When I read the latest wisdom eminating from the Electoral Commission (also called the IEC), I immediately wodnered what it was paying its legal advisors. It can’t be much, I thought. Either that, or the IEC is happy to waste its (that is, our tax payers) money. Let’s face it, twice the IEC has been taken to the Constitutional Court and twice it has lost. I see a third defeat staring it in the face.
According to a report in Die Burger Mr. Norman du Plessis, Deputy Chief electoral Officer of the IEC, justified the prohibition on voting for most South Africans who find themselves abroad with reference to legal advice the IEC obtained. These legal advisors believe that the Electoral Act places specific restrictions on who may vote and that is why the IEC cannot provide for South Africans who live abroad to vote in the upcoming election, Du Plessis said.
What are these people smoking? Surely these statements blithely ignore the fact that we live in a Constitutional democracy?
It is true that 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.
This means that government employees and their families who live abroad and other South Africans who go on holiday, business or sports trips abroad for short periods can apply to cast a special vote. One assumes they can only do this if they are actually registered to vote but in the case of government employees it must surely mean that they need not be in the country when they make such an application. This means some people who live abroad can vote, while most South Africans can not.
But in South Africa, laws are subject to the Constitution and section 19 of the Constitution states that every citizen has the right to vote. Could it be that the IEC lawyers are arguing that only citizen living in South Africa have the right to vote because the Bill of Rights only applies within the territory of South Africa?
This would be a clever argument but I do not think that it will fly. Section 8 of the Bill of Rights states that the “Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state” – organs of state like the IEC. There is therefore a positive duty on the IEC to ensure that all citizens – not only those who happen to find themselves in South Africa – can enjoy their right to vote. Its important that this right – unlike most other rights – is limited to citizens only, which narrows down those who can claim the right and makes the durty to respect the right even more onerous.
So that means that the lawyers for the IEC are either saying that the Bill of Rights is irrelevant for the IEC (which would be wrong and, really, scandalous advice) or that this right might well be limited and this limitation might well be justified in terms of the limitation clause because the limitation “is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.
In the two voting rights cases, the Constitutional Court made it very clear that given our history, in which the majority of South Africans were denied their right to vote, the Court will be reluctant to sanction restrictions on this right. Where enormous practical difficulties or expense would make it necessary, restrictions on the right to vote might well be justifiable.
But government officials who live abroad are already allowed to vote and the IEC is already making provision for them. While it might not be practically possible to ensure that every South African living in every corner of the globe are allowed to register and to vote, surely nothing prevents the IEC from allowing South Africans from registering and voting at the South African diplomatic missions around the globe?
The struggle for democracy was at least in part the struggle to ensure that all South Africans get the vote. Now the IEC blithely refers to legal opinion that mere legislation – which is subject to constitutional control – prevent those who live abroad from voting. As if the Constitution is irrelevant.
No, Mr Du Plessis, go back to your lawyers and ask them whether the legislation you are referring to is constitutionally valid. Then, when the lawyers say it is not, bring an urgent application to the Constitutional Court to have that section of the law declared invalid. That is what you are constitutionally required to do. Now hurry up, the election is fast approaching and soon you will be so busy with party lists and the like that you will not have time for this.
It’s called democracy. It’s marevelous. And its your job to take the steps that will allow ALL South African citizens to take part in it.
Pierre
Is it not your constitutional duty to forward this article to Mr Du Plessis at the IEC?
Prof, I disgree with a number things you have said in this article, however i only wish deal to deal with one, being your unfair attack on the qaulity of service of the legal advisors for the IEC.
Legal advisors are required to interpret and advise their clients on certain implications of the law in a particular intance. They are further required to advise on any potential risk that might arise and also possible differing of opinions.
They are not however required to postulate every possible decision that every competent court may make in the event that those particular provisions are ever challenged.
The law is law until such time as it is challenged and subsequently changed.
Any reasonable legal advisor would come to the conclusion that citizens ouitside the country are not entitled to vote, because the text in section 33 of the Electoral Act is vividly clear in this regard.
Whether or not, if challenged, the court will consider it unconstitutional, is a question for the judges and one cannot dispense legal advise on “a might happen” basis.
As its stands the legal advisors for IEC, are in my opinion, correct.
