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.
Daily News
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