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June 1, 2018

Mental health care users and the right to vote

SAFMH has crafted a press release on this issue. Parliament was briefed on the topic on the 29th of May 2018. The question was whether mental health care users- previously denied the franchise by section 8 of the Electoral Act- ought to be permitted to vote in future elections. The proposed amendments to the aforementioned legislation make provision for this and, should it be passed, this stands to be a watershed moment in South African History. SAFMH's stance is that to fail to allow such individuals the right to vote is unfairly and unjustifiably limiting their rights and that the offending provisions in current law must be abolished. The big question people ask is if severely and profoundly disabled persons voting will not unduly influence the outcome of the elections. We strongly feel it will not as such individuals are highly unlikely to vote to begin with. The ability to vote bestows on one the rights to dignity, equality and freedom of expression. it is a most important entitlement and must be realised. eNCA conducted a poll to find out what public opinion is on the matter. 60% of the respondents said that such individuals should be able to vote while 40% said they should not be able to. While it is encouraging to see that the majority of people do not have a discriminatory attitude towards people with psychosocial and intellectual disabilities, is is alarming that such a large percentage of respondents do. Many of the remarks made by SAFMH in the press release discuss this issue. The full press release appears below:

 

PRESS RELEASE: MENTAL HEALTH CARE USERS AND THE RIGHT TO VOTE

 

On the 29th of May 2018, Parliament was briefed on possible reforms which will allow mental health patients to vote in elections. First and foremost, SAFMH would like to applaud government on the measures taken thus far to make this previously extinguished right a reality. eNCA also released a poll which posed the question as to whether “mental health patients should be allowed to vote.” The results were that 60% of voters in the poll said yes they should and 40% said no they should not be able to. We support eNCA’s decision to request the public to give their opinion and to start the conversation around this issue. It is important for pending law reform to be publicised and for the perception of the public surrounding important and controversial topics such as this to be known by decision-makers, especially leading up to the general elections. While heartening to know that more than half of respondents were in favour of the right to vote extending to people who have been denied the franchise in the past, it is concerning that such a large proportion of voters expressed that this right should be curtailed against people so situated. Public opinion is important in the law reform process because of the participatory nature of our democracy. Social stigma often puts a pin in this, however, frustrating the course thereof. While not decisive, the view of the public is very important and thus, on this basis, SAFMH has some aspects it wishes to raise surrounding the issue.

The way in which South African law already addresses this issue is as follows: the right to vote is guaranteed to all citizens over the age of 18 years of age in terms of section 19(3)(a) of the Constitution of the Republic of South Africa (CRSA); however rights are capable of limitation in terms of section 36. This limitation in respect of people with mental illness and intellectual disabilities voting is contained within sections 8(c) and (d) of the Electoral Act, which excludes people deemed to be of “unsound mind,” the “mentally disorderly” and those held under the Mental Health Care Act. It is unclear what exactly the first two of these exclusions refer to as they are archaic terminology, but the third refers to people who have been involuntarily admitted to a psychiatric hospital. Section 36 of the Constitution states that rights may be limited only if that limitation is reasonable and justifiable. It is our submission that it is not. This is because of the extent to which it limits the person’s rights to dignity, equality and freedom of expression. It is contrary to international law and does not take cognisance of the fact that people with mental illness, psychosocial disability and intellectual disability can, with reasonable accommodation, be quite adept at making decisions concerning what is best for them and those around them.

As to the international law concerned, Article 29 of the United Nations Convention on the Rights of People with Disabilities (UNCRPD) provides that the political rights of people with disabilities are guaranteed, that States Parties must bestow upon people with disabilities the right to vote, must ensure that voting procedures and facilities are “appropriate, accessible and easy to understand and use,” and protect the right of the person to vote by secret ballot, but with assistance if they so choose. The UNCRPD does not make distinctions regarding the types of disabilities to which this applies. It is therefore submitted that as a state that has ratified the UNCRPD, South Africa must make these provisions for people so-situated.

The South African Federation for Mental Health (SAFMH)

 is a non-governmental organisation (NGO) seeking to uphold and advocate for the rights of mental health care users. We submit that the South African legal framework is currently very outdated and bourn of stigma against people with mental illness, psychosocial and intellectual disabilities. It represents perceptions that existed before Post Constitutional Democracy and does not reflect the human rights-based model for which we advocate. We call upon the public to become educated on these issues, to know what the law states and what it means and to gain an understanding of the fact that people with mental illness, psychosocial and intellectual disabilities can be extremely capable citizens. Similarly, we call upon duty-bearers to facilitate this educational process.

It is time to #takeyourplace and be freed from societal perceptions that things should stay the way they are. Mental health care users ought to be on a same footing as everyone else. They have the right to have aspirations about how this country should be taken forward, rights to offer their support to a political party. For them to be denied that represents a flagrant dereliction of their constitutional entitlements. Let’s take that 60% yes and make it 100%.

Last modified on June 1, 2018