1 Population indicators
1.1 What is the total population of Zambia?
The final report of the 2010 Census of Population and Housing in Zambia indicates that Zambia’s population as of 2010 was 13,092,666.
2. Zambia’s international obligations
2.2 If Zambia has signed and ratified the CRPD, when was its country report due? Which government department is responsible for submission of the report? Did Zambia submit its report? If so, and if the report has been considered, indicate if there was a domestic effect of this reporting process. If not, what reasons does the relevant government department give for the delay?
Zambia’s report was due on 1st March, 2012. No report has been submitted so far.
Pursuant to section 11 (1) of the Ratification of International Agreements Act No. 34 of 2016 , the responsibility for submitting State Party reports is placed on the line Ministry of each treaty. Section 11 (1) of the said Act provides thus:
“11.(1) Where an international agreement provides for the submission of State reports as part of the monitoring mechanism, the Ministry responsible for the subject matter of the international agreement shall prepare and submit the State report within the period specified in the international agreement.
(2) For purposes of this section, a State report includes any periodic report which the State may be required to submit under an international agreement.”
In view of the above provision, the Ministry responsible for submitting the State Party report to the Committee on UNCRPD is the Ministry of Community Development and Social Welfare. In the last few years, Zambia had started the process of preparing the report for submission which has unfortunately stalled.
The reason for the delay has been resource based in that it requires resources to gather the information and to convene a workshop with relevant stakeholders to consolidate the information.
2.3 While reporting under various other United Nations’ instruments, under the African Charter on Human and Peoples’ Rights, or the African Charter on the Rights and Welfare of the Child, did Zambia also report specifically on the rights of persons with disabilities in its most recent reports? If so, were relevant ‘concluding observations’ adopted? If relevant, were these observations given effect to? Was mention made of disability rights in Zambia's UN Universal Periodic Review (UPR)? If so, what was the effect of these observations/ recommendations?
UN Instruments
- The International Covenant on Economic, Social and Cultural Rights
In April 2005, Zambia submitted its state report to the Committee on Economic Social and Cultural rights. Zambia did not specifically report on matters of disability rights and persons with disabilities. It was noted that the information provided in the report was not sufficient for the Committee on Economic, Social and Cultural Rights to be fully able to assess developments in the status of implementation of most of the provisions of the Covenant.
In addition, although Zambia has adopted a number of laws in the area of economic, social and cultural rights, the Covenant has not yet been fully incorporated in the domestic legal order.
In the concluding observations of the Committee, it recommended that
Zambia:
- exercise a stronger monitoring function in relation to private social security schemes and funds so as to ensure that those schemes provide adequate social protection to their beneficiaries; take adequate measures to address the difficulties faced by widows and orphans, and in particular to eliminate harmful traditional practices; and
- ensure that street children be provided with preventive and rehabilitative services for physical and sexual abuse, as well as adequate food, clothing, housing, health care and educational opportunities.
Most of these observations and recommendations have not yet been given effect to, although efforts are being made through the constitutional review process and law review and revision which is currently in progress in Zambia.
- The Convention on the Rights of the Child
Zambia submitted her combined second, third and fourth State Party report to the Committee on the Rights of the Child on 22nd January, 2016. According to the State Party report, Zambia consulted children including children with disabilities in the preparation of the report in line with Article 12 of the Convention.
With regard to children with disabilities the Committee on the Rights of the Child in its Concluding Observations on the combined second to fourth periodic reports of Zambia recommended that:
“46. In the light of its general comment No. 9 (2006) on the rights of children with disabilities, the Committee recommends that the State party:
(a) Take all necessary measures to ensure the effective implementation of the existing legislation and take all necessary measures for the development and implementation of the national plan of action;
(b) Ensure that children with disabilities have access to inclusive early childhood care and education, early development programmes, health care and other services, and ensure such services receive adequate human, technical and financial resources;
(c) Collect and analyse data on the situation of all children with disabilities, disaggregated by, among other things, age, sex, type of disability, ethnic and national origin and geographic location;
(d) Develop and conduct awareness-raising activities with a view to changing the societal misconceptions about children with disabilities and eliminating stigmatization;
(e) Monitor and evaluate activities on targeting prevention of disability;
(f) Provide training for professional staff working with children with disabilities, such as teachers, medical, paramedical and related personnel and social workers, in order to understand the needs of children with disabilities;
(g) Ensure that education is fully inclusive and allocate appropriate human, technical and financial resources for fully inclusive education of children with disabilities;
(h) Ensure the participation of children with disabilities and their families in policy and programme planning, monitoring and evaluation.”
Most of the above recommendations are being addressed through mainstreaming of disability as provided by the National Policy on Disability which was adopted in December, 2015.
Regional Instruments
- African Charter on Human and Peoples’ Rights
Zambia submitted its initial report in 2004 which covered the period between 1986-2004. Paragraph 35 (d) of the State Party report states that Zambia will:
“Provide to persons with disabilities, the aged and other disadvantaged persons such social benefits and amenities as are suitable, just and equitable to their needs;…”
This commitment has been fulfilled through the introduction of the social cash transfer that is paid out to vulnerable groups including persons with disabilities. Zambia also adopted the National Social Protection Policy in 2014 which among other things operationalises social assistance under different programmes which includes the resettlement and rehabilitation of persons with disabilities.
