In 2018, Peru adopted a landmark law, Decree No. 1384, that abolishes guardianship and recognizes that people with disabilities are entitled to rights on an equal basis with everyone else. There is no legal reason not to include people with disabilities on the voter registry, the groups said.
“It is disgraceful that despite the 2018 reforms abolishing the guardianship system, thousands of Peruvians with intellectual and psychosocial disabilities previously under guardianship remain excluded from the electoral register,” said Pamela Smith, SODIS executive director. “Voting is the right and civic duty of every Peruvian, and discrimination cannot be tolerated.”
Because the electoral register for the January 26 elections is closed, people with disabilities who were under guardianship and were excluded from the registry cannot be added at this stage. But they must be added for Peru’s general elections in 2021.
Before 2018, as was the case in many counties, Peruvians with disabilities, and in particular people with intellectual and psychosocial – or mental – disabilities, were routinely not trusted to or deemed incapable of making decisions. A system of guardianship allowed judges and other government officials to strip people with disabilities of their right to make the most basic choices about their lives. Under guardianship, judges conferred decision-making powers on third parties – including family members, advocates, or managers of residential institutions where the people with disabilities were forced to live.
On September 4, 2018, Peru adopted groundbreaking reforms to its civil legislative framework that recognize everyone’s right, regardless of disability, to full legal capacity and to have assistance in making decisions if they choose. Full legal capacity includes the right to engage in all legal transactions, from marrying and managing financial decisions to voting.
Under the first interim provision of Decree No. 1384, people with disabilities who were under guardianship as a result of a judicial resolution when the decree entered into force automatically regained their legal capacity, and previous guardianship resolutions ceased to have effect.
However, key government entities such as the National Pension Office, the National Council for Disabilities, the Justice Ministry, the Judiciary Council, and the National Registry for Identification and Civil Status (RENIEC) have yet to take the necessary measures to recognize that guardianship has been abolished and to ensure that people with disabilities are able to exercise their civil and political rights.
In a November 2019 letter to SODIS, officials in RENIEC’s electoral division said that, as they see it, despite the decree they have no authority to overrule a judicial resolution establishing guardianship. According to their reading of the reform, judges need to inform RENIEC in each individual case that the guardianship has been revoked. Thousands of people remain excluded from political participation because of this interpretation.
“Given that they should never have been denied legal capacity in the first place, the idea that thousands of people with disabilities have to wait for judges to reinstate their legal capacity one-by-one is absurd,” said Liliana Peñaherrera, former president of the Peruvian Down Syndrome Society. “The decree is clear, and agencies should put in place measures to ensure that any person with a disability previously denied voter registration because they were under guardianship is now eligible and is to be allowed to vote.”
If this situation is not addressed immediately, thousands of people with disabilities will continue to be disenfranchised, the organizations said.
In September 2019, President Martín Vizcarra dissolved Congress and called for extraordinary elections in 2020. On January 26, all Peruvian citizens are expected to go to the polls to elect a new Congress as voting is compulsory.
Like other Peruvian citizens, people with disabilities should not be arbitrarily denied their right to vote because authorities have failed to put in place the appropriate measures to ensure they can register, the organizations said.
“Peru’s authorities have an obligation to do what the 2018 reforms call for, which is simply to ensure that people with disabilities enjoy the same rights as everyone else, including the right to vote in the 2021 election,” said Carlos Ríos Espinosa, senior researcher and advocate for Human Rights Watch. “Continuing to prevent people with disabilities from exercising their right to vote not only flies in the face of Peruvian law, it’s an egregious form of discrimination,” said Ríos Espinosa.
