MIDLANDS STATE UNIVERSITY
FACULTY OF LAW
The right to legal capacity for women with intellectual disabilities, in accessing
reproductive healthcare services in Zimbabwe.
BY
CYNTHIA SOPHIA SIYAMALILA
REGISTRATION NUMBER: R179097T
A dissertation submitted to Midlands State University in partial fulfilment of the requirements
of the Master of Laws (Constitutional and Human Rights Law) Degree.
SUPERVISOR: MR. MANDIPA
MIDLANDS STATE UNIVERSITY
(2018)
Name of Supervisor: MR. E MANDIPA
APPROVAL FORM
The undersigned certify that they have read and recommend to the Midlands State University
for acceptance a research project for the purposes of examination entitled;
“THE RIGHT TO LEGAL CAPACITY FOR WOMEN WITH INTELLECTUAL
DISABILITIES, IN ACCESSING REPRODUCTIVE HEALTHCARE SERVICES IN
ZIMBABWE”
Submitted by CYNTHIA SOPHIA SIYAMALILA R179097T in partial fulfilment of the
requirements for the Award of the Master of Laws (Human Rights and Constitutional Law) of
Midlands State University.
……………………………….
SUPERVISOR
……………………………….
SIGNATURE
DATE: 12 NOVEMBER 2018
i
PLAGIARISM DECLARATION
By submitting this thesis, I CYNTHIA SOPHIA SIYAMALILA do hereby declare that, the
entirety of the work contained therein is my own, original work, that I am the owner of the
copyright thereof (unless to the extent explicitly otherwise stated) and that I have not previously
in its entirety or in part submitted it for obtaining a qualification.
DATE: 12 NOVEMBER 2018
SIGNED:
……………………………………
CYNTHIA SOPHIA SIYAMALILA
ii
ACKNOWLEDGEMENTS
I want to acknowledge my supervisor Mr Mandipa for your guidance, constructive criticism
and encouragement thought this research.
Special acknowledgment goes to my family, Kunashe and Daddy for your undying support
and understanding for all the lost time.
iii
LIST OF ACRONYMS
ACHPR-
African Charter on Human and People’s Rights
AIDS-
Acquired Immunodeficiency Syndrome
CRPD-
Convention on the rights of Persons with Disabilities
CEDAW-
Convention on the Elimination of all forms of Discrimination against
Women
DPA-
Disabled Persons Act
ECHR-
European Convention on Human Rights
EU-
European Union
HIV-
Human Immunodeficiency Virus
ICPD-
International Conference on Population Development
ICCPR-
International Convention on Civil and Political Rights
MHA-
Mental Health Act
MoHCC-
Ministry of Health & Child Care
MTP-
Medical Termination of Pregnancy Act
PWD-
Persons with Disabilities
PWIDs-
Persons with Intellectual Disabilities
STI-
Sexually Transmitted Infection
SADC-
Southern African Development Community
UNDHR -
Universal Declaration of Human Rights
WHO-
World Health Organisation
WWDs-
Women with Disabilities
WWIDs-
Women with Intellectual Disabilities
iv
Table of Contents
APPROVAL FORM………………………………………………………………………......i
PLAGIARISM DECLARATION…………………………………………………………….ii
ACKNOWLEDGEMENT……………………………………………………………………iii
LIST OF ACRONYMS………………………………………………………………………iv
TABLE OF CONTENTS……………………………………………………………………..v
ABSTRACT…………………………………………………………………………………viii
1 CHAPTER 1
1.1 Introduction………………………………………………………………………………..1
1.2 Background to the Study…………………………………………………………………...4
1.3 Statement of the problem…………………………………………………………………..8
1.4 Research Question……………………………………………………………………........8
1.5 Methodology……………………………………………………………………………… 9
1.6 Significance of the Study…………………………………………………………………10
1.7 Delimitation………………………………………………………………………………11
1.8 Assumption……………………………………………………………………………….11
1.9 Literature Review………………………………………………………………………...11
1.10 Chapter Synopsis…………………………………………………………………......11
2 CHAPTER 2
2.1 Introduction………………………………………………………………………………15
2.2 Defining Disability……………………………………………………………………….17
2.2.1 Medical Model……………………………………………………………………….17
2.2.2 Social Model…………………………………………………………………………18
2.2.3 Human Rights Model………………………………………………………………...19
2.3 Women with Intellectual Disabilities…………………………………………………….19
2.4 Conceptualisation of Legal Capacity……………………………………………………..20
2.4.1 Outcome Based Approach…………………………………………………………....21
2.4.2 Functional Approach………………………………………………………………....21
2.4.3 Status Approach………………………………………………………………………22
2.4.4 A critique of the Approaches…………………………………………………………22
2.4.5 The New Approach: Supported Decision-making Model…………………………….23
2.4.6 Capacity and Autonomy………………………………………………………….......24
2.5 Differentiating Legal from Mental Capacity……………………………………………...25
2.6 Historical Trajectory of the right to Legal Capacity in Zimbabwe……………………….25
2.7 Legal Capacity at International Level…………………………………………………….26
2.8 Legal Capacity at Regional Level………………………………………………………...28
2.8.1 African Regional System…………………………………………………………......28
2.8.2 European Human Rights System…………………………………………………......30
2.8.3 Inter-American Human Rights System……………………………………………….31
2.9 Legal Capacity in Zimbabwe…………………………………………………………......31
2.10 Challenges in access to reproductive healthcare services by WWIDs……………….32
2.11 Conclusion…………………………………………………………………………....34
3 CHAPTER 3
3.1 Introduction………………………………………………………………………………36
3.2 The Legal Framework…………………………………………………………………….38
3.2.1 Constitution of Zimbabwe…………………………………………………………....38
v
3.2.2 Disabled Persons Act…………………………………………………………………41
3.2.3 Mental Health Act…………………………………………………………………….43
3.2.4 Health Services Act…………………………………………………………………..44
3.2.5 Medical Services Act…………………………………………………………………45
3.3 Zimbabwe’s Policy Framework…………………………………………………………..46
3.3.1 Draft National Disability Policy……………………………………………………...46
3.3.2 National Reproductive Health Policy 2006…………………………………………..48
3.3.3 National Population Policy1999……………………………………………………...49
3.3.4 Mental Health Policy 2004…………………………………………………………...50
3.4 Conclusion………………………………………………………………………………..50
4 CHAPTER 4
4.1 Introduction………………………………………………………………………………53
4.2 Legal Framework of India………………………………………………………………...55
4.2.1 Constitution of India………………………………………………………………….55
4.2.2 Mental Health Act 2017………………………………………………………………55
4.2.3 National Trust Act………………………………………………………………........59
4.2.4 The Rights of Persons with Disabilities Act 2016………………………………........60
4.2.5 Medical Termination of Pregnancy Act 1971………………………………………...63
4.3 Indian Policy Framework…………………………………………………………………63
4.3.1 National Policy for Persons with Disabilities 2006…………………………………..63
4.3.2 National Health Policy 2017………………………………………………………….64
4.3.3 National Mental Health Policy 2014………………………………………………….64
4.4 Case Law Analysis………………………………………………………………………..65
4.5 Conclusion………………………………………………………………………………..66
5 CHAPTER 5
5.1 Introduction………………………………………………………………………………68
5.2 Summary of Research Findings………………………………………………………….70
5.2.1 Zimbabwe’s Legal Framework………………………………………………………70
5.2.2 Substituted Decision-making as opposed to Supported Decision-making…………...71
5.2.3 Flawed Policy Framework…………………………………………………………...71
5.2.4 On a comparative basis………………………………………………………………72
5.3 Specific Recommendations………………………………………………………………72
5.3.1 Constitutional Reforms………………………………………………………………72
5.3.2 Substitution of the DPA into a new Act……………………………………………...73
5.3.3 Amendments to the MHA……………………………………………………………73
5.3.4 Amendments to the Health Services Act……………………………………………..73
5.3.5 Proposed changes to the Medical Services Act ……………………………………...74
5.3.6 Specific amendments to polices……………………………………………………...74
5.4 General Recommendations………………………………………………………………74
5.4.1 Domestication and Implementation of the CRPD……………………………………74
5.4.2 Awareness raising……………………………………………………………………75
5.4.3 Trainings of Service Providers……………………………………………………….75
5.4.4 Adoption of a National Policy on Disability…………………………………………76
5.4.5 Adoption of a specific Capacity Act…………………………………………………76
5.5 Conclusion………………………………………………………………………………..76
vi
6 BIBLIOGRAPHY………………………………………………………………………81
6.1 Legislation Treaties & Policy…………………………………………………………….81
6.2 Books……………………………………………………………………………………..82
6.3 Case Law…………………………………………………………………………………82
6.4 Journal Articles…………………………………………………………………………. 82
6.5 Chapters in Books………………………………………………………………………. 84
6.6 General Comments……………………………………………………………………….84
6.7 United National Documents……………………………………………………………...85
6.8 Online Legal Articles…………………………………………………………………….86
6.9 Unpublished Theses ……………………………………………………………………..87
6.10 Newspaper Articles…………………………………………………………………..87
6.11 Reports, Presentations and other Materials…………………………………………..87
vii
ABSTRACT
The problem that informed this research is that, Women with Intellectual Disability (WWIDs)
in Zimbabwe are being denied the right to legal capacity in accessing reproductive healthcare
services. WWIDs in Zimbabwe do not have autonomy to make decisions about their
reproductive healthcare. Zimbabwe follows a system of guardianship whereby the decisionmaking authority is vested in guardians who make binding decisions for WWIDs. In the
International arena there is a paradigm shift brought about by Article 12 of the Convention on
the Rights of Persons with Disabilities (CRPD) of a universal right to legal capacity. The right
to legal capacity is not available to WWIDs in Zimbabwe. Although Zimbabwe ratified the
CRPD in 2013, it has not yet domesticated or secured a plan to implement it. Reproductive
healthcare services are inaccessible to WWIDs and Zimbabwe is falling short of its
international obligations. The Zimbabwean legal and policy framework analysed in this
research exposes many gaps in law and policy. Most of the laws in force in Zimbabwe still
follow the Medical Model of Disability which has since been overtaken by the Human Rights
Approach embodied by the CRPD. Although the Constitution now follows the Human Rights
Approach, it still does not comply with the CRPD. Laws like the Mental Health Act (MHA)
still contain provisions which allow for substituted decision-making for PWIDs. It also allows
guardians to approach the High Court for orders allowing involuntary sterilisation of WWIDs.
Furthermore, the Disabled Persons Act (DPA) does not address the issue of access to
reproductive healthcare by WWIDs. In terms of policy, there is lack of recognition of WWIDs
and the high level of support they require to access reproductive healthcare. There is a wave of
change in many countries especially considering the adoption of the CRPD to amend laws and
policies in line with the CRPD. On a comparative basis, the Indian legal system is analysed in
this research. India has enacted statutes that provide for a system of Supported Decisionmaking. WWIDs in India have greater control of their fertility as they only get support and
make the decisions themselves. Considering the gaps exposed in the Zimbabwean legal and
policy frameworks, it is recommended that Zimbabwe should amend its Constitution to include
the right to legal capacity for PWDs. The DPA should be repealed in its entirety and be
substituted with a new Act that is in line with the CRPD. The MHA should be amended to
remove guardianship provisions and substitute them with provisions of supported decisionmaking. On a general note it is also recommended that Zimbabwe should domesticate and
implement the CRPD. Furthermore, the State should fund awareness raising programmes so
that the rights of PWDs are made known. The State should also facilitate the training of service
providers to equip them on how best to serve PWDs. Once the suggested recommendations are
implemented WWIDs will be able to realise their right to legal capacity in accessing their
reproductive healthcare rights.
viii
CHAPTER 1
1.1 Introduction
It is trite that historically, women have been marginalised and discriminated by societal
perceptions and the law.1 The situation is even worse for Women with Intellectual Disabilities
(WWIDs) who are discriminated on multiple grounds which may include age, gender and
intellectual disability. In the end, WWIDs experience greater restrictions, limitations and denial
of their right to make decisions for themselves and to have those decisions respected by others.2
In many African countries including Zimbabwe, women’s autonomy to exercise reproductive
health choices for instance, is often undermined by cultural and religious practices as well as
societal attitudes and beliefs about the incapability of women to make sound decisions.3
Furthermore, legal and policy frameworks uphold the substituted decision-making model and
fails to address the double jeopardy suffered by WWIDs who are disadvantaged, because they
are women who also have a disability.
Even though the Constitution of Zimbabwe4 now includes a rights provision for PWDs, in
Section 83, it does not state whether WWIDs have the capacity to self-regulate their
reproductive rights. Although the constitution of Zimbabwe was adopted before Zimbabwe had
ratified5 the Convention on the Rights of Persons with Disabilities (CRPD),6 the drafters of the
Constitution were ignorant to the dominant international standards embodied by the CRPD
1
World Program of action concerning Disabled Persons, Report of the Secretary General, 15 September 1982,
A/RES/37/Add.1, para II/2/45,30.
2
C. Fromader, & S. Ortoleva, ‘The sexual and reproductive rights of women and girls with disabilities’ (2013)
Issue Papers Conference on Human Rights 3.
3
T. Choruma ‘The forgotten tribe: People with disabilities in Zimbabwe’ (2006) London: Progressio Unit 3.
4
Constitution of Zimbabwe, Amendment No.20 of 2013.
5
23
September
2013
Available
Office
of
the
High
Commissioner
(OHCHR)
tbuinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?Treaty=CRPD&Lang=en
6
Convention on the Rights on Persons with Disabilities (CRPD).
1
after five years of its inception, hence the aspects of legal capacity should have found their way
into the Constitution.
The primary legislation that addresses disability issues in Zimbabwe is the Disabled Persons
Act (DPA).7 The Act does not effectively deal with the plight of WWIDs as it is couched in
the Medical Model of disability, which considers the issues of competence and cognitive
functions or mental capability of a person in order for them to be deemed as having the capacity
to make decisions. In addition, the Act does not provide for the right to legal capacity.
Other laws that address disability issues in Zimbabwe are the Mental Health Act,8 the Medical
Services Act and Health Services Act, and all of them do not address the legal capacity of
WWIDs. On its part, the Mental Health Act is virtually silent on the decision-making capacity
of WWIDs but refers to the assignment of decision-making authority to other persons to make
decisions regarding the reproductive health of WWIDs.
The emerging laws in Zimbabwe particularly the Public Health Amendment Act,9 buttresses
the substituted-decision making model in complete disregard of the right legal capacity.
In the policy arena, the National Reproductive Health Policy of Zimbabwe10 does not capture
the reproductive needs of WWDs as well as address their capacity to self-regulate their fertility.
The Draft National Disability policy11 also makes no reference to legal capacity of WWIDs.
On the regional level, the recently adopted Protocol to the African Charter on Human and
Peoples’ rights on the Rights of Persons with Disabilities in Africa (The Protocol)12 is the
principal instrument that addresses disability issues specifically for PWDs in Africa. The
7
Disabled Persons Act [Chapter 17:01].
Mental Health Act [Chapter 15:12].
9
Public Health Act 2018 [Chapter 15:17].
10
National Reproductive Health Policy of Zimbabwe 2006.
11
Draft National Disability Policy 2017.
12
Protocol to the African Charter on Human and Peoples’ Rights on the rights of Persons with Disabilities in
Africa 2018.
8
2
Protocol guarantees the right to legal capacity and further recognises the autonomy of WWIDs
to control their fertility.
On the international level the right to legal capacity is provided for in Article 12 of the CRPD.
The right is guaranteed and is non-derogable, thus no law or policy can limit the exercise of
the right with respect to PWDs. With the coming in of the CRPD, there was a radical shift from
the Medical Model of disability to the Socio-Human rights Model of disability. Zimbabwe has
ratified the CRPD13 and its optional Protocol14 without reservations. Thus, its legal and policy
frameworks should reflect the standards as set by the CRPD.
Recognising and respecting the legal capacity of WWIDs is an important measure towards
advancing human rights protection in every community.15 Without legal capacity WWIDs
cannot make decisions with legal force.16 They cannot exercise any other rights if they do not
have legal capacity. The importance of the right to legal capacity also lies in the fact that it is
inextricably interlinked with the right to equality and non-discrimination. The denial of the
right to legal capacity therefore results in discrimination of WWIDs as they are not treated
equally with their non-disabled counterparts. To ensure that WWIDs realise their right to legal
capacity and that their decisions are acceptable at law, all discriminatory laws and policies
should be expunged. The State should ensure the equal treatment of WWIDs in Zimbabwe and
the equal exercise of the right to legal capacity by all women despite the existence of a
disability.
This research analyses the laws of Zimbabwe considering the realisation of the right to legal
capacity by WWIDs as full rights holders who can make informed decisions concerning their
13
OHCHR (n 5 above).
OHCHR (n 5 above).
15
Mental Disability Advocacy Centre (MDAC) ‘The right to legal capacity in Kenya’ (2014) Available at
www.mdac.ifo/kenya (Accessed on 17 June 2018).
16
Commissioner for Human Rights ‘WHO GETS TO DECIDE? Right to legal capacity for persons with
intellectual and psychosocial disabilities’ (2012) CommDH/issuePaper (2012)2 Available at
www.commissioner.coe.int (Accessed on 16 June 2018).
14
3
reproductive health and that the denial of that legal capacity results in reproductive health rights
being inaccessible for WWIDs. The research also explores the reasonable accommodations in
the form of the support to be provided by the State where necessary to ensure the full enjoyment
of the right to legal capacity by WWIDs when making decisions about their reproductive health
and accessing reproductive healthcare services in Zimbabwe.
1.2 Background to the study
Although the number of WWIDs in Zimbabwe is not certain, according to Manyatera and
Mandipa, in 2013 the recorded national disability prevalence was 2.9% of the total population,
of which 55% were women as opposed to 45% men,17 showing that the disability prevalence
for women is higher than that of men. Therefore, WWDs are the most vulnerable of PWDs as
their disability intersects with their gender. In a patriarchal environment like Zimbabwe;
women’s issues are not given much attention resulting in the invisibility of WWDs. In
accessing reproductive healthcare rights, there are no formally published statistics, although
the assumption is that due to the higher disability prevalence of women than men, more
WWIDs might be experiencing challenges in accessing their reproductive healthcare rights.18
In a survey conducted by the Ministry of Health in 2013,19 four (4) out of the ten (10) WWDs
interviewed were either married or in a relationship. Of the total WWDs interviewed, 84% had
children. This dispels the misconception that WWDs are asexual beings20 and as such they
should be afforded protection by the law especially in accessing their reproductive health
17
G. Manyatera and E. Mandipa Zimbabwe (Country Reports) (2014) African Disability Rights Yearbook.
“DIWA to carry out a baseline survey on access to SRH services for women and girls with disabilities” Disabled
Women in Africa 23rd December 2015 Available at www.diwa.ws/?p=8 (Accessed on 16th February 2018).
19
Ministry of Health and Child Welfare “Living conditions among PWD Survey Key Findings Report” (2013)
UNICEF.
20
C. Peta ‘Disability is not asexuality; The childbearing experiences and aspirations of Women with disabilities
in Zimbabwe.’ (2017) Taylor & Francis Online.
18
4
rights. In that regard, reproductive healthcare services should be accessible to WWIDs on an
equal level with their non-disabled counterparts.
In Zimbabwe, issues of capacity of WWIDs have not been given much attention. A closer look
at the laws of Zimbabwe, especially the Constitution, shows that the drafters were not informed
by the standards set by the CRPD.21 Although the Constitution provides for the rights of PWDs,
it does not articulate the rights-based approach to disability as stipulated by the CRPD which it
voluntarily sought to be bound by. WWIDs continue to suffer discrimination because they are
not considered as persons with legal capacity by the law. The Public Health Act22 clearly
ignores the rights of PWDs and emphasises that there are persons who are incapable of giving
informed consent to treatment. This view is premised on the Medical Model of disability which
has now become obsolete in the disability discourse. It is also not in line with the spirit and
purpose of the CRPD which does not emphasise on the competence of WWIDs, but the
individual autonomy of the woman to make decisions for herself and the support to be given
when needed in some instances by the woman to make informed decisions.23
Zimbabwe is often praised as one of the first African countries to enact legislation that
addresses disability issues, in the form of the DPA.24 Among its many shortcomings, is the fact
that the Act has now become obsolete especially considering the global trends in the disability
discourse. It is premised on the Medical Model of disability and does not articulate the rights
of PWDs. The position in Zimbabwe is that autonomous decision-making is contingent upon
the decision-making capacity of the individual to make relevant decisions. For instance, the
MHA25 is silent on consent to treatment of PWIDs. The decision for treatment can only be
21
Constitution of Zimbabwe (n 4 above).
