First, the ANC’s support amongst colored voters in the Western Cape – even in rural areas – has collapsed dramatically. The ANC has become an African party with very little support amongst members of other race groups. So much for the ANC’s much advertised non-racialism. Whether this has something to do with the embarrassing tantrums and childish rants of a leader like Julius Malema is not clear. What is clear is that the ANC in the Western Cape has completely alienated non-African black voters.

Second, the DA has made modest (but very limited) gains amongst African voters. These gains are more pronounced in small rural towns than in the big cities but remains limited. The DA still has a lot of work to do to convince African voters that it could possibly represent their interests. Even where traditional ANC voters want to cast protest votes they are more likely to cast such votes for independent candidates (or even for Cope) than for the DA candidate.

Speaking of Cope, interestingly, Cope has done surprisingly well in some of the by-elections. This is particularly the case in Cape Town where it gained between 15 and 25% of the vote in constituencies dominated by African voters. This suggests that the voter support for Cope might not have imploded completely despite the dreadful infighting in that party. Maybe something could still be rescued for this sorry bunch of infighters.

Third, some credible independent candidates in certain areas have stolen a large percentage of votes from the ANC while the voter turnout in ANC dominated constituencies where no credible independent candidates were standing, was very low – as low as 25% in some cases. This suggests that the electoral dominance of the ANC – while still very pronounced – is not as solid as it used to be. If credible candidates or parties stood for election, many African voters seem now for the first time prepared to abandon the ANC. This is in line with electoral trends in many other post independent countries, where the party of liberation starts losing its absolute dominance after about 20 years of freedom.

If these patterns are to be repeated in the local government election next year (by no means a forgone conclusion) and if the ANC fails galvanize its traditional supporters to go to the polls, the party will suffer very heavy losses. This will be to the benefit of the DA who might receive almost the same number of votes but a much higher percentage of the votes because of lower turn out.

Lastly, the ANC is continuing to show growth in KwaZulu-Natal at the expense of the hapless IFP. At this rate the IFP would be dead before Mangosuthu Buthelezi is finally disposed of as leader. The IFP is basically dead. The fights about who should succeed Buthelezi as leader is really just a fight about who should oversee the funeral of the IFP.

Of course, these results show clearly why the ANC wants to co-ordinate local government and national elections. In national elections its freedom credentials might still hold sway while elections fought on the failure of local governments (and not on national issues) would make life rather difficult for the ANC – especially where credible alternative candidates come forward.

The most interesting results came out of Cape Town in a ward which encompasses the traditional “African” suburb of Gugulethu and the traditional “coloured” area of Heideveld. The DA won 60% of the vote in this election compared to the 38% of the ANC. In the previous local government election the ANC won 53% of the vote and the DA 26%. There was therefore a huge swing towards the DA in the by-election.

There seems to be at least three reasons for this dramatic swing towards the DA.

First, the ANC’s support amongst “coloured” voters in the constituency collapsed dramatically. In the local government election the ANC attracted about 15% of the vote in these traditional working class communities. This collapsed to below 1% at some voting stations this week. The racial nationalism of Julius Malema and Jacob Zuma obviously holds no attraction for coloured voters in the Western Cape.

Second, the Independent Democrats (ID) did not contest the election and its voters did not stay home but voted for the DA. One can probably assume that this means support for the ID is collapsing and that its voters are now supporting the DA. Based on the results of this by-election the DA seems  to have consolidated its support amongst working class coloured people in Cape Town.

Third, many people who voted for the ANC in the previous local government election, decided not to vote at all. At the two Gugulethu voting stations the ANC obtained 3244 votes in the previous local government election. This week only 2214 people voted for the ANC at these two stations. One third of the voters in Gugulethu who voted for the ANC in the previous local government election therefore decided to stay at home.

What did not happen, was a significant surge in support for the DA amongst voters in Gugulethu, where the party made only very small gains. In the previous local government election the DA polled 22 votes – less than 1% – at these polling stations. In the by-election this week it polled 79 votes, which is about 3 % of the votes cast at these polling stations.

This means that the party has not yet managed to convince significant numbers of African voters in Cape Town to vote for it. Faced with a choice between the DA and the ANC, many African voters simply stayed at home. Helen Zille has a lot of work to do to convince “African” voters that the DA is not fundamentally opposed to their interests.

What does this mean for the local government elections next year? Well, it might mean very little, as by-elections are notoriously bad indicators of how voters would vote during an election fought nationally. The Western Cape is also unique in other ways: Support for ousted President Thabo Mbeki is particularly strong here and distrust of Jacob Zuma probably higher than elsewhere. So it would be premature to extrapolate these results in Cape Town and to assume they would be reflected nationally.

