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The Ubuntu Centre

Submission to: The Department of Home Affairs

Portfolio CommitteeComment on Electoral Amendment Bill

B222013Date: 10 September 2013

Presented by Annie Robb

The Ubuntu Centre South Africa is the only independent membership based Disabled People’s Organization, run for and by people with psychosocial disabilities in South Africa. It is registered in the NPO Directorate in the Department of Social Services as a Non Profit Organization. The main activities of the organization are lobbying and advocacy for human rights and thus securing the dignity of people with psychosocial disabilities that remain a stigmatized, marginalized and discriminated vulnerable group in South Africa.

“The vote of each and every citizen is a badge of dignity and personhood. Quite literally is says that

everybody counts”

The proposed amendments to the Electoral Act1998 leave Section 8(c) and 8(d)of theElectoral Act No.73 of 1998 unamended.

Therefore barriers remain for people withpsychosocial disabilities to fully exercise theirpolitical right to vote.

8(c) has been declared by the HighCourt to be of unsound mind ormentally disordered;

(d) is detained under the MentalHealth Act, 1973 (Act 18 of1973);


8c – “unsound m

ind” or “m

entally disordered”

The Constitution of South Africa is unambiguous in ensuring that all are equal before the law and specifically prohibits any discrimination based on disability

The Bill of Rights Chapter 2 states: Everyone has inherent dignity and the right to have their dignity respected and protected. Under Equality the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds including race, gender, sex, pregnancy, marital status, colour, sexual orientation, age, disability, religion, conscience, belief culture, language and birth.

Continuing with the Bill of Rights Chapter 2 under Political Rights it states every adult citizen has the right to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret and to stand for public office and if elected to hold office.


We argue that anyone that can indicate a clear intention or wish or desire to vote has the right to exercise this right despite the decision of any High Court regarding a “state of mind”.

Revoking the right to vote to any member of a society is a severe measure and indicates the existence of a “qualified” vote.

It undermines the promise of “Universal adult suffrage” in the Constitution 1996.


So any laws that block disabled people from voting are based on a faulty misguided stereotypes, stigma and discrimination that they can’t make decisions and do not have a preference on a political issue or among political candidates.

An “unsound mind” does not necessarily indicate that a person does not have the desire and capacity to express his/her political will and cast his/her vote.

Curatorship/guardian type laws generally refer to the property rights of individuals who are judged not to have the capacity to manage their financial affairs. A high court order that awards this decision should in no way take away the very basis of citizenship, dignity and political personhood of the person.

This would then signify the political death of this citizen and exclusion from political life.


8d)is detained under the M

ental H

ealth A

ct, 1973

This Act is now replaced and superseded by the Mental Health Care Act No. 17 of 2002 (MHCA).

The MHCA 2002 clearly states in Chapter 3 that the human dignity of all mental health care users be respected

Although the Mental Health Care Act 2002 does allow the deprivation of liberty by involuntary confinement for the provision mental health care, this in no way then prevents the exercise of political rights.


Home Affairs needs to clearly support the view that: the Constitution is supreme and the MHCA 2002 guarantees political rights are not removed and so the Electoral Bill 2013 should remove mention of Mental Health

Act 1973 to ensure that even those that are involuntarily detained or being treated under the Mental Health Care Act of 2002, can vote too.


SA International Obligations

Importantly, South Africa has signed and ratified the UN Convention on the Rights of People with Disabilities in 2008. Article 29 of the Convention obligates all State Parties to ensure that the right of persons with disabilities to vote are respected and SA is obligated to this international law. People with psychosocial and intellectual disabilities are included in this Convention.


Examples:

The United Nations Committee on the Rights of People with Disabilities has when reviewing Country Reports, consistently commented on the right to vote. In 2012 in concluding observations to China it stated:

The Committee is concerned with article 26 of the Election Law, which excludes citizens with intellectual and psychosocial impairments from the voting process.

The Committee recommends that the State party revise article 26 of the Election Law to ensure that all persons with disabilities have the right to vote on an equal basis with others.


We trust that the Department of Home Affairs takes notes of our concerns and ensures the removal of 8c and 8d of the Electoral Amendment Act so that there are adequate guarantees for people with intellectual, mental and psychosocial disabilities to exercise their right to vote.

We hope that forthcoming regulatory and procedural supports for people with disabilities do include people with psychosocial, mental and intellectual disabilities.

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Click to edit Master text styles Second level Third level Fourth level Fifth level TheUbuntuCentre Submission to: The Department of Home Affairs Portfolio