Public Health Act (n 9 above).
23
E. Flynn “From rhetoric to action: Implementing the UN Convention on the rights of Persons with Disabilities”
(2011) Cambridge University Press, New York.
24
Disabled Persons Act (n 7 above).
25
Mental Health Act (n 8 above).
22
5
made on their behalf. The question of competence is premised on their cognitive function or
mental capability. The Constitution 26 in section 83, does not refer to the right to legal capacity
of WWIDs or PWDs.
The right to equality before the law for all persons is enshrined in the Universal Declaration of
Human Rights (UNDHR)27 and other international conventions. The right is further buttressed
by Article 12 of the CRPD. In terms of Article 12, all PWDs have an unfettered right to make
decisions for themselves, to have those choices respected by others, and to have their decisions
recognised as valid decisions under the law.28
Various international polices have been developed which have later solidified into principles
encompassed in the binding treaties like the CRPD.29 The Millennium Development Goals30
enhanced the obligations of governments and development agencies to enable the attainment
of reproductive rights in their respective countries. Furthermore, the World Conferences on
Women31 resulted in the adoption of instruments that confirmed WWDs as subjects of rights
and not objects such as, the World Program of Action (1982)32 and The Standard rules on the
equalisation of opportunities for PWDs (1993).33 The binding conventions which came as a
result of these conferences are,
the Convention on the Elimination of All forms of
26
Constitution of Zimbabwe (n 4 above).
Article 7 United Nations Universal Declaration of Human Rights, See also, Article 16 of the International
Covenant on Civil and Political Rights, Article 15 of the Convention on the Elimination of all forms of
discrimination against women and Article 3 of the American convention on Human Rights.
28
World Health Organisation “Realising supported decision-making and advance planning WHO Quality Rights
training to act, unite and empower for mental health (pilot version)” (2017) Geneva WHO/MSD/MHP/17.8.
29
L.J Davis, ‘The Disability Studies Reader’ (2015) A journal of the American Educational Studies Association
Vol 51 4th ed. United Kingdom Taylor and Francis.
30
Millennium Development Goals, September 2000. Available at www.undp.org/content/undp.en/home
(Accessed on 13th June 2018)
31
First World Conference on Women, Mexico City 1975, Second World Conference on Women, Copenhagen
1980, Third World Conference on Women, Nairobi 1985, Fourth Conference on Women, Beijing 1995.
32
United Nations Resolution: World Programme of Action concerning Disabled Persons 3 December 1982
A/RES/37/52.
33
United Nations Resolution: Standard Rules on the Equalization of Opportunities for Persons with Disabilities
20 December 1993 A/RES/96.
27
6
Discrimination against Women (CEDAW) which came into force in 197934 and the CRPD in
2006. These conventions collected and made into law the principles developed from the World
Conferences on Women.
Treaty bodies have also clarified the right in question. The Committee on The of Rights of
PWDs has clarified the right to equal recognition before the law in its General Comment No.135
and in General Comment No.3 on Women and Girls with Disabilities.36 Furthermore, the
Committee on Economic, Social and Cultural Rights37 has clearly indicated that women’s right
to health includes their reproductive health and access to health-related education and
information. The Committee also stated that PWDs must not be denied the opportunity to
experience parenthood. Therefore, performing medical procedures that restrict this right
without their consent is a violation of Article 10(2) of the International Convention on
Economic, Social and Cultural Rights (ICESCR).38 The Committee on the Elimination of
Discrimination against Women (CEDAW)39 has also recognised the importance of
reproductive healthcare information in the exercise of decision-making autonomy regarding
reproductive health, by stating that, women must have information about contraceptive
measures and their use, and guaranteed access to sex education and family planning services,
to enable them to make informed decisions regarding their reproductive health. As a result,
States bear an obligation to respect, protect and fulfil rights related to women’s reproductive
34
The Convention on the Elimination of All forms of Discrimination against Women (CEDAW) 1979.
Committee on the Rights of Persons with Disabilities (11 th Session) 19 May 2014: General Comment No.1
(2014) Article 12: Equal recognition Before the Law.
36
General Comment No. 3 Article 6 Rights of Women and Girls with Disabilities.
37
Committee on Economic, Social and Cultural Rights, General Comment No.4: The right to the Highest
attainable standard of health (Art 12) (22nd Sess., 2000, in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, (2008) UN Doc HRI/GEN/1/Rev. 9.
38
Committee on Economic, Social and Cultural Rights, General Comment No.5: Persons with Disabilities (11 th
Sess.1994) http://www.unhchr.ch/tbs/doc.nsf/0/4b0c449a9ab4ff72c12563ed0054f17d (Accessed 26th February
2018).
39
Committee on the elimination of Discrimination against women, General Recommendation No.21: Equality in
marriage and Family relations (13th Sess,1994), in Compilation of General Recommendations Adopted by Human
Rights Treaty Bodies (2008) 337 UN Doc HRI/GEN/Rev.9 (Vol II).
35
7
health. The Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health maintains that women are entitled to
reproductive health care services, goods and facilities that are available in adequate numbers,
accessible physically and economically, accessible without discrimination; and of good
quality.40
1.3 Statement of the Problem
The problem in Zimbabwe is that WWIDs are denied access to reproductive healthcare services
due to their perceived lack of legal capacity. As a result, WWIDs have no control of their
reproductive health and decision-making. The situation thus perpetuates the infantilization of
WWIDs. 41 The Zimbabwean legal and policy framework is silent on the right to legal capacity
for WWIDs. This is notwithstanding the position that Zimbabwe is a party to the CRPD which
embodies the best practices and standards with regards to legal capacity for WWIDs in
accessing reproductive health care services. In terms of policy, the National Health Policy42
and the Draft National Policy on Disability43 also do not include the reproductive healthcare
needs of WWIDs as well as address their capacity to self-regulate their fertility. In light of the
above problem, this research analyses the extent to which WWIDs realise their right to legal
capacity in accessing reproductive healthcare services.
1.4 Research Question
1.4.1 Main Research Question
The main research question that forms the basis of this research is;
P. Hunt ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health’ (2006) UN Doc A/61/338 (2006).
41
T. Rugoho & F. Maphosa, ‘Challenges faced by Women with disabilities in accessing sexual and reproductive
health in Zimbabwe: The case of Chitungwiza Town’ (2017) Vol 6 Africa Disability Law Journal.
42
National Reproductive Health Policy (n 10 above).
43
Draft National Disability Policy (n 11 above).
40
8
“To what extent, if any, do WWIDs realise their right to legal capacity in accessing
reproductive healthcare services in Zimbabwe?”
1.4.2 Sub-research questions
In answering the main research question, the following sub-research questions are addressed;
(i)
What does the right to legal capacity entail in the context of access to reproductive health
care services for WWIDs in Zimbabwe?
(ii)
What are the best international standards and practices that Zimbabwe can learn from
other jurisdictions with regards to the right to legal capacity in the context of access to
reproductive healthcare services for WWIDs in Zimbabwe?
(iii)
What are the specific and general recommendations that can be made to Zimbabwe with
regards to the right to legal capacity in the context of access to reproductive health care
services for WWIDs?
1.5 Methodology
This research is premised on the Human Rights Model of disability. The Human Rights
framework recognises PWDs as having the same rights with their non-disabled counterparts.
The model emphases on equal treatment, equal opportunity and non-discrimination resulting
in inclusive opportunities for PWDs in the mainstream society.44 The research analyses the
lived realities of the Zimbabwean WWIDs, to address the inequalities that lie at the heart of
implementation of laws and policies and to redress discriminatory practises faced by WWIDs
in Zimbabwe based on a human rights approach.
Women with Disabilities Australia (WWDA) 2008 WWDA Response to the Australian Government’s
Discussion Paper: ‘Developing a National Disability Strategy for Australia’ WWDA, Rosny Park, Tasmania.
Available at: http://www.wwda.org.au/subs2006html (Accessed 20th February 2018).
44
9
The Human Rights approach highlights the participation, autonomy, dignity and inclusion of
all persons without discrimination.45 In this research, the Human Rights approach was used to
analyse Zimbabwe’s legislation and policies with regards to the right to legal capacity of
WWIDs in the exercise of their reproductive rights and this was measured against international
standards. A rights-based approach is most clearly articulated in the CRPD which forms an
analytical tool to measure the extent of realisation of the right to legal capacity by WWIDs in
Zimbabwe. As emphasised by the Committee on the CRPD46 that a human rights-based model
of disability implies a shift from the substituted decision-making paradigm to one that is based
on supported decision-making, the same will be proposed for Zimbabwe.
This research is a non-empirical qualitative research which focuses on library books, journal
articles, internet sources, case law and newspaper articles to analyse the issues and make
recommendations suitable for Zimbabwe. The legal arguments will be informed by the Human
rights approach.
Furthermore, a comparative analysis was also adopted. The Indian legal system was used as a
comparator. The comparative analysis also assisted in the formulation of recommendations
made.
1.6 Significance of the study
This research has the potential to add to jurisprudence by contributing to scholarship on the
disability rights discourse in Zimbabwe. In terms of practical significance, the research also
has the potential to address gaps in the legal and policy frameworks with regards to legal
capacity of WWIDs in access to reproductive healthcare services, contributing to legal and
P. Hunt & J. Mesquita ‘Mental Disabilities and the right to the highest attainable standard of health’ Human
Rights Quarterly (2006) Vol 28 No.2 (332).
46
Committee on the Rights of Persons with Disabilities (11 th Session) 19 May 2014: General Comment No.1
(2014) Article 12: Equal recognition Before the Law.
45
10
policy reform in line with international best practices.
Zimbabwe is falling short of
international standards by failing to align its laws with international standards. It is hoped that
Zimbabwe will align its laws, policies and practices in line with the CRPD and other
international conventions that provide rights of PWDs or WWIDs.
1.7 Delimitation
Although WWDs in general face problems with regards to access to reproductive healthcare
services, this study focuses on the right to legal capacity for WWIDs and particularly their
access to reproductive health care rights to the exclusion of women with other forms of
disabilities. This is because these women are in a vulnerable situation from other women who
are not in a similar position that is women who have physical or sensory impairments. In
addition, girls with intellectual disabilities, also face problems with regards to their right to
legal capacity in access to reproductive healthcare services, however, this research only focuses
on adult women to the exclusion of girls with intellectual disabilities.
1.8 Assumption
This research assumes that if the current laws and policies in existence in Zimbabwe, are
addressed, legal capacity for WWIDs will result in WWIDs realising the right on an equal basis
with their non-disabled counterparts.
1.9 Literature Review
There is a consensus among scholars that the right to reproductive healthcare for WWIDs is
especially overlooked and understudied. Studies have shown that WWIDS do not have the
capacity to utilise their reproductive health rights.47 There is also limited scholarship focusing
S. J. Hoffman, L. Sritharan1 and A. Tejpar “Is the UN Convention on the Rights of Persons with Disabilities
Impacting Mental Health Laws and Policies in High-Income Countries? A Case Study of Implementation in
47
11
on the perspectives of WWIDs which poses an important gap in the literature. 48 Scholars, N.
Greenwood and J. Wilkinson in their article, Sexual and reproductive Health care for Women
with Intellectual disabilities: A Primary care perspective (2013)49 opine that there is little
known of the reproductive health of the population of WWIDs and how to optimize their
reproductive health.
The legal and policy frameworks in Zimbabwe have many gaps on the issues of legal capacity
for PWDs. The Constitution50 in section 56(1) provides for the right to legal personhood for all
persons and does not specifically provide for the right to legal capacity. Although it does not
refer to PWDs, the word “everyone” includes PWDs. Aside from the Constitution, other Acts
which address disability are silent on the right to legal capacity. The policy framework is also
silent on the right to legal capacity for PWDs in Zimbabwe.
In the African Regional Human Rights System, the African Charter on Human and People’s
Rights (ACHPR)51 provides for the right to equal recognition before the law in Article 3(1).
The right is further compounded by the Protocol to the African Charter on human and People’s
Rights on the rights of Persons with disabilities in Africa,52 which specifically provides for the
right to legal capacity in the context of PWDs. Internationally, the CRPD is the instrument that
provides for the right to legal capacity as a right guaranteed to all PWDs.
According to T. Rugoho & F. Maphosa in their article Challenges faced by Women with
Disabilities in accessing sexual and reproductive rights: The case of Chitungwiza Town,53
Canada” (2016) BMC International Health and Human Rights. (Accessed on 22 September 2018) Available at:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5105274/.
48
N.W Greenwood & J. Wilkinson ‘Sexual and Reproductive Healthcare for women with intellectual Disabilities.
A primary care Perspective’ (2013) International Journal of Family Medicine.
49
N. Greenwood & J. Wilkinson (n 48 above).
50
Constitution of Zimbabwe (n 4 above).
51
African Charter on Human and People’s Rights (ACHPR).
52
The Protocol (n 12 above).
53
T. Rugoho & F. Maphosa (n 41 above).
12
access to reproductive healthcare services for WWIDs attracts different challenges from other
women living with different forms of disabilities. In terms of accessibility, the Law Society of
Scotland,54 called for the inclusion in the General Comment to Article 9 of the CRPD, specific
measures to improve access for PWIDs to be fully robustly addressed as obstructions affecting
persons with physical disabilities are addressed in the Draft General Comment. According to
the General Comment No.2,55 the Committee on the Rights of PWDs stated that accessibility
is a precondition for PWDs to live independently and participate fully and equally in society.
But the General Comment does not clarify the accessibility of WWIDs and further does not
take into consideration the heterogeneity of the disability population.56
Legal capacity has been defined by A. Guy in his article, Legal Capacity in a Mental Health
Context in Ireland. A Critical Review and a case for reform (2011)57 to include two integral
components. Firstly, the capacity to hold the right, and secondly, the capacity to act or exercise
the right. Hence, the recognition of legal capacity of WWIDs means the recognition of both
integral components. Furthermore, legal capacity has been defined as the ability of a person to
take legally valid decisions and to enter into binding contractual relations thereby making a
person a subject of law and a holder of legal rights and obligations.58 In Zimbabwe, WWIDs
are disabled by the law which fails to ensure their right to make decisions concerning their
reproductive health.
54
Comment on the Draft General Comment on Article 9 of the United Nations Convention on the Rights of Persons
with Disabilities. Law Society of Scotland (2014)
55
General Comment No.2 Article 9 Committee on the CRPD (2014).
56
Civil Rights Foundation Stop Discrimination Norway: Comment on Draft General Comment No.2 / Article 9
2014 Available at www.ohchr.org/EN/HRBodies/CRPD/Pages/DGC Articles 12 &9 (accessed 14 April 2018).
57
Unpublished A. Guy (2011) ‘Legal Capacity in a Mental Health Context in Ireland. A Critical Review and a
case for reform’ Unpublished LLM Thesis, Dublin Institute of Technology (2011) Available at
http://arrow.dit.ie/aaschss/dis (Accessed 16 April 2018).
58
European Agency for Fundamental ‘Rights Legal capacity of persons with intellectual disabilities and persons
with mental health problems’(2013)
http://fra.europa.eu/en/publication/2013/legal-capacity-personsintellectualdisabilities-and-persons-mental-health-problems (Accessed on 14th February 2018).
13
Reproductive health has been defined to broadly encompass health conditions and social
conditions that affect reproductive functioning where a woman seeks to reproduce or to avoid
reproduction.59 M.F Fathalla in “Promotion of research in Human reproduction: Global needs
and perspectives”(1988) has defined “reproductive health” focusing on both supporting
reproductive function and self-regulation of fertility by women.60 This emphasises the Human
Rights approach as opposed to a Medical Model of thought, which does not see PWDs as rights
holders. This is in line with the International Conference on Population Development (ICPD)61
which developed a gender-sensitive right-based approach to reproductive autonomy.
T. Rugoho and F. Maphosa in their article called “Challenges faced by Women with Disabilities
in accessing sexual and reproductive rights: The case of Chitungwiza Town”, 62 found out that
WWDs experience several challenges in accessing reproductive healthcare services and among
them attitudinal barriers and restriction to access to information. But the research does not state
the challenges faced by WWIDs. It also left gaps with regards to the capacity of WWIDs in
accessing reproductive healthcare.
Another study if that of D.S. Moyo in his thesis titled “Ensuring sexual and reproductive health
rights of WWD: A study of policies, actions and commitments in Uganda and Zimbabwe”
(2016)63 which focused on analysing the legal and policy framework in terms of access to
reproductive health of WWDs. The study showed that WWDs in Zimbabwe are being
marginalised from access to adequate reproductive health information and services. Findings
attributed disability to society which harbours numerous disabling factors, creating social and
L. Gable “Reproductive Health as a human right” (2010) Vol 60 Issue 4 Case Western Law Review.
M.F Fathalla. “Promotion of research in Human reproduction: Global needs and perspectives, (1988) 3 Hum
Reprod 7. Further, M.F Fathalla “Reproductive Health: A global Overview” (1991) 626 Annul N.Y.ACAD.SCI 1.
61
C.G. Ngwena Reproductive autonomy women and girls under the convention on the rights Persons with
disabilities (2017) DOI.10.1002/JIGO.12351 Ethical and legal issues in reproductive health , International
Federation of Gynaecology and Obstetrics Available at www.wileyonlinelibrary.com/journal/ijgo .
62
T. Rugoho & F. Maposa (n 41 above).
63
D.S. Moyo Ensuring sexual and reproductive health rights of WWD: A study of policies, actions and
commitments in Uganda and Zimbabwe. (2016) University of Reading; Graduate institute of information
Development and Applied Economics.
59
60
14
structural barriers for WWDs to access their rights. Moyo concluded that policy
implementation and invisibility of WWDs in reproductive policies was the main reason
deterring access to reproductive healthcare services. This research left a gap on the legal
capacity of WWIDs and focused more on women with physical disabilities. It also focused on
identifying key polices on reproductive health and assessing whether it addresses the specific
needs of WWDs. This research further looks at the legal protection of WWIDs particularly
their legal capacity in accessing reproductive healthcare services.
1.10 Chapter Synopsis
Chapter 1
This Chapter introduces the topic and establishes the background to the study and the statement
of the problem. The chapter also outlines the main and sub-research questions that form the
basis of this study. It further discusses the methodology, significance of the study, delimitation,
literature review and its chapter synopsis.
Chapter 2
This Chapter proffers the conceptual and theoretical foundations of the right to legal capacity.
It also details WWIDs in the context of legal capacity and the access to reproductive health
care services. It also contains the sources of the right in question both at national and
international level. Finally, the Chapter discusses the common problems that WWIDs face in
accessing reproductive health care services in Zimbabwe.
Chapter 3
This Chapter analyses the extent to which WWIDs realise their right to legal capacity in
accessing reproductive health care services in Zimbabwe. The CRPD is used as the yardstick
of the comparative analysis. With regards to the legal framework, the Constitution, DPA,
15
Mental Health Act and the Health Services Act are analysed. With regards to the policy
framework, the Draft National Policy on Disability and the National Reproductive Health
Policy are analysed. The Chapter thus exposes the gaps that exist in the Zimbabwean legal and
policy frameworks with regards to legal capacity of WWIDs in accessing reproductive health
care services.
Chapter 4
The Chapter is a comparative with India on the legal capacity of WWIDs and their reproductive
rights. Best practices and recommendations for adoption in Zimbabwe’s justice system is be
explored. India was used as comparator. India has been selected because it is way ahead of
Zimbabwe with regards to protection of the right to legal capacity in the context of reproductive
health for WWIDs. Furthermore, it has functional models of supported-decision making that
will be proposed for adoption in Zimbabwe.
Chapter 5
Chapter 5 gives a summary of the research and the findings. It also proffers specific and
general recommendations on legal capacity and access to reproductive health care services
for WWIDs in Zimbabwe. Finally, the Chapter concludes the study.
16
CHAPTER 2
2.1 Introduction
The previous Chapter introduced the study by laying out the background to the study, the
significance and the issues that form the basis of this research in the context of the right of legal
capacity. The Chapter also reviewed the literature around the right to legal capacity and
identified the gaps in literature. It concluded by outlining the structure of this research.
