Uganda: Access to Courts for People with Mental Disabilities

Interviewer: "What do you think about the question on court forms which asks people if they are of sound mind?"

Respondent: "That question alone deters people with mental disability from going to court. You cannot access justice when such questions are asked in courts of law. It means that your verdict has already been decided."

Supreme Court of Uganda. Photo: Daily Monitor

Following on from our research last year on mental health and human rights in Uganda, MDAC today releases the findings of a six-month follow-up research study on access to courts and reasonable accomodations for people with mental disabilities. The study, based on interviews with people with mental disabilities, their carers and guardians, lawyers and judges, sets out some of the key barriers faced by people with mental disabilities in accessing justice in both civil and criminal procedures, and provides detailed recommendations for change.

• Access to Courts and Reasonable Acommodations for People with Mental Disabilities in Uganda - click here to download.
• Justice for People with Mental Disabilities in Uganda: A Proposal for Reform of Rules of Court - click here to download.

A second paper has also been developed on the need for reforming rules of court that discriminate against people with mental disabilities, and which deny them access to the courts. The second paper also proposes guidelines for amending rules of court in a way which implements rights set out under the UN Convention on the Rights of Persons with Disabilities (CRPD), and particularly the right to access justice enshrined in Article 13. Uganda ratified the CRPD in 2008, and next year will have its record scrutinised by the UN Committee on the Rights of Persons with Disabilities.

The study, which was conducted by Ugandan lawyer Simon Peter Odongoi during a fellowship placement with MDAC, highlights a number of areas where reform is needed, including:

• The use of outdated and discriminatory terminology such as "idiot", "persons of unsound mind" and "lunatic" in court papers and processes which entrench stigma;
• People with intellectual or psycho-social disabilities are legally denied the right to bring or defend cases and their evidence is deemed to lack credibility or refused;
• Some people with disabilities cannot navigate or understand the complex processes required to initiate or defend cases, and no support is provided to them to do so;
• Rigid application of rules of procedure in a way which is likely to deny substantive access to justice;
• Imposition of court fees discourages or prohibits people from claiming their rights through the courts;
• People with disabilities have their cases taken over by guardians ad litem or other substitute decision-makers, without the need for their consent; and
• People with disabilitiesare arbitrarily detained during criminal procedures, sometimes left to languish for decades in detention.

To respond to these problems, MDAC recommends that the Ugandan Government and judiciary take urgent steps to open up the courts to people with disabilities and guarantee their rights on an equal basis with others. Steps must be taken to dismantle the access to justice barriers faced by people with disabilities, we make a strong call for cases to be heard without undue regard to technicalities, as required under Article 126 of the Ugandan Constitution.

In order to assist this process, MDAC has proposed a set of guidelines for consideration when reforming Rules of Court, which govern the way the judges and courts operate. The focus is on ensuring equal access to justice through the provision of accommodations relevant to people with disabilities, including procedural accommodations. In addition, it is important that leadership at the highest levels improves the accessibility of the courts to all. Some of the detailed recommendations include:

• Ensure that Rules of Court give full recognition to the legal capacity of all persons with disabilities;
• Recognise the capacity to testify, including through alternative communication methods;
• Respect the presumption of innocence and guarding against discriminatory judging or sentencing;
• Codify and implement procedural accommodations relevant to persons with a variety of impairments;
• Adjust the way in which cross-examination and other forms of testimony are given to make the process less threatening; and
• Allow for evidence to be provided through interpreters, support-persons, and via video-link.

For further information, please get in touch: mdac@mdac.org.

Supported [in part] by a grant from the Open Society Foundations.