But the by-election results this week in other parts of the country do suggest that the ANC is in some trouble and that many of its traditional voters are disillusioned with them and are prepared to demonstrate this. In Groblersdal the ANC candidate lost to an independent candidate who polled more than 50% of the vote. In the previous election the ANC candidate had polled almost 60% of the vote.

In Greater Tubatse [Burgersfort/Ohrigstad/Eastern Tubatse] the ANC candidate won with 65% of the vote but the Pan Africanist Congress of Azania candidate obtained almost 30% of the vote. In the previous local government election the ANC had polled almost 90% of the votes in that district. Only in KwaZulu/Natal is the ANC’s vote holding up well.

If these trends continue and many voters who voted for the ANC either stay at home or cast a protest vote for one of the smaller parties, the ANC could face massive losses at the next local government election in 2011. Although it would probably retain control of most metro councils, it could become a close run affair in places like Pretoria and Johannesburg.

These results suggest that the corruption, arrogance, nepotism and mismanagement that is rife at local government level in Municipalities controlled by the ANC is finally beginning to affect the voting behaviour of the voters who traditionally voted for the ANC.  However, because the official opposition is still perceived as a “white” party who may not represent the interest of the African majority, smaller parties may benefit disproportionately from a protest vote cast by “African” voters.

If the DA slightly improves its performance along with improved performances for smaller parties like the PAC, and if the ANC fails to convince voters to come to the polls and to vote for it (even after spending obscene amounts of our money), 2011 might just be the year in which the ANC gets the wake-up call it so badly needs. That would be a good thing for democracy and for South Africa.

But the ANC has made so much money through crooked tenders that it might yet be able to buy off the electorate this one more time. Only time will tell. 

That is why the reasons given by National Assembly Speaker Max Sisulu for not releasing a “detailed breakdown” of all MPs travel records to provide evidence that the system is being milked, seem so preposterous. ID Leader, Patricia de Lille claims that MPs with distant homes and constituencies are are allegedly skimming off up to R40 000 a month in travel claims by using their cars for journeys that would be cheaper by plane and requested the details from Sisulu to back up her claims.

Sisulu refused, saying that while he supported De Lille’s attempts to expose alleged abuse, disclosing travel records could infringe on MPs’ right to privacy and “pose a security risk” to them.

He might as well have said: “Yes they are stealing us blind and I do not want to public to know this, so I am not going to give you details of MPs travel records.” At least that would have been honest.

Let us get this straight: we pay MP’s to visit their constituencies to do what they have been elected to do, namely to represent us and to look after our interests. (This, at least, is the theory, but because of our pure proportional representation electoral system, many MP’s do not really represent anyone. I for one would love to know which MP represents me, but even when I phoned the local ANC office they could not or would not tell me and refused to answer any questions about my Parliamentary representative.)

But according to our Speaker we are not allowed to know how much we pay our MP’s to visit us because this would infringe their privacy and pose a security risk. How dare we ask. Next thing we would demand to actually speak to our MP’s when they visit us and this might infringe on their right to privacy and might pose a security risk to them. Who the hell do we think we are!

This is utterly ridiculous.

The Constitutional Court has stated that the protection of the right to privacy could be understood by thinking of privacy rights in terms of an onion. There are layers of privacy and the closer one gets to the inner sanctum of an individual’s life (the core of the onion, so to speak), the more strictly will privacy rights be protected. Conversely, the closer one gets to the public life and duties of an individual the weaker the privacy protection.

In terms of this metaphor, the details of MP’s travel arrangements when they travel to their constituencies with our money to represent us can be viewed as the outer skin of the onion. MP’s are exercising a public function for which they are paid with public money when they embark on such travel. Hence there is absolutely no privacy rights involved here that needs to be protected.

There is of course a right involved here, but not the right to privacy brandished by Sisulu. The right here is the right of all citizens to know whether the money we spent on our public representatives to perform a public function for our benefit, is spent wisely, or whether the system is being abused by our elected representatives and whether some of them might not have  committed a crime by defrauding Parliament.

Simple really.

Because Sisulu’s statement is so ludicrous, I will assume that it amounts to an admission that some MP’s have indeed abused the system, have defrauded Parliament and should be tried for fraud.

But in reality the loyalty of these MP’s – regardless of which party they belong to – will not be first and foremost to the Constitution, or even to Parliament. Because they have been elected on the basis of a list system of pure proportional representation, their first loyalty will always be to the political party they belong to and especially the leadership of that political party. Their positions in Parliament are wholly dependent on their good standing within their respective political parties and if they upset the party leadership they might well be “redeployed” as Ambassadors to Tziki-Tzikistan or as second in command of the Putsonderwater sewerage plant.

