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.
Sigh. The glass is always half empty.
“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.”
oh well, now I know and will make a point of registering the next time I am in South Africa so that I do not miss the 2014 elections.
Prof
I mentioned this before, the impugned provisions have been in place for years and it was improper to only take this issue to Court at the very last moment. As Justice Ngcobo correctly pointed out, they were the authors of their own misfortune. You can’t seriously argue that their explanation (if you can even call it that) that they had been seeking a political solution should have been listened to by the Court.
It is on this background that I find your statement: “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” quite troubling. It would be a sad day if our Courts were to allow litigants to disregard the Court Rules only to score cheap political points!!
George Gildenhuys
have you voted before? if so when..if you voted 1994 and other elections from there on words, you are actually registered to vote for 2009, just make sure of that and go vote dude
One is only registered if one has voted in any election since 1999. The 1994 election was not based on a voters role – anyone with a green ID book could vote. To check if one is registered go to http://www.elections.org.za and type in your ID number in the required field.
Mzo, there are reasons why the CC declined to consider the direct access application so the decision is plausible, but if the CC wanted to it could have found differently. Its reasons for distinguishing Bhe and Fourie (where direct access was granted to other litigants dealing with similar bit not exactly the same issue dealt with by the lower courts) from the present case is a bit unconvincing in my opinion. It depends on your view of democracy and the role of the court in advancing and upholding this democracy. As Theunis Roux has pointed out in his Closa chapter, the CC has a relatively passive and “thin” understanding of democracy and its role in safeguarding it (as shown by New National Party and Floor crossing cases). I would like them to have a more muscular view on this issue.
Some of these people who are overseas are left the country because they have no confidence in the ANC and African governments. These are the same people who will vote , trying to reverse the the gains made by the poor people under the Leadership of the ANC.
I think the vote should be witheld from unpatriotic emigrants but its a pity there is no scientific way of finding who is patriotic and who isn`t.
Lobengula // Mar 13, 2009 at 10:49 am
I sincerely hope that you are joking. Do you seriously think that emigrants who do not vote for the ANC want to reverse the progress made by the poor in this country? That’s just typical anyone-who-is-not-for-us-is-against-us crap.
Lobengula // Mar 13, 2009 at 10:49 am
”… I think the vote should be witheld from unpatriotic emigrants but its a pity there is no scientific way of finding who is patriotic and who isn`t.”
Patriotism is supporting your country all the time, and your government when it deserves it.” – Mark Twain
It is incredible how the ANC has lost touch with the ordinary man on the street. The right to vote which the ANC has fought for with honour, now has to be forced down their thoats by a court. One would think that given the history of the ANC and its fight for equality, it would go beyond what is required by law.
It’s really a shame.
The bigger shame, however, is people (particular black people), who blindly accept these contradictions with which the ANC presents itself.
We must just take yesterdays blog regarding the Free State and ARV’s and the fact that they passed a bill (which it seems treasury will veto) to give a donation of 30 Million to political parties to be used for the elections. Notwithstanding, having an all but a collapsed health system.
Power has corrupted the ANC, even a blind person can see this!
As a patriotic emigrant who is still a citizen of South Africa I am extremely happy and proud that SA’s constitution allows me my vote. I for one will be tramping down to Trafalgar square in April to make a cross.
Also you need to bear in mind that living in a tolerant and integrated society like the UK actually motivates people like me to make sure South Africa also achieves an integrated, prosperous and peaceful society. In some ways we are more qualified to offer an opinion on how transformation should occur as we are out of the day-to-day racial hate that permeates SA society.
“Heroism on command, senseless violence, and all the loathsome nonsense that goes by the name of patriotism – how passionately I hate them!” (Albert Einstein)
Why are people outside the country? It is unfortunate that some of our countrymen continue to make unfortunate generalisations about those who are outside the country. There is the sad bunch that left because they lost confidence int he country. There are also patriots who have left for a number of good reason including education; having to work for SA companies in foreign countries; working for other companies in foreign countries; getting experience and development that they are denied in SA (this can be blacks and white). Voting by expats is by no means DA or anti-ANC.
We should applaud the decision of the CC and hope the issues remaining will be clarified in due time.
LMAO Lobengula, again you do not fail to disappoint. I would presume that your definition of a patriotic South African expat would be one who would vote for the ANC?
And how do you figure that anybody who doesn’t vote for the ANC is trying to reverse the gains of the poor? There have been so few gains made by the poor (relatively speaking) that IF it were the stated aim of every single person voting non-ANC, it would take all of 5 minutes to do so.
