Electoral Amendment Bill [B22-2013]: Public Hearings

Meeting report

Electoral Amendment Bill [B22-2013]: Public Hearings
The Ubuntu Centre Submission
Ms Annie Robb, Manager, Ubuntu Centre, said that her submissions for the Ubuntu Centre were mainly focused on clauses 8(c) and 8(d) that dealt with people of “unsound mind” and “mentally disorderedly” people and the Mental Health Act of 1973, respectively. She was concerned about the mention of “unsound mind” or “mentally disordered” people and their status to vote, as mentioned in 8(c). The Constitution was unambiguous in ensuring that everyone was equal before the law and prohibited discrimination based on disabilities. The Bill of Rights also emphasised that everyone had inherent dignity, and the state may not unfairly discriminate directly or indirectly against anyone on any grounds, including disability. Furthermore the Bill of Rights’ also stated that every adult citizen had the right to vote in elections.

She noted that the current legislation on Mental Health was the Mental Health Care Act of 2002 (MHCA). Chapter 3 of the MHCA stated that human dignity of all mental health care users was to be respected. Although the Act allowed for the deprivation of liberty, by involuntary confinement for the provision of mental health care, this in no way prevented the exercise of political rights.

A vote of every citizen was a badge of dignity and personhood, which literally meant that everyone counted. People with psychosocial mental and intellectual disabilities had long been a marginalised group, and in the past they were referred to variously as lunatics, the insane, imbeciles, retards, having unsound minds and being mentally disorderly. However, it must be remembered that first and foremost, they were people. All  citizens living with psychosocial mental and intellectual disabilities had a right to be included and count.

She noted that anyone older than 18 who could clearly indicate any willingness, intention or desire to vote, regardless of any High Court ruling on the person’s state of mind, should be allowed to vote. Denying that would be undermining the promise of universal adult suffrage in the Constitution. Having an unsound mind or a mentally disorderly mind did not mean that a person did not have the desire or the capacity to indicate their political desire or even stand for public office. Curatorship and guardianship laws generally referred to property rights for people who were considered unable to manage their financial affairs. An order by the High Court to take away that responsibility should not be interpreted as affecting the person’s citizenship and dignity.
 
Furthermore, South Africa had international obligations. In 2008 it had signed the UN Convention on the Rights of People with Disabilities. Article 29 obligated all states to ensure that they respected the rights of a person with disabilities to vote, and people with psychosocial disabilities were clearly included. The Committee had been very emphatic that countries needed to remove any laws that were discriminatory to people with psychosocial and mental disabilities, and that not only legislation must be put in place, but clear steps on how they would be implemented.

The Department of Home Affairs needed to support the view that the Constitution was supreme. She reiterated that the MHCA guaranteed political rights and thus any mention of the Mental Health Act of 1973 had to be removed, to ensure that even those that were involuntarily detained or being treated under the MHCA could vote. Furthermore, it hoped that the forthcoming regulations and procedures for the support for people with disabilities also included people with psychosocial, mental and intellectual disabilities.

Discussion
The Chairperson asked how a person with an unsound mind would be able to make a political decision.

Ms Robb said that the reference to psychosocial mental and intellectual disabilities referred to what was going on in the person’s mind, and there was a broad spectrum of diagnoses. As mentioned in her presentation, when an individual could form a wish, intent or desire to vote, then s/he should be allowed to do so.

Mr M Mnqasela (DA) cited an example that two people of unsound mind could be in a mental institution, but might, at the same time, differ on whether it was the sun or moon shining at mid-day. Following up on the Chairperson’s question, he asked how the person’s ability to make a decision could be defined.  

Ms Robb said there were many diagnoses, of which some were temporary and some were more severe. She relayed a story of her hospitalisation and her diagnosis as being “floridly psychotic”, yet maintained that even at that time, she knew the date of the 2004 elections, knew she wanted to vote, and for whom she would vote. This intention was formed months before she became ill, but she insisted on voting and did so. Confusion as to one aspect, such as whether the moon or the sun was shining, did not mean that another aspect, such as making a political decision, was affected. Nobody was forced to vote in South Africa, voting was a choice for those who had a desire to do so.

Mr M De Freitas (DA) related that six years ago he had been in a car accident and had to be in a wheelchair for a year, and had first-hand experience of how differently he was treated as a disabled and walking person. However, he asked if someone who was mentally disabled and incapable of making decisions on their own should be allowed to vote – this was not discrimination, but a question about their ability to make rational decisions. He believed that certain safeguards should be in place to ensure that those people were capable of reaching that decision.