I agree that it is the right of ALL South Africans to vote. I also agree with the DA’s high court bid to allow overseas South Africans to vote. I am living in SA, but in the last ten years, at least one of my family members have been overseas at any given time. All of us, have come home, and were only there temporarily. Of course the future of our countyr effects us too, and we should be givemn that right!
Well done to the DA in their bid, and I wish you all the luck and support!
Agree 100% with this article. Is the IEC just lazy or does it know that the Government doesnt really want thousands of extra votes for opposition, knowing full well that many emigres are white and likely to go DA or now even COPE? Maybe not, maybe a few thousand isnt enough and teh IEC or their advisors are just lazy or stupid or both.
Spoiler – In other words – is the IEC revolutionary or counter-revolutionary?
I have changed my views regarding this matter and now believe that expatriates must be allowed to vote as it is a constitutional right. I still firmly believe that the majority of these expatriates (particularly those who are Caucasian) are disloyal to the Republic, are likely to be agent provocateurs (and other similar roles, on behalf of Western “mother” countries) and are opposed to progressive change in South Africa. You see it with their brethren kind in the DA and other neo-liberal regressive parties, who have the temerity to comment on South African polity to foreign audiences as though they are not bound by the convention of being ambassadors of South Africa regardless their own political convictions.
Was it Foccault who said, if voting ever changed anything it would be made illegal.
Cry Beloved Zimbabwe!
Vuyo:
You can’t deny people the right to vote because you view that their vote might be in opposition with your beliefs. That’s what apartheid did..
The constitution is not worth the paper it is printed on if there’s one set of rules that applies to some South Africans and another set of rules that applies to others.
Oscar // Jan 27, 2009 at 10:53 am
I concur
Can I beg for your apology and digress from the afore postulated gambit.
I have a question for anyone:-
Why is it that every time we hear of news of an agreement, on the Zimbabwe quagmire, from the SADC (an organization which Mbeki is no longer a participant in), the MDC, through their spokespeople, dispute such announcements? Is the MDC, in effect, saying that SADC (an organization which Mbeki is no longer a participant in), is full of lairs?
And this always follows some statement from some Western diplomat. This time it was the ailing Hillary ‘that whore Monica stole my man’ Clinton’s turn to say how much Mugabe is not to be trusted.
Answers from anyone please! You can be Zimbabwean, Rhodesian, friend of Zimbabweans, have a Zimbabwean lover, or just be Mqo.
Help me!!
khosi,
The problem with SADC leaders and others who are trying to get a government of national unity in Zimbabwe is that they are working with individuals who have no interest of the Zimbabwean people at heart. These so-called leaders are in it to advance their own selfish and narrow interests.
Why not forget about Mugabe and Tsvangirai and look for other concerned citizens in Zimbabwe and use them to form an interim government while these clowns remain outside power while “looking for solutions”?
SADC leaders, by insisting on a power sharing deal between these power-hungry idiots, also become part of the problem instead of the solution.
Some points:
It is “practically” possible to allow South Africans overseas to vote per post. Other countries do this.
While many South African emigrants are white, many others are not.
The IEC is counter-constitutionary.
The DA is not “regressive”, but the ANC is. Or what should we call a party that has allowed itself to be taken over by their own allies, the SACP?
Dumisani Mkhize // Jan 27, 2009 at 3:03 pm
You have said a mouthful.
What is the solution?
Prof, why dont you apply for amicus curae to the FF PLUS&DA Cape High Court application seeing that you have so much vested interest on the outcome. I mean you posted almost the same argument end of last year-with same set of facts. Anyway, we all know the agenda all those white racists who now see the opportunity to vote with the sole intention of derailing a radical NDR, diluted by the emergence of the new black right winger party. Let them vote, we will still retain the 2/3 majority. And they must please leave for good if they are still counter-transfomatoriests after then!!!
Oscar I profoundly disagree with you. We have a constitution now. The CC has explained that this means all law that does not conform to that Constitution is objectively invalid from the moment the Constitution or law came into effect (the so called “rule of objective invalidity”). When a legal advisor is asked about a legal position, he or she therefore now has a legal and ethical duty to check that the relevant sections of the law are not invalid. If he or she fails to do that, the legal adviser is in dereliction of duty and might be misleading his client. It would be like advising a client on its rights by referring to a provision of an act that has been repealed by the legislature! At the very least, the lawyer must ask whether the provisions of the act are still valid law in South Africa and should point out to the client if there is a reasonable cvhance that a court will find not. Your approach seems to speak to much about what is wrong with the transformation of our legal profession, who seems so reluctant to embrace the Constitution and wants to cling to the old apartheid way of doing law.
