed by law. The Constitution of the Republic of South Africa, (the Constitution) guarantees to every citizen the right to equality before the law.6 It states that everyone is ‘equal before the law and has the right to equal protection and benefit of the law’.7 Furthermore, section 9(3) provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more of the listed grounds, including disability.8 By implication, therefore, persons with disabilities are entitled to the protection and full benefit of the law on an equal basis with others, at least in theory. However, in practice this is not the case. Persons with disabilities face numerous barriers to accessing justice, such as environmental barriers, attitudinal barriers, communication barriers and legal barriers.9 Persons with communication disabilities, in particular, have difficulty accessing justice on an equal basis with others. This is because adversarial criminal justice systems, such as that in South Africa, require witnesses to appear in court in person and give oral testimony in front of the accused perpetrator.10 The South African Criminal Procedure Act requires witnesses to testify viva voce in court, meaning that they are required to testify orally.11 This requirement presents difficulties for persons with communication disabilities because, as the term suggests, persons with communication disabilities have difficulties communicating orally.

Communication disabilities, sometimes known as speech, language and communication needs, or communication difficulties, refer to persons who experience difficulty with one or more aspects of communication.12 Persons with communication disabilities have difficulties with speech, language or the ability to understand or all three.13 Communication disabilities may be present from birth, arising from a type of disability, such as intellectual disability.14 These disabilities may also develop at any stage during a person’s life, due to, for example, a person suffering a stroke.15 They may be short-term or lifelong.16 Persons with communication disabilities can experience difficulties such as fully understanding what is being said to them, expressing themselves through speech, concentrating for long periods of time and remembering information they have been given, to mention a few.17 As a result of these difficulties, persons with communication disabilities may have difficulty participating effectively in the criminal justice system, and if they are not properly supported, they may fail to access justice on an equal basis with others.

Access to justice is a right protected under international law. Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD) provides for the right of access to justice.18 It requires states parties to ‘ensure effective access to justice for persons with disabilities on an equal basis with others’.19 Although the CRPD is recognised as the first international human rights instrument containing a substantive right of access to justice, the right existed prior to the coming into force of the CRPD in 2008.20 In international human rights law the right is usually termed as the right to an effective remedy.21 However, it was included in the CRPD as a substantive right because it was a response to the ‘specific rights experience of persons with disabilities’, that is, it was a recognition of the fact that persons with disabilities face numerous barriers to accessing justice.22 However, the significance of the CRPD goes beyond the mere fact that it provides for the right to access justice. It is also significant as it contains a paradigm shift from the medical model of disability where disability was seen as innate in the individual, and persons with disabilities were viewed as objects of charity23 to the human rights model, according to which persons with disabilities are recognised as the holders of rights.24 Robinson puts it succinctly when she states that ‘disability is a rights issue first and a medical matter second’.25 The human rights model is important because of its emphasis on the fact that persons with disabilities are holders of rights and that impairment is not to be used as a justification for a denial or restriction of rights.26 In other words, persons with communication disabilities have a right to access justice on an equal basis with others, and the fact that they may have difficulty communicating in what might be called the ‘conventional’ way does not mean that they cannot or should not participate in the criminal justice process.

The next logical question then is how persons with communication disabilities can access justice on an equal basis with others. The answer is found in article 13 of the CRPD. In order to ensure access to justice by all persons with disabilities, the CRPD requires the provision of procedural and age-appropriate accommodations as well as the training of those working in the field of administration of justice.27 There are laws in the South African legal framework that provide for various accommodations, such as the Criminal Procedure Act 51 of 1977; the Children’s Act 38 of 2005; and the Child Justice Act 75 of 2008; to mention but a few.28 However, it is argued that these Acts are inadequate in ensuring effective access to justice for persons with communication disabilities due to three limitations. The first is a limitation relating to the type of accommodations provided for in these laws; the second is a limitation in relation to the people who may take advantage of the accommodations provided for in the legislation. The third and final limitation is the failure to provide for the training of criminal justice personnel. The failure to adequately accommodate persons with communication disabilities in the criminal justice system amounts to a denial or, at the very least, a restriction of the right of persons with communication disabilities to access justice on an equal basis with others.

This chapter will be divided into three parts. The first part deals with the concept of accommodation. The second part demonstrates the inadequacy of the South African legal framework in providing for accommodations which would enable persons with communication disabilities to effectively participate in the criminal justice process. The third part provides recommendations for ways in which persons with communication disabilities can be properly accommodated in the South African criminal justice system.

2 Right not privilege: The duty to reasonably accommodate

In the criminal justice context, the provision of accommodations is a right for persons with disabilities and a duty for criminal justice personnel.29 This is in line with the human rights model of disability.30 Article 13 of the CRPD states that equal access to justice for persons with disabilities is to be achieved through the provision of ‘procedural and age-appropriate accommodations’.31 The concept of accommodations appears in the CRPD much earlier than article 13. It appears in article 2 of the CRPD which contains a definition for the term ‘reasonable accommodation.’ The CRPD defines reasonable accommodation as:

necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden where needed in a particular case to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.32

Put simply, the term ‘accommodations’ refers to any modification to usual practice. There is a requirement in article 2 of the CRPD for accommodations to be reasonable in the sense that the provision of the accommodations should not impose an undue or disproportionate burden. The principle of reasonable accommodations existed before the entry into force of the CRPD in 2008.33 In the Hamilton v Jamaica decision, the Human Rights Committee made use of the concept of reasonable accommodations prior to the entry into effect of the CRPD.34 The Committee held that Jamaica’s failure to detain a prisoner with paralyzed legs in premises that were adapted to meet his needs arising from the disability was a breach of the prohibition in the International Covenant on Civil and Political Rights (ICCPR) against the inhumane treatment of detainees.35 The European Court of Human Rights in Price v UK36 also recognised the duty on states to provide reasonable accommodations when they held that the detention of the applicant, who was four limb-deficient, in premises not adapted to meet her needs amounted to degrading treatment in contravention of the European Convention on Human Rights (European Convention).37 The concept of reasonable accommodations was borrowed from labour law jurisprudence and ‘indicates a form of relaxation aimed at combating discrimination caused by the strict application of a norm’.38

Reasonable accommodations are aimed at ensuring that persons with disabilities can participate in all aspects of society, including in the criminal justice process on an equal basis with others.39 The purpose of providing accommodations to persons with communication disabilities in the criminal justice system is to ‘facilitate their effective role as direct and indirect participants’.40 In the criminal justice context, accommodations are intended to equalise participation as opposed to relaxing the rules of criminal procedure and evidence.41 Primor and Lerner put it aptly when they summarised it as ‘accommodation not alleviation’.42 They go on to state that

[t]he object of making proceedings accessible is not to ease the process for persons with disabilities nor improve his or her well-being during the police inquiry or trial. Rather, it is to enable him/her to participate fully in these proceedings without having restrictions or limitations placed due to the disability.43

The provision of reasonable accommodations is a duty. This is demonstrated by the fact that the CRPD regards the denial of reasonable accommodations as discrimination.44 In other words, if one fails to accommodate a person with a disability, they will have effectively discriminated against that person on the basis of disability. Furthermore, article 5(3) of the CRPD requires states to provide reasonable accommodation. It states that parties ‘shall take all appropriate steps to ensure that reasonable accommodation is provided’.45

Despite the provision of reasonable accommodation being a duty on states and a right of persons with communication disabilities, this duty is not without limits, hence the term ‘reasonable’ accommodation. State parties are only required to provide accommodations where doing so does not cause a ‘disproportionate or undue burden’.46 Kallehauge is of the view that the question of whether a burden is disproportionate or undue turns upon who the holder of the duty is.47 For example, if it is the government or a public authority which bears the duty to accommodate, then ‘the burden will have to be extremely heavy before it can be considered disproportionate or undue’.48 Reasonable accommodation is important as it affects the enjoyment of other rights, as illustrated by the following extract:49

The right to education ... would be meaningless for children with sensory impairments, such as blindness or deafness, without some provision for information and communication to be made accessible to them ... The right to work would be effectively nullified for many disabled people if employers were entitled to treat them in exactly the same way as their non-disabled colleagues without any obligation to consider adapting timetables, physical features or equipment to accommodate their needs.

In the context of the criminal justice system, an opportunity to testify in court would not mean as much to a person with communication disabilities in the absence of accommodations to enable them to effectively communicate. Even though persons with communication disabilities need to be accommodated in the criminal justice system, such accommodations ‘cannot be at the expense of the essential rights of the other parties to the proceedings’.50 Primor and Lerner go on to explain this point as follows

Thus if a rule or procedure might prevent a person with disabilities from efficiently participating in the process, then that aspect of the procedure should be made accessible, but the substantial rule of law and the delicate balance between the interests of both parties therein remain unchanged. For example, cross-examination of a witness by the defense attorney cannot normally be waived ...

Furthermore, the spectrum of communication disabilities is broad and different individuals will need different types of support.51 Therefore, it is important that the support or accommodations be provided on a case-by-case basis based on the needs of a particular individual.52 Accommodations in the criminal justice system should also be independent and should not be made on behalf of the defence or the prosecution and should normally be provided at each stage of the proceedings, that is, at both the investigation and trial stages.53

3 Legal framework in South Africa regarding accommodations: Limitations

There are laws in South Africa which make provision for accommodations. It is important to highlight right from the outset that the accommodations provided for in South African law are not specifically aimed at persons with disabilities, with the exception of three provisions. The first is section 42(8)(d) of the Children’s Act,54 which requires proceedings involving children to be held in a room that is ‘accessible to disabled persons and persons with special needs’.55 This provision may benefit a child with a communication disability who needs to be accommodated, depending on how it is interpreted. However, since the provision makes reference to accessibility, it may be of more benefit to persons with physical disabilities who have difficulties accessing inaccessible buildings. The second provision dealing specifically with disability is section 161(2) of the Criminal Procedure Act.56 This provision requires witnesses to testify viva voce (orally). It states that viva voce shall in the case of a ‘deaf and dumb’ witness ‘be deemed to include gesture’.57 The third provision is found in the Children’s Act which provides for appropriate questioning techniques for ‘children with intellectual or psychiatric difficulties or with hearing or other physical disabilities which complicate communication’.58 Apart from these three provisions, the rest of the provisions in South African law are not specifically intended for persons with disabilities. These provisions have the following limitations.

3.1 Limitation in relation to the type of accommodations that may be provided

There are many accommodations that can be made for persons with disabilities in the context of the criminal justice system. These accommodations fall into two main types, namely, accommodations involving the environment and accommodations to do with communication. 59

3.1.1 Accommodations involving the environment

The environment in which a person gives their testimony is very important as it can either negatively or positively affect ‘testimony-related anxiety’.60 Testifying in court has been proved to have the potential to cause ‘psychological stress and traumatisation’, particularly for complainants or victim witnesses.61 An intimidating setup or environment may serve to increase the anxiety that a witness with communication disabilities might experience and, in turn, affect the way in which they narrate their account. Conversely, a comfortable, friendly environment may make a witness less anxious and better able to narrate their account. Accommodations, therefore, should be made to the environment in which the witness gives their account. There are several accommodations which may be made to the environment. These include:

  • conducting interviews outside the police station and without uniforms.62
  • having a support person present during interview or trial. A trusted person such as a friend or a family member may accompany the witness to provide him or her with moral support. This person does not say anything or play any part in the proceedings. Their role is simply to provide moral and emotional support to the witness.63
  • conducting witness preparation before the court date. Witness preparation is normally carried out by the prosecutor in the criminal matter and involves measures such as visiting the court in advance in order to ensure that the witness becomes familiar with the setting in the courtroom, and reminding the witness of the account they gave at the police station during the recording of their statement by the police. Witness preparation is carried out in order to ensure that a witness becomes as familiar as possible with the setting and procedures in court before testifying. This can reduce the amount of anxiety of the witness on the day of the trial.64
  • giving evidence via closed-circuit television. Usually this is used for witnesses who may be traumatised by giving evidence in front of the accused person. Therefore, the accommodation that would be made for such a person is allowing them to testify in a separate room via closed-circuit television cameras. The accused person would still have the opportunity to watch and hear the witness testify.
  • taking extra breaks - Some people may tire easily and may not be able to concentrate for long periods of time. The accommodation that would be needed for such a witness is simply allowing them to take extra breaks so that they can refresh themselves.
  • describing the room, introducing the people in the room and describing the process which the witness will go through in court.
  • having as few disturbances as possible.
  • changing the seating arrangement in court by having everyone sit in a circle, for example.
3.1.2 Accommodations to do with communication

These are accommodations to the language the witness uses and, unlike accommodations to the environment, they touch on the actual content of the witness’s evidence. In other words, they have to do with the manner in which a person understands the questions put to them and how they convey their account. Section 22(7) of the Israeli Act provides for this when it makes provision for the use of Augmentative and Alternative Communication (AAC), which includes people’s assistance, ‘computerised aids, communication panels, photos, symbols, letters or words’.65 The Israeli Act also provides for the use of a special advisor to give advice on such things as phrasing, simplifying questions, and giving warnings concerning potential harm to the witness.66 Persons with communication disabilities usually need accommodations in order to participate effectively in criminal proceedings. Specific categories of persons who may require support in order to communicate include persons with intellectual disabilities, persons with physical disabilities and persons with neurological conditions or persons who are deaf. The following accommodations to do with communication may be made:

  • Witnesses who have difficulties relating the time when an event occurred may be accommodated by asking questions that help the court to understand time in the same way that the witness understands time. For example, a woman who lived in an institution for most of her life was raped by one of the staff members at six o’clock in the morning. During her testimony, she said that the incident occurred at six o’clock in the evening. The court accommodated her by attempting to understand how her time was ordered in the institution. A series of appropriate questions revealed that the witness ordered her time according to the staff shifts. The night shift began at night but ended at six o’clock in the morning. It was discovered that what she meant by six o’clock at night was six o’clock in the morning but during the night shift. Therefore, there were no inconsistencies in her testimony in relation to time.67
  • Witnesses who have difficulties with the concept of dates can be accommodated by asking questions which use temporal milestones which the witness can understand and which can also be verified by others.68 For example, the court might ask whether the incident occurred before or after a public holiday or the person’s birthday, or some other temporal milestone.
  • Witnesses who have difficulty explaining where an event took place can be asked to go to the place where it occurred and to point out exactly where the incident occurred. Questions such as ‘where was the table in relation to where you were standing’ may not be helpful for persons with communication disabilities. 69
  • Witnesses with limited language skills may be accommodated through the use of anatomically correct dolls. 70
  • Witnesses may also be accommodated through the use of pictures;71 and through the use of the alphabet on a letter board.72

Reasonable accommodations should be provided on a case-by-case basis.73 The types of accommodations that are made for a particular witness depend on the support needs of the person. It is possible for one witness to require more than one accommodation. It is also possible for the same witness to require both types of accommodations in order to ensure effective participation in the proceedings. For example, despite the fact that a person with an intellectual disability may communicate verbally, they may find it easier and be more competent in demonstrating what happened, using tools such as dolls, figures, drawings, and so forth. In other words, they can communicate by using a combination of speech, gestures, and Augmentative and Alternative Communication (AAC). Those who do not communicate verbally at all may use AAC, including symbols, communication boards, charts, and so forth. 74

3.1.3 Demonstrating the limitation in South African legislation

Legislation in South Africa generally makes provision for accommodations to the environment with the exception of one provision which deals with an accommodation to do with communication. This focus on accommodations involving the environment may be problematic for persons with communication disabilities who may need more accommodations to do with communication in order for them to participate effectively in the criminal justice process. The following are the accommodations to the environment found in South African legislation:

The Child Justice Act provides that the ‘assessment of a child may take place in any suitable place identified by the probation officer, which may include a room at a police station, a magistrates’ court, the offices of the Department of Social Development or a One-Stop Child Justice Centre’.75 The Child Justice Act also requires the place chosen to be as ‘conducive to privacy’ as possible.76 The Children’s Act requires proceedings involving children to be held in a room which is:

  • ‘furnished and designed in a manner aimed at putting children at ease;’77
  • ‘conducive to the informality of the proceedings and the active participation of all persons involved in the proceedings without compromising the prestige of the court’.78

Section 56 of the Children’s Act requires the proceedings to take place in camera as opposed to open court. There is also a requirement that proceedings be conducted in an informal manner.79 The Children’s Act also requires that children be questioned through an intermediary. 80

The Criminal Procedure Act also contains accommodations to the environment. The Act requires the proceedings to be held in camera, that is, not in open court, in circumstances where the court considers that harm may result to any person who is not the accused.81 The Criminal Procedure Act also makes provision for holding proceedings via closed-circuit television.82 The Act also provides for the giving of evidence through intermediaries.83 This accommodation, however, is only available to witnesses under the biological or mental age of 18 years.84 Section 170A(3)(a) states that where the court appoints an intermediary, the proceedings may take place in a venue which is ‘informally arranged to set that witness at ease’ or which is ‘so situated that any person whose presence may upset that witness is outside the sight and hearing of that witness’.85 Furthermore, the Act requires proceedings to take place in a venue ‘which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other devices ... during his or her testimony’.86

The Children’s Act is the only Act containing an accommodation to do with communication. The Act permits the making of ‘necessary changes required by the context’ to the rules.87 These rules ‘must be designed to avoid adversarial procedures’ and include rules concerning appropriate questioning techniques for ‘children with intellectual or psychiatric difficulties or with hearing or other physical disabilities which complicate communication’.88

With the exception of the provision in the Children’s Act dealing with accommodations to do with communication, all the other accommodations provided for in South African legislation are accommodations involving the environment. This means that the South African legislative framework may not adequately cater for persons with communication disabilities as they are particularly in need of accommodation to do with communication in order for them to participate effectively in the criminal justice system.

3.2 Limitation in relation to the people who may take advantage of the accommodations contained in South African legislation

The accommodations provided for in South African legislation are also limited in terms of the people who may take advantage of them. All the accommodations contained in the Child Justice Act and the Children’s Act may only be used by children, not adults. This means that adults with disabilities are unable to take advantage of the accommodations contained in these Acts. The Criminal Procedure Act is not an act intended to apply to a certain age group. However, it does limit the people who can make use of intermediaries by age. Only those people who have the mental or biological age of 18 years and below can make use of intermediaries. The rest of the accommodations contained in the Criminal Procedure Act may be used by persons of all ages. Nevertheless, persons with communication disabilities will remain inadequately accommodated as the other accommodations relate to the environment.

3.3 Failure to make provision for the training of personnel responsible for the administration of justice

The provision of accommodations is not the only way in which persons with communication disabilities can be empowered to access justice on an equal basis with others. In addition to the provision of accommodations, the CRPD requires that personnel working in the administration of justice, including police officers, prosecutors, magistrates, prison officers, and so forth, be provided with appropriate training in disability issues.89 The CRPD states that in order to help ensure effective access to justice for persons with disabilities, states parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.90 One might ask why the training of judicial officers is important to ensure that persons with disabilities can effectively participate in the criminal justice system. The importance of such training is evident when one considers the manner in which the credibility of witnesses is assessed in the adversarial criminal justice process. A witness’s credibility is assessed by closely observing the witness’s demeanour while in the witness stand.91 Presiding officers pay attention to the witness’s verbal and non-verbal communication.92 However, the demeanour of some persons with communication disabilities should not be interpreted in the same manner that one would interpret the demeanour of non-disabled witnesses.93 For example, a lack of eye contact usually is viewed as a sign that the witness is dishonest and is hiding something, but for witnesses with disabilities, avoiding someone’s gaze may be associated with the disability and, therefore, cannot be interpreted in the same way. Therefore, it is very important to train judicial personnel because through training, there will be an acknowledgment that access to justice concerns a relationship between people, the witness and the judicial officers.94 The relationship is not on par since the person in a position of power (the judicial officer) also needs to be considered. Attitudinal barriers and perceptions on the part of judicial officers may jeopardise the witness’s effective interaction with the criminal justice system.95 The thematic study on Violence against Women and Girls with Disabilities expressed concern that there were no systematic programmes in place to train judges, lawyers and law enforcement officials on the rights of women and girls with

disabilities and effective ways to communicate with them.96 The South African legislative framework currently contains no provision for such training, and this is another factor which may negatively impact on the right of persons with communication disabilities to access justice.

4 Mapping the way forward for South Africa: Recommendations for accommodations which may be made

For persons with communication disabilities to be properly accommodated in the criminal justice system in South Africa, a combination of accommodations needs to be made available to them. This section provides suggestions for the accommodations that may be made in South Africa to ensure that persons with communication disabilities access justice on an equal basis with others.

4.1 Reasonable accommodation and Augmentative and Alternative Communication

Augmentative and Alternative Communication (AAC) involves the use of other means of communication beyond the use of verbal communication alone to enable persons with significant communication difficulties, for example individuals with autism spectrum disorder (ASD), cerebral palsy and motor neuron disease (MND), amongst others, to successfully share information.97 The goal of AAC is to enable persons with communication disabilities to effectively engage in a variety of interactions and to participate in activities of their choice. Sharing information, as is done during testimony in court, is one of the purposes of communication interactions.98 AAC can furthermore be divided into two categories of unaided and aided communication.

4.1.1 Unaided communication

Unaided systems require persons to use only their bodies to convey their messages, such as using a formal sign language, such as the South African Sign Language (SASL), natural gestures, facial expressions and vocalisations.99 These systems can be divided into systems that have linguistic features, such as SASL, and systems with non-linguistic features, such as vocalisations and common gestures.100 It is important to note that in South African courts, persons with communication disabilities have been allowed to use communication strategies such as informal signs and gestures to testify in court.101 However, for many persons with communication disabilities due to significant physical disabilities, the use of unaided communication systems (including SASL) is not a possibility.

