Courts consider litigation by deaf drivers, TV viewers

6 August 2021 · Carmel Rickard

The rights of deaf people have been considered by the courts in two recent decisions, one in Zambia and the other in the UK. In the first, the applicants challenged Zambian provisions in terms of which deaf drivers are not entitled to driving licences. In the second, a deaf woman claimed the UK government discriminated against her and others in her position by not providing a British Sign Language interpreter for government live briefings to the public about Covid-19.

Read Zambia judgment

Read UK judgment

The decision in the Zambian high court case bitterly disappointed the executive director of Zambia Deaf Youth and Women (ZDYW), Frankson Musukwa. Acting on his own behalf and as a representative of ZDYW, Musukwa had hoped for much more from the case.

With the support of the Southern Africa Litigation Centre (SALC), Musukwa and his organisation argued that the Road Traffic Safety Act was unconstitutional in denying driving licences to deaf drivers, based solely on their deafness.

They also argued that the position in Zambia was an anomaly. This was because deaf drivers could be issued with valid licences by the Southern African Development Community (SADC) while a Zambian who is deaf was not allowed a licence.

Visual activity

Musukwa also pointed out that a deaf Zambian could obtain an international driver’s licence from, for example, Namibia or South Africa, which would then allow him or her to drive in Zambia, despite the local laws.

According to argument by his legal team, driving was ‘largely a visual activity requiring limited auditory function’.

‘[D]ue to their inability to hear, their ability to focus and concentrate on the road is far greater than a driver without a hearing impairment.’

Disabilities

ZDYW also argued that Zambia had international law obligations in relation to people with disabilities.

Despite these arguments, however, Judge Gertrude Chawatama found that the bar on issuing licences to people who are deaf was not unconstitutional – a finding that SALC commentators later said represented a missed opportunity, and provided ‘a disappointing indication of how far there is to go for States in Africa to realise the rights of persons with disabilities’.

In dismissing the action, Judge Chawatama said she sympathised with Musukwa and agreed ‘that it is important for the court to consider international best practices.’

Best practice

She then went on to give another reason for finding against Musukwa and ZDYW and for not considering international best practice: Zambian roads were not good enough for deaf drivers to use. ‘However, in this country our facilities have not developed to the extent that the deaf can safely drive our roads,’ she said, and added, ‘The law in its current form … is for the protection of persons living with this disability.’

Judge Chawatama also wrote that Zambia needed to comply with the ‘various instruments of human rights’ to which it is party, ‘in order for all its citizens to fully enjoy their human rights without distinction particularly on the basis of disability.’

Clear win

But while that case will have disappointed many people in Zambia and elsewhere, the second matter, Rowley v Minister for the Cabinet Office, heard by the UK’s Judge Michael Fordham, resulted in a clear win for people who rely on interpretation of official broadcasts into sign language.

Katie Rowley, who is profoundly deaf, said that being unable to access official information on Covid-19, provided by the government on television, had caused her stress and affected her wellbeing. She was pregnant at the time and relied heavily on official information.

The government had denied that it acted in a way that was discriminatory and said that her claim should be dismissed. However, Judge Fordham disagreed. There had been two briefings without a British Sign Language (BSL) interpreter, and he said her rights had been breached in relation to these two official briefings, held in September and October 2020.

Pandemic

Judge Fordham wrote, ‘The very nature of the briefings was to provide information to the public. That information related to a subject matter of the greatest public interest and a vital concern: the pandemic. That was true of each of the two data briefings…. They were important. They were focused on objective data. They were led by government scientists.

‘In the context of the pandemic, the circumstances were unprecedented and challenging for government; but they were also unprecedented and challenging for the public, who needed access to information, to help them to understand and to adhere and to manage their conduct and expectations for the future. …

‘[W]ithout BSL interpretation there was a clear barrier, for a vulnerable and marginalised group, undermining accessibility of information. The message was blocked, or scrambled or delayed. … The lack of provision … was a failure of inclusion, suggestive of not being thought about, which served to disempower, to frustrate and to marginalise.

Exclusion

‘The immediate experience was of important urgent messaging being delivered to the public, known to be being provided, but with an inability to access or understand it. The substantial, foreseeable and palpable effect would be an exclusion, and a justified sense of grievance, about which a reasonable person would certainly have good reason to complain, and about which affected people would reasonably say that they would have expected … to have been treated differently.’

Having found that there had been discrimination and a breach of the government’s duty in terms of the Equality Act, the judge made a declaration to that effect but transferred to a local court the assessment of the quantum of damages that should be paid to Rowley.

Carmel Rickard

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