Constitutional Hill

Electoral system

The Scorpions saga continues, but to no avail?

Apr 30th, 2009
by Pierre De Vos.
52 comments

Hugh Glenister is lodging yet another court application to try and have the legislation abolishing the Scorpions overturned. After reading the papers submitted to the Court I am rather skeptical that this new application will be successful. Glenister’s main argument is that the legislation was passed because the Scorpions “has been too effective when it comes to investigating various high-profile members of the ANC”. He contends that the decision was taken “in order to protect various ANC members from current and future investigations by the DSO [Scorpions]“.

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.

IEC in contempt of court?

Mar 16th, 2009
by Pierre De Vos.
76 comments

What is going on at the Electoral Commission (as the IEC is called in the Consgitution)? They will spend almost R1 billion this year to deliver a free and fair election to all South Africans. One would think with this money they could pay someone to design the necessary forms to comply with the law and the decisions of the Constitutional Court – even on short notice.

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.

Limited victory for voters abroad

Mar 12th, 2009
by Pierre De Vos.
25 comments

The Constitutional Court today handed down two judgments which will allow registered voters who will be out of the country on election day to cast a vote in the National Assembly election. However, unregistered voters will not be able to vote in the 2009 election, although such voters might still bring an application later to force the Electoral Commission to register them abroad.

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.

Defending the indefensible… and then not.

Mar 5th, 2009
by Pierre De Vos.
39 comments

I loved the introductory paragraph to a story in today`s Business Day on the Constitutional Court case about the right of South Africans abroad to vote:

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.

Citizens abroad to vote – if registered….

Feb 10th, 2009
by Pierre De Vos.
40 comments

The Transvaal Provincial Division of the High Court today declared invalid section 33(1)(b) and parts of section 33(1)(e) of the Electoral Act, and ordered the Electoral Commission to do all things necessary to ensure that all categories of citizens absent from the Republic of South Africa who are registered as voters will be entitled in terms of the Electoral Act, to vote by means of special votes in the forthcoming general elections.

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.

Yengeni, Winnie not eligible for Parly?

Jan 30th, 2009
by Pierre De Vos.
63 comments

The preliminary list of ANC candidates for election to the National Assembly was leaked to the newspapers this week. Two of the names that appear very high up on that list are Winnie Madikizela-Mandela and Tony Yengeni. Questions are now asked about whether these stallwarts of the national democratic revolution are eligible for selection to the National Assembly at this time.

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?

Why can’t South Africans abroad vote?

Nov 11th, 2008
by Pierre De Vos.
113 comments

Several people have asked me whether it is true that South Africans who find themselves outside the country on election day next year will be prevented from voting and whether this does not infringe on their right to vote entrenched in section 19 of the Constitution. Many South Africans live and work abroad and in 1993 legislation was drafted to cater for them, only to be hastily amended, apparently  on instructions from the ANC Executive.

In South Africa as a general rule one can only vote at the voting station where one is registered on election day. However, section 33 of the the Electoral Act states that the Independent Electoral Commission (IEC) 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, if that person is:

  • physical infirm or disabled, or pregnant;
  • absent from the Republic on Government service or is a member of the household of that person;
  • absent from that voting district while serving as an officer in the election concerned;
  • on duty as a member of the security services in connection with the election; or
  • temporarily absent from the Republic for purposes of a holiday, business trip, attendance of a tertiary institution or an educational visit or participation in an international sports event, 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 IEC may also prescribe other categories of persons who may apply for special votes, but has not done so. This means that South African citizens who are working and living abroad cannot vote in the election, but government officials and those on holiday outside the country during the election can vote – the latter only if they make special arrangements to do so before they leave.

This means that South African citizens who do not live in South Africa – a majority of whom are probably white and perhaps not ardent supporters of the ANC – are denied their right to vote. The Constitutional Court has said that the right to vote is fundamental to democracy and that this requires proper arrangements to be made for its effective exercise. This is the task of the legislature and the executive which have the responsibility of providing the legal framework, and the infrastructure and resources necessary for the holding of free and fair elections.