4.1.2 Aided communication

Aided systems may be defined as systems that require external assistance to produce a message, and also fall on a continuum of linguistic features similar to unaided systems, ranging from symbol sets on the one end (without linguistic features) to symbol systems (with linguistic features).102 Traditional orthography (for example, letters of the alphabet) is an example of a symbol system. Literate individuals with a communication disability could generate their own messages using the alphabet, but this would not assist the majority of persons with communication disabilities to access the criminal justice system, due to the high illiteracy rates in the South African population.103 Braille is another example of a tactile symbol system for reading and writing which is typically used by persons with visual disabilities, but this also requires the individual to be literate and, hence, the theoretical argument reverts to the issue of illiteracy of individuals with disabilities.104 Bliss symbols are also an example of a symbol system as it is a conceptually-based graphic symbol system with linguistic rules.105 It has successfully been used in a South African court case but unfortunately is not commonly used in South Africa.106 On the other side of the aided continuum, symbol sets consist of a predetermined number of symbols with low abstractness and limited linguistic features. The difference between symbol sets and symbol systems is that symbol sets consist of a defined number of symbols that have no rules for expansion or generating new messages, such as Picture Communication Symbols (PCS) or Biltstöd.107 Therefore, messages can only be compiled by selecting symbols from the pre-selected set without generating a new message.108 This is in stark contrast to symbol systems (for instance, traditional orthography or Braille) that have the capacity to allow for maximum communication and enable individuals to compose their own messages.

Apart from illiterate persons who could benefit from the use of graphic symbol sets, so could pre-literate persons. Pre-literate persons (individuals who are young or who might not yet have been exposed to literacy and who might still acquire literacy skills) often use graphic symbols that do not require literacy skills. Unfortunately, most of the commonly-used graphic symbol collections are symbol sets and thus do not have a linguistic basis and do not initiate generative systems. Vocabulary from these sets needs to be preselected. It is important for pre-literate individuals with communication disabilities to have access to alternative means to represent messages and concepts to communication.109 Therefore, an aided AAC system that uses a graphic symbol set such as PCS or Biltstöd could possibly be a viable option in the criminal justice system. It could thus assist both illiterate and pre-literate persons with communication disabilities to participate with others in their environment as the meaning of many of the symbols and line drawings is easy to understand.110 However, pre-selected vocabulary also has specific implications in the court system, since the vocabulary will be selected from a pre-determined symbol set and will not be generated, as would have been possible when a symbol system such as traditional orthography or Braille had been used. However, this implication could be solved by adding multiple choices and categories in the pre-determined symbol set.111

The vocabulary required to access the court system could, therefore, be selected and represented in the form of pictures or graphics symbols that could be displayed as a communication board or book, or programmed into a specific speech-generating device such as a tablet with specific AAC software.112

4.2 Assistive technology

Aided AAC systems range from low technology (for example symbol-based communication boards, writing, and partner-assisted scanning) to high-technology systems such as speech-generating devices.113 Low technology is an inexpensive, paper-based and easily obtainable communication system.114 High technology systems include both AAC dedicated devices (developed specifically for communication purposes), such as the TOBII eye-controlled speech generating device, as well as non-dedicated devices such as the iPad or other tablets, which can be used for communication purposes when programmed with specific communication software and applications115 Both dedicated and non-dedicated systems require pre-selected vocabulary that will be included in the display, hence the vocabulary selection is always viewed as an important consideration in the process of AAC implementation.116 Assistive technology plays a major role in assisting persons with communication disabilities in communicating, since graphic symbols can be displayed through technology.117 The rapid expansion of technology has created many new possibilities for persons with communication disabilities. The use of both low-technology and high-technology systems with graphic symbols to assist persons with communication disabilities to access the criminal justice system still needs to be advocated more, as many individuals with disabilities in the South African context are pre-literate or illiterate due to limited formal schooling and need alternative communication methods to tell their story.118

4.3 Expert testimony

An important accommodation which should be provided to enable persons with communication disabilities to participate in legal proceedings on an equal basis with others is the use of expert witnesses who have specialist knowledge on AAC.119 In their testimony, the AAC expert could explain to the judge or presiding officer the role of AAC and how the witness with a communication disability will use AAC to testify.120

4.4 Strategies to help persons with communication disabilities

This section describes ways in which to help enable effective communication for individuals who have communication disabilities, including those with intellectual and cognitive disabilities. What follows is an introduction and is not exhaustive.

4.4.1 Attention and concentration

Persons with communication disabilities may experience attention and concentration difficulties, especially in stressful situations such as giving testimony in court.121 Concentration difficulties may contribute to the person with a communication disability to be unable to fully participate or engage in the legal proceedings.122 The following strategies may assist a person with a communication disability in terms of their attention and concentration:

  • Taking regular breaks and conducting various meetings and interviews in a comfortable environment may help to reduce stress and support effective communication.123
  • Having a familiar communication partner present, who is not involved in the legal case, such as a family member or close friend, may help the individual feel at ease and supported. Feeling comfortable and supported can help reduce anxiety levels and make it easier for individuals with communication disabilities to understand what is being asked of them.124
  • Attempting to reduce background noise and distractions as this can have a negative impact on the individual’s concentration, especially if they are using alternative methods of communication (for example a communication device).125
4.4.2 Vocabulary and concepts

Persons with communication disabilities may find it difficult to express themselves due to a limited vocabulary. Identifying vocabulary under certain categories such as ‘who’, ‘what’, ‘when’, ‘where’, ‘how’ and ‘emotions’ could assist individuals to participate in the legal proceedings, such as by giving testimony.126 Individuals with communication disabilities may also struggle with abstract concepts such as colours and time.127 This means that they may not be able to explain or answer questions about when the crime took place or what colour clothing the perpetrator was wearing. It is important to try to simplify conceptual questions, for example, questions such as ‘did the event occur after or before or after your birthday’, or ‘before or after church’ or ‘was it day or night’. These questions are more concrete and intelligible.128

4.4.3 Expressive and receptive language skills

It is important during the legal proceedings to assist an individual with a communication disability with their expressive and receptive language skills. Receptive language is the ability to understand words and language and expressive language is the ability to use words and language. Below are a few strategies to assist a person with a communication disability with their expressive and receptive language skills:

  • It is important to always address the person with a communication disability by name and wait for the individual to make eye contact, after which one can assume to have the attention of the individual.129
  • Before the start of the any legal proceedings or giving testimony in court, it should be explained to the person with a communication disability the process that is about to take place and why they are needed to participate in the legal proceedings and give testimony. 130
  • Simple and common words should be used and legal jargon avoided. If one does use legal terminology such as bail, intimidation or conviction, the person with a communication disability should be asked whether they understand and, if not, it should be explained to them.131
  • Short and simple sentences should be used that focus on one specific question or topic.132
  • The individual with a communication disability should regularly be asked whether they understand or whether they need further explanation, and whether they need to take a break.133
  • A person with a communication disability needs time to communicate their message or answer especially when using a communication board or device. Be patient and slow down the pace of the questions. This process may be lengthy, but if interruptions occur, the individual’s thought processes may be disrupted, and the question may have to be repeated.134
  • Appropriate questioning techniques should be used, for example, asking yes/no questions or closed-ended questions such as ‘did the event occur in the evening’.135 As mentioned previously, it is important to use AAC strategies such as communication boards or devices with pre-selected vocabulary if the person with a communication disability is having difficulty in using oral speech.136
4.4.4 Visual communication aids

Persons with communication disabilities often find it difficult to express themselves orally, and visual communication aids can assist these individuals to communicate and participate effectively.137 Strategies such as drawings and a communication tool called ‘Talking Mats’ can be used.

  • Drawings: The person with a communication disability may be able to draw what they are unable to say or express through speech. Large sheets of paper often encourage these individuals to draw, and drawings may include where the event occurred (bedroom, church) or who the perpetrator was.138
  • Talking Mats: Talking Mats is an interactive communication resource that uses three sets of picture communication symbols - topics, options and a visual scale (to allow individuals to indicate their feelings about each option) - and a space on which to display them. Talking Mats can allow the person with a communication disability to indicate when they are experiencing high levels of emotion such as anxiety or stress during the legal proceedings. Once the topic is chosen, for example, ‘thoughts and feelings’, the individual is given the options one at a time and asked to think about what they feel about each option. They can then place the symbol under the appropriate visual scale symbol to indicate what they feel.139 Research has identified Talking Mats as an effective tool for communication and to help the individual with a communication disability to express their thoughts, furthermore the visual resource can help the individual to reflect and express what is important to them at a specific time for example, during the legal proceedings. 140

5 Conclusion

Persons with communication disabilities experience many barriers to effectively participating in the criminal justice system. In the absence of appropriate accommodations, their ability to effectively participate in the criminal justice system may be seriously impaired. The CRPD bestows on all persons with disabilities the right to access justice on an equal basis with others. According to the CRPD, access to justice is to be achieved in two ways, namely, by the provision of accommodations and the training of judicial personnel. South African legislation does provide some accommodations, but their impact is reduced because of the fact that many provisions apply only to children and many are accommodations relating to the environment. There is only one provision dealing with accommodations to do with communication. This greatly disadvantages persons with communication disabilities in South Africa. The South African legislation also fails to make provision for the training of judicial personnel, and this further disadvantages persons with communication disabilities. According to the human rights model, access to justice is a right which persons with communication disabilities must enjoy. Therefore, there is a need to ensure that South African legislation, as a priority, provides accommodations for persons with communication disabilities and provides training for judicial officers in order to ensure that persons with communication disabilities in South Africa can access justice on an equal basis with others.

 

1. R White, J Bornman & E Johnson ‘Testifying in court as a victim of crime for persons with little or no functional speech: Vocabulary implications’ (2015) 16 Child Abuse Research: A South African Journal (CARSA) 1.

2. K Hughes et al ‘Prevalence and risk of violence against adults with disabilities: A systematic review and meta-analysis of observational studies’ (2012) Lancet doi: 10.1016/SO410-6736(11)61851-5.

3. As above.

4. As above.

5. L Jones et al ‘Prevalence and risk of violence against children with disabilities: A systematic review and meta-analysis of observational studies’ (2012) Lancet. doi: 10.10S16/SO140-6736(12)60692-8.

6. Constitution of the Republic of South Africa, 1996 (as set out in sec 9(1).

7. As above.

8. See also I Grobbelaar-Du Plessis & S van Eck ‘Protection of disabled employees in South Africa: An analysis of the Constitution and labour legislation’ in I Grobbelaar-Du Plessis & T van Reenen (eds) Aspects of disability law in Africa (2011) 231.

9. J Bornman et al ‘Identifying barriers in the South African criminal justice system: Implications for individuals with severe communication disability’ (2016) Acta Criminologica: Southern African Journal of Criminology 291.

10. PM Bekker et al Criminal procedure handbook (1994) 14.

11. Criminal Procedure Act 51 of 1977, sec 161.

12. P McConnell & J Talbot Mental health and learning disabilities in the criminal courts: Information for magistrates, district judges and court staff (2013) 20.

13. As above.

14. As above.

15. As above.

16. As above.

17. J Talbot ‘Effective communication’ (2017) unpublished conference paper 3.

18. The Convention on the Rights of Persons with Disabilities entered into force on 3 May 2008. The CRPD is an international disability treaty and strengthened legal framework that was inspired by international laws in recognising the rights of persons with disabilities (United Nations, 2006). The CRPD is also quoted as the highest international standard to promote and protect the human rights of persons with disabilities. However, the purpose of this Convention is not merely to promote and protect but also to ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities. The CRPD has been signed and ratified by 46 African states, South Africa being one of these.

19. Art 13(1) CRPD.

20. S Ortoleva ‘Inaccessible justice: Human rights, persons with disabilities and the legal system’ (2010-2011) 17 Comparative and International Law Journal of Southern Africa 281 at 292.

21. See eg International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, art 2(3)(a) (entered into force 23 March 1976) (ICCPR).

22. F Mégret ‘The Disabilities Convention: Human rights of persons with disabilities or disability rights?’ (2008) 30 Human Rights Quarterly 494 at 512.

23. MH Rioux & F Valentine ‘Does theory matter? Exploring the nexus between disability, human rights, and public policy’ in D Pothier & R Devlin (eds) Critical disability theory: Essays in philosophy, politics, policy and law (2006) 267.

24. T Degener ‘Disability in a human rights context’ (2016) 5 Laws 35.

25. M Robinson ‘Foreword’ in SS Herr et al (eds) The human rights of persons with intellectual disabilities: Different but equal (2003) vii.

26. Degener (n 24).

27. Arts 13(1) & (2) CRPD.

28. The accommodations provided for in these laws are discussed in detail in sec 3 of this chapter.

29. Arts 13(1) & (2) CRPD.

30. Degener (n 24).

31. The term ‘accommodations’ is used throughout this chapter to refer to ‘procedural and age-appropriate accommodations.’ According to art 13 of the CRPD, equal access to justice is also to be achieved through the training of all personnel involved in the administration of criminal justice.

32. Art 2 CRPD.

33. See eg the Americans with Disabilities Act of 1990 (as amended).

34. Hamilton v Jamaica Communication 616/1995, views adopted by the Committee on 28 July 1999 (CCPR/C/66/D/616/1995).

35. Art 10 ICCPR (n 10).

36. Price v UK App 33394/96 (2001) 34 EHRR 1285.

37. European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols 11 and 14, 4 November 1950, ETS 5 (entered into force 3 September 153) art 3.

38. G Bouchard & C Taylor ‘Building the future: A time for reconciliation abridged report’ (Gouvernement du Quebec) 23.

39. Art 2 CRPD.

40. Art 13(1) CRPD.

41. S Primor & N Lerner ‘The rights of persons with intellectual, psychosocial and communication disabilities to access to justice: Accommodations in the criminal process’ Bizchut, The Israel Human Rights Centre for People with Disabilities 7.

42. As above.

43. As above.

44. Art 2 CRPD.

45. Art 5(3) CRPD.

46. Art 2 CRPD.

47. H Kallehauge ‘General themes relevant to the implementation of the UN Disability Convention into domestic law: Who is responsible for the implementation and how should it be performed?’ in OM Arnardottir & G Quinn (eds) The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives (2009) 3 at 211.

48. As above.

49. A Lawson Disability and equality law in Britain: The role of reasonable adjustment (2008) 24.

50. Primor & Lerner (n 41) 7.

51. Primor & Lerner (n 41) 8.

52. As above.

53. As above.

54. Children’s Act 38 of 2005.

55. As above.

56. Criminal Procedure Act 51 of 1977.

57. Sec 161 (2) Criminal Procedure Act.

58. Sec 52 (2) (a) (ii) Children’s Act.

59. D Msipa ‘Manual on accommodations’ (unpublished).

60. T Menaker & RJ Cramer ‘The victim as witness: Strategies for increasing credibility among rape victim-witnesses in court’ (2012) 20 Journal of Forensic Psychology Practice 424 at 427.

61. Menaker & Cramer (n 60) 426.

62. In 2005 Israel enacted an Act dealing specifically with the provision of accommodations in the justice system. It is instructive to look at some of the provisions in this Act. See Investigation and Testimony Procedural Act (Accommodations for Persons with Mental or Intellectual Disabilities) 2005 (Israeli Act) sec 22(4).

63. See eg the Israeli Act (n 62) sec 22(8).

64. Menaker & Cramer (n 62) 425.

65. AAC is discussed in detail in sec 4 below.

66. Sec 22(9) Israeli Act.

67. Primor & Lerner (n 41) 10.

68. As above.

69. As above.

70. As above.

71. See eg the Israeli Act, sec 22(7).

72. As above.

73. Primor & Lerner (n 41) 5.

74. See sec 4 below for a discussion on AAC.

75. Child Justice Act 75 of 2008, sec 37(1).

76. Sec 37(2) Child Justice Act.

77. Sec 42(8)(a) Children’s Act 38 of 2005.

78. Sec 42(8)(b) Children’s Act.

79. Sec 60(3) Children’s Act.

80. Sec 61(2) Children’s Act.

81. Sec 153(2) Criminal Procedure Act 51 of 1977.

82. Sec 158(2)(a) Criminal Procedure Act.

83. Sec 170A Criminal Procedure Act.

84. Sec 170A(1) Criminal Procedure Act.

85. Sec 170A(3)(b) Criminal Procedure Act.

86. Sec 170A(3)(c) Criminal Procedure Act.

87. Sec 52(1) Children’s Act.

88. Sec 52(2)(a)(ii) Children’s Act.

89. Art 13(2) CRPD.

90. As above.

91. N Ziv ‘Witnesses with mental disabilities: Accommodations and the search for truth’ (2007) 27 Disability Studies Quarterly, http://www.dsq-sds.org/article/view/51/51 (accessed August 2017).

92. As above.

93. As above.

94. S Stefan ‘Silencing the different voice: Competence, feminist theory and law’ (1992-1993) 47 University of Miami Law Review 763 at 788.

95. As above.

96. Report of the UN High Commissioner for Human Rights Thematic Study on the Issue of Violence Against Women and Girls and Disability UNGAOR, 20th sess, Supp 2 and 3, UN Doc A/HRC/20/5 (2012) para 43.

97. DR Beukelman & P Mirenda Augmentative and alternative communication: Supporting children and adults with complex communication needs (2013).

98. As above.

99. As above.

100. J Bornman & K Tonsing ‘Augmentative and alternative communication’ in E Landsberg et al (eds) Addressing barriers to learning: A South African perspective (2015) 186-210.

101. R v Ranikolo 1954 (3) SA 255 (0).

102. Bornman & Tonsing (n 100).

103. NE Groce & P Bakshi ‘Illiteracy among adults with disabilities in the developing world : An unexplored area of concern’ (2009) Leonard Cheshire Disability and Inclusive Development Centre 1.

104. Beukelman & Mirenda (n 97).

105. As above.

106. F Toefy ‘Communication board used in South African courts’ (1994) 12 Communicating Together 19.

107. Bildstod is a website that can be accessed to create picture-based material for information and communication. Bildstod.se is a free resource created by DART - Centre for AAC and AT in the project KomHIT in Sweden, financially supported by the Swedish Inheritance Fund.

108. Beukelman & Mirenda (n 97).

109. K Drager et al ‘Effects of AAC interventions on communication and language for young children with complex communication needs’ (2010) 3 Journal of Paediatric Rehabilitation Medicine 303-310, https://doi.org/10.3233/PRM-2010-0141 (accessed 21 July 2017).

110. S Dada et al ‘The iconicity of picture communication symbols for children with English additional language and mild intellectual disability’ (2013) 29 Augmentative and Alternative Communication 360, https://doi.org/10.3109/07434618.2013.849753 (accessed 10 August 2017).

111. White, Bornman & Johnson (n 1) 1-14.

112. J Caron et al ‘Operational demands of AAC mobile technology applications on programming vocabulary and engagement during professional and child interactions’ (2016) 32 Augmentative and Alternative Communication 12, https://doi.org/10.3109/07434618.2015.1126636 (accessed 8 August 2017).

113. Beukelman & Mirenda (n 97).

114. As above.

115. D McNaughton & J Light ‘The iPad and mobile technology revolution: Benefits and challenges for individuals who require augmentative and alternative communication’ (2013) 29 Augmentative and Alternative Communication 107, https://doi.org/10.3109/07434618.2013.784930 (accessed 8 August 2017).

116. White, Bornman & Johnson (n 1).

117. J Caron et al ‘Operational demands of AAC mobile technology applications on programming vocabulary and engagement during professional and child interactions’ (2016) 32 Augmentative and Alternative Communication 12, https://doi.org/10.3109/07434618.2015.1126636 (accessed 25 Oct 2017).

118. D Donohue & J Bornman ‘The challenges of realising inclusive education in South Africa’ (2014) 34 South African Journal of Education 1, https://doi.org/10.15700/201412071114 (accessed 21 August 2017).

119. J Beqiraj, L McNamara & V Wicks ‘Access to justice for persons with communication disabilities: From international principles to practice (2017) International Bar Association.

120. As above.

121. Bornman et al (n 9).

122. As above.

123. R White, J Bornman & E Johnson ‘From silence to justice: Implications for persons with little or no functional speech accessing the criminal justice system’ (2018) 31 Acta Criminologica: Southern African Journal of Criminology 19

124. As above.

125. Beukelman & Mirenda (n 97).

126. White, Bornman & Johnson (n 1) 1.

127. As above.

128. J McAfee ‘Assisting victims and witnesses with disabilities in the criminal justice system: A curriculum for law enforcement personnel (2002) The Institute of Disabilities: The Pennsylvania State University.

129. Beukelman & Mirenda (n 97).

130. J Bornman ‘Accessing justice via key role players: A view from South Africa’ in DN Bryen & J Bornman (eds) Stop violence against people with disabilities! An international resource (2014) 41-76.

131. White, Bornman & Johnson (n 1).

132. As above.

133. White, Bornman & Johnson (n 123).

134. As above.

135. As above.

136. White, Bornman & Johnson (n 1).

137. White, Bornman & Johnson (n 123).

138. Bornman (n 130).

139. J Murphy ‘Talking mats: Speech and language research in practice’ (1998) Speech and language therapy in practice 14.

140. L Cameron & R Matthews ‘More than pictures: developing an accessible resource’ (2017) Tizard Learning Disability Review 22.


  • Louis O Oyaro
  • Residential Fellow, Atlantic Fellows for Social and Economic Equity; International Inequality Institute, London School of Economics and Political Science (LSE),
  • LLB (Makerere), LLM (National University of Ireland, Galway), MSc (London School of Economics and Political Science)

  • LO Oyaro ‘Rearticulating ubuntu as a viable framework for the realisation of legal capacity in sub-Saharan Africa’ (2018) 6 African Disability Rights Yearbook 82-98
    http://doi.org/10.29053/2413-7138/2018/v6a4
  • Download article in PDF

Summary

As a right, legal capacity is central to the realisation of an ‘equal status’ for all persons with disabilities. Its attainment is fundamental to the aspirations of the UN Convention of the Rights of Persons with Disabilities. Unfortunately, indicators over the past years reveal that realisation of legal capacity has not been straightforward. Furthermore, depending on one’s perspective, the CRPD itself does not offer much in terms of specificity on tangible implementation strategies; instead, it leaves wide room for flexibility of realisation approaches. This chapter posits that rearticulating the traditional African concept of ubuntu holds real potential for local acceptance and recognition of legal capacity in favour persons with disabilities in sub-Saharan Africa. Admittedly, and although conceptually contentious in itself as an African personhood philosophy, this chapter argues that there is space for legal capacity to prosper within a rearticulated framework of ubuntu. Its resonance with an inclusive society, community of solidarity and support implies its potential as a real local strategy, not only for legal capacity, but equally for all other disability rights.

