Legal capacity laws challenged

A landmark communication, described as the first to focus on the right to legal capacity for persons with psychosocial and intellectual disabilities in Africa, has been submitted to the African Commission on Human and Peoples’ Rights. According to a statement by the Southern Africa Litigation Centre (SALC), it follows on from the commission’s Purohit and Moore v The Gambia 2003 decision, where the complainants submitted a complaint alleging that the provisions of the Lunatic Detention Act and the manner in which ‘mental patients’ were being treated amounted to a violation of various provisions of the African Charter on Human and Peoples’ Rights. This latest communication urges the African commission to affirm the right of all persons with disabilities to autonomy and dignity. The communication also challenges Section 4 of the Zambia Mental Health Act, which allows for substituted decision-making for persons with psychosocial and intellectual disabilities, effectively denying them the right to legal capacity and equal recognition before the law. Despite asserting the right to legal capacity in principle, the Act simultaneously allows courts to override individuals’ decisions if they are deemed to lack ‘mental capacity,’ violating the will and preferences of the individual. Having exhausted all domestic legal remedies, the SALC says the matter now moves to the African Commission. The complainants, the Validity Foundation, together with the Mental Health Users Network of Zambia and Disability Rights Watch, with the technical support of the International Commission of Jurists and the SALC, argue that Zambia’s legal framework violates not only its constitutional guarantees but also its binding obligations under the UN Convention on the Rights of Persons with Disabilities and the African Charter.