JESCA Samakande still sports a bright face and a charming smile she wore many years ago before fate blighted her promising future.
As a little girl growing up in Mutoko, her rural home, she, like every other girl, had a dream: She would dream of a successful career as an athlete.
That dream turned into a nightmare in the twinkling of the eye when she was involved in a road traffic accident at the age of 10.
Taken from Financial Gazette
She suffered serious injuries on her left leg which necessitated its amputation.
Now 38, and her dreams shattered, Samakande admits she sometimes imagines walking normally, striding through a park hand in hand with her husband, while he carries their one-year-old daughter on his shoulders.
But everything is all but a dream.
For in the 28 years that she has lived with a disability, Samakande has silently endured a series of criminal abuses without any slightest idea how to seek justice. She alleges that at the age of 15, she was sexually abused by a man who offered to marry her to conceal the crime, a proposition to which she obliged, but would later regret as his relatives turned against her and made the union hell on earth until she crawled out of it to go into vending.
Samakande’s story mirrors many unfortunate circumstances that people living with disabilities (PWDs) find themselves in with perpetrators going scot-free because of the country’s skewed justice delivery system which is glaringly failing to serve them.
With Chief Justice, Godfrey Chidyausiku, opening the 2016 judicial year last week without any mention of efforts to improve access to justice by people with disabilities, the Financial Gazette tracks their experiences with the entire justice system, from the point of making a complaint, to investigation, and through the court/tribunal process.
The paper also looked at the participation of PWDs in a variety of roles in the justice system — as witness, defendant, complainant, plaintiff, lawyer, judge or magistrate.
More broadly, the Financial Gazette also took time to critically examine the subtle barriers of access to justice that might exist in a given society — including barriers to grassroots disability advocacy, legal education and training, the right to vote and the right to stand for election, which may apply to people with disabilities.
Many believe that the reason why the entire justice delivery system is unfavourable to those living with disabilities is largely a policy issue.
Critics say for far too long, the justice system in Zimbabwe has been inaccessible to people with a range of disabilities as investigative and judicial procedures fail to adapt to meet their needs. The court rooms themselves are physically inaccessible.
PWDs are denied the right to give evidence, or to receive a fair trial, while information about the law is not presented in accessible or appropriate formats.
Many people with disabilities have been failed by both the police and the court system whose employees lack appropriate training to support those with disabilities; failed by an education system that does not teach people with disabilities about their rights; and failed by lawmakers who have not done enough to put in place safeguards to support people with disabilities access the justice system.
Legal experts are also of the opinion that there is need for a serious material and cultural change, across every part of the system, at every level, to make the country’s justice system accessible for all citizens.
They insist that there is need for the office of the director for public prosecutions to commit itself to real and systemic change that will finally tear down the barriers PWDs face on a daily basis in the Zimbabwean justice system.
But the legal experts reckon that for this to succeed there is need for the executive, which is the ultimate policy authority in the country superintended by the President, to start making serious efforts to address the glaring anomalies.
It is on the policy side that Zimbabwe has been found wanting.
It is telling, as much as it is disturbing, to note that Zimbabwe is not yet a signatory to the United Nations Convention on the Rights of 2006.
In addition, the Disabled Persons Act has not been reviewed since it was enacted 24 years ago.
The act provides for the welfare and rehabilitation of PWDs, the appointment and functions of a director for disabled persons’ affairs, and the establishment and functions of a National Disability Board, none of which has been established to date.
The country also does not have a national disability policy as per constitutional requirement, meaning government has fallen foul of the national charter in that respect.
In 2012, disgruntled civic society organisations formulated a board to champion the cause of PWDs headed by renowned medical practitioner, Obadiah Moyo, but it remains on the sidelines, overtly ignored by government.
The fact that the board, known as the National Council of Disabled Persons of Zimbabwe, does not exist by means of a Parliamentary process, means it is largely not recognised by the State.
It only becomes visible during the International Day of Persons with Disabilities, which is marked around the world annually on December 3 as per the UN General Assembly of October 14, 1992, to promote awareness and mobilise support for critical issues pertaining to the inclusion of persons with disabilities in society and development.
An inquiry by the Financial Gazette exposed a general lack of awareness of the issues faced by people with disabilities and communication difficulties in both the civil and criminal justice system, which could cause them to either fail to access justice when offended against or re-offended due to lack of support.
The fact that so many of them are denied access to justice is an indictment on Zimbabwe’s judicial system and a disgrace. Much denigration has been directed at the Judicial Service Commission (JSC), which has been criticised for failing to make courts friendly to persons with disabilities.
For example, there have been many instances whereby a case is postponed countless times because the magistrate or the judge, or prosecutors or lawyers or accused persons are not conversant with sign language in the event that the victim has a hearing or speech impairment.
Equally, most of the courts today are inaccessible to the physically handicapped who use wheelchairs. The worst scenario is at the Harare Magistrates Courts whose upper sections are completely sealed off to such people as there are no elevators to carry people to all the floors.
JSC secretary, Rita Makarau, acknowledged the existence of the language barrier where people with hearing or speech impairment are concerned.
She, however, said the commission was making efforts to address the situation.
“We are moving to ensure that all our courts are friendly to the disabled. We are also making inquiries to establish how many cases involving disabled people come to our courts so that we can make the correct interventions,” she said.