South African citizens who live abroad can therefore argue that their constitutional right to vote is being infringed because the Electoral Act in effect denies them a right to vote. If such an application is brought, the government will have to provide solid reasons why these citizens are being denied their right to vote as they will have to show that the limitation of this right is justified in terms of the limitation clause in the Bill of Rights.

In the Nicro case the Department of Home Affairs argued that some categories of prisoners are being denied their right to vote and justified this by saying that special voting procedures involve risks for the integrity of the voting process. As there is a danger that special votes (in this case, cast in foreign countries) may be tampered with, special measures will have to be taken that could be cumbersome and costly. Moreover, the provision of special arrangements of this nature puts a strain on the logistical and financial resources available to the Commission for the purpose of conducting the elections and this too has to be taken into account.

But I am not sure this argument would be accepted by the Constitutional Court and those who wish to challenge the legislation may well have a reasonably strong case. In the Nicro case the Constitutional Court stated:

In the light of our history where denial of the right to vote was used to entrench white supremacy and to marginalise the great majority of the people of our country, it is for us a precious right which must be vigilantly respected and protected. Resources cannot be ignored in assessing whether reasonable arrangements have been made for enabling citizens to vote. There is a difference, however, between a decision by Parliament or the Commission as to what is reasonable in that regard, and legislation that effectively disenfranchises a category of citizens.

Given the fact that South African foreign missions already make arrangements for government personel and their families to vote abroad, the IEC and the Department of Home Affairs will have to produce plausible evidence to show that allowing South African citizens who work and live abroad to vote would entail sizable extra cost and a great increase in the possibility of election fraud. If they fail to provide such evidence the Constitutional Court will probably not agree that this limitation of the right to vote is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

In most democracies citizens who live abroad are allowed to vote. I cannot see why the IEC do not make arrangements for South African citizens who live abroad to vote as well. Of course most of these votes would not go to the governing party but that is not a valid excuse to deny some of our citizens the right to exercise one of their most important duties as a citizen.

Maybe Hugh Glennister has some extra cash lying around and can launch a court application in this regard. This time he will actually have a fair chance of succeeding with his application.

Floor crossing and an ANC “split”

Oct 9th, 2008
by Pierre De Vos.
24 comments

When it was announced earlier this year that the ANC has had a change of heart about the much maligned floor crossing legislation and that it will now support the abolition of floor crossing, many people were pleasantly surprised. Since floor crossing was introduced after the marriage of the Democratic Party and the National Party, the ANC has been by far the biggest benefactor of this system.

The legislation was devised to protect the ANC from floor crossing while exposing smaller parties to its vagaries. Thus it only provided for legal floor crossing if at least 10% of the members of a particular party in a particular legislature crossed the floor within the window period every two years.

For the National Assembly that meant that the ANC with almost 300 MP’s was for all intense and purposes immune from floor crossing because it would require between 25 and 30 MP’s to jump ship for the floor crossing from the ANC to be valid. For smaller parties with less than 10 members in the National Assembly (like the Independent Democrats or the UDM) floor crossing could be disasterous because  even if one member defected it would be legally valid as long as it was done during the window period provided for by the legislation.

Over the years the ANC gained many new members of the various legislatures through floor crossing. It was therefore quite surprising when the ANC decided to abolish a system that served it so well. One argument put forward was that some ANC members were also upset with floor crossing because in order to provide “encouragement” to floor crossers, the ANC promised them positions high up on the election lists. This meant floor crossers were in effect jumping the queue and people who had been diligently working for the ANC and expected to be rewarded with positions in the various legislatures were kept out.

But I wonder whether there might not have been another reason for the ANC to have had a change of heart about floor crossing. If it is true, as Blade Nzimande said yesterday, that the ANC had been aware of Lekota’s intention to form a breakaway party from the beginning of the year, then one might wonder whether there is not a more cynical explanation for the ANC’s sudden attack of principles.

Because while it would be difficult (if not impossible) for any existing opposition party to convince between 25 or 30 ANC MPs to cross the floor to their party, it would not be impossible to get that number of MP’s to cross the floor to a break away party formed by Lekota or by others in the future.

In a political climate in which the ANC was less assured of absolute unity, floor crossing had become a threat to its fortunes as well. No wonder the legislation is now being launched through Parliament.

