Ubuntu Centre
SOUTH AFRICA
NPO #: 062 063
Tel: +27 720441024
Email: theubuntucentre@gmail.com
www.ubuntusouthafrica.org
The Ubuntu Centre, South Africa:
Submission to:
The Department of Home Affairs Portfolio Committee
Comment on Electoral Amendment Bill B222013
Date: 28 August 2013
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.
Thank you for inviting a submission to Home Affair Department regarding the amendments
in the Electoral Bill 2013 on this very important matter of political participation rights.
Albie Sachs has said: “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 Act 1998 leave Section 8(c) and 8(d)1 of the
Electoral Act No.73 of 1998 unamended. Therefore barriers remain for people with
psychosocial disabilities to fully exercise their political right to vote.
1. 8(c) of the Electoral Act No. 73 of 1998 also states that persons declared by a High
Court to be of “unsound mind” or declared “mentally disordered” may not be
registered on the voters roll. This is discriminatory and excludes people with mental,
intellectual and psychosocial disability from the voters roll.
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
1
(c) has been declared by the High Court to be of unsound
mind or mentally disordered;
(d) is detained under the Mental Health Act, 1973 (Act 18 of
1973); or
Registration Number: 062-063-NPO
Ubuntu Centre
SOUTH AFRICA
NPO #: 062 063
Tel: +27 720441024
Email: theubuntucentre@gmail.com
www.ubuntusouthafrica.org
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 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 be interpreted to take away the 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.
2
The Electoral Act 1998 8(d) refers to the Mental Health Act 18 of 1973 and refers to
persons detained under this Act as excluded from the voter’s role.
This Act is now replaced and superseded by the Mental Health Care Act No. 17 of 2002
(MHCA). Any mention of the 1973 MHA 18 should be removed.
The MHCA 2002 clearly states in Chapter 3 that the human dignity of all mental health care
users be respected. Because the Constitution is unambiguous in ensuring that all are equal
before the law and specifically prohibits any discrimination based on disability, we argue
that anyone that can indicate clear intention or wish to vote has the right to exercise this
right despite the decision of any High Court or medical doctor regarding a state of mind.
Registration Number: 062-063-NPO
Ubuntu Centre
SOUTH AFRICA
NPO #: 062 063
Tel: +27 720441024
Email: theubuntucentre@gmail.com
www.ubuntusouthafrica.org
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 that the
MHCA 2002 guarantees political rights are not removed, the Electoral Bill 2013 should
remove mention of Mental Health Act 1973 to ensure that even those that are involuntarily
detained and those receiving treatment under the Mental Health Care Act of 2002, can be
registered to vote too.
3. 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 and SA is obligated
to this international law. People with psychosocial and intellectual disabilities are
included in this Convention,
Article 29 also requires that Contracting States ensure "that voting procedures, facilities and
materials are appropriate, accessible and easy to understand and use." This requires that the
South African Government provides reasonable accommodation and supports to people
with disabilities to exercise their rights. This should be specifically mentioned in the
amendments. Rather, supportive measures such as the production of user-friendly
informative literature and voting materials and voting assistance should be considered for
people with psychosocial and intellectual disabilities .
Furthermore, it should be noted that Article 292; also guarantees
“States Parties shall guarantee to persons with disabilities political rights and the opportunity
to enjoy them on an equal basis with others, and shall undertake to:
Ensure that persons with disabilities can effectively and fully participate in political and public
life on an equal basis with others, directly or through freely chosen representatives, including
the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy
to understand and use;
Protecting the right of persons with disabilities to vote by secret ballot in elections and public
referendums without intimidation, and to stand for elections, to effectively hold office and
perform all public functions at all levels of government, facilitating the use of assistive and new
technologies where appropriate;
2
http://www.un.org/disabilities/convention/conventionfull.shtm
Registration Number: 062-063-NPO
Ubuntu Centre
SOUTH AFRICA
NPO #: 062 063
Tel: +27 720441024
Email: theubuntucentre@gmail.com
www.ubuntusouthafrica.org
Guaranteeing the free expression of the will of persons with disabilities as electors and to this
end, where necessary, at their request, allowing assistance in voting by a person of their own
choice;
Promote actively an environment in which persons with disabilities can effectively and fully
participate in the conduct of public affairs, without discrimination and on an equal basis with
others, and encourage their participation in public affairs, including:
Participation in non-governmental organizations and associations concerned with the public
and political life of the country, and in the activities and administration of political parties;
Forming and joining organizations of persons with disabilities to represent persons with
disabilities at international, national, regional and local levels.”
The United Nations Committee on the Rights of People with Disabilities has when reviewing
Country Reports, has consistently commented on the right to vote concerning people with
psychosocial and intellectual disabilities. For example: In 2012 in concluding observations to China
it stated:
23.
The Committee is concerned with article 26 of the Election Law, which excludes
citizens with intellectual and psychosocial impairments from the voting process.
24.
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. 3
South Africa, when having the Country Report reviewed by this UN Committee may similar
recommendations to remove 8c and 8d as both these sections place barriers for some people with
psychosocial and intellectual disabilities from exercising their political right to vote.
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
mental and psychosocial disabilities to exercise their right to vote. We hope that forthcoming
regulatory and procedural supports for people with disabilities so as to included people with
psychosocial and intellectual disabilities.
Anne-Marie Robb, Ubuntu Centre Manager, 0720441024
3
See concluding observations: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session8.aspx
Registration Number: 062-063-NPO