Spuy // Jan 27, 2009 at 3:52 pm
Sjoe, that is a lot of agression you’ve got there.You must be one of those ‘proud-to-be-black’ people.
Anyway, as long as the rapist, murderous blacks (as you generalise whites to be racist you surely wont mind that I generalise blacks to be rapists/murderers) in prison are allowed to vote, the efficient hardworking people (black and white) that currently live overseas surely must be allowed to vote.
P.s. let go that racist stuff man. And remember, winning an election does not make a winner of you (unless you are a member of the ANC, i guess. MMmm, with so many members, you are probably a member of the ANC).
‘counter-transfomatoriests’ Newest ANC lingo? Very, very clever. I did not know there was any more words left to add after ‘counter’. Wait, is ‘transfomatoriests’ a real word?
The prospective special voters must catch the earliest flight on election day! The decision of IEC not to allow absentee voters is not capricious but based on paucity of sufficient human and pecuniary resources which putting a votig booth in every country on earth may cost for such poor country!
We await the judgment. Prof does have strong case. We advocate progressive realisation of this political right in the future when resources are in abundance!
Prof share with us the legal opinion with which you disagree so vehemently! no shadow boxing allowed!
Prof,
The section of the Act that you have cited does not place a prohibition on the IEC to allow other categories of voters not mentioned in the section to vote. It simply places an obligation on the IEC to allow those categories specifically mentioned to vote.
Is there any section in the Act that specifically prohibits the IEC from allowing other categories of citizens living abroad from voting? (If there is it would obviously be unconstitutional)
Is the IEC’s lawyers not misinterpreting the Act by interpreting the section to mean that because the other categories( of overseas citizens) are not included they are specifically excluded. Should they not rather interprete the Act to be consistent with the Act?
Shakira, good question! The Act gives effect to the Constitution and must – ito section 39(2) of the Constitution – be read with reference to the Constitution. But the Rule of Law requires that state organs must act in terms of powers given to them by the Constitution and the law, so I suspect in the absence of some general provision in the empowering the IEC to organise elections and make regulations regarding voting, it might be difficult for the IEC to abrogate for themselves this power in the light of the very detailed way in which their powers are set out in the Act. Section 190 of the Constitution states that the “Electoral Commission must-
manage elections of national, provincial and municipal legislative bodies in accordance with national legislation”. So the Constitution does not give them such a plenary power to go outside the four corners of the Act. Or can you think of a counter argument?
Vuyo, I should come there and belt you one in the head. I happen to be one of those South Africans ‘disloyal to the Republic’ who is an ‘agent provocateur’ for western powers, and I take deep offence at your comments.
I live and work in Bermuda at the moment, a small island with a population that could fit into Ellis Park. I am here purely because I have never travelled the world like so many of my friends, due to the decision I made to stay in SA until I had qualified – until that point I did not have the means to explore the planet.
I am profoundly South African – I adore my country, and I miss it every day. I enjoy the lifestyle I live here – crime is minimal, and the government doesn’t call me names – but I long for the day when I get to settle down in a little house somewhere in my motherland.
Sometimes at rugby practice, a couple of us white guys sit down and talk about home. They all say the same thing – greatest country in the world, miss home so much, nothing like it anywhere else. Nobody is really chuffed at what the ANC is doing to the country, but it’s just the ANC we don’t like, not the country and the ordinary man on the street.
Clearly you have never lived and worked overseas, because you don’t have a clue what the vast majority of expats, white, black, indian and coloured, feel for SA.
I tend to feel that people who commit murder, rape, robbery, fraud and corruption are disloyal to the Republic – after all, they break laws that are designed to ensure that everybody has a decent shot at a nice life. It’s like spitting on the Constitution. I remit foreign currency back home, I am skilling myself and gaining experience that I would never get back home (which will benefit whoever employs me when I do settle back home, and start ploughing my higher paycheque back into the SA econcomy through taxes etc), and have managed to convince about 10 of my foreign friends to come visit SA for the 2010 World Cup.
