By Chimwemwe Ziwa
Access to justice is a fundamental
right enshrined in Zambia’s Constitution and International Human Rights
Instruments, yet persons with disabilities continue to face systemic barriers
in the legal system. While Information and Communication Technologies (ICT)
present transformative opportunities to enhance inclusivity, Zambia’s judicial
framework has yet to fully harness these tools in order to accommodate persons
with disabilities. This legal opinion examines the existing court rules and
procedures that either facilitate or hinder the use of ICT in promoting access
to justice for people living with disabilities in Zambia.
First and foremost, there have been
rules in the recent past in Zambia which make provision for the use of ICT.
These provisions were adopted to address backlogs, enhance access to justice
and reduce delays in the service delivery of the judiciary. For example, Order
3 rule 1 and 2 of the High Court Rules allows for certain documents to be
filed electronically.[1]
Further, Order IV of the High Court
(Amendment) Rules allows a defendant to enter an appearance to a writ of
summons by delivering it to the proper officer electronically.[2] In short, documents can be submitted
digitally, typically through a computer or an online portal. This is important,
as it provides accessible and convenient ways to access legal and
administrative services. This has helped in promoting independence by allowing
remote access and reducing the need for physical interaction, which can be
challenging for those with mobility issues.
Additionally, Order 7(a) rule 8 of
the High Court Rules provides that the Court may receive oral evidence from
a source within and outside Zambia via audio visual technology and such
evidence shall be recorded in the same manner as if the witness was physically
present in Court.[3]
This rule is significant, as persons with physical disabilities often face
immense challenges traveling to and entering court buildings, which may not be
designed with accessibility in mind. Obstacles such as a lack of ramps,
elevators, or accessible transport services can prevent individuals from
attending court sessions, thereby excluding them from participating in
proceedings that affect their rights.
Notably, both the High Court and
Supreme Court buildings in Lusaka are constructed in a similar manner,
featuring staircases throughout their entrances and interiors. They do not have ramps nor elevators
to allow persons with disabilities to access their services without
difficulties. This reality denies people with disabilities their right to
access the various services that are offered by these courts and if they do, it
is at a huge cost.[4]
Worse still, these realities constitute a contravention to Section 8 of the
Persons with Disabilities Act, which mandates the judiciary to take
necessary measures in ensuring that people with disabilities have equal and
effective benefit and protection without discrimination.[5]
However, in 2024 the Judiciary Policy
Committee through the Chief Justice, announced that Courts in Zambia will be
televising or live streaming court proceedings as an effort to enhance access
to justice and accountability in the judiciary.[6]
To effect this cause, the judiciary allowed the Eligibility Case to be
televised. This step is significant as it does not only enhance accountability
in the judiciary but also promotes access to justice as people living with
disabilities, particularly for those with hearing and mobility difficulties as
information reaches them with convenience.
These strides have been made possible
because of the Government’s effort to allow and use ICT mechanisms so as to
break the barriers of inequalities that exist between ordinary people and those
living with disabilities, especially in accessing judicial services. Moreover,
these efforts are in compliance with Article 13 of the United Nations
Convention on the Rights of Persons with Disabilities, which provides that
states must guarantee persons with disabilities equal access to justice by
providing procedural and age-appropriate accommodations and facilities.[7]
This notwithstanding, Zambian court
rules and procedures have still continued to impede the use of ICT, especially
in promoting access to justice for persons living with disabilities. This is
essentially due to incomplete digitization, untrained staff and uneven
technology access. One such rule impeding the use of ICT is the procedure for
issuing summons when an accused is called to attend trial as set out in
Criminal Procedure Code (CPC). Section 92(1) of the CPC provides that
once a summons is issued, there is a requirement that it must be in writing.[8]
Summons are personally served by a police officer, or an officer of the court
and an accused person must sign the back of the duplicate copy to confirm
receipt. However, summons are not issued in accessible formats. There is no
requirement for summons to be issued in Braille or in essay format.
This provision poses some realistic
challenges, especially for the people living with visual impairments. Failing
to make summons easily accessible and readable for all impedes access to
justice for the disabled and makes the content difficult to understand. This
may have dire consequences because failure to respond to a summons result in
the issuing of a warrant of arrest whereby the accused person or suspect is
detained in police custody.
