On 16 May 2024, the Supreme Court of Zambia delivered a judgment in the appeal of Frankson Musukwa and Others v Road Transport and Safety Agency. The Court dismissed the appeal filed against the High Court's decision to dismiss an application challenging the denial of driving licences to deaf people in Zambia.
The Supreme Court decided that the Road Transport and Safety Agency did not infringe on the petitioners' respective rights to the protection of the law, freedom of movement, and non-discrimination.
Contrary to previous judgements from Zambian courts, the Supreme Court held that people with disabilities are not protected from discrimination by the Constitution. This argument ignored the requirement to interpret all constitutional provisions in line with Zambia's commitments under international law, such as its ratification of the Convention on the Rights of Persons with Disabilities.
Courts throughout Africa and Zambia's own Constitution recognise the need for development of the law, including reading the prohibited grounds of discrimination to extend beyond those explicitly listed. It is precisely for this reason that the 2016 constitutional amendment inserted a definition for disability in the Constitution. At the time this definition was not included specifically in the prohibited grounds of discrimination because the entire bill of rights was ring-fenced from that constitutional reform process. This does not mean that Parliament did not deem disability to be a prohibited ground of discrimination, since it ratified the Convention on the Rights of Persons with Disabilities and would have understood this to mean a broader interpretation of the constitutional right to non-discrimination.
The Court's finding on that the restriction on driving licences did not violate the right to equal protection under the law and the right to freedom of movement was also incorrect. The African Commission on Human and Peoples' Rights specifically requires, in its General Comment on the Right to Freedom of Movement, that States protect the rights of persons with disabilities to freedom of movement.
Despite acknowledging that the petitioners would have had the right to relief under the Persons with Disabilities Act, the Court failed to make an order relating to the Act, although this was specifically requested by the petitioners. By failing to take steps to provide a remedy to the petitioners the Court delayed their right to access to justice. Zambia's Constitution explicitly requires that the provisions of the Constitution be interpreted in a manner that promotes dignity, equality, and non-discrimination. To interpret the Constitution to implicitly allow discrimination and to deny freedom of movement for persons with disabilities is contrary to the imperatives of constitutional interpretation.
"We are very disappointed and sad that the Courts have refused to give us equal protection of the law as deaf people and have endorsed a practice by the State to deny driving licences to deaf people, which is not even in line with the rest of the region," said Alick Nkhoma, one of the petitioners and acting Executive Director of Zambia Deaf Youth and Women (ZDYW).
Dr Frankson Musukwa, one of the petitioners, and Director General of the Zambia Agency for People with Disabilities (ZAPD) says:
"It is a disappointing judgment. However, the positive thing is that the Supreme Court has endorsed the relevance and importance of the Persons with Disabilities Act in ensuring protection of people with disabilities in Zambia, of which the Agency plays a huge part."
"The Supreme Court judgment raises very concerning issues about the protection of the rights of people with disabilities in Zambia, particularly from discrimination, and is certainly not in line with Zambia's international obligations under the CRPD. We hope that the government takes notice of the inconsistencies highlighted in the Constitution and the law and takes urgent action to effectively implement the State's obligations and ensure that persons with disabilities are able to realise their rights," said Tambudzai Manjonjo, SALC Deputy Director.
Ironically, the Supreme Court's judgement followed the recent concluding observations of the Committee on the Rights of Persons with Disabilities, which found that the Road Traffic Act indeed discriminated against deaf people and recommended that Zambia review the Act to allow the issuance of driving licenses to deaf people.
Background
On 15 November 2019, the petitioners filed a petition in the High Court of Zambia challenging the constitutionality of the application of section 62 as read with sections 59 and 68 of the Road Traffic Safety Act No.11 of 2002 concerning deaf persons. These sections, which were at the heart of the case, were used to deny deaf people driving licences on the grounds of their disability.
The High Court dismissed the application, finding that the actions of the Agency and the application of the law were not a violation of the petitioners' right to movement and that the Act, though discriminatory, was justified "to protect". This was despite the Court acknowledging that the law was not in line with international human rights instruments like the Convention on the Rights of Persons with Disability (CRPD). The Court also dismissed the considered expert evidence, which showed that deaf drivers, due to their heightened visual awareness and other compensatory skills, do not constitute a safety risk for road traffic users.
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The petitioners filed an appeal to the Supreme Court of Zambia, arguing that the High Court misdirected itself in law and fact when it held that the application of the Road Traffic Act to deny driving licences to deaf persons did not violate their right to protection of the law and freedom of movement and that the discrimination against them would reasonably be found to be justifiable.
The Appellants were represented by PNP Advocates and supported by the Southern Africa Litigation Centre.
Further information
Alick Nkhoma, ZDYW; Email: zambiadeafyw@zambia.co.zm Tel+260975702902 (SMS) Whatsapp Only.
Marah Phiri, PNP Advocates; Email: pnpadvocates1@gmail.com Tel+260978119598
Tambudzai Manjonjo, Southern Africa Litigation Centre; Email: tambudzaig@salc.org.za Tel +27 10 596 8538
ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE (SALC AND ZAMBIA DEAF YOUTH AND WOMEN (ZDYW)