1 Introduction

Essentially, this chapter situates around the promise of ubuntu in the realisation of legal capacity in Africa. It focuses on crosscutting similarities in the conceptualisation of the person generally in sub-Saharan African communities, but it neither makes any claim to nor offers empirical specifics. It appreciates that academic scholarship on ubuntu is still developing and at times even fractious. To mitigate, the chapter identifies across-the-board agreeable tenets, and cites literature on ubuntu only in as far as they are relevant to legal capacity and its realisation. Notwithstanding its diminished suggestive role, the chapter considers its effort an essential first step towards a more localised (and issue-specific) study. It is worth nothing that its focus on sub-Saharan Africa principally implies Eastern and Southern Africa. Hence, the chapter’s coverage of parts of West Africa is limited to available references. Crucially, it is mindful of the non-homogenous nature of African societies and concepts.

Fundamentally, the adoption and entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol1 are a significant step towards inclusion of persons with disabilities in Africa.2 The CRPD adopts a rights-based approach to disability by (i) its distinction of impairment from disability; (ii) its attribution of attitudinal and environmental barriers as being the main causes of disability; and (iii) its emphasis on freedoms and removal of barriers.3 Rightly so, it articulates that the denial of accessible environments and reasonable accommodation to persons with disabilities constitutes a form of discrimination.4 With its underlying theme being equality for persons with disabilities on an ‘equal basis with others’, the CRPD does not create new rights, but rather reinterprets existing rights and how they can apply to persons with disabilities.5

Despite the above, widespread skepticism remains towards specific rights guaranteed under the CRPD, including among many African states. Perhaps foremost among these is the right to equal legal recognition before the law of persons with disabilities, or the right to legal capacity (as it is commonly referred to in this chapter). Even at conceptualisation level, legal capacity was one of the most intensely contested provisions during the drafting process of the CRPD.6 Fortunately, it prevailed and eventually appeared as article 12 in the final text of the Convention.

As a result, for the first time the right to legal capacity is recognised in favour of persons with disabilities - a stark contrast to old decision-making regimes entirely based on ‘best interests’ and substitute decision-making and/or guardianship. Primarily, legal capacity incorporates the right to act, and the right to enforce or defend one’s legal capacity when so challenged under the law.7 Legal capacity under the CRPD prescribes safeguarded support as enablers to the enjoyment of legal capacity. The provision seeks to maintain at all times one’s legal capacity. By its enduring feature, the right to legal capacity has the potential to be an effective Trojan horse for across the board realisation of other rights guaranteed under the CRPD and, in effect, to act as a real foundation for sustained individual agency, inclusion and identity of persons with disabilities as equal members of and contributors to society.

Unfortunately, more than a decade after the adoption of the CRPD, and despite the CRPD Committee’s early General Comment 1 on legal capacity, there still is relatively slow progress in the realisation of the right among a number of state parties. In addition, its appreciation remains largely misunderstood and detached from many local realities. In sub-Saharan Africa there has been varying, but ultimately low, acceptance of the right to legal capacity, and especially so for persons with cognitive, intellectual and psychological disabilities.

Against the above reality, this chapter endorses the re-articulation of ubuntu - a core concept of African personhood - as a tangible strategy for the realisation and appreciation of the right to legal capacity in sub-Saharan Africa. Admittedly, underpinnings of the concept of ubuntu have historically been used to undermine certain groups in African society, most notably women,8 and even persons with disabilities, although the latter have been less reported compared to the former. Notwithstanding, this chapter maintains that understanding personhood in the context of ubuntu is an important, even necessary, step towards the realisation of legal capacity in the region. Identifying complimentary similarities between ubuntu and legal capacity, as enshrined in the CRPD, may offer the best strategy for realisation and African domestication of the latter. Opportunity is enhanced in light of the fact that cultural institutions in sub-Saharan Africa are relatively thriving, more visible, and are often gate keepers of societal perceptions.

Consequently, the chapter is broken down into two core parts. The first part contains three headings focusing on presenting context on legal capacity prior to and after CRPD. Also, in this section the relationship between legal capacity and personhood is explored. The second part discusses the realities of legal capacity in sub-Saharan Africa generally. The ensuing discussion introduces the African communal concept of ubuntu, incorporating arguments supporting its utilisation as a viable framework for the local realisation of legal capacity. It is worth noting that the chapter’s endorsement of ubuntu is not unhinged. It acknowledges the historical legacy of ubuntu to persons with disabilities and calls for a re-articulation of the concept. Its support for ubuntu only goes as far as presenting an opportunity for the realisation of legal capacity. It is of the view that ubuntu constitutes a necessary strategic option for legal capacity activists in the region.

2 Legal capacity prior to the Disability Convention

Historically, persons with disabilities generally have been easy targets of legal incapacity. That said, legal incapacity has disproportionately been applied against persons with cognitive, intellectual or psychosocial disabilities, with the manifestation of the above automatically triggering questions regarding one’s legal capacity. The status approach, outcome approach and the functional test were (and still are) frequently employed to attribute legal incapacity to individuals.9 Common manifestations of the above include mental health laws that permit guardianship and, in some cases (not uncommon), forced and/or involuntary institutionalisation and treatment.10 It should be noted that these approaches are still widely followed in many states, including those that have ratified the CRPD.

Briefly, according to the status approach, ‘once it is established that any individual is a person with a disability, the law presumes a lack of capacity’.11 This approach relies heavily on medical experts’ reports and, in most cases, judicial intervention serves only to ensure that the label of legal incapacity is not arrived at without due process. On the other hand, under the outcome approach, the decision on one’s legal capacity is made on the basis of the outcome of the results of their decisions. Where a person with a disability makes a bad decision, such individual loses their legal capacity12 while, according to the functional test, ‘disability alone does not result in a finding of incompetence’.13 One is only considered legally incapable if by virtue of their disability they are incapable of understanding or performing specific tasks. The functional test is also based on assessment of mental capacity as a pre-requisite to denial of legal capacity.14

Irrespective, under all the above three approaches the consequences (which often eventually lead to the stripping of one’s legal capacity) are the same.15 As already noted, the manifestation of a cognitive, intellectual or psychosocial disability is taken as a legitimate threshold to deny one his or her legal capacity, effectively obscuring their status before the law.16 Where one is adjudged (by a court, tribunal or mandated authority) to be legally incapable, such person loses their right to make legally-binding decisions regarding their affairs, and instead such powers are conferred to a guardian. In reality, one’s decision-making power is taken away, often in all areas, implying an infinitely expansive reach of the authority of an appointed guardian over an individual’s life, including in relatively trivial day-to-day decisions. Additionally, the above is particularly problematic especially since it often (i) creates an environment susceptible to abuse; (ii) ranks one individual lesser than another; and (iii) often encourages resistance which in turn often justifies further violation. Perplexingly, the best interest principle is used to underpin and legalise substitute decision making regimes.

Not surprisingly, some have equated substitute decision making to ‘civil death’, where one surrenders their agency to another, that is, to the guardian.17 Worse still, the real underlying concern with substitute decision making is its impact on the personhood of the individual so affected. To explore this further, it is crucial in the first place to understand the meaning of and relationship between legal capacity and personhood.

3 Relationship between legal capacity and personhood

Legal capacity is ‘a legal construct’ that ‘can be described as a person’s power or possibility to act within the framework of the legal system’.18 Legal capacity ‘facilitates freedom’ and ‘protects individuals against unwanted interventions’.19 To illustrate, it may be regarded as a shield to fend off unpermitted invasion by others, and as a sword to enable one to make decisions and have them respected.20 On the other hand,

personhood is a broader concept when compared to legal capacity.21 It stretches outside the precincts of legal provisions. It marks one’s recognition as a ‘subject’ and ‘beneficiary’ of the law and the political system.22 In fact, it is on the basis of this assumption that current legitimate political systems are built. In these settings, citizens at the very least are regarded as ‘atomised moral agents realising themselves in civil society’ and the state as one that intervenes the least, optimising the chances of enjoyment of personal freedoms.23 Personhood guarantees that an individual is a unit of moral agency; is a subject and not an object; is autonomous and has legal capacity.

Consequently, in reality ‘the war over legal capacity is a proxy war over personhood’.24 In addition, attempts to take away the rights to inherent legal status entitlements of specific categories of people are equated to making them non-persons.25 In extreme cases, Kittay hypothesises that such reasoning makes it acceptable to kill these non-persons, so labelled, ‘not one of us’ - an analogy sadly true in certain cases.26 In a practical sense, these notions are particularly disproportionate since they are based on the flawed assumptions of rationality, stability, and the effective cognitive ability of individuals at all times. Truth is, most people make their decisions based on emotion and sometimes even irrational preferences. Thus, it is unjust and disproportionate to set the decision-making bar higher for a specific group compared to others. In any event, we all should have the right to make our own mistakes.27

Central to this chapter, the concept of personhood has gained considerable traction in disability rights theory, and specifically as a viable strategy for the realisation of the right to legal capacity. It endorses respect for the right to active citizenship and autonomy of all persons, as agents of society, and suggests that the above are crucial prerequisites for a functioning, productive and democratic society. Simply put, attacks on an individual’s personhood (read legal capacity) undermine society as a whole. As a model, the personhood approach appeals to a more systemic natural appreciation of legal capacity.

4 The paradigm shift in article 12 of the Disability Convention

Essentially, articles 12(1) and (2) of the CRPD stipulates that:

(1) State parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

(2) State parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

The CRPD enjoins member states to recognise the right to legal capacity for all persons with disabilities ‘on an equal basis with others in all aspects of life’. In effect, one’s legal capacity should not be taken away on any grounds, and ‘every human being is respected as a person possessing legal capacity’.28 By virtue of the above provisions, persons with disabilities are not merely holders but also actors in the enjoyment and protection of their rights to legal capacity.29 The CRPD ‘moves away from thinking of people in terms of deficits and the lack to make decisions towards augmenting individuals’ capabilities’.30

In expanding on the above provision, General Comment 1 by the CRPD Committee makes a distinction between legal capacity- the right to hold rights and duties, and mental capacity, that is, the decision-making skills of an individual.31 It notes that ‘[m]ental capacity is not, as is commonly presented, an objective, scientific and naturally occurring phenomenon’.32 Instead, it is contingent on a number of factors and varies from one person to another.33 In order to overcome challenges related to decision-making challenges, the General Comment stresses that member states should prioritise access to support.34 These measures of support must provide for appropriate and effective safeguards. Crucially, they must not amount to substitute decision making. It is emphasised here that the need for support does not in itself warrant a denial of legal capacity,35 and that at no time must mental capacity be used as justification for denying legal capacity to persons with disabilities.36

The CRPD obligates member states to undertake legislative and administrative reforms to curb the continued violation of persons with disabilities in this regard. The nature of these obligations is positive, that is, requiring the undertaking by states of certain steps, for example the provision of and ensuring access to appropriate support, and negative in the sense that member states should abolish existing laws, policies and practices that present a barrier to the recognition of persons with disabilities before the law. Additionally, states should prevent private entities and individuals from infringing on the rights guaranteed under this provision.

Nevertheless, the CRPD’s provisions on support are more descriptive than prescriptive. What is stated is that forms of necessary support should ‘respect the rights, will and preferences’ of the individual,37 and that they include both formal and informal arrangements.38 Depending on one’s perspective, there is not much in terms of specificity on tangible implementation strategies; instead there is wide room for flexibility of realisation approaches. On the ground, there is still relatively slow progress in terms of the realisation of legal capacity among a number of state parties. Coupled with this, its appreciation remains largely misunderstood and detached from local realities. Specific to sub-Saharan Africa, there has been varying, but ultimately low, acceptance of the right to legal capacity, and especially so for persons with intellectual and psychological disabilities.

5 Realities of legal capacity in sub-Saharan Africa

The stranglehold of negative cultural perceptions and stigma against persons with disabilities is widely perverse in sub-Saharan Africa - sadly, a phenomenon prevalent in many regions around the globe as well. Specific to legal capacity, respective CRPD legal and policy reforms are yet to be put in place. The majority of CRPD member states maintain substitute decision-making regimes, with one’s legal capacity taken away singularly on the basis of medical diagnosis; and minimal to no attempts are made to ensure appropriate support. 39 Primarily on the receiving end of the above are persons with cognitive, intellectual and psychosocial disabilities who are instead subjected to interventions almost singularly inspired by deficit-based alternatives, including treatment.40 Worse, perhaps, is the situation that legal capacity as a right remains largely misunderstood and, in other cases, is actively resisted on paternalistic grounds.

To illustrate this, according a 2014 report by the Mental Disability Advocacy Centre (MDAC) on legal capacity in Kenya, it was noted:41

Ingrained social prejudices against people with disabilities leads to significant restrictions being placed on their independence and autonomy on a daily basis. Stereotypes of people with mental disability are reflected in a legislative framework which systematically denies them legal recognition.

Furthermore, according to the Kenyan Mental Health Act relatives, members of the community and the police can have one admitted to a mental institution without any recourse to the formal courts.42 In Uganda, the colonial 1938 Mental Treatment Act, revised in 1964, is still the main instrument used in remedying conditions of ‘unsound mind’. By virtue of the Act courts can declare one to be of unsound mind and have them instantly and indefinitely involuntarily detained.43 It should be noted that Kenya and Uganda are both state parties to the CRPD.

With reference to informal intervention, according to a 2012 Human Rights Watch (HRW) report on Ghana, thousands of persons with cognitive, intellectual and psychosocial disabilities are detained against their will in spiritual healing centres, popularly known as prayer camps. While there, their families hope that they will be made better through a combination of religious prayer, fasting and sacrifice. According to the same report, persons detained in these camps undergo untold suffering and violations. For example, patients are often tied up, chained to trees, or left to bake in the sun for hours on end as part of the healing process.44 Even when kept at home, the effects on an individual’s personhood are often the same; and such persons are often hidden from public view for life.45

In addition, the gap between legal capacity standards and local realities is such that, even on the rare occasions of advancement in legislation and policy, comprehensive reform is hardly realised. An examination of the renowned case of Purohit reveals that despite isolated progress made by the African Commission on Human and Peoples’ Rights (African Commission) in this regard, this case represents only a single symbolic victory - a mere citation with very limited impact.46 Briefly, the case was a communication to the African Commission by two mental health advocates submitted on behalf of patients detained at Campama, a psychiatric unit of the Royal Victoria Hospital in The Gambia. Their complaint, among others, was that the national Lunatics Detention Act of The Gambia violated articles 2, 3 and 5 of the African Charter on Human and Peoples’ Rights (African Charter) and, specifically, the right to non-discrimination, equal recognition before the law and the respect for inherent human dignity respectively. They further argued that the said Act provided for immediate detention without proper safeguards and a right to appeal.

In its progressive decision, and finding in favour of the applicants, the African Commission noted:47

Article 2 lays down a principle that is essential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises ... while article 3 is important because it guarantees fair and just treatment of individuals within a legal system of a given country. These provisions are non-derogable and therefore must be respected in all circumstances in order for anyone to enjoy all the other rights provided under the Charter.

The African Commission further observed:48

Mentally disabled persons would like to share the same hopes, dreams and goals and have the same rights to pursue those hopes, dreams and goals just like any other human being. Like any other human being mentally disabled persons ... have a right to enjoy a decent life, as normal and as full as possible, a right which lies at the heart of the right to human dignity.

Although this communication was made under the African Charter, it nonetheless encompassed issues directly relevant to legal capacity and was a celebrated victory for the latter. Unfortunately, more than 16 years later the aspirations expressed by the African Commission ‘remains a distant hope for so many people with mental disabilities’.49

The above are only flashpoints on legal capacity realities in sub-Saharan Africa. Countless other examples are created daily in other countries, hence highlighting the challenge to realisation and, at the same time, the crucial need for awareness raising and new strategies for the implementation of legal capacity. Ultimately, and as correctly remarked by Hammerbag (then Council of Europe Commissioner on Human Rights), it is vital to remember that

[a] basic principle of human rights is that the agreed norms apply to every human being without distinction. However, the international human right norms have been denied to persons with disabilities. It was this failure which prompted member states of the United Nations to adopt the Convention on the Rights of Persons with Disabilities, which emphasises that people with all types of disabilities are entitled to the full range of human rights on an equal basis with others. The aim is to promote their inclusion and participation in society. When we deny some individuals of their right to represent themselves we contradict these standards. 50

6 Ubuntu as an African communal concept of personhood

To begin with, this chapter acknowledges the existence of diversities in the manifestation of ubuntu among different African societies. It is cognisant of the risk of simplified generalisations. Although being outside its scope, the chapter notes that the theoretical development of the African philosophy of the self (personhood) only occurred recently, and that the friction between its normative underpinnings and practical manifestation is ongoing. It accepts the limitations of ubuntu, in terms of its potential conflict with contemporary libertarian notions of individual rights, but only agrees with it to extent to which it can be used to promote rights, in this case legal capacity.

Synonyms of the term ubuntu include humanity; Africanness; humanism; and ‘the process of becoming an ethical human being’.51 Ubuntu resonates with the universal values of human worth and emphasises the connectedness of human society.52 It mandates sensitivity to the needs of others through care, respect, empathy, consideration and kindness.53 Crucially, and in reference to its communal approach to personhood, ubuntu is premised on the precedence of community interests over the individual. In reiterating this common view, Archbishop Emeritus Desmond Tutu recalls that ‘a person is a person through other people’.54 Put another way, ‘I am human because I belong’.55 This has semblance with Mbiti’s version on African communalism, and especially in the slogan ‘I am because we are, and since we are, therefore I am’.56

It thus follows that despite varying manifestations, it is predominantly accepted under ubuntu that a ‘man is defined by reference to the environing community’.57 This appreciation presupposes the community before the individual or alternatively collective good over individual interests. By inference, the strength of a community is the total strength of its individual citizens, hence the community is only as strong as its citizens and vice versa. Therefore, although community welfare takes precedence, the individual’s role as a contributing unit to this process is vital and uncontested. It is little wonder that terms such as support, solidarity, sensitivity, care and togetherness are closely associated with ubuntu.

A key area of contention regarding ubuntu relates to its potential exclusive application.58 In many African societies the enjoyment of personhood under ubuntu has to be earned or attained, or one has to be deserving or qualify for its receipt. A common practice in many communities is that the individual has to undergo a process of initiation, incorporation and acceptance by the community to which they seek to belong. Once accepted, the individual has the opportunity to build his personhood by ‘participation in communal life through the discharge of the various obligations defined by one’s station’.59 Thus in most cases ‘the older an individual gets, the more of a person he becomes’.60 With specific reference to justice, or interpretively legal capacity, Ifeanyi observes that this African conception of attaining personhood shows similarities with Rawls’s definition of the same in his book A theory of justice, where he notes that ‘those who are capable of a sense of justice are owed the duties of justice’.61 Rawls states that

[e]qual justice is owed to those who have the capacity to take part in, and to act in accordance with the public understanding of the initial situation. One should observe that moral personality is here defined as a potentiality that is ordinarily realised in due course.62

In short, according to the above ‘an individual comes to deserve of the duties of justice only through the possession of a capacity for moral personality’.63 For this reason, Chimuka argues that ubuntu excludes certain human beings and may ‘easily pass for an essentialist conception of identity’.64 For instance, as a result of its exclusionary legacy, feminists are cautious in their support of ubuntu. This skepticism is warranted especially since ubuntu, at least in the way that it has been practised, is at fault because of the discrimination and domination against women in many predominantly patriarchal African societies. Noteworthy, its discriminatory reach extends to persons with disabilities.

Admittedly, at first glance ubuntu as a communal concept seemingly is inconsistent with the notion of individual rights, let alone the legal capacity of persons with disabilities. It should be remembered that human rights, generally, are specifically owed to individuals. Individuals are the primary rights holders, so that the person is the main subject whose rights ought to be recognised, respected and protected. The question, therefore, is whether a system that assigns priority to the community and is potentially exclusionary can adequately ground individual rights.

It should at this point be clarified that this work does not attempt to trivialise the historical denial of rights to specific groups under ubuntu, and specifically the legal capacity of persons with disabilities, and their discrimination in many African societies. It also is not a whitewashing of the fact that persons with cognitive, intellectual and psychosocial disabilities or, as is often stated, persons with mental illness, were (and currently are) deemed prima facie by society not to qualify as holders of rights and beneficiaries of personhood. One hypothesis, perhaps leading to the above, was that, in the context of subsistence rural societies, these persons were often adjudged as not meeting the responsibilities of being contributing members of society. Gradually, with the societal forging of the perfect individual based on able-bodiedness, dehumanisation along with the consequent stripping of their personhood became the result. It is not surprising that in many African societies the manifestation of mental illness is often negatively perceived. In fact, in many communities it was - is - often seen as an attack from the outside forces on the individual with the intention of disrupting the community.65 Its manifestation was - is - often attributed to punishment for past wrongs by ancestral spirits and sometimes to witchcraft. As a result, at the very best most forms of intervention involved traditional healing, ritual cleansing and the appeasement of spirits,66 with minimal or often no regard being given to individual will and preference.

With the above in mind, the assumption that ubuntu as an African communitarian concept is forever at odds with individual rights and autonomy, and the fact that both cannot mutually prosper may not be as watertight. In reality, continued confrontation between the two may instead result in distraction, as evidenced by a host of rights initiatives in the African continent today. Rather, understanding, identifying similarities, and rearticulating local concepts is necessary for the meaningful realisation of individual rights, including the right to legal capacity. Importantly, owing to their effectiveness as a social engineering tool, traditional and cultural pillars ought to form a key stakeholder in the disability rights struggle.

In the second place, as alluded to earlier, there indeed is space for respect for individual rights to thrive. As micro-units that contribute to the collective wellbeing of society, it is of paramount importance that the ‘self’ is safeguarded. The emphasis of ubuntu on tenets such as a strong community, solidarity, sensitivity, care and support is premised on strong individuals in an inclusive and caring society. Importantly, this is also in line with the language adopted in the CRPD, specifically the Convention’s endorsement of independent living and the need for support, generally, and supported decision making with respect to legal capacity. It is within this window that a good case for legal capacity of persons with disabilities can potentially be made. Inclusion in society should be driven by the fact that encouraging their recognition before the law facilitates stronger communities and fosters inclusive and sustainable development, as a result of the participation of all in the economic market. It is worth noting that communities will eventually be able to tap into the untapped potential of historically invisible groups such as persons with disabilities. Doing so will inadvertently increase the productive population while greatly reducing dependency and poverty generally.