- Universal Periodic Review (UPR)
Zambia’s UPR review was held on 13th November 2017. During the said review, Zambia received and accepted 5 recommendations on disability from India, Egypt, Iraq, Madagascar and Yemen as detailed below:
“129.63 Ensure the national health and HIV policies and strategies are inclusive and accessible to all vulnerable groups, including adults and children with disabilities (India);
129.85 Improve the situation of persons with disabilities (Egypt);
129.86 Take more efforts to protect persons with albinism (Iraq);
129.87 Ensure that the laws relating to persons with disabilities are consistent with international standards (Madagascar);
129.88 Continue its efforts to address the rights of persons with disabilities and to update the national legal framework in order to harmonize it with the provisions of the Convention on the Rights of Persons with Disabilities (Yemen).”
3. Constitution
3.1 Does the Constitution of Zambia contain provisions that directly address disability? If so, list the provisions, and explain how each provision addresses disability.
Article 266 of the Constitution of Zambia (Amendment) Act No. 2 of 2016 defines disability to mean:
“…a permanent physical, mental, intellectual or sensory impairment that alone, or in combination with social or environmental barriers, hinders the ability of a person to fully or effectively participate in an activity or perform a function as specified in this Constitution or as prescribed;”
The Article goes further to define ‘discrimination’ as:
“… directly or indirectly treating a person differently on the basis of that person’s birth, race, sex, origin, colour, age, disability, religion, conscience, belief, culture, language, tribe, pregnancy, health, or marital, ethnic, social or economic status.”
Notwithstanding the positive step under the amended Constitution, there are two major provisions that border on discrimination on the basis of disability. Firstly, the amended Constitution under Article 266 defines the term ‘discrimination’ in a narrow sense as it does not meet the definition provided by the UNCRPD. The said definition is evidently aimed at the provisions in the Constitution that are aimed at disqualifying persons from holding public office if they are a person with a physical or mental disability.
4 Legislation
4.1 Does Zambia have legislation that directly addresses issues relating to disability? If so, list the legislation and explain how the legislation addresses disability.
Zambia has taken a step towards introducing a new Act to address disability – the Persons with Disabilities Act. However, the Act has been criticised for falling short of some of the standards prescribed by the CRPD. While the Act seeks to domesticate the CRPD, it only provides a piece-meal domestication whereby some but not all the provisions of the CRPD are reproduced in the Act.27 By implication, it means that provisions of the CRPD which are not reproduced remain undomesticated such that enforcing them would be problematic since Zambia adopts a dualistic approach to domestication of international and or regional treaties.
Subject only to the Constitution, section 3 of the Act provides that where there is any inconsistency between the provisions of any other law and the provisions of the Persons with Disabilities Act, then the provisions of the Persons with Disabilities Act shall prevail to the extent of the inconsistency. The import of this
particular provision is that the provisions of the Persons with Disabilities Act shall prevail over any other law (other than the Constitution) in so far as that other law impacts on the rights of persons with disabilities. It follows that provisions of the CRPD that are domesticated such as the right to legal capacity, health, education, personal mobility and habilitation and rehabilitation will prevail over all other laws. Further, section 9 of the Persons with Disabilities Act also makes progressive provisions for the protection of the rights of persons with disabilities who come into contact with law enforcement officers, including the courts. It reads:
Subject to the Constitution, law enforcement agencies shall take into account the disability of a person on arrest, detention, trial or confinement of the person with disability and make reasonable accommodation for that person accordingly, including at investigative and other preliminary stages of the matter.
The foregoing provision seeks to ensure that persons with disabilities are accorded the necessary and appropriate reasonable accommodation as they come into contact with law enforcement agencies. The other Act that impacts profoundly on persons with disabilities is the Mental Disorders Act (MDA).28 The MDA seeks to provide for the treatment and custody of persons with mental and intellectual disabilities, and also for the administration of their estates.
Following the judgment in the case of Gordon Maddox Mwewa and Others vs. The Attorney-General and Another in which the petitioners alleged that the Mental Disorders Act was unconstitutional against persons with disabilities as it violated their right to dignity, personal liberty, protection from torture, deprivation of property, right to protection of the law and freedom from discrimination. The High Court for Zambia after making reference to Section 5 of the Mental Disorders Act held inter-alia at pages J27-28 that:
“In their natural and ordinary meaning, I find that the definitions and classifications used in Section 5 of the Mental Disorders Act are highly offensive, derogatory, and discriminatory. They have no place in modern society and it is obvious that in 1949, the authorities did not have anything in mind as far as the protection of human rights and fundamental freedoms is concerned. I totally agree with the Petitioners that the Mental Disorders Act, which violates Article 23 (1) of the Constitution is null and void.”
Following the above judgment the Mental Disorders Act was amended by expunging Section 5.
In section 8, the MDA empowers police officers to apprehend and arrest any person whom he or she has reason to believe is ‘mentally disordered or defective’
and is a danger to himself or herself, or is wandering at large and unable to take care of himself or herself. Such provisions obviously put persons with disabilities at risk of being arrested if in his or her subjective determination, a police officer has reasons to believe that a person has a mental illness and that he or she may be a danger to himself or herself. The person so arrested is kept in a prescribed hospital or prison.
In section 9, the MDA provides that magistrates may, during the course of an inquiry into the state of mind of any person, order the detention of such person. The reason for the detention is no other than that person is of ‘unsound mind’.32 The MDA, therefore, discriminates against persons with intellectual and mental
disabilities in that it singles them out for unfavourable treatment which is not extended to others.
