The mandate of Zimbabwe Human Rights Commission in promoting and protecting the rights of persons with disabilities

4.1 The meaning of human rights promotion

The Paris Principles require NHRIs to be vested with competence to promote and protect human rights.61 Human rights promotion refers to the creation of a national culture of human rights where tolerance, equality and mutual respect thrive.62 It involves increasing the public knowledge and awareness of basic human rights and fundamental freedoms.63 The Global Alliance of National Human Rights Institutions’ (GANHRI) Sub-Committee on Accreditation stated that human rights promotion includes functions that seek to create a society where human rights are broadly understood and respected.64 Promotion entails, inter alia, public awareness outreaches, education, advocacy and training. 65

4.2 Special Interest Groups Thematic Working Group

Section 3(2) of the ZHRC Act, read with paragraph 7 of the First Schedule of the same Act provides for the establishment of Thematic Working Groups or committees. The purpose of these groups is to enhance the effective exercise of the ZHRC’s functions by drawing on the expertise of relevant stakeholders and promoting inclusiveness, transparency, openness participation and accountability.66 The ZHRC established a thematic working group on Special Interest Groups of which the purpose is to strengthen collaboration of state and non-state institutions that are involved in the promotion and protection of rights of vulnerable groups such as persons with disabilities, youths, Indigenous minorities and older groups.67 In 2021, the thematic working group recommended upscaling of efforts to promote disability rights through awareness raising and training of ZHRC staff on the National Disability Policy and sensitisation of parliamentarians, traditional leaders and councillors on rights of persons with disabilities and disability inclusion.68 It also recommended review of the ZHRC complaints handling mechanism with a view of mainstreaming a human rights based approach to disability issues.69

4.3 General awareness raising

Human rights promotion ensures that there is information and knowledge sharing on human rights so that a culture of respect for human rights is entrenched.70 The Paris Principles provides that all NHRIs should promote human rights, and they refer directly to the obligation to increase public awareness.71 That is the reason why the ZHRC has mainstreamed disability rights in its programming and intensified awareness raising on the thematic area. Article 8 of CRPD underscores the need to promote rights of persons with disabilities. It reiterates that governments should take measures to raise awareness on rights of persons with disabilities at all levels72 and to put in place measures to combat stereotypes, prejudices and harmful practices relating to persons with disabilities.73 Duty bearers and persons without disabilities should similarly understand and embrace rights of persons with disabilities to ensure no one is left behind. The ZHRC conscientises persons with disabilities on their rights and access to redress mechanisms in case of infringement of their rights.74

The ZHRC executes its human rights promotion mandate using multifaceted approaches through the Education, Promotion, Research and Advocacy Department.75 In compliance with section 243(1)(a) of the Constitution as well as article 8(2)(a) of the CRPD, the said department conducts human rights awareness raising, advocacy, promotion and development. This is done through outreaches, exhibitions, comme-morative events, engagement meetings, training seminars and media campaigns.76 The ZHRC also utilises its website and social media platforms such as X (formerly Twitter), Instagram and Facebook to disseminate information and publicise its knowledge products. The ZHRC can also embrace community-based initiatives so that human rights awareness is cascaded to grassroots communities at risk of being victims of rights violations.77

4.4 Human rights education and training

Since its operationalisation, the ZHRC has been actively involved in human rights education that includes disability rights. The Commission took part in the curriculum review process that culminated in the adoption of the new curriculum which integrated knowledge on disability rights at primary and secondary levels. It has also been involved in high school quiz competitions that covered disability rights as well. The ZHRC can further support other extracurricular activities such as human rights, interact and public speaking clubs.78 The ZHRC can also target learning institutions for children with disabilities such as King George VI Centre, Ruvimbo Special School and Margarethe Hugo (Copota) School for the Blind when supporting extracurricular activities.

At a tertiary education level, the ZHRC can support moot court competitions on disability rights that are conducted annually by law schools. The Commission can also participate in guest lectures at colleges and universities since most of them have modules that include human rights.79 Other human rights commissions promote human rights research by motivating final year students to research on human rights and then offering prizes for outstanding work.80

In so far as training of professionals is concerned, the ZHRC has over the years, been training the Zimbabwe Prisons and Correctional Services and Zimbabwe Republic Police recruit training officers as a way of fostering a culture of human rights-based approaches to law enforcement. In 2022, the ZHRC trained 771 recruit correctional officers and 244 recruit police officers and instructors.81 To promote the rights of persons with disabilities, the curriculum for the ZHRC training seminars includes rights of persons with disabilities. Volume 2 of the Commission’s training manual on rights of vulnerable groups covers rights of persons with disability.

