Reading other people's Constitution is an interesting exercise because it tends to shed light on our own.
The Constitution of the Solomon Islands — a small country in the Pacific — says that no-one can be a candidate for election, or even a voter, if they have been “certified to be insane or otherwise adjudged to be of unsound mind under any law”. The body currently considering a revised constitution,
is suggesting that even poor physical health should disqualify voters.
Imagine if we had such a provision in Kenya (focussing on the physical health for the moment), would Tim Wanyonyi, in his wheelchair, be eligible to be an MP, or even a voter? How about Isaac Mwaura, a person with albinism? Or in the past Oki Ombaka, or Josephine Sinyo — MPs who were blind? How about individuals who are HIV positive? “Poor physical health” is not very clear. Fortunately, we do not have any such expression in our Constitution. It would certainly sit uneasily with provisions that say persons with disability should not be discriminated against, and that speak of five per cent of members of elected and appointed bodies being persons with disability. But we do have the “unsound mind” provision.
WHAT'S WRONG WITH IT?
First is the language. The very phrase “persons of unsound mind”
has a 19 Century air to it, when phrases such as “infants, idiots and persons of unsound mind” were found in the law. It is good to see that the UK, where the phrase was probably developed, no longer uses it.
At the insistence of persons with disability, we no longer talk of “disabled people”: it sounds too much as though the whole person is non-functioning and disability defines them. To speak of a person with disability conveys much more the idea that the disability is just an aspect of the person, not diminishing their personhood.
Similarly, “unsound mind” suggests that the entire mind of the person is useless. Indeed, the classic phrase “person of unsound mind” suggests a person dominated by a non-functioning mind.
WHERE DO WE GET IT FROM?
In Kenya, it is a relic of the 1963 Constitution, which barred anyone “adjudged or otherwise declared to be of unsound mind” from being nominated for election. It did not bar anyone from voting on this ground. The Constitution of Kenya Review Commission seems to have taken a step backwards when it extended the impact to voters. And this was despite the fact that the Commission had received submissions about discrimination against persons with mental health issues, as Commissioner Zein Abubakar pointed out.
The Bomas draft of 2004 prevented sufferers from being elected, not from voting. So how did the final Constitution bar those voting, too? It is extraordinary how often some issue with the Constitution is traceable to those MPs sitting in Naivasha: that Parliamentary Select Committee that changed our system to a presidential one from a parliamentary and removed the “top-up” seats for women in Parliament, among other things. Again: it was they who reintroduced the bar on voting for those declared of unsound mind.
Because of the reluctance of the Committee of Experts, responsible for developing a new Constitution in 2009-10,
to resist the MPs on anything they considered political, they left it.
BEING REALISTIC ABOUT MENTAL ILLNESS
Most people are rather ignorant of mental illness. Indeed they are afraid of it.
There is a tendency to believe that people are either “sane” or “insane” (or “mad”). If, dear reader, you are not familiar with people with mental illness, perhaps you can take a moment to reflect on what the phrase conjures up for you. Might your reflections include thoughts such as “People with mental illnesses are violent and dangerous”; “People don’t recover from mental illnesses”; “People who experience mental illnesses are weak and can’t handle stress” or “People who experience mental illnesses can’t work”? These are among 10 “myths” about mental illness discussed by the Canadian Mental Health Association,
which identifies them all as untrue or serious over-simplifications.
Sufferers from mental illness are not just (or indeed mostly) the sad cases we read about in the media of people whose families cannot trust them not to be violent or to wander off, so are compelled, as they view it, to tie them to a tree or a bed-leg. The tragedy is that, with treatment, perhaps drugs or interaction with counsellors or therapists, they might have no, or far fewer or less severe, symptoms. Sufferers from, for example,
depression (more serious than being depressed by
the morning’s diet of election-related news), anxiety, obsessive behaviour and thought,
post-traumatic stress disorder, or bipolar disorder may have their symptoms controlled, and for some conditions even cured.
Mental illness is very common. As many as 40 per cent of hospital inpatients may suffer from mental illness,
most commonly from depression, substance abuse, stress and anxiety disorders. Global research suggests that about 25 per cent of us will suffer from mental illness at some point in our lives.
THE FAMOUS AND ILL
Some studies have suggested that a good number of famous political leaders, including US Presidents — James Madison, Theodore Roosevelt, Lyndon Johnson and John Kennedy, among others — had suffered from mental illness, including depression, anxiety disorder and bipolar disorder, some while in office. Churchill too suffered from clinical depression. Some may have been sometimes affected in their decision making, but no more than the personality traits of the supposedly perfectly sane. It has been pointed out that the Nazi leaders in Germany of the 1930s and 40s, responsible for millions of deaths, would have been considered mentally “normal”, however.
We are learning more about how the brain works. We no longer see evil spirits in the utterances of those who have mental illness, or curses imposed by the jealous or vindictive.
People are coming to recognise sufferers as no less people than us, and for the most part just as capable as the rest of us of working, making decisions, loving, and contributing to society.
It’s a matter of human rights. The World Psychiatric Association (the people who should best understand mental illness) have developed a “Bill of Rights for Persons with Mental Illness” that includes “Right to vote and be elected to public office”.
Some countries no longer restrict the rights. A study in 2010 showed that, in Europe, Sweden, Finland, the Netherlands, Austria,
Italy, France, Spain, Ireland, and the UK did not exclude people from the right to vote on the basis of mental illness or capacity. Canada is another country that has taken this step.
Kenya is beginning to take issues of mental illness more seriously.
In 2015 a Mental Health Policy was adopted. It recognises that the right to health, and the rights of persons with disabilities, are applicable to those mental illnesses. It is mainly concerned with medical aspects, but recognises that discrimination and stigma are serious issues for persons with mental illness.
In 2014, the Mental Health Bill was published but does not seem to have got beyond the first reading in Parliament. That is a pity because it contains some good ideas, including that “Every person with mental illness shall have the right to exercise all … rights accorded to every person by the Constitution…”.
These rights would include the right to vote (Article 38 of the Constitution).
Unfortunately, that Constitution stands in the way — limiting the right to vote of those who are “declared” of unsound mind. It is a pity that our Constitution — of which Kenyans are generally, and rightly proud of — stands out for a
certain intolerance towards people with mental health or capacity issues. The best way to deal with this, to minimise the harm to people with mental illness, is to read it to mean “declared by a court”. And to ensure that “unsound mind” is declared only when there is a true inability to understand what matters such as voting involve.