This, it seems to me, is one of the great weaknesses of our constitutional system. The National Assembly is supposed to be the engine room of our democracy and has a constitutional duty to hold the executive to account and to ensure that the executive serve the people of South Africa and not their own ego’s or the whims of the bureaucrats staffing the various government Departments. Section 42(3) of the Constitution states that:

The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.

In the past the members of the National Assembly have not always represented the people effectively and have not fulfilled its oversight role in the manner envisaged by the Constitution. How many South Africans even know the name of the MP who is supposed to represent their interests in the National Assembly? How many have approached their MP to help them solve a problem with an often heartless and incompetent bureaucracy or to make their voices heard on the topical issues of the day?

When the arms deal scandal came to light, a majority of MP’s on SCOPA was browbeaten by Minister in the Presidency, Essops Fables, to stop their investigation and to endorsed the whitewash report by the Auditor-General, the Public Protector and the NDPP, which was “amended” (I would say, “doctored” was a better word) after a draft was submitted to President Mbeki.

When then President Thabo Mbeki – under the influence of Anthony Brink and other “dissident” scientists – developed eccentric and highly toxic views on HIV/AIDS, most MP’s remained silent as thousands of South Africans who had no money for medical aid and could not afford anti-retroviral drugs quietly succumbed to AIDS.

Those courageous and principled MP’s who did not agree with these developments – most notably Pregs Govender and Andrew Feinstein – resigned from Parliament because there was apparently no scope in the ANC caucus for expressing dissenting views. Some DA MPs have also quietly resigned after differences with Tony Leon and Helen Zille. Because of the list system of proportional representation they really had no other choice. If they had not resigned, they would have been fired.

That is why a mixed system, in which half the MP’s are elected directly in constituencies and the other half on a proportional representation basis to ensure proportional representation of parties in Parliament, stands a better chance of producing a far more active and responsive Parliament – and this would be good for especially the poor and marginalised South Africans who find themselves without a voice and feel the only way to make themselves heard is through violent protests and boycotts.

Some argue that this system has not produced a particularly responsive crop of local government councilors and that a change in the electoral system will not necessarily improve the way in which Parliament serve the people and the way it holds the Executive to account. They might have a point. Changing the electoral system will not miraculously make public representatives more hardworking and responsive to the needs of ordinary citizens.

After all, there are many reasons why public representatives are not more effective and robust. Many public representatives lack the skills, knowledge, independence of mind and courage to act as true representatives of the people – often through no fault of their own. Parliament should therefore do much more to educate and empower MP’s to do their job properly. Surely all new MP’s should receive intensive training preparing them for their role as servants of the people.

But a change in the electoral system will open a window of opportunity that might improve the performance of MP’s. The role of  MP’s in the national parliament differs from that of councilors and MP’s are potentially far more powerful than their local government counterparts. For example, the committee system in the National Assembly provides a very powerful platform for MP’s to make a real difference by scrutinising draft legislation and by holding the Executive to account.

Even so, a real change will only occur when ordinary voters become active citizens who engage their MP’s and place pressure on their MP’s to do their job properly. South Africans tend to be either passive citizens or, when they do organise and resist heartless and unwise decisions, to do so outside the official channels by taking to the streets in service delivery protests. If at least some MP’s are directly elected, it would make it easier for ordinary citizens to engage their MP’s and to actively take part in the governance of the country.

Sadly, almost all political parties represented in Parliament are not keen to change the electoral system because it will take away some of the power of the party leadership and will devolve some of the power to the constituency level. Party leaders do not like MP’s with an own constituency and an independent bent because this will weaken the party discipline and will make it more difficult for party leaders to force MP’s to follow the Party line.

The system will only change if the self-styled champions of the people – COSATU, the SACP and the ANC Youth League – take up this issue and make a concerted effort to fight for the rights of ordinary citizens to be properly represented in Parliament. I sincerely hope that these members of the Alliance will take up this issue and that they will try and convince the ANC to change its policy when it meets for its next conference in 2012.

Such a move will be good for democracy and good for ordinary citizens. Come on Zwelenzima Vavi, Blade Nzimande and Julius Malema, I know you can…

If he could show this to be true, so the argument goes, the decision would be in conflict with the Rule of Law which requires that legislation has to be “rationally connected to a legitimate governmental purpose” and could be declared invalid by a court of law. This is because a decision solely aimed at protecting ANC members from investigation and prosecution would not qualify as a “legitimate governmental purpose”.

