4(D). National laws


Zambian laws affecting the rights of people with mental health issues include the 1996 Constitution, the Mental Disorders Act 1951, the Health Profession Act 2009, the Persons with Disabilities Act 2012 and the Medicines and Allied Substances Act 2013. There is no case law relating to people with mental health issues, indicating the challenges which people face in accessing justice, and perhaps also the level of willingness of human rights NGOs, lawyers and judges to take seriously the rights of people with mental health issues.

The Constitution prohibits discrimination51 and sets out an absolute prohibition on torture or inhuman or degrading treatment or punishment.52 It sets out the right to liberty, but a person reasonably suspected to be of “unsound mind” can be detained. This contradicts the constitutional right to non-discrimination and provisions on the right to liberty set out in the CRPD. The ongoing constitutional review process provides an opportunity for rectification.

The Mental Disorders Act 1951 is a piece of legislation from colonial times which labelled people as mad, disregarding their views about how they wanted to conduct their life. This law uses the offensive (and legally meaningless) terms “mentally defective”, “idiots”, “feeble minded”, “imbeciles” and “moral imbeciles”, all of whom can be lawfully detained against their will in their own and society’s best interests.53 International human rights law, which Zambian governmental representatives have participated in developing, has thrown this outdated worldview into the dustbin of legal history.

To some extent the law has already been superseded by the 2012 Persons with Disabilities Act (PWDA), which states that its provisions “shall prevail to the extent of any inconsistency”.54 The PWDA expressly transmits CRPD obligations into domestic law. It refers to services needing to be as close as possible to people’s own communities. It sets out the primacy of informed consent, rehabilitation, independent living and employment. Its applicability may be unduly limited as it defines disability as a “permanent” impairment.55 This is more restricted than the CRPD, which refers to disabilities as including long-term impairments. Some people with non-permanent mental health issues may not be entitled to the protection of the PWDA, a point which could be challenged in the courts.

At the time of writing (June 2014), a Mental Health Bill is yet to be finalised. The process of writing the Bill has included the public, and consultations with mental health service users – a process to be commended. The Bill will likely repeal the Mental Disorders Act 1951. The Bill’s preamble provides for respect, autonomy, non-discrimination and the right to self-determination for people with mental health issues. It sets out a community-based approach to mental health provision, establishes rights and responsibilities of patients, ensures that mental health services are available in prisons, establishes a National Mental Health Commission and a Mental Health Tribunal. The Bill’s provisions apply to both government and private facilities and individuals including traditional healers, carers, health providers, mental health users and the community.56 Effective implementation of the law will require training of healthcare professionals and awareness-raising for everyone working in the formal and informal mental health systems.

The Health Professions Act 2009 requires doctors and nurses to be registered. It regulates their conduct by providing a code of ethics and establishing a disciplinary committee to which a person may lodge a complaint.57 The Medicine and Allied Substances Act 2013 requires registration and regulation of pharmacies, health shops, and medicines. It regulates the manufacture, import and export, possession, storage, distribution, supply, promotion, advertising, sale and use of medicines.58 Regulation of the formal mental health sphere makes the case more compelling for also regulating traditional healers who work outside any form of government regulation or control.

51 Constitution of Zambia, Article 23(1).

52 Ibid., Article 15.

53 In 2011 the parliamentary Committee on Health, Community Development and Welfare noted that “Stakeholders bemoaned […] the continued use of an out-dated piece of legislation, the Mental Disorders Act, 1951. They were of the view that the Act had contributed to the continued violation rather than promotion of human rights of people with mental disorders because it aims at safe-guarding members of the public from perceived dangerous, demonic possessed and sub-human persons with mental health problems.” Report of the Committee on Health, Community Development and Social Welfare for the Fifth Session of the Tenth National Assembly appointed on 23 September 2010.

54 Republic of Zambia, The Persons with Disabilities Act (PWDA), No. 6 of 2012, section 3.

55 Section 2, PWDA 2012.

56 Ibid., section 2.

57 Health Professions Act 2009, sections 60 and 61.

58 Medicines and Allied Substances Act, Part IV.

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