Triumph of generosity

2009-03-16 00:00

Last week, the Constitutional Court handed down a unanimous judgment ruling that South Africans abroad had the right to vote.

The court ruled that Section 33 of the 1998 Electoral Act unfairly restricted the right to cast special votes while abroad to a very narrow class of citizens. It declared this section to be unconstitutional. As a result all citizens who are registered voters, and who will be out of the country on April 22, will be allowed to vote in the national (although not provincial) elections “provided they give notice of their intention to do so, in terms of the Election Regulations, on or before 27 March to the Chief Electoral Officer and identify the embassy, high commission or consulate where they intend to apply for the special vote”.

This is a decision that is not going to have a great effect on the election outcome. Even if there is a massive uptake of special votes, the opposition could only hope to gain one or two seats in the national assembly as a result. (It will take about 50 000 votes to earn one seat in Parliament.) But it is a decision that is significant both for the message it conveys to South Africans living abroad, and for what it says about the current state of our country today.

The decision to disenfranchise overseas South Africans was a thoroughly mean-spirited one. The old ruling clique of the ANC clearly felt their departure to be some kind of rebuke — and so sought to punish them. In his affidavit to the Constitutional Court, Inkatha Freedom Party leader and former Minister of Home Affairs, Mangosuthu Buthelezi, wrote that a senior official had explained the ANC’s rationale as follows: “They left us in the lurch and do not deserve to vote”. This petty and vindictive attitude was carried over until recently. According to Democratic Alliance leader Helen Zille, IEC chairperson Brigalia Bam had asked her in a meeting “why they [the IEC] should give the vote to South Africans who ran away and who were badmouthing the country”.

By contrast Judge Kate O’Regan’s reasoning in the Constitutional Court’s judgment is broadminded and generous. She noted that South Africa is now part of a global economy which allows citizens of this country to study and work abroad.

“The experience that they gain will enrich our society when they return … The evidence before us, too, shows that many South African citizens abroad make remittances to family members in South Africa while they are abroad, or save money to buy a house. To the extent that citizens engaged in such pursuits want to take the trouble to participate in elections while abroad, it is an expression both of their continued commitment to our country and their civic-mindedness from which our democracy will benefit.”

Hopefully, extending the right to vote to citizens abroad will foster a continued sense of belonging, and help keep alive the desire to return. It will provide some small incentive for South Africans living and working overseas to remain engaged in the political life of this country — something which is easy to do in the Internet era.

There are a number of striking things about the judgment — other than the decision itself. Firstly, although the Department of Home Affairs did oppose the application to have the relevant section of the Electoral Act declared unconstitutional, it did not put up a very convincing fight. As O’Regan noted, “during oral argument, counsel for the minister conceded that restricting the class of registered voters who are abroad on polling day to obtain special votes was a limitation of section 19 of the Constitution and that he could proffer no justification for the limitation”.

Secondly, the decision of the court was unanimous. And, thirdly, every major political party in South Africa — at last count the ANC, DA, Congress of the People, IFP, and Freedom Front Plus — welcomed or at least willingly acquiesced to the result. This is as close to a consensus as one can get in this country.

None of this is particularly surprising — given that the court reached the right and proper decision — until one remembers that we have passed through two election cycles under this (now) unconstitutional section of the 1998 Electoral Act. Yet no one sought to challenge it before, nor really thought of doing so. There are probably a number of reasons for this. Given the ANC’s moral and political dominance in 2004 there was little incentive for the opposition (or any individual) to launch this kind of challenge and only a dim prospect of success. Since then there has been a change in the air and what was previously regarded as inconceivable is now generally seen as desirable.

Given the ideological complexion of most of the judges, for many years racial and political minorities did not see recourse to the Constitutional Court as a realistic avenue for protecting their rights. For this reason alone, the mere fact of the challenge to the Electoral Act by Willem Richter and the FF+, and the unanimous ruling of the court in their favour, is significant. Whether this current climate of democratic openness will endure much beyond April 22 if the ANC wins another two-thirds majority is another question completely.


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