Of course, arguments may arise that this protection will only be guaranteed to protect community interests. But does formal intention to uphold individual rights really matter in this instance? Fact is that African regional rights systems are built around ‘peoples and human rights’.67 Equally, the goal of the collective good is also enshrined in many national rights instruments in the region. Furthermore, it might be useful to recall that as human beings, we are social beings and that we are largely influenced in our decision making by factors around us, even when it comes to the exercise of our freedoms. It is for reasons such as these that we should rethink how to strategise the realisation of individual rights on the African continent. This will go some way towards resolving perceptions of inherent badness of many African traditional concepts and beliefs. In so stating, it is conceded that attaining the optimal place between African communitarian ubuntu, legal capacity and individual rights generally still requires much more effort and study.

7 Ubuntu as a matter of strategy for realising legal capacity in the region

Simply emphasising individual rights and state obligations may not always lead to realisation. It is equally crucial to appreciate the context, the positioning of one’s message, and to appeal, in the most effective manner, to key actors in the realisation of rights process. Realising legal capacity in many sub-Saharan states is likely to fail if advocates do not develop an appreciation of the terrain and opportunities they are dealing with. Active efforts should be made to reach out to existing traditional and political structures. It is clarified that this is neither an effort to romanticise ubuntu, nor is it aimed at overstating its role in post-colonial modern sub-Saharan Africa. The fact, however, is that cultural concepts and institutions still have relative influence in defining individual rights.

Specifically, by hinging the discussion on communal strength as a derivative from individual input, the potential of selling legal capacity as a safeguarder of contributing agents/actors and individuals in society is tangible. Accordingly, themed advocacy messages highlighting the above intersectionalities and shared benefits bode well for real opportunities for acceptable realisation. It bridges the gap and significantly has the potential to lead to a systemic change in attitude towards disability in the region. This approach brings on board networks spanning outside known conventional disability rights coalitions and includes often ignored but important realisation players, in the name of traditional institutions, which basically inform communal attitudes and perceptions. As is presently the position, and even historically, attitudinal barriers have constituted a formidable barrier to disability and fueled widespread violations of the individual rights of persons with disabilities in general. In effect, this approach brings the disability rights discourse to the same table with the real power players in its realisation.

In addition, approaching the debate based on a thorough appreciation of contextual institutions creates an opportunity for demystification of historical rationalities and justifiers of legal incapacity labels, hence presenting real possibilities for reforging the debate in favour of persons with disabilities. Even in the face of possible friction, the potential for constructive debate to stir communal progress and identity on legal capacity is too immense to ignore. Such pilot steps are particularly relevant since there still is an apparent lack of appropriate case studies and best practices in the realisation of legal capacity, not only in sub-Saharan Africa but across the globe.

For all it may seem, confronting legal capacity through the lens of traditional perceptions of personhood may actually lead to more good. Granted, fears associated with potential compromise and the adulteration of standards may subsist, but this may perhaps constitute the best alternative for the real domestication of especially contentious human rights provisions generally. As such, the rigors which may result from diverging opinions should instead be regarded as a constructive, necessary and evolving process. It may encourage a more organic and natural development of rights as opposed to the language of mandates that are often a detached set of standards. Similarities may be drawn from current efforts to adopt a specialised African Disability Rights Protocol (since adopted by the African Union (AU) as of January 2018). One of the key arguments for the Protocol is that ‘litigating and lobbying on the rights of persons with disabilities will be easier if Africa had its own instrument on the rights of persons with disabilities’.68 Indeed, according to the guidelines of the very first draft African Disability Protocol, ‘the Protocol seeks to provide an African context to the rights of persons with disabilities’.69

Similarly, specific provisions of the CRPD have already been subjected to local and regional African sieving, foremost among which is the provision on independent living in the CRPD which has slowly been repackaged as (independent) community living among a growing number of African disability rights scholars. Without further digression, adding the communal element to the naming of the concept ‘independent living’ is potentially more regionally acceptable, even without the adulteration of the principles set out in the CRPD. It is thus in this same vein that in discussions about ubuntu, communal personhood may hold the real key to the realisation of legal capacity in the region. This is especially relevant for legal capacity since its standards are attuned to societal acceptance, with community living and supports favoured over institutionalisation options.

On a positive note, there is clear evidence of commitment towards disability rights among African states. Discussions on and the eventual adoption of the African Disability Rights Protocol, coupled with growing interest in disability rights studies in the region, are a just testament to the above progress. Nevertheless, as African states, collectively and individually, seek to forge their identities on international disability standards, it should be recalled that regional developments relating to disability rights should not be seen in isolation of the universal picture of the development of human rights. As suggested by Quinn, new international standards for persons with disabilities should be regarded as

the latest iteration of a long-extended essay at international level of the theory of justice ... I think the next way to approach the Disability Convention is to treat it as an expression of the deeper theory of justice.70

8 Conclusion

Article 12 of the CRPD on legal capacity presents perhaps one of the boldest statements in relation to the rights of persons with disabilities. The said article obligates member states to recognise persons with disabilities as holders of and actors in the right to legal capacity. Admittedly, bringing about the change envisaged by this provision on legal capacity for persons with disabilities in Africa is no easy feat. Regardless, one strategy that may be explored involves an examination of the relationship between legal capacity and ubuntu, and the potential effect African regional concepts can have on intervening strategies.

Rearticulating ubuntu as an African communal concept has the potential to play a central strategic role in the development of an African-specific architecture for the realisation of legal capacity. An important aspect to this insight is that the development of strategies to realise legal capacity should reflect an appreciation of regional traditional realities, and that disability rights should be regarded as part of mainstream human rights development. These adaptations should not be considered a compromise of international standards, but rather a recognition of regional factors and a process by which a comprehensive approach to realising international human rights can be devised.

Consequently, the main recommendation here requires a rethinking of the relationship between ubuntu, legal capacity and human rights. Despite the existence of many other factors, historical cultural norms continue to largely shape attitudes towards persons with disabilities generally in sub-Saharan Africa. Considering that the African Disability Protocol itself aspires to appeal to local contexts, it is crucial that a bridge as opposed to a chasm be incorporated in regional policies, interventions and regional instruments with the aim of reducing the gap between human rights standards and local realities. This assertion does not suggest a watering down of standards but rather the use of a less confrontational but more productive natural, attitudinal changing approach. The approach involves constructive negotiation between rights standards and traditional concepts such as ubuntu including with traditional cultural institutions in respective national and local jurisdictions. Making a case for the legal capacity of persons with disabilities generally, through the pillars of African traditions, will go a long way towards ensuring systemic, effective and eventually comprehensive realisation of the right in the region. It may in fact be the best strategy for realising all other human rights standards in the region.

 

1. United Nations Convention on the Rights of Persons with Disabilities, 2008.

2. R Kayess & P French ‘Out of the darkness into the light: Introducing the Convention on the Rights of Persons with Disabilities’ (2008) Human Rights Law Review 3.

3. Preamble para (e) CRPD (n 1).

4. Arts 2 & 9 CRPD.

5. MA Stein & JE Lord ‘Future prospects for the United Nations Convention on the Rights of Persons with Disabilities’ in OM Arnardotir & G Quinn (eds) ‘The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives’ (2008).

6. CRPD Negotiation Archives, https://www.un.org/development/desa/disabilities/re sources/ad-hoc-committee-on-a-comprehensive-and-integral-international-convention-on-the-protection-and-promotion-of-the-rights-and-dignity-of-persons-with-disabilities. html (accessed 12 January 2015).

7. A Dhanda ‘Legal capacity in the Disability Rights Convention: Stranglehold of the past or lodestar of the future’ (2006-2007) 34 Syracuse International Law and Commercial Journal 440.

8. M Manyonganise ‘Oppressive and liberative: A Zimbabwean woman’s reflection on ubuntu’ (2015) 36 Verbum et Ecclesia 1.

9. Dhanda (n 7) 431.

10. United Nations Committee on the Rights of Persons with Disabilities (RPD Committee), General Comment 1, 11th session (31 March-11 April) Document CRPD/C/GC/1.

11. As above.

12. Centre for Disability Law and Policy, NUI Galway ‘Submission on legal capacity to the Oireachtas Committee on Justice, Defence and Equality’ (2011) 10.

13. Dhanda (n 7) 431.

14. RPD Committee (n 10).

15. As above.

16. ERPD Committee (n 10) para 15.

17. G Quinn ‘Rethinking personhood: New direction in legal capacity law and policy: An ideas paper’ (2011), Appendix 5 of Centre for Disability Law and Policy (n 12).

18. Office of the United Nations Commissioner for Human Rights Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disability (2012) 7.

19. As above.

20. Quinn (n 17) 54.

21. Quinn 47.

22. Quinn 53.

23. As above.

24. Quinn (n 17) 54.

25. EV Kittay ‘The personal is philosophical is political: A philosopher and a mother of a cognitively disabled sends notes from the battlefield’ (2009) 40 Metaphilosophy LLC and Blackwell Publishing 610.

26. Kittay (n 25) 608.

27. G Quinn ‘Personhood and legal capacity perspectives on the paradigm shift in article 12 CRPD’ HPOD Conference, Harvard Law School, 20 February 2010 in Centre for Disability Law and Policy (n 12) 10.

28. RPD Committee (n 10) paras 1 & 2.

29. RPD Committee para 11.

30. Centre for Disability Law and Policy (n 12) 5.

31. RPD Committee (n 10) para 13.

32. RPD Committee para 14.

33. RPD Committee paras 13 & 14.

34. RPD Committee paras 16 & 17.

35. Centre for Disability Law and Policy (n 12) 12.

36. RPD Committee (n 10) paras 13 & 14.

37. RPD Committee para 4.

38. Art 3(d) CPRD

39. See http://www.irinnews.org/report/98680/rethinking-mental-health-in-africa (accessed 9 January 2017).

40. As above.

41. Mental Disability Advocacy Centre (MDAC) ‘The right to legal capacity in Kenya’ (March 2014 Report) 5.

42. Ch 248, secs 10, 14 & 16 Kenya, Mental Health Act.

43. Ch 270, secs 1, 5, 7 & 9 Laws of Uganda, Mental Treatment Act.

44. Human Rights Watch ‘Like a death sentence: Abuses against persons with mental disabilities in Ghana’ (2012), http://www.hrw.org/sites/default/files/reports/ghana1012webwcover.pdf (accessed 9 January 2017).

45. A Oton ‘Africa, disability and mental illness: When will we evolve?’ Blog, http://www.huffingtonpost.com/atim-oton/mental-health-in-africa_b_1237540.html (accessed 9 January 2017).

46. Purohit & Another v The Gambia (2009) AHRLR 75 (ACHPR 2009).

47. As above.

48. As above.

49. P Bartlett & V Hmazic ‘Reforming mental disability law in Africa: Practical tips and suggestions’ (2010) 4.

50. T Hammerbag ‘Persons with disability should be assisted and not deprived of their individual human rights’ in Centre for Disability Law and Policy (n 12) 9.

51. JLB Eliastam ‘Exploring ubuntu discourse in South Africa: Loss, liminality and hope (2015) 36 Verbum et Ecclesia 1427.

52. As above.

53. As above.

54. DM Tutu No future without forgiveness (1999).

55. As above.

56. J Mbiti African religions and philosophies (1970) 141.

57. IA Menkiti ‘Person and the community in African traditional thought’, http://courseweb.stthomas.edu/sjlaumakis/Reading%203-AFRICAN%20VIEW.pdf (accessed 16 December 2016).

58.

59. Menkiti (n 60) 176.

60. Menkiti 173.

61. As above.

62. J Rawls A theory of justice’ (1971).

63. Menkiti (n 60) 176.

64. As above.

65. JMT Labuschagne, JC Bekker & CC Boonzaaier ‘Legal capacity of mentally-ill persons in Africa’ (2003) 36 Comparative and International Law Journal of Southern Africa 106.

66. As above.

67. African Charter on Human and Peoples’ Rights (1981).

68. L Mute ‘Concept on the list of issues to guide preparation of a Protocol on the Rights of Persons with Disabilities in Africa’, quoted in LO Oyaro ‘Africa at crossroads: The United Nations Convention on the Rights of Persons with Disabilities’ (2015) 30 American International Law Review.

69. First draft Protocol of the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, Draft II, 14 March 2014, http://www.achpr.org/news/2014/04/d121#_Toc382911846 (accessed 2 January 2017).

70. Quinn (n 17) 52.


  • Heléne Combrinck
  • Associate Professor, Faculty of Law, North-West University, South Africa
  • B Iur LLB Honns BA (North-West University) LLM (Cape Town) LLD (Western Cape)

  • H Combrinck ‘Rather bad than mad? A reconsideration of criminal incapacity and psychosocial disability in South African law in light of the Convention on the Rights of Persons with Disabilities’ (2018) 6 African Disability Rights Yearbook 3-26
    http://doi.org/10.29053/2413-7138/2018/v6a1
  • Download article in PDF

Summary

Article 12(2) of the Convention on the Rights of Persons with Disabilities requires the recognition that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Such acknowledgment implies that state parties to the Convention, including South Africa, will have to reassess their existing legal provisions relating to legal capacity. These legal measures typically include a rule to the effect that where a person accused of a criminal offence lacks criminal capacity as a result of an intellectual or psychosocial disability, he or she cannot be held liable in criminal law (often referred to as the ‘insanity defence’). This article examines the potential influence of the recognition of universal legal capacity in the CRPD on the insanity defence, with specific emphasis on the current position in South African law. It commences with an overview of the normative content of article 12 of the CRPD as it relates to the notion of criminal capacity and also considers the interpretations of this provision as proposed by academic commentators. These interpretations may be described as, first, an abolitionist position (calling for both the elimination of the insanity defence and the concomitant mandatory committal of the accused to forensic psychiatric institutions) and, second, an integrationist position (suggesting the development of disability-neutral rules on criminal capacity). A third approach strongly argues in favour of retaining the insanity defence while at the same time reconsidering the institutionalisation of an accused person following an acquittal based on this defence. The present South African legislative dispensation regarding criminal capacity is subsequently examined and measured against the CRPD. The article concludes with a number of observations in view of potential law reform.

 

1 Introduction

The guarantee of ‘universal legal capacity’ in article 12 of the Convention on the Rights of Persons with Disabilities1 (CRPD) requires state parties to recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. In most jurisdictions this implies a far-reaching overhaul of existing laws.2 South Africa, as party to the Convention,3 is no exception in this regard.

Certain aspects of universal legal capacity, such as the development of supported decision-making mechanisms4 in line with article 12(3), already have generated a burgeoning body of literature,5 especially in light of the interpretive guidelines adopted by the Committee on the Rights of Persons with Disabilities (CRPD Committee). However, one issue that has drawn less attention from academic commentators (and, arguably, from the CRPD Committee itself), is the implications of the CRPD for the concept of ‘fitness of an accused6 person to stand trial’ as well as for the so-called ‘insanity defence’.7

The notion of fitness to stand trial generally refers to the ability of the accused, at the time of the criminal trial, to follow the proceedings, to instruct her legal representative and offer a proper defence.8 Criminal capacity, on the other hand, relates to the question of whether the accused had the ‘mental elements’ necessary to be held responsible,9 such as the ability to appreciate the wrongfulness of her actions at the time of the commission of the offence.10 Both constructs therefore rely on an assessment of the accused’s mental capacity (albeit at different stages).11

A further common element is that in many criminal justice systems, upon a finding of unfitness to stand trial or of criminal incapacity, the court must order a special disposition in respect of the accused. This may include detention until the accused is fit to stand trial; indefinite detention (accompanied by involuntary treatment) in a psychiatric hospital; or diversion to mental health care services. The perceived ’dangerousness’ of the accused (to herself or others) often provides the rationale for such special measures.

The insanity defence has been called into question for its non-compliance with article 12 of the CRPD, specifically in respect of the disregard of the principle of universal legal capacity. The CRPD Committee further has expressed the view that systems of special disposition, which typically permit the detention of persons with psychosocial disabilities based on their disability, constitute a violation of article 14 of the Convention,12 which explicitly states that the existence of a disability under no circumstances justifies a deprivation of liberty.13

The article accordingly interrogates the implications for the insanity defence14 of the recognition of universal legal capacity and the prohibition of disability-based deprivations of liberty. It first provides a brief overview of article 12, with reference to the drafting process and the contents of the article. It then more closely examines the notion of ‘legal capacity’ and also considers the interpretive guidance provided by the CRPD Committee in General Comment 1, adopted in 2014.15 The article further considers different interpretations of the relevant provisions by selected academic commentators. It next turns to the status quo in South Africa in respect of criminal incapacity as a result of psychosocial disability, and attempts to measure the applicable provisions against guidelines provided under the CRPD. Ultimately, the article does not seek to propose definitive solutions, but rather to explore the ‘borderlines’ around the insanity defence (in Perlin’s words),16 thereby providing a basis for future debate.

2 Article 12 of the Convention on the Rights of Persons with Disabilities

2.1 Background

Article 12 has been described as being ‘at the core’ of the Convention17 - an embodiment of the paradigm shift18 inherent in this document.19 The right to equal recognition before the law implies that legal capacity is a universal attribute inherent in all persons by virtue of their humanity which must be upheld for persons with disabilities on an equal basis with others. 20

Not surprisingly, the recognition of legal capacity of persons with disabilities emerged as one of the most controversial areas of debate during the preparatory negotiations of the CRPD.21 A particularly thorny question was whether the term ‘legal capacity’ should be understood to include both the capacity to be a holder22 of rights and the capacity to be an actor under the law.23 The first component, referred to as ‘legal standing’,24 entails being viewed as a person before the law,25 which in turn entitles the person to full protection of her rights by the legal system.26 The second component, known as ‘legal agency’, is the capacity to act on or exercise these rights,27 which involves the recognition of the person as an agent with the power to engage in transactions and create, modify or end legal relationships.28 It is this latter component that is frequently denied or diminished in the case of persons with disabilities.29

Certain delegates to the CRPD negotiations were in favour of a more limited understanding of legal capacity, and attempts accordingly were made to reduce the provisions in article 12 to ‘legal standing’ only,30 which would have lowered the standard of human rights protection in the Convention.31 While the final document as adopted is free of such limitations, it is worth noting that several of the reservations and interpretive declarations subsequently entered by state parties specifically relate to the interpretation of article 12.32

Kanter observes that the history of the drafting process reflects fundamental differences about the ‘very nature of human rights’.33 Significantly, the ‘battles of meaning’34 that arose during the negotiations have continued beyond the adoption of the Convention itself and can still be discerned, for example, in responses to General Comment 1 of the CRPD Committee.35

2.2 Brief overview of contents

Article 12(1) first reaffirms that all persons with disabilities have the right to ‘recognition everywhere as persons before the law’. According to the CRPD Committee, this provision guarantees that every human being is respected as a person possessing legal personality, which is a prerequisite for the recognition of a person’s legal capacity.36 This naturally leads to article 12(2), which states that persons with disabilities enjoy legal capacity on an equal basis with others in all areas of life. The formulation of ’on an equal basis with others’, which also appears in several other articles in the CRPD,37 indicates that the basis of article 12(2) is to be found in equality and non-discrimination.

The unequivocal point of departure here is that all persons with disabilities have full legal capacity, in the sense of both legal standing and legal agency, on an equal basis with others.38 Significantly, this premise is neither conditional (‘all persons have legal capacity provided that they have the capacity to ...’) nor presumptive (‘all persons are presumed to have legal capacity until proved otherwise’).39

Article 12(3) recognises that state parties have an obligation to provide persons with disabilities with access to support in the exercise of their legal capacity. The approach required in terms of the CRPD is that instead of denying persons with disabilities their legal capacity, states must rather provide access to the support necessary to make decisions that have a legal effect.40 ‘Support’ is a broad term encompassing both informal and formal support arrangements, of varying types and intensity.41

Article 12(4) provides that ‘appropriate and effective safeguards’ must be included in systems supporting the exercise of legal capacity.42 These safeguards must ensure that measures relating to the exercise of legal capacity are proportional and personalised and apply for the shortest time possible. Regular review by a competent, independent and impartial authority or judicial body is also highlighted.

Finally, article 12(5) requires state parties to take all ‘appropriate and effective’ measures to ensure the rights of persons with disabilities with respect to financial and economic affairs, on an equal basis with others.43 The traditional denial of legal capacity regarding matters of finance and property must now instead be replaced with support to exercise legal capacity, in accordance with article 12(3).44

2.3 Interpretation of article 12: General Comment 1

In 2014 the CRPD Committee adopted a General Comment on article 12, aimed at examining the general obligations arising from the different aspects of this article.45 Such general comments by treaty-monitoring bodies are not binding interpretations of the Convention,46 but are nevertheless considered as particularly persuasive interpretations of international law.