Ms D Mathebe (ANC) supported and understood the plight of people with psychosocial disabilities. She had a sister who could not differentiate between black and white. However, she shared concerns and said that there was a danger of patients’ guardians voting on their behalf.  

Ms Robb said if someone had a profound mental disability, such as Ms Mathebe’s sister, then she would not be able to express the desire. A person who was still a child might be put under curatorship or guardianship, but if they expressed the wish and desire to vote, when they became adults, then this should be allowed.

The Chairperson asked about how the person made the decision on who to vote for, especially when under a curator or guardian.

Ms Robb said the guardian should not be making a decision for the person. There should be support from the Independent Electoral Commission (IEC) to provide easy reading material.

Dr C Mulder (FF+) asked how many people, according to the Mental Health Care Act, were certified but had the ability to vote.

Ms Robb said she did not have an answer to that but the Department of Health could help with those figures.

Mr De Freitas said perhaps there should be a definition for people with mental disabilities who could vote, and who were incapable of voting.  A checklist could be put at voting stations. His main fear was that there would be undue influence and manipulation of those persons, but he emphasised that this was not discrimination.

Ms Robb agreed that there had always been a great concern about the possibility of undue influence in relation to voting. However, Chapter 7 of the Act would remain and it addressed the issue. There were legal protections in place.

Mr A Gaum (ANC) asked how this could work in practical terms. For instance, some people were in mental institutions but others were not. He asked how it would be possible to manage the implementation of the amendment, and whether the IEC would be in a position to know if the person was certified.

Mr Mnqasela said the IEC only needed to check on the voter’s role for the person’s name, but the issue was how they could help a person who had been certified by a court as mentally unstable. There was an issue with implementation, especially registration and on the day of the voting. This was a sensitive issue that needed caution, but the Committee was sympathetic to the issues raised.

Ms Robb conceded that it would be difficult to check, at the voting stations, that a person was competent to vote, but her main concern was that discriminatory wording was in the legislation.

The Chairperson still need to elaboration, especially on cases where the person was declared mentally unsound by the High Court, and whether the person was able then to make a decision to vote.

Ms Robb said this declaration was most often made when it came to inheritance and handling of assets, but voting was a simple straightforward process. There was a small minority of cases of people subject to the High Court orders.

Ms P Petersen-Maduna (ANC) asked for clarity on where cerebral palsy cases stood on the scale of psychosocial mental and intellectual disabilities.

Ms Robb said cerebral palsy cases differed, and there was a wide spectrum with that diagnosis too, as not all were referred to as mentally ill. In most cases in South Africa, cerebral palsy sufferers were in a completely different group from the mentally disabled group. All the diagnoses for psychosocial mental and intellectual disabilities fell into a spectrum.

Mr Guam asked about the test that should be in place to determine if someone could vote. A  person expressing willingness to vote could be a test, but he asked for further suggestions.

Ms Robb agreed to the test as proposed, and said that the person would simply present themselves at a voting station, confirm their name and the age of over 18, and ask for support. If the person knew what s/he was doing, voting should proceed.

AfriForum submission
Ms Alana Bailey, Deputy Chief Executive Officer: International Liaison, AfriForum, said that being allowed to vote was a very emotional issue. To deny someone the right to vote was equivalent of denying someone their humanity. Her submissions referred in the main to those who were presently not living in South Africa. The reasons why people were outside South Africa were diverse, but they still were South Africans and assets to the country, and they contributed to the economy by sending capital back, or bringing in investments. Since 2003 the AfriForum had been involved in assisting South African citizens residing abroad to return to South Africa permanently or to maintain ties with the country, recognising their worth as assets for their country of origin, whether by skills or ambassadorial input. The AfriForum particularly welcomed the proposed amendment to the Act that would accommodate South African citizens residing abroad.

After the 2009 elections, there were numerous complaints from South Africans who were unable to vote because they were not able to register on time to participate. The proposal to have an international section created for the voter’s roll and for the registration abroad was welcomed by the AfriForum. It was acknowledged that the registration of the voters outside the borders of the country would entail substantial expenses, but the constitutional rights of such citizens could not be denied on financial grounds. AfriForum further agreed that the right of expatriates to vote only for National Assembly representatives was fair, as it would be impossible to determine the provinces where such a person would have a right to vote.

