Posted: 30 June, 2025 Filed under: Jeff Barker, Michael Gyan Nyarko | Tags: adequate standard of living, African Charter, Convention on the Rights of Persons with Disabilities, CRPD, deaf drivers, dignity, disability, equal protection of the law, freedom of movement, human rights, human rights instruments, limitation of rights, public safety, right to employment, right to non-discrimination, Supreme Court of Zambia
| Author: Jeff Barker Intern, Institute for Human Rights and Development in Africa |
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Author: Michael Gyan Nyarko Deputy Executive Director, Institute for Human Rights and Development in Africa (IHRDA) |
Introduction
In a 2024 decision the Supreme Court of Zambia denied an application by three deaf drivers who had taken Zambia’s licensing authority to court.[1] The applicants argued that they were refused a drivers licence solely on the basis of their disability. Surprisingly, the Supreme Court of Zambia found that the licencing process was not discriminatory, and, therefore, there was no need for the government to justify a limitation of rights. The refusal to issue driver’s licences to deaf individuals has implications on several rights, including the right to non-discrimination and equal protection of the law, dignity, freedom of movement and the right to employment and an adequate standard of living, among others. The decision of the Supreme Court of Zambia therefore raises several human rights issues which are more extensively discussed by the authors in a forthcoming journal article. In this brief piece, we share some reflections on the limitation of rights under the African Charter and in particular what would be required of a state, within the African regional human rights system, to justify limiting the rights of deaf drivers?
What must states do to justify limitations of rights under the African Charter?
Like most human rights instruments, the African Charter acknowledges that not all rights are absolute and therefore may be subjected to some limitations, if the limitations comply with a designated criteria. Thus, article 27(2) of the African Charter provides avenues to limit rights under certain circumstances, listing “due regard to the rights of others, collective security, morality and common interest” as potential justifications. In the case before the Supreme Court of Zambia, the stated reason for prohibiting deaf drivers from being able to obtain a licence fell within the ambit of public safety. Arguably, public safety would fall within the permissible grounds for the limitation of rights under article 27(2) of the African Charter. However, merely identifying that a limitation is covered under one of the permissible grounds does not necessarily mean that the limitation is not arbitrary. So, on account of public safety, what would a state government need to prove to justify a limitation on the rights of deaf people to drive?
First, the African Commission has made it clear that the onus is on the state to justify any limitation of rights,[2] and further that the rights guaranteed in the African Charter must be protected against “too easy [of a] resort to the limitation clauses in the African Charter.”[3] Accordingly, once an applicant has demonstrated differential treatment, the arbitrariness of such differential treatment would be assumed, unless the respondent state can justify the difference in treatment. Such justification will then be evaluated against the standard set out in article 27(2) of the African Charter and the guidance that has been provided by various human rights bodies, including the African Commission and African Court.
Second, flowing from the above, the African Commission has stated that any limitation “must be compatible with the African Charter and other applicable human rights standards.”[4] This assessment should include an evaluation of both international, and regional covenants, such as the Convention on the Rights of Persons with Disabilities (CRPD), and the decisions and standards set in other regional courts.
Third, the African Commission has established that there is an overarching consideration that any limitation needs to be “measured against what is considered acceptable in an open and democratic society.”[5] As put forward by other regional courts, and endorsed by the African Commission, these key concepts include “broadmindedness, pluralism, and tolerance.”[6] Thus, a respondent state would need to demonstrate a good faith attempt to have engaged in an open-minded and inclusive decision-making process before arriving at a conclusion that it was necessary to limit any of the rights that are guaranteed in the African Charter.
Fourth, The African Court has stated that: “any interference… shall be necessary and proportional to the legitimate interest sought to be attained.”[7] Consequently, to justify the limitation of any right, a state needs to demonstrate that there is a valid and proven connection between the limitation of rights and the government’s stated objective, and that the specific limitation is essential to obtain the government’s stated objective. Thus, even where such rational connection exists between the limitation of the right and the stated objective, the state needs to also show that the interference is proportional to the interest the government hopes to attain.
Fifth, in proving the rational connection between the limitation and the stated objective, actual evidence must be adduced to support the claim of the government. Both the African Commission and African Court have maintained that “mere assertions” cannot be accepted.[8] The African Commission has previously been critical of language stating that people “were likely” to pose a danger, considering the language to be “vague” and “unproven.”[9] Similarly, in a ruling regarding a violation of the right to culture, the African Court stated that the “mere assertion” that a limitation is warranted is “not sufficient.”[10] Similarly, the Inter-American Commission has stated that restrictions of rights must be “rigorously justified” and “supported by exhaustive argument.”[11] Consequently, to reach the standards of the African Charter and other human rights instruments any limitation must be clear, specific and supported by a wealth of reliable evidence. It is therefore not enough for the state to assume that deaf people who drive are a danger to the public, without providing any evidence to back that claim.