But a rapist gets to vote and I don’t? People who have no respect for the law get a say in who runs the country and I don’t? That may explain why we have a bunch of theives hanging around Parliment, but it still hits a nerve with me.
I don’t care what I get called, but start with calling me unpatriotic and disloyal and it crosses the lines – of all things myself and the majority of my expat friends are, disloyal is not one of them. We deserve the right to vote, both legally and morally. The fact that most of us would probably vote for opposition parties is irrelevant, and in all honesty, it’s difficult to see how the ANC could try to justify the decision to exclude us any other way.
And those racist old-flag-waving Aussie expats have a “constitutional right” to vote now
Sadly ozoneblue, it does. Democracy and all that. We are past the stage where only some people who are “sound”, “patriotic”, of a specific race, or have specific religuous or other beliefs, are allowed to vote. Democracy means we allow everyone to vote – even those we disagree with or really dislike. That’s what the ANC fought for.
Really? I thought they joined the struggle so they wouldn’t be poor?
Silly comment – back on topic!!! Ozone, those old flag waving dudes probably don’t care – they’re all too interested in getting their citizenship. However, they’re a small minority of the expat population across the world…the rest of us would like to participate in the life of South Africa, and it’s unfair any other way.
Pierre De Vos // Jan 27, 2009 at 8:02 pm
I guess the “Democratic” Alliance and the Congress of “the People” will be too pleased with pulling those votes to note the nauseating irony.
Let’s play devil’s advocate. Expats should NOT be allowed to vote. Let’s examine the reasons for that:
1. It’s too expensive.
2. …
Um. 2?
While I was an expat I voted in both the 2004 General Election and in the 2006 Municipal Election.
It was actually very simple: I “allowed” my visits to SA to coincide with the elections. I was registered WITHIN South Africa and exercised my “right to vote” also within South Africa.
I realise that it is impractical to expect this from all expats ─ due to the cost factor ─ but then those same expats expect the Government to “travel”, even only by figure of speech at one of the diplomatic posts.
——-
I dug out a couple of lines from our Constitution.
From the Preamble.
“Believe that South Africa belongs to ALL WHO LIVE IN IT, united in our diversity.”
[note the inside]
“…establish a SOCIETY based on democratic values, social justice and fundamental human rights”
[note: a society is inevitably only inside ─ expats are part of the non-South African societies that they live in...so they are NOT part of South African Society]
[The following is the important one]
Chapter 2 (Bill of Rights). 7. Rights
1. This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people IN OUR COUNTRY and affirms the democratic values of human dignity, equality and freedom.
Note: “IN OUR COUNTRY”
So The Bill of Rights make clear reference that it enshrines the rights of all people that is “IN” (surely meaning INSIDE) South Africa.
If my logic stacks up it thus excludes anyone that is NOT inside South Africa from claiming any rights under The Bill of Rights? This in turn will render any claim under Section 19 useless.
——-
It further begs the question about Jurisdiction.
By way of an example: If a South African is discriminated against in the UK by someone, then surely he/she can NOT suddenly claim protection under the South African Constitution, but rather under British Law or approach the ECHR if British Law fails.
Legal Jurisdiction is shaped by Common Law and usually definied within country laws.
Does it make SENSE to allow a citizen, that is not contributing to a country, to vote when that person is NOT inside that country (i.e. at least making an EFFORT to contribute)? Sure, many will be quick to jump to how things work in most first world countries, but the composition of the factors that drive/pull South Africans from SA is different. By virtue of this, isn’t it then FAIR to apply Section 36 in The Bill of Rights to qualify this RELATIVE right?
Don’t get me wrong, I believe that there is a moral responsibility on the Government of the day to allow postal voting ─ whether the expats deserve it or not ─ but 7.1 allows a possible legal argument out of it (?).
As a side.
There seems to a belief that the DA et al will be the main benefactors (by far) of overseas voting. This will only be a case if a significant amount of expats vote (apathy will likely be massive) AND if there is NOT a significant number of ANC voters overseas (frankly, this is a BIG unknown).
The Big Slipper // Jan 27, 2009 at 7:56 pm
You have spoken like a true patriot (for which I extend a fraternal salute) and I beg your pardon for any ill feelings resulting from my comments.
