CHAPTER THREE
LEGAL IMPLICATIONS OF VARIOUS LAWS IN ZAMBIA RELATING TO PERSONS
WITH DISABILITIES IN AS FAR AS THE ELECTORAL PROCESS IS CONCERNED
3.0. INTRODUCTION
This chapters to discuss the legal implications of the Constitution (Amendment) Act No. 2 of
2016, The Electoral Process Act No. 35 of 2016, The Persons with Disabilities Act No. 6 of
2012, the High Court Judgment of 2011(Selah Brotherton v. ECZ) and various other laws
relating to persons with disabilities in as far as their participation in the electoral process is
concerned.
3.1. THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
The United Nations Convention on the Rights of Persons with Disabilities was adopted in
December 2006 and came into force on 3 rd May, 2008. Persons with disabilities consider the
Convention is a landmark piece of international human rights law. It represents the official
recognition of disability as a human rights issue on the international front. The UNCRPD
symbolises a radical paradigm shift in conceptualising disability from a medical and charity
model to a human rights and social model. It demands a move from viewing persons with
disabilities as objects of charity, medical treatment and social protection towards viewing
persons with disabilities as subjects with rights, who have the agency to claim these rights
and make meaningful decisions for their lives as active members of society (United Nations,
2010).
The CRPD is the first internationally binding human rights instrument to comprehensively
address the rights of persons with disabilities. The UNCRPD does not in any way create new
rights for persons with disabilities. It merely seeks to clarify the applicability of existing human
rights law in the specific context of disability. It shapes existing human rights law towards
addressing the attitudinal and environmental barriers persons with disabilities face.
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The CRPD looks at disability as resulting from the interaction of impairments with various
barriers which hinders full and active participation in society on an equal basis with the non-
disabled majority. This places the CRPD strongly within a social model, which is rights-based,
as opposed to a medical model of disability which involves health-oriented legislative
instruments. The UNCRPD embraces a social understanding of disability in which the societal
constraints and barriers hinder full participation of persons with disabilities and inclusion in
society. It looks at disability as not being caused by individual limitations but by the existing
barriers in society. It is this understanding that creates the conceptual platform for articulating
disability rights for persons with mental disabilities.
The UNCRPD avoids defining disability but in its preamble it recognizes it as an evolving
concept and that disability results from the interaction between persons with impairments and
attitudinal and environmental barriers that hinders their full and effective participation in society
on an equal basis with others.... In its Article 1, the Convention looks at Persons with
disabilities as including those who have long-term physical, mental, intellectual or sensory
impairments which in interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others. The Convention puts the blame on
attitudinal and environment barriers as the ones responsible for hindering persons with mental
disabilities from enjoying and exercising their rights on an equal basis with other persons. This
should be the basis of beginning to understand mental disability rights and how to address them
as we review and develop new laws or indeed as we promote and protect the rights of persons
with mental disabilities.
In view of the above, it is inevitable to state that the barriers cause exclusion and restriction in
participation in the electoral process, thus leading to discrimination. Article 2 of the UNCRPD
defines Discrimination on the basis of disability as any distinction, exclusion or restriction
on the basis of disability which has the purpose or effect of impairing or nullifying the
recognition, enjoyment or exercise, on an equal basis with others, of all human rights and
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fundamental freedoms in the political, economic, social, cultural, civil or any other field. It
includes all forms of discrimination, including denial of reasonable accommodation.
In the Convention reasonable accommodation means 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.
Article 3 (General Principles) of the CRPD outlines the following: respect for inherent dignity,
individual autonomy including the freedom to make ones own choices, and independence of
persons; non-discrimination; full and effective participation and inclusion in society; respect for
difference and acceptance of persons with disabilities as part of human diversity and humanity;
equality of opportunity; accessibility.... All these principles apply to persons with mental
disabilities when it comes to participation in the electoral process.
The general obligation part (Article 4) states that, States Parties undertake to ensure and
promote the full realization of all human rights and fundamental freedoms for all persons with
disabilities without discrimination of any kind on the basis of disability. To this end, States
Parties undertake: to adopt all appropriate legislative, administrative and other measures for the
implementation of the rights recognized in the present Convention; to take all appropriate
measures, including legislation, to modify or abolish existing laws, regulations, customs and
practices that constitute discrimination against persons with disabilities.
Article 5 of the CRPD is on equality and noon-discrimination. It says that States Parties
recognize that all persons are equal before and under the law and are entitled without any
discrimination to the equal protection and equal benefit of the law. It goes on to state that States
Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with
disabilities equal and effective legal protection against discrimination on all grounds.
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Article 12 is all about equal recognition before the law. This Article is interesting because it
emphasizes the fact that persons with disabilities have the right to recognition everywhere as
persons before the law. The Article states that States Parties shall recognize that persons with
disabilities enjoy legal capacity on an equal basis with others in all aspects of life. It further
says that States Parties shall take appropriate measures to provide access by persons with
disabilities to the support they may require in exercising their legal capacity. The exercise of
legal capacity applies to all persons with disabilities including those with mental disabilities.
The right to participate in public and political life is guaranteed in Article 29 of the CRPD.
Article 29 states that States Parties shall guarantee to persons with disabilities political rights and
the opportunity to enjoy them on an equal basis with others, and shall undertake to: ensure that
persons with disabilities can effectively and fully participate in political and public life on an
equal basis with others, directly or through freely chosen representatives, including the right and
opportunity for persons with disabilities to vote and be elected.... The Article says this could be
done by States ensuring that voting procedures, facilities and materials are appropriate,
accessible and easy to understand and use; protecting the right of persons with disabilities to vote
by secret ballot in elections and public referendums without intimidation, and to stand for
elections, to effectively hold office and perform all public functions at all levels of government,
facilitating the use of assistive and new technologies where appropriate. The Article goes on to
state that the States should ensure participation by guaranteeing the free expression of the will
of persons with disabilities as electors and to this end, where necessary, at their request, allowing
assistance in voting by a person of their own choice.
In applying our laws or in the process of reviewing our laws, we should always take into
consideration the spirit of the UNCRPD at all times. Persons with mental disabilities are
recognized by the CRPD as can be seen in Article 1 and all the principles and provisions of the
CRPD apply to them on an equal basis with other people.
3.2. ZAMBIA AGENCY FOR PERSONS WITH DISABILITIES
The Zambia Agency for Persons with Disabilities was established in 1996 through the
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repealed Persons with Disabilities Act of 1996. It was then continued through the new Persons with
Disabilities Act of 2012.
The Persons with Disabilities Act 20112 establishes the Agency though the title section
which states that:
An Act to continue the existence of the Zambia Agency for Persons with Disabilities and define
its functions and powers; promote the participation of persons with disabilities with equal
opportunities in the civil, political, economic, social and cultural spheres....
The Agency is established under the Ministry of Community Development, Mother and Child
Health.
The Agency is loaded with many functions. The Persons with Disabilities Act 2012 provides for
these functions. The functions of the Agency includes; to plan, promote and administer
services for persons with disabilities; to develop and implement measures to achieve equal opportunities
for persons with disabilities by ensuring , to the maximum extent possible, that they obtain education,
employment, participate fully in sporting, recreation and cultural activities and are afforded full access
to community and social services; and to promote research into all aspects of disabilities. The other
functions are to promote public awareness in all aspects of disabilities: to recommend to any state organ
or institution any measures to prevent discrimination against persons with disabilities: and to identify
provisions in any law that hinders the implementation of the Act, and any policies and national strategies
on disability and recommend necessary reforms to the government.
The Agency is headed by the Director General who is the Chief Executive Officer of the organization.
Under the Director General are different Directors which include Director of Administration and
Finance and Director of Research and Rehabilitation. Below these officers are several other officers
supporting the Directors. Each of the ten provinces has got a Provincial Coordinator with District
Coordinators in each of the districts. The Director General is answerable to the Guard. The Board elects
its own Chairperson and Vice Chairperson. The whole Board is appointed by the Minister of
Community Development, Mother and Child Health.
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The Agency is well placed since it is established by an Act of Parliament. It has such a structure that it
could coordinate all issues regarding to persons with disabilities. It is the focal point when it comes to
matters of coordinating the implementation of the UNCRPD. Therefore, the Agency carries the strength
to ensure elections in Zambia include persons with mental disabilities. However, the Agency has got
some weaknesses. The biggest challenge is that it wholly depends on funding from the State. It does not
in any way generate its own funds. The Agency also does not have any human resource to handle
coordination matters concerning persons with mental disabilities. It therefore has got no capacity to
champion law reforms which are inclusive of persons with mental disabilities.1
3.3. ELECTORAL COMMISSION OF ZAMBIA
The Electoral Commission of Zambia was established by the Electoral Act of 1991 which was repealed
by the Electoral Act of 2006 and later repealed by the Electoral Act of 2016. So, it is an independent
body established by an Act of Parliament.
The strength of the Commission is that it is an independent body established y an Act of Parliament. It
has the powers to make independent decisions when it comes to the inclusion of persons with mental
disabilities in elections. It also has got access to ZAPD another State organ mandated to advise. The
Commission is responsible for voter education and aiming of all voter educators and elections officers.
On the other hand, the Commission is weakened by the Electoral Act which discriminates persons with
unsound mind. The Commission does also not have human resource adequately trained on matters
concerning mental disability.
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3.4. PRESENTATION OF THE LAWS
3.4.1 The Constitution of Zambia
The Constitution of Zambia, in its Part II on citizenship (As amended by Act No. 18 of 1996)
explicitly denies citizenship to persons deemed as of unsound mind. In paragraph (2) of this Part,
the Constitution says, An application for registration as a citizen under this Article shall not be
made by or on behalf of any person who, under any law in force in Zambia, is adjudged or
otherwise declared to be of unsound mind.
PART III of the constitution focuses on the PROTECTION OF THE FUNDAMENTAL
RIGHTS AND FREEDOMS OF THE INDIVIDUAL but the protection of the right to personal
liberty is taken away 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 his care or treatment or the
protection of the community.
The constitution as amended in 1996 indicates under Part V 65, paragraph 1(b) A person shall
not be qualified to be elected as a member of the National Assembly if among other reasons,
that person is under any law in force in Zambia, adjudged or otherwise declared to be of
unsound mind. The law further goes on to disqualify an MP from remaining MP if he or she is
declared f unsound mind. The Constitution of Zambia further bars anyone who has been declared
of unsound mind from voting.
Part 13 of the constitution on chiefs and house of chiefs prohibits any traditional leader who is
declared as of unsound mind from being a member of the house of chiefs. It further bars anyone
who is declared of unsound mind to hold any other Constitutional office including that of the
President of the Republic.
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The current Constitution (Amendment) Act No. 2 of 2016 in article 45 is also very inadequate. It
provides, inter alia, as follows: (1) the electoral systems provided for in Article 47 for the
election of President, Member of Parliament or councillor shall ensure
(a) that citizens are free to exercise their political rights;
(b) universal adult suffrage based on the equality of a vote;
(c) fair representation of the various interest groups in society; and
(d) gender equity in the National Assembly or council.
3.4.2. The Electoral Process Act of Zambia
The Electoral Process Act No. 6 of 2016 is an Act to provide for a comprehensive process for
elections to the office of President and to the National Assembly; to empower the Electoral
Commission of Zambia in matters relating to elections and enable the Commission to make
regulations providing for the registration of voters and for the manner of conducting elections; to
provide for offences and penalties in connection with elections; to provide for the appointment of
conflict management officers; to provide for election petitions and the hearing and determination
of applications relating to elections to Parliament.