Attempts to define the concept of disability have led to the development of various models of
disability namely; the Medical Model, Social Model and the Human Rights Model. Despite the
existence of various models attempting to define disability there is no consensus in defining
disability. The Chapter also defines who WWIDs are. The chapter furthermore expands on the
concept of legal capacity as introduced in the previous chapter and conceptualises legal
capacity by addressing the various approaches to legal capacity and the new approach of
supported decision-making as brought about by the CRPD. Furthermore, capacity and
autonomy are differentiated considering the recent position established by the CRPD.
This Chapter also distinguishes between legal and mental capacity. Furthermore, the research
highlights the evolution of the right to legal capacity in Zimbabwe. The sources of legal
capacity will also be discussed from the International, Regional and National Levels. The
Chapter closes by highlighting the challenges faced by WWIDs.
2.2 DEFINING DISABILITY
The concept of disability is a highly contested one.64 Many definitions have been proffered and
various scholars have attempted with much difficulty, to define the term disability without
D. Kaplan “The definition of Disability: Perspective of the Disability Community” Journal of Health Care law
and Policy (2000); Vol 3 Issue 2 2000 Available at http://digitalcommons.law.umaryland.edu/yhdp/vol3/iss2/5
64
17
much success. The concept has remained a grey area, incapable of a precise definition.65 It has
been termed a “complex, dynamic multidimensional and contested concept.”66 The CRPD in
Article 2 provides a working definition of disability. It has avoided to give a decisive definition,
but adopted a conjunctive definition, showing the evolving nature of disability and avoiding
the risk of time-locking the convention.67 In order to understand the concept of disability, it is
prudent to highlight the models of disability as they have developed with time. However, the
general perception from scholarship is that, a definition of disability that addresses the needs
of the PWDs and society’s preparedness in accommodating PWDs based on nondiscrimination should be adopted.
2.2.1 Medical Model
This model is one of the oldest of the models of disability that has informed both the legal and
policy frameworks in most parts of the world including in Africa. It is according to this model
that disability is understood to be a consequence of an individual’s physical or mental
limitations.68 It is on this basis that PWDs are perceived as para normal compared to their nondisabled counterparts. The model places the fate of PWDs into the hands of medical personnel
who are assisted by fast growing technology to attempt to cure or rehabilitate the individual so
that they become “normal’. Under the model it is perceived that once a PWD has been cured
from their ‘illness’ then the problems associated with disability will cease to exist.
69
This
model however has been overtaken by events and is now archaic considering the disability
rights paradigm. It is unfortunate that many laws in Zimbabwe addressing disability rights are
65
D. Kaplan (n 64 above).
World Health Organization World Report. – “Understanding Disability” (2003) Available at
www.who.int/disabilities/word_report (Accessed on 12 June 2018).
67
S.A.D Kamga “A call for a protocol to the African Charter on Human and People’s rights on the rights of
persons
with
disabilities
in
Africa.”
(2013)
Available
at:
https://repository.up.ac.za/bitstream/handle/2263/.../Djoyoukamga_Call_2013.pdf.
68
V. Sudesh “National and International Approaches to defining disability” Journal of the Indian Law Institute
Vol 50 No.2 2008 pp220-229.
69
D. Kaplan (n 64 above)
66
18
still couched in this model, therefore PWDs do not realise their rights on an equal basis with
others.
2.2.2. Social Model
The Social Model was developed as some form of an ‘antidote’ to the Medical Model. 70 It
attributes the difficulties encountered by PWDs to society’s incapacity to match the biological
condition of the PWD. In other words, it is society that disables a person by creating barriers
for PWDs. Thus, the model advocates for society’s disabling mechanisms to be done away
with to enable PWDs to live in the society just like any other person.71 It is not the PWDs that
should conform to societal structures; rather the society itself must transform to accommodate
PWDs. The model has been developed with the aim of removing barriers so that PWDs have
the same opportunities as everyone else to determine their own lifestyles.
However, this model has been criticised for not addressing the shortcomings in the environment
and social arrangements it still requires PWDs to depend on the State and other Professionals
for their participation.
2.2.3 Human Rights Model
The model is a more recent paradigm flowing from the worldwide recognition of human rights.
The rights approach elevates disability as an important dimension of human culture. It regards
disability as a normal aspect and that the disabled are equally entitled to rights on an equal
basis with others. The rights based approach has four core underlying principles and these are;
autonomy, which entails the ability to make informed decisions and choices; inclusiveness that
PWDs have to be involved in all spheres of life, equality that PWDs are equal to other citizens
of the state and are equal before the law with all other citizens and lastly human dignity; that
70
V. Sudesh (n 68 above).
L. Oliver “Legal Capacity in international human
http://hdl.handle.net/1887/3383 (Accessed on 11 June 2018).
71
19
rights
law”
(2015)
Available
at
PWDs like other human beings have to be protected from inhuman degrading punishment or
treatment.72 This model ensures that the criteria for support programmes are prioritized by the
State respecting PWD’s autonomy and freedom of choice.
2.3 Women with Intellectual Disabilities (WWIDs)
In this study, WWIDs are women who have an intellectual disability. Intellectual disability has
been defined as having a measurement of intelligence which is below the scientific mean of
100 and difficulties in two or more adaptive areas of daily living which manifest in an
individual before the age of 18.73 Intellectual disability has been linked to mental health
problems, but these two are separate and distinct phenomena which can be distinguished as the
slow development of the mind whereas mental health problem are concerned with the disease
of the mind.74 The World Health Organisation (WHO) 75 has stated that intellectual disability
must be distinguished from mental illness. WWIDs are often at increased risk for poor health
outcomes that result from poor access to appropriate healthcare and disparities in receipt of
care. Very limited attention in Zimbabwe has been given to the issue of reproductive health as
it affects WWIDs, despite reproductive health being a vital issue in public health policy for
women.
2.4 CONCEPTUALISING LEGAL CAPACITY
The right to legal capacity is pivotal in balancing the aspect of autonomy in decision-making
and the right to protection from harm.76 It is a legal concept assigned to most people of majority
72
Policy brief July 2014 No. 1/2014 Zimbabwe Coalition on Debt and Development Enhancing a Disability
Inclusive Policy Environment Through the Effective Implementation of the United Nations Convention on the
Rights of Persons with Disabilities (PWDs)aaq.
73
American Association on intellectual and developmental Disabilities 2010.
74
FRA (n 58 above).
75
World Health Organization (2000). Healthy Ageing - Adults with Intellectual Disabilities: Summative Report.
Geneva: Switzerland: World Health Organization (WHO/MSD/HPS/MDP/00.3).
76
British Medical Association and the law Society of England and Wales, Assessment of Mental Capacity;
Guidance for Doctors and Lawyers (2nd ed 2004) @pg 3.
20
age without cognitive disabilities, enabling them to make binding decisions and to have them
respected.77 Other scholars have stated that legal capacity goes beyond decision-making, but it
is what it means to be human78 and is fundamental to human personhood and freedom.79 When
state laws are attributing incapacity to PWDs, they follow different approaches to legal
capacity.80 There are several approaches to determine incapacity to PWDs. The three
approaches to legal capacity are; the Outcome based approach, Functional approach, Statusbased approach and the as discussed below;
2.4.1 Outcome based Approach
In terms of this approach, capacity is determined based on an assessment of the consequences
or outcomes of an individual’s decision. This approach focuses on the “reasonableness” of the
decision reached by the individual. PWIDs like persons with mental disability are considered
incapable of comprehending the outcomes of their decisions. It is on this basis under this
approach that, a PWID seeking to access or discontinue treatment might need to do so with the
aid of a guardian or family member who makes the decision based on their best interests. This
is because the individual is perceived competent to understand their best interests.
2.4.2 Functional Approach
This approach focuses on the individual’s ability to understand the nature and consequences of
a decision at a time that it is made.81 Unlike the status approach which attributes incapacity
based on disability, the functional approach looks at the competence of a PWD to be able to
G. Quinn ‘Personhood and Legal Capacity Perspectives on the Paradigm shift of Article 12 of the CRPD’ (2010)
HPOD Conference, Harvard Law School, 2010.
78
G. Quinn (n 77 above).
79
Amicus Brief: The European Group of National Human Rights Institution (2011)- In the European Court of the
Human Rights App No. 6152/08 Gauer & Other v France.
80
A. Dhanda ‘Legal capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the
Future, (2007) 34 Syracuse Journal of International Law and Commerce 429.Available at https://heinonline
.org/HOL/License (Accessed on 19 June 2018).
81
B. Beresford Understanding the dynamics of decision-making (2008) University of York Available at
https://www.york.ac.uk/inst/spru/pubs/pdf/decisionmaking.pdf (Accessed on 17 June 2018).
77
21
perform a function at any given time. A ‘functional’ approach entails that a person may be
capable of making some decisions while incapable of making others. This means that a new
assessment of capacity is required for each new decision. In this regard, a PWD can have legal
capacity in some cases while losing it in other cases.
2.4.3 Status based Approach
The approach bases the determination of incapacity on the individual characteristics resulting
from their medical or psychiatric diagnoses. The status approach equates certain impairments
with incapacity to make decisions in some or all areas of life.82 According to this approach the
very existence of an impairment is enough to strip legal capacity. This approach for assessing
capacity raises difficulties. For example, many patients who would be diagnosed as having a
mental disorder or intellectual disability could still be able to make some decisions.83 However,
the use of a status approach results in PWDs being subjected to treatment without their
decision.84 Thus, once it is determined that a person has a disability, then the law presumes a
lack of capacity.85 In Zimbabwe section 35 of the Public Health Act86 seems to be following
this approach by stating that consent to treatment must only be given by a person with legal
capacity to do so thereby disqualifying all persons who are presumed to lack capacity because
of an intellectual and or mental disability.
2.4.5 A Critique of the approaches
The approaches discussed above do not follow the human rights approach as laid out by the
CRPD. All the approaches combined follow the substituted decision-making, by denying
82
Commissioner for Human Rights WHO GETS TO DECIDE? Right to legal capacity for persons with intellectual
and psychosocial disabilities (2012) CommDH/issuePaper (2012)2 Available at www.commissioner.coe.int
(Accessed on 16 June 2018).
83
A. Guy Legal Capacity in a Mental Health Context in Ireland A Critical Review and a Case for Reform 20116 Dublin Institute of Technology.
84
L. Olivier (n 71 above).
85
A. Dhanda (n 80 above).
86
Public Health Act (n 9 above).
22
capacity they make it acceptable for other people to make decisions on behalf of PWDs. They
are based on the stereotypes of PWDs and lean towards the Medical Model of disability. The
status approach for instance rests on stereotypes and ignores the person’s actual abilities. The
outcome approach is does not afford PWDs the dignity of making mistakes like their nondisabled counterparts. Furthermore, the functional approach does not give importance to the
notion of support to be given to PWDs to enable them to make their independent decisions.
The approaches have been criticised for being discriminatory when applied to PWDs and they
do not consider their capabilities but only assume their non-functionality based on their
disability.87
2.4.6 The New Approach: Supported Decision-making model
The dawn of the CPRD brought with it a new approach to decision-making as highlighted in
Article 12 (3). The concept presumes that all PWDs have the right to legal capacity and in the
cases where they require support to exercise it is the duty of the State to provide such support.
The supported decision-making model replaces the substituted-decision making model which
required other people to make decisions on behalf of PWDs and on which the previously
discussed approaches follow. Supported decision making presupposes the ability of the PWDs
to decide but with some support in the form of providing advice or information, discussion of
options and consequences and leaving the act of decision making to the PWD. PWDs who
require the support to exercise legal capacity have a right to be provided with such support.
The type of support envisioned in Article 12, paragraph 3 could be in the form of family,
friends, personal assistants or simply a written declaration stating the person’s preferences
regarding certain decisions.88 Furthermore, Article 12 (3) requires that the support should be
87
General Comment No.1 (n 35 Above)
A.S Kanter and Y. Tolub ‘The fight for personhood, legal Capacity, and equal recognition under law for people
with disabilities in Israel and beyond’ (2017) Cardozo Law Review Volume 39.
88
23
based on trust and be provided with respect and not against the will of the PWD. In providing
the support, Article 12(4) requires safeguards to be put in place to protect PWDs from abuse.
However, such safeguards must be proportional to the degree to which such measures affect
the person’s rights and interests.
2.4.7 Capacity and Autonomy
The main obstacle to understanding intellectual disability rights, is the assumption that
disability equates with incapacity. This assumption is then used to restrict the legal capacity of
PWDs potentially in a discriminatory way. Autonomy refers to an individual’s capacity to
govern oneself.89 Decision-making is central to self-determination, empowerment and social
inclusion for PWDs. The CRPD approaches autonomy in a new way. It regards autonomy as
an inherent human right and an essential component of inclusive citizenship for PWDs. Article
3 of the CRPD contains the principle of respect for inherent dignity, individual autonomy
including the freedom to make one’s own choices, and independence.
This right applies to all decisions, including those concerning the reproductive life of a woman.
It does not treat autonomy and dependence as mutually exclusive. It treats dependence as an
indication of support that may be required to enable the person to exercise autonomy.90
Autonomous decision-making is not contingent upon the decision-maker’s capacity to take the
relevant decision. Legal capacity protects the dignity of persons as well as their autonomy, and
their ability to act and have legal recognition of their decisions on an equal basis with others,
and, to take charge of their own lives.91
S. Werner ‘Individuals with intellectual Disabilities: A review of the literature on Decision-making since the
Convention on the rights of Persons with disabilities (CRPD) (2012) Public Health Reviews Vol 34 No.2 2012.
90
C.G. Ngwena ‘Reproductive autonomy of women and girls under the Convention on the rights of Persons with
Disabilities’(2018) International Journal on Gynaecology & Obstetrics.
91
Armicus brief (n 79 above).
89
24
2.5 Differentiating Legal from Mental Capacity
The main obstacle to understanding disability rights generally is the all too easy assumption
that disability simply equates with a lack of capacity. Legal Capacity involves the aptitude to
hold and exercise rights and duties. As a holder of rights, a person is entitled to full protection
of her rights by the legal system and to be recognised as a legal person under the law.92 Mental
Capacity on the other hand refers to the decision-making abilities of a person, which differs
from person to person because of factors such as environmental and social factors. In the case
of Purohit and Moore v The Gambia93 it was held by the African Commission that; mental
capacity should not be equated with legal capacity. It is unfortunate that mental capacity is used
in Zimbabwe to deny WWIDs the right to legal capacity especially in the access to reproductive
health care services.
2.6 Historical Trajectory of the right to legal Capacity in Zimbabwe
The CRPD provides in Article 12 the right to equal recognition before the law which
encompasses two distinct elements of the right that is, legal capacity and legal personhood. The
CRPD provides There is no specific protection of legal capacity in Zimbabwe only legal
personhood provided for in Section 56 under equal recognition before the law. Legal
personhood was not protected by the law until in 2013 through Constitutional Amendment
No.2094 where equal recognition before the law was included in section 56 (1) of the
Constitution. Section 1895 of the Constitution only provided for entitlement of every person to
protection by the law. There was no specific mention of disability rights in the Lancaster House
Constitution until 2005. Disability issues were only recognised by the Constitution through
Amendment number 17 in 2005 where section 23 was amended to include disability as ground
92
Ngwena (n 90 above).
Communication No.241/01.
94
Constitution of Zimbabwe (n 4 above).
95
Constitution of Zimbabwe (n 4 above).
93
25
for discrimination. Unfortunately, the provision only included persons with physical disability
to the exclusion of other forms of disabilities like intellectual, mental and sensory impairments.
This was an unfortunate situation for PWIDs and WWIDs whose capacity continued to be
undermined by the law. PWDs have never been seen as people who can make sound decisions
for themselves, thus several laws in Zimbabwe recognises the guardianship system in all
spheres of life. WWIDs cannot access services on an equal basis with others. Even with the
coming in of the CRPD, Zimbabwean laws and policies continue to be discriminatory on the
aspect of legal capacity for PWDs.
2.7 LEGAL CAPACITY AT INTERNATIONAL LEVEL
With regards to the sources of the rights to legal capacity, international and regional treaties
are of importance to note. At the international level, instruments provide for the right to legal
personhood without specific reference to legal capacity. The concept of legal personhood or
equal recognition before the law was fully developed under the CRPD, but it had found its way
into international instruments from as far back as the adoption of the UNDHR in Article 696
followed by the ICCPR.97 The instruments provide that “everyone” has the right to equal
recognition before the law. Although there is no specific mention of PWDs, the word everyone
has been interpreted to also include them. As such, there are no permissible circumstances
under international human rights law in which a person may be deprived of the right to
recognition as a person before the law, or in which this right may be limited. 98 Following the
ICCPR in 1979 Article 15 of CEDAW sets out the right to equal recognition encompassing
both legal standing and legal agency. However, from 1979 until the adoption of the CRPD in
96
United Nations Universal Declaration of Human Rights (UNDHR) Article 6 of the Declaration says that
"everyone has the right to recognition everywhere as a person before the law."
97
ICCRP Art 16. “Everyone shall have the right to recognition everywhere as a person before the law.”
98
General Comment No. 1 (n 35 above).
26
2006, no explicit reference to the right to equal recognition before the law for PWDs is made
in any subsequent International Human Rights treaty.99
Legal Capacity and legal personhood considering PWDs has been elaborated by the CRPD in
Article 12. By including both legal personhood and legal capacity, Article 12 of the CRPD
restates the connection between the two.100 Kerslake101 agrees with this notion by stating that,
the denial of the right to personhood functionally equates to denial of personhood because the
person is no longer seen as a legal entity with wills and preferences. The Article reaffirms and
expands the principle of equal recognition before the law by providing that all PWDs have the
right to recognition everywhere as persons before the law.102 In its General Comment103 the
Committee on the Rights of PWDs states that equality before the law is an innate human rights
tenet which is crucial to the implementation of other human rights. Article 12(2) of the CRPD
also plays an important role in extending legal capacity to “all aspects of life”. This suggests
the cross-cutting nature of Article 12 and its ‘instrumental value’ in the achievement of
numerous other rights. In that regard, the denial of legal capacity of PWDs can result in the
deprivation of their fundamental rights including reproductive rights. In its general principles104
the CRPD mandates the respect for inherent dignity, autonomy and choice of persons in matters
of their reproductive health which is a fundamental aspect of the integrity of their being.
Individual autonomy is conditional for the realisation of reproductive health rights.
C.de Bhailís, Clíona, & Flynn, Eilionóir. (2017). Recognising legal capacity: Commentary and analysis of
Article 12 CRPD. International Journal of Law in Context, 13(1), 6-21. doi: 10.1017/S174455231600046X
Cambridge University Press.
100
Unpublished: M.E.Brett ‘The right to recognition before the law and the capacity to act under International
Human Rights Law’ Unpublished LLM Thesis, Irish Centre for Human Rights (2012).
101
Unpublished: A. Arstein-Kerslake ‘Restoring Voice to People: Realizing the Right to Equal Recognition
Before the Law of People with Cognitive Disabilities’ (2014)
102
CRPD Article 12 (1).
103
(n 35 above).
104
CRPD, Article 3.
99
27
Legal capacity in the context of the CRPD entails two inseparable components and these are
the capacity to hold a right and to act or exercise the right.105 The capacity to hold rights ensures
that a person’s rights are safeguarded by the legal system thus the right to be a subject before
the law, while capacity to act grants the person authority to enter into, alter and terminate legal
relations.
2.8 LEGAL CAPACITY AT THE REGIONAL LEVEL
2.8.1 African Regional System
The African System like the international system only provided for legal personhood and not
legal capacity until recently. The right to equal recognition before the law in the African
regional human rights system is provided for in Article 3(1) of the ACHPR and provides that
everyone has the right to equality before the law. This right has been interpreted by the African
Commission in several communications. In the case of Bissangu v Congo,106 the Commission
affirmed that the right to equality before the law was protected under Article 3.1 and that the
right related to the status of individuals before the law. In Purohit and Moore v The Gambia 107
the right was interpreted in favour of PWIDs and the importance of Article 3 was highlighted
by the Commission to mean that it guaranteed fair and just treatment of individuals within a
legal system of a given country. Furthermore, that the provisions are non-derogable and
therefore must be respected in all circumstances for anyone to enjoy all the other rights
provided for under the Charter. Article 6 of the ACHPR provides for the right to the highest
attainable state of physical and mental health, but it does not specifically refer to reproductive
health rights.