You must pull your head out of whomever’s arse it is currently stuck in, and have a look around. The ANC itself subscribes to the idea of a multi-party democracy, which would seem to imply that it subscribes to the idea that people should vote for whomever they wish for. Otherwise we’d be like North Korea.
I love SA, and I believe it is being severely hamstrung by the ANC. You will no doubt disagree with me, as you sit and look at all your tangible promises received from the government (yes?). That is fine, but to start shouting the odds on peoples’ motives for not voting ANC is a bit arrogant (then again, so is the ANC).
Expats deserve the right to vote, as citizens of South Africa – finish and klaar (to quote one of the ANC’s darlings). Of COURSE there are those who will be given this right who left SA because they are racists…but such is life. There are literally hundreds of thousands more who left SA with great sadness in their heart and a lump in their throat as they flew out of Johannesburg, not knowing when they’d be able to afford the trip back.
Black people were denied the vote based on skin colour, and there was chaos for many years…it was called Apartheid. Now, expats were to be denied the vote, by the same government that claims the moral highground on acheiving the right of universal suffrage for it’s citizens…by the same people who would have to stand by and watch a select few citizens vote because they were white, and therefore deemed acceptable to have a say…seems to me like the ANC has a conveniently short memory when it comes to some things.
Good job CC, I shall be hopping across the pond to NYC to cast my vote (in an attempt to reverse the ‘gains’ made by poor people, as one does). Stoked!
RE: Chris Mcdaniel // Mar 13, 2009 at 8:33 am
No Chris, I have not voted before in a South African election. In 1999 I was 17, in 2004 I was already in the UK and could not vote. Now in 2009 I’ll miss another election.
Trust me this is the last one. even if I have to spend £600 to fly to South Africa and register to vote come 2014
Well, depending on who you would vote for, at least you’re not contributing to reversing the gains of the poor
… its a pity there is no scientific way of finding who is patriotic and who isnt.”
Well, I’ve applied my mind to it, and there may well be a way. What’s more, one doesn’t even need to be a rocket scientist to figure it out: just subtract the number of expat votes coming in from the total number of those living outside South Africa. The number you are left with comprises those who can’t be bothered to vote because they’ve stopped giving a damn about their old country and are not planning to ever return.
German expats, for example, are no longer allowed to vote when they have been out of the country for ten years or more. I don’t see why anyone should have a problem with a cut-off point.
As some have pointed out, people are overseas on voting day for many reasons.
These people are, nonetheless, still affected by South African legislation.
Therefore, apart from any Constitutional basis, they should have a say in South African affairs. No taxation (or legislation) without representation!
To my surprise, ISTM IAWTC, IIUC.
But, dear constitutionally second class citizens, DBEYR about this {censored} court.
As a citizen of South Africa, one should be allowed to vote – only once one has given up that right by officially emigrating, should you not be allowed. Many expats invest in SA by buying property, investing in the MM, buying shares etc. Tax is also paid on all SA investments.
I personally would love to see voting based on contributions to the state coffers.
My fantasy: All SA citizens have one vote and thereafter for every R20 000 per annum each individual tax payer contributes, they get an additional vote. That way your criminals and lazy unemployed may still have their say BUT the more you pay the state, the more say you have as to whom you entrust as your leadership at the time of elections. I would also like to see elections at least once every three years, to enable the people to get rid of non-performers.
While some people like the idea of tax-based voting, it’s never going to fly, because that’s undemocratic. What’s also undemocratic is that we’re not allowed to vote directly for the MPs who are supposed to represent us but only represent their parties. And you’re right, Catherine, five years is too long to have to grit one’s teeth about non-performing incompetents who are only in it for the money.
Thats why unfortunately it will always remain a fantasy, Clara. It just makes so much more sense for someone contributing as example R100 000pa to the state’s coffers that they have more say as to how and where it should be spent than the thief/rapist sitting in jail costing tax money.
Lets dream on!
Indeed nice to be rich Catherine, probably makes life easier for you. However it may seem, according to the Constitution of the land, you are no better than a person convicted of a crime, we all share the same set of fundamental rights as described in chapter 2.
I’ve just contacted the IEC 2 mins ago and they told me you cannot register any more to vote and the special votes are only available to those already registered. And I’m in SA
Most media reports indicate that to cast a special vote you must be registered, have informed the IEC of your intention to vote by (before?) 27 March, and have your passport and green bar-coded ID book with you on voting day.
Is this completely correct? Do you have to have your green bar-coded ID book with you? I have always understood that you can vote with a temporary ID (which is issued immediately upon application from Home Affairs at your foreign mission.)
Can I not apply for a temporary ID from my foreign mission on voting day and use this to vote?