One wonders whether the threat of a breakaway party will not make the ANC reconsider its opposition to the pure list system of proportional representation as well. As many people have pointed out tbefore, he representative nature of our democracy has been impoverished by this system because legislators are selected by party bosses (by the “deployment committee” in the case of the ANC) and are therefore beholden to party leaders instead of to the electorate that they are supposed to serve.

Maybe real competition at the polls might convince ANC leaders that they need to give up some control over their MPs so that they can demonstrate a closer link with an ever more restless electorate. If that happens, the split would already have been worth it.

How can the ANC get rid of Mbeki?

Sep 17th, 2008
by Pierre De Vos.
60 comments

Our friend kortbroek Malema, leader of the ANC Youth League, is quoted this morning as having said that the majority of ANC national executive committee members agree that President Thabo Mbeki must be removed from office. According to News24:

“We have approached individual members of the ANC NEC to ensure that the removal of Thabo Mbeki becomes an ANC NEC resolution this weekend, and the majority of them are agreeing with us on this issue,” said ANCYL president Julius Malema at a media briefing in Johannesburg. “We will have Mbeki removed. We don’t fight to lose. He is going. It doesn’t matter who said what, Mbeki won’t be president when we go to the election.

If this is true and if Malema is not just talking through his nose, the question is how the ANC will legally be able to get rid of President Mbeki and what would happen if it does. The President is not a member of the National Assembly and holds his office independent of any membership of a political party. Unlike with any ANC member of Parliament, the ANC will therefore not be able to get rid of Mbeki merely by expelling him from the party or by “redeploying” him to an ambassadorship to outer Mongolia.

The ANC may, of course, ask President Mbeki to resign. If he agrees (but will this stubborn man agree to such a humiliation?) the Constitution determines that a new President must be chosen within 30 days from among the members of the National Assembly. In the meantime the Deputy President will act as President or if she also resigns, a Minister designated by the other members of the cabinet will act as President until a new President is chosen.

If President Mbeki refuses to resign, the National Assembly can pass a vote of no confidence in the President and his cabinet with a simple majority vote and then the President and the cabinet must resign. If a new President is not chosen within 30 days after a vacancy occurred, a new election must be held within 90 days.

If a vote of no confidence is passed in the President and his cabinet and they resign, the Speaker will be sworn in as the acting President until a new President is elected (within 30 days) from among the members of the National Assembly or until an election is held 90 days later later.

At the moment Mr Zuma is not a member of the National Assembly. As I read the Electoral Act, it is impossible for Mr Zuma to become a member of the National Assembly before the next election. It has been argued that Mr Zuma can become a member of the National Assembly if one of the ANC MPs resigns. But if there is such a resignation the vacancy must be filled from the existing list of candidates prepared by the ANC, which they can only review once a year. At the moment this list can only be reviewed and supplemented each April and if Mr Zuma is not now on top of one of these lists he cannot be placed on top of such a list at this time.

If the ANC therefore removes President Mbeki in the next week or two, but chooses not to have an election immediately, Mr Zuma will not be able to become President before an election is held. One of the present members of the National Assembly (Baleka Mbete or Kgalema Motlanthe?) will then have to be elected President until an election is held before the end of June next year.

So if Mr Malema is correct, we might either have an early election or we will have a caretaker President elected from among the existing ANC members of the National Assembly. If the latter rout is taken, it will be interesting to see who the ANC chooses in this role. Will it be the Speaker or will it be the Deputy President of the ANC? If it is the former, it might well indicate that there are already tensions between various Zuma factions elected at Polokwane and that some in the Zuma camp do not trust Motlanthe.

I am holding my breath to see what will happen. Whatever happens though, we are in for an interesting ride.

AFTERTHOUGHT: There is of course a very good reason why Mr Zuma chose not to become a member of Parliament along with Kgalema Motlanthe in April when the ANC had the opportunity to supplement its lists of candidates. The Court found in the Shaik case that the money given by Shaik to Zuma was not a loan as Mr Zuma and Mr Shaik had claimed. This money was a gift and Mr Zuma was obliged to declare this gift to Parlaiment which he failed to do. If he became an MP the ethics committee of Parliament would have to deal with this breach of ethics and with the fact that Mr Zuma had lied to Parliament.

