The Centre for Constitutional Rights notes with concern the lack of progress by the Department of Home Affairs and Independent Electoral Commission in drafting and tabling legislative amendments that will enable all South Africans abroad to vote in future national and provincial elections.
In 2009, the Constitutional Court found section 33(1)(e) of the Electoral Act and related provisions of the Regulations in terms of the Act to be an unjustifiable limitation of the right to vote as provided for in section 19 of the Constitution. In its judgement in Richter v The Minister for Home Affairs & Others, the Court emphasised the importance of the symbolic and democratic value of the right to vote – a right which should be afforded to all South Africans, whether residing in South Africa or living abroad. The Court subsequently held that section 33(1)(e) and related regulations restricted certain categories of registered voters to participate in national elections if they were absent from South Africa on polling day. The Court hence ordered that all South African citizens who were registered voters and who would be abroad on polling day, would, subject to certain conditions, be entitled to vote in the election for the National Assembly.
The Court, however, limited its ruling to those South Africans abroad who were already registered to vote and furthermore restricted those registered voters by only allowing them to vote in the national elections, thus excluding them from voting in the provincial elections. The Court’s decision was primarily based on the unacceptable administrative and logistical burden which a wider ruling, allowing all South African abroad to register and vote in provincial and national elections, would have placed on the Independent Electoral Commission – especially given the limited time it had to prepare before polling day on 22 April 2009. The Court, however, also premised its ruling on the principle of separation of powers and the prerogative of the National Executive to initiate, develop and implement policies and legislation and Parliament to adopt such legislation.
Thus, following the 2009-elections, the Centre for Constitutional Rights formally engaged the Department of Home Affairs with a request that the Department fulfil its executive duty to ensure that all South African citizens could exercise their constitutionally entrenched right to vote. The Department consequently responded positively to the Centre’s request and correctly indicated that it would be addressing the matter in conjunction with the Independent Electoral Commission and in line with the Richter-ruling (and other related cases heard before the Constitutional Court). There has, however, been hardly any progress in this regard since 2009.
There is little doubt, bearing in mind the Court’s ruling in the Richter-judgement, that the current Electoral Act will again be challenged in the run up to the next general election in 2014, if it is not amended by that time. Given the fact that Parliament tends to deliberate on new legislation over a period of months, if not years, it is disconcerting that neither the Department of Home Affairs nor the Independent Electoral Commission thus far appear to have made any progress in the drafting of enabling legislation.
The right to vote is one of the most basic and fundamental rights in a democracy. In terms of section 1(d) and section 19 of the Constitution, this right applies to every adult South African citizen, irrespective of place of domicile. The Constitutional Court has previously – both in August v The Electoral Commission & Others and New National Party of South Africa v Government of the Republic of South Africa – expressed itself on the importance of this right. The Centre for Constitutional Rights will continue to engage the Department of Home Affairs and the Independent Electoral Commission in insisting on the promulgation of enabling legislation. It will support all efforts – including a Private Bill to to this effect that has been tabled by the Democratic Alliance – to ensure that the right to vote in terms of section 19 will be afforded to all adult South Africans, whether living in South Africa or located abroad.
Adv Johan Kruger
Centre for Constitutional Rights