A HARARE man has approached the High Court challenging some discriminatory provisions in the Criminal Procedure and Evidence Act arguing that prosecutorial authorities rely on them to keep deaf people in detention owing to their disability.
In a court application filed on January 17 this year, Adam Bwanya is asking the High Court to declare section 193 of the Criminal Procedure and Evidence Act unconstitutional.He argues that the section violates the right to non-discrimination, the right to liberty and the right to fair trial of people with disabilities as the provisions hinder deaf people from defending themselves in court because of deafness or muteness.
Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi and Attorney-General Virginia Mabhiza are cited as respondents in the matter.In his founding affidavit, Bwanya said the application was seeking an order of constitutional validity directed at the section.
The provisions provide for the detention of suspects deemed to be deaf, mute or both, if it appears to the court that the accused is unable to properly conduct his or her defence.“It is clear from the above provisions that once it appears that a deaf or mute or both deaf and mute accused person appears to be unable to conduct their defence on the basis of their disability then the deaf and mute person will be detained upon the prosecution providing evidence that it is in the interest of public safety and protection of the accused person be detained.
“It is my respectful contention that these provisions infringe on deaf, mute or both deaf and mute persons who are accused of criminal offence of their right to non-discrimination, their right to have the criminal proceedings translated into a language they understand, their right to a fair trial and their right to liberty,” he said.
Bwanya further argued that deaf or mute people are vulnerable and society has interests in the protection and enforcement of their rights.
“This societal interest to ensure that the rights of disabled persons are protected is particularly enhanced when deaf, mute or both deaf and mute persons interact with the State in the hostile arena of criminal prosecution,” he said.Bwanya averred that the provisions infringe on the rights of deaf and mute people when they face criminal charges.
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