The Wills and Administration of Testate Estates Act 60 of 1994 is another example of legislation that discriminates against persons with disabilities. It contains a provision that disqualifies people from legal acts, such as the capacity to make a will, on the basis of disability. Furthermore, the Electoral Commission Act 24 of 1996 has no provisions to ensure that persons with disabilities exercise the right to vote on an equal basis with others. Laws that authorise deprivation of liberty or psychiatric interventions, without the free and informed consent of the person concerned, also fall into the category of laws that discriminate against
persons with disabilities.
4.2 Does Zambia have legislation that indirectly addresses issues relating to disability? If so, list the main legislation and explain how the legislation relates to disability.
The following is some of the legislation that indirectly addresses issues relating to disability:
- The Criminal Procedure Code Act affects persons with disabilities in that in sections 161 to 167 it provides that persons with mental disabilities who are unable to defend themselves in criminal proceedings, or who plead the insanity defence, are to be detained at the President’s pleasure. The Criminal Procedure Code Act also provides for periodic reviews of the state of mind of the person so detained.
- The Education Act No. 23 of 2011 promotes equity in education by advocating for ‘education for all’ without any distinction based on gender, social class or disability.
- The Prisons Act provides that prisoners adjudged to be ‘mentally disordered or defective’ should be detained until they serve their sentence. The Prisons Act does not provide for any reasonable accommodation in prison for persons with intellectual or mental disabilities.
The foregoing is by no means the only legislation indirectly touching on disability issues.
5 Decisions of courts and tribunals
5.1 Have the courts (or tribunals) in Zambia ever decided on an issue(s) relating to disability? If so, list the cases and provide a summary for each of the cases with the facts, the decision(s) and the reasoning.
There are a number of cases that the courts have determined which relate to disability. The following are some of the cases, including a brief summary of facts
and the decision:
- Sela Brotherton (suing in her capacity as National Secretary of the Zambia Federation of Disability Organisations) v Attorney General & 16 Others: In this case, the Plaintiff had commenced court proceedings seeking amongst others orders for the adjustments of several public and private buildings which were not accessible to persons with disabilities. The High Court determined the matter on a preliminary issue and held that the action was statute barred on the grounds that the Plaintiff commenced court proceedings outside the 12 years statutory period.
- Sela Brotherton (suing in her capacity as National Secretary of the Zambia Federation of Disability Organisations) v Electoral Commission of Zambia: The Plaintiff commenced court proceedings seeking amongst others orders and declarations that the respondent was discriminating against persons with disabilities by failing to provide them with the necessary services and amenities to allow them to participate in the electoral process on equal basis with others. The Court ruled that there was discrimination in that the respondent is obliged to manage public affairs in a manner that is not discriminatory.
In addition to the previous judgement, the case of Gordon Maddox Mwewa and Others vs. The Attorney-General and Another is relevant as highlighted under 4.1 above.
6. Policies and Programmes
6.1 Does Zambia have policies or programmes that directly address disability? If so, list each policy and explain how the policy addresses disability?
The National Policy on Disability of 2015
The Policy’s objectives include the development of programmes that prevent or reduce incidences of disability , facilitation of the provision of habilitation and rehabilitation facilities to persons with disabilities and ensure their full participation into the mainstream of society , ensuring the promotion of the rights of persons with disabilities, ensuring equitable access to opportunities by persons with disabilities , increasing access to formal and non-formal educational and skills training , increasing access to healthcare and services at all levels for persons with disabilities , safeguarding the right to adequate standard of living and social protection and enabling persons with disabilities to live independently and participate fully in all aspects of life.
The 7th National Development Plan (2017-2021)
The Plan provides for a strategy to ‘Enhance access to quality, equitable and inclusive education.’ The strategy among other things calls for scaling up of efforts aimed at enhancing equitable access to school places at all levels for all persons including persons with disabilities. Further, the Plan supports efforts towards enhancement of access to employment for persons with disabilities.
Zambia also adopted the National Social Protection Policy of 2014. The said Policy aims among other things to achieve inclusive and comprehensive social security system through the creation of employment opportunities for persons with disabilities.
Vision 2030
Vision 2030 was adopted in 2006, it is a national vision aimed at transforming Zambia into a middle-income nation by the year 2030. Vision 2030 aims among other things to streamline programmes for persons with disabilities.
The following are the key programmes and policies in place in Zambia which address matters affecting persons with disabilities:
- The National Policy on Education, 1996 recognises the right to education for each individual, regardless of personal circumstances or capacity. The Ministry of Education has overall responsibility for education, including special education;
- The National Employment and Labour Market Policy (NELP) 2005, shows the
government’s intentions to provide improved care and support services to vulnerable groups, including people with disabilities;
8. National human rights institutions, Human Rights Commission, Ombudsman or Public Protector
8.1 Does Zambia have a Human Rights Commission, an Ombudsman or Public Protector? If so, does its remit include the promotion and protection of the rights of people with disabilities? If your answer is yes, also indicate whether the Human Rights Commission or the Ombudsman or Public Protector of Zambia has ever addressed issues relating to the rights of persons with disabilities.