Although the content of General Comment 1 is far-ranging, this section will look at one of the aspects most relevant to criminal incapacity, namely, the de-linking of legal capacity from mental capacity. This becomes especially significant when one notes that the comment itself does not directly address criminal capacity as such.47

2.3.1 Separation of legal capacity and mental capacity

According to the CRPD Committee it must be clearly understood that legal capacity and mental capacity are separate concepts.48 Legal capacity, on the one hand, consists of the ability to hold rights and duties and to exercise those rights and duties. Mental capacity, on the other, refers to decision-making skills, which naturally differ from one person to another, depending on many factors such as environmental and social factors. Mental capacity49 is not, as is commonly presented, an ‘objective, scientific and naturally occurring phenomenon’.50 Instead, it is dependent on many factors, including social and political contexts.51

Article 12 makes it clear that ‘unsoundness of mind’ and other discriminatory labels are not legitimate reasons for the denial of legal capacity.52 Under this article perceived or actual deficits in mental capacity may not be employed to justify a negation of legal capacity.53 The CRPD Committee observed that in most of the state party reports that it had examined, the concepts of mental and legal capacity had been merged so that where a person is considered to have impaired decision-making skills (often because of a cognitive or psychosocial disability), his or her legal capacity is removed as a result thereof.54

Considering the three established methods for assessment of legal capacity, namely, the status approach,55 the outcome approach56 and the functional approach,57 the Committee points out that all three approaches regard a person’s disability and/or decision-making skills as legitimate grounds for denying legal capacity and ‘lowering his or her status as a person before the law’.58 Such discriminatory disavowal of legal capacity is not permitted under article 12.59 Importantly, the provision of support to exercise legal capacity should not depend on mental capacity assessments. Instead, the Committee recommends that ‘new, non-discriminatory indicators of support needs’ are necessary.60

2.3.2 Responses to General Comment 1: Unfinished business?

The CRPD Committee in General Comment 1 takes a robust and principled stance in respect of contentious areas such as supported decision making and involuntary treatment. For example, it confirms that the human rights-based model of disability demands a shift from the framework of substitute decision making (which includes practices such as guardianship) to one that is based on supported decision making.61 The Committee accordingly discerns an obligation on state parties to replace substitute decision-making regimes by support for decision making that respects the person’s autonomy, will and preferences.62

Despite this clear pronouncement, there still appears to be some lingering questions as to whether substitute decision-making systems are permitted under the CRPD. For example, Freeman et al suggest that the ‘universal presumption of legal capacity’ and the pre-eminence of supported decision making cannot be absolute and that exceptions have to be considered.63

Similarly, despite the Committee’s clear normative directives, disparate views remain on the permissibility of involuntary treatment. For example, Szmukler et al suggest that ‘very few would support the idea that the state never, even as a last resort, has a duty to protect those who are clearly unable to make crucial treatment decisions for themselves’.64

General Comment 1 thus exposes the fault lines between those who accept the premise of ‘universal legal capacity with support’, irrespective of whether the person requires more intensive support,65 and those who would reserve an exception (albeit limited) in respect of persons who are regarded as unable to act, even with the benefit of support - who are, in the words of Slobogin, ‘too impaired to allow them to make a decision’.66 These tensions and divisions also become apparent when considering criminal capacity and psychosocial disability, as will be shown below.

3 Criminal capacity and the Convention on the Rights of Persons with Disabilities

3.1 Guidance from the CRPD Committee

As explained above, the insanity defence is not directly addressed in General Comment 1 itself. However, the implications of universal legal capacity for this defence were considered as early as 2009 in the thematic report of the Office of the High Commissioner for Human Rights (OHCHR), which states:67

In the area of criminal law, recognition of the legal capacity of persons with disabilities requires abolishing a defence based on the negation of criminal responsibility because of the existence of a mental or intellectual disability. Instead disability-neutral doctrines on the subjective element of the crime should be applied, which take into consideration the situation of the individual defendant.

This interpretation subsequently has been developed by the CRPD Committee’s adoption in 2015 of guidelines to provide clarification on article 14 of the Convention.68 These guidelines do not address the recognition (or not) of the insanity defence as such, but do speak to dispositions of detention following an insanity-based acquittal.

The Committee points out that, according to article 14, no exceptions are allowed in terms of which persons may be detained on the grounds of their actual or perceived impairment. The legislation of several state parties still provides for the detention of persons with disabilities on the grounds of their actual or perceived impairment, provided that there are other reasons for their detention, such as the fact that they are deemed dangerous to themselves or others.69 Such legislative provisions are incompatible with article 14, are discriminatory in nature and amount to an arbitrary deprivation of liberty.70 This prohibition also holds implications for involuntary treatment in the course of the deprivation of liberty: The Article 14 Guidelines note that treatment should be based on the free and informed consent of the person concerned.71

As far as declarations that persons with disabilities are incapable of being found criminally responsible and the concomitant detention of such persons are concerned, the Committee notes that these practices are contrary to article 14, since they deprive the person of the right to due process and safeguards applicable to every accused person.72 State parties accordingly are enjoined to remove such declarations of criminal incapacity from their criminal justice systems.73

The Committee also deals with security measures (such as involuntary treatment in institutions) imposed on persons found not responsible due to criminal incapacity74 and recommends the elimination of such measures. Similarly, it is concerned about security measures that involve indefinite deprivation of liberty and the absence of regular rights guarantees in the criminal justice system.75

When it comes to the deprivation of liberty in criminal proceedings, the Committee recommends that this should apply only as a matter of last resort and when other diversion programmes, including restorative justice, are insufficient to deter future crime.76 Specifically, diversion programmes must not involve a transfer to mental health commitment regimes or require an individual to participate in mental health services, but should instead be provided on the basis of the individual’s free and informed consent.77

The Committee’s views, as expressed in General Comment 1 and the Article 14 Guidelines, have drawn divergent responses from academic commentators. In the next section the opinions of three authors, canvassing a range of considerations, are examined.78

3.2 Interpretation by commentators
3.2.1 The abolitionist position: Elimination of the insanity defence

Minkowitz regards all measures by which persons with disabilities are treated unequally in legal proceedings, including the insanity defence, as well as a disposition to forensic psychiatric institutions, as disability-based discrimination and, accordingly argues for the elimination of such measures.79

She first relies on a direct reading of the recognition in article 12(2) of equal legal capacity in all aspects of life, which clearly has to include criminal matters. Furthermore, if persons with disabilities have the legal capacity to act on an equal basis with others, this capacity logically extends to all circumstances ‘where decisions have consequences’, which implies legal responsibility for those consequences on an equal basis with others.80 She also notes that the rejection by the CRPD Committee in General Comment 1 of attaching legal or practical consequences to the assessment of mental capacity, logically precludes the use of mental capacity assessments to negate criminal responsibility.81

A denial of criminal responsibility based on mental incapacity as an evaluative concept constitutes disability-based discrimination and impairs the right to equal recognition before the law by giving legal effect to such incapacity and stigmatising the particular individual as well as all persons with psychosocial and intellectual disabilities.82

She finds further support in article 14(1) of the CRPD, which (as noted above) provides that the existence of a disability in in no case may justify a deprivation of liberty. Mental health detention, which by definition is premised on apparent psychosocial disability or a psychiatric diagnosis, can never be disability-neutral and, therefore, always violates article 14(1).83

Minkowitz develops a proposal for ’inclusive design of criminal responsibility’.84 As a starting point the court must, as part of the finding of intent (that is, the subjective element of a criminal offence) consider the perceptions, beliefs and world view of the accused with respect to her actions at the time of the relevant act, to the extent that such evidence is available.85 However, this does not amount to an assessment of mental capacity, but rather is an ‘open-ended inquiry into ... contextualising factors that can help to make sense of a person’s actions’.86 If there is a lack of proof of criminal intent or any other element of the crime, the result would be an acquittal or a reduction of the degree of culpability without reference to mental capacity.87

In terms of this proposal there would be no insanity defence or concept of mental incapacity.88 At the same time an acquittal or conviction would not result in detention in a forensic mental health institution or other special security-related measure. If the accused is found guilty, she would serve her sentence in an ordinary place of detention, under the same conditions as others, subject to reasonable accommodation and in compliance with the other principles of the CRPD.89

3.3.2 The integrationist position: Developing disability-neutral rules

As a response to the ‘tough normative and practical questions’90 presented by the CRPD, Slobogin proposes a three-fold model based on the punitive, preventive and protective approaches to deprivation of liberty.91 These three approaches can briefly be explained as follows.

The goal of the punitive approach, which focuses on culpability, is to punish people for the harm they have caused.92 The deprivation of individual liberty, therefore, is permitted if the person has caused harm to another person or their property in a culpable manner. The preventive approach aims to prevent harm to others and, therefore, focuses on perceived dangerousness.93 This approach to liberty deprivation is permitted only when the benefits of such deprivation outweigh the harm caused. The goals of the protective model include the promotion of autonomy and the protection of dignity through self-determination.94 Examples are guardianship and hospitalisation of an accused person to ‘improve’ their ability to participate in the criminal proceedings.95

Slobogin then explores how the aims of the CRPD may be accomplished in respect of each model.96 Regarding punishment he posits that the CRPD Committee’s call for elimination of a ‘special’ defence of insanity is in line with his integrationist approach to criminal law, which holds that persons with psychosocial disabilities may rely on any of the defences that are available to accused persons generally.97

Slobogin distinguishes a general trend (in the United States (US) and other countries) towards a more subjective approach to culpability, which entails that the accused’s blameworthiness is assessed according to her actual desires and beliefs, rather than with reference to what a reasonable person would have desired or believed.98 For example, virtually all

criminal offences in the Model Penal Code99 require proof that the accused ‘purposefully or knowingly’ caused the harmful conduct,100 which exemplifies this trend towards the subjectification of mens rea. The defences of self-defence, provocation and duress likewise are subjectified under the Code; for example, the use of deadly force is permitted where the actor (subjectively) believes that this is immediately necessary to protect herself against unlawful force.101

Slobogin explains that granting people with psychosocial disability a ‘special defence’ stigmatises102 and marginalises them. The category of ‘criminal insanity’ also perpetuates the deleterious myth that people with psychosocial disabilities are particularly dangerous or lack self-control. Maintaining that compared to an acquittal by reason of insanity, exoneration on the grounds of lack of intent, self-defence, or duress is far less tainting,103 he accordingly formulates a ‘disability-neutral’ defence’, which would apply equally to all persons, irrespective of psychosocial disability. One potentially contentious aspect of this defence is that it would not be available where the ‘impairments’ that led to the accused’s erroneous beliefs resulted from the accused’s purposeful avoidance of treatment.104

In respect of the prevention model, Slobogin reiterates that the detention of persons with psychosocial disabilities on the grounds of ‘dangerousness’ is viewed as discriminatory and in violation of the prohibition of disability-based deprivation of liberty in terms of the CRPD. The legal basis for such deprivation accordingly must be de-linked from disability and be neutrally defined so as to apply to everyone on an equal basis.105 He thus argues for a general prohibition of preventive detention or other measures aimed at protecting others. However, this would be subject to one exception, namely, cases where the criminal justice system cannot function as a preventive mechanism because first, it lacks jurisdiction (for example, where the accused has been acquitted or has completed serving her sentence) and, second, because the person is ‘truly undeterrable’.106

The notion of undeterrability would include two categories of people with psychosocial disabilities: those who cause harm in the delusional belief that they are not committing a crime; and those ‘with urges so strong’ that they tend to commit crime despite a high risk of apprehension and punishment. These two groups are unaware of the possibility of punishment and thus are truly undeterrable.107 In order to demonstrate that this formulation of undeterrability is disability-neutral, Slobogin identifies two other categories of people that would be regarded as undeterrable, namely, persons with contagious diseases and ‘enemy combatants’.108

3.3.3 The third position: Retaining the insanity defence

In a strongly-worded article Perlin takes the position that to deprive persons with psychosocial disabilities109 of the right to plead insanity demeans any notion of dignity.110 He believes that the insanity defence plays a critical role in a fundamentally-fair criminal justice system; discarding it would violate the most basic principles of due process111 as well as the fundamental notion that only people who are responsible for their actions should be punished.112 The exculpation of some individuals based on their mental state is essential to a mature and coherent system of criminal law.113 Therefore, he is of the opinion that the proposed abolition of this defence is ‘wrongheaded, counterproductive and likely a violation of due process’.114

In respect of Slobogin’s proposals for recasting the insanity defence, Perlin is of the opinion that the revised disability-neutral version still amounts to the insanity defence; it is just not characterised as such.115 He is also sceptical of the clause providing that the defence should not be available to an accused person who caused her own mental state (for example, by refusal of treatment).116 He expresses concern that this proviso will be used ‘broadly and bluntly’ to suppress the right to refuse involuntary administration of antipsychotic medication (which is otherwise protected by the CRPD and domestic law).117

Perlin also responds to Minkowitz’s position. As a preliminary point he is in agreement with her that the insanity defence, as currently utilised, often is legally and socially stigmatising; that acquittals on the grounds of insanity often do not result in release from custody; and that persons found not guilty by reason of insanity often are held in forensic facilities for far longer than is warranted by the underlying criminal offences with which they were originally charged.118 However, these realities do not justify the abolition of the insanity defence: The abuses (correctly) listed by Minkowitz are not caused by the defence in itself, but rather by the administration of the system of ‘post-insanity-defence-acquittal’ case dispositions and institutionalisation; hence, this is where the attention should instead be focused.119

For Perlin the major question is what will happen to this ‘cadre of defendants’ in the absence of an insanity defence. He predicts that the immediate result of the abolition of the insanity defence would be the long-term incarceration of this group in prisons that are known to be dangerous and life-threatening to them.120

Ultimately he finds no demand for the abolition of the insanity defence in the CRPD (including article 14).121 Instead, he believes that when the CRPD is read as a whole (together with other international human rights instruments requiring fair trials), it in fact calls for its retention.

3.3.4 Discussion

Although the views of the three authors as presented here appear to diverge in several respects, at the same time there are significant points of agreement. First, one cannot fault Minkowitz for her reading of articles 12 and 14, as underpinned by General Comment 1 and the Article 14 Guidelines (although Perlin clearly disagrees).

Regarding the disposition of the accused following an acquittal: Again, Minkowitz’s view that this should not be followed by detention in a forensic mental health system (or other involuntary measure) is in line with the CRPD Committee’s interpretation. However, the notion that persons with psychosocial disabilities who are convicted of criminal offences should serve their sentences under the same conditions as others indeed raises the major concerns pointed out by Perlin. This may well be an instance where formal equality (treating all convicted persons in the same way) may have to yield to considerations of substantive equality that takes account of material differences.

Minkowitz’s proposal for inclusive design of criminal responsibility in many respects resembles Slobogin’s integrationist approach. The focus on the subjective elements of intent, requiring an assessment of the accused’s blameworthiness according to her actual beliefs and desires, rather than a ‘reasonable person’ standard, combined with a subjective approach to established defences such as self-defence and duress, certainly holds promise for developing a ‘disability-neutral defence’ that moves away from the insanity defence.122 Furthermore, the question of whether this defence should be available where the state of mind of the accused is the result of failure to comply with treatment should be resolved. (Perlin’s reservations in this regard are well-founded.)

In terms of preventive detention, Slobogin suggests a narrow, disability-neutral allowance, based predominantly on the notion of undeterrability. Apart from any other concerns (such as the construction of ‘undeterrability’), the purported neutrality of this proposal is dubious. Although its formulation would also include certain persons without psychosocial disabilities, such as ‘enemy combatants’, such a measure would disproportionately affect persons with psychosocial disabilities, thus offending against the prohibition of indirect discrimination.123

4 South African law

Against this background the following section briefly examines certain aspects of the current South African legal position. First, the general principle regarding legal capacity is set out, followed by the statutory provisions dealing with criminal incapacity based on psychosocial disability. The implementation of section 78 is then briefly considered and, in conclusion, the current position is evaluated against the considerations outlined in section 3 above.

4.1 General principles

In terms of South African law generally, every person above 18 years of age may exercise legal capacity to its fullest extent, which means that she may by herself and without the assistance or consent of any other person exercise all the rights and become subject to all the duties associated with being a ‘person’.124 However, the legal capacity of persons that are ‘insane or mentally disordered’ is limited.125 These limitations, as they relate to criminal capacity, are dealt with in section 78 of the Criminal Procedure Act 51 of 1977 (CPA). Section 78 will be examined briefly by looking at the substantive issue of criminal incapacity due to mental illness126 as well as the prescribed disposition by the court on finding that the accused lacks criminal capacity.

4.2. Statutory provisions

In South African law the point of departure is that criminal capacity, which is regarded as the basis of (and general precondition for) culpability,127 may be excluded by a number of grounds, including youthfulness,128 intoxication and mental illness. In respect of the latter the test to determine the accused’s criminal capacity is set out in section 78(1) of the CPA. This section provides that a person committing an offence, while at the time suffering from a ‘mental disorder or intellectual disability’129 which makes her incapable (a) of appreciating the wrongfulness of her act; or (b) of acting in accordance with such an appreciation, will not be ‘criminally responsible’.

The defence of criminal incapacity due to mental illness usually is raised on behalf of an accused at the beginning of the trial (at the stage of pleading to the charges). Where incapacity is alleged, the accused must be dealt with in terms of section 79 of the CPA, which regulates the process of inquiry into the accused’s (in)capacity and the subsequent process of reporting to the court.130

Upon completion of the prescribed inquiry and submission of the experts’ reports131 in terms of section 79, the court must make a finding regarding the accused’s criminal capacity.132 If the court finds that the accused committed the act in question and that she at the time of commission lacked criminal capacity, she must be found not guilty by reason of mental illness.133 For purposes of the criminal prosecution, the matter ends there: The accused has been found not guilty and cannot again be charged with the same offence. However, this is not the end for the accused: The court must now direct an outcome, depending on the nature of the charges against the accused.

First, if the accused has been charged with murder, culpable homicide, rape or compelled rape,134 or a charge involving serious violence, or if the court considers it necessary in the public interest, the court may order her detention in a psychiatric hospital.135 This is subject to the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act (MHCA).136 The court may alternatively order that the accused be detained in a designated health establishment as if she was an involuntary mental health care user as set out in section 37 of the MHCA;137 be released with or without conditions; or referred to a children’s court, in the case of a child.138

Second, where the accused is charged with an offence other than the ones listed above, that is, a less serious offence, the court may order that the accused be detained as an involuntary mental health case user (as above); released with or without conditions; or referred to a children’s court.139

Importantly, for proceedings in terms of sections 77(1)140 and 78(2) the court may order that the accused be provided with the services of a legal representative,141 if the court is of the opinion that substantial injustice would otherwise result.142

4.3 Determination of criminal capacity in terms of section 78

In order to establish the criminal capacity of the accused, the court must as a point of departure determine whether the accused had been suffering from a mental illness. If so, the second step is to establish the impact of such mental illness at the time of the commission of the offence. Notably, the CPA does not provide a definition for mental illness (or intellectual disability). The MHCA, on the other hand, defines ‘mental illness’ in terms of a positive diagnosis, made by an authorised mental health care practitioner on the basis of accepted diagnostic criteria, of a ‘mental health-related illness’.143 However, this definition is not conclusive in respect of a criminal trial: The fact that the accused has been diagnosed with a mental illness in terms of the MHCA does not mean that he is also ‘mentally ill’ for purposes of the CPA. 144

Due to this lack of a definition of ‘mental illness’ in the CPA, psychiatric evidence is regarded as indispensable in the determination of criminal capacity. This was confirmed in S v Mabena,145 where the Supreme Court of Appeal explained that a lay court cannot diagnose a ‘mental illness’ without guidance by expert psychiatric witnesses.146 Having said that, the final decision as to the accused’s criminal capacity, including the assessment of the experts’ reports and other evidence, lies with the court.147

4.4 Evaluation

For purposes of this discussion, it is helpful to return to the two aspects of the insanity defence, namely, the finding of criminal incapacity (and hence acquittal) in respect of the accused due to mental illness, and the subsequent disposition by the court.

In terms of the finding that the accused lacks criminal capacity it should be noted that the grounds for excluding criminal capacity under South African criminal law extend beyond mental illness to also include youthfulness and intoxication. The special measures relating to the inquiry into the accused’s criminal capacity as set out in the CPA (namely, the referral for observation and the reports by experts), however, are applicable only to persons with a mental illness. Similarly, the disposition measures following a finding of not guilty by reason of mental illness only operate here. Accordingly, this constitutes differential treatment of accused persons with psychosocial disabilities. However, such differentiation does not in itself necessarily amount to ‘unfair discrimination’ as understood in South African constitutional jurisprudence.148

The measurement against the South African Constitution becomes necessary at this point because of the fact that the CRPD has not yet been formally ‘incorporated’ into South African law as required in terms of section 231 of the Constitution. However, courts are required to consider the Convention as an interpretive aid when interpreting the Bill of Rights.149 The judgment of the Constitutional Court in De Vos NO v Minister of Justice and Constitutional Development150 exemplifies such invocation of the CRPD.151

In addition to the discrimination-based argument alluded to above, it should be noted that the assessment of criminal incapacity arising from mental illness under section 78 of the CPA in essence is a functional test (resting on proof of incapacity to appreciate the wrongfulness of an act or to act in accordance with such an appreciation). It also amounts to the conflation between legal capacity and mental capacity cautioned against by the CRPD Committee in that the accused person’s legal capacity is ‘removed’ because of a finding that her decision making was impaired at the time of the offence.152 These considerations further complicate the insanity defence in its current form.

Significantly, in terms of South African criminal law, the test for intention is subjective, which means that the accused’s individual characteristics, personal beliefs, background and psychological disposition may be taken into account in determining whether or not she had the required intention.153 Intention, therefore, may be excluded, for example, by so-called ‘putative private defence’ (where the accused erroneously believes that an unlawful attack is being directed at her, and she therefore acts to ward off this attack). Since unlawfulness is determined objectively, her defensive act would be unlawful - because in reality there was no attack against her - but her honest mistake as to the existence of an attack may exclude intention.154

Such a mistake does not need to be reasonable: The inquiry concerns the accused’s ‘true state of mind’ and her conception of the circumstances, and not whether the reasonable person in the accused’s position would have made the same mistake.155 This subjective construction of intent theoretically opens the door for the consideration of a disability-neutral defence, such as mistake, on the part of the accused, since the source and reasonableness of such mistake would not be at issue.

With regard to the second aspect, namely, disposition of the accused on conclusion of the criminal case, Kaliski points out the anomaly that (former) accused persons committed to the forensic mental health system following an acquittal by reason of mental illness, often face indefinite detention while convicted offenders may serve only a part of their sentence based on remittances for good behaviour and other concessions.156

Noting the ‘largely failed enterprise of risk assessment’, Kaliski also questions the concept of ‘dangerousness’ associated with mental illness and the assumption that indefinite detention at least addresses the risk of future violence.157 (‘Dangerousness’ comes into play in the court’s determination of whether detention as a state patient in a psychiatric hospital is required ‘in the public interest.’158)

Were the South African courts to follow the principled view of the CRPD Committee that disability-based detention violates the right to liberty of persons with psychosocial disabilities under article 14, this would cast a dark shadow over the current provisions of section 78(6). It should, however, be noted that a rights violation may be justified under the ‘limitations clause’ (section 36) of the Constitution, and it is conceivable that a court would weigh up the detainee’s right to liberty against the state’s duty to protect the public from harm.159

Finally, one aspect that needs further consideration is the provision of support, in terms of article 12(3), where the accused’s criminal capacity is at issue (although this arguably relates more to situations where the accused may be unfit to stand trial).160 Section 77(1B) of the CPA, which permits the court to order the appointment of a legal representative for the accused, is a good starting point. However, at present such appointment is discretionary whereas, it is argued here, it should be mandatory in all cases where the fitness to stand trial or criminal capacity of the accused is in dispute.161 Other analogies of support may be drawn from the current arrangements regarding the role of a curator ad litem.162

5 Conclusion

Peay correctly observes that thinking through the implications of the CRPD for criminal liability is not easy.163 This in part is due to the fact that the CRPD has introduced dramatic changes into areas of law ‘that had previously been thought settled’.164 As outlined above, this certainly includes the insanity defence.