Moreover, the requirement to give oral
evidence in person and in open court may be a barrier to equal access to
justice. The general rule is that the witness at trial shall be examined viva
voce in open court. This means that a witness is usually expected and required
to appear before court in person and give oral evidence. Orality is a
fundamental feature of the adversarial trial. However, it assumes that all
witnesses possess the ability for effective oral communication, which is not
the case. Some disabilities affect a person’s ability to verbally communicate.[9]
In addition, the anxiety associated
with speaking in open court may further hinder their ability to communicate
effectively in court. Such witnesses may need to be accommodated by conducting
trials in camera for example or by allowing the use of an intermediary to
facilitate communication between the court and the person with a disability. A
strict application of the requirement for viva voce testimony in open court may
act as barrier to equal access to justice.[10]
Therefore, the court should frequently and routinely normalize the use of ICT
such as remote testimony so as to accommodate those with disabilities.
In conclusion, the integration of ICT into Zambia’s justice system is essential to uphold and enhance access to justice for persons with disabilities. Despite progressive moves to introduce ICT in the judiciary, barriers such as inaccessible documentation, inadequate digital infrastructure and rigid court rules requiring physical presence perpetuate exclusion. Therefore, in order to dismantle systemic barriers and promote access to justice for persons with disabilities, Zambia must reform its court rules and procedures to allow for ICT driven mechanisms such as virtual hearings, mandating accessible formats and training judicial staff on disability inclusive practices.
BIBLIOGRAPHY
Legislation
Criminal Procedure Code Act, Chapter
88 of the Laws of Zambia
High Court Act, Chapter 27 of the Laws
of Zambia
High Court (Amendment) Rules, 2012
High Court (Amendment) Rules, 2020
Persons with Disabilities Act No. 6 of
2012
International Instruments
United Nations Convention on the
Rights of Persons with Disabilities 2008
Journal Articles
Centre for Human Rights, University of
Pretoria, Persons with Disabilities and Barriers to Equal Access to Justice in
Zambia: A Research Study of the Criminal Justice System (Report, Ford
Foundation 2022) < https://www.chr.up.ac.za/ > accessed 20 April 2025.
Websites
Kalumbu Lumpa, ‘Decision to broadcast
court proceedings by Zambia’s judiciary welcome’ (diggers.news, 20th
November 2024) < https://diggers.news/guest-diggers/2024/11/20/decision-to-broadcast-court-proceedings-by-zambias-judiciary-welcome > accessed 21 April 2025.
Samgenius Chilongo, ‘You Shall See the
Land Before You, But You Shall Not Go There: The Case of the Supreme Court of
Zambia’ < https://www.linkedin.com/posts/samgenius-chilongo-73b434258_you-shall-see-the-land-before-you-but-you-activity-7302180372774096896-> accessed 20 April 2025.
[1] High Court Rules,
Order 3 r1
[2] High Court
(Amendment) Rules 2020 Order IV
[3] High Court
(Amendment) Rules 2012, Order 7(a) r8
[4] Samgenius Chilongo,
‘You Shall See the Land Before You, But You Shall Not Go There: The Case of the
Supreme Court of Zambia’ < https://www.linkedin.com/posts/samgenius-chilongo-73b434258_you-shall-see-the-land-before-you-but-you-activity-7302180372774096896-> accessed 20 April 2025.
[5] Persons with
Disabilities Act 2012, s8
[6] Kalumbu Lumpa, ‘Decision to broadcast court proceedings by
Zambia’s judiciary welcome’ (diggers.news, 20th November 2024) < https://diggers.news/guest-diggers/2024/11/20/decision-to-broadcast-court-proceedings-by-zambias-judiciary-welcome > accessed 21 April 2025.
[8] Criminal
Procedure Code Act, s 92(1)
[9] Centre for Human
Rights, ‘Persons with Disabilities and Barriers to Equal Access to Justice in
Zambia: A Research Study of the Criminal Justice System’ (Report, Ford
Foundation 2022) < https://www.chr.up.ac.za > accessed 20
April 2025.
Chimwemwe Ziwa is a fourth year student at the University of Zambia and he is the current Chief Executive Officer at Legal Aid Initiative.