Since the adoption of the Constitution of Zambia (Amendment) Act No. 2 of 2016 the Human Rights Commission is now established pursuant to Article 230 (1) of the Constitution. For the first time, the mandate of the Commission has been provided for by the Constitution. Article 230 (2) provides that the Commission shall ensure the Bill of Rights is upheld and protected. The specific mandate of the Commission is provided for under Article 230 (3) which states that:
“230 (3) The Human Rights Commission shall—
(a) investigate and report on the observance of rights and freedoms;
(b) take necessary steps to secure appropriate redress where rights and freedoms are violated;
(c) endeavour to resolve a dispute through negotiation, mediation or conciliation;
(d) carry out research on rights and freedoms and related matters;
(e) conduct civic education on rights and freedoms; and (f) perform such other functions as prescribed.”
Therefore, the Commission has a wide mandate of promoting and protecting human rights including the rights of persons with disabilities.
9 Disabled peoples organisations (DPOs) and other civil society organisations
9.1 Does Zambia have organisations that represent and advocate for the rights and welfare of persons with disabilities? If so, list each organisation and describe its activities.
The Zambia Federation of Disability Organizations (ZAFOD) is the umbrella organisation representing several disabled persons organisations in Zambia. Its main activities include advocacy and awareness-raising. It also provides small loans to people with disabilities and training in small-scale business management.
The following DPO’s are the current members of ZAFOD:
- Zambia Association for Children & Adults with Learning Disabilities (ZACALD)
- Zambia National Association of Disabled Women (ZNADWO)
- Zambia National Association of the Physically Disabled People (ZNAPD)
- Zambia National Association of the Hearing Impaired (ZNAHI)
- New Foundation of the Blind in Zambia (NEFOBZA)
- Parents Partnership Association for Children with Special Needs (PPACSN)
- Zambia Association on Employment for Persons with Disabilities (ZAEPD)
- Zambia Association of Parents for Children with Disabilities (ZAPCD)
- Zambia National Association of Sign Language Interpreters (ZNASLI)
- Mental Health Users Network of Zambia (MHUNZA)
- Zambia National Association of the Deaf (ZNAD)
Other significant organisations include:
- Zambian National Federation of the Blind;
- Zambia National Library and Cultural Centre for the Blind; and
- Zambia Association on the Employment for Persons with Disabilities.
Further, some of the key stakeholders where disability rights in Zambia are concerned include the following:
- Ministry of Community Development and Social Welfare;
- Zambia Agency for Persons with Disabilities (ZAPD);
- Concerned line Ministries – Education, Health, Justice;
- Disabled People’s Organisations (DPOs);
- Zambia Law Development Commission (ZLDC);
- Action on Disability Development (ADD);
- The Human Rights Commission;
- Opportunity Zambia (OZ);
- International Labour Organisation (ILO);
- Sight Savers International (SSI);
- Zambia National Federation of the Blind (ZANFOB); and
- Disability Rights Watch.
9.2 In the countries in Zambia’s region (Southern Africa) are DPOs organised/coordinated at national and/or regional level?
In Zambia, DPOs are organised at a national level. ZAFOD is the umbrella organisation representing several disabled persons organisations in Zambia. Its main activities include advocacy and awareness-raising. It also provides small loans to people with disabilities and training in small-scale business management. ZAFOD also coordinates all other DPOs in Zambia.
9.3 If Zambia has ratified the CRPD, how has it ensured the involvement of DPOs in the implementation process?
The main government agency responsible for promoting the rights of persons with disabilities and coordinating disability issues within government in line with article 33(1) of the CRPD is ZAPD. In addition to this, ZAPD engages directly with the Ministry of Justice on matters of legal advice while the Ministry of Community Development and Social Welfare provides policy guidance regarding the rights of persons with disabilities. It is unfortunate that not much has been reported on how well these government agencies have ensured the involvement of DPOs in the implementation process. Zambia is currently undergoing law review and revision and it is hoped that matters on the implementation of article 33(1) of the CRPD will be considered.
With regard to monitoring the Convention, ZAPD engages with DPOs and so far there has been no available report on any surveys that may have been conducted.
9.4 What types of actions have DPOs themselves taken to ensure that they are fully embedded in the process of implementation?
DPOs in Zambia often engage with government and its agencies on matters concerning the implementation of the CRPD either through the Ministry of Justice, or the Ministry of Community Development and Social Welfare. However, there are no reports or much information on the outcome of the engagement due to the fact that DPOs have limited resources and sometimes lack awareness on key issues to be addressed.
9.5 What, if any, are the barriers DPOs have faced in engaging with implementation?
Although the Zambian government has appointed disability focal point persons in all the ministries, most of them lack awareness of disability rights and the actual provisions of the CRPD. Furthermore, the framework within which they are supposed to operate has not been established. The Government has also established a Technical Committee to oversee the implementation process of domestication with the involvement of civil society and representatives from disability organisations.
The following are some of the barriers:
- lack of awareness amongst policymakers on the CRPD;
- lack of resources and technical capacity by DPOs to conduct research that can inform the implementation of the CRPD; and
- lack of a unified voice by DPOs (DPOs tend to organise by disability type and each DPO lobbies for issues which are more relevant to it).