It is encouraging that the South African government has committed itself to a review of civil and criminal legislation, including the inquiry into an accused person’s criminal capacity in criminal proceedings, in light of article 12 of the CRPD.165 It is argued here that close consultation with and the active involvement of persons with disabilities166 (especially those with psychosocial disabilities and forensic detainees)167 will be essential in any consideration of law reform measures.

Petersen expresses doubt as to whether legislatures would ever accept proposals for the complete abolition of the insanity defence168 and, therefore, cautions that it may be more practical to consider reforms to current defences and to provide stronger safeguards (including more regular reviews of the disability-related detention of accused persons).169 One has to agree that the abolition of the insanity defence would be hard to ‘sell’ in the current South African context.170

However, this does not obviate the need to develop practicable (and politically-feasible) alternatives to guide incisive domestic law reform.171 This is especially true in relation to ‘an entirely novel approach for which there is often no precedent elsewhere’.172 Such recommendations are essential in order for the reassurances in the CRPD to ultimately transcend from the aspirational to the tangible.

 

1. GA Res A/RES/61/06, adopted on 13 December 2006, entered into force on 3 May 2008.

2. See eg CRPD Committee General Comment 1: Article 12: Equal recognition before the law (2014) UN Doc CRPD/C/GC/1 dated 19 May 2014 para 7.

3. South Africa ratified the CRPD and its Optional Protocol on 3 April 2008 and 3 May 2008, respectively.

4. See sec 2.3.2 below.

5. See eg L Series ‘Legal capacity and participation in litigation: Recent developments in the European Court of Human Rights’ (2015) 5 European Yearbook of Disability 4; AS Kanter The development of human rights under international law (2015) 265; P Gooding ‘Navigating the “flashing amber lights” of the right to legal capacity in the United Nations Convention on the Rights of Persons with Disabilities: Responding to major concerns’ (2015) 15 Human Rights Law Review 67-70; L Series et al ‘Legal capacity: A global analysis of reform trends’ in P Blanck & E Flynn (eds) Routledge handbook of disability law and human rights (2017) 137. This by no means is an exhaustive list.

6. Exact terminological consonance is not readily achieved across jurisdictions. Eg, in South African law the term ‘defendant’ (used in the US in the context of criminal proceedings) is limited to civil law. ‘Accused’, therefore, is used here to avoid confusion.

7. As indicated by the phrase itself, this defence usually is associated with psychosocial disability. For an explanation of the term ‘psychosocial disability’, see World Network of Users and Survivors of Psychiatry Implementation manual for the United Nations Convention on the Rights of Persons with Disabilities (2008) 9. With regard to the insanity defence generally, see ML Perlin A prescription for dignity: Rethinking criminal justice and mental disability law (2013) 165.

8. E du Toit et al Commentary on the Criminal Procedure Act (2017) ch13 8.

9. P Bartlett ‘The United Nations Convention on the Rights of Persons with Disabilities and mental health law’ (2012) Modern Law Review 775.

10. See discussion in sec 4.2 below.

11. The two concepts may also overlap in instances where the accused lacks both the ability to stand trial and criminal capacity.

12. Art 14 sets out the right to liberty and security of persons with disabilities.

13. Art 14(1)(b).

14. The scope of the article does not permit an in-depth exploration of unfitness to stand trial.

15. CRPD Committee (n 2).

16. Perlin argues that the insanity defence provides insight into perceptions on social, political and behavioural issues that go beyond the question of individual criminal liability. For example, it clarifies views about the relationship between mental health and the law; ML Perlin ‘“The borderline which separated you from me”: The insanity defence, the authoritarian spirit, the fear of faking and the culture of punishment’ (1997) 82 Iowa Law Review 1377-1378.

17. Centre for Disability Law and Policy NUI Galway (CDLP) Submission on legal capacity to the Oireachtas Committee on Justice, Defence and Equality (2011) 5.

18. See Glen for a discussion of the origin of the term ‘paradigm shift’; KB Glen ‘Changing paradigms: Mental capacity, legal capacity, guardianship, and beyond’ (2012) 44 Columbia Human Rights Law Review 96-97.

19. S Trömel ‘A personal perspective on the drafting history of the United Nations Convention on the Rights of Persons with Disabilities’ in G Quinn, L Waddington & E Flynn (eds) European yearbook of disability law (2009) 125.

20. CRPD Committee (n 2) para 8.

21. Trömel (n 19) 126.

22. Eg, the capacity to own property; Council of Europe (COE) Commissioner for Human Rights Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities (2012) CommDH/IssuePaper (2012) 2 7. See also generally A Dhanda ‘Legal capacity in the Disability Rights Convention: Stranglehold of the past or lodestar for the future?’ (2006-2007) 34 Syracuse Journal of International Law & Commerce 439-440 442-444; RD Dinerstein ‘Implementing legal capacity under article 12 of the UN Convention on the Rights of Persons with Disabilities: The difficult road from guardianship to supported decision-making’ (2012) 19 Human Rights Brief 8.

23. CRPD Committee (n 2) para 12.

24. Also known as ‘passive legal capacity’. See C de Bhailís & E Flynn ‘Recognising legal capacity: Commentary and analysis of article 12 CRPD’ (2017) International Journal of Law in Context 10.

25. CRPD Committee (n 2) para 14.

26. As above.

27. Eg, the power to dispose of one’s property and claim one’s rights before a court; COE Commissioner for Human Rights (n 22) 7. This is also known as ‘active legal capacity’.

28. J Peay ‘Mental incapacity and criminal liability: Redrawing the fault lines?’ (2015) International Journal of Law and Psychiatry 12.

29. CRPD Committee (n 2) para 14.

30. A Lawson ‘The United Nations Convention on the Rights of Persons with Disabilities: New era or false dawn?’ (2006-2007) 34 Syracuse Journal of International Law and Commerce 596.

31. During the negotiations, efforts were accordingly made to qualify the meaning of ‘legal capacity’ by means of a footnote to the main text. These attempts ultimately proved unsuccessful. For an overview of this history, see Trömel (n 19) 126-128; Lawson (n 30) 595; Kanter (n 5) 251-258; De Bhailís & Flynn (n 24) 9.

32. See eg the declarations and reservations entered by Australia, Venezuela, Canada, Egypt, Estonia and Poland, https://treaties.un.org/pages/ViewDetails.aspx?src= IND&mtdsg_no=IV-15&chapter=4&clang=_en (accessed 15 September 2017). Kanter provides a detailed discussion (n 5) 259-263).

33. Kanter (n 5) 257.

34. A Dhanda ‘From duality to indivisibility: Mental health care and human rights’ (2016) 32 South African Journal on Human Rights 438.

35. See also T Minkowitz ‘Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond’ (2014) 23 Griffith Law Review 443.

36. CRPD Committee (n 2) para 11.

37. See inter alia arts 1, 2, 7, 9, 10, 13 & 14 of the CRPD.

38. CRPD Committee (n 2) para 14.

39. See H Combrinck ‘Everybody counts: The right to vote of persons with psychosocial disabilities in South Africa’ (2014) African Disability Rights Yearbook 86 (emphasis added).

40. CRPD Committee (n 2) para 16.

41. See CRPD Committee (n 2) para 17 for examples.

42. CRPD Committee (n 2) para 20.

43. CRPD Committee (n 2) para 23.

44. As above.

45. CRPD Committee (n 2) para 3.

46. P Alston ‘The historical origins of the concept of “General Comments” in human rights law’ in LB de Chazournes & VG Debas (eds) The international legal system in quest of equity and universality: Liber Amicorum Georges Abi-Saab (2001) 763 cited in H Steiner et al International human rights in context (2007) 873-876. See also ML Perlin ‘“God said to Abraham/Kill me a son”: Why the insanity defence and the incompetency status are compatible with and required by the Convention on the Rights of Persons with Disabilities and basic principles of therapeutic jurisprudence’ (2017) 54 American Criminal Law Review 479.

47. General Comment 1 indirectly refers to the inter-connection between legal capacity and access to justice (art 13), which entails that in order to enforce their rights and obligations on an equal basis with others, persons with disabilities must be recognised as persons before the law with equal standing in courts and tribunals (para 38).

48. General Comment 1 para 13.

49. De Bhailís & Flynn (n 24) 10 point out that the term ‘mental’ capacity is used to refer to a ‘combination of cognitive ability, impairment and a person’s extent of understanding of the consequences of their actions’. An example of the use of mental capacity as a means to assess and deny legal capacity is found in legislation that establishes a test of mental capacity as the necessary precondition for making certain legally-binding decisions, such as decisions about consent to medical treatment.

50. CRPD Committee (n 2) para 14.

51. As above.

52. CRPD Committee (n 2) para 13.

53. As above.

54. CRPD Committee (n 2) para 15.

55. The status approach assumes that a person lacks legal capacity when she is labelled, eg, as having a psychosocial disability (regardless of the person’s individual capacities). G Quinn Personhood and legal capacity: Perspectives on the paradigm shift of article 12 CRPD (2010) 12; COE Commissioner for Human Rights (n 22) 8.

56. The outcome approach is based on the premise that a person who makes a ‘bad’ or unreasonable decision (eg, a person with a psychosocial disability refusing treatment) should lose the right to continue making decisions. COE Commissioner for Human Rights (n 22); CDLP (n 17) 10.

57. This involves the consideration of legal capacity on an issue-specific basis. Eg, a person might not be able to make decisions of a financial nature but might be considered to have capacity to consent to an intimate relationship; CDLP (n 17). Legislation based on the functional approach typically requires that the person must be able to use, weigh and retain the information necessary to make the decision, to understand the consequences of their decision and to communicate her decision to others. De Bhailís & Flynn (n 24) 11.

58. CRPD Committee (n 2) para 15.

59. Weller explains that tests for mental capacity offend against the prohibition of indirect discrimination because they will have a disproportionate impact on people with cognitive impairment. P Weller ‘Legal capacity and access to justice: The right to participation in the CRPD’ (2016) Laws 5.

60. CRPD Committee (n 2) para 29(i).

61. The principled approach that systems of substitute decision making should yield to supported decision making can be traced back to the CRPD negotiations: See De Bhailís & Flynn (n 24) 8.

62. CRPD Committee (n 2) paras 26 & 28.

63. MC Freeman et al ‘Reversing hard-won victories in the name of human rights: A critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities’ (2015) The Lancet 2 (however, see Dhanda’s response to Freeman et al (n 34). See also D Bilchitz ‘Dignity, fundamental rights and legal capacity: Moving beyond the paradigm set by the General Comment on Article 12 of the Convention on the Rights of Persons with Disabilities’ (2016) 32 South African Journal on Human Rights; J Dawson ‘A realistic approach to assessing mental health laws’ compliance with the UNCRPD’ (2015) 40 International Journal of Law and Psychiatry 70; M Browning, C Bigby & J Douglas ‘Supported decision-making: Understanding how its conceptual link to legal capacity is influencing the development of practice’ (2014) 1 Research and Practice in Intellectual and Developmental Disabilities, cited in De Bhailís and Flynn (n 24) 5, disagreeing that support is a viable option for everyone. They posit that it is not ‘realistic’ for individuals with profound or multiple disabilities to be supported to exercise their legal capacity.

64. G Szmukler, R Daw & F Callard ‘Mental health law and the UN Convention on the Rights of Persons with Disabilities’ (2014) 37 International Journal of Law and Psychiatry 248 250. (The authors, however, do concede that any criteria for involuntary treatment under the CRPD must be non-discriminatory and ‘disability-neutral’.) See also A Plumb ‘UN Convention on the Rights of Persons with Disabilities: Out of the frying pan into the fire? Mental health service users and survivors aligning with the disability movement’ in H Spandler et al (eds) Madness, distress and the politics of disablement (2015) 190.

65. See Preamble to CRPD para (j).

66. C Slobogin ‘Eliminating mental disability as a legal criterion in deprivation of liberty cases: The impact of the Convention on the Rights of Persons with Disabilities on the insanity defence, civil commitment, and competency law’ (2016) 40 Law and Psychology Review 316. Slobogin (301) also disagrees with the CRPD position that even people with very severe impairments should be entitled to make their own decisions.

67. OHCHR Thematic Study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities UN Doc A/HCR/10/48 dated 26 January 2009 para 47.

68. CRPD Committee Guidelines on article 14 of the CRPD: The right to liberty and security of persons with disabilities (2015) (Article 14 Guidelines).

69. Article 14 Guidelines (n 68) para 6.

70. As above.

71. Article 14 Guidelines (n 68) paras 11-12.

72. Article 14 Guidelines para 16.

73. As above.

74. Article 14 Guidelines (n 68) para 20.

75. As above.

76. Article 14 Guidelines (n 68) para 21.

77. As above.

78. An extensive examination of the full body of work of these authors is beyond the scope of this article.

79. Minkowitz (n 35) 434.

80. Minkowitz 445.

81. As above.

82. Minkowitz 455-456.

83. Minkowitz 451.

84. Minkowitz 454.

85. Minkowitz 456.

86. Minkowitz 457.

87. As above.

88. Minkowitz (n 35) 458.

89. As above.

90. Slobogin (n 66) 300. Eg, the tensions between the state’s obligation to protect individuals from serious harm and the apparent prohibition by the CRPD of measures for preventive detention and treatment of persons with psychosocial disabilities who are perceived to be dangerous; Slobogin (n 66) 299-300.

91. Slobogin (n 66) 301.

92. Slobogin 302.

93. As above.

94. As above.

95. Slobogin (n 66) 303.

96. Due to the specific focus of this article - and Slobogin’s own concession that his proposal for protective detention may not be ‘entirely consonant with the CRPD’ (n 66 319) - the third aspect of protection will not be addressed here.

97. Slobogin (n 66) 304.

98. Slobogin 302.

99. This Code was promulgated by the American Law Institute in the 1960s and adopted, at least in part, in several US states.

100. Slobogin (n 66) 305. Alternatively, the accused was required to have been reckless with respect to the harmful conduct.

101. Slobogin (n 66) 306.

102. See also Peay (n 28) 27.

103. Slobogin (n 66) 309.

104. Slobogin 306. He explains that this is in line with the well-accepted principle that causing the conditions of one’s excuse precludes full exculpation (307).

105. Slobogin (n 66) 310.

106. Slobogin 310-311.

107. Slobogin 311.

108. As above.

109. Perlin’s article refers to ‘mental disability’; the context indicates that this denotes psychosocial disability. The latter term is retained here for consistency.

110. Perlin (n 46) 487.

111. Perlin 491.

112. Perlin 494.

113. Perlin 504.

114. Perlin 496.

115. Perlin 499.

116. Perlin 502.

117. As above.

118. Perlin 504.

119. As above.

120. Perlin (n 46) 505.

121. Perlin 518.

122. However, difficulties may arise where the offence is framed in terms of negligence.

123. Minkowitz (n 35) 439.

124. See JC Bekker ‘The law and older persons’ in B Clark Family law service (2017); W Holness ‘Equal recognition and legal capacity for persons with disabilities: Incorporating the principle of proportionality’ (2014) 30 South African Journal on Human Rights 332.

125. Terminology in the original text.

126. Due to its use in the CPA, the term ‘mental illness’ is employed in this section for purposes of clarity. It should, however, be noted that mental illness is not the conceptual equivalent of ‘psychosocial disability’.

127. Culpability, also sometimes referred to as mens rea, means that there must, in the eyes of the law, be grounds for blaming the accused personally for her unlawful conduct; C Snyman Criminal law (2014) 156. South African criminal law recognises two forms of culpability, namely, intention and negligence.

128. See sec 7 of the Child Justice Act 75 of 2008.

129. This provision previously referred to ‘mental defect’; however, in 2017 the term was replaced by ‘intellectual disability’.

130. For purposes of this inquiry, the court may commit the accused to a psychiatric hospital or to any other designated place for a period not exceeding 30 days (sec 79(2)(a)).

131. Sec 79 sets out the composition of the panel that has to conduct the inquiry (which varies based on the seriousness of the offence) and stipulates what must be contained in the report. Where the accused is charged with a more serious offence, the panel must consist of three psychiatrists and the court has the discretion to also appoint a clinical psychologist (sec 79(1)(b)).

132. Sec 78(6).

133. Or intellectual disability, as the case may be (sec 78(6)).

134. As set out in secs 3 & 4 of the Criminal Law (Sexual Offences) Amendment Act 32 of 2007.

135. Sec 78(6)(a)(i)(aa). Alternatively, the court may order temporary detention in a correctional health facility pending the availability of a placement in a psychiatric hospital, if the court is of the opinion that it is necessary to do so on the grounds that the accused poses a serious danger or threat to herself or to members of the public (sec 78(6)(a)(i)(bb)).

136. Act 17 of 2002. The accused therefore becomes a so-called ‘state patient’ in terms of MHCA. Among other implications, this means that she may indefinitely be detained in a designated health establishment and may only be discharged (released) from detention by order of a judge in chambers.

137. An ‘involuntary mental health care user’ in terms of the MHCA is a person incapable of making informed decisions due to her mental health status, who refuses health intervention but requires such services for her own protection or for the protection of others. Sec 37 provides for the periodic review of the mental health status of an involuntary mental health care user, which must include the consideration of whether the mental health care user is likely to inflict serious harm to herself or other people (sec 37(2)(b)).

138. Sec 78(6)(a)(i) of the CPA.

139. Sec 78(6)(a)(ii).

140. Sec 77 deals with the fitness of the accused to stand trial.

141. In terms of sec 22 of the Legal Aid South Africa Act 39 of 2014.

142. Sec 77(1A) of the CPA.

143. Sec 1 of the MHCA. This Act also defines ‘severe and profound intellectual disability’.

144. J le Roux & GP Stevens ‘Pathological criminal incapacity and the conceptual interface between law and medicine’ (2012) 25 South African Journal of Criminal Justice 50.

145. 2007 (1) SACR 482 (SCA) para 16.

146. As above. The Court points out that an inquiry into the mental state of an accused person without such guidance is bound to be ‘directionless and futile’. See also S v Chauke 2016 (1) SACR 408 (SCA) para 17. Kaliski, however pours cold water on this enthusiasm for assistance from psychiatry in assessing criminal capacity, noting, first, the fluidity of psychiatric diagnoses and, second, his misgivings about an ‘appreciation of wrongfulness’ as determinant of criminal responsibility; S Kaliski ‘Does the insanity defence lead to an abuse of human rights?’ (2012) 15 African Journal of Psychiatry 85.

147. Du Toit et al (n 8) C13 40.

148. Sec 9(3) of the Constitution of the Republic of South Africa, 1996 (Constitution) prohibits unfair discrimination based on a number of grounds, including disability. For a discussion of the interpretation of this provision, see generally I Currie & J de Waal The Bill of Rights handbook (2013) 215-227.

149. Sec 39(1)(b) Constitution.

150. 2015 (2) SACR 217 (CC). This matter dealt with the disposition of two accused persons following a finding of ‘unfitness to stand trial’ in terms of sec 77(6). The previous version of this subsection, prior to amendment in 2017, allowed the court a narrower range of options for disposition and specifically excluded the release of the accused (with or without conditions). The difficulty that arose here was that the two accused persons were diagnosed with intellectual disabilities, and the expert opinion was that their (in)ability to stand trial would not ‘improve’ upon detention in a prison or psychiatric hospital. The Constitutional Court ultimately held that the provisions limiting the court’s options were inconsistent with art 12 of the Constitution (the right to liberty and security of the person) as read with art 14 of the CRPD. This resulted in the subsequent amendment of the CPA by the Criminal Procedure Amendment Act 4 of 2017.

151. Paras 29-30, 58.

152. See sec 2.3.1 above.

153. The test for negligence, on the other hand, is objective: The conduct of the accused is measured by the standard of what a reasonable person in the accused’s position would have done under the same circumstances. Negligence usually is regarded as the less serious or blameworthy form of culpability.

154. See S v De Oliveira [1993] 2 All SA 415 (A) 419. The court may however consider the reasonableness of the accused’s conduct in determining whether she did indeed have an honest belief that she was being attacked.

155. As above.

156. Kaliski (n 146) 83.

157. Kaliski 85.

158. The term ‘public interest’ is not defined in the CPA; however, it is conceivable that the potential ‘dangerousness’ of the accused would play a role here.

159 It was held in Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) para 57 that the state’s duty under sec 7(2) of the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights includes the right of the public to have its safety and

159. security protected. The court in the De Vos judgment took specific note of this aspect (para 35). At the same time, however, it may be said that persons with disabilities should not bear ‘the burden of society’s demand for preventive detention’; Minkowitz (n 35) 456.

160. See in this regard Minkowitz (n 35) 446-447.

161. In S v Matu 2012 (1) SACR 68 (ECB) para 28 the court noted that where the accused is charged with an offence involving serious violence, and is hence potentially subject to the more restrictive disposition orders required under sec 77(6)(a)(i), ‘legal assistance is not only desirable but necessary’. Although the judgment related to unfitness to stand trial, it is argued here that it similarly applies in cases of criminal incapacity based on mental illness.

162. A curator ad litem is traditionally appointed by the court to supplement a person’s ‘lack of capacity to litigate’; South African Law Reform Commission (SALRC) Discussion Paper 105: Assisted decision-making of adults with impaired decision-making capacity (2004) 51. For a more detailed discussion of the functions of a curator ad litem, see SALRC (above) 102-103.