105
A.I. Ofuani, Protecting Adolescent Girls with Intellectual Disabilities from Involuntary Sterilization in Nigeria:
Lessons from the CRPD, (2017) 17 African Human Rights Law Journal 550 (2017).
106
Bissangu v Congo Communication No. 253/02.
107
Purohit and Moore v The Gambia Communication 241/01.
28
The Protocol to the African Charter on the rights of Women (The Women’s Protocol)108 which
was adopted in 2003, has expanded the right to health to include reproductive health rights. It
also recognises the vulnerability of WWDs to abuse or denial of their rights because of the
intersection of disability and gender.109 Although the Women’s Protocol preceded the CRPD
the idea of legal capacity of Women was laid as a foundation which the CRPD later built on. It
specifically guarantees a woman’s right to control her fertility without being coerced into
making any decision that may undermine her autonomy.110 In its General Comment111 the
African Commission attempts to extend the protection of reproductive health rights under
Article 14 of the Women’s Protocol to WWDs. In Article 23112 the Women’s Protocol
expressly refers to the rights of WWDs in recognition of the dual marginalisation of WWDs.
However, the provision does not sufficiently address the challenges faced by WWDs in the
access to reproductive health care. The Women’s Protocol effectively was a pacesetter to the
recognition of the reproductive health rights of WWDs.
The right in the context of disability rights has been provided for by the recently adopted
Protocol to the African Charter on Human and People’s rights on the rights of Persons with
disabilities in Africa (the Protocol). The Protocol builds on the CRPD by explicitly recognising
the rights of PWDs to exercise legal capacity and by providing protection against interference
with that right. In Article 22, the Protocol states that the reproductive health rights of WWDs
are guaranteed and WWDs have the right to retain and control their fertility. The Protocol
advocates for accessible healthcare and effective communication of health services. 113 The
108
Protocol to the African Charter on the rights of Women 2003.
L.N. Murungi & E. Durojaye The Sexual and Reproductive Health Rights of Women with Disabilities In
Africa: Linkages between the CRPD and the African Women’s Protocol (2015) 3 African Disability Rights
Yearbook 1-30 Available at: http://dx.doi.org/10.17159/2413-7138/2015/v3n1a1.
110
Article 14 (n 108 above).
111
ACmHPR, General Comment No.2 on the Article 14 (1) (a), (b), (c) and (f) and Article 14(2) (a) and (c) of the
Protocol to the African Charter on Human and People’s rights on the rights of Women in Africa (2014).
112
Protocol (n108 above).
113
Article 12 (n 12 above).
109
29
Protocol adopts a broad approach to reproductive health rights which is a commendable
Regional approach.
The African Commission has no communication that specifically addresses the issues of
reproductive health rights of women. This gap in the literature makes it difficult for the
effective realisation of the reproductive rights of WWDs especially in the case of WWIDs who
are generally viewed as minors who are incapable of exercising their autonomy in controlling
their reproductive health rights.
2.8.2 European Human Rights System
The main Human rights source document in the European system, the European Convention
on Human Rights does not directly refer to the right to legal capacity. With the ratification of
the CRPD by the European Union (EU),114 the treaty became part of the EU legal order creating
legal obligations to all EU members.115 The right to equal recognition before the law has been
recognised in common law through the judgments of the European court of Human Rights. In
the case of Glor v Switerland116 the CRPD was accepted as providing a European and
worldwide consensus on the need to protect PWDs from discriminatory treatment. On the
question of legal capacity, the Court found that those who had been declared legally incapable
and are detained must be entitled to challenge their detention. Thereby recognising their
autonomy to stand for themselves and assert their inherent right to legal capacity.
Furthermore, in Stanev v Bulgaria117 Article 6 (1) of the ECHR, was interpreted as
guaranteeing in principle that anyone who has been declared partially incapable had direct
access to court to seek restoration of their legal capacity. In that case, the court acknowledged
114
(n 5 above).
FRA Legal Capital of Persons with Intellectual Disabilities and Persons with Mental Health Problems European
Union Agency for fundamental Rights 2013.
116
Glor v Switzerland Application No. 13444/04.
117
Stanev v Bulgaria Application No. 36760/06, Judgment 17 January 2012.
115
30
the growing importance which the international human rights standards are placing on the
protection of PWIDs and granting them as much legal autonomy as possible. An important
decision by the court on legal capacity is Salontanji-Drobnjak v Serbia118 where the court held
that, declarations of legal incapacity breached the principle of proportionality and were
therefore contrary to Article 8(2) of the ECHR.
The case law of the court has therefore established strong procedural requirements on member
states in circumstances where a person is deprived of their legal capacity in certain areas. It has
also established that declarations of full legal incapacity are contrary to the principle of
proportionality. In effect the court has overlaid strong procedural safeguards to the imposition
of legal incapacity and has drastically reduced the circumstances under which such incapacities
can be legally imposed.
2.8.3 Inter-American Human Rights System
The right to equal recognition before the law is provided for in Article 3 of the American
Convention on Human Rights enshrines the right to juridical personality and the right of every
person to be recognised as a person before the law. The term “every person” also connotes
PWDs.
2.9 LEGAL CAPACITY IN ZIMBABWE
The Constitution119 provides for the first time in Zimbabwean constitutional history, a separate
section on the rights of PWDs. Legal capacity for WWIDs is not specifically provided for in
section 83 of the Constitution which specifically provides for the rights of persons with
physical and mental disabilities to the exclusion of intellectual disabilities. The Constitution
118
Salontanji-Drobnjak v Serbia Application No. 36500/06, Judgment 13 October 2009.
119
(n 4 above).
31
provides in section 56 (1) the right to equal recognition before the law or legal personhood120
for everyone, while the capacity to hold rights and act is not existent. Although some scholars
believe that when one is recognised as a person before the law their legal capacity including
the capacity to act is equally recognised.121 But both rights are provided for in the CRPD
separately.
The DPA does not provide the right to legal capacity or any rights of PWDs at all. The MHA
reinforces guardianship for PWDs in section 109 provides for the appointed of curators and
guardians for PWDs. In Zimbabwe, the society’s attitude towards PWDs has been dominated
by paternalism where PWDs are perceived as incapable of making independent decisions and
managing their own lives.122
2.10 Challenges to access to reproductive healthcare services by WWIDs
WWIDs face numerous challenges when trying to access reproductive healthcare services in
Zimbabwe. These women are the most disadvantaged and alienated group when it comes to
accessing reproductive healthcare services. WWIDs are often viewed as incapable of retaining
information related to reproductive healthcare services, and thus no efforts are made to teach
them about reproductive health.123 They often have communication problems which make
expression of their decisions difficult, thus requiring support in order to express their will.124
The Committee on the rights of PWDs has stated in its General Comment No. 3 (2016) on
According to Osborn’s Concise law Dictionary 11 th Ed Sweet & Maxwell 2009 Legal Personality refers to
legal personhood and the entitlement of a legal person to enjoy, rights and duties at law.
121
E.W.Maina The right to Equal recognition before the law , access to justice and supported decision making
CRPD
Conference
of
Parties
(2009)
New
York
Available
at
www.un.org/disabilites/documents/cop/Edah%20Presentation%20COSP.doc.
122
T. Choruma (n 3 above).
123
USAID (2011) Disability-inclusive Sexual and Reproductive Health Component; Training of Trainees Manual
on Disability-inclusive health for health workers.
124
S. Werner (2012) Individuals with intellectual disabilities: A review of the Literature on decision-Making since
the Convention on the Rights of People with Disabilities (CRPD) Public Health Reviews, Vol 34 No.2.
120
32
Women and Girls with disabilities,125 that WWIDs are often ignored and their decisions are
often substituted by those of third parties. This is perpetuated by myths that WWIDs are
asexual.126 The WHO has noted that the chief challenge is the community's negative attitudes
towards PWDs, which have been institutionalised and have caused untold pain to WWDs.127
Prejudice, stereotyping and discrimination against PWDs have resulted in serious violations of
their reproductive rights.128 In that regard WWIDs need greater access to reproductive health
services than their able-bodied counterparts.129
WWIDs in Zimbabwe do not have support to enable them to make independent decisions
regarding their reproductive health as decisions are usually made by their family members and
guardians. The laws and policies in Zimbabwe are inadequate to ensure access to reproductive
healthcare services. Communication by WWIDs with healthcare personnel is often strained
thereby barring access to reproductive healthcare services. Aside from legal barriers WWIDs
also face problems of lack of provider training and experience to deal with the specific issues
of WWIDs, thus rendering reproductive healthcare services inaccessible for WWIDs.130
General Comment No.2 of 2014131 states that accessibility is a precondition for PWDs to live
independently, participate fully and equally in society and have unrestricted enjoyment of all
human rights and fundamental freedoms on an equal basis with others. This means that
125
(n 36 above).
Centre for the Study of Violence and Reconciliation (CSVR). (2005, April). On the margins: Violence against
WWDs. Retrieved from http://www.csvr.org.za.
127
World Health Organization/United Nations Population Fund. (2009). Promoting sexual and reproductive health
for
persons
with
disabilities.
Retrieved
from
http://www.who.int/reproductivehealth/publications/general/9789241598682/en/.
128
T. Rugoho (n 41 above).
129
Groce, N., Izutsu, T., Reier, S., Rinehart, W., & Temple, B. (2009). Promoting sexual and reproductive health
for persons with disabilities: WHO/UNFPA guidance note. Department of Reproductive Health and Research and
United Nations Population Fund (UNFPA). Geneva, Switzerland: WHO Press. Retrieved from
http://www.who.int/reproductivehealth/publications/general/9789241598682/en/index.html.
130
N. Greenwood and J. Wilkinson (n 48 above).
131
General Comment No.2 2014 Article 9 Accessibility.
126
33
reproductive healthcare services should be accessible to WWIDs for them to be able to have
control of their reproductive health.
The CRPD stipulates that States parties need to provide PWDs with the same range, quality
and standard of free or affordable healthcare and programmes as provided to other persons,
including reproductive health and population based public health programs. Article 6 of the
CRPD which specifically focuses on WWDs declares that all State parties should take measures
to ensure the full realisation of the rights of WWDs.132
2.10 Conclusion
Although there are difficulties surrounding the conceptualisation of disability, there are
working definitions such as the one provided for in the CRPD. Disability has been
conceptualised as an evolving concept which is incapable of a precise definition. Tied to the
conceptualisation of disability are models of which the major ones are the Medical Model,
Social Model and the Human rights model. In terms of these models of disability, this Chapter
has shown that the Medical Model is archaic and is not in line with the rights standards as
stipulated by the CRPD which embodies the Social and Human Rights Models of disability.
The right to equal recognition before the law provided for in various international instruments,
but most do not expressly provide for legal capacity. Legal capacity is expressly provided for
in the CRPD. In the African Region, a similar instrument which was recently adopted is the
Protocol on the rights of PWDs, which outlines the right of PWDs specifically in Africa. The
Protocol reaffirms the right to legal capacity for PWDs and asserts the right for WWIDs unlike
the CRPD.
132
S. Arcella A Situational Analysis of the Sexual and Reproductive Health of Women with Disabilities, 2009 The
New School University for UNFPA.
34
In Zimbabwe the equal recognition before the law in provided for in the Constitution. But it
remains that WWIDs are denied the right to legal capacity. The rights as provided for in section
83 of the Constitution limit the forms of disability to physical and mental disabilities only to
the exclusion of other forms of disabilities. WWIDs are not provided enough protection by the
Constitution.
The chapter also highlighted the unique challenges that are faced by WWIDs in accessing
healthcare services which include inadequate legal protection and negative societal perceptions
about PWDs. Since intellectual disability is often associated with mental disability, the
capacity of WWIDs to make sound decisions about their reproductive health is often
overlooked.
35
CHAPTER 3
3.1 Introduction
The previous Chapter outlined the right to legal capacity as provided for in the National,
Regional and International human rights systems. Furthermore, it was highlighted that the
CRPD, unlike any other international human rights treaties, takes a bold stance in dispelling
the myths and stereotypes of legal capacity as they relate to PWDs. It has resulted in a paradigm
shift on the concept of legal capacity for PWDs. In Article 12, the CRPD sets an unequivocal
standard of legal capacity that also includes PWIDs, who historically have been denied legal
capacity based on their disability. At the African level for instance, the right to legal capacity
has been solidified by the Protocol133 although the right to personhood had been provided for
by the ACHPR. The Protocol specifically provides for the right to legal capacity for PWIDs.134
In the EU, the right was not recognised in a single instrument but since the ratification of the
CRPD by the European Union, the right as provided for in the CRPD and any other
international human rights instruments now applies to all the parties to the EU regardless of
their individual ratification of the CRPD.
Zimbabwe having ratified the CRPD undertook to comply with its provisions. It has obligations
to fulfil, respect, promote and protect the rights of all PWDs in Zimbabwe.135 The issue of legal
capacity of WWIDs is a new phenomenon in Zimbabwe. Although the Constitution does not
specifically refer to legal capacity, it provides for the right to equal recognition before the
law.136 The right applies universally to all persons and is not specifically for PWDs or their
non-disabled counterparts.
Protocol to the African Charter on Human and People’s Rights on the rights of persons with disabilities in
Africa (n 12 above).
134
Article 8 (n 12 above).
135
Under the Vienna Convention on the Law of Treaties, ratification of an instrument signifies a voluntary
intention by the country to be bound by the stipulations of the treaty (Article 14 (1)).
136
Constitution of Zimbabwe Section 56 (n 4 above).
133
36
The extent to which WWIDs realise their right to legal capacity in their access to reproductive
healthcare services in Zimbabwe needs to be interrogated. There are various laws in Zimbabwe
which directly or indirectly address disability issues in Zimbabwe. The Constitution guarantees
access to healthcare services for everyone including PWDs.137 However it ignores intellectual
disability as a form of disability contrary to the CRPD. The DPA as the principal legislation
addressing disability issues does not recognise intellectual disability and emphasises on
physical access to public buildings which includes medical facilities to the exclusion of the
specific needs of PWIDs. The MHA138 does not recognise the autonomy of PWIDs in
institutions rather it is based on the Medical Model of disability and provides for guardianship
of PWIDs. Other laws such as the Medical Services Act and the Health Services act do not
address disability issues which is a shortcoming for the effective implementation of the CPRD.
In terms of policy, Zimbabwe does not have policy on disability in place but only a draft policy.
While there are other polices in place which have an impact on PWDs like the National
Reproductive Health Policy, the Mental Health Policy and the National Population Policy,
these policies are limited in their comprehension of disability issues. Where they refer to PWDs
they do not include PWIDs. This is regrettable and stalls the effective implementation of the
CRPD and the realisation of the rights of PWDs. It is necessary to analyse the polices to
ascertain compliance with the standards set by the CRPD and the extent to which WWIDs
realise their right to legal capacity in accessing to reproductive healthcare services.
137
138
Constitution of Zimbabwe S75(1) and S83 (d) (n 4 above).
Section 109, 110A MHA (n 8 above).
37
3.2 THE LEGAL FRAMEWORK
3.2.1 Constitution of Zimbabwe
Although the Constitution now includes the rights of PWDs, its obliviousness of WWIDs
leaves a lot to be desired in the realisation of their human rights. WWIDs ought to be given
special recognition given their double jeopardy of being women and having an intellectual
disability. The legal framework is still miles apart from being in tandem with the international
standards as embodied by the CRPD.139
The Constitution has for the first time in the Constitutional history of Zimbabwe, included a
separate section on the rights of PWDs.140 Even though the Constitution does not specifically
provide for to the right to legal capacity of PWDs, there are various sections that allude to the
guarantee of the right. In section 3, it is one of the founding values and principles of the
Constitution to recognise equality for all people and further the recognition of the rights of
PWDs.141 This principle is then buttressed by Section 56 which provides for the right to
equality before the law. There is also recognition of women as being equals to men, in that they
have the right to equal treatment in all spheres of life. This provision is commendable especially
taking into consideration the history of PWDs which was characterised by discrimination based
on the existence of a disability and the dual marginalisation of WWDs. While it is
commendable, it still does not infuse the concept of reasonable accommodation of PWDs as it
is a dominant theme exhibited by the CRPD especially for WWIDs who require a broader
standard of accessibility142 in the access to reproductive healthcare services. The CRPD’s
definition of discrimination includes denial of reasonable accommodation.143 This means that
T. Chengeta and D. Msipa “Getting disability rights into the mainstream of human rights advocacy: an appraisal
of Zimbabwean disability rights policies and legislation”. Presentation Paper 2014.
140
Constitution of Zimbabwe Section 83.
141
Constitution of Zimbabwe Section 3(ii).
142
Submission to the CRPD Committee by Inclusion International (2010) “Accessibility for Persons with
Intellectual Disability”.
143
CRPD, Art (5)3 (n 6 above).
139
38
the recognition of equality in access to reproductive healthcare services by WWIDs is not
enough if it is not coupled with positive measures intended to ensure that the WWIDs can
access the services. It was the Committee on the rights of PWDs’ view in its concluding
observations on the initial report of China144 that reasonable accommodation should be applied
consistently in relation to the principle of non-discrimination. It furthermore suggested a
definition of equality which reflects that of the CRPD covering necessary and appropriate
modifications and adjustments applicable in a case beyond general accessibility.
There is also for specific reference in the Constitution of women as a vulnerable group that
should be afforded greater protection.145 Considering that Zimbabwe is largely patriarchal, this
is a step in the right direction in implementation of the rights of WWDs. PWDs fall into the
national objectives of Zimbabwe in section 22. This move is commendable as it highlights the
efforts by the State to do away with the invisibility status of PWDs and promote their greater
recognition in all national agendas and in all the spheres of life including healthcare. However,
the section is only limited to persons with physical and mental disabilities and excludes other
forms of disability like intellectual and sensory disabilities as provided for in the CRPD. This
move is inconsistent with the wholesome definition of disability that is provided by the CRPD.
The consequence thereof is that the special conditions that are experienced by PWIDs are not
considered. Furthermore, WWIDs remain hidden as the superior law of the land does not
recognise the existence of intellectual disability.
In terms of section 76 the Constitution provides for the right of all citizens and permanent
residents to the access to basic healthcare services and includes the right to reproductive
healthcare services. The section ensures an equal opportunity to access reproductive healthcare
144
Concluding observation on the initial report of China, adopted by the Committee at its eighth session (17–28
September 2012) UN Doc CPRD/C/CHN/CO1.
145
Section 3(iii) Constitution of Zimbabwe (n 4 above).
39
services regardless of disability. In section 76 the State is mandated to respect, the right to
health and this entails not interfering with this right by limiting access in the context of health
rights of women without discriminating. This section echoes the sentiments in section 29
which mandates the State to take practical measures to ensure the provision of basic and
accessible health services throughout Zimbabwe.
The need for access to the health-related information, including advice on family planning
services cannot be overemphasised.146 Access to information is important in that WWIDs are
able to retain their autonomy in decision-making empowered by the information about
reproductive healthcare.147 Article 12(1) of the CRPD enjoins States to take appropriate
measures to eliminate discrimination against women in healthcare and to ensure equal access
to reproductive healthcare and family planning services.148
Section 8 provides that the State is required to take measures within the limits of the resources
available to it to give them access to medical treatment. It does not qualify the kind of access
to be provided, but it can be interpreted to include non-physical access as required by WWIDs,
like access to information relating to reproductive healthcare and communication with
healthcare personnel, which are the main problems encountered by WWIDs. The CRPD in
Article 9 provides for the rights to accessibility of services for PWDs and calls upon states to
ensure accessibility of information, facilities and services provided to the public through the
elimination of barriers.149 The State is obligated to put in place legal and administrative
CEDAW Committee’s General Recommendation No. 24 on Women and Health (Article 12).
C. Shalev “Rights to Sexual and Reproductive Health - the ICPD and the Convention on the Elimination of All
Forms of Discrimination Against Women (1998) Paper presented at the International Conference on Reproductive
Health, Mumbai (India), 15-19 March 1998, jointly organised by the Indian Society for the Study of Reproduction
and Fertility and World Bank Special Programme of Research, Development and Research Training in Human
Reproduction.
(Accessed
on
22
September
2018)
Available
at
http://www.un.org/womenwatch/daw/csw/shalev.htm.