9.6 Are there specific instances that provide ‘best-practice models’ for ensuring proper involvement of DPOs?
An example of ‘best practice model’ for ensuring the involvement of DPOs is the establishment of the Advancing Disability Equality Project (ADEPt) by ZAFOD with a view of facilitating the protection and promotion of the rights of persons with disabilities through strategic litigation aimed at setting up legal precedents on disability rights.50 ZAFOD identifies meritorious cases where the rights of persons with disabilities have been violated and transmits them to selected law firms for legal advice and possible prosecution before courts of law; ZAFOD mobilises financial resources to meet the legal costs of prosecuting such cases. In this way, persons with disabilities will not have to bear the high legal fees which often hinder commencement of disability rights litigation.
Further, the 7th National Development Plan places emphasis on a multi-sectoral approach to development anchored on the theme; ‘Accelerating development efforts towards the Vision 2030 without leaving anyone behind.’ This policy shift has potential to encourage inclusion of all people including persons with disabilities in the national development agenda.
9.7 Are there any specific outcomes regarding successful implementation and/or improved recognition of the rights of persons with disabilities that resulted from the engagement of DPOs in the implementation process?
As stated in 9.5 above there have not been any tangible outcomes due to the lack of awareness and resources which has affected the process of engagement and implementation.
9.8 Has your research shown areas for capacity building and support (particularly in relation to research) for DPOs with respect to their engagement with the implementation process?
The research has not revealed a very positive outcome with respect to engagement of DPOs in the implementation process. There is a great need for capacity building, awareness raising and improved resources in order to ensure better engagement in the implementation process.
9.9 Are there recommendations that come out of your research as to how DPOs might be more comprehensively empowered to take a leading role in the implementation processes of international or regional instruments?
Yes:
- Capacity building of DPOs;
- Better collaboration and engagement between DPOs and government agencies in all relevant implementation initiatives;
- Engagement between DPOs and the Human Rights Commission to broaden research, implementation strategies and lessons on field investigations and surveys;
- Encouraging research by DPOs in order to allow for evidence based information to be submitted to government agencies and all relevant stake holders; and
- Strategising on fundraising in order to improve on resources.
9.10 Are there specific research institutes in the region where Zambia is situated (Southern Africa) that work on the rights of persons with disabilities and that have facilitated the involvement of DPOs in the process, including in research?
No. However, the Open Society Initiative for Southern Africa has been a very crucial and key institution in the engagement of DPOs and facilitation of the
involvement of DPOs in the area of research and outreach particularly through extensive meetings and collaborations with ZAFOD, MHUNZA and other DPOs.
In addition, the Mental Health Advocacy Centre (MDAC) who conducted the first ever human rights investigation into mental health services in Zambia found that arbitrary detention and forced sedation and overcrowding (560 psychiatric beds in a country with a population of over 17 million people) characterized the treatment of most patients with mental health impairments.
10 Government departments
10.1 Does Zambia have a government department/departments that is/are specifically responsible for promoting and protecting the rights and welfare of persons with disabilities? If so, describe the activities of the department(s).
The Minister of Community Development and Social Welfare oversees the operations of the Zambia Agency for Persons with Disabilities (ZAPD). The Minister of Community Development and Social Welfare is therefore an important Ministry for the promotion and protection of the rights of persons with disabilities as ZAPD reports to the said Ministry. Further, the Ministry of Community Development and Social Welfare through the Department of Social Welfare implements social cash transfer which is meant to benefit vulnerable groups including persons with disabilities.
11. Main human rights concerns of people with disabilities in Zambia
11.1 Contemporary challenges of persons with disabilities in Zambia (for example, in some parts of Africa ritual killing of certain classes of PWDs, such as people with albinism, occurs).
The most common challenge faced in Zambia is the seclusion of persons with disabilities. Persons with disabilities are often excluded from society by their families and communities generally in the belief that they are cursed. This even affects their right to education because in most instances they are not taken to school. In addition, in some traditional set ups, rituals which may be harmful to a child’s health or physical body are conducted on children with disabilities in the belief that disabilities can be cured.
Persons with disabilities are also discriminated against with regard to access to employment opportunities. Access to quality jobs for many persons with disabilities is a huge challenge even where they possess the requisite qualifications.
11.2 Describe the contemporary challenges of persons with disabilities, and the legal responses thereto, and assess the adequacy of these responses to:
- Access to accommodation
The Constitution does not make specific provisions for the access and accommodation of persons with disabilities.
Suffice to state that prior to the enactment of the Constitution of Zambia (Amendment) Act No. 2 of 2016, economic, social and cultural rights were provided for under Part IX of the Constitution as part of “Directive Principles of State Policy”. This part of the Constitution was repealed and replaced by parts VII to XX of the aforementioned amendment. There is currently no express legal provision that defines or describes the status of economic, social and cultural rights in Zambia.
- Access to social security
Social security plays a very significant role in ensuring that persons with disabilities enjoy adequate standard of living on equal basis with others. This is more so as persons with disabilities are usually excluded from education, vocational training and employment. Section 36 of the Persons with Disabilities Act provides for the promotion of the right to social protection and adequate standard of living for persons with disabilities. However, provisions of the Constitutions that place a duty on the State to provide for social benefits are non-justiciable.
- Access to public buildings
Persons with disabilities often find it very difficult to be fully included in societal
activities owing to inaccessible public buildings. The plight of persons with physical disabilities and on wheelchairs was brought to the fore in the case of Sela Brotherton (suing in her capacity as National Secretary of the Zambia Federation of Disability Organisations) v Electoral Commission of Zambia.54 In that case, court proceedings were commenced among others, challenging the setting up of polling stations and voter registration centres in inaccessible public buildings. The Court found that there was discrimination as persons on wheel chairs excluded from fully participating in the electoral process.