The ZHRC conducts human rights education and training of stakeholders and duty bearers such as traditional leaders, councillors and other public officials. It is the role of the ZHRC to raise awareness and respect of rights of persons with disabilities in such trainings. Factors to be considered during education and training include literacy rate of the target population, financial resources and the level of awareness among the target population. 82

4.5 Publications

Publications such as research papers, annual, investigative, monitoring and special reports are critical resources that can be used in the promotion of rights of persons with disabilities. Such publications should be in accessible formats as both hard and soft copies. The OHCHR emphasises that online publications must be compliant with international standards for persons with visual disabilities.83 Similarly, hard copies should be produced in braille. Where possible, publications should also be available in the form of audiobooks. Zimbabwe has 16 officially recognised languages and efforts must be made towards producing publications in all these languages for easy accessibility.

Preparation of reports on the national situation regarding general or specific human rights issues is one of the responsibilities of NHRIs provided for in the Paris Principles.84 The Paris Principles obligate NHRIs to ‘submit to the government, parliament and any other competent body, on an advisory basis ... opinions, recommendations, proposals and reports on any matters concerning the protection and promotion of human rights’.85 Similarly, section 323 of the Constitution mandates the ZHRC to produce and submit annual and other reports to the parliament.

Annual reports do not only serve as an institutional accountability tool. They are also a platform for the NHRI for public awareness on the work that the NHRI does.86 The Commission should utilise annual reports to publicise its work on rights of persons with disabilities and to make appropriate recommendations.

The United Nations Centre for Human Rights is of the view that NHRIs should have diverse information, education and communication material on human rights that is widely disseminated to reach different constituents including marginalised groups.87 The ZHRC can produce specialised human rights material in the form of magazines and newsletters for specific audiences on different human rights thematic areas including disability rights.88 The Commission’s Education, Promotion, Research and Advocacy Department conducts physical awareness outreaches and these can be conducted to disseminate the material which should be distributed through audio, video and braille for the benefit of persons with visual and hearing disabilities. The website and social media platforms are also used to distribute disability-friendly packaged information materials.89

4.6 Human rights research and development

The CRPD obligates state parties to collect information including statistical and research data for the purpose of formulating and implementing policies to give effect to the rights of persons with disabilities.90 In the same context, the Constitution of Zimbabwe gives the ZHRC the mandate to conduct research into issues relating to human rights and freedoms and social justice matters.91 Research can be done through national inquiries which have been identified as effective mechanisms for human rights promotion that enable a comprehensive examination of systematic human rights violations to be conducted.92 National inquiry findings lead to the development of recommendations to address the probed situation thereby leading to full realisation of the concerned rights.93

In 2020, the ZHRC conducted a national inquiry on access to documentation in Zimbabwe.94 The purpose of the inquiry was to identify challenges faced in accessing national documentation and the effects these challenges had on the enjoyment of fundamental human rights and freedoms.95 The inquiry identified persons with disabilities as a group of persons facing specific challenges due to their vulnerability. The ZHRC conducted public hearings and received submissions from 237 persons with disabilities.96 Some of the findings were that persons with disabilities were not treated with dignity at the civil registry offices. In some instances, there were no sign language interpreters and there was also lack of user-friendly infrastructure.

5.1 ZHRC’s role in protection of disability rights

Human rights protection functions are aimed at providing redress and ensuring accountability for human rights violations. They involve investigation of human right violation cases and bringing to justice those responsible for human rights violations as well as providing remedy and redress for victims of human rights violations.97 Human rights protection includes visiting and inspecting places of detention.98 Monitoring can be done to identify violations that have occurred, that are occurring and that are at the risk of occurring.99 Identifying violations that have occurred is done for the purpose of providing remedy to the human rights violation victims whilst identifying occurring violations should translate to stopping the violations.100 Human rights violations at a proximate risk of occurring ought to be prevented through monitoring functions. The ZHRC’s human rights protection mandate is inclined towards putting in place systems and mechanisms to ensure rights of citizens are not violated and to guarantee redress in cases where human rights violations occur. For an NHRI to be regarded as compliant with the Paris Principles, it must take comprehensive action towards both promotion and protection of human rights. The human rights protection mandate of ZHRC is mainly discharged through three departments, namely: the Monitoring and Inspection Department; the Complaints Handling and Investigations Department; and the Administrative Justice Department. The Monitoring and Inspection Department discharges the human rights monitoring mandate in terms sections 243(1)(c) and (k) of the Constitution.101 The OHCHR defines monitoring as the activity of observing, cataloguing, collecting and analysing data and reporting on a situation or event.102 The human rights monitoring mandate culminates into submission of situational and alternative reports relevant bodies such as parliament, treaty bodies and mechanisms.

