Last week, lawyers of Dr Stella Nyanzi were “ambushed” with an application by the state prosecuter praying to court that Dr Nyanzi should be medically assessed to prove whether she is mentally stable.
What was an ordinary mention of the case, perhaps where lawyers of the accused were ready with the procedure and legal authorities to apply for bail, was turned on its head in mere minutes. The accused had to eventually be remanded to Luziira prison as her lawyers find responses to this application.
I am an officer of court and, therefore, fully appreciate the value of the sub judice rule. I will thus make no comment as to the merits of this application but, rather, express my concerns about the Mental Treatment Act (Chapter 279), the law under which this application was brought.
The Mental Treatment Act (1938) was inherited from our colonial masters at a time where persons with mental disabilities were looked at by the law as of no value, with no place in the community.
They were seen as ‘objects’ whose only place was a mental asylum where they would be subjected to perpetual suffering. Persons with mental disabilities were, at all times, considered dangerous to themselves and the community.
Therefore, they had to be taken away from the population. Whereas the initiaters of this law have discarded it and moved on to a humanistic legal framework that considers persons with mental illness as individuals with rights, who require psychosocial support and have the right to free and informed consent to treatment, Uganda has retained this archaic law on its statute books.
This is in total disregard of the international human rights instruments that Uganda has signed, such as the UN Convention on Rights of Persons with Disabilities and the progressive bill of rights in our Constitution.
Financial year after another, including the current one, the mental health bill is on the list to be reviewed and passed by parliament. With a few months to the end of the financial year, the bill is still with the health committee and I am worried that this year will also pass without the bill’s consideration.
The Mental Treatment Act is extremely dangerous as it gives unfettered power to anyone to file a complaint against another that he/she suspects of being of ‘unsound mind’. The law has been abused in the past by people who wish to discredit others, take their property or settle family conflicts.
My lawyer friend who was battling for custody of children with his estranged wife was arrested and forcefully taken to a mental hospital; by the time he was released, the wife had presented a medical certificate to court showing that he has a mental illness and, therefore, unfit to take custody of his children.
Custody had been given to the wife. I know cases in court where people’s property has been taken and the defense of the thieves is that the complainant is ‘mad’.
In the past, we have seen private persons misusing this law. The trend introduced in the Dr Stella Nyanzi case, where it is the government applying to investigate the mental status of its citizens who have criticized it – even if the criticism is done in unconventional ways – is a worrying one.
If this application, is successful, the government will have added to its already-voluminous arsenal of dealing with discontent among the population which currently includes preventive arrest, and arrest and release without any charge, among others.
If the government considers ‘walking to work’ by people who own cars an unconventional means of protest, it might decide to order for their mental stability to be checked. The result of having a label of ‘unsoundness of mind’ in Uganda is extremely disastrous.
Once you are declared of unsound mind, you are incompetent to contest for any political office; you cannot hold any job in the public service, you may be declared an incompetent witness and your property could be administered by another person who has the right to sell the same.
The Mental Treatment Act has no place in any constitutional dispensation and must be struck off our law books. Like Martin Niemoller said, you may be quiet as they come for Dr Nyanzi, but there might be nobody to speak when they come for you.
The author is an advocate for persons with mental disabilities.