Section 41 of the Persons with Disabilities Act provides that no person shall deny a person with disability access to any premises to which members of the public are ordinarily admitted and that the owner of such premises has an obligation to provide appropriate facilities to make the place accessible to person with disabilities. While provisions of the Persons with Disabilities Act protect the right of access to public places, provisions of the Constitution are compromised by their non-justiciability. At the same time, the Sela Brotherton v Attorney General case shows that it is possible for courts to recognise and enforce the right to accessibility.
- Access to public transport
Persons with disabilities are usually discriminated against due to the lack of assistive devices and other amenities necessary to enable to access public transport.
Generally, public transport vehicles and infrastructure are not equipped with assistive devices for instance, to allow a person on a wheel chair to board a bus or indeed voice recordings to announce when the bus or train approaches a particular station to enable a visually impaired person know when the bus or train reaches a particular station.
Barriers to access to public transport continue to be a challenge to persons with disabilities notwithstanding that section 42 of the Persons with Disabilities Act
provides that a person who provides a service (including public transport) to the public must put in place measures that the service available and access to persons with disabilities in prescribed manner. However, it is of concern that no regulations have been adopted to prescribe the manner in which the measures should be put in place in order to make public transport accessible to persons with disabilities.
- Access to education
Persons with disabilities are usually excluded from the education system. This is more so with respect to persons with intellectual and psychosocial disabilities who considered to be untrainable or simply denied education on the basis that there are not enough financial and other resources to for their education. There also very few specialised instructors or teachers to assist persons with disabilities at the level of primary, secondary or even tertiary education. Education facilities also lack infrastructure and other assistive devices necessary to reasonably accommodate persons with disabilities.
The Persons with Disabilities Act provides for the inclusive education at all levels and that the responsible Minister shall, in consultation with the Minister responsible for education come up with rules and guidelines to ensure that persons with disabilities are not excluded from the general education system on the basis of disability. The provisions relating to access to education are usually not applied in practice as there no prescribed guidelines or guidelines to ensure that persons with disabilities are included in the education sector.
- Access to vocational training
Persons with disabilities are usually have no opportunities to develop their vocational skills so as to make them self-sufficient economically. As result, persons with disabilities continue to rely on family members or social welfare, both of which have limited resources to adequately provide for persons with disabilities.
There are no express provisions in the Constitution and the Persons with Disabilities Act touching on the access to vocational training. The Technical Education and Vocational Training Act prohibits the refusal of admission to any institution established for purposes of vocational training on the basis of sex, race, tribe, place of origin, colour or creed. It is noteworthy that disability is not one of the listed grounds upon which refusal to admission is prohibited. This makes both the application and enforcement of access to vocational training very difficult.
- Access to recreation and sport
The Persons with Disabilities Act provides that a person with disabilities shall have the right to participate in recreational activities. However, there are no guidelines or rules as to how this right is to be realized or facilitated. Henceforth, persons with disabilities continue to be excluded from recreation and sporting activities.
- Access to justice
Persons with disabilities usually find it difficult to access the courts of law due to inadequate and inaccessible roads and buildings. Even where persons with disabilities, persons with disabilities actually access the physical court premises, they usually have to contend with the inaccessible court procedures which do not reasonably accommodate them. It is in this regard that section 8 of the Persons with Disabilities Act provide that the judicature shall take necessary measures to ensure that persons with disabilities have equal and effective protection of the law without discrimination. Further, section 9 requires law enforcement agencies to reasonably accommodate persons with disabilities during their interview, arrest, detention trial and confinement. In practice however, these provisions are largely ignored. Persons with disabilities have not been able to enforce the right to access to justice owing to the high costs of engaging legal practitioners to represent them and argue the high technical nature of access to justice.
- Access to health
The right to health is most important to persons with disabilities. The right to health like any other social, economic and cultural rights in Zambia is not justiciable. As such, there is no legal mechanism to compel government to ensure that persons with disabilities have access to quality health care services. The
Constitution is currently under review and this is one of the areas proposed to be included in the Constitution.
- Access to habilitation & rehabilitation
According to the World Health Organisation, habilitation refers to deliberate services put in place specifically targeting persons born with disabilities in an effort to make the environment suitable to their condition. Rehabilitation services on the other hand are targeted at persons who acquire disabilities.60 There are no measures or mechanisms in place for the promotion, availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation. The common practice amongst employers is that of retiring on medical grounds those who acquire disabilities while in employment. This has been a major concern amongst PWDs who have found themselves in similar situations as evidenced by the number of cases reported to the ADEPt project under ZAFOD.
- Access to participation in political and public life
Inaccessible infrastructure, transportation and information usually cause barriers to the participation of persons with disabilities on an equal basis with others.
People with hearing impairment particularly face communication barriers. For example, in many cases information is transmitted through radio stations. Such communication barriers hinder deaf people from participation in public life. Lack of Braille ballot papers means persons with visual impairments are dependent on a third party to cast their vote, which in itself overrides their right to a secret vote.
Some polling stations are not accessible to wheelchair users who also find it difficult to reach the ballot boxes that are usually placed too high. These and numerous other barriers serve to reinforce the exclusion and isolation of people with disabilities in political and public life, and, more generally, their participation in decision-making in all areas where their interests are affected in both their public and private lives.