163. Peay (n 28) 33.

164. Minkowitz (n 35) 435.

165. South Africa Initial Report to the Committee on the Rights of Persons with Disabilities (2015) UN Doc CRPD/C/ZAF/1 dated 24 November 2015 para 125. This commitment has been further concretised in the White Paper on the Rights of Persons with Disabilities (2015) 64.

166. As required in terms of art 4(3) of the CRPD.

167. See M Sabatello ‘Where have the rights of forensic patients gone?’ (2015) American Society of International Law Proceedings 78, pointing out the invisibility of ‘forensic patients’ during the drafting process and subsequent to the adoption of the CRPD.

168. See also Kaliski (n 146) 87.

169. CJ Petersen ‘Addressing violations of human rights in forensic psychiatric institutions: Philosophical and strategic debates’ (2015) American Society of International Law Proceedings 82-83.

170. South African courts may also find certain of the more drastic proposals somewhat startling, such as Minkowitz’s suggestion that expert opinions by mental health professionals based on assessment and diagnosis should be disallowed (n 35) 458, especially in light of the strong judicial reliance in South Africa on such expert evidence in the determination of criminal capacity. This of course raises questions around the hegemony of so-called ‘scientific’ and ‘medical knowledge’, which cannot be resolved here.

171. O Lewis & A Campbell ‘Violence and abuse against people with disabilities: A comparison of the approaches of the European Court of Human Rights and the United Nations Committee on the Rights of Persons with Disabilities’ (2017) International Journal of Law and Psychiatry 57.

172. Sabatello (n 167) 56.


  • Felicity Kayumba Kalunga
  • Special Research Fellow at University of Zambia
  • Doctoral student, Cardiff University; LLM (Cape Town); LLB (Zambia)
  • Chipo Mushota Nkhata
  • Special Research Fellow at University of Zambia
  • Doctoral Candidate, University of Cape Town; LLM (Cape Town); LLB (Zambia)

  • FK Kalunga & CM Nkhata ‘Protection of the rights of persons with mental disabilities to liberty and informed consent to treatment: A critique of Gordon Maddox Mwewa & Others v Attorney-General & Another’ (2018) 6 African Disability Rights Yearbook 60-81
    http://doi.org/10.29053/2413-7138/2018/v6a3
  • Download article in PDF

Summary

This article appraises the judgment of the High Court of Zambia in the case of Gordon Maddox Mwewa & Others v Attorney-General & Another. The discussion of the judgment concerns the Court’s interpretation of the right of persons with disabilities to protection from involuntary detention and to informed consent to treatment. The judgment is analysed against international human rights standards on the rights of persons with disabilities to human dignity, informed consent to treatment, liberty and security of the person contained in the Convention on the Rights of Persons with Disabilities and international and comparative human rights jurisprudence on these rights. The authors argue that the Zambian High Court failed to properly apply constitutional principles on limitation of rights when it declined to declare unconstitutional Zambia’s Mental Disorders Act, which allows involuntary detention and forced treatment of persons with mental disabilities.

1 Introduction

This article appraises the judgment of the High Court of Zambia in the case of Gordon Maddox Mwewa & Others v Attorney-General & Another (Mwewa case)1 delivered by the High Court of Zambia on 9 October 2017. The article appraises the judgment against international standards on the rights of persons with mental disabilities to protection from involuntary detention and medical treatment. The international standards on the rights of persons with disabilities are set out mainly in the Convention on the Rights of Persons with Disabilities (CRPD). The article also uses international human rights and comparative jurisprudence and commentary on treaties concerning the right to liberty and protection from torture and inhuman or degrading treatment. The scope of the article has been motivated by the Court’s application of interpretive principles on the limitation of rights to discern the content of the rights in a Zambian context.

The CRPD is the most comprehensive and authoritative human rights instrument that explicitly guarantees the rights of all persons with disabilities. Zambia has ratified the CRPD and, to a large extent, domesticated it using the Persons with Disabilities Act 2 of 2012. Zambia follows a dualist approach to international law. Ratified international instruments are not directly applicable to Zambia until they have been given effect through domestication by legislation or any other enforceable means.2 Zambian courts, however, have used international law instruments that are not domesticated as persuasive authority.3 The High Court in Sara Longwe v Intercontinental Hotel4 extended the applicability of international law to Zambia by stating that the ratification of international and human rights instruments by the state without any reservation was clear testimony of the state’s willingness to be bound by the provisions of the ratified instruments. On this basis, if an issue that is not covered by local legislation comes before a court, the court in its resolution of the dispute would ‘take judicial notice of the treaty or convention’.

Zambia amended its Constitution in 2016 by enacting the Constitution of Zambia (Amendment) Act 2 of 2016. The amendment of the Constitution saw the repeal and replacement of most parts of the Constitution apart from Part III which contains the Bill of Rights. Article 128 of the amended Constitution also entrusted the Constitutional Court with original and final jurisdiction to hear matters relating to the violation of the Constitution, subject to article 28 which gives exclusive jurisdiction to the High Court in relation to matters arising out of the Bill of Rights. Two other important provisions that were introduced in the amendment that are important for this article are the inclusion of disability in the definition of discrimination in article 266 and the inclusion of section 8 which lists national values and principles to include human dignity, equality and non-discrimination. Article 9 of the Constitution states that the national values and principles shall apply in the interpretation of the Constitution and the law. Article 1 of the Constitution provides that the Constitution is the supreme law of the land and that any other law that is inconsistent with the provisions of the Constitution is void to the extent of the inconsistency.

The CRPD, the Constitution of Zambia and the Persons with Disabilities Act of Zambia Act 6 of 2012 when read together provide for the right to dignity and freedom from cruel, inhuman and degrading treatment, the right to personal liberty, equal protection of the law and freedom from discrimination, all of which are violated when a person with a psychosocial or other mental condition is forcibly detained or treated without informed consent. Such treatment is commonplace in countries where guardianship laws still apply to persons with mental disabilities.

The seemingly conducive legal framework applicable to persons with disabilities in Zambia is tainted by the continued existence and use of the Mental Disorders Act. This Act is a typical example of guardianship laws that were enacted to create an exclusive and oppressive system of treatment and detention of persons with mental disabilities. The Act created and sustained a system whereby the dignity and worth of persons with mental disabilities were negated, rendering them non-existent and, as such, deemed to be incapable of meaningfully participating in determining their health outcomes. The ethos of the Mental Disorders Act therefore is contrary to that of the Persons with Disabilities Act, the amended Constitution of Zambia 2016 and the CRPD. It is on this basis, amongst others, that the continued existence of the Mental Disorders Act, Chapter 305 of the Laws of Zambia was challenged in the Mwewa case.

The article begins by giving an overview of the Mwewa case followed by a brief discussion of legal provisions on mental health in Zambia. It thereafter examines jurisprudence on the constitutional limitation of human rights. It proceeds to set out the normative content of the rights to legal capacity, and protection from torture, cruel, inhuman or degrading treatment and right to liberty of persons with disabilities. This is followed by an appraisal of the High Court judgment in the Mwewa case against the international standards and principles of constitutional limitation. It concludes that the Court misconstrued the principles of limitation of rights when it failed to declare Zambia’s Mental Disorders Act unconstitutional on grounds of infringement of the petitioners’ rights to legal capacity, protection from torture, cruel, inhuman and degrading treatment and the right to liberty.

2 Gordon Maddox Mwewa & Others v Attorney-General & Others

The petitioners in this case approached the High Court pursuant to article 28 of the Constitution alleging the violation of various of their rights protected by the Constitution. They alleged that Zambia’s Mental Disorders Act5 was unconstitutional and interfered with the implementation of the Persons with Disabilities Act.6 The petitioners prayed for an order to declare the Mental Disorders Act unconstitutional. They also prayed for declaratory relief to protect persons with mental disabilities from unlawful detention and violations of their rights, including the right to informed consent to medical treatment and admission to medical facilities. Notwithstanding the provisions of article 128 of the Constitution of Zambia, which authorises the Constitutional Court to determine matters related to violations or contraventions of the Constitution, the matter was commenced in the High Court as it retains the authority to determine challenges relating to violation of human rights. There was no challenge to the jurisdiction of the High Court to determine the matter, although the Court confirmed that it had jurisdiction to rule on the ‘validity of constitutional references under article 28 of the Constitution’.7

The petitioners presented evidence by affidavit testifying of personal experiences of involuntary admission and treatment in medical facilities without being offered the protection of the law. They also testified to poor living conditions in medical facilities, inadequate food and clothing and instances of physical violence by hospital attendants and fellow patients. In addition to testimony of personal experience, the third petitioner, in his representative capacity as executive director of the Mental Health Users Network of Zambia, also submitted in evidence reports of research which the organisation had conducted showing the poor living conditions and treatment of persons with mental disabilities generally.

The Attorney-General did not file any answer in opposition to the petition nor did he submit any evidence on behalf of the government of the Republic of Zambia, but was permitted to file written arguments in court. The second respondent, the Zambia Agency for Persons with Disabilities (ZAPD), did not oppose the substantive allegations of the petition although it objected to the petitioners’ prayer that the Court should order ZAPD to monitor the enforcement of the judgment of the Court, a part of the case which is not relevant to this article. In the absence of an answer or evidence in opposition, the matter was determined on written evidence and submissions by counsel without trial.

2.1 Issues raised and arguments before the court

The Petitioners alleged that the Mental Disorders Act unjustifiably violated their constitutional rights, including the right to dignity under article 8; the right to liberty under article 13; protection from torture and inhuman or degrading treatment under article 15; and freedom from discrimination under articles 23 and 255 read together respectively.

On the protection of the right to dignity, the petitioners argued that the Mental Disorders Act violated their right to dignity in its use of derogatory terms to describe mental disability. They argued that section 5 of the Mental Disorders Act, which refers to persons with mental disabilities as ‘mentally disordered or defective persons’ and classifies mental disabilities using derogatory terms, in particular, ‘idiot’, ‘imbecile’, ‘feeble-minded’ and ‘moral imbecile’, violated their right to dignity. They argued that the right to dignity of persons with disabilities is recognised by section 4(a) of the Persons with Disabilities Act which mirrors the provisions of article 3 of the CRPD.8 Counsel also relied on article 23 of the Constitution of Zambia which provides for the right to protection against discrimination. On this basis they prayed for an order to declare unconstitutional section 5 of the Mental Disorders Act which refers to persons with disabilities in dehumanising terms.9 The petitioners also argued that section 5 of the Mental Disorders Act was unconstitutional. The Attorney-General conceded on the point that the Mental Disorders Act was enacted in 1949 when such derogatory language might have been acceptable.10

The High Court found section 5 of the Act which classifies mental illness in derogatory terms unconstitutional. The judge stated that the words in their ordinary meaning were ‘offensive, derogatory and discriminatory’. However, the Court declined to declare the entire Mental Disorders Act unconstitutional. On the use of article 8 to establish the right to human dignity, the Court stated that

national values and principles ... cannot be taken as a forceful embodiment in measuring the compliance of the Mental Disorders Act to the Constitution because as aspirations, they do not attach any immediate obligation on the government to implement them.

On the right to liberty, the petitioners argued that the Mental Disorders Act violated their right to liberty which is guaranteed by article 13 of the Zambian Constitution. The right to liberty in article 13 of the Constitution is not absolute and is subject to limitations. The relevant part of article 13 provides:

(1) No person shall be deprived of his personal liberty except as may be authorised by law in any of the following cases:

...

(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of this care or treatment or the protection of the community.

The petitioners argued that the legal regime established under the Mental Disorders Act did not fall within the lawful limitation of the right to liberty of the person under article 13(1)(h) as it is manifestly unjust, contrary to other provisions of the Constitution and in any event impliedly repealed by the Persons with Disabilities Act.11 On the implied repeal by the Persons with Disabilities Act, counsel for the petitioners relied on the provisions of section 3 of the Persons with Disabilities Act which provides:

Subject to the Constitution, where there is any inconsistency between the provisions of any other written law impacting on the rights of persons with disabilities as provided under this Act or any other matter specified or prescribed under this Act with respect to persons with disabilities, the provisions of this Act shall prevail to the extent of the inconsistency.

The petitioners took issue with section 6 of the Mental Disorders Act which provides for the detention of a person in an institution or other place subject to a warrant or order of the Minister, a judge or magistrate. Further, section 8 of the Act empowers any officer to apprehend a person presumed to be ‘mentally disordered’ or ‘defective’ without a warrant and to convey them to a hospital, prison or other place for observation. Section 9 provides for reauthorisation by a magistrate to detain a person apprehended pursuant to section 8. Section 10 does not require the affected person to be present at an inquiry or to make representations, even if the magistrate is empowered to interrogate such person. According to section 11 a magistrate is obliged and empowered to make an adjudication order for the detention of a person who the magistrate believes to be ‘mentally disordered or defective’ in addition to various other factors. These factors include if the person is ‘not under proper, care, treatment or control’; if the person has ‘acted in a manner offensive to public decency’; or if ‘any person having care, treatment or control of the person consents’. In terms of section 13 of the Act persons subject to adjudication orders are subjected to ‘control orders’ for their ‘control, care or detention’. The person subject to adjudication and control orders is not required to be present or granted the right to make representations. There is neither a provision for the mandatory regular review of control orders nor any explicit procedure to initiate a review of the control order by a person subject to the order, except for the limited right of appeal to the High Court in terms of section 30.

The Attorney-General argued that there was no violation of rights instanced by the Mental Disorders Act as it covered a specific disability, namely, mental disability, which should be distinguished from the general provisions of the Persons with Disabilities Act. The Attorney-General also argued that it was a well-established principle of interpretation of law that a general law yields to a specific law where the law operates in the same field on the same subject.12 Therefore, the Persons with Disabilities Act did not repeal the Mental Disorders Act. The Attorney-General also defended the provisions of sections 6 to 12 of the Mental Disorders Act as containing sufficient procedural safeguards, including the requirement of a warrant of arrest and the institution of an inquiry, to determine the mental condition of a person.13

The Court held that it had a duty to test the reasonableness of a constitutional limitation ‘by exposing it to principles of fairness’.14 After making this statement, the Court proceeded to state that sections 6, 8, 9, 30 and 31 of the Mental Disorders Act were regulatory in that they provide for the procedure of detention of persons with mental disabilities. The Court further noted that in certain circumstances the admission ‘can be quite involuntary as affected persons are detained either at the behest of family members, members of the public or law enforcement agencies’.15 The judge agreed that there could be an infringement of the rights of affected persons. She then applied what she called ‘the principle of proportionality’ in which she considered the need to strike a balance between the need for the detention of a person with a mental disability and the protection of the rights of the affected person. She then proceeded to find that this was a medical question which she did not have the expertise to resolve.16 The Court nonetheless held that the aforementioned provisions of the Mental Disorders Act do not violate the right to liberty of persons with mental disabilities, but rather provide a ‘platform under which issues of control, review, admission and detention can be addressed by a thorough review of the Mental Disorders Act’.17

Regarding the right to informed consent to treatment, the petitioners based their arguments on the right to dignity and liberty, the prohibition of torture and inhuman or degrading treatment and protection from discrimination. They also relied on the denial of informed consent as established in their various affidavits in support of the petition, which showed that the informed consent of persons with mental disabilities was not always sought. The Court held that the issue was more complex than it appeared and, as such, she could not declare the Mental Disorders Act unconstitutional based only on the evidence of the petitioners. The verbatim words of the Court are reproduced in the critique section below.

On the whole, the Court declined to declare the Mental Disorders Act unconstitutional on grounds that it violates the petitioners’ rights to freedom from torture and inhuman or degrading treatment, the right to liberty, and the rights to dignity, legal capacity and informed consent to treatment. The dicta of the Court are analysed in later sections of the article. Before this analysis it is important to understand the principles of constitutional interpretation as established by Zambian case law and interpretation of statutes in Zambia.

3 Constitutional interpretation in Zambia

Zambia’s legal system is based on the English common law system. This is part of the colonial legacy of Zambia. It has a written Constitution which is supreme to other written law, customary law and practice.18 According to article 1(1) of the Constitution ‘any written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency’.

In Patel v Attorney-General19 the High Court dealt with the issue of determining who bears the burden of proving whether a law or action taken under the authority of a law violates the Constitution. The Court held that once a petitioner proves that the law or action complained of violates their constitutional rights, the burden of proof shifts to the state to prove that the law or action complained of is ‘necessary or expedient’ or ‘reasonably required’ under the Constitution. The Court in this case was asked to make a determination on the scope of rights under sections 18, 19 and 22 of the then Zambian Constitution. Section 18 provided for protection against the compulsory acquisition of one’s property; section 19 guaranteed protection against unlawful search; and section 22 guaranteed the right to freedom of expression. The applicant (Patel) alleged an infringement of his rights in sections 19 and 22 of the Constitution when a customs officer, purporting to exercise powers under the Exchange Control Regulations of 1966, opened his mail and sought to prosecute him for ‘preparing to make a payment outside Zambia’ contrary to the said regulations. The applicant’s rights under section 18 of the Constitution could be limited pursuant to a law that is shown to be ‘reasonably justifiable in a democratic state’. Sections 19 and 22 of the Constitution could be limited by a law which makes provision ‘that is reasonably required in the interests of defence, public safety, public order, public morality or public health’, among others.20

The Court held that the test of proving whether or not an Act was ‘reasonably required’ was an objective one and the burden of proof rests with the state. The Court stated that the facts upon which a law may be ‘necessary or expedient’ or ‘reasonably required’ ‘are peculiarly within the knowledge of the government and this is a further reason why I think that the onus of proving their existence should be placed on the state’.21 After having pronounced itself on the burden of proof, the Court stated:22

Having said this, I should observe that, notwithstanding the learned Attorney-General’s submission concerning the burden of proof, he has filed evidence of the facts upon which he relies and he has addressed argument to me in support thereof, so I do not think he will find himself at any disadvantage by reason of my decision on this point.

This case demonstrates the importance of submitting evidence in support of a law that the state seeks to support as falling within the limitations to rights contained in the Constitution.

In The People v Bright Mwape and Fred M’membe23 the applicants were charged with defamation of the President pursuant to section 69 of the Penal Code, Chapter 87 of the Laws of Zambia. Section 69 of the Penal Code provides:

Any person who, with intent to bring the President into hatred, ridicule or contempt, publishes any defamatory or insulting matter, whether by writing, print, word of mouth or in any other manner, is guilty of an offence and is liable on conviction to imprisonment for a period not exceeding three years.

The applicants challenged section 69 of the Penal Code as being unconstitutional as it conflicted with article 20 of the Constitution of Zambia which guarantees the applicants’ freedom of expression. The right to freedom of expression in article 20 is limited by article 20(3) which permits acts done under a law that is ‘reasonably required in the interests of defence, public safety, public order, public morality or public health’. It also requires such limitation to be shown to be ‘reasonably justifiable in a democratic society’.

In determining the issue of burden of proof, the High Court upheld the principle in Patel,24 where it was established that the person who alleges that his or her rights have been violated by legislation has the obligation to prove that his or her rights have been infringed and that the infringing law does not fall within the limitations permitted by the Constitution. The state has the burden of proving that the law purporting to limit the constitutional rights is reasonably required and justifiable in a democratic society. The Court also stated that the required standard of proof in matters alleging constitutional invalidity is proof on a balance of probabilities. The Court declined to follow the Attorney-General’s argument of presumption of constitutionality which would have the effect of shifting the burden of justifying a limitation of rights to the applicant. This case was decided without any facts of evidence being placed on the court record by the applicant. The Court stated that notwithstanding the lack of facts or evidence, the matter was properly before the court as the challenge was brought as a referral from the lower court pursuant to article 28 of the Constitution. The Court stated that it proceeded to determine the case in the absence of factual evidence because article 28 of the Constitution did not prescribe the method by which cases should be referred to the High Court from the lower court, although there was sufficient authority on how issues should be framed.25 Based on the written submissions of the parties, which the court extensively referenced in the judgment, it was held that the applicants had failed to satisfy the Court on a balance of probabilities that section 69 of the Penal Code was not reasonably justifiable in a democratic state.26

The case of The People v Bright Mwape and Fred M’membe emphasises the required standard of proof in a constitutional limitation of rights, namely, proof on a balance of probabilities. It also affirms the finding in Patel that the state bears the burden of proving on a balance of probabilities that the law purporting to limit the rights of an applicant falls within the limitations permitted by the Constitution. The case also establishes that the standard of proof in a constitutional limitation challenge can be discharged without evidence of facts. The case was brought before the High Court by way of a constitutional challenge under article 28 of the Constitution. There is no definitive authority on whether the standard if proof would be satisfied on written submission in a matter that is commenced by way of petition under article 28 of the Constitution, as was the case in Mwewa.

In Christine Mulundika & 7 Others v The Attorney-General27 the petitioners challenged the constitutionality of the Public Order Act, Chapter 104 of the Laws of Zambia. In particular, the petitioner challenged section 5(4) of the Act which requires any person who wishes to hold a peaceful assembly to obtain a permit from the police. The failure to obtain a permit when holding a peaceful assembly was criminalised by section 7 of the Public Order Act. The petitioners challenged the provisions requiring a permit and the criminalisation of its failure as being a contravention of their rights to freedom of expression and to assembly and association, guaranteed by articles 20 and 21 of the Constitution of Zambia respectively. Article 21(2) of the Zambian Constitution limits freedom of assembly and association as follows:

Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that it is shown that the law in question makes provision

(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health

...

and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.

In construing the provisions of the Public Order Act, the Supreme Court held that the provisions of the Act were not reasonably justifiable in a democratic society. This is because the requirement of seeking prior permission to hold a peaceful assembly was an obvious hindrance to the fundamental freedoms of association, assembly and expression protected by the Constitution. The Court also held that rights have to be regulated and not denied. Since the regulating officer had authority to issue the permit, the Act gave the regulating authority the power to deny the enjoyment of rights, which was unjustifiable in a democratic society. In the second place the Supreme Court found the provisions of the Public Order Act, which required a permit to hold peaceful assemblies, unconstitutional in as far as they did not provide effective control over the exercise of power to grant or refuse a permit. The Supreme Court stated that ‘fundamental constitutional rights should not be denied to a citizen by any law which permits arbitrariness and is couched in wide and broad terms’.28

The Supreme Court in this case set the standard that a law limiting fundamental rights in a democratic society should meet. This standard goes beyond the evidential burden to include a broader test of lawfulness and constitutionality. This is another case that was decided based on written submissions. The Court held the provisions to be arbitrary in that it gave the power to determine what is ‘reasonably necessary’ to the police officer dealing with the application. The fact that the Act gave a wide discretion to the police officer determining the application was held to be arbitrary and, as such, unconstitutional. Therefore, a law that gives wide a discretion to an administrator to the extent of denying rights as opposed to regulating rights cannot be said to be reasonably justifiable in a democratic state. These determinations were made after recognising the normative content of the freedom of expression against which the provisions of the Public Order Act were analysed.