This is a good constitutional argument but the problem is that it would be almost impossible to show that there was no legitimate governmental purpose for abolishing the Scorpions. The legal test is not whether the decision was wise. Even a catastrophically stupid decision will be constitutionally valid unless it could be shown that the only reason it was made was for an ulterior purpose.

The government has provided several legitimate – if rather unconvincing reasons – for the abolition of the Scorpions and a court will not be able to second guess these reasons in the absence of “smoking gun” evidence showing that the only reasons for this decision was to protect Mr Zuma or other criminals within the ANC. The separation of powers requires a court to be circumspect when considering declaring legislation invalid on the basis that it was in contravention of the Rule of Law.

After all, judges are not democratically elected while members of Parliament are. It is therefore not for a court to correct the mistakes made by the legislature. It is for the electorate to correct the mistakes by throwing out the incumbent government who made the disastrously stupid decisions which will make us all suffer more from corruption.

A more promising line of argument presented in the papers is that some of the members of Parliament who passed the legislation should not have taken part in the decision because they had been investigated – and in some cases prosecuted – by the Scorpions for their role in the Travelgate scandal. This, so Glenister argues, constitutes a conflict of interest.

It is clear that it would have been wise for those MP’s with a conflict of interest to have recused themselves from the proceedings. The decision would have had more legitimacy if they had done so and it was clearly tainted by the presence of some of these people in Parliament. But it is not clear whether the Constitution requires those MPs who had a conflict of interest to recuse themselves. One could argue that MPs passing legislation cannot be equated with state officials taking an administrative decision. They are exercising a legislative function and in terms of our system of party discipline follow the dictates of the party leadership.

I for one would be surprised if a judge agree that on this basis alone legislation that would otherwise have been passed validly became invalid. Once again, the separation of powers question would be uppermost in the mind of a judge confronted with this question.

What Glenister’s papers do highlight is the complex and problematic nature of the relationship between the government of the day and the ruling party. Our Constitution is silent on what exactly this relationship should be. The new ANC seems to have a rather troubling view of this relationship as it seems to feel that the government is accountable to the NEC and not to Parliament. The papers note that in January last year Mr Matthews Phosa stated that:

• “The president of the country takes guidelines, mandates and instructions from the ANC …There is only one centre of power and that is the highest decision-making structure of the ANC”.
• “The NEC, including the President of the ANC, in effect becomes the representative of the majority of voters between elections. Its task therefore is to instruct the executive and legislative organ of government on issues of policy.”
• “The President and his or her Cabinet accounts to the NEC of the ANC, as any other structure of Government does”

This view of the party seems deeply problematic for our constitutional democracy as it seems to want to bypass the constitutional institutions such as Parliament when it comes to the accountability of the executive. But it must be conceded that this is a complex question as our electoral system and our system of party discipline clearly require some interaction between the leadership of the majority party and the government.

A balance need to be struck. President Mbeki seemed to have gone too far to the one side and if Mr Phosa has his way the ANC will now go too far to the other side. The NEC of the ANC has a duty to set policy but must then allow the executive to implement that policy as best it can. The ANC NEC must also allow Parliament to do its oversight job over the executive and must not usurp the powers of the democratically elected members of Parliament. After all, the NEC was elected by 4000 people while the members of Parliament were elected by 17 million people, so for the NEC to want to micro manage the executive would be profoundly undemocratic.

In any event, I will be surprised if this new application has any success. The Scorpions is no more and the voters did not see that this will affect the way in which the state delivers services to them, so they did not punish the ANC for this very dumb decision. If opposition parties had done a better job of linking the demise of the Scorpions to the rise of corruption and the deterioration of service delivery, maybe the ANC would have been punished more at the polls.

But this did not happen and perhaps it is not for a court to “correct” the mistakes of the electorate as this will not be in the interest of democracy.

However, if one goes to the IEC website and downloads the form that has to be filled in by all voters who wish to cast a special vote because they will be out of the country on election day, one discovers that the IEC has not changed this form to comply with the recent Constitutional Court judgment allowing all registered voters abroad to cast their ballot.

The form requires one to state why one will be temporary absent from the Republic on voting day. It also requires one to state that one is ordinarily resident in the Republic and to provide ones permanent address in the country. The form therefore creates the impression that only South Africans who are temporarily outside the country will be allowed to cast a special vote.

But the Constitutional Court clearly ruled last week that the requirement that one could only vote abroad if one was absent from the country temporarily was unconstitutional. That is why it ordered that the word “temporary” in section 33(1)(e) of the Electoral Act and in Regulations 6(e), 11, 12 and 13 be deleted.