Another complaint relating to the 2009 elections had been the long distance that they must travel to reach voting stations in the USA, Canada and Australia. However, AfriForum felt it made sense to have a similar practice to those countries that allowed voting abroad, namely to allow votes to be cast on home territory, missions and embassies. However, viewing the electoral process as “work in progress”, AfriForum hoped that in future there would be secure alternatives to allow voters residing far from South African missions and embassies to participate, without the inconvenience and expense of travelling long distances, and electronic voting would play a huge role for the future.

AfriForum accepted that voters had not only a right to vote, but duty attached to it, and it was hoped that majority of South African citizens residing abroad found ways to reach the voting stations.

Finally, it was noted that since many South Africans did not seem to know that it was possible to lose their citizenship, an educational drive should be undertaken to educate them on how that could happen, and how citizenship could be regained if it did.

Discussion
Mr Mnqasela said the position of the Committee was clear, and it did not want anyone who wished to vote to be denied the right to do so. Previously, it had been proposed that there be a system where people could register and vote on the same ballot. The issue of expatriates was a risky terrain, needing to be approached with caution and not emotions. The law had to be strictly applied. The Constitution was clear on the matter of adult suffrage for all citizens, regardless of where they were. Currently, the matter was the subject of a court decision and the Committee could not deal with it fully.

Ms Mathebe raised a concern of logistics, since the government did not have the resources to extend this further, especially around provincial votes. She made the point that some expatriates may not have interests in South Africa and may not know what was going on in the country.

Ms Bailey maintained that it was both a duty and a privilege to vote. The person should make an effort, but it should be made easier to access the voting stations. South Africans abroad were generally aware of what was going on in South Africa, and their reasons for leaving the country varied.

Mr Guam said that the IEC had highlighted that it could be a logistical nightmare to allow South Africans to vote in provinces other than their own, without them making special voting applications, and this could even compromise the integrity of the voters role and the election. It was mentioned that there would have to be 60 000 voting stations, with at least 10 ballot papers (9 provinces and national). When this process was applied to South Africans living abroad, it was clear that it seemed impossible to fully accommodate them in the electoral process. He would be interested to hear the AfriForum response to the IEC concerns.

Ms Bailey agreed with the concerns about costs raised by the Committee. She reiterated the AfriForum view that it welcomed the provision that would at least allow South Africans abroad to vote in South African missions and embassies, which followed international fair practice. She also reiterated her agreement that it would be difficult to determine provincial voting; so perhaps that sacrifice made sense as it could be unduly complex and expensive to allow it.

Commission for Gender equality submission: “Women’s Substantive Equality: A case for 50/50 legislation”
Professor Amanda Gouws, Commissioner, Commission for Gender Equality, noted that the Constitution called for positive action to attain gender equality throughout society. Numerous international instruments called for the advancement of women’s equality, specifically through achieving appropriate gender representation in decision-making structures. The Commission was of the view that South Africa’s Constitution, along with the country’s international obligations, compelled the state to legislate for a 50/50 quota within the electoral legislative framework. The Commission proposed that such provisions be incorporated with the Electoral Act. Not only would the existing framework comfortably support and accommodate 50/50 legislation, but this would be a valid form of affirmative action that could impose positive duties on political parties to promote equality.

She added that equality formed a central pillar of the new South African legal order, being a fundamental value in the Constitution, whose section 9 guaranteed equality before the law, equal protection and benefit of the law, and outlawed “unfair” discrimination. Whilst section 9(3) prohibited “unfair” discrimination, section 9(2) recognised the possibility of “fair” discrimination in order to protect or advance those persons previously disadvantaged by unfair discrimination.

She maintained that introducing a 50/50 requirement would constitute fair discrimination. Any legislation mandating 50/50 representation should be constructed in gender-neutral terms, by setting both a maximum and a minimum for both genders. The legislation would amount to putting in place a “quota” system, and it was accepted that there were many arguments against such a system. However, CGE proposed that the number of men and women on party lists could alternate, and that would mean amending section 27 of the Electoral Act. Sanction for non-compliance could include leaving seats of the party vacant, or penalising non-compliant parties on funding or requiring the payment of fines. The IEC could give the party an opportunity to correct the list or exempt it from participating in the legislation.

Professor Gouws summarised that since equal participation of women in public life was a cornerstone of the UN Convention on Elimination of all forms of Discrimination against Women, South Africa, as a signatory, was bound to take active steps to promote women’s participation in decision making and leadership.