The skewed nature of the justice delivery system has also been subject to criticism, especially the remote relationship that exists between police and the courts.
In his address, while officially opening the 2016 legal year, Chief Justice Chidyausiku showed concern over this issue.
“The interface between the Zimbabwe Republic Police (ZRP) and the Judiciary is an indirect one. After making an arrest, the police submit a docket of the case to the office of the prosecutor-general where in some instances, some of the investigative cases fall off.
“It is only those cases that the prosecutor-general refers to the courts that we in the judiciary can account for,” he said.
Last year, the JSC tried to demystify the courts by carrying out an extensive outreach programme around the country to allow all sectors of society to understand them better.
That such glaring incongruity are acknowledged even at the highest level of the justice system and then nothing or very little is done to address them, speaks volumes of government’s commitment to solving critical national issues.
And if cases involving conventional sectors of society can be this bad, then terrible is the case for PWDs.
Police national spokesperson, Charity Charamba, said the ZRP was making use of its victims-friendly unit in cases involving special interest groups like PWDs and children when they get offended.
“As police, we are the starting point of the entire justice delivery system. We effect arrests and bring accused persons to court and as such, we have the victims-friendly unit to assist those in need of special attention,” she said.
Whereas such an effort is commendable, there are also concerns over the aggressive approach of police officers when handling their investigations. It is feared that some could be afraid to report their cases after witnessing police̓ s heavy handedness.
The image of the police in recent years has not been very good, as well. But PWDs are not always the offended, for in some instances, they could be required in court to answer to criminal charges or civil cases.
It is in such instances where their rights are heavily trampled upon, despite the Zimbabwe Constitution recognising the rights of accused persons, especially access to legal representation and their right to a fair trial. It even extends to their prison conditions in the event that they are convicted.
Section 31 of the national charter states that the State has the mandate to provide legal representation in both civil and criminal cases for people who need it but are, as is the case with many PWDs, are unable to afford it.
President of the Law Society of Zimbabwe, Vimbai Nyemba, conceded that at present, persons with disabilities are not getting any preferential treatment from lawyers.
“They are treated like everyone else,” she declared, adding: “As the law society, we have taken a (deliberate)stance whereby we cannot discriminate against them, but we are yet to have a facility whereby they can be treated differently from other people. I know there have been incidences where court cases have been postponed several times because there is no sign language translator. That is where we are saying the justice system needs to be improved.”
This has left the job of providing legal representation to PWDs to humanitarian organisations who treat such cases as human rights issues.
One such organisation is the Human Rights Non-Governmental Organisations (NGO) Forum, a federation of human rights, which has provided free legal counsel and representation to persons whose rights would have been violated.
The organisation’s director, Lloyd Kuveya, who is a lawyer by profession, said: “And not all courts have employed court interpreters who have sign language skills.
“However, where such skills are not available courts have teamed up with institutions/NGOs with such skills. For instance, Deaf Nzeve, in Mutare, has been useful in collaborating with the courts.
“However, more still needs to be done to cater for the needs of people with disabilities. Another observation is that in the event that a person with a disability has been incarcerated do our prisons have adequate facilities to cater for their needs? This is also lacking in the sense that the prisons do not have adequate funds. The hospitals have wheelchairs, but prisons do not have adequate wheelchairs.
“Recently we (the NGO forum) have collaborated with the Disability and HIV and Aids Trust, undertaking to assist with lobby advocacy on issues affecting people with disabilities, engaging in community dialogues to sensitise communities to the plight of PWDs, doing policy analysis of disability rights and capacity building for organisations working on disability rights to draft shadow reports for submission to relevant bodies at the UN and African Union,” he added.
Things have also not been moving on the legislative side of things, despite there being two Members of Parliament specifically dealing with issues concerning PWDs.
Senator Nyamayavo Mashavakure, who represents PWDs in the Upper House of Parliament, said they have been trying, without success, to have the Persons with Disabilities Act aligned to the new Constitution to suit contemporary demands.
“There is a gaping hole in the justice system for disabled victims, and part of that is due to an archaic law which we still use. As MPs we have no authority to initiate that process because of constitutional prohibitions,” Mashavakure moaned, referring to section 133 of the Constitution which states that Bills that seek to usher in laws that would requires State-funding to administer can only be brought to the legislative assembly by a Minister and not individual legislators or members of the public.
This leaves the Executive as the sole authority in that respect and given the sluggish pace of government in trying to make sure laws are in harmony with the Constitution, one could safely conclude that this is not going to happen anytime soon.
Questions have also been raised with regards to the ability of PWDs to give evidence as State witnesses given the current unfriendly situation and with recognition to the sacrosanct fundamental of our system of justice, which promotes the idea that parties to a dispute are adversaries, and that their dispute must be decided by an impartial judge, who is not permitted to take into account any evidence other than that presented by the parties.
When individuals disadvantaged by reason of their disability or other attributes try to utilise this model, they often are unable to even open the door. Ironically, it is these individuals who have the highest rates of interaction with the justice system, and yet are the worst served by it.
Without adequate access to legal representation, or funds to secure the evidence required to prosecute their cases, many PWDs do not have real access to justice.
Disability, thus, offers a new lens through which to view the effectiveness of access to justice, and the inclusiveness of the justice system as a whole.