This ruling clearly envisages that the IEC would produce a new form to accommodate these changes to the law. I imagine that many South Africans who live abroad who had not read the Constitutional Court judgment would look at this form and will decide that they are not eligible to vote because they are not out of the country temporarily and do not have a permanent address in South Africa.

The form will therefore have a chilling effect on the right to vote as it might discourage many people from applying for a special vote. The IEC may therefore very well be in contempt of court by using this old form and by not taking the trouble to design a new form to accommodate the Constitutional Court ruling.

There are at least three possible reasons for this oversight. Maybe the relevant IEC officials are incompetent or stupid and do not realise that the Constitutional Court judgment also allows South Africans who are not abroad temporarily to vote. Given the salaries paid to top IEC officials this would be troubling. As would the second reason, namely that the relevant officials know that the form is not complying with the Constitutional Court ruling but was too lazy to change it. This second explanation would also demonstrate a contempt for the Constitutional Court that is breathtaking.

But maybe the relevant officials know exactly what they are doing and left the form unchanged because they want to circumvent the decision of the Constitutional Court and want to discourage South Africans abroad from voting. I would not have given this theory any credence but for the fact that IEC chairperson Brigalia Bam told Helen Zille: ¨Why should South Africans living abroad have a right to vote because they ran away and bitch about the crime in the country?¨

We therefore know that the chairperson of the IEC does not agree with the ruling of the Constitutional Court. In the light of this, it is entirely reasonable to ask whether the IEC – under instructions of its chairperson – is defying the Constitutional Court judgment and is therefore in contempt of court.

The IEC has a legal duty to immediately change this form to comply with the decision of the Constitutional Court. If they fail to do this thousands of potential voters might well be disenfranchised. This is a no-brainer. If they do not agree to change the form forthwith surely it will be reasonable to deduce that the IEC is intentionally defying the Constitutional Court and is trying to disenfranchise some voters because it has made scurrilous generalisations about those voters and do not like them.

The ball is in the IEC’s court.

The two judgments represent a mixed bag as far as the Constitutional Court’s view of democracy is concerned. On the one hand it affirms the right to vote in ringing terms and vindicates the rights of registered voters in the 2009 election. On the other hand it fails actively to assist individuals who happen to be out of the country and who have not yet registered to vote (even if they did not register because they thought they had no right to vote abroad) and avoids some of the difficult issues that arose in this case through some nifty technical footwork.

I like the Constitutional Court’s affirmation (per O’Regan J, quoting Sachs J) that the vote of each and every citizen is a “badge of dignity and personhood. Quite literally, it says that everybody counts.” As O’Regan so beautifully states:

In marking their ballots, citizens remind those elected that their position is based on the will of the people and will remain subject to that will. The moment of voting reminds us that both electors and the elected bear civic responsibilities arising out of our democratic Constitution and its values. We should accordingly approach any case concerning the right to vote mindful of the bright, symbolic value of the right to vote as well as the deep, democratic value that lies in a citizenry conscious of its civic responsibilities and willing to take the trouble that exercising the right to vote entails. … The electoral system should recognise that the right to vote has both symbolic and democratic value and that wherever possible the participation of citizens should be encouraged.

The Court therefore states that the right to vote, guaranteed in section 19 of the Constitution, will be infringed  where any of the provisions of the Act will prevent a voter from casting her ballot despite the fact that she had taken reasonable steps to exercise her right to vote.

The Court balances the right to vote against the duties of the citizen by noting that when determining what would constitute reasonable steps for the voter to take, it will have to be born in mind that the process of voting inevitably imposes burdens upon a citizen while not forgetting the important democratic value of fostering participation in elections.

Clearly in this case the provisions of section 33(1)(e) of the Electoral Act which arbitrarily limited the categories of persons who could cast special votes if they found themselves outside the Republic on election day infringed on section 19 of the Constitution as it was not reasonable to expect all those individuals to fly back to South Africa to vote.

And as Government has not sought to point to any legitimate government purpose served by restricting the categories of registered voters who qualify for a special vote, there was no justification for this limitation of the right in terms of section 36 of the Constitution. This is a significant victory for democracy and really sends a signal that every person counts (no matter their political affiliations).

But at the same time the Constitutional Court declined to address the question of whether those already registered to vote could vote in the provincial election and whether the provisions that require someone to be in the country to register to vote were unconstitutional or not.

Because these issues were not raised before the High Court and the parties requested direct access to the Constitutional Court to deal with them, it gave the Court a get out of jail card to avoid making a decision on these very difficult issues. The Court showed a decided lack of courage in this regard by declining to consider the issues and this is to be regretted.

