In their introduction to this judgment, the three Zambian supreme court justices say that the country’s courts had been ‘inundated’ recently, by various groups asserting their constitutional and other rights, and asking the courts for redress.
This was another such case, this time brought against the attorney general by two disability activists – Sylvester Katontoka, on behalf of himself and a mental health network, and Wamundila Fred Waliuya, who sued on his own behalf and on behalf of Disability Rights Watch.
Their target was section 4 of the Mental Health Act (MHA), which, according to them, infringed their constitutional rights.
The two came to the supreme court by way of an appeal against an earlier high court decision that found against them on their challenge to section 4.
Both applicants are people living with disabilities and who also champion the rights of disabled people. One ‘has a psychological disability’: he was diagnosed with depression in 1996 and has been treated for this condition since then. He is also co-founder of the Mental Health Users Network of Zambia, a group that works for the rights of people with psychosocial disabilities in Zambia. The other applicant is visually impaired and is the executive director of Disability Rights Watch, an organisation that advances the rights of people living with disabilities in Zambia.
The high court had to consider their claim that section 4(1) of the MHA deprived those with mental and psychosocial disabilities ‘of legal capacity on an equal basis with others’.
Their complaint was that the MHA conflated ‘mental capacity’ with ‘legal capacity’ and gave courts the power to legally disqualify someone with mental and psychosocial disabilities from enjoying their legal capacity under all the laws of Zambia.
In particular, it stopped people with mental and psychosocial disabilities from making legally binding decisions. Since it also deprived people with such disabilities of their ‘legal personhood’, they were more likely to be subjected to forced treatment and involuntary detention in psychiatric detention facilities, thus contravening their constitutional rights.
They were further denied the right to ‘enjoy privileges arising from legal capacity such as the right to own property, participate in economic, political and community life, entering into contracts and exercising their right to marry’, among other issues.
They also complained, more generally, about the poor medical services provided by Zambia’s mental health institutions.
The high court judge who first heard their petition, referred at length to a resolution of the UN general assembly that set out principles for protecting mental patients and improving mental health care more generally. Measuring Zambia’s laws against the yardstick provided by that UN resolution, the high court judge found that she was unable to hold that section 4 of Zambia’s MHA was unconstitutional.
Having summarised the argument of both sides, the supreme court judges hearing the appeal, began their decision by ‘applauding’ both appellants ‘for the role they continue to play in championing the rights of persons with mental health issues and other disabilities.’
They said that mental health issues had ‘taken centre stage’ recently in most jurisdictions, focused on the need for everyone to address underlying mental issues and to put incentives in place that would cater for ‘well-being in general’. These mental issues often arose from ‘stressful working environments’ and recognised ‘the fragility of the mind’.
Unfortunately, they wrote, ‘these efforts … have not been embraced or adequately addressed in our jurisdiction except by a few institutions.’ The main focus in Zambia has been on the stigmatising of people with mental health and other disability issues, and tended to ‘shy away from addressing [the] mental wellbeing of citizens in general.’
They added that there were some exceptions, for example, wellness programmes by some major banks. They also gave the example of a wellness programme recently offered to the judiciary, through the Zambia Association of Women judges. ‘These shining efforts must be commended,’ said the court, but in general the public mindset had to be changed ‘to bring it in line with what is trending in other jurisdictions.’
There had, however, been ‘significant movement in legislative reform’ on mental health and several international agreements on mental health and other disabilities had been introduced in local legislation.
On the question of the issues raised by the appeal, they noted that the lawyer acting for the two appellants had confirmed that they had both ‘competently interacted with him’ in a client-lawyer relationship and that their interaction had resulted in ‘legally binding contracts’ in terms of which he was to provide legal services while they undertook to pay him for this.
Neither their ‘conditions’, nor the MHA, impeded them in any way in their interaction. Further, they weren’t impeded in any way in asserting their rights at court as a consequence of their respective conditions and the MHA.
‘There is also evidence that [they] are in employment and manage two very important institutions for the benefit of persons with disabilities and competently champion their cause. Their status has in no way impeded the advancement of their careers.’
This led the court to the inescapable conclusion that the two appellants had failed to prove their case: ‘Their actions in relating to the counsel of choice and presentation of their case before the courts reveals an unhindered exercise of their constitutional rights and legal capacity notwithstanding their conditions.’
It was, however, not possible, at this stage of proceedings, to convert their case to a class action, since it had not been prepared and presented in the way required of such a matter.
The judges then sifted through the findings by the high court and said they agreed with them.
However, in the resolution of this case there was ‘neither a winner, nor a loser,’ said the judges. The applicants weren’t successful in trying to overturn the high court decision, but they still highlighted the need ‘to address the plight of mental patients further.’
The high court had agreed with the appellants that the services ‘provided to mental patients by public mental health institutions are of poor quality. This mainly arises from poor funding by the treasury.’ But the supreme court said it wanted to take matters a step further, urging government, through the attorney general, ‘to make mental health care one of the priority areas so that it is adequately funded.’
The reality was the public mental health institutions provided ‘very poor medical services,’ they wrote. ‘This must change. … The government must prioritise the general wellness of the citizens. Investing in the health and wellness of its citizens is the best investment that any country can make.’
Given that the appellants were driven by the ‘quest to champion the cause of mental patients’, the court would not order that costs should be awarded to the successful party, but instead would order that the parties should bear their own costs, both on appeal and in the high court.