From the above discourse, courts have established that in an application alleging an infringement of rights guaranteed by the Constitution, an applicant bears the burden of proving that the act complained of is discriminatory and does not fall within the limitations provided by the Constitution. The state bears the burden of proving that any legislation purporting to limit rights falls within the limitation provided by the Constitution and is not arbitrary so as to deny a right as opposed to regulating it. This burden of proof in both instances is satisfied on a balance of probabilities. Courts have been able to make these determinations based on evidence presented by the parties and, in some instances, on written submissions. There does not appear to be a clear precedent on whether the standard of proof is discharged on written submission in a matter that is commenced by petition under article 28 as all the cases discussed above, in which the court relied on written arguments, were referred to the High Court from the lower courts.

4 Construction of statutes in Zambia

The interpretation of legislation is regulated by the Interpretation and General Provisions Act.29 Section 2 of this Act states that its provisions apply to all written law unless a contrary intention appears in the Interpretation and General Provisions Act or the written law concerned. Section 16 of the Interpretation and General Provisions Act provides that ‘[w]here one written law amends another written law, the amending law shall so far as it is consistent with the tenor thereof, be construed as one with the amended written law’.

This means that a later statute which amends an earlier statute would be construed as one with the amended statute provided the construction of such statute as one is not inconsistent with the tenor of the amended statute. Further, being a common law legal system, courts are also guided by the rules of construction of statutes as developed by the English common law when interpreting statutes.

5 Normative content of the right to human dignity, liberty and security of the person and the right to health as they relate to persons with disabilities

Persons with disabilities do not enjoy rights over and above those that apply to persons without disabilities. However, in recognising the special vulnerabilities of persons with disabilities as well as the historical and systemic discrimination that persons with disabilities have suffered, the CRPD seeks to secure the full and equal enjoyment of all human rights and fundamental freedoms for all persons with disabilities.30 Zambia ratified the CRPD in February 2010 and has partially domesticated it through the enactment of the Persons with Disabilities Act of 2012.

This section explains the normative content of the right to human dignity, the right to liberty and security of the person and the right to protection against torture and inhuman or degrading treatment as they are applied to persons with mental disabilities. The interpretation of rights has been drawn from communications before the Human Rights Committee, the African Commission on Human and Peoples’ Rights (African Commission) and selected reports of UN Special Rapporteurs with mandates on the specific rights, which are used as persuasive authority by Zambian courts.

5.1 Human dignity

The CRPD couches the right to human dignity as ‘dignity and respect of bodily integrity and autonomy’ of persons with disabilities. Persons with mental disabilities are entitled to human dignity and respect when seeking or being offered medical treatment, in the same fashion as is accorded to persons without disabilities.31 In Purohit & Another v The Gambia32 the African Commission held:

Human dignity is an inherent basic right to which all human beings, regardless of their mental capabilities or disabilities as the case may be, are entitled without discrimination. It is therefore an inherent right which every human being is obliged to respect by all means possible and on the other hand it confers a duty on every human being to respect the right.

Any inhumane and degrading treatment that a person with disabilities may be subjected to as they receive health care services violates not only their right to dignity but also their right to health. Persons with disabilities, and in particular persons with mental disabilities, are entitled to make informed decisions on whether they should be admitted to a health institution and whether they accept the medical treatment being offered. Persons with mental disabilities in Zambia often suffer the ignominy of preventing them from making even the most basic decisions concerning their lives, often with serious implications for the enjoyment of their health rights. The violation of the right to health occurs when health professionals refuse to recognise the inherent right of persons with mental disabilities to make decisions concerning their health. Such treatment by health professionals, which denies them legal capacity and consequently violates the health rights of persons with mental disabilities, amounts to inhumane and degrading treatment of persons with mental disabilities.

5.2 Right to health and the denial of informed consent to medical treatment

The CRPD is instructive on the health rights of persons with disabilities, including persons with mental disabilities. Article 25 of the CRPD states:

States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation.

Article 25 of the CRPD guarantees the right to the highest attainable standard of health in similar terms as the Universal Declaration of Human Rights (Universal Declaration) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). However, article 25 of the CRPD goes further to specify what the right entails in the case of persons with disabilities. The right to health, which is of particular relevance to this article, entails that persons with mental disabilities are entitled to the highest attainable standard of health free from discrimination on the basis of their disability. The right to health of persons with mental disabilities thus also imposes an obligation to provide the same quality of care by health professionals. Such quality of care entitles persons with mental disabilities to make informed choices about their treatment, including admission to hospitals for such treatment.

The right to health is further enhanced by article 19 and the right to live in the community with support, in particular the right to community support services and access to community services (including medical services) on a basis of equality with others. This means that persons with disabilities have a right to disability support and to access health care at primary and all other care levels in the same way as everyone else. Access to health care at every level works as a preventive resource to curb crises so that people are treated before their condition reaches a critical stage. This would prevent many mental health users from needing hospitalisation and reduce the rates of chronic and acute mental health issues in society.

Article 12 of the CRPD recognises the right to equality before the law of all persons with disabilities. This includes the right to legal capacity, which is the recognition of the right by a person with disabilities to make decisions concerning their own lives. The United Nations (UN) Committee on the Rights of Persons with Disabilities has stated that the denial of legal capacity to persons with disabilities and their detention in health facilities without their informed consent constitute a violation of their rights, including the right to liberty protected in articles 12 and 14 of the CRPD. 33

5.3 Right to liberty and security of the person

Article 14 of the CRPD proscribes the unlawful or arbitrary deprivation of liberty of persons with disabilities. It further states that ‘the existence of a disability shall in no case justify a deprivation of liberty’.34 Article 15 further stipulates that any deprivation of liberty of persons with disabilities is to be done in conformity with the law and that the existence of a disability should not under any circumstances justify a deprivation of liberty. The article demands a limitation of the right to liberty to be done in accordance with the law. Further, disability should not be a reason for depriving a person of their liberty. A law that is discriminatory in its application therefore would not be reasonably justifiable in far as it is applied on the ground of disability.

The fundamental rights to liberty and security of the person are important in relation to respect for a person’s dignity as well as their health. The Human Rights Committee emphasised not only what these rights entail but also to whom they apply, namely, ‘everyone’ (every human being). The UN Committee on the Rights of Persons with Disabilities further prepared Guidelines on Article 14 of the CRPD.35 The Guidelines describe the rights to liberty and security of the person as ‘the most precious rights to which everyone is entitled’. It further states:36

In particular, all persons with disabilities, and especially persons with mental disabilities or psychosocial disabilities, are entitled to liberty pursuant to article 14 of the Convention ... article 14 of the Convention is in essence a non-discrimination provision. It specifies the scope of the right to liberty and security of person in relation to persons with disabilities, prohibiting all discrimination based on disability in its exercise.

The right to health cannot be fully enjoyed if a person is coerced into receiving treatment. Thus, forced detention and forced treatment violate the fundamental rights to liberty and security.

6 Critique of the Court’s judgment

This section critically analyses the judgment of the High Court of Zambia in the Mwewa case against the normative content of the rights to human dignity, health and informed consent to treatment and liberty of the person. It also critically analyses the Court’s interpretation of the relationship between the Mental Disorders Act of 1949 and the Persons with Disabilities Act of 2012 in respect of the rights of persons with mental disabilities, in response to the argument that the Mental Disorders Act had been tacitly repealed by the Persons with Disabilities Act.

6.1 Human dignity

In the Mwewa case the petitioners alleged that the Mental Disorders Act violated their right to human dignity. The claim of a right to dignity was founded on article 8 of the Zambian Constitution which falls outside the Bill of Rights. Article 8 of the Constitution contains national values and principles. Article 8(d) states in that ‘national values and principles are ... human dignity, equity, social justice, equality and non-discrimination’. The petitioners argued that the denial of legal capacity and informed consent to treatment violated their right to legal capacity which is recognised by article 8 of the Constitution.

In addressing this claim the High Court stated that while it is granted that constitutional values and principles influence the aspirations of society in the interpretation and application of the law, they cannot be taken as a forceful embodiment for measuring compliance with the Mental Disorders Act. This is so because as aspirations they do not attach any immediate obligation on the government to implement them.

The Court did not go further to apply its mind to the provisions of article 9 of the Constitution which states that the national values and principles shall apply to the interpretation of the Constitution and the law. Further, article 118 of the Constitution lists the principles by which courts should be guided. Article 118(f) states that ‘the values and principles of this Constitution shall be protected and promoted’. Courts therefore have a positive obligation to promote and protect the values of the Constitution in interpreting the provisions of the Constitution and other laws. The Court thus failed to apply its mind to the principle of human dignity in construing the individual rights the petitioners alleged to have been violated pursuant to the Mental Disorders Act and raised in the petition as mandated by article 9 of the Constitution.

6.2 Right to health and denial of informed consent to medical treatment

The petitioners in the Mwewa case argued that the practice of subjecting them to treatment without their informed consent denied them their right to legal capacity in matters concerning their health, thereby violating the right to health of persons with mental disabilities. With regard to the assertion that the Mental Disorders Act violates the right to informed consent to medical treatment for persons with mental disabilities, the Court stated: 37

I find that the issue raised in this claim is novel. It seeks to allow persons suffering from mental disabilities the right to informed consent to medical treatment. I take judicial notice that [there] are different types of mental disabilities and some might be more severe than others. It is not in every case that an affected person might be able to appreciate the severity of their illness so as to voluntarily give consent to medical treatment. However, in cases where patients have minor conditions, such persons should be allowed to consent to medical treatment. By saying so, I do not hold that the Mental Disorders Act is unconstitutional because it removes the right to informed consent to medical treatment. I can only hold to the contrary if there was medical evidence adduced to assist me in making an informed finding. In my view, this issue is more complex than it appears and I cannot on the basis of the petition as the only evidence make a finding. This claim accordingly fails.

By framing the issue of a denial of rights as a medical question, the Court in this case seems to give an arbitrary discretion to medical practitioners to determine the circumstances upon which medical treatment may be given without consent which, as argued by the petitioners, resulted in an infringement of their rights. By leaving this determination solely in the hands of medical practitioners without any objective or lawful guidelines, the Court failed to apply the test of constitutionality established in Mulundika,38 where it was held that to pass the constitutional limitation test, a law has be lawful in that it should not be arbitrary or give a wide discretion to the administrator so as to deny the right as opposed to merely regulating it.

The Court by its finding further refused to recognise that persons with mental disabilities are entitled to enjoy the right to informed consent. This finding could have been made, even in the absence of medical or any other evidence, on the basis purely of sections 4, 6, 8 and 27 of the Persons with Disabilities Act as well as the provisions of the CRPD. The Court failed to apply the standard established in the aforementioned precedent on the standard of proof for constitutional challenges. In the absence of evidence and convincing arguments by the Attorney-General on this issue, an obvious legal question was couched as a medical question without stating why the petitioners’ evidence was insufficient for the Court to make a ruling. The Court’s reference to the severity of the condition of the person with a disability denotes an acceptance of the ethos of the Mental Disorders Act which believes that certain categories of persons with disabilities are unable to make informed decisions concerning their health or other aspects of their lives. Even persons with severe mental conditions are not constantly in a state of crisis and should be able to give informed consent to medical treatment. However, one may also argue that by the Court’s reference to the severity of a mental condition, it rather meant that a person who is not in a state of mental crisis is capable of giving informed consent. This would rightly mean that even a person with a severe mental condition can give informed consent when not in crisis. The CRPD recognises that such a person’s consent to treatment should be sought by medical practitioners in the same way they seek consent from persons without disabilities. Reasonable accommodation, however, would have to be made to facilitate medical treatment for persons with mental disabilities who give advance orders or instructions regarding their treatment options. What is interesting is the way in which, in one part of the judgment, the Court states that if a person with a mental disability is able to give consent to treatment, the authorities are bound to give effect to their wishes. However, in another part of the judgment the Court finds the issue of informed consent by persons with mental disabilities to be a novel issue about which she is reluctant to make a ruling in favour of the petitioners without evidence from a medical practitioner. As noted above, the Court did not indicate why the evidence submitted by the petitioners was insufficient for this purpose or why they were not given the benefit of the doubt.

It should be noted that the Court’s finding that persons with ‘severe’ forms of mental disability may not appreciate the severity of their illness in order to voluntarily give consent to medical treatment is erroneous. This is because, as stated above, even a person with a severe form of mental disability is not always in a state of mental crisis. Their condition can be explained to them and they can give advance orders on how to be treated when they are in a crisis or they can nominate a person of their choice to make treatment choices or decisions on their behalf when in a crisis. This is based on the principle of the ‘will and preference’ of persons with disabilities and not on the principle of ‘the best interests of persons with disabilities’ as espoused in the CRPD and the Persons with Disabilities Act.

6.3 Right to liberty and security of the person

In the Mwewa case the petitioners contended that the Mental Disorders Act violated their rights and those of other persons with mental disabilities to liberty and security of the person. The petitioners argued that the Mental Disorders Act violated the right of persons with disabilities to liberty and security of the person by permitting the detention of persons with mental disabilities to prisons and medical institutions on grounds of their disability and without providing proper safeguards. They also argued and tendered evidence to the effect that the Mental Disorders Act unconstitutionally and unlawfully permitted disability-based detention and involuntary admission to prisons and medical institutions, thereby violating their rights. Counsel for the petitioners argued that the Mental Disorders Act did not fall within the lawful limitation of the right to liberty permitted under article 13(1)(h) of the Constitution which authorises a limitation of the right to liberty as authorised by law. Counsel argued that the Mental Disorders Act was not a valid law for purposes of limitation as it is manifestly unjust and lacks legal certainty as there is no accepted definition, criteria or methodology for determining whether someone is of unsound mind. 39

In determining the petition, the High Court held that the Mental Disorders Act did not violate the right to liberty and security of persons with mental disabilities as established by the Constitution. The Court stated that in determining whether the Mental Disorders Act violates the right to liberty and security of the person of persons with disabilities, it has a duty to test whether a restriction is reasonable by exposing it to the principles of fairness. In this regard sections 6, 8, 9, 30 and 31 of the Mental Disorders Act, which sanction involuntary detention and forced treatment of persons with mental disabilities, were found to be regulatory in that they state the procedure on detention and admission of persons with mental disabilities.

The High Court found that the Mental Disorders Act did not contravene the right to liberty guaranteed by article 13 of the Constitution of Zambia. However, the Court failed to properly apply the principles of limitation of rights. The Court stated that it had the responsibility of establishing whether or not the rights had been infringed by testing the alleged violations against principles of fairness. While conceding that the provisions of the Mental Disorders Act, which provide for the involuntary detention of persons with disabilities, could amount to an infringement of the petitioners’ rights, the Court proceeded to consider what she termed ‘the principle of proportionality’.40 In expounding this principle, the Court stated:41

By this I mean to say that there needs to be a balance between the competing considerations on detention and admission to mental health institutions which appear to be involuntary on the one hand and the affected persons (sic) rights. In my view, there may be instances where it is necessary for the family, community or law enforcement agencies to have a mental patient admitted without their consent especially where they suffer from severe disabilities or where is obvious that an affected person is not capable of making an appropriate decision for their care and treatment. The decision to determine the detention or admission of mental patients to prisons or medical institutions is a medical question, and cannot be determined by this Court.

The Court failed to apply the established principles and guidelines on the limitation of rights. The Court instead devised its own ‘principle of proportionality’ which failed to properly construe the normative content of the rights to liberty and security of the person of persons with disabilities. Furthermore, even after conceding that the Mental Disorders Act lacked certainty on the definition and criteria of and the methodology for determining whether a person is of unsound mind or not, the Court relied on this lack of certainty to deny persons with disabilities protection from involuntary detentions. The Court further found that the decision whether or not a mental patient should be admitted to a prison or medical institution is a medical and not a legal issue. In so stating, the Court conflated the question of legal capacity with mental capacity. Contrary to the court’s finding, the question of whether or not a person is capable of giving informed consent to treatment is a legal rather than a medical one. The Court’s findings appear to have been made without due regard to the plethora of authority on the legal capacity of persons with mental disabilities to make decisions regarding their admission and treatment.

The Court’s findings seem to represent or be influenced by the historical guardianship laws that were enacted to indiscriminately arrest, detain and take other action against persons with mental disabilities, allegedly ‘in their best interests’ and ‘that of society’. They represent the charity model of addressing the plight of persons with disabilities. The Court also refused to rely on the undisputed evidence of the petitioners regarding the effect of the Mental Disorders Act on their rights to liberty and security of the person. This is in contravention of the principle that places the burden of proving that the restrictions are justifiable in a democratic state on the state.

6.4 Tacit repeal by the Persons with Disabilities Act

In the Mwewa case the petitioners contended, in the alternative to the constitutionality argument, that the Mental Disorders Act of 1949 had been tacitly repealed by the Persons with Disabilities Act, a later Act of 2012 which contains contradictory provisions and is based on a rights-based approach to disability. The Court held:

In a constitutional democracy like ours, all laws flow from the Constitution and all other laws rank pari pasu. A subordinate piece of legislation such as the Persons with Disabilities Act cannot therefore void or repeal the Mental Disorders Act. In other words, provisions of the Persons with Disabilities Act cannot be the basis for impeaching the Mental Disorders Act.

The Court found that the Mental Disorders Act had not been tacitly repealed notwithstanding its noting that the Act was an archaic piece of law that required a thorough review. 42

The Court failed to give effect to section 3 of the Persons with Disabilities Act, which contains the following superiority clause:

Subject to the Constitution, where there is any inconsistency between the provisions of any other written law impacting on the rights of person with disabilities as provided in this Act ... the provisions of this Act shall prevail to the extent of the inconsistency.

Notwithstanding the refusal to declare the Mental Disorders Act unconstitutional, the proper construction would have been to construe the various provisions the Mental Disorders Act together with the Persons with Disabilities Act as though they had been amended by the latter Act. The Court therefore misconstrued principles of statutory construction stated in the Interpretation and General Provisions Act. According to principles of statutory construction, in the case of a latter statute regulating the same conduct, the latter statute has the effect of amending the former statute.

7 Conclusion

Persons with mental disabilities are human beings with same rights and dignity as any other human being. They are entitled to the protection of their dignity, liberty, security of the person, freedom from torture and inhumane or degrading treatment and freedom from discrimination on account of their mental disability. This means that they are entitled to fully and willingly participate in deciding whether they want to be admitted to a health facility for treatment and the type of treatment they prefer. They are entitled to make informed decisions on matters affecting their mental health, among others.

An analysis of the Mwewa case demonstrates that the High Court did not fully apply the rights-based approach in its interpretation, and that its approach to constitutional interpretation was also in some ways faulty. It also shows that the Court did not properly apply the principles of limitation and interpretation of rights when interpreting the petitioners’ rights to liberty and security of the person and human dignity.

The article sought to analyse the judgment of the Zambian High Court in the Mwewa case in relation to the rights of person with mental disabilities. The authors of this article were the advocates for the petitioners in this matter.

 

1. 2017/HP/204 (unreported).

2. Sec 2 of Zambia’s Ratification of International Agreements Act 34 of 2016. The Act confirms the position stated by case law before its enactment; see Zambia Sugar PLC v Fellow Nanzaluka Supreme Court Appeal 82 of 2001, where it was held that international instruments on any law, although ratified and assented to by the state, cannot be applied unless they have been domesticated.

3. Attorney-General v Roy Clarke (2008) 1 ZR 38.

4. 1992/HP/765 (HC).

5. Ch 305 of the Laws of Zambia. The Mental Disorders Act was enacted in 1949 and last amended in 1965. Its long title reads: ‘An Act to provide for the care of persons suffering from mental disorder or mental defect; to provide for the custody of their persons and the administration of their estates; and to provide for matters incidental to or connected with the foregoing.’

6. Act 6 of 2012.

7. Mwewa case (n 1) judgment 21.

8. Mwewa case judgment 10.

9. Mwewa case judgment 11.

10. Mwewa case judgment 28.

11. Mwewa case judgment 13.

12. Mwewa case judgment 16.

13. Mwewa case judgment 17.

14. Mwewa case judgment 32.

15. Mwewa case judgment 33.

16. As above.

17. Mwewa case judgment 36.

18. Art 1(1) of the Constitution of the Republic of Zambia, Schedule to Chapter of the Laws of Zambia as amended by Constitution of Zambia (Amendment) Act 2 of 2016.

19. (1968) ZR 99.

20. Patel v Attorney-General (n 19) 107.

21. Patel v Attorney-General 118.

22. Patel v Attorney-General (n 19).

23. (1995) SJ HPR/36/94.

24. Patel v Attorney-General (n 19).

25. The People v Bright Mwape and Fred M’membe (n 24)

26. The People v Bright Mwape and Fred Mmembe (n 24)

27. SCZ Appeal No 25 of 1995 (SJ)

28. Mulundika case (n 28) para 12

29. Ch 2 of the Laws of Zambia.

30. Art 1 CRPD.

31. Art 25(d) CRPD.

32. (2003) AHRLR 96 (ACHPR 2003) para 57

33. UN Committee on the Rights of Persons with Disabilities General Comment 1 of 2014 on article 12: Equal Recognition before the law, 19 May 2014, CRPD/C/GC/1 paras 1 & 11.

34. Art 14.

35. UN Committee on the Rights of Persons with Disabilities, Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities, September 2015.

36. Paras 3-4 of the Guidelines (n 35).

37. Mwewa case (n 1) judgment 40.

38. Mulundika (n 28).

39. Mwewa case judgment 13.

40. Mwewa case judgment 33.

41. As above.

42. Mwewa case judgment 48.

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