5.2 Submission of alternative reports

One of the responsibilities of NHRIs is to encourage the ratification of human rights instruments, ensure their implementation and contribute to state party reports to regional and international human rights bodies.103 NHRIs must strive to ensure implementation of treaty obligations. Ngwena has observed that treaty obligations should be translated into reality if right holders are to derive tangible benefits.104 Zimbabwe ratified the CRPD and its Optional Protocol. The Committee on the Rights of Persons with Disabilities is one of the treaty bodies requiring regular reports.105 Article 33 of the CRPD makes provision for domestic monitoring of the implementation of provisions of the Convention and implicitly nominates NHRIs to discharge the monitoring role.106 It is therefore the role of the ZHRC as the NHRI of Zimbabwe to assess the government’s compliance with the CRPD as well as any other treaty mechanisms promoting and protecting rights of persons with disabilities. NHRIs are better placed to promote and monitor the recommendations of international mechanisms.107 For instance, the CRPD has 189 member states108 and it can be difficult for the Committee on the Rights of Persons with Disabilities to monitor implementation in all states as international mechanisms do not have the capacity for close monitoring.

To advance the rights of persons with disabilities and comply with the Paris Principles, the ZHRC should regularly prepare and submit periodic alternative reports to government reports on achievements made in so far as the rights of persons with disabilities are concerned. NHRIs should solicit views and submissions from stakeholders when preparing country reports.109

Article 34(1) of the African Disability Rights Protocol calls upon state parties to indicate, in their periodic reports submitted to the African Commission on Human and Peoples’ Rights,110 measures taken to advance the rights of persons with disabilities. The Protocol also nominates NHRIs as institutions responsible for monitoring the implementation of rights of persons with disabilities. The ZHRC should therefore review the government’s reports to ensure that representations contained therein are accurately portrayed.111 There is also a need to follow up on the implementation of recommendations contained in its own reports. 112

Zimbabwe submitted its first state party report to the Committee on the Rights of Persons with Disabilities on 8 June 2022.113 The tentative date for adoption of the list of issues is March 2026 and the dialogue between the members of the Committee and a delegation of the state party in which they discuss the implementation of the Convention by the state party at the national level will take place in March 2029.114 The ZHRC is called upon to submit an alternative report to the Committee. It should not only submit alternative reports to the Committee on the Rights of Persons with Disabilities proffering recommendations to advance rights of persons with disabilities, but should also conduct monitoring exercises to follow up on the implementation of the provisions of the CRPD as well as implementation of recommendations contained in its own reports. The ZHRC should thereafter publish progress reports on the implementation of recommendations to advance rights of persons with disabilities. These progress reports increase both accountability and transparency in the implementation process and they act as advocacy tools to put pressure on the government to implement the recommendations.115

5.3 Human rights monitoring

The ZHRC has the constitutional mandate to visit and inspect prisons, police cells, refugee camps, children’s homes, old people’s homes, mental health institutions and any other places where persons with disabilities are institutionalised.116 The purpose of these monitoring visits is to ascertain the conditions under which persons are kept there and thereafter make recommendations to advance the rights of the detained persons.117 Zimbabwe’s legislation is silent on whether the ZHRC should give notice or not before embarking on a monitoring mission. Where possible and in the spirit of the OHCHR, the ZHRC should conduct impromptu visits at places where persons with disabilities are institutionalised. Monitoring visits’ findings and recommendations are directed to the respective heads of institutions and to the Ministers responsible for administering the law related to those places.118

The ZHRC conducted its inaugural monitoring and inspection visit to a mental health institution at Ingutsheni mental hospital in 2015.119 One of its findings was that most of the infrastructure was dilapidated and needed rehabilitation.120 Ngomahuru and Mlondolozi mental hospitals were later visited in 2019.121 After monitoring visits to the institutions, the ZHRC made recommendations to the Ministry of Health and Child Care to rehabilitate the dilapidated infrastructure. From 22 to 24 October 2019, the ZHRC conducted follow up inspections at the three institutions to monitor implementation of its recommendations. 122

When inspecting places where persons with disabilities are institutionalised, the ZHRC should check if the institution meets the standards required for such an institution. The inspection should cover aspects such as the right to barrier free access to the physical environment, transportation and information among other rights.123 The CRPD requires governments to monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services. 124

Article 18(4) of the Banjul Charter provides that older persons with disabilities have the right to special measures of protection in keeping with their physical and moral needs.125 The ZHRC should visit and inspect old people’s homes and during those visits, due considerations should be taken in monitoring and assessing the enjoyment of rights of older persons with disability. Article 30 of the African Disability Rights Protocol directs state parties to ensure that older persons with disabilities are fully protected by adopting policy, legislative and other measures including for ensuring access to social protection and protection from neglect and violence.126 In 2022, the ZHRC visited Melfort Old People’s Home and proffered recommendations to government to ensure that the rights of older persons with disabilities are realised.127

5.4 Advisory responsibilities

Provision of advice on human rights matters is one of the roles of an institution like the ZHRC. This can be achieved through submission of advisory opinions to relevant duty bearers. An NHRI like the ZHRC may, during the exercise of its functions, identify gaps and problems in the existing legislation from a human rights perspective.128 The United Nations Centre for Human Rights explains that in cases where the mandate of a NHRI does not specify the procedure to be followed after making a finding, the NHRI must detect the inadequacies and conduct a study of the human rights implications with reference to both domestic and international standards. It should thereafter identify the relevant government ministry, department or agency responsible for administering the legislation.129 The ZHRC mandate does not specify the procedure to be followed if an inadequacy is identified on any piece of legislation. It follows that, as part of its activities, the ZHRC should scrutinise legislation that is relevant to persons with disabilities.

