Why can’t South Africans abroad vote?

Several people have asked me whether it is true that South Africans who find themselves outside the country on election day next year will be prevented from voting and whether this does not infringe on their right to vote entrenched in section 19 of the Constitution. Many South Africans live and work abroad and in 1993 legislation was drafted to cater for them, only to be hastily amended, apparently  on instructions from the ANC Executive.

In South Africa as a general rule one can only vote at the voting station where one is registered on election day. However, 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.

The IEC may also prescribe other categories of persons who may apply for special votes, but has not done so. This means that South African citizens who are working and living abroad cannot vote in the election, but government officials and those on holiday outside the country during the election can vote – the latter only if they make special arrangements to do so before they leave.

This means that South African citizens who do not live in South Africa – a majority of whom are probably white and perhaps not ardent supporters of the ANC – are denied their right to vote. The Constitutional Court has said that the right to vote is fundamental to democracy and that this requires proper arrangements to be made for its effective exercise. This is the task of the legislature and the executive which have the responsibility of providing the legal framework, and the infrastructure and resources necessary for the holding of free and fair elections.

South African citizens who live abroad can therefore argue that their constitutional right to vote is being infringed because the Electoral Act in effect denies them a right to vote. If such an application is brought, the government will have to provide solid reasons why these citizens are being denied their right to vote as they will have to show that the limitation of this right is justified in terms of the limitation clause in the Bill of Rights.

In the Nicro case the Department of Home Affairs argued that some categories of prisoners are being denied their right to vote and justified this by saying that special voting procedures involve risks for the integrity of the voting process. As there is a danger that special votes (in this case, cast in foreign countries) may be tampered with, special measures will have to be taken that could be cumbersome and costly. Moreover, the provision of special arrangements of this nature puts a strain on the logistical and financial resources available to the Commission for the purpose of conducting the elections and this too has to be taken into account.

But I am not sure this argument would be accepted by the Constitutional Court and those who wish to challenge the legislation may well have a reasonably strong case. In the Nicro case the Constitutional Court stated:

In the light of our history where denial of the right to vote was used to entrench white supremacy and to marginalise the great majority of the people of our country, it is for us a precious right which must be vigilantly respected and protected. Resources cannot be ignored in assessing whether reasonable arrangements have been made for enabling citizens to vote. There is a difference, however, between a decision by Parliament or the Commission as to what is reasonable in that regard, and legislation that effectively disenfranchises a category of citizens.

Given the fact that South African foreign missions already make arrangements for government personel and their families to vote abroad, the IEC and the Department of Home Affairs will have to produce plausible evidence to show that allowing South African citizens who work and live abroad to vote would entail sizable extra cost and a great increase in the possibility of election fraud. If they fail to provide such evidence the Constitutional Court will probably not agree that this limitation of the right to vote is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

In most democracies citizens who live abroad are allowed to vote. I cannot see why the IEC do not make arrangements for South African citizens who live abroad to vote as well. Of course most of these votes would not go to the governing party but that is not a valid excuse to deny some of our citizens the right to exercise one of their most important duties as a citizen.

Maybe Hugh Glennister has some extra cash lying around and can launch a court application in this regard. This time he will actually have a fair chance of succeeding with his application.

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