On 21 August 2025, The Validity Foundation, together with the Mental Health Users Network of Zambia (MHUNZA) and Disability Rights Watch (DRW) with the technical support of the International Commission of Jurists (ICJ) and the Southern Africa Litigation Centre (SALC), have submitted a landmark communication to the African Commission on Human and Peoples’ Rights (African Commission). This is the first ever communication to focus on the right to legal capacity for persons with psychosocial and intellectual disabilities in Africa. It follows on from the Commission’s Purohit and Moore v The Gambia 2003 decision, where the complainants submitted a complaint to the African Commission alleging that the provisions of the Lunatic Detention Act and the manner in which “mental patients” were being treated amounted to a violation of various provisions of the African Charter on Human and Peoples’ Rights (African Charter).
This communication urges the African Commission to affirm the right of all persons with disabilities to autonomy and dignity, principles at the heart of the UN Convention on the Rights of Persons with Disabilities (CRPD) and the African Charter.
“The right to legal capacity is foundational to the exercise of all other human rights,” said Jennifer Wairimu, Legal Advocacy Officer at Validity Foundation. “This communication is not just about reforming one law, it is about ending systemic denial of personhood faced by persons with psychosocial and intellectual disabilities across Africa, and there is importance of regional guidance to ensure compliance with international human rights laws and standards.”
The communication challenges Section 4 of Zambia Mental Health Act of 2019 (MHA), which allows for substituted decision-making for persons with psychosocial and intellectual disabilities, effectively denying them the right to legal capacity and equal recognition before the law. Despite asserting the right to legal capacity in principle, the Act simultaneously allows courts to override individuals’ decisions if they are deemed to lack “mental capacity,” violating the will and preferences of the individual.
“Supported decision-making is far more effective for persons with psychosocial and intellectual disabilities than substituted decision-making, as it is for the individual to retain the right to make their own choices, aided by someone they trust, someone who understands and respects their will and preferences.” said Mulima Santa Kasote Chairperson at MHUNZA.
The communication makes clear that while supported decision-making means that the final decision will reflects the person’s own desires and intentions, substituted decision-making removes that authority from the individual, effectively disregarding their preferences and denying them the right to direct their own life.
Having exhausted all domestic legal remedies, the matter now moves to the African Commission, marking the first time this critical issue is being placed squarely before the regional human rights body, and the first communication since the coming into effect of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, (the African Disability Protocol). The Complainants argue that Zambia’s legal framework violates not only its constitutional guarantees but also its binding obligations under the CRPD and the African Charter.
Tambudzai Manjonjo, SALC Deputy Director said:
“With this communication, the African Commission has a very important opportunity to provide necessary clarity to give life to the African Charter on Human and Peoples’ Rights, demonstrating its relevance for people with intellectual and psycho-social disabilities, and to show that the African Charter works for everyone, without discrimination.”
In its 2024 Concluding observations on the initial report of Zambia, the UN Committee on the Rights of Persons with Disabilities specifically recommended review of Section 4 (2) of the MHA to replace substituted decision-making systems with supported decision-making systems that ensure the provision of individualised support and respect the autonomy, will and preferences of persons with disabilities. More than a year later, the Zambian government has yet to act.
Wamundila Waliuya, the Executive Director at DRW said:
“As Disability Rights Watch, we do not expect the Government of the Republic of Zambia to delay or remain silent on the matter of recognising the legal capacity of persons with psychosocial disabilities. The authorities must align Zambia to international human rights standards and quickly act on the recommendations provided by the UNCRPD Committee.
This is the first time the African Commission will be asked to examine a legal framework that institutionalises substituted decision-making for persons with psychosocial and intellectual disabilities. The case highlights how domestic mental health laws in Africa often contravene international and regional human rights obligations, including the CRPD and the African Charter as well as the African Disability Protocol which Zambia is yet to ratify.
“In considering this communication, the Commission must apply the CRPD which requires that all persons with disabilities enjoy legal capacity on an equal basis. The Africa Disability Protocol, though not yet binding on Zambia, shows the African human rights systems commitment to precisely the same right,” said Wilson Macharia, ICJ Africa’s Legal Advisor.
Validity is proud to support MHUNZA and DRW in this communication, which seeks a precedent from the African Commission that States must abolish substituted decision-making regimes and replace them with supported decision-making systems that respect the human rights, will and preferences of the individual.