148
de Bhailís, Clíona, & Flynn, Eilionóir. (2017). Recognising legal capacity: commentary and analysis of Article
12 CRPD. International Journal of Law in Context, 13(1), 6-21. doi: 10.1017/S174455231600046X.
149
CRPD, Art 9 (n 6 above).
146
147
40
measures that prohibit discrimination against PWDs and places an obligation on healthcare
professionals and healthcare institutions to provide care of the same quality to PWDs as they
do for the non-disabled counterparts.
Although the Constitution enshrines the rights of PWDs there are no deliberate efforts to
integrate reproductive health concerns of WWIDs.150 Furthermore, section 83 is silent on the
issues of legal capacity of PWDs. The CRPD is unambiguous in its provisions on legal
capacity, in that it applies to all PWDs. It is especially relevant in reproductive health as
recognition of the right ensures the independent control of the reproductive health and decisionmaking of WWIDs.151 The specific obligations in the CRPD include ensuring that WWIDs
access services related to their reproductive rights on an equal basis with other women, based
on non-discrimination and in accordance with the principle of reasonable accommodation.152
3.2.2 Disabled Persons Act [Chapter 17:01]
The DPA is the principal law in Zimbabwe that provides for disability issues. The Act is
ineffective in mainstreaming the reproductive healthcare concerns of WWIDs.153 However,
the Act has now become obsolete when it comes to the protection of the rights of PWDs. This
is so because it is not in line with the stipulations of the CRPD. The definition itself does not
include PWIDs but only defines PWDs to include persons with physical, mental or sensory
disability. PWIDs are not covered by the Act. This results in the numerous challenges that
PWIDs face in Zimbabwe because their impairment is not recognised as a form of disability
by an Act which purports to address disability issues. The paradox lies in the fact that there
cannot be protection of a form of disability which is not recognised by law. Thus, the exclusion
150
E.M Kiapi Bearing the pains of double discrimination (2010) Inter Press Service News Agency Available at
http://ipsnews.net/news.asp?idnews=50795 (Accessed 11 July 2018).
151
General Comment on Article 12 (n 46 above).
152
CRPD, Art 9 (n 6 above).
153
T. Rugoho & F. Maphosa ( n 41 above).
41
of intellectual disability results in the discrimination of PWIDs. With the right to legal capacity
that is interlinked with non-discrimination makes realisation of the legal capacity to WWIDs a
façade. In that regard, it is an obligation of the State to abolish all the laws that do not allow
PWDs to fully realise their rights.154
The definition further does not comply with the CRPD and it limits the scope of the Act to the
specified forms of disability while it ignores other forms of disability. Thus, it does not capture
the specific problems that persons whose impairments are not recognised face. The definition
is couched in the Medical Model of disability which attributes disability to the PWD. It links
disability to its cause thus the Act is inadequate in addressing disability as a social construct
but as a medical problem that can be solved through medical intervention.155 The DPA as the
once celebrated piece of legislation addressing disability issues is now out-dated and has since
yielded little progress for WWIDs.
The Act more importantly does not provide any rights of PWDs. All it does is to proscribe what
constitutes discrimination at the workplace. The DPA does not provide for the right to legal
capacity but only provides for non-discrimination of PWDs. The DPA does not recognise the
peculiar circumstances and vulnerabilities of WWIDs unlike the CRPD which provides a basis
for special measures to be adopted to enable WWIDs access to reproductive healthcare services
and rights. According to Mwalimu, the DPA only covers prohibition of discrimination against
PWDs only to physical access to public premises that provide public services.156 Although the
word “services” is not defined, it can also be interpreted to include reproductive healthcare
154
Committee on the Rights of Persons with Disabilties; General Comment No. 3 (2016) on Women and Girls
with disabilities. CRPD.C.GC.3.
155
S. Maphosa and P.Mutandwa (2016) “ A Critical evaluation into the Zimbabwe Disabled Persons Act 1992 in
addressing the plight of the Disabled Persons, its strength and Weakness” International Journal of Innovate
Research and Development Vol 5 Issue 9 www.ijird.com.
156
C. Mwalimu “Overview and Comparative Analysis: National Laws Protecting People with Disabilities in
selected foreign countries” (2003) International Disability Rights compendium.
42
service. The provisions of the Act do not address the unique challenges that are faced by
WWIDs.
3.2.3 Mental Health Act [Chapter 15:12]
The Mental Health Act (MHA) is the only Act in Zimbabwe that refers to PWIDs. But in its
reference, the Act links intellectual disability with mental disability and uses the terms
interchangeably implying that it is the same condition.157 This reinforces the confusion of legal
and mental capacity which results in the denial of legal capacity of PWIDs. In that regard, the
treatment of persons with mental disabilities is the same for persons with intellectual disability.
This perpetuates the stereotype that PWIDs are mental patients who should be institutionalised
to ensure their treatment, a notion based on the Medical Model of disability.
The Act does not address the reproductive health needs of WWIDs who are living in
rehabilitation institutions. Essentially, institutionalisation takes away the independence and
autonomy of WWIDs. Thus, they are denied their right to legal capacity while they are
institutionalised. The Act also provides for indefinite detention of prisoners who are “mentally
disordered or intellectually handicapped’,158 contrary to their right to liberty and it
compromises their independence and autonomy. The Act in that regard falls short of the
international standards as stipulated by the CRPD. PWDs cannot challenge the duration of their
institutionalisation in Zimbabwean courts without the help of a curator.159 In terms of the MHA,
persons with either mental or intellectual disability can be institutionalised without their
express consent. The CRPD Committee argues that Article 25 includes the right to health care
based on free and informed consent160 but this is not the case in terms of the MHA. This means
157
Section 2 MHA (n 8 above).
Section 30 MHA (n 8 above).
159
High Court Rules 1971 Order 32 Rule 249 and Section Magistrates Court Act [Chapter 7:10] as read with
Order 7 Rule 1 of the Magistrates Court (Civil) Rules 1980.
160
General Comment on Art 12 (n 46 above).
158
43
that decisions about a person’s health must be made with the free and informed consent of the
person involved. In that regard, respecting the legal capacity that PWD have despite the
existence of a disability.
3.2.4 Health Services Act [Chapter 15:16]
This Act provides for the establishment and function of the Health Service Board. It also
establishes Zimbabwe’s Health Service system which includes, the Government Hospital and
Hospital Management Boards (HMB) and provides for their functions. The Act provides for
issues relating to the functions of the Health Service Board (HSB) and hospital management
Board but does not refer to specific health needs of PWDs. Section 20 the Act requires HMBs
to provide treatment to patients in general; it does not recognise that PWDs also require health
services specifically because of their disabilities. It also does not recognise the need for
medical, psychological and functional treatment of PWDs.
The Act in general also fails to acknowledge the fact that not all patients are the same. Article
25 of the CRPD provides that PWDs have the right to the enjoyment of the highest attainable
standard of health without discrimination based on disability, and that States parties shall take
all appropriate measures to ensure access for PWDs health services and that are gendersensitive. The term “highest attainable standards of health” has been interpreted by the
Committee on Elimination of Discrimination against Women161 to include measures to
improve reproductive health services such as access to family planning, pre and post-natal care,
emergency and obstetric services and access to information. The Act does not consider the
issues of access to healthcare services by WWIDs. The hope is that, if these rights are
161
Committee on the Elimination of Discrimination against Women (CEDAW Committee) General Comment
No.21- Equality in marriage and family relations (Art 16) 1994 para16.
44
recognised in legislation it will ensure their adherence as a matter of law. The Act should also
speak to training of health workers on the skills required for handling PWDs especially PWIDs.
3.2.5 Medical Services Act [Chapter 15:13]
The Act provides for the provision and maintenance of comprehensive hospital services in
Zimbabwe. “Medical Services” are defined as any service provided at a hospital whether to
persons admitted as in-patients or otherwise162. The term “Hospital” is defined to include
maternity homes and detention premises for persons with mental or intellectual disability as
defined by section 2 of the MHA. In terms of section 2 there is a mandate to the MoHCC to
maintain and constantly develop the provision of medical services in the country. This also
extends to the provision of accessible healthcare services to PWDs though there is no specific
mention of PWDs.
In section 12, the Act prohibits discrimination of persons when being admitted to a hospital on
the grounds of their disability. The act only prohibits discrimination at the time of admission,
but it does not specifically prohibit differential treatment of PWDs and their non-disabled
counterparts which then makes health care services inaccessible for them. The CRPD and the
Constitution are clear with regards to the need for the State to provide health services to all
without discrimination based on disability. The Canadian Supreme Court in the case of
Eldridge v British Columbia (Attorney -General)163 stated that the problems suffered by PWDs
arise not from the imposition of a burden not faced by the non-disabled counterparts, but rather
on the failure of the State to ensure that PWDs benefit equally for a service offered to everyone.
The reasoning of the Court underscores the need for States to not only claim that they are
providing services to all including WWDs but rather should demonstrate that they have taken
additional measures to prioritise the reproductive health needs of WWIDs. This is the case
162
163
Medical Services Act [Chapter 15:13] section 2.
Eldridge v British Columbia (Attorney -General) 1977 151 DLR 4th 577.
45
with the Medical Services Act which does not provide for the accessible reproductive
healthcare services for WWIDs, thereby perpetuating the plight of WWIDs in Zimbabwe of
failing to access reproductive health care services on an equal basis with others.
3.3 ZIMBABWE’S POLICY FRAMEWORK
3.3.1 Draft National Disability Policy
In the policy arena Zimbabwe has not had a policy on Disability since the inception of the DPA
in 1992. The importance of a policy is to complement the Act and to ensure the effective
implementation of the rights of PWDs. Zimbabwe has not made progressive efforts to
mainstream the rights of WWIDs in the access to reproductive health services and information.
Since Zimbabwe attained independence in 1980, it has never had a policy on disability even
after the enactment of the DPA in 1992 there has never been a policy on disability to
complement the Act,164 although the MoCC has had the mandate of providing services to
PWDs without a comprehensive National Disability policy. The current policy remains a draft
and has not yet come into force.165 Unlike the DPA and other laws that have narrow provisions
on disability issues, the draft policy has comprehensive provisions on disability that are more
inclined to the CRPD and inspired by the rights-based approach to disability. The draft policy
is aimed at promoting the inclusion of PWDs in all aspects including education, health,
accessibility, employment and social services.
Its definition of disability includes PWIDs, a move that is different from the DPA and the
Constitution which exclude the protection of PWIDs.166 As seen in the discussion on the legal
framework, the laws in Zimbabwe do not recognise intellectual disability as a form of
164
T. Choruma (n 3 above)
R. Muchutu , No disabiltiy policy in Zim, says Malinga Sunday News Online; Sunday April 23 2017.
166
Draft National Disability Policy (n 11 above).
165
46
disability, they not provide any protection for PWIDs.167 The exclusion has far reaching
consequences for WWIDs who are not afforded any protection by the law. The draft policy is
commendable in including PWIDs.
Several provisions of the draft policy are informed by the rights-based approach as stipulated
under the CRPD. As fundamental guiding principles, the draft policy provides for the respect
for inherent dignity, individual autonomy including the freedom to make independent choices
by PWDs.168 This is in line with the sentiments of Article 3 and 12 of the CRPD which
recognises individual autonomy of PWDs. The protection of human dignity is at the core of
fundamental rights and even more in the context of human rights that deal with the rights of
persons such as legal capacity and reproductive rights.169 In terms of Article 3 of the Women’s
Protocol every woman has a right to dignity and the recognition and protection of her human
and legal rights. The protocol enjoins States Parties to implement appropriate measures to
prohibit exploitation or degradation of women. The draft policy, by recognising the dignity of
PWDs is commendable and is in line with international best practices.
In terms of access the draft policy is alive to the differences among PWDs due to varying
impairments, each of which result in specific needs. The draft policy then goes on to put much
emphasis on physical needs and does not accommodate the needs of PWIDs. In its General
Comment on Article 9 of the CRPD, the committee stated that persons with intellectual and
psychosocial disabilities must be afforded access on an equal basis with their non-disabled
counterparts.
C. Wa Munyi “Past and Present Perceptions Towards Disability: A Historical Perspective” 2012 Disability
Studies Quarterly.
168
Draft National Disability Policy 2017 (n 11 above).
169
United Nations Development Group (2011) Including the rights of PWDs in United Nations programming at
Country Level. A guidance note for United Nations Country teams and implementing partners. Available at:
http://www.un.org/disabilities/documents/iasg/undg_guidance_note_final.pdf .
167
47
The draft policy is commendable in that it recognises that WWIDs more discriminative
situations than their non-disabled counterparts. The policy only describes health as a cause for
disability and not the access to healthcare for PWDs. Accessibility is only limited to physical
accessibility and not the inaccessibility issues faced by PWIDs.
3.3.2 National Reproductive Health Policy 2006
The policy was adopted and is administered by the MoCC under the Reproductive Health
department. Its mandate is the provision of maternal health services, and management of STIs
including HIV and AIDS. The policy has very few interventions towards WWDs. It focuses
more on the physical aspect of disability to the exclusion of other forms of disabilities like
intellectual disability.
WWIDs continue to be marginalised as this policy does not protect their rights. It is not in line
with the stipulations of the CRPD which mandates States Parties to take all measures to
eliminate discrimination against PWDs in all matters relating to access to reproductive
healthcare services.170 Furthermore, the CRPD emphasises equality, non-discrimination and
reasonable accommodation of PWDs in accessing reproductive health services. The focus of
the policy on physical access to reproductive healthcare services is discriminatory on WWIDs
whose specific needs are not reasonably accommodated but ignored.171 In that regard, the
policy does not fully accommodate the specific needs of WWIDs including the dissemination
of related information in a manner accessible to all women regardless of the type of their
disability. The fact that the policy preceded the adoption of the CRPD does not absolve the
170
171
CRPD art 25 (n 6 above).
CRPD, art 25 as read with Art 9 (n 6 above).
48
State from not recognising the specific needs of WWIDs as the CRPD did not bring in new
rights of PWDs, but it only built on the existing rights that PWDs already had.172
3.3.3 National Population Policy (1999)
The Policy recognises the rights of women to choose freely and responsibly the number,
spacing and timing of children and to have those choices fully respected. This essentially is
respecting the legal capacity of women, although it does not expressly refer to WWDs, the
policy is all encompassing and applies to all women despite the existence of a disability.
Furthermore, the policy underlines the need to recognise the aspirations of women, considering
the previous situation of marginalisation of women in society. The policy stresses the need to
recognise the need to address their health, education and other needs as their reproductive
choices and decisions would affect the future growth of the population and other related issues.
The policy proposes the key strategies that remove obstacles to make reproductive health
services easily accessible to all those who are sexually active.
The policy does not refer to WWIDs and thus is lacking in sensitivity to the specific needs that
are required by WWIDs when accessing reproductive health care. This is not in line with the
stipulations of the CEDAW Committee173 which mandates that States parties should take
appropriate measures to ensure that health services are sensitive to the needs of women with
disabilities and are respectful of their human rights and dignity. Policy measures are part of the
measures that the state party can take to ensure the realisation of the rights of WWIDs. PWDs
in Zimbabwe are invisible in reproductive health due to myths and stereotypes such as the
172
I. Shale Sexual and Reproductive health rights of WWDs: Implementing international human rights standards
in Lesotho (2015) African Disability Rights Yearbook 31-62 Available at: http://dx.doi.org/10.17159/24137138/2015v3n1a2 (Accessed on 13 June 2018).
173
CEDAW Committee’s General Recommendation No. 24 on Women and Health (Article 12).
49
belief that they are asexual beings who are incapable of parenthood. Thus, their recognition in
areas of access to reproductive health is not seen as a necessity.
3.3.4 Mental Health Policy 2004
This is the policy that implements the MHA. The aim of the policy is to harmonise the mental
health activities and to improve the quality of care for those with mental disabilities. There is
no mention in the policy of access to reproductive healthcare for WWIDs. The Mental Health
Policy, for instance, provides for universal access to psychiatric drugs. 174 Thus it is premised
on the Medical Model of disability which is mainly concerned about treatment and
rehabilitation of the PWDs. The policy further provides for free mental health treatment a
measure which ensures greater access to mental health care. But it does not fully resolve the
challenges of WWIDs especially in their access to reproductive healthcare services. The policy,
like other laws and policies in Zimbabwe is obsolete and must be amended to reflect the
standards of the CRPD.
3.4 Conclusion
This Chapter critically analysed Zimbabwe’s legal and policy framework in the context of the
right to legal capacity and the access to reproductive healthcare services for WWIDs. The
principal Act addressing disability issues, the DPA, was seen not to be in line with the CRPD
as it does not provide for the rights of PWDs and does not address the issues of access to
reproductive healthcare for WWIDs. The Act offers inadequate protection for WWIDs as it
does not even recognise intellectual disability as a form of disability. It is still couched in the
Medical Model of disability which has since been abandoned by the international standards in
favour of the rights-based model.
174
M. Liang, D. Machando, W. Mangezi, R. Hendler, M. Crooks, C. Katz, M. Abas, G. Thornicroft, M. Semrau,
H. Jack, and K. Kidia. (2016) Mental Health in Zimbabwe. Harare, Zimbabwe: Kushinga.
50
The Constitution on the other hand has embraced the rights-based model of disability and now
provides for the rights of PWDs. Although its provisions also exclude intellectual disability as
a form of disability, its equality clause can be interpreted to include everyone including PWIDs.
The Constitution also expressly provides for the right of access to medical services and these
services include reproductive health services for PWDs. This is commendable as it imposes an
obligation on the State to ensure that all PWDs access reproductive health services on an equal
basis with their non-disabled counterparts. The Constitution was seen to be more in line with
the CRPD than any other laws in Zimbabwe.
Other laws analysed were the Medical Services Act, Health Services Act and Mental Health
Act. All these laws do not have specific provisions dealing with PWDs and their access to
reproductive health services. In that regard, the laws are weak in terms of protecting the rights
of WWIDs in their access to reproductive health services.
In the policy arena, it was seen that Zimbabwe still does not have a policy on disability but
only a draft policy. The draft policy has comprehensive provisions that address disability
issues. Although it recognises intellectual disability, it does not specifically address the issues
of access to reproductive healthcare services by WWIDs. Other polices like the National
Reproductive Health Policy do not adequately provide for the specific needs of WWIDs. The
policy focuses more on physical access to reproductive healthcare services and ignores the
needs of WWIDs. The National Population policy is also inadequate in protecting the right of
access to reproductive health care services for WWIDs as it is not disability specific. There is
need for mainstreaming disability issues in all laws and policies to ensure inclusion of people
with disabilities. According to Murungi and Durojiye175 ensuring access to reproductive health
and rights demands practical measures to guaranteeing the rights, not only including
175
L.N Murungi & Durojaye (n 109 above).
51
accessibility of premises where reproductive health services are offered, but also the provision
of information on reproductive health in accessible format and flexibility to enable reasonable
adjustments where necessary to ensure that PWDs benefit from the services. The measures
must be clearly provided for in the laws and policies that are in force in Zimbabwe to ensure
the full realisation of the rights of WWIDs. In terms of the SADC Protocol on Gender and
Development,176 states parties must, in accordance with the SADC Protocol on Health and
other international human rights instruments to which SADC members are parties, adopt
legislation and related measures that consider their vulnerabilities, to protect PWDs. Zimbabwe
is a party to the SADC Treaty hence it is bound to comply.
Policy inclusion is another good alternative in the bid to mainstream the rights of WWIDs and
guaranteeing accessible reproductive healthcare services for WWDs. The issue of disability
mainstreaming was articulated by Ahumuza177 in a study conducted in Uganda that issues
affecting WWIDs with regards to access to reproductive healthcare must be well articulated in
policy and must be in line with the stipulations of the CRPD. Ahumuza178 found that there was
significant inclusion of issues affecting WWDs in Uganda’s policy framework thus; the
inclusion of WWDs has allowed greater conformity by service providers and easier access to
reproductive health by WWDs in Uganda. The policies in force in Zimbabwe are not
adequately harmonised with the provisions of the CRPD and there is a need to amend the policy
to reflect the provisions of the CRPD.
This Chapter having concluded that the legal and policy framework of Zimbabwe is inadequate
in dealing with the right legal capacity of WWIDs in the context of their access to reproductive
176
SADC Protocol on Gender and Development Art 9.
S.E Ahumuza, J.K Matovu, J.B Ddamulira and F.K Muhanguzi “Challenges in accessing sexual and
reproductive Health Services by people with physical disabilities in Kampala, Uganda (2014) Reproductive
Health:11.59 (Accessed on 14 August 2018 ) Available at: https://doi.org/10.1186/1742-4755-11-59.
