IEC, know your Constitution (I)

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.

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