The Court seemed to take a rather passive view of its role in safeguarding democracy. Implicitly relying on the doctrine of separation of powers, it therefore kicked for touch to avoid making a decision on such a controversial issue by pointing out that:

the direct access applications raised complex and difficult questions concerning the constitutional validity of this electoral scheme and the legislative choice made by Parliament, whose duty it is to design an electoral scheme. No party disputed that Parliament had a range of choices open to it in designing that scheme and that it was not for the courts to prescribe to Parliament which scheme should be chosen. The courts’ function is to determine whether the scheme chosen complies with the Constitution. And, if the scheme is found to be unconstitutional, what electoral scheme should be put in place in the interim until Parliament prescribes another electoral scheme which will conform to the constitutional requirements.

The Court seemed to blame the victims of this nefarious piece of legislation for not coming to the Court at an earlier time and stated that it was not desirable “that issues of such considerable importance and complexity be determined in haste”.

Voting by South African voters abroad in the 2004 elections was regulated by the amendment which was introduced in 2003. The applicants have known since then that they cannot vote. Their explanation for not approaching a court much earlier is utterly unsatisfactory.

This, despite the fact that the applicants pointed out that it had been seeking a political solution for the denial of their rights and that they had been hoping that the Electoral Commission would assist them in vindicating their rights. So, on the basis of a technicality the applicants were denied direct access to challenge the provisions of the Electoral Act which in effect requires one to return to South Africa to register to vote.

Although this was disappointing, the Court did not make a decision on the merits and a new application could still be brought at any time after the election to challenge these provisions – which clearly discriminate against South Africans who work abroad as they require them to go to extreme expense to register to vote. I cannot imagine that it could be considered reasonable that one could only register to vote if one actually returned to South Africa to do so.

But the Constitutional Court clearly did not want to address this politically controversial issue and definitely not in haste, so it found a way to deny direct access to the applicants in the case. Pity the poor South Africans who live abroad and failed to register because they thought there was no point as they had no right to vote.

They will have to sit this election out and their dignity and personhood will have to take a backseat. But hey, who cares about the personhood and dignity of South Africans who live abroad? After all, they are unpatriotic and racists and they are not worth spending political capital on.

By the time the judges of the Constitutional Court had finished with them, all the parties in yesterday’s case — about the right of South Africans living abroad to vote — including the minister of home affairs and the Independent Electoral Commission (IEC), agreed that it was unconstitutional that some citizens living abroad were entitled to vote in April’s election, while others were not.

Well, it is not as if anyone who has read ANY Constitutional Court judgments on voting rights could not have predicted that this would happen. I argued on this Blog just a few weeks ago that section 33 of the Electoral Act clearly infringes on the rights of South African citizens to vote and that the arbitrary nature of the exceptions provided for in this section would make it impossible to justify in terms of the limitation clause.

If the Business Day report is to be believed, this has now come to pass and now the only issue is what remedy the Constitutional Court will be able to construct at this late stage – with only 6 weeks left before the election.

Will it declare invalid the section and read words into the Act and order the Electoral Commission to re-open the voter`s role so that those South Africans who find themselves abroad can also register to vote? Or will it fashion some other, more limited, remedy that will not assist the hundreds of thousands of South Africans abroad who are not registered yet?

It is going to be interesting to see how the judges come down on this issue as it might also say something about the attitude of the various judges to the seperation of powers question and how activist they think they could be to vindicate the rights of a rather unpopular minority.

What is surprising (or maybe not?) is that both the Electoral Commission and the Department of Home Affairs first tried to argue that this arbitrary infringement on the right to vote was justifiable. Surely, they have high powered and expensive lawyers who would have told them that they have very little chance of winning this case on the merits? If their lawyers did not inform them accordingly, they really should get new lawyers.

But maybe something else is going on here. If it is true – as Helen Zille claims (and she has not yet been contradicted) –  that Independent Electoral Commission (IEC) chairman Brigalia Bam told her: ¨Why should South Africans living abroad have a right to vote because they ran away and bitch about the crime in the country?¨ then the stance taken by the Electoral Commission and the Department of Home Affairs makes more sense.

The decision to try and justify the indefensible was then a political  and not a legal one. As a political, moral or ethical matter the Department and the Electoral Commission then felt it had to oppose the legally valid application because South Africans who find themselves abroad for whatever reason do not deserve the vote.

I could understand that the Department of Home Affairs – trying to gain a special advantage for the incumbent government party – would engage in such shenanigans. This is what the trappings of power allows one to do – to waste the taxpayers money in order to score some political points. It ain`t pretty, but it is understandable.

But the  position of the Electoral Commission seems more troubling. The Electoral Commission is an independent Chapter 9 institution created by the Constitution. It has a constitutional mandate to deliver free and fair elections.