178
S.E Ahumuza et al (n 177 above).
177
52
healthcare services, the next chapter will compare this system to that of India to come up with
the best practices for adoption in Zimbabwe.
53
CHAPTER 4
4.1 Introduction
Zimbabwe’s legal and policy frameworks were analysed in the previous Chapter. Several gaps
in laws and policies were exposed. The gaps include perpetuation of the Medical Model of
disability and the persistent denial of legal capacity to persons with disabilities. Considering
the gaps identified, the need for alignment of Zimbabwean laws and policies with the CRPD
cannot be over emphasized. In terms of the CRPD,179 State parties have an obligation to align
their laws with its provisions, to ensure that PWDs realize their rights fully allowed by their
capabilities. In the present Chapter the legal and policy frameworks of India are analysed in
comparison with those of Zimbabwe. India is more advanced than Zimbabwe in aligning its
laws and policy frameworks in line with the CRPD. It is hoped that the changes and best
practices in these jurisdictions will inform legislative and policy reform in Zimbabwe.
India signed and ratified the CRPD in 2007.180 It has since then begun the process of aligning
its laws with the CRPD and the enactment of new laws that are in line with the provisions of
the CRPD. Unlike Zimbabwe, India has reviewed its principal legislation on disability, the
Persons with disabilities Act of 1995. The principles set to be implemented to ensure the
realization of the rights of PWDs are respect for inherent dignity, individual autonomy
including freedom to make one’s choices and independence of persons.181 Its Constitution and
the Mental Health Act also include rights of PWDs. The system in India follows the rightsbased approach to disability and is ahead of Zimbabwe in terms of legislation and policy. It is
hoped that Zimbabwe adopts the best practices that are exhibited by the Indian disability
framework.
179
CRPD Article 3 (n 6 above).
A. Dhanda & R. Raturi “Harmonising laws with the UNCRPD” (2010) Report prepared by the Centre for
Disability Studies NALSAR University of Law, Hyderabad.
181
Rights of Persons with Disabilities Act 2016.
180
54
4.2 LEGAL FRAMEWORK OF INDIA
4.2.1 Constitution of India
The Constitution of India provides for the rights of PWDs. In terms of Article 15(1), the
Constitution ensures non-discrimination of the citizens of India including PWDs although there
is no specific mention of PWDs in the clause. The Constitution of India has guaranteed the full
protection of the rights of PWDs.182 In Part III of the Constitution, Article 14 and Article 16
ensure the equality of opportunity to all the citizens of India. Although there is no specific
mention of PWDs, it can be inferred that PWDs are included because the ‘all’ is inclusive. The
Constitution in Article 38 require the State to promote the welfare of the people by securing a
social order in which social, economic and political justice can inform all institutions of
national life. The State is also required to make efforts to eliminate inequalities in status,
facilities and opportunities amongst individuals including PWDs. The Constitution of India
does not specifically mention the right to legal capacity for PWDs but, Article 14 guarantees
that all PWDs will enjoy equality before the law or equal protection of the laws within the
territory of India. Thus, the constitution recognizes PWDs as subjects of rights and persons
before the law.183 The Supreme Court of India has interpreted Article 21 of the Constitution of
India to also include the right of a woman to make reproductive choices as a dimension of
personal liberty.184
4.2.2 Mental Health Act 2017
The first mental health legislation in India was introduced in 1858, by the enactment of the
following Acts relating to mental health; The Lunacy (Supreme Courts) Act, the Lunacy
L. Yadav “Analysis of Right of the Person with Disability Act, 2016” (2017).
Committee on the Rights of Persons with Disabilities, Initial report submitted by India under article 35 of the
Convention, due in 2011, (2015) CRPD/C/IND/.
184
Suchita Srivastava & Another v Chandigarh Administration AIR 2010 SC 235 Available at
http://censusindia.gov.in/Census_And_You/disabled_population.aspx.
182
183
55
(District Courts) Act and the Indian Lunatic Asylum Act.185 The 2017 Act replaces the Mental
Health Act of 1985 which had become obsolete in light of the CRPD. This new Act unlike
the Zimbabwean MHA which follows the Medical Model of disability is modelled on the
CRPD and adopts the human rights approach to disability. In Zimbabwe, the Medical Model
of disability continues to be part of the Zimbabwean MHA. In its preamble, the Act alludes to
the tripartite obligations of the State by stating that its purpose is to protect, promote and fulfil
the rights of PWDs, unlike the Zimbabwean MHA which does not include rights of PWDs who
are institutionalized and those that are not. The position in India is commendable and is in a
bid to align and harmonize laws with the CRPD.
The Indian MHA is commendable by providing for the right to legal capacity for persons with
mental disabilities unlike the Zimbabwean MHA which does not recognize the right to legal
capacity for PWDs, therefore WWIDs are more likely to have greater access to reproductive
health care services than those in Zimbabwe. In section 4, the Act provides for the right to legal
capacity for all persons with mental disabilities. In that regard, they have a right to make
decisions regarding their mental health or treatment. The underlying principle of the Act is to
allow PWDs to be involved in decision making about their health to the fullest extent allowed
by their capabilities.186 Firstly, if the person is capable of understanding the information that is
relevant to make the decision, secondly if they can appreciate the consequence of the decision
and able to communicate the decision through speech, expression, gesture or by any other
means then they are entitled to making decisions which are legally binding.187 It is also a
requirement in terms of the Act that, a person with mental or intellectual disability must be
185
C.L Narayan, D. Shikha. Indian legal system and mental health. Indian Journal Psychiatry.
(2013);55(Suppl):177–81.
186
P.R Pinnaka “Right to procreative autonomy of Mentally challenged Women in India’ (2012).
187
Section 4(1) MHA 2017.
56
given adequate information through any medium of communication that they understand to
enable them to make decisions about their mental health.188 The Act further places an obligation
on everyone to respect any decision made by the person with mental disability even if they are
of the view that the decision made was inappropriate or wrong. That by itself shall not mean
that the person does not have capacity to make decisions if they fit into the category laid out in
section 4(1) of the Act.189
There is room for involuntary treatment in the CRPD.190 Thus, the CRPD reaffirms the legal
capacity of PWDs at all times.191 The Convention requires that States revise their laws to make
them compliant with the convention. In terms of admissions of persons with mental disability,
the Act provides that all such admissions must be individual admissions which means that the
person with the mental or intellectual disability has the prerogative of admitting themselves
into an institution except where such person requires minimal support in making decisions.192
This is unlike the position outlined by the Zimbabwean MHA which provides for mandatory
institutionalisation of persons with mental or intellectual disabilities even against their will
contrary to their right to legal capacity as provided in Article 12 of the CRPD. In the Indian
MHA there is no mandatory institutionalization as the PWDs can choose to obtain treatment in
nursing homes as out-patients. Persons with a mental or intellectual disability can seek
voluntary admission in Government Hospitals and nursing homes on their own accord not with
the assistance of a guardian. The Indian MHA does not consider the ‘best interests’ principle
188
Section 4(2) MHA 2017.
Section 4(3) MHA 2017.
190
B.D Kelly “An end to psychiatric detention? Implications of the United Nations’ Convention on the Rights of
PWDs.” (2014) British Journal of Psychiatry.2014;204:174–5. See also Article 12 and Article 8 of the Protocol
on Disability in Africa.
191
Article 12 CRPD (n 6 above).
192
Section 85 (1) (2).
189
57
but gives effect to the principle of autonomy for PWDs and considers their ‘wills and
preferences’ as opposed to the decisions of their guardians.
The Act further provides for the rights of persons with a mental or intellectual disability who
are admitted in institutions of rehabilitation. The PWDs has a right to access healthcare services
and treatment without any discrimination based on disability.193 This is done through the
provision of reasonable accommodations to allow their special types of disabilities to be
considered at every stage of accessing healthcare services including reproductive healthcare.
The persons with mental or intellectual disability who have fully rehabilitated have a right to
be discharged when cured and entitled to leave the Mental Health facility in accordance with
the provisions of the Act.194 This is unlike the position in Zimbabwe where there is a potential
for the person to be institutionalised perpetually if there are not claimed by their relatives or
guardians. A person with a mental or intellectual disability has a right to obtain the services of
a legal practitioner by order of the magistrate or district court if he has no means to engage a
legal practitioner or his circumstances so warrant in respect of proceedings under the Act. In
tandem with the right to legal capacity, the person with mental disability has a right to live
independently in the community.195 This is to protect their dignity and individual autonomy as
they are full rights holders.
Furthermore, the Act provides for the right to equality and non-discrimination.196 Persons with
a mental or intellectual disability have a right to be treated on an equal basis with their nondisabled counterparts. The provision of rights of persons with mental or intellectual disabilities
in the Indian Act is commendable and is unlike the situation in Zimbabwe where their rights
193
Section 18 (2).
Section 30.
195
Section 19(1).
196
Section 21 (1).
194
58
are not included. This affects the realisation of the rights of PWDs. Hence the Indian MHA is
more desirable for its efforts to harmonise Indian mental health laws with the CRPD.
4.2.3 The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act 1999
The Act197 establishes a support organization for PWDs with high support needs. It makes a
provision for setting up caretaking arrangements for PWIDs and developmental disabilities
training them for advocacy and empowerment. This envisages a shift to universal legal capacity
and supports the exercise of legal capacity to replace substituted decision making. 198 The
purpose of the Act is to protect PWIDs and development disabilities whose care givers or
parents have died. This protection is supposed to be provided by establishing a National Trust
with a mandate to enable and empower PWDs to live independently and as fully as possible
within and close to their communities and to facilitate the realization of equal opportunities,
protection of rights and full participation of PWDs.199 The Act is the first Act in India to
provide for limited guardianship of PWIDs. In this regard limited guardianship is only
considered in cases where PWIDs have high support needs. It is only limited to the extent that
the person cannot decide concerning their welfare. But such decision is only made with their
input. The Act requires the appointment of authorities to consider whether a guardian is
required at all and if so then which areas of the lives of PWDs should be subjected to the
guardianship arrangement. 200
197
National Trust Act 1999.
Concluding Observations of the CRPD Committee on India.
199
Initial Report submitted by India under Article 35 of the Convention, due in 2011, Submitted on 3 August 2015
CRPD/C/IND/1.
200
Section 13.
198
59
4.2.4 The Rights of Persons with Disabilities Act, 2016
This Act is the principle legislation that provides for the rights of PWDs in India. The Act was
born out the ratification of the CRPD by India in 2007. Several consultations which
commenced in 2010, culminated in the promulgation of an Act that is aligned to the spirit and
tenets of the CRPD.201 The Act replaced the PWDs (Equal Opportunities, Protection of rights
and full Participations) Act 1995 which was more focused on the social welfare or charitybased model of disability and the main focus was on prevention and early detection of
disabilities.202 Thus, the Act is a move towards the human rights approach as provided for by
the CRPD.
The Act in its preamble states the principles as articulated in Article 3 of the CRPD. This is
unlike the case in the Zimbabwean DPA which is not premised on the core principles of the
CRPD. The purpose of the Indian Act as outlined in the Preamble to the Act, is the
empowerment of the PWDs by providing equality in treatment and opportunities, accessibility
to general services, non-discriminating behaviour and respect for inherent dignity, individual
autonomy including the freedom to make one’s own choices, and independence of persons.
This is in line with requirements of the right to legal capacity as provided for in the CRPD.
Definition of disability is much wider as compared to the previous Act. It has widened the
scope of disability to include other impairments which had previously not been considered as
disabilities. Intellectual disability is also under the purview of the definition of disability which
is a great leap forward in administering social justice to the PWD. The position under the Indian
Act is commendable unlike the position in Zimbabwe in the DPA203 where only physical and
C. L. Narayan & T. John (2017) “The Rights of Persons with Disabilities Act, 2016: Does it address the needs
of the persons with mental illness and their families”. Available at www.indianjpsychiatry.org .
202
B. V. Davah (2012) Legal Frameworks for and against People with Psychosocial Disabilities Economic and
Political Weekly Vol 47.No. 52 Available at: https//www.jstor.org/stable/41720558.
203
Section 2.
201
60
mental disabilities are formally recognised as disabilities to the exclusion of other forms of
disabilities like intellectual disabilities.
The Rights of Persons with Disabilities Act removes the nomenclature ‘mental retardation’ and
replaces it with Intellectual disability, unlike the DPA of Zimbabwe which specifically refers
to physical and mental disabilities. The inclusion of intellectual disability has been formulated
using the text included in Article 1 of the CRPD. The specific mention of which would ensure
that persons who have that type of disability are covered by the Act and their rights guaranteed
by the Act. The State is enjoined to ensure that all WWDs enjoy rights equally with others.204
In the purview of legal capacity, the Act guarantees the right to legal capacity for all PWDs205
on an equal basis with others in all aspects of life and has the right to equal recognition before
the law. A universal legal capacity has been presumed for all PWDs even those with acute
conditions of intellectual disability.206 The Act provides for a framework of supported decision
making which is provided for in the CRPD and is non-existent in the Zimbabwean legal
framework.
To enhance the autonomy and independence of PWDs, the Act prohibits medical procedures
resulting in infertility of PWDs to be done without the free and informed consent of the PWDs.
This is in stark contrast to the posting in Zimbabwe as shown by the MHA,207which allows for
a parent or guardian to apply to court for an order to sterilize a WWIDs. The Indian Act allows
for WWIDs to greatly express their autonomy and effectively take control of their reproductive
health.
204
Section 3(1)
Section 13(1)
206
Section 13(2)
207
MHA (n 8 above).
205
61
The Act abolishes plenary or total guardianship.208 Although it does not totally abolish the
system of guardianship, it recognizes the importance of limited guardianship in cases where
higher support is required by the PWIDs. The new system is characterized by ‘joint decision
making which operates on mutual understanding and trust between the guardian and the person
with disability.209 The Limited Guardian is under the obligation to closely consult with persons
with disability to determine their will and preference.210
It is also provided that PWDs who consider themselves as in need of support, may apply to
the authority appointed by the Government for the same and the authority shall take steps to
provide the support.211 The PWDs has the right to alter, modify or dismantle the support system
and in a case of conflict of interest the support person would withdraw from providing the
support.212 The Act has severely limited the functions of substituted decision making in the
form of guardianship by only appointing through the courts a limited guardian to take legally
binding decisions on behalf of the PWD.213 But this does not in any way strip away the right
to legal capacity that the PWD has. Limited guardianship has been defined as to mean a system
of joint decision-making which operates on mutual understanding and trust between the
guardian and the PWD which is limited to a specific period and for a specific decision and
situation and shall operate in accordance to the will of the PWD. When the Act came into force,
all the guardians that had been appointed under the Persons with Disabilities act of 1995, where
deemed to function as limited guardians. The system of guardianship in Zimbabwe is unlike
208
Section 13(1).
Section 13(3).
210
E. Flynn & A. Astein-Kerslake, (2014) The Support Model of Legal Capacity: Fact, Fiction or Fantasy, 32
Berkely Journal of International Law.
211
Section 38.
212
Section 13(4) (5).
213
Section 14.
209
62
that provided for in the Indian Act. In Zimbabwe where a person is deemed to lack capacity,
they automatically lose their decision-making powers.
4.2.5 Medical Termination of Pregnancy Act 1971
The Act recognizes the right to legal capacity of WWIDs. It provides hat the decision to
terminate a pregnancy rests with the mother.214 The Act clearly respects the autonomy of
WWIDs who are above the age of majority to control their fertility. In that regard, WWIDs in
India are in a better position to exercise their legal capacity in accessing reproductive health
care services unlike in Zimbabwe where the Termination of Pregnancy Act 215 does not even
refer to WWIDs.
4.3 INDIAN POLICY FRAMEWORK
4.3.1 National Policy for persons with disabilities 2006
Although the policy predated the CRPD, it was grounded on the values and principles of
equality, freedom, justice and dignity enshrined in the Constitution of India.216 The policy
makes specific mention of WWDs by endorsing the need for special attention to the multiple
discrimination that they face. In the area of autonomy PWDs can express “independence” or
“self-determination”. For instance, PWIDs will have recourse to an independent third-party
regarding issues of consent and choice without that support person making the decision on
behalf of the PWIDs. Thus, the policy speaks to the support mechanisms provided for by the
CRPD. This policy although it predates the principal legislation on disability in India, is
commendable unlike the draft policy in Zimbabwe which does not recognise the right to legal
capacity.
214
Section 4 (a) of the MTP Act.
Termination of Pregnancy Act [Chapter 15:10].
216
Preamble to the National Disability Policy 2016.
215
63
4.3.2 National Health Policy 2017
The Indian National Health Policy calls for ensuring a more equitable access to health care
needs including reproductive health, of the people in the country which include PWDs. The
policy calls for ensuring a more equitable access to healthcare services across the social and
geographical expanse of the country. The policy also recognizes that digital technology can be
leveraged in contexts where access to qualified psychiatrists is difficult: provision of internetand mobile-based services have been suggested and tested in other contexts for the following
purposes: multi-media based interactive online courses for training medical officers in
specialized skills required for provision of mental healthcare; multi-media and interactive
applications for diagnosis of mental disorders and preliminary prescriptions to assist mental
healthcare workers; and interactive therapies for common mental challenges such as stress and
low-intensity depression in local languages which can be used flexibly.
4.3.3 National Mental Health Policy 2014
The policy was implemented after India had ratified the CRPD. It provides for human rights
and dignity of persons with mental disabilities and that they should be respected, protected and
promoted.217 The policy also provides that mental healthcare should promote and protect the
autonomy and liberty of persons with mental or intellectual disabilities. In terms of access to
mental healthcare, the policy states that its objective is to increase access to and utilization of
comprehensive mental health services. The policy is commendable unlike the Zimbabwean
Mental Health Policy which does not provide for the rights of persons with mental or
intellectual disability and the right to legal capacity. The policy has been aligned to the
provisions of the CRPD.
217
Clause 2.6 Mental Health Policy India.
64
4.4 CASE LAW ANALYSIS
4.4.1 Suchita Srivastava &Another v Chandigarh Administration218
In this case a woman who was diagnosed with intellectual disability was found pregnant
because of rape, while she was institutionalized in a home for persons with mental disabilities.
The Chandigarh administration then filed an application to terminate the pregnancy on the
strength of an opinion from a medical board which diagnosed her to be mildly mentally retarded
and that the concept of motherhood was beyond her understanding and stated there were
apprehensions of complications during the pregnancy. When doubts were expressed regarding
her stability, a new medical board was constituted to analyse the woman’s ability to bear a
child. She was diagnosed as having mild to moderate intellectual disability. She could do her
daily activities and understood that she was carrying a child and was looking forward to it. The
expert body suggested that she needed a congenial environment and support as her mental
capacity was limited and felt that any decision to terminate the pregnancy should be on a
holistic approach and so did not recommend an immediate termination. The High Court ruled
for immediate termination of the pregnancy. The court adopted ‘parens patriae’ approach (A
doctrine rooted in common law where the State makes decisions to protect the interests of those
who are unable to take care of themselves) and directed abortion even when she was past 19
weeks pregnant by then.
On appeal, it was noted that the case did not conform to the requirements of the MTP Act which
states that the decision to terminate a pregnancy rest with the mother. It was further stated that
the requirement of guardian’s consent was not applicable as the MTP Act differentiates and
excludes intellectual disability from mental disability. In this case the mother was strongly
218
Suchita Srivastava & Another v Chandigarh Administration AIR 2010 SC 235 Available at
http://censusindia.gov.in/Census_And_You/disabled_population.aspx .
65
against abortion and the court ignored her wishes and never considered the provisions of the
CRPD which provides for the reproductive rights of PWDs.
The Supreme Court overturned the High Court’s decision stating that the pregnancy cannot be
terminated without the woman’s consent and proceeding with the same would not serve her
“best interests”. The court was of the view that a woman’s right to privacy, dignity and bodily
integrity must be respected. It stated that, there must be no restriction whatsoever on the
exercise of reproductive choices such as, a woman’s right to refuse participation in sexual
activity or alternatively the insistence on the use of contraceptive methods. Reproductive
choices can only be limited in accordance with the requirements of the MTP Act, 1971 as there
are compelling interests to protect the unborn child and not because of disability. This
judgment is considered as one of the progressive judgments in the line of reproductive
autonomy which gives the woman the rights to abort or bear a child.
