Defending the indefensible… and then not.

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.

BACK TO TOP