Further, the Constitutional Court unequivocally decided, at page 25, line 22 to page 26, line 17:
One of the arguments of the complainants in the Purohit and Moore v. The Gambia, African Commission on Human and People’s Rights case (supra), which we have found persuasive, was that under the LDA, persons with mental illness had been branded as “lunatics” and “idiots”, terms which where dehumanizing and denied them any form of dignity.
The African Commission decided that the terms were dehumanizing and denied them any form of dignity in contravention of Article 5 of the African Charter.
Following the reasoning and decision in the above case, we find that the language of section 130 of the Penal Code Act is dehumanizing. The words “idiots” and “imbeciles” are derogatory and detract from the dignity that should be accorded to all disabled persons under Article 24. We find this is not permissible and justifiable as the language contravenes Articles 20, 21(1), (2) and (3), 23, 24, 28 and 35 of the Constitution.
We however find that striking out the section would leave mentally handicapped / disabled women and girls unprotected. Accordingly, and in accordance with Article 274 of the Constitution, we construe section 130 of the Penal Code Act with “such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution”. The words “idiot” and “imbecile” are struck out from section 130 of the Penal Code Act and are replaced with the phrase “woman and girl to be mentally ill or impaired”.
On the basis of these paragraphs, there was lively and constructive discussion among participants at the NUDIPU meeting about how to move the language around persons with disabilities forward in Uganda. Focus was necessarily placed on the legal sector, as infringement of rights and access to justice for persons with disabilities remain inter-connected concerns.
Mr. David Kabanda, Programmes Manager at CEHURD and an avid public interest advocate, was key member of the legal team in this case and set out the rationale for taking on the issue of mental health. He shared that he gained a greater understanding about mental illness and disability through arguing on behalf of Iga Daniel and that more learning and progress was to be made. Thus, he relayed that this was an issue that everyone in the legal profession had to consider and work to understand better.
While appreciating the positive result, Mr. Meddie Ssengooba, the African Program Officer for the Disability Rights Fund, noted some areas in need of further legal analysis and elucidation:
First, mental disability is not uniform. In particular, mental disability must be broken down to consider whether an individual has a psycho-social condition, which can be treated, or has an intellectual disability, which cannot be treated, or some variation, and the law applied accordingly.
Second, with respect to women and girls who are "mentally handicapped" and subject to criminal sexual activity or what is termed in the decision as "unlawful carnal knowledge", for girls, the offense of defilement creates no question of consent, but where it comes to women with mental disabilities - their sexual rights must be acknowledged. It was noted that application of the judgment would make a woman with a disability's consent a non-issue and compromise her partner, who is to be automatically convicted. Indeed, Angela Kamugasa Nsimbi, the National Coordinator of Heartsounds Uganda, emphasized the detrimental effect of taking agency away from Ugandan women, as an alleged or real mental illness or disability would basically dictate that “sex is not a part of your life anymore.”
Finally, there is reference in the disposition to a Court ascertaining mental status based on medical evidence from a qualified psychiatrist or other qualified medical officer. Mr. Ssengooba noted that, in practice, those suffering from mental health conditions or an intellectual disability may wish to talk to a relative (such as an aunt or uncle) or a known psychologist and that this better aligns with the resources available in Uganda. Mr. Derrick Kizza of Mental Health Uganda added that there are 33 psychiatrists practicing in Uganda and yet there are 112 Districts with courts addressing criminal matters. Thus, he agreed that the human resource issue that needs to be considered in future decisions and practice.
In concluding the meeting, the JLOS Advisor Human Rights and Accountability, Mr. Musa Modoi, thanked all the participants, took stock of the decision and the efforts and recommendations made, and shared that both civil society actors and JLOS were on the same page when it came to moving the human rights of persons with disabilities forward. In particular, he noted that a sub-committee of the JLOS Human Rights Working Group has worked on specific actions since the decision came down, namely:
- Copies of the decision were disseminated to members of the working group, who represent the seventeen JLOS institutions;
- A research paper with recommendations on how to reform the law was prepared to be availed to the Attorney General and the Uganda Law Reform Commission;
- The Judiciary has been engaged on how best to implement the decisions for cases that have been pending Minister’s Orders;
- The JLOS secretariat has and will continue to work in partnership with the CSOs, such as NUDIPU, to ensure access to justice for all, especially persons with disabilities.
As a potential starting point, most stakeholders agreed that a Practice Directive from the judiciary would be beneficial. Such a directive would be a quick and low-cost method for adjudicators to be informed of the nexus between the presumption of innocence and non-discrimination. Thus, while ensuring that the practices and language used in court settings do not discriminate against the mentally ill or disabled is a work-in-progress, 2016 is set to bring tangible changes towards a more inclusive and just society, where barriers to procedural fairness for persons with disabilities are reduced.
*Tina Parbhakar is on internship to the Justice, Law and Order Sector under the auspices of the Uganda Law Society and the Canadian Bar Association.