On 4 June 2021, the High Court of Zambia, in the case of Frankson Musukwa and Others v Road Transport and Safety Agency issued a judgment dismissing a constitutional challenge to the denial of driving licences to deaf people in Zambia. The case was supported by the Southern Africa Litigation Centre.
On 15 November 2019, the petitioners filed an application in the High Court of Zambia challenging the constitutionality of the application of Section 62 as read with Section 59 and Section 68 of the Road Traffic Safety Act No.11 of 2002 to deny deaf people driving licences solely based on being deaf persons. They argued that these were violations of their rights to equality and freedom from discrimination, freedom of movement and privacy as enshrined in the Constitution of Zambia. The application of the law was also not in line with the Persons with Disabilities Act No. 6 of 2012 which provides for the enjoyment of rights for persons with disabilities on the same basis as others, including the right to non-discrimination based on disability, and equal participation in all aspects of life. In addition, the application of the law was not in line with the United Nations Convention on the Rights of Persons with Disabilities (CRPD), to which Zambia is a state party, and international best practice, as deaf people are routinely issued with driving permits and are allowed and able to drive in other countries within the SADC region such as South Africa, Botswana, Namibia, and Zimbabwe.
In a judgment written by Honourable Justice G.C. Chawatama, the High Court dismissed the application, finding that the application of the law was not a violation of the petitioners' right to movement and that the application of the Act, though discriminatory, was justified "to protect." This, despite the Court acknowledging, obiter, that the law was not in line with international human rights instruments like the Convention on the Rights of Persons with Disability (CRPD) and that there was expert evidence to show that drivers with hearing impediments do not constitute a risk to safety for road traffic users.
"We are disappointed with the judgment and are considering filing an appeal to challenge it. The Court, in ruling that discrimination against deaf people is justified based on their disability has applied the medical model to persons with disabilities, and not used a human rights-based approach that looks at recognising and removing barriers that prevent persons with disabilities from enjoying their rights on the same basis as others. The judgment is an infringement on the Constitutional and internationally recognised human rights of Deaf people in Zambia," says Dr. Frankson Musukwa, Executive Director, ZDYW.
"This is a lost opportunity for the practical application of the CRPD, which represents a paradigm shift in applying a human rights-based approach for persons with disabilities," says Tambudzai Gonese-Manjonjo, Equality Rights Lead, Southern Africa Litigation Centre.
ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE AND ZAMBIA DEAF YOUTH AND WOMEN (ZDYW)