On the State, the Party and the Scorpions

May 22nd, 2008
by Pierre De Vos.
24 comments

It will be a brave (or perhaps foolhardy) judge who will grant the application of Johannesburg businessman Hugh Glenister to stop President Thabo Mbeki and the safety and security and justice ministers from initiating legislation to dissolve the Scorpions. The Constitutional Court, it seems to me, has frowned upon such applications which are seen as premature because they are brought even before the legislation is debated and adopted by Parliament.

But important arguments about the nature of our democracy and the relationship between the ruling party and the state were raised this week before Pretoria High Court judge Willem van der Merwe (who acquitted Jacob Zuma on rape charges) and it will be interesting to see how the Court deals with them. Advocate Michael Osborne, who acted on behalf of several political parties, argued that the decision blurred the division between the state and the party and as such represented a threat to our democracy.

To bolster his case he quoted from a statement made by Treasurer-General of the ANC, Mr Matthews Phosa, who said 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 elected ANC structures hold the ultimate power in this situation and all structures and leaders of the governing party will account to them. The President and his or her Cabinet accounts to the NEC of the ANC, as any other structure of Government does.

He argued that this view of the relationship between the ANC and the executive – reflected in the “instruction” of the ANC at Polokwane to the executive to disband the Scorpions within six months – wholly undermines Parliament, who has a Constitutional duty to hold the executive to account. I agree with this view, but unfortunately it is unclear whether such an argument will be successful.

The problem is that our Constitution does not spell out the appropriate relationship between the Party and the State. It is true that the Constitutional Court has made clear that our Constitution establishes a mix of a representative and and a participatory form of democracy and that the public had a right to take part in important decisions of Parliament. If the legislation to disband the Scorpions were therefore to be rammed through Parliament without giving the public the opportunity to take part in this process, it would contravene the Constitution.

At the same time it is clear that the representative aspect of our democracy allows the majority party in Parliament to pass legislation as it sees fit – as long as it can be shown to have allowed for public participation, has acted in a rational manner and as long as the legislation does not infringe on our rights.

The problem is that our electoral system bestows enormous power on the leadership of the majority party to do as it pleases. Given the fact that we vote for political parties and not for individuals and given, moreover, that party bosses can decide which of their members serve in Parliament and who is elected President, those party bosses can at least indirectly dictate policy to its members in Parliament and in effect to the executive.

The strict party discipline we inherited from the Westminster systems has now further been bolstered and entrenched by an electoral system that emasculates individual members of Parliament and bolsters the power of the Party leadership. When the Party’s leaders and the leaders of the country are the same people the system can more or less work and can at least provide the facade of real participatory democracy. But when there are two centres of power – as is now the case – it exposes a great weakness in our Constitution.

An argument could be made that democracy is not really undermined because if we do not like what party bosses are doing, we can vote the party out of power at the next election. In South Africa at present that option is not really available. This means the Party leadership – elected by 4000 people at Polokwane – has far more power than the members of the executive or of Parliament.

I am not sure a court can do anything about this because that is the system our Constitution is based on. If we did not have a one party dominant system, it would not have been such a big problem, but we all know that opposition parties will for the time being not attract large amount of ANC voters and that is what creates the problem as there is no real possibility for a change of government. This may allow the party bosses to take very stupid and even corrupt decisions and then to enforce these decisions via the legislature and the executive.

What would be required is a change in the electoral system and perhaps legislation to ensure that political parties adhere to basic principles of democracy in their internal operations. Whether a court can – or even should – interfere in this process is highly debatable exactly because our constitution gives such an important role for the Party. For a court to intervene might well overstep the line between the judiciary and the other branches of government.

But maybe if this case goes all the way to the Constitutional Court, those clever judges will find a way to clarify the role of the Party vis-a-vis the state that would mitigate some of the problems we now experience in our democracy. So maybe judge Van der Merwe should be brave and even a bit foolhardy so that the problem could be addressed by our highest court.

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