Electoral reform: NOTA small matter this! The case for including the NOTA (None of the above) option on the ballot paper

2014-03-23 17:04

Synopsis

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Voters deserve the right to declare on the ballot paper that they don't consider the named candidates or political parties as being worthy for their votes and endorsement. A 'negative' vote, under same