By Mary Taruvinga
HIGH Court judge Esther Charewa has ordered the suspension of Section 193 of Criminal Procedure and Evidence Act (CPEA) which allows the detention of persons with listening and speech impairments or both after establishing this was unconstitutional.
The law changing judgement followed an application by the Deaf Zimbabwe Trust (DZT) seeking to have section 193 of the Criminal Law (Codification and Reform Act) declared unconstitutional for failing to facilitate fair court hearings for persons with hearing impairments.
Charewa upheld the application and ruled that the section be suspended for six months to allow Justice minister Ziyambi Ziyambi to introduce a clause which provides for sign language and interpretation.
Said the judge, “Section 193 of CPEA violates the rights of accused persons who are deaf and mute as enshrined in the Constitution.
“Section 193 (detention of persons who are deaf or mute or both) of the CPEA Chapter 9:07) be and is hereby declared unconstitutional and is suspended for six months to allow the 1st respondent to remove the unconstitutionality by introducing a clause which provides for sign language interpreter.”
DZT is represented in the matter by Legal Resources Foundation.
Cited as respondents are Justice minister Ziyambi Ziyambi, Attorney General Prince Machaya and Prosecutor General Kumbirai Hodzi.
In their application, DZT wanted the High Court to declare Section 193 of the Criminal Law (Codification and Reform) Act which provides for detention of persons who are deaf, as unconstitutional on the basis that it did not provide reasonable accommodation to their members during criminal proceedings.
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 from.
They also argued that the Constitution imposes an obligation of the State to encourage the use and development of forms of communication suitable for persons with disabilities.
“The failure by section 193 of the Act to make provision for a sign language interpreter adversely affects the 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,” they argued.
The court heard section 193 empowers a court to make a decision without hearing the evidence of an accused person who is deaf.
DZT argued that there was a risk of detaining innocent individuals or summarily detaining people due to a physical condition.