SALC is supporting a petition by three persons with psychosocial disabilities and the Mental Health Users Network of Zambia (MHUNZA) to repeal the Mental Disorders Act of 1949 in Mwewa and Others v the Attorney General and Others. The Petitioners argue that the Act unconstitutionally infringes on the rights to dignity, liberty and to freedom from discrimination of persons with mental disabilities and denies persons with mental disabilities the protection of the legal capacity as required by the 2012 Persons with Disabilities Act. This is due, amongst others, to the following features of the Mental Disorders Act:
- it’s use of discriminatory and derogatory language to describe and categorise persons with mental disabilities;
- its sanction of detention of persons with disabilities on grounds of their disability, including in criminal detention facilities;
- it’s permissions of psychiatric treatment without informed consent;
- it’s denial of legal capacity to persons with mental disabilities without equal and effective protection of the law; and
- the creation of a two-tier healthcare system depriving persons with mental disabilities with access to mental healthcare services at primary healthcare level and failing to provide adequate and appropriate healthcare and rehabilitation.
The petitioners pray for:
- a declaration that the Mental Disorders Act is unconstitutional and incompatible with the Persons with Disabilities Act and therefor invalid;
- a declaration that persons with mental disabilities enjoy the same right to informed consent to treatment and admission to healthcare facilities as all other persons;
- a declaration that the detention of persons with mental disabilities on the grounds of their disability is unlawful; and
- an order directing the Zambia Agency for Persons with Disabilities to monitor the enforcement of the judgment and report to the Court on its enforcement.
The Petitioners are represented by Ms Chipo Nkhata and Ms Felicity Kalunga of Mushota and Associates.
Disability Rights Watch has been admitted as amicus curiae (friend of the court). Disability Rights Watch is represented by Mr Katindo Mwale and Mr Brian Mwanza of the Legal Resources Foundation.
High Court Papers: