The Sunday Mail
Disability Issues
Dr Christine Peta
IN this article I focus on Section 3.20 of the National Disability Policy that was launched by President Mnangagwa on June 9 last year. Section 3.20 addresses the subject of equal recognition before the law. Here are the contents of the section:
3.20.1 Persons with disabilities must be recognised everywhere as persons before the law.
3.20.2 Substituted decision-making such as guardianship or curatorship is prohibited.
3.20.3 Supported decision-making must be upheld.
3.20.4 Infrastructure within the entire justice delivery system must be accessible to persons with all kinds of disabilities.
3.20.5 Persons with disabilities must enjoy legal capacity on an equal basis with others in all aspects of life. All provisions and practices that deny or restrict the exercise of legal capacity by persons with disabilities should be eliminated, including with respect to health, family, financial affairs and political participation.
3.20.6 Persons with disabilities must be timeously provided with the support they may require in exercising their legal capacity.
3.20.7 Ensure all measures that relate to the exercise of legal capacity and the provision of support provide for appropriate and effective safeguards in supported decision-making to avoid the abuse of persons with disabilities within the justice delivery system.
3.20.8 Within the context of providing supported decision-making, ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person.
3.20.9 Supported decision-making must be free of conflict of interest and undue influence, and it must be proportional and tailored to the person’s circumstances.
3.20.10 Supported decision-making arrangements must apply for the shortest time possible and they must also be subject to regular review by a competent, independent and impartial authority or judicial body.
3.20.11 Supported decision-making arrangements must be proportional to the degree to which such measures affect the person’s rights and interests.
3.20.12 All appropriate and effective measures must be taken to ensure the equal right of a person with disabilities to own or to inherit property and not to be arbitrarily deprived of his or her property.
3.20.13 All appropriate and effective measures must be taken to ensure that persons with disabilities control their own financial affairs and they have equal access to bank loans, mortgages and other forms of financial credit.
So what does it all mean?
Persons with disabilities must be recognised everywhere as persons before the law. This provision is important. For instance, in a large number of nations across the world, persons with disabilities are not allowed to make reports to the police, to take oath or to testify in courts of law.
The reason is that officials usually assume that persons with disabilities are either confused or they could be part of some mix-up.
Nonetheless, persons with disabilities in Zimbabwe are not prohibited from making police reports, or to participate in other justice delivery processes, including in the courts of law.
But research has shown the need to strengthen the capacity of the justice delivery system in relation to how to handle cases of persons with different kinds of disabilities, that comprise physical, mental, intellectual and sensory impairments.
Albinism and epilepsy are also regarded as disabilities in Zimbabwe.
In upholding the principle of supported decision-making, the primary consideration is that the person with disabilities must be provided with the support they require. This may include assistive devices and other people such as sign language interpreters, family members, co-workers or friends.
But ultimately, persons with disabilities must be the ones who make the final decisions about their own lives.
In any case, supported decision-making is a tool that allows persons with disabilities to retain their decision-making capacity by choosing supports to help them make choices.
The supporters agree to help the person with disabilities to understand, consider and communicate decisions, giving the person with disabilities the tools to make his or her own informed decisions.
The abilities of a person with disabilities are based on what he or she can do both alone and with supports.
The person with disabilities can modify the supports that he or she needs and the supporters who provide these, as he or she continues to learn and develop decision-making skills.
Persons with disabilities have a right to change the supports they require any time they want, without having to first engage in a court process to do that.
With regards to substituted decision-making, under which decisions are made on behalf of persons with disabilities who may be lacking in capacity, a guardian, for example, may make the final decisions about the life of a person with disabilities.
The risk is that the decisions made by the guardian may be in their interests and not of the person with disabilities.
In Zimbabwe, research has indicated that some persons with disabilities are ‘thrown’ out of homes they inherit from their late parents, as family members without disabilities take over residency of such properties. This renders persons with disabilities destitute.
There is, therefore, a need for all of us to realise that persons with disabilities have an equal right to own or to inherit property.
The United Nations Convention on the Rights of Persons with Disabilities, which Zimbabwe ratified in September, 2013, seeks to afford persons with disabilities, including persons with mental disabilities, the right to self-determination as far as possible.
Dr Christine Peta is a disability, policy, international development and research expert, who is the National Director of Disability Affairs in Zimbabwe. She can be contacted on: [email protected]
