Catalina Devandas UN Special Rapporteur on the Rights of Persons with Disabilities, End of Mission Statement (in Zambia):
"Despite the adoption of important policies and legislation related to the rights of persons with disabilities, a comprehensive harmonization of the normative and policy frameworks in Zambia should be undertaken, to ensure their compliance with the Convention. Several statutory instruments, such as in the areas of education, health, accessibility and employment, need to be adopted in order to speed up implementation of the Persons with Disabilities Act and other relevant policies.
I have noted the existence of different definitions of disability and the widespread use of pejorative language to refer to persons with disabilities in several official documents. Moreover, I am particularly concerned about certain legal provisions that discriminate against persons with psychosocial disabilities, such as those contained in the Mental Disorder Act, the Penal Code, the Criminal Procedure Code, the Prisons Act, the Citizens of Zambia Act, and the Electoral Commission Act. I urge the Government to repeal or amend them as soon as possible.
In this regard, I welcome the request for technical assistance that I have received from the Ministry of Health to comment on the new draft Mental Health Bill that aims to replace the out-dated Mental Disorders Act to ensure its compliance with the Convention on the Rights of Persons with Disabilities.
Deprivation of liberty, denial of legal capacity and forced treatment
During my visit, I noted with concern the denial of legal capacity for persons with psychosocial and intellectual disabilities. Although there is no specific procedure for that purpose and thus few persons have been assigned a guardian, in practice it is assumed that a person with a psychosocial or intellectual impairment has no legal capacity due to the lack of “mental capacities”. This assumption pervades all aspects of life affecting the exercise of other human rights such as personal liberty, health, family and property. For instance, the Constitution provides that a person can be deprived of her or his personal liberty if “is, or is reasonably suspected to be, of unsound mind […] for the purpose of his care or treatment or the protection of the community”. In addition, it allows limitations in the administration of property of “a person of unsound mind”. These provisions are not compliant with the Convention on the Rights of Persons with Disabilities.
Deprivation of liberty on the basis of disability is also an accepted practice in Zambia. The Mental Disorders Act, inherited from the colonial period, enables the deprivation of liberty of persons “apparently mentally disordered or defective” under the basis of being “dangerous to himself or to others” or “wandering at large and unable to take care of himself”. Similarly, under the Criminal Procedure Code, a person found unfit to trial or not guilty by reason of “insanity” can be detained indefinitely under the President’s Pleasure.
Several persons with disabilities are detained in prisons and psychiatric facilities under this procedure. According to the Persons with Disabilities Act, in case of inconsistency between the provisions of any written legislation impacting on the rights of persons with disabilities, the provisions of the Act shall prevail to the extent of the inconsistency.
Despite this clause, I strongly encourage the Government to repeal all legislation that is inconsistent with the Convention on the Rights of Persons with Disabilities.
During my visit to Chainama Hills College Hospital in Lusaka, I took note of the efforts by authorities to end institutionalisation and their interest to move towards the establishment of community-based services. I was pleased to learn that they are engaging directly with organisations of persons with psychosocial disabilities with the aim of ensuring a human rights-based approach in the provision of mental health services. However, I have observed that persons with psychosocial disabilities are hospitalized without their informed consent, and subjected to seclusion and forced treatment. Immediate measures must be taken to stop these practices that are inconsistent with international human rights standards.
I also visited the psychiatric unit of the General Hospital in Ndola, where I was appalled by the conditions in the male acute ward, which is not only overcrowded, but has insufficient bedding, and very unhygienic conditions. I was informed about the existing practice of sterilization of women with disabilities without their informed consent. I call upon the Government of Zambia to take immediate actions to address the situation in this service. I have also been informed that the conditions in the mental health settlements that fall under the responsibility of the Ministry of Health are extremely harsh. I would suggest a moratorium on new admissions until these facilities are permanently closed."