However, note that mine was a statement aimed at a particular ill. It is restatement of a sad fact: that many of these expatriates (particularly white expatriates) left South Africa because of fears of socio-political and economic transformation. Some amongst them continue acting as provocateurs and agents for their “mother” countries. They never tire of informing us how things will explode, how we are bound to a future of strife. They peddle this falsehoods to all and sundry with the express intent of justifying the true reasons of their “exile” (i.e. rabid racism and prejudice).
Hi,
I work all over the world all the time. It is really difficult for me as a econoic development consultant to get work in RSA, due to preferred procurement and the simple fact that most municipalities are not really interested in how their local firms (employers, tax payers) perform.
But what really strikes me as that I am meeting up with all races of South Africans wherever I go. There is a thriving RSA community in Ghana (mining), Vietnam (breweries and bottling), Thailand (logistics) etc. Many people are working under tough conditions, but they are sending piles of money home (and huddling together talking about going home and the next shipment of Pro Nutro, Pap or CDs). They also gain experience elsewhere in the world on somebodys else expense. And as I said, they are not all white.
I believe, that as long as you a house, pay your life policies or medical aid, or have other interests in South Africa, you are South African. No matter what your political orientation is.
Many people here have commented about opposition to the ANC. But people fail to remember that even the ANC is shaped by debate, opposition. In fact, societies that are able to handle opposite views without boxing each other tend to outperform societies where there is a prescribed or approved way of thinking.
So, I am a patriotic South African. Even if I dont vote for the ANC, my opinion matters and is protected by the constitution. I remain a South African wherever I go. The people that have written off the country wont go through the trouble to vote.
A last comment on the costs. If it is possible to make provision for diplomatic and other staff (like airlines staff etc) to vote in our diplomatic missions, then surely it cant be that expensive to allow the others to vote as well.
1) If it’s too expensive for expats to vote why can South African embassy staff vote abroad?
Why can criminals vote? Criminals don’t pay any taxes. I don’t see the need to spend my tax payer money on people that have taken the life of other human beings.
2) IF a South African citizen abroad get deported which country will he be deported to?? South AFrica or America? Therefor the expats home is SOUTH AFRICA by Right not Choice.
3) The fact that people assume EXPATS should not vote because they only vote for certain parties are just that “ASSUMPTIONS.”
4) With the world becoming a “Global Village” more and more people can chose where they want to work. This doesn’t mean they have cut off all their ties with their homeland just because they are studying/ working/ travelling abroad.
5) Being born SOUTH AFRICAN you have the RIGHT (not privelage) to take part in the say of YOUR country. Nobody can deny you access to what is given to you at birth. The right of Citizenship and the Right to Vote. It’s a Human right not a choice.
6) I think giving the right to all citizens to vote will be to the better of All of South Africa. Remember it’s not only white people living abroad there are plenty Black South Africans too and they would like to vote. It should be open to ALL .
Could someone please indulge me with a reply on a related question regarding the South African citizenship of my wife. I am not nor have ever been a South African citizen.
It seems that the provisions of the South African Citizenship Act providing for loss of citizenship are in direct conflict with section 20 of the Constitution and on the face of it would be invalid.
My wife’s parents are British citizens by birth but have lived in South Africa since 1970. I understand they only obtained South African passports (and presumably citizenship) shortly before the 1994 elections. My wife was born in South Africa and presumably the relevant date for her British citizenship by descent is her birth date of 16 July 1971. My wife travelled to England regularly in her childhood to visit her grandparents. I do not know when she first obtained her South African passport or her British passport. My wife lived in England from 1995 until 2000, when we moved to Australia. While living in England and Australia, my wife has used her British passport to travel in and out of England/Australia, including for trips to South Africa (entering and leaving South Africa on her British passport). She never obtained the then relevant ‘exemption’ letter from the South African authorities allowing her to use her British passport. Her South African passport has expired.
My wife obtained Australian citizenship on 8 August 2004. Assuming that my wife’s British citizenship and use of her British passport had not affected her South African citizenship prior to the Constitution coming into force in 1997 (or earlier if the interim constitution contained a provision similar to section 20), does that mean that her acquiring Australian citizenship has not affected her South African citizenship?
The practical issue for us is the ability to obtain South African citizenship for our son born on 1 May 2006.