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The “sound mind” provision in the 1992 Constitution of Ghana is discriminatory and self-contradictory

Dr. MprahBy:
Wisdom Kwadwo Mprah
CEDRES, KUNST 

During the just ended limited electoral registration exercise, the right of some persons with intellectual and psychological disabilities to register was allegedly challenged by some  people on the grounds that they did not meet one cardinal electoral requirements; they were not of sound mind. This requirement, which is a constitutional provision, states that, “Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.” Although this electoral requirement appears sound and has generally been accepted without questioning, I have several issues with it.

My first beef with the provision is that, it is vague, overly broad and thus prone to abuse. The provision lacks clarity because the Constitution is unclear on what constitutes a sound mind or how to define a person who is of unsound mind.  Unsound mind is so broad that it could possibly apply to persons with a wide range of conditions such as persons with intellectual and psychosocial disabilities (including those with bipolar disorder or schizophrenia), brain injury or degenerative brain conditions (for example, dementia), alcoholics, drug users and even the aged. The requirement is thus prone to varying interpretations, making its application problematic. Let’s consider this simple scenario. Assuming that there are people who are of unsound mind, but they experience the condition occasionally, would they be allowed to register/vote when they are of sound mind? For example, would it be right to prevent a person who is heavily drunk at the time of casting the vote from voting?

It should be kept in mind that the impact of any mental condition on the affected individual depends on several social-cultural, biological and medical factors. Determining who has a sound mind and who has not can therefore be done only within a specific social, cultural, political and temporal space. And since one cannot easily determine another person’s mental capacity by merely looking at the person’s physical appearance, this would be left to the “expert” opinion of medical practitioners. Since everyone is a potential candidate of unsound mindedness, everyone, including the medical officer providing the clearance, must go through the clearance. Requiring only some people to go through the medical examination to prove their sound mindedness just because they look suspicious is unfair and discriminatory.

Now, what is the basis of this provision? Some disability activists argued that the requirement is used as a justification to disenfranchise persons with psychosocial and intellectual disabilities from voting in order to protect the integrity of the electoral process. The perception is that the integrity of the electoral process will be preserved by allowing only voters who have the capacity to make rational voting decisions to vote. The requirement is thus meant to eliminate voters who are perceived as not having the capability to understand the electoral process and therefore are unable to vote “competently”. Persons with psychological and intellectual disabilities are targeted for this elimination process because it is believed that they are incapable of making rational decisions, and so they are unable to understand the nature and significance of voting. However, depriving people their right to vote based on cognitive ability is an outmoded view, portraying our level of prejudice and ignorance, and how our obsession for preserving a tradition has influenced our actions to the extent that ability to make informed decisions has acquired a definition so narrow to easily persuade us to label and discriminate against those who vary even slightly. The fact is psychosocial disability does not necessarily affect one’s ability to make decisions or understand concepts, and having a diminished cognitive ability does not affect our ability to have a well defined value system.

Further questions arising from the above are: what voting “competently” means and who has the right to determine a “competent” voter?  Is it the responsibility of the state to determine what a valid political opinion connotes, or is it a crime if one did not vote “competently”? It has been observed that the inability to cast a rational vote (if any exists) is not limited to only persons with psychological and intellectual disabilities. We are all aware that one would likely vote for a particular candidate one supports, but one’s approval of the candidate must not necessarily be motivated by one’s acceptance of the candidate’s policies. In many cases, the motivation to vote for a particular candidate is driven by such factors as the candidate’s physical appearance, eloquence, a long-standing political affiliation, race, gender, religion or sexual orientation. We also know that, in Ghana, one could be described as not making a valid vote if one voted for a political opponent, suggesting that a rational vote is subjective — a voter’s decision is considered rational only to the voter.

There is also the perception that persons with psychosocial and intellectual disabilities are prone to voter fraud because they may receive “inappropriate” assistance when voting or they may be unduly persuaded by others. However, questions we have failed to asked are: what are candidates’ political campaigns and promises meant to do? Aren’t political promises aimed at influencing the electorates unduly? Can’t the electorates make rational voting decision without the candidates influencing them though promises and gifts? The matter of undue influence cannot therefore be a justification for depriving other people their right to vote.

Finally, although, the sound mind requirement is constitutional provision, it contradicts some clauses in the constitution. For example, the Constitution contradicts itself by restricting the right of persons with psychological and intellectual disabilities to vote while at the same granting the principle of universal suffrage and the right to equal recognition before the law. The Constitution is also contravening some of its own clauses. For example, while the Constitution prohibits disability-based discrimination (for example, one cannot refuse to employ a person based on his or her disability), and may even punish offenders, the same constitution would not allow that person to vote.

The unsound mind provision/requirement is derogatory, stigmatizing and devaluing. It is an affront to the Persons with Disability Act 715 and United Nations Convention on the Rights of Persons with Disabilities. Such labels fit well in the prejudices and self-perceptions of some individuals who have arrogated onto themselves the power to enforce a certain social order and to control groups perceived as a threat. Excluding people from voting on the basis of disability, undermines the principle of natural justice and a huge challenge to efforts at integrating persons with disabilities in the community. Such provisions should therefore not have any space in the Constitution of a nation that prides itself of promoting an inclusive society.

It is worthy to note that voting is more than an exercise to make a choice of electing a candidate. It is a way in which all citizens express and assert their place in their communities. For persons with disabilities who have long been excluded and marginalized, the right to vote to elect a leader does not only restore them to their rightful place in society, but also empowers and makes them feel a strong sense of belonging. This is very important even if it is temporary or psychological. It is a right that they should be allowed to exercise without any prohibition, as their exclusion violates their right to equality and to freedom from discrimination on the basis of disability.

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