NHRIs should have the ability to make contributions by commenting and playing an advisory role to the government on proposed laws before they are passed into law for it is easier to change a draft law than to amend or repeal an already existing one.130 The ZHRC should in this regard make written representations to parliament advising on any bill with a bearing on the rights of persons with disabilities. In 2019, the ZHRC made representations to the Ministry of Public Service, Labour and Social Welfare with regards to the Persons with Disabilities Bill.131

In its General Comment 10, the Committee on Economic Social and Cultural Rights details that the roles of the NHRIs in promoting and protecting human rights includes scrutinising existing laws, draft bills and administrative acts.132 The Parliament of Zimbabwe conducted public consultations on the Persons with Disability Bill in May 2024.133 The ZHRC attended the public hearings and thereafter submitted an advisory report to the Parliament of Zimbabwe.134 The report analysed the Bill and assessed its compliance with the Constitution, international and regional instruments on the rights of persons with disabilities. The ZHRC further recommended that there be provisions on persons with disabilities living and working on the streets.135

Most of the key national legislation for the advancement of rights of persons with disabilities was enacted before the coming into force of the current Constitution of Zimbabwe. This legislation is in many respects inconsistent with the Constitution which is supreme. The ZHRC should lobby for alignment of these laws with the Constitution. Most importantly, the ZHRC must continue lobbying for the alignment of its own enabling Act with the Constitution. The ZHRC Act came into operation in October 2012136 whilst the current Constitution was adopted in April 2013 and it came into force in August 2013. This anomaly impedes full execution of the Commission’s mandate.

5.5 Complaints handling

Human rights protection is chiefly centred around complaints handling and investigations so that victims of human rights violations are afforded remedies. The investigation of alleged human rights violations is one of the most critical functions of the ZHRC which enables it to secure appropriate remedies for those seeking redress.137 Effective execution of this investigative mandate requires adequate powers that are legally conferred.138 The ability to receive and investigate complaints against both public and private bodies, the ability to conduct investigations at its own initiative, the power to compel the production of evidence and witnesses and the ability to visit places of detention are some of the powers a NHRI is expected to have.139

The conferring of power on the ZHRC to receive and investigate human rights-related complaints through the Constitution of Zimbabwe,140 reflects a positive commitment by the government of Zimbabwe to human rights protection and its willingness to take international and domestic obligations seriously. 141

Section 28 of the 2016 ZHRC General Regulations allows the ZHRC to initiate investigations on human rights violations, maladministration or abuse of power.142 The ZHRC General Regulations empowers the ZHRC to issue summons for attendance to a hearing or for the production of evidence and such summons must be served by a police officer. 143

As mentioned earlier, the ZHRC serves as both the institution responsible for advancement of human rights and the public protector. As public protector, the ZHRC receives complaints and investigates allegations of maladministration and abuse of office by the state and state

institutions.144 Besides mental health centres, persons with disabilities are often captive populations in places such as prisons, refugee camps, and children’s and old people’s homes. Most of these places are administered by public officials. To this end, persons with disabilities are exposed to the risk of suffering maladministration and abuse. The ZHRC should therefore regularly conduct monitoring visits at such places.

Over the years, the ZHRC has been conducting Mobile Human Rights Clinics in prisons and in rural communities. The purpose of the MHRCs is to raise awareness on the work of the NHRI and to increase knowledge on reporting and enforcement mechanisms and remedies.145 During the year 2022, the ZHRC received 624 cases on alleged human rights allegations.146 However, only two of the cases were on the rights of persons with disabilities.147 One way of securing an increase in the number of disability-related cases, would be for the ZHRC to regularly conduct Mobile Human Rights Clinics in places where persons with disabilities are kept. In addition, the ZHRC should intensify collaboration and partnerships with Organisations for Persons with Disabilities.

It is worth noting that the powers of the Commission to investigate complaints are not a substitute of law enforcement officials and judicial processes.148 The United Nations Centre for Human Rights has similarly observed that the ability of a NHRI to receive and act on human rights violation complaints as a complimentary mechanism established to ensure the rights of all persons are fully enjoyed. 149