Section 7 (d) (Disqualification of registration as a voter) states No person shall be registered as
a voter, who...under any law in force in Zambia, is adjudged or otherwise declared to be of
unsound mind, or is detained under the Criminal Procedure Code during the pleasure of the
President.
Section 24 (a) (Special vote) in sub-paragraph (1) says that The Commission shall allow a
person to apply for a special vote if that person cannot vote at a polling station in the polling
district in which the person is registered as a voter, due to that persons physical infirmity or
disability or pregnancy.
The Electoral Act in its section 60 (2) (Assistance to certain voters) states that a person may
assist a voter in voting if the voter requires assistance due to a physical disability, the voter has
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requested to be assisted by that person and the presiding officer is satisfied that, that person has
attained the age of 18 years.
3.4.3 The Persons with Disabilities Act
The Persons with Disabilities is entitled as an Act to continue the existence of the Zambia Agency
for Persons with Disabilities and define its functions and powers; promote the participation of
persons with disabilities with equal opportunities in the civil, political, economic, social and
cultural spheres. Furthermore, it is an Act to provide for mainstreaming of disability issues as an
integral part of national policies and strategies of sustainable development; incorporate a
gender perspective in the promotion of the full enjoyment of human rights and fundamental
freedoms by persons with disabilities to the physical, social, economic and cultural environment,
and to health, education, information, communication and technology. The Act also to provide
for the regulation and registration if institutions that provide services to persons with disabilities
and organisation of, and for persons with disabilities; continue the existence of the National
Trust Fund for persons with disabilities; provide for the domestication of the convention on the
Rights of Persons with Disabilities and its Optional Protocol and other international instruments
on persons with disabilities to which Zambia is party, in order to promote, protect and ensure
the full and equal enjoyment of all human rights and fundamental freedoms by persons with
disabilities and to promote respect for their inherent dignity .
In Part 2, section (5) the Act states that every person has a duty to uphold the rights of persons
with disabilities and respect and safeguard the dignity of persons with disabilities. In section
(6) the Act gores on to state that a person shall not discriminate against a person with
disability. It also says that a person with disability shall not be deprived of the right to choose
their place of residence, to live with persons family or the right to participate in social,
political, economic, creative or recreational activities. In section 8 (1) the Act recognizes that
a person with disability shall enjoy legal capacity on an equal basis with others in all aspects
of life.
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Division 6 of the Persons with Disabilities Act is on public and political life. Section 51 states
that the minister shall take measures t ensure that the persons with disabilities effectively and
fully participate in the political and public life on an equal basis with others, directly or through
freely chosen representatives, including the right and opportunity for persons with disabilities to
vote and to be elected .
Sub-section (a) of section 51 gives powers to the Minister to allow persons with disabilities to
participate fully by ensuring that voting procedures, facilities and materials are appropriate,
accessible and easy to understand and use: and by (b) Protecting the rights of persons with
disabilities to vote by secret ballot in elections and public referenda without intimidation and to
stand for election, to effectively hold office and perform all public functions at all levels of
government, facilitate the use of assistive and new technologies, where appropriate.
3.4.4. Mental Disorders Act and the Mental Health Act Of 2019
The Mental Disorders Act of 1951 is old and it promotes the medical model of approaching
mental health services. It refers to persons with mental disabilities as idiots and imbeciles. It
further promotes the detention of people suspected to have mental disorders and may be a
danger to themselves and society. It does not allow them to participate in any of the public and
political life activities. It advocates for institutionalization in psychiatric centers.
The Mental Health Act of 2019 attempts to look at mental health from the social model point of
view. It brings out the right to supported decision making. It also promotes the right to legal
capacity and assisted decision making in accessing health services. It strongly advocates for
community mental health services thus allowing persons with mental disabilities to participate in
public and political life activities.
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