The Commission therefore has a constitutional duty to safeguard one of the founding values of our constitution, namely that South Africa remains a democratic state founded, inter alia, on the values of ¨[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness¨.  

It seems to me it is no business of the Electoral Commission to make political or moral judgments about who deserves to get the right to vote or who does not. It is for the Electoral Commission to safeguard the right to vote as diligently as possible for as many people as possible. As an independent body, the Electoral Commission must fight with the government of the day if that government tries to disenfranchise some citizens. Otherwise it is not doing its job.

One would therefore have thought that the truly independent Electoral Commission (as one of the guardians of our democracy) would have long ago taken up the constitutionality of section 33 of the Electoral Act. That is its constitutional duty.

Yet, most unfortunately, it failed to fulfil its duty and rather sacrificed its constitutionally guaranteed independence to defend the government´s attempt to limit the right to vote. And then its chairperson was overheard making value judgments about certain sectors of the South African community who she thinks do not deserve to have the right to vote.

Whether as a moral or political issues she has a point or even whether one agrees with her assesment of South African citizens living abroad, is irrelevant. It is not her job to take such a moral or political stance. She and her Commission must be independent - which means she must be striving to serve the interest of all South Africans.

So far the Electoral Commission has done a relatively good job. This saga has, however, placed a question mark over the true independence of the Commission. It can and should do better in future.

The judgment is unfortunately not a monument to clarity and clear constitutional reasoning. Acting Judge PZ Ebersohn is clearly not a constitutional scholar and it shows. What I find surprising is that the judge declared invalid the section that allows government officials and their families who are “on Government Service”  to vote if they are absent from the Republic – perhaps on the assumption that it infringed on the right to equality before the law guaranteed in section 9 of the Constitution.

I wonder whether judge Ebersohn realised that his judgment would make it more difficult for government officials and their families abroad to vote, while not at this stage assisting many South African citizens who are temporarily living abroad.

Section 33(1)(b) of the Electoral Act states that the “Commission must allow a person to apply for a special vote if that person cannot vote at a voting station in the voting district in which the person is registered as a voter,” because, amongst others, that person is abroad because he or she is “on Government Service”  or is a family member of such a person. The section does not require this category of individuals to alert the IEC to his or her absence before being able to access a special vote. This section has now been declared invalid.

Section 33(1)(e) states that other categories of individuals must also be allowed to vote if he or she is temporary absent from the country “for purposes of a holiday, a business trip, attendance of a tertiary institution or an educational visit or participation in an international sports event” and “if the person notifies the Commission within 15 days after the proclamation of the date of the election, of his or her intended absence from the Republic, his or her intention to vote, and the place where he or she will cast his or her vote”. The underlined section was declared invalid.

This means the effect of the judgment is, first, to require government officials and their families to notify the Electoral Commission within 15 days after the proclamation of the election date that they will vote and where they will vote, thus potentially making it more difficult for government officials abroad to vote.

Second, it extends the right to vote to all South African citizens who are temporarily abroad and are already registered as voters. It does not make any provision for the IEC to arrange registration drives abroad or allow South African citizens to register while abroad. Neither does it allow South African citizens permanently living abroad to vote. It is unclear how many South Africans temporarily living abroad are actually registered to vote and how – if they are registered – they will now be able to arrange for special votes.

In any event the decision will have to go to the Constitutional Court for confirmation and that court will probably have to deal with several cases now being dealt with in various courts in South Africa about this issue.

It is not clear from the judgment, but it appears as if the Department of Home Affairs had difficulty justifying the almost blanket limitation on the right to vote. Although the judgment seems to confuse the reasoning applicable to the limitation clause with that applicable to section 9 of the Constitution, the heart of the matter is dealt with in paragraph 77 of the judgment where Ebersohn AJ states:

The only argument on behalf of the respondents [to justify the limitation of rights and the different treatment between government officials and ordinary citizens] can be risks to the integrity of the polling process, and a strain on financial and logistical resources available. Such argument, however, falls away when regard is had to the fact that the logistical arrangements have to be made for the classes of citizens abroad who are allowed to bring out special votes. The only issue can be financial namely the costs of transporting extra ballot papers to and from South African embassies, High Commissions and consulates which, however, would not place an undue burden on the respondents’ resources. Any risks attendant to the bringing out of special votes will be the same as those existing for the special votes which are allowed in section 33 as it presently stands.