Although this case was determined prior to the adoption of the CRPD, it remains a locus
classicus in India on the question of reproductive autonomy of WWIDs. The Indian Supreme
court recognised the need to respect the decisions of a WWID, thereby posing a significant
move towards the direction of protection of legal capacity and autonomy as provided for in the
CRPD.
4.7 Conclusion
A comparison of the Indian legal system to that of Zimbabwe on the right to legal capacity
showed that Zimbabwe is falling short of best international standards. Even though India is still
developing its laws and policies to match the international best practices as provided for in the
CRPD, it is more advanced than the status quo in Zimbabwe. India is now well advanced in
66
the reform process and has made a considerable headway in developing consensus on the need
to move away from guardianship towards a regime of supported decision making.219
In India for instance, there is the Mental Health Act which was promulgated in 2017 and which
recognises the right to legal capacity for persons with mental or intellectual disabilities.
Furthermore, India has also revised its principal legislation on disability which is; The rights
of Persons with Disabilities Act of 2016. The Act provides for the rights of PWDs and is in
sync with the provisions of the CRPD. The Act has significant provisions on legal capacity and
the protection of autonomy for PWDs. The Indian system also provides for laws like the
National Trust Act which recognises the individual autonomy of PWDs and the idea of living
independently having full control of their decisions. The Medical Termination of Pregnancy
Act of India also recognises the autonomy of WWIDs by guaranteeing that their autonomy
shall be respected when making decisions about whether or not to keep their pregnancy. This
was emphasised by the court in the case of Suchita220 where the court upheld the right of legal
capacity for a woman who had an intellectual disability who was challenging the institution’s
decision to terminate her pregnancy. This shows that the situation for WWIDs in India in
accessing reproductive healthcare services and regulating their autonomy is better than the
WWIDs in Zimbabwe, where the right is non-existent. Although the system in India does not
totally dismantle the guardianship system, it severely limits the powers of guardians and has
more respect for the will and preference of the PWD.
219
A. Dhanda (2014) Respecting Voice and Choice for People with Disabilities and India and Ireland. Sharing
Perspectives on the past and the future of legal Capacity. A Joint Project of NALSAR University of Law, India
and the National University of Ireland (Galway) Centre on Disability Law & Policy with the support of the Open
Society Foundation. Available at: www.nalsar.ac.in.
220
(n 218 above).
67
CHAPTER 5
5.1 Introduction
The legal and policy frameworks of Zimbabwe as discussed in Chapter 3 have been shown to
have a lot of gaps by not providing for the right to legal capacity and thereby denying access
to reproductive health care services for WWIDs. The present Chapter suggests
recommendations for reform to the legal and policy framework of Zimbabwe.
There are gaps in the Constitution in that, it does not provide for the right to legal capacity for
PWDs. It only provides for a blanket right to legal personhood in Section 56. The Constitution
is rather limited in its protection of the rights of PWDs to only persons with physical and mental
disabilities to the exclusion of persons with other forms of disabilities such as intellectual and
sensory disabilities. Furthermore, the Constitution does not provide for the concept of
reasonable accommodations which enjoins states to make necessary adjustments where
necessary and as required by PWDs as a measure towards fully realising their rights.
In addition, the DPA medicalises disability as opposed to the international best practices which
are premised on the Human rights model of disability. In general, it does not provide for the
rights of PWDs. Its definition does not include PWIDs. The Act is inconsistent with the
stipulations of the CRPD.
Furthermore, the MHA does not provide for the rights to legal capacity for persons with mental
and intellectual disabilities. It promotes institutionalisation of PWDs who lose their autonomy
and might be perpetually institutionalised. The Health Services and Medical Services Acts do
not refer to PWDs. Access to reproductive healthcare is also not provided for in the Act. The
Acts further does not recognise the need for medical, psychological and functional treatment
of PWDs. In addition, they do not make provision for accessible healthcare services for
WWIDs.
68
In terms of policy, Zimbabwe does not have a disability policy in place but only has a draft.
The draft attempts to align to the CRPD but does not include the right to legal capacity for
PWDs. In terms of accessibility there is much focus on physical accessibility rather than
accessibility for persons with intellectual and psychosocial disabilities. Other polices which are
in place like the National Population Policy; do not specifically deal with intellectual disability.
The Mental Health Policy and the National Reproductive Health Policy do not provide for the
legal capacity for PWDs.
In comparison with the best international standards and practices, this study analysed the Indian
system with regards to the right to legal capacity in the context of access to reproductive
healthcare services. It is recommended that Zimbabwe should domesticate the CRPD and adopt
mechanisms for its implementation to ensure that PWDs realise their rights as provided for in
the CRPD. Specifically, Zimbabwe should amend its Constitution to include the right to legal
capacity for PWDs. It should also repeal the DPA and substitute it with an Act that speaks to
the rights of PWDs. Furthermore, the current MHA should be amended to include legal
capacity for PWDs and to strike off all provisions that give rise to Substituted Decision-Making
and include provisions for Supported Decision-Making. In terms of policy, the National
Reproductive Health policy, National Population Policy and the Mental Health Policy, should
be amended to include WWIDs and to implement the Support networks to ensure that the
autonomy for the women is respected. Zimbabwe should hasten to implement the National
Disability Policy to ensure that its obligations under the CRPD are implemented and that PWDs
realise their rights on an equal basis with their non-disabled counterparts. In addition,
awareness raising campaigns should be adopted to help the community to understand the rights
of PWDs and the PWDs themselves. Furthermore, there should be trainings of service
providers on the issues of disability, to ensure that service provision is accessible to PWDs
especially those with intellectual disabilities.
69
5.2 SUMMARY OF RESEARCH FINDINGS
5.2.1 Zimbabwe’s Legal Framework
Zimbabwe’s laws are premised on the Medical Model of disability and the status approach is
used to determine the incapacity of WWIDs. Laws like the MHA for instance constantly refer
to PWDs as “patients” thereby reinforcing the view that disability is an illness that can be cured.
Furthermore, the DPA defines disability following the medical model of disability thereby
failing to appreciate the contribution of society’s attitudinal and environmental factors which
contribute to the barriers faced by PWDs.221
The Zimbabwean legal system does not recognise the right to legal capacity for PWDs. The
Constitution recognises legal personhood as opposed to legal capacity,222 which make disables
PWDs, especially those with mental and intellectual disabilities from acting on their own
accord and exercising their autonomy. The DPA does not provide for the right to legal capacity
for PWDs, thus making it impossible for WWIDs to exercise their autonomy and selfregulating their reproductive health. thereby falling short of international best practices as
provided for in the CRPD. The MHA also does not recognise the right to legal capacity for
PWDs but rather provides for a system of guardianship which basically strips away the rights
of PWDs from making decisions on their own.
PWDs have minimal recognition in Zimbabwe as the only Act that refers to them is the MHA
albeit without offering any protection to their right to legal capacity. Another weakness of the
MHA is that it synonymously refers to intellectual disability with mental disability without
paying due regard to its uniqueness in contradistinction to the provisions of the CRPD which
recognises intellectual disability as a separate and distinct form of disability. Furthermore, the
MHA denies legal capacity based on disability. The Constitution and the DPA only refer to
E. Mandipa “A critical analysis of the legal and institutional frameworks for the realisation of the persons with
disabilities in Zimbabwe” (2013) Africa Disability Yearbook Volume 1.
222
Section 56.
221
70
physical and mental disability to the exclusion of intellectual disabilities, hence it is arguable,
firstly that they equate intellectual disability to mental disability or that persons with an
intellectual disability are excluded from the rights provided in those Acts.
5.2.2 Substituted decision-making as opposed to Supported decision-making
Zimbabwe continues to uphold the system of substituted decision-making which recognises
guardians, parents and curators to be vested with the decision-making authority for all issues
pertaining to PWDs. The system is premised on the ‘best interests’ principle which has now
been obsolete in light of the ‘will and preference’ principle as stipulated in the CPRD. The
MHA provides for a system whereby the court declares a person ‘mentally disordered or
intellectually handicapped’ and to appoint guardians or curators to manage the affairs of the
PWD. Further in section 110A of the MHA guardians are given a right to apply to the court for
authorisation to consent on behalf of a WWIDs for an order authorising sterilisation. This
results in the breach of the right to legal capacity for the WWIDs.
5.2.3 Flawed policy framework
It has been shown that Zimbabwe has no policy framework in place for disability thus
negatively the implementation the rights of PWDs. However, there is a draft policy in place
which has numerous significant flaws. The draft policy does not provide for the right to legal
capacity for PWDs which perpetuates the incapacity for PWDs. Furthermore, issues of
accessibility in the draft policy are only limited to persons with physical disabilities to the
exclusion of PWIDs. This has serious implication for access to reproductive healthcare services
for WWIDs. Other polices that are in place are the National Reproductive Health Policy which
does not provide for access to reproductive healthcare services for WWIDs. In addition, the
National Population policy is basically silent on the reproductive health for WWIDs. The
Mental Health policy also does not make provision for access to reproductive healthcare of
WWIDs.
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5.2.4 On a Comparative Basis
On a comparative basis, this study focused on jurisprudence from India. It was seen that India
has made significant changes to its laws and policies in terms of the right to legal capacity for
PWIDs by amending the laws or repealing Acts that where not inconformity with the CRPD.
India has abolished the system of substituted decision making and have set up new system of
supported decision making. There is provision of the right to legal capacity in the Acts which
results in the recognition of autonomy of the PWDs. The new system of Supported DecisionMaking and the recently adopted Acts on Disability issues are hoped to inform legal reform in
Zimbabwe.
In light of the above findings, the following recommendations are made.
5.3 SPECIFIC RECOMMENDATIONS
5.3.1 Constitutional Reforms
Section 22 of the Constitution should be amended to include constitutional protection of
supported decision-making for PWDs. The support should not be premised on the limitation
based on the resources available to Government as this will defeat the whole process. Further
the section should include intellectual disability. In addition, section 56 should be amended to
include legal capacity. Section 76 on health should specifically refer to WWIDs and give
special recognition to the special needs that WWIDs require to access their reproductive
healthcare services. Most importantly, Section 83 should be amended to include intellectual
disability. This is in line with its obligation in the CRPD were the type of disability was
specifically included. The fact that the Constitution does not specifically mention intellectual
disability means that PWIDs are not afforded the rights that persons with physical and mental
disabilities have. The concept of reasonable accommodation should be entrenched to enable
WWIDs to access reproductive healthcare services. The right to legal capacity should also be
included in the proposed amendment.
72
5.3.2 Substitution of the DPA into a new Act
The DPA must be repealed in its entirety and a new law be enacted which includes the rights
of persons with disabilities.223 The Act should specifically provide for the right to legal capacity
as provided for in Article 12 of the CRPD. The definition of disability should change to reflect
that provided for in the CRPD which includes all forms of disability. The Act should prohibit
guardianship but emphasise on autonomy. It should also provide for a support mechanism for
PWDs in line with General Comment No.1 of the CRPD. It should reinforce the question of
access to services for PWIDs. The Act should also provide for the rights of WWIDs in
recognition of their double marginalisation.
5.3.3 Amendments to the MHA
The Act should dismantle the system of Substituted decision-making provided for in the Act
and replace it with a system of supported decision-making. Sections 110A, 109224 and other
similar provisions that provide for the guardianship, restricting legal capacity based on mental
and intellectual disability and promote the “Best interests” principle must be repealed and
amended to reflect the protection of individual autonomy, respect for choices and the will and
preferences of PWDs. The Act should emphasise on equal treatment of PWDs with their nondisabled counterparts.
5.3.4 Amendments to the Health Services Act
The Act should be amended to recognise the specific health needs of PWDs and in particular
the reproductive health of WWIDs. The Act should also recognise the higher level of support
required by WWIDs in accessing reproductive healthcare services. It should further make it
223
Lessons can be drawn from the Figi Rights of Persons with Disabilities Act 2018 (Act 4/2018), Indian Rights
of Persons with Disabilities Act.
224
Section 110A provides for the right of a Guardian to apply for a court order for involuntary sterilisation of a
woman with Intellectual Disabilities and Section 109 Provides for the appointment of Curators by the High Court
to manage the affairs of persons with intellectual and mental disabilities.
73
mandatory for healthcare personnel to be trained on issues of disability in handling issues of
WWIDs before recruitment.
5.3.5 Proposed Changes to the Medical Services Act
Section 12 on prohibition of discrimination when admitting patients, should be amended to
include disability as a ground for discrimination. To expand the mandate of the Minister of
Health to include the power to constantly develop medical services that are sensitive to the
healthcare needs of PWDs.
5.3.7 Specific amendments to the policies
Zimbabwe should develop a national policy and practice guidelines for meeting the
reproductive health rights of people with disability in Zimbabwe. The National Reproductive
Health and National Population polices of Zimbabwe must be aligned to the CRPD and be
disability sensitive. The policies should also refer to PWIDs and provide for support to PWDs
who require it upon request.
5.4 GENERAL RECOMMENDATIONS
5.4.1 Domestication and Implementation of the CRPD
Zimbabwe is a dualist country and in terms of Section 34 of the Constitution, the State is
mandated to ensure the domestication of all international instruments that Zimbabwe is a party
to. Zimbabwe ratified the CRPD almost five years ago and still has not domesticated the
Convention. Domestication alone will not change the situation of PWDs without effective
implementation of the rights provided for in the CRPD, by coming up with comprehensive
polices that will enable PWDs to realise their rights. This will ensure that Zimbabwe is in line
with International best practices. It will also ensure that WWIDs realise their right to legal
capacity in access to reproductive healthcare services.
74
5.4.2 Awareness raising
It is proposed that, the State provides awareness-raising programs on the right to legal capacity
for PWDs which must include the community, service providers, Disability Organisations and
PWDs. It is an obligation of the State in terms of the CRPD225 that health professionals must
provide care of the same quality to PWDs as to others, including based on free and informed
consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of
PWDs through training and the promulgation of ethical standards for public and private health
care. Furthermore, in terms of Article 8 it is also an obligation of the state to raise awareness
and fight against stereotypes and prejudices against PWDs. Raising awareness will help PWDs
to know their rights and will also result in legal reform.
5.4.3 Training of Service Providers
It is recommended that Professional development for health service providers that addresses
attitudes towards PWIDs be provided.226 Disability-specific education and training initiatives
could be developed collaboratively; clinicians and researchers could collaborate with scholars
in disability studies and related areas of study, as well as with individual WWIDs to learn about
their lived realities and the definitions and approaches to disability most relevant to this patient
population.227 According to the Committee on the CRPD’s concluding observations on
Nepal228 training should be provided by the State Party in consultation and co-operation with
PWDs and their representative organisations the national, regional and local levels for all actors
on the recognition of legal capacity of PWDs and the principles of supported decision-making.
225
Article 25 CRPD.
WWDs Victoria ‘Access to Health Services for WWDs’ www.wdv.org.au.
227
L. A. Tarasoff Experiences of Women With Physical Disabilities During the Perinatal Period: A Review of the
Literature and Recommendations to Improve Care. Health Care for Women International, 36:88–107, 2015
Taylor & Francis Group, LLC.
228
Concluding observations by The Committee on the CRPD Nepal CRPD/C/NPL/Co/1.
226
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5.4.4 Adoption of a National Policy on Disability
Zimbabwe should hasten to adopt a national disability policy. While the draft policy is desirable
it must not be adopted in its current form. The policy should mainstream the issues of WWIDs
in its anti-discrimination provisions. It should provide extensive provisions on accessibility for
WWIDs. The policy should also be amended to include the right to legal capacity among other
rights that are provided for in the CRPD.
5.4.5 Adoption of a specific Capacity Act
Zimbabwe can adopt a specific Act that provides for support for PWDs. Under the Act, the
State must be responsible for developing, supporting, promoting and offering support services
for establishing safeguards to ensure a high quality of support and its compliance with
standards such as respect for will and preferences of the person, freedom from conflict of
interest and undue influence and being tailored to individual needs. The support should be
available to all regardless of the level of support required. PWDs should have a right to refuse
the support. Some safeguards must be put in place to ensure that the support relationship is not
abused, whereby persons requiring support enter into agreements with support persons.
5.5 CONCLUSION
The problem identified by the research is that WWIDs are being denied the right to legal
capacity in the access to reproductive healthcare services. This takes away the independence
to decide issues pertaining to their reproductive health. In terms of legislation and policy
framework, Zimbabwe follows the guardianship system whereby the decision-making
authority of PWDs to another person who makes binding decisions for them.
The right to legal capacity has been defined in Article 12 of the CRPD in a way that no other
international treaty or convention has done before. The Article reinforces the concept of
universal legal capacity for all persons despite the existence of a disability. This expunges the
76
dominant Medical Model of disability that was once acceptable in the International legal
system and is still being followed in many countries including Zimbabwe. The concept of legal
capacity as provided for in the CRPD presents a human rights approach to legal capacity.
The research also identified the unique challenges and the discrimination faced by WWIDs due
to their disability and by them being women. The study also showed the high standard of
support that is required by WWIDs to effectively access reproductive healthcare services or
exercise their independent autonomy. The CRPD Committee in its General Comment Number
1 on Article 12, has unequivocally made it clear that persons with Intellectual disability require
support to make decisions about their reproductive health. The Committee also in its General
Comment Number 2 emphasised the need for States to reasonably accommodate persons with
Intellectual disabilities to enhance accessibility of all services. The CRPD has emphasised that
the provision of support is the duty of the State which shall provide such support upon the
request of the PWDs.
In Zimbabwe, this research found out that the system remains couched in the discriminatory
Medical Model of disability which is exhibited by the Acts such as the DPA which does not
recognise intellectual disability and furthermore does not recognise the rights of PWDs. In
addition, the system still follows the Guardianship system whereby guardians or curators are
appointed by the High Court of Zimbabwe to manage the affairs of PWDs through making
binding and recognisable decisions on behalf of PWDs. The laws do not recognise the capacity
of PWDs to make choices on their own and have so many flaws that make the realisation of
the rights of PWDs inconceivable. The DPA does not address the issues of access to
reproductive healthcare for WWIDs. The Act does not recognise intellectual disability as a
form of disability.
77
Although the constitution has embraced the human rights model it is still to be aligned with the
CRPD by the inclusion of two critical concepts of universal legal capacity and reasonable
accommodation to ensure the realisation of their rights. Furthermore, the Constitution does not
recognise intellectual disability but only physical and mental disability. Other laws in the aspect
of health like the Medical Services and the Health Services Acts are not disability specific and
do not accommodate the needs of PWDs in accessing healthcare services especially
reproductive healthcare services.
In terms of policy framework, this researcher found out that Zimbabwe does not and has never
had a national disability policy, but only a draft. On the issue of legal capacity, the draft policy
is silent although it recognises the concept of autonomy. It also does not provide for support
for PWDs to enable them to make decisions on their own. Other policies in place related to
reproductive health do not refer to WWIDs and do not also provide for support mechanisms to
ensure that WWIDs access reproductive healthcare services.
On a comparative basis, this research focused on the legal systems of India and Ireland which
were specifically chosen for their advancement in area of provision of legal capacity for PWDs.
Although they are still developing they have more advanced laws on legal capacity than
Zimbabwe which were used to recommend legal reform in Zimbabwe.
In India for instance, there is a newly enacted MHA which provides for the right to legal
capacity for persons with mental disabilities. The underlying principle as provided for in the
Act is that PWDs must be involved in the decision-making about their health to the fullest
extent allowed by their capabilities. The Act also mandates that PWDs must be given adequate
information to enable them to make decisions about their health. The Indian MHA has
abandoned the ‘best interests’ principle and gives effect to the principle of autonomy for PWDs.
78
Furthermore, India has enacted a new principal legislation for PWDs, namely The Rights of
Persons with Disabilities Act of 2016. Apart from providing for the rights of PWDs including
the right to legal capacity, the Act provides for a framework of supported decision-making
which is provided in the CRPD. The Act abolishes the system of total guardianship but
recognises limited guardianship in cases where higher support is required by PWDs. In that
case there is a joint decision made by the person with disabilities and the limited guardian.