In sum, to reasonably justify a restriction on the rights of deaf drivers, a respondent state would first need to demonstrate that the refusal to issue driving permits to deaf drivers has a connection to public safety. This connection would need to be outlined clearly and supported by reliable and extensive evidence. Specifically, a respondent state would need to show that deaf drivers are noticeably more dangerous than other drivers by demonstrating, with credible statistical evidence, that deaf drivers get in accidents at a significantly higher rate than drivers who are not deaf. It would not be sufficient to hypothesise, assume, or put forward vague statements such as saying that deaf drivers are “likely” to be more dangerous.
If proven that deaf drivers are more dangerous, it is our submission that the respondent state would need to outline why they have not taken any measures to make a proportional response that would limit deaf drivers’ rights as minimally as possible. For example, providing additional testing that would allow a deaf driver to prove that they can be a safe driver, or providing special training that could allow deaf drivers to obtain a licence upon successful completion of the training.
Conclusion
While we acknowledge that the African Charter, like various human rights instruments, accommodates the limitations of rights, any limitation has to be in compliance with the spirit of the African Charter, and other human rights instruments, and measured against recognised standards of legality, legitimacy and proportionality. Consequently, a respondent state would need to demonstrate that their position does not originate from a point of bias and that it has carefully considered and investigated the issues. A hallmark of careful consideration and investigation would, for example, include meaningful consultation with the deaf community.
Justifying the limitation would also require substantial and thorough evidence that supports the assumed threat that deaf drivers pose to the public. Such evidence may be obtained, for example, through learning from the experience of other countries that allow deaf people to drive. Specifically, is there evidence, from the countries which allow deaf people to drive, that supports the assumption that deaf drivers pose a higher danger to the public than drivers who are not deaf? That is a question that needs to be answered. Overall, the limitation of rights should not be taken lightly. Any attempt to limit rights guaranteed in the African Charter should be necessary to achieve a legitimate purpose, heavily scrutinised and supported by extensive evidence.
Building an open and inclusive society requires that policy choices of states are based on evidence, and that limitations on the rights of marginalised groups, such as persons with disabilities, are mitigated as much as reasonably possible. In the present case, there is legitimate reason to believe that a blanket denial of driver’s licences to deaf drivers may not pass the limitations test, and would thus amount to arbitrary discrimination.
[1] Musukwa & others v Road Transport and Safety Agency, SCZ/8/18/2021, Appeal No. 11. 2021 (Supreme Court of Zambia).
[2] Amnesty International v Zambia, (5 May 1999), African Commission on Human and Peoples’ Rights, Communication 212/98, https://caselaw.ihrda.org/entity/yp8q73s13a6rgococnv1jor?file=1511800540871doflu317frh3gvey5ftwng66r.pdf&page=5, para 50.
[3] Ibid, para 50.
[4] Gabriel Shumba and Others v Zimbabwe, (2020), African Commission on Human and Peoples’ Rights, Communication 430/12, https://caselaw.ihrda.org/en/entity/pv4d6pslf78/metadata?searchTerm=limitation&file=1720010199927t4qdltn4f1g.pdf&page=28, para 109.
[5] Ibid, para 102.
[6] Ibid, para 102.
[7] African Commission on Human And Peoples’ Rights v The Republic of Kenya, African Court on Human and Peoples’ Rights, (26 May, 2017), Application 006/2012, https://caselaw.ihrda.org/en/entity/ocm0t3dsg63sw4c8i6aqt1emi/text-search?file=1511173100035ps6x9wn0twxerl7i1txvl5wmi.pdf&page=76, Para 188.
[8] Ibid, para 188.
[9] Amnesty International v Zambia, Communication 212/98, para 50.
[10] African Commission on Human And Peoples’ Rights v The Republic of Kenya, Application 006/2012, para 188.
[11] Guevara Diaz v Costa Rica, Inter-American Court of Human Rights, (22 June, 2022), https://www.corteidh.or.cr/docs/casos/articulos/seriec_453_ing.pdf, para 49.
About the Authors:
Jeff Barker is a recent graduate of Osgoode Hall Law School, York University and an intern at the Institute for Human Rights and Development in Africa
Michael Gyan Nyarko is the Deputy Executive Director of the Institute for Human Rights and Development in Africa (IHRDA)