Discussion
Ms Petersen–Maduna said that if political parties had failed to comply with section 27(1A), the Electoral Officer could return the party’s list, and failing this process the IEC was empowered to disqualify the party from participating in elections. She asked whether IEC might not feel that the formulation of the clause could result in loopholes since parties might use delaying tactics.

The Chairperson asked that IEC not respond at the moment; it would have a chance to do so when next appearing before the Committee.

Mr De Freitas said the Constitution created a democratic order and he was worried about what was being suggested for disqualification of political parties from participating in elections. He felt that if this was done, voters would be denied the opportunity to vote for their preferred party. He wondered if the same principle would apply to a party with women in the majority, that dealt in the main with women’s issues, and whether it would be forced to include men on that party list. He cautioned against encroaching on the democratic order that was built and nurtured over the last 20 years.

Prof Gouws said that since many parties were already disqualified, on many grounds, this was not a big task for the IEC, and it should therefore not be a problem to implement this additional requirement.

Mr G McIntosh (COPE) said he was not sure of the relevance of the submission, which did not deal with the present wording of the Bill at all. The Roman-Dutch common law did not recognise gender, as everyone was a legal persona. People may not pride themselves on their differences, but discrimination against one or the other would entrench the differences, and the proposal was dependent on an accident of birth. He agreed that gender rights were indeed human rights, but there were overarching rights that applied to everyone, and he would be worried to accept a proposal that essentially was categorising people and socially engineering on the basis of being male or female. That undermined the spirit of the Constitution, which regarded all people as the same, regardless of skin colour, tribe and gender. He regarded the proposal as a sinister attempt to socially engineer the South African society and deny the freedom enjoyed under the Constitution.

Prof Gouws said that if the ANC already had a 50/50 policy, Mr McIntosh’s argument would imply that the ANC was deeply interfering with democracy and engineering society. His argument that this would judge everyone on the “accident of their birth” overlooked the fact that whilst liberal argument should give everyone an opportunity and take away all obstacles, the reality was that 20 years after democracy, South Africa was still struggling to overcome the legacies of apartheid, and that included the former discrimination against women.

Mr Guam asked if it would not be better rather to approach the political parties and see if they were willing to agree to 50/50 representation on their own party lists, which they could possibly use that as a campaign strategy, rather than them being mandated to implement a system. He noted that currently, the law did not entrench any 50/50 dispensation, and asked if the CGE was suggesting that the position was unconstitutional.

Mr Mnqasela said the CGE proposal would be a monumental task for the IEC, who would have to sit with party lists and decide who was and was not allowed, and that would politicise it as it would have to decide who should and should not be allowed in the election. He also supported the proposal that it be left to the parties to decide on their leaders, not according to their gender, but according to the value they could bring

Prof Gouws said the argument of merit was deeply offensive. Women had to be measured on their merit, but the same did not apply to men. If this was to be followed to its logical conclusion, everyone should be measured according to their merit. All customs and traditions were based on a history of patriarchy, and the stereotype of tradition and customs was often perpetuated. Given the time elapsed, women’s wish and right to participate equally should be recognised.

Ms S Rwexana (COPE) said that whilst she supported in principle the 50/50 dispensation, this was not the right platform and the CGE should rather be supporting the Department of Women, Children and People with Disabilities in working on its new legislation. The system would never succeed unless it was legislated for. She was further frustrated by the continuing idea that women needed “to be developed and capacitated”. That implied that women were not already capable and that perception must be removed as women had proven that they could lead.

The Chairperson said functions of the CGE were to lobby and educate, therefore they were in the right place to lobby for the 50/50 quota.

Prof Gouws said the submission today was participatory, but, as pointed out by Ms Maunye, the CGE did look at all opportunities to lobby for adoption of a 50/50 system, to ensure that this was not pursued only by one body but was mainstreamed.  

Mr Mfanozelwe Shozi, Chairperson, CGE, maintained that the work must start with political parties. If there was no legislation on the issue, then there was a danger of continued regression in the representation of women. In local government, the figure was originally at 40%, but had dropped currently to around 30%. The CGE was indeed in support of the current legislation in process by the Department of Women, Children and People with Disabilities.

Dr Wallace Mgoqi, Commissioner, CGE, agreed it was indeed part of the mandate of the CGE to lobby for gender equality, and it would not apologise for being opportunist in advocating for their issues at any point.

Dr Mulder asked if this system suggested that the presidency of the country would alternate between a man and woman.

Mr Shozi responded that the “zebra system” meant that if the President was a male, the Deputy President must be female, and vice versa.

The meeting was adjourned.