11.3 Do people with disabilities have a right to participation in political life (political representation and leadership) in Zambia?
Yes. Persons with disabilities have the right to participate in political life. The challenges exist at a community level with respect to prejudices and stigmatisation. Further, the Electoral Commission of Zambia (ECZ) requires to more in streamlining electoral participation to ensure that there is equal participation by all eligible voters.
There is no restriction on the right based on disability.
11.4 Are people with disabilities’ socio-economic rights, including the right to health, education and other social services protected and realised in your Zambia?
Socio-economic rights are not enforceable in Zambia.
11.5 Specific categories experiencing particular issues/ vulnerability:
- Children with Disabilities
There is no legislation that specifically singles out disabled children for specific address. Zambian legislation instead deals with children in general, particularly with regards to the consideration of the best interests of the child. Children with disabilities fall under the Public Welfare Assistance Scheme (PWAS) which was established to protect vulnerable groups such as orphans, street and disabled children amongst others.
The most common challenge faced in Zambia is the seclusion of children with disabilities. Often families of the children exclude them from society in the belief
that it is a curse. This even affects their right to education because in most instances they are not taken to school. In addition, in some traditional set ups, rituals which may be harmful to a child’s health or physical body are conducted on children with disabilities in the belief that disabilities can be cured. See section 11.1 above.
- Women with disabilities
Women generally suffer discrimination and marginalisation in society whereby they are subjected to maltreatment and exploitation. Where women have disabilities they are especially vulnerable to abusive treatment such as rape and defilement. In some instances, the nature of their impairments makes it very difficult for them to seek redress.
- Other (for example, indigenous peoples)
Indigenous peoples, and people with albinism also suffer multiple discrimination arising from the peculiar circumstances. When such persons have impairments, they are usually subjected to multi-faceted discrimination.
12 Future perspective
12.1 Are there any specific measures with regard to persons with disabilities being debated or considered in your country at the moment?
- The Mental Health Bill of 2012
Although Zambia has a Mental Health Bill, there has been inordinate delay to table the Bill before parliament despite several assurances by the Government. The current status is that the Bill has been submitted by the Ministry of Health to the Ministry of Justice who should table it before parliament.
- The Disability Rights Course and the University of Zambia
The introduction of a Disability Rights Course at the University of Zambia is also a positive step which will ensure that students, who will eventually become practising lawyers and activists, will be well equipped with the knowledge and expertise to address matters concerning disability rights. The Course will start to be taught at the University to fourth year students in September 2014. In addition, the Legal Aid Clinic at the University of Zambia shall also contain a component on disability rights.
12.2 What legal reforms are being raised? What legal reforms would you like to see in your country? Why?
The Town and Country Planning Act of 1962, and the Housing (Statutory and Improvement Areas) Act, of 1975 have been repealed by the Urban and Regional Planning Act No. 3 of 2015. Section 5 (1) of the Urban and Regional Planning Act provides for integrated decision-making processes which requires among other things, consultation with relevant regulatory authorities including ZAPD which oversees the implementation of the Persons with Disabilities Act No. 6 of 2012 to ensure an efficient planning framework that takes into account the requirements for accessibility.
Further, Zambia should consider domesticating the International Labour Organisation (ILO) Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) which it ratified. The said Convention aims at securing vocational training and access to the labour market for persons with disabilities.
The constitutional review process was completed in 2016 and the Constitution of Zambia (Amendment) Act No. 2 of 2016 was passed into law. The said amendment provides for prohibited grounds of discrimination under Article 266 which includes disability. This is the first time that the Constitution has specifically made reference to disability as a ground for discrimination. Article 266 has also defined ‘person with disability.’
Given the main areas of concern discussed in the preceding paragraphs, the following are some of the main actions which I believe the government of the republic of Zambia must take into consideration:
- Having appointed disability focal point persons, Zambia should ensure that those appointed as focal point persons are knowledgeable about disability rights issues as promulgated in the CRPD;
- Zambia should ratify the Optional Protocol to the CRPD as soon as possible to show its commitment to fulfilling the promotion and protection of the rights and fundamental freedoms of persons with disabilities in Zambia;
- Government, through its specific ministries, should carry out awareness raising programmes to sensitise their officers on the provisions of the CRPD and disability rights in general;
- Government through its ministries must develop disability inclusive policies and laws that promote participation and involvement of persons with disabilities and reduce discriminatory practices at all levels of society;
- The enactment of a new Mental Health Bill that promotes and protects the rights and fundamental freedoms of mental health users should be expedited to replace the old discriminatory Mental Disorders Act. The new law should abolish involuntary admission and treatment of mental health users to Mental Health Institutions and focus on ensuring legal capacity and independent living for mental health users;
- The Ministry of Local Government, Early Childhood and Environment should quickly repeal the Town and Country Planning Act and Housing Act to put in place an inclusive law that will promote and ensure the protection of accessibility rights of persons with disabilities to public buildings, facilities and services, including roads.
