Landmark ruling on detention of the deaf
THE High Court has declared in a landmark ruling as unconstitutional the detention of deaf suspects without the provision of an interpreter to facilitate communication during criminal proceedings.
The court ordered Justice minister Ziyambi Ziyambi to urgently amend the law to accommodate them.
This was after the Deaf Zimbabwe Trust (DZT) had taken the government head-on, contesting the manner in which its members were treated after arrests and during prosecution.
High Court judge Justice Jester Charewa gave an order declaring Section 193 of the Criminal Law (Codification and Reform) Act, which provides for detention of persons who are deaf, unconstitutional on the basis that it does not provide reasonable accommodations for them during criminal proceedings.
She ruled that the section of the law was inconsistent with provisions of the Constitution that guarantee suspects rights to challenge the lawfulness of an arrest; be promptly informed of the reason for detention; and the right to remain silent.
Charewa added that the section took away the right to a fair trial and was discriminatory.
“To the extent that it does not provide for a sign language interpreter, it be and is hereby declared that Section 193 is unconstitutional and the declaration of unconstitutionality is suspended for six months to allow the first respondent (Ziyambi) to remove the unconstitutionality by introducing a clause which provides for a sign language interpreter,” Charewa ordered.
DZT, which was represented by the Legal Resources Foundation, cited Ziyambi, Attorney-General Prince Machaya and Prosecutor-General Kumbirai Hodzi as respondents.
DZT argued that the State and all its institutions are obliged to recognise the rights of persons with physical or mental disabilities to achieve their full mental and physical potential and minimise the disadvantages they suffer.
It also argued that the Constitution imposes an obligation on the State to encourage the use and development of forms of communication suitable for persons with disabilities.
“An accused person who is deaf and mute would require a sign language interpreter to communicate effectively. The failure to communicate effectively will hinder an accused person who is deaf to properly prepare for his or her defence and enjoy the rights accorded to them,” read the application.
“The failure by Section 193 of the Act to make provision for a sign language interpreter adversely affects their rights. For example, in the absence of a sign language interpreter accused persons who are deaf will not be informed of the charge promptly and be denied to have proceedings conducted in the language they understand.”
The court heard the section empowers a court to make a decision without hearing the evidence of an accused person.
DZT argued that there was a risk of detaining innocent individuals or summarily detaining people due to a physical condition.
“If section 193 of the Act is not amended to ensure that a sign language interpreter is provided, there is high likelihood that an individual who is deaf will find themselves in prison and most likely with individuals who cannot communicate with him or her in any manner,” they argued.