Unlike the old system of guardianship, the limited guardian cannot make a decision without
consulting and soliciting the agreement of the PWD. A support relationship is also provided
for by the National Trust Act which provides for a support network for PWDs who require
higher support. Another Act that respects the rights of persons with intellectual disabilities is
the Medical Termination of Pregnancy Act which allows for WWIDs to consent to the
termination of pregnancy Act. In terms of policy, the Indian legal system has various polices
that provide for the independence, autonomy and legal capacity for PWDs
In light of the weaknesses in the Zimbabwean legal and policy frameworks, several
recommendations were made. Specifically, it was proposed that the Constitution be amended
to include the right to legal capacity for PWDs and to also uphold the principle of reasonable
accommodation. Secondly, it was proposed that the DPA be repealed and in its place a new
Act be enacted that incorporates the human rights approach as shown by the CRPD.
Furthermore, it was proposed that the MHA be amended in line with the stipulations of the
CRPD in particular to abolish the system of guardianship that is still upheld by the Act. In order
to set up a working system of supported decision-making, it was proposed that Zimbabwe
adopts a specific capacity Act that regulates support relationships and provides safeguards to
prevent abuse of PWDs. In terms of policy, it was proposed that all policies should mainstream
disability issues especially provide for legal capacity for WWIDs to enable them to access
reproductive health care services. Generally, there should be domestication and
79
implementation. Zimbabwe should initiate awareness raising programmes to enable PWDs, the
community and service providers to have more clarity on the right to legal capacity.
Furthermore, there should be training of service providers on how to handle WWIDs who
require reproductive healthcare services.
If the recommendations are implemented in Zimbabwe, WWIDs will be able to realise their
reproductive healthcare services.
80
6. BIBLIOGRAPHY
6.1 LEGISLATION, TREATIES & POLICY
a) Zimbabwean Legislation
1. Constitution of Zimbabwe (2013)
2. Disabled Persons Act [Chapter 17:01]
3. Mental Health Act [Chapter 15:12]
4. Public Health Act 2018 [Chapter 15:17]
5. Termination of Pregnancy Act [Chapter 15:10]
b)
1.
2.
3.
Indian Legislation
Mental Health Act 2017
Medical Termination of Pregnancy Act 1971
The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act 1999
4. The Rights of Persons with Disabilities Act, 2016
c) International Instruments
1. Convention on the right of Persons with Disabilities
2. Convention on the Elimination of All forms of Discrimination against Women
(CEDAW) 1979.
3. International Convention on Civil and Political Rights (ICCPR)
4. Universal Declaration of Human Rights (UNDHR)
5. Vienna Convention on the law of Treaties
d) Regional Instruments
1. African Charter on Human and People’s Rights
2. Protocol to the African Charter on Human and People’s Rights on the rights of Persons
with Disabilities in Africa
3. Protocol to the African Charter on the rights of Women 2003
e)
1.
2.
3.
4.
Zimbabwe Policy framework
Draft National Disability Policy 2017
National Reproductive Health Policy 2006
National Population Policy 1999
Mental Health Policy 2004
f)
1.
2.
3.
4.
Indian Policy framework
National Policy for Persons with Disabilities 2006
National Heath Policy 2017
National Mental Health Policy 2017
National Mental Health Policy 2014
81
6.2 BOOKS
1. Flynn. E “From rhetoric to action: Implementing the UN Convention on the rights of
Persons with Disabilities” (2011) Cambridge University Press New York.
6.3 CASE LAW
1. Bissangu v Congo Communication No. 253/02
2. Drobnjak v Serbia Application No. 36500/06
3. Eldridge v British Columbia (Attorney-General) 1977 151DLR 4th 577
4. Glor v Switzerland Application No. 13444/04
5. Moore v The Gambia Communication 241/01
6. In Re Clarke 1927 40 CLR 227
7. Stanev v Bulgaria Application No. 36760/06
8. Suchita Srivastava & Another v Chandigarh Administration AIR 2010 SC 235
6.4 JOURNAL ARTICLES
1. Ahumuza. S. E, Matovu. J. K, Ddamulira. J.B and Muhanguzi. F.K “Challenges in
accessing sexual and reproductive Health Services by people with physical disabilities
in Kampala, Uganda (2014) Reproductive Health:11.59
2. Choruma. T ‘The forgotten tribe: People with disabilities in Zimbabwe’ (2006) London:
Progressio Unit 3.
3. Davis. L. J, ‘The Disability Studies Reader’ (2013) 4th ed. United Kingdom Taylor and
Francis.
4. Dhanda. A, Legal capacity in the Disability Rights Convention: Stranglehold of the Past
or Lodestar for the Future, (2007) 34 Syracuse Journal of International Law and
Commerce 429.
5. Donnelly. M, “The Right of Autonomy in Irish Law” (2008) 14(2) Medico-Legal
Journal of Ireland 34.
6. Dhanda. A (2014) Respecting Voice and Choice for People with Disabilities and India
and Ireland. Sharing Perspectives on the past and the future of legal Capacity. A Joint
Project of NALSAR University of Law, India and the National University of Ireland
(Galway) Centre on Disability Law & Policy with the support of the Open Society
Foundation.
7. de Bhailís. C, Clíona, & Flynn, Eilionóir. “Recognising legal capacity: Commentary
and analysis of Article 12 CRPD.” (2017) International Journal of Law in Context,
13(1), 6-21. doi: 10.1017/S174455231600046X Cambridge University Press
8. Fathalla M. F. “Promotion of research in Human reproduction: Global needs and
perspectives, (1988) 3 Human Reproduction 7.
9. Fathalla M.F “Reproductive Health: A global Overview” (1991) 626 Annul
N.Y.ACAD.SCI 1.
10. Flynn. E & Astein-Kerslake. A, (2014) The Support Model of Legal Capacity: Fact,
Fiction or Fantasy, 32 Berkely Journal of International Law.
11. Fromader. C, & Ortoleva. S ‘The sexual and reproductive rights of women and girls
with disabilities’ (2013) Issue Papers Conference on Human Rights 3.
12. Gable. L “Reproductive Health as a human right” (2010) Vol 60 Issue 4 Case Western
Law Review.
13. Guy. A “Legal Capacity in a Mental Health Context in Ireland; A Critical Review and
a Case for Reform” (2011)-6 Dublin Institute of Technology.
82
14. Greenwood. N.W & Wilkinson. J ‘Sexual and Reproductive Healthcare for women with
intellectual Disabilities. A primary care Perspective’ (2013) International Journal of
Family Medicine.
15. Hunt. P & Mesquita. J ‘Mental Disabilities and the right to the highest attainable
standard of health’ Human Rights Quarterly (2006) Vol 28 No.2 (332).
16. Hoffman. S. J, Sritharan. L & Tejpar. A “Is the UN Convention on the Rights of Persons
with Disabilities Impacting Mental Health Laws and Policies in High-Income
Countries? A Case Study of Implementation in Canada” (2016) BMC International
Health and Human Rights.
17. Kaplan. D “The definition of Disability: Perspective of the Disability Community”
Journal of Health Care law and Policy (2000); Vol 3 Issue 2 2000
18. Kamga S.A.D “A call for a protocol to the African Charter on Human and People’s
rights on the rights of persons with disabilities in Africa.” (2013)
19. Kanter A.S & Tolub. Y ‘The fight for personhood, legal Capacity, and equal recognition
under law for people with disabilities in Israel and beyond’ (2017) Cardozo Law Review
Volume 39.
20. Kiapi E.M Bearing the pains of double discrimination (2010) Inter Press Service News
Agency.
21. Kelly. B.D (2014) “An end to psychiatric detention? Implications of the United
Nations’ Convention on the Rights of Persons with Disabilities.” British Journal
Psychiatry. 2014; 204:174–5.
22. Maphosa. S and Mutandwa. P “A Critical evaluation into the Zimbabwe Disabled
Persons Act 1992 in addressing the plight of the Disabled Persons, its strength and
Weakness” (2016) International Journal of Innovate Research and Development Vol 5
Issue 9.
23. Ngwena C.G. Reproductive autonomy women and girls under the convention on the
rights Persons with disabilities (2017) DOI.10.1002/JIGO.12351 Ethical and legal
issues in reproductive health, International Federation of Gynaecology and Obstetrics.
24. Ngwena C.G ‘Reproductive autonomy of women and girls under the Convention on the
rights of Persons with Disabilities’ (2018) International Journal on Gynaecology &
Obstetrics 2018.
25. Narayan C.L, Shikha. D (2013) “Indian legal system and mental health.” (2013) Indian
Journal of Psychiatry. Volume 55 (Supplementary):177–81.
26. Narayan. C. L & John. T (2017) “The Rights of Persons with Disabilities Act, 2016:
Does it address the needs of the persons with mental illness and their families.” (2017)
Indian Journal of Psychiatry.
27. Peta. C ‘Disability is not asexuality; The childbearing experiences and aspirations of
Women with disabilities in Zimbabwe.’ (2017) Taylor & Francis Online.
28. Oliver. L “Legal Capacity in international human rights law” (2015)
29. Ofuani A.I, “Protecting Adolescent Girls with Intellectual Disabilities from Involuntary
Sterilization in Nigeria: Lessons from the Convention on the Rights of Persons with
Disabilities” (2017) 17 African Human Rights Law Journal 550.
30. Rugoho. T & Maphosa. F, ‘Challenges faced by Women with disabilities in accessing
sexual and reproductive health in Zimbabwe: The case of Chitungwiza Town’ (2017)
Vol 6 Africa Disability Law Journal.
83
31. Sudesh. V “National and International Approaches to defining disability” Journal of
the Indian Law Institute Vol 50 No.2 2008 pp220-229.
32. Werner. S ‘Individuals with intellectual Disabilities: A review of the literature on
Decision-making since the Convention on the rights of Persons with disabilities
(CRPD) (2012) Public Health Reviews Vol 34 No.2 2012.
33. Wa Munyi. C “Past and Present Perceptions Towards Disability: A Historical
Perspective” (2012) Disability Studies Quarterly.
6.5 CHAPTERS IN BOOKS
1. Mwalimu. C “Overview and Comparative Analysis: National laws Protecting People
with Disabilities in selected foreign countries.” (2003) International Disability Rights
compendium.
2. Manyatera. G & Mandipa. E Zimbabwe (Country Reports) (2014) African Disability
Rights Yearbook.
3. Murungi L.N & E. Durojaye. E “The Sexual and Reproductive Health Rights of Women
with Disabilities In Africa: Linkages between the CRPD and the African Women’s
Protocol” (2015) 3 African Disability Rights Yearbook 1-30.
4. Mandipa. E “A critical analysis of the legal and institutional frameworks for the
realisation of the persons with disabilities in Zimbabwe” (2013) Africa Disability
Yearbook Volume 1.
7 Shale. I “Sexual and Reproductive health rights of WWDs: Implementing international
human rights standards in Lesotho” (2015) African Disability Rights Yearbook 31-62.
6.6 GENERAL COMMENTS
1. African Commission on Human and People’s Rights, General Comment No.2 on the
Article 14 (1) (a), (b), (c) and (f) and Article 14(2) (a) and (c) of the Protocol to the
African Charter on Human and People’s rights on the rights of Women in Africa (2014).
2. Committee on the Rights of Persons with Disabilities (11th Sess) 19 May 2014: General
Comment No.1 (2014) Article 12: Equal recognition Before the Law.
3. General Comment No. 3 Article 6 Rights of Women and Girls with Disabilities.
4. Committee on Economic, Social and Cultural Rights, General Comment No.4: The
right to the Highest attainable standard of health (Art 12) (22nd Sess., 2000, in
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, (2008) UN Doc HRI/GEN/1/Rev. 9.
5. Committee on Economic, Social and Cultural Rights, General Comment No.5: Persons
with Disabilities (11th Sess.1994)
6. Committee on the elimination of Discrimination against women, General
Recommendation No.21: Equality in marriage and Family relations (13th Sess,1994),
in Compilation of General Recommendations Adopted by Human Rights Treaty Bodies
(2008) 337 UN Doc HRI/GEN/Rev.9 (Vol II).
7. CEDAW Committee’s General Recommendation No. 24 on Women and Health
(Article 12).
8. Committee on the Rights of Persons with Disabilities; General Comment No. 3 (2016)
on Women and Girls with disabilities. CRPD.C.GC.3.
84
9. Committee on the Elimination of Discrimination against Women (CEDAW
Committee) General Comment No.21- Equality in marriage and family relations (Art
16) 1994 para16.
6.7 UNITED NATIONS DOCUMENTS
1. Comment on the Draft General Comment on Article 9 of the United Nations
Convention on the Rights of Persons with Disabilities. Law Society of Scotland (2014).
2. Concluding observation on the initial report of China, adopted by the Committee at its
eighth session (17–28 September 2012) UN Doc CPRD/C/CHN/CO1.
3. Commissioner for Human Rights Who gets to decide? Right to legal capacity for
persons with intellectual and psychosocial disabilities (2012) CommDH/issuePaper
(2012)2 Available at www.commissioner.coe.int
4. Civil Rights Foundation Stop Discrimination Norway: Comment on Draft General
Comment No.2 / Article 9 2014 www.ohchr.org/EN/HRBodies/CRPD/Pages/DGC
Articles 12 &9
5. Groce, N., Izutsu, T., Reier, S., Rinehart, W., & Temple, B. (2009). Promoting sexual
and reproductive health for PWDs: WHO/UNFPA guidance note. Department of
Reproductive Health and Research and United Nations Population Fund (UNFPA).
Geneva, Switzerland: WHO Press.
6. Hunt. P ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health’ (2006) UN Doc A/61/338
(2006).
7. Initial Report submitted by India under Article 35 of the Convention, due in 2011,
Submitted on 3 August 2015 CRPD/C/IND/1.
8. United Nations Resolution: World Programme of Action concerning Disabled Persons
3 December 1982 A/RES/37/52.
9. United Nations Resolution: Standard Rules on the Equalization of Opportunities for
Persons with Disabilities 20 December 1993 A/RES/96.
10. United Nations Development Group (2011) Including the rights of PWDs in United
Nations programming at Country Level. A Guidance Note for United Nations Country
teams and implementing partners.
11. USAID (2011) Disability-inclusive Sexual and Reproductive Health Component;
Training of Trainees Manual on Disability-inclusive health for health workers.
12. UNICEF’s report on the Zimbabwe Ministry of Health and Child Welfare Titled
“Living conditions among PWD Survey Key Findings Report” (2013).
13. Office
of
the
High
Commissioner
(OHCHR)
tbuinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?Treaty=CRPD&Lang
=en.
14. Submission to the CRPD Committee by Inclusion International (2010) “Accessibility
for Persons with Intellectual Disability”.
15. World Health Organisation “Realising supported decision-making and advance
planning WHO Quality Rights training to act, unite and empower for mental health
(pilot version)” (2017) Geneva WHO/MSD/MHP/17.8.
16. World Health Organization World Report. – “Understanding Disability” (2003)
www.who.int/disabilities/word_report.
85
17. World Health Organization (2000). Healthy Ageing - Adults with Intellectual
Disabilities: Summative Report. Geneva: Switzerland: World Health Organization
(WHO/MSD/HPS/MDP/00.3).
18. World Health Organization/United Nations Population Fund. (2009). Promoting sexual
and reproductive health for persons with disabilities.
19. World Program of action concerning Disabled Persons, Report of the Secretary
General, 15 September 1982, A/RES/37/Add.1, para II/2/45,30
6.8 ONLINE LEGAL ARTICLES
1. “DIWA to carry out a baseline survey on access to SRH services for women and girls
with disabilities” Disabled Women in Africa 23rd December 2015 www.diwa.ws/?p=8
2. European Agency for Fundamental ‘Rights Legal capacity of persons with intellectual
disabilities
and
persons
with
mental
health
problems’(2013)
http://fra.europa.eu/en/publication/2013/legal-capacity-personsintellectualdisabilitiesand-persons-mental-health-problems
3. FRA Legal Capital of Persons with Intellectual Disabilities and Persons with Mental
Health Problems European Union Agency for fundamental Rights 2013.
4. Mental Disability Advocacy Centre (MDAC) ‘The right to legal capacity in Kenya’
(2014) Available at www.mdac.ifo/kenya.
5. Yadav. L “Analysis of Right of the Person with Disability Act, 2016” (2017). Linked
In Document.
6. Women with Disabilities Australia (WWDA) 2008 WWDA Response to the Australian
Government’s Discussion Paper: ‘Developing a National Disability Strategy for
Australia’ WWDA, Rosny Park, Tasmania.
6.9 UNPUBLISHED THESES
1. Arcella. S A Situational Analysis of the Sexual and Reproductive Health of Women with
Disabilities, 2009 The New School University for UNFPA.
2. Arstein-Kerslake. A ‘Restoring Voice to People: Realizing the Right to Equal
Recognition Before the Law of People with Cognitive Disabilities’ (2014).
3. Beresford. B Understanding the dynamics of decision-making (2008) University of
York.
4. Brett. M. E ‘The right to recognition before the law and the capacity to act under
International Human Rights Law’ (2012) Unpublished LLM Thesis, Irish Centre for
Human Rights.
5. Guy. A ‘Legal Capacity in a Mental Health Context in Ireland. A Critical Review and a
case for reform’ (2011) Unpublished LLM Thesis, Dublin Institute of Technology.
6. Moyo. D. S Ensuring sexual and reproductive health rights of WWD: A study of
policies, actions and commitments in Uganda and Zimbabwe. (2016) University of
Reading; Graduate institute of information Development and Applied Economics.
7. Quinn. G ‘Personhood and Legal Capacity Perspectives on the Paradigm shift of Article
12 of the CRPD’ (2010) HPOD Conference, Harvard Law School.
86
6.10
NEWSPAPER ARTICLES
1. Davah. B.V (2012) Legal Frameworks for and against People with Psychosocial
Disabilities Economic and Political Weekly Vol 47.No. 52
2. Muchutu. R, “No disability policy in Zim, says Malinga” Sunday News Online; Sunday
April 23 2017.
6.11
REPORTS, PRESENTATIONS & OTHER MATERIALS
1. Amicus Brief: The European Group of National Human Rights Institution (2011)- In
the European Court of the Human Rights App No. 6152/08 Gauer & Other v France.
2. American Association on intellectual and developmental Disabilities 2010.
3. British Medical Association and the law Society of England and Wales, Assessment of
Mental Capacity; Guidance for Doctors and Lawyers (2nd ed 2004) @pg 3.
4. Centre for the Study of Violence and Reconciliation (CSVR). (2005, April). On the
margins: Violence against women with disabilities. Retrieved from
http://www.csvr.org.za.
5. C. Shalev “Rights to Sexual and Reproductive Health - the ICPD and the Convention
on the Elimination of All Forms of Discrimination Against Women (1998) This paper
was presented at the International Conference on Reproductive Health, Mumbai (India),
15-19 March 1998, jointly organised by the Indian Society for the Study of
Reproduction and Fertility and the UNDP/UNFPA/WHO/World Bank Special
Programme of Research, Development and Research Training in Human Reproduction.
6. Chengeta. T and D. Msipa. D “Getting disability rights into the mainstream of human
rights advocacy: an appraisal of Zimbabwean disability rights policies and legislation”.
Presentation Paper 2014.
7. D’Eath. M, Sixsmith. J, Cannon. R & Kelly. L (2005) The Experience of People with
Disabilities in Accessing Health Services in Ireland: Do inequalities exist? Report to
the Irish National Disability Authority.
8. E.W. Maina (2009) The right to Equal recognition before the law, access to justice and
supported decision making CRPD Conference of Parties, New York. Presentation by
Ms. Edah Wangechi Maina Vice Chairperson of the Committee on the right of Persons
with Disabilities.
9. Liang. M, Machando. D, Mangezi. W, Hendler. R, Crooks. M, Katz. C, Abas. M,
Thornicroft. G, Semrau. M, Jack. H, & Kidia. K (2016) Mental Health in Zimbabwe.
Harare, Zimbabwe: Kushinga.
10. Osborn’s Concise law Dictionary 11th Ed Sweet & Maxwell 2009.
11.
Pinnaka. P. R (2012) “Right to procreative autonomy of Mentally challenged Women
in India’ (Presentation).
12. Policy Brief July 2014 No. 1/2014 Zimbabwe Coalition on Debt and Development
Enhancing a Disability Inclusive Policy Environment Through the Effective
Implementation of the United Nations Convention on the Rights of Persons with
Disabilities (PWDs)aaq.
13. Taran. P & Gachter. A “Achieving Equality in Intercultural workplaces” An Agenda
for Action
14. Written Answers: (2012) National Disability Strategy, Dail Debates.
87