I imagine in the Constitutional Court this issue will be the one that will have to be addressed by either side in far more detail. In the past the Constitutional Court has lambasted the Department of Home Affairs for failing to provide any evidence or factual material to justify the limitation of prisoner’s rights to vote, so we will have to see if the Department will be able to muster the requisite energy to place before the Constitutional Court some arguments about the potential cost and the actual effect on the security of the election if the right to vote were to be extended.

It is clear that a mere assertion by the Department or the Electoral Commission (as the IEC is called in the Constitution) that great cost would be incurred if this right were to be extended would not wash. Real facts and figures will have to be produced.

This does not mean legislation will have to allow every South African citizen living abroad the right to vote. There might be justifiable reasons to exclude citizens who now permanently live abroad from voting and this judgment does not address the rights of those citizens to vote.

What is clear is that the legislation now being attacked does not seem to make a logical and justifiable distinction between those who are allowed to vote and those who are not. In the absence of very strong evidence about the logistical and cost implications in extending the right to vote and clearly articulated policy considerations about which categories of South African citizens who happen to live abroad should be disenfranchised, the Constitutional Court will have some difficulty with the legislation as it stands.

The answer obviously is that neither of them are.

Let’s leave aside for the moment the fact that ANC structures have nominated and have now shown enthusiastic support for two convicted criminals. In a normal society - a society in which criminals are shunned and vilified and not hero-worshipped, one in which a political party would be severely embarrassed if their members nominated two convicted criminals to represent them in one of our democratic institutions – there would have been an uproar about these names appearing so high up on the ANC nominations list.

But we are not a normal society. We are a deeply scarred and quite sick society. Just because we have enjoyed our democracy for 14 years does not wipe away the 300 years of colonialism and racist oppression which have scarred all of us living in South Africa – regardless of our race or sex.

There seems to be an acute distrust in state institutions (a distrust exploited by shady politicians like Yengeni, embattled, ethically challenged, politicians like Zuma and morally depraved sportsmen like Hansie Cronje) and a very strong “them” and “us” kind of mentality based on a perhaps understandable but warped kind of racial solidarity. Most South Africans seem to think like George Bush (if think is not too strong a word to be used in the same sentence as George Bush): “You are either with us or against us and if you are with us then it does not matter what you might have done”.

It is a sick mentality that says: Hey, who cares if you had tortured a few people or stole the odd R500 000 – as long as you support the war on terror or can show that the other side hates you, you are my friend and hero. Who cares if you are a crook, as long as you are vilified by elites, we will support you because at least you are “our” crook.

But nevertheless, I think it is pretty clear that the Constitution prohibits both Yengeni and Winnie Madikizela-Mandela from standing for election to the National Assembly. This is because section 47(1)(e) of the Constitution states that every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except (amongst others):

anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.

Yengeni was sentenced to four years in prison without the option of a fine and Winnie to five years in prison without the option of a fine – although her sentence was converted into a suspended sentence on appeal. I think few people will argue that Yengeni could qualify for election, as he actually served time in prison. But what about Mrs Madikizela-Mandela?

It seems pretty straight forward to me that she is not elligible. After all, although Mrs Madikizela-Mandela had never served any time in prison, she was sentenced to a prison term without the option of a fine. This prison sentence might have been suspended but it was a prison sentence and she had not choice to rather pay a fine than live under the cloud of this suspended sentence.

For those people who believe we can interpret the Constitution by looking at the plain language of the text, there would be no way to argue that Winnie is eligible as she was not given the option between a prison sentence or a fine. She was sentenced to time in prison – the judge just happened to be lenient and suspended this sentence for whatever reason.

For those who think we should read the Constitution contextually and purposefully, this should also be a no-brainer. What was the reason for including this section in the Constitution? The framers clearly wanted to make sure that recently convicted crooks are prevented from representing us in Parliament while not preventing individuals who might have been caught doing something stupid but illegal (like shop lifting a can of Coke or pouring tea over the editor of Huisgenoot) from serving the nation.

Courts do not as a general rule impose prison sentences without the option of a fine for trivial criminal acts. (When they do, it is usually because some retarded racist magistrate has not received the memo yet that we live in a democracy where we are all equal.)  But usually courts reserve this sentence for serious criminality – as they should. Sometimes there are mitigating circumstances in such serious cases and then a court can suspend the prison sentence but it does not make the crime that was committed less serious.

If we therefore look at the purpose of this provision in the Constitution it was exactly to keep people like Mr Yengeni and Mrs Madikizela-Mandela out of our Parliament – at least for a certain period. One would not want them to defraud the taxpayers by cheating with their travel vouchers, for example.  

So, unfortunately Mr yengeni and Mrs Madikizela-mandela will ahve to serve the national democratic revolution in another capacity. As style consultants to the rich donors of the ANC maybe?