Monday, January 7, 2013

Implications of constitutional 'sanity' requirement

By Lukoye Atwoli
Sunday Nation 06 January 2013

Article 83(1) (a) of our Constitution provides that “A person qualifies for registration as a voter at elections or referenda if the person is not declared to be of unsound mind”. Further, Article 99(2) (e) disqualifies a person who “is of unsound mind” from being elected as a Member of Parliament and, by extension, from vying for any elective office.

These caveats are intriguing in several ways, and one would be interested to find out the thinking that informed the drafters’ decision to bar people of “unsound mind” from political participation. This is more so given that the same Constitution in Article 27 outlaws discrimination including on grounds of health status, and Article 28 grants that “Every person has inherent dignity and the right to have that dignity respected and protected”.

With regard to the constitutional prohibitions on grounds of sanity, one is struck by the difference in language referring to either registration as a voter or eligibility to vie for political office. In order to be registered to vote, one needs only not to have been declared to be of unsound mind, while to vie, one needs to be of sound mind.

The difference, though nuanced, may turn out to be significant. For instance, questions arise as to whether all aspirants therefore need to be seen by a psychiatrist who will then certify them not to be of unsound mind.
Indeed, a few days ago, a colleague of mine indicated that he had been approached by some aspirants seeking a “certificate of soundness of mind” in order to be eligible to vie for various posts.

As far as I know, the Independent Electoral and Boundaries Commission does not have any regulations on this requirement, leading to the prevailing confusion. Does the Constitution require one to demonstrate “soundness of mind” before becoming eligible to vie for political positions? How frequently should such an examination be done?

As far as registration to vote is concerned, a declaration that someone is of unsound mind would be sufficient to block them from registration. In other words, the Constitution bars people with declared mental illness from registering as voters. The implication, however, is that someone must accuse a prospective voter of “unsoundness of mind” before a mental examination is required. This seems to differ from the aspirants’ requirement, in which case “unsoundness of mind”, whether declared or not, would disqualify them.

Unfortunately, “unsoundness of mind” is not defined in the Constitution or in other written laws. Does this mean that all aspirants must get a “certificate of soundness of mind” before nomination? Of what use would such a certificate be?

In actual fact, “soundness of mind” is often a fluid condition, and can only be ascertained in reference to a specific request at a specific time. For instance, one can be of perfectly sound mind three months before an election, and be completely out of it on Election Day.

Secondly, where does such a requirement leave those who have been diagnosed with chronic mental disorders but are currently stable on treatment and follow-up?

In some jurisdictions, all aspirants are expected to undergo medical examinations, including mental examination, before being cleared to vie for high office. Once elected, periodic examinations are also mandatory.

Perhaps this is what the drafters of our Constitution intended? 

Dr Atwoli is secretary, Kenya Psychiatric Association, and senior lecturer, Moi University School of Medicine.; twitter @LukoyeAtwoli.

1 comment:

  1. Someone has to speak for the mentally sick. I have always believed they way they are treated is like they are second class citizens. Its a culture that has to end. Mentally insane also have their rights.


Say something about this post!