As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.
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