- The Ministry of Education should review the present Educating Our Future Policy of 1996 to replace it with an Inclusive Education Policy that will promote provision of reasonable accommodation within the general education system and universal design of curriculum, learning materials and teacher training programmes. Such policy should be backed by inclusive education legislation;
- Government, through the Ministry of Health, should ensure, through policy, administrative and financial measures the facilitation for the provision of free medical care for persons with disabilities as close as possible to their homes. This should include access to HIV/AIDS and reproductive health services;
- Government should ensure the equal participation of persons with disabilities in the political and public life sector through provision of electoral policies and laws that recognise the need for persons with disabilities to exercise their rights participate in the electoral process directly or indirectly. This should include the recognition of the right to a secret ballot;
- The Ministry of Labour and Social Security should as a matter of urgency amend the Labour laws, especially the Employment Act, for the purposes of prohibiting discrimination on the basis of disability in employment; and
- Government should take deliberate measures including institutional, policy, legislative and financial measures, to ensure adequate provision of matters relating to the promotion and protecting of the rights and fundamental freedoms of women and children with disabilities.
- Government should consider another referendum to enhance the Bill of Rights to include economic, social and cultural rights. The referendum to expand Zambia’s Bill of Rights failed in 2016 due to many reasons which include combining the general election with the referendum and lack of adequate sensitization.
It is our view that Zambia still has a lot of work to be done in the promotion and protection of the rights of persons living with disabilities in Zambia. While it is acknowledged that some positive actions have been taken, there is still a lot to be done in achieving a level of participation and inclusion of persons with disabilities in Zambia on an equal basis with others.
There is need to identify and eliminate obstacles and barriers to accessibility in the physical environment, transportation and information communication technology and to provide training to DPO Inspectors on issues of accessibility by persons with disabilities.
Zambia is currently reviewing the Mental Health law to address such crucial matters as legal capacity and the right to independent living. This is a very crucial aspect in ensuring that Zambian laws on disability comply with the standards set out by the CRPD.
It is hoped that at the end of the constitutional review process, most of the matters of concern highlighted will be considered and addressed both at legislative and policy levels and that they will finally be incorporated in the Constitution.
It is hoped that cases will be brought before the courts of law in Zambia regarding disability rights because currently there are no landmark cases or reported judgments which can be referred to and there is need to train judges on matters concerning disability rights. There is very limited precedent and judgments often serve as a very useful source of law in Zambia.
https://www.lusakatimes.com/2018/01/15/mental-health-bill-ready-presentation-parliament- (Accessed on 14th December, 2018).
Section 31 (1) of the Education Act No. 23 of 2011. Available Online: http://41.77.4.164:6510/www.parliament.gov.zm/sites/default/files/documents/acts/Education%20Act%202011.pdf-(Accessed on 30th January, 2019).
7th National Development Plan (2017-2021) at 10.4.1 Strategy 1 on p. 94. Available online: http://extwprlegs1.fao.org/docs/pdf/zam170109.pdf- (Accessed on 12th December, 2018).
Zambia National Protection Policy at p. 11. Available online: https://www.social-protection.org/gimi/gess/RessourcePDF.action?ressource.ressourceId=54164 Accessed on 14th December, 2018.
Vision 2030 at p. 5- (Available online: http://unpan1.un.org/intradoc/groups/public/documents/cpsi/unpan040333.pdf- Accessed on 11th December, 2018).
Available online : http://www.parliament.gov.zm/sites/default/files/documents/amendment_act/Constitution%20of%20Zambia%20%20%28Amendment%29%2C%202016-Act%20No.%202_0.pdf- (Accessed on 10th December, 2018).
National Social Protection Policy of 2014 at p.5 under 2.3.1 (Available online: https://www.social-protection.org/gimi/gess/RessourcePDF.action?ressource.ressourceId=54164)- Accessed on 14th December, 2018.
Report of the Working Group on Zambia’s Universal Periodic Review dated 9th January, 2018. Available online:
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/005/26/PDF/G1800526.pdf?OpenElement-(Accessed on 18th December, 2018).
See Article 70 (2) (d) (disqualification of Members of Parliament; Article 83 (1) (b) (disqualification/removal of the Speaker or Deputy Speaker; Article 100 (2) (f) (disqualification for nomination as presidential candidate); Article 116 (3) (f) (disqualification of Ministers); Article 117 (2) (f) (removal of Provincial Ministers); Article 143 (a) (removal of a judge); Article 157 (2) (f) (removal of Councillors); Article 170 (2) (f) (removal of member of the House of Chiefs); Article 178 (1) (d) (removal of the Attorney-General; Article 179 (4) (d) (removal of the Solicitor-General) and Article 240 (f) (disqualification of members of commissions).
http://www.zamstats.gov.zm/phocadownload/2010_Census/2010%20Census%20of%20Population%20National%20Analytical%20Report.pdf
https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=ZMB&Lang=EN-(Accessed on 15th December, 2018).
The Ratification of International Agreements Act No. 34 of 2016. Available online: http://41.77.4.164:6510/www.parliament.gov.zm/sites/default/files/documents/acts/The%20Ratification%20of%20International%20Agreements%20Act%20No.%2034%20of%202016.pdf- (Accessed on 30th January, 2019).
https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC/C/ZMB/2-4&Lang=en-(Accessed on 17th December, 2018). See also; (https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16987&LangID=E) Accessed on 17th December, 2018).
Paragraphs 4 and 5 of the State Party report at p. 5 (Available online: https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC/C/ZMB/2-4&Lang=en)- (Accessed on 19th December, 2018).
Concluding Observations of the Committee on the Rights of the Child on Zambia’s combined second to fourth periodic reports. Available online : https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fZMB%2fCO%2f2-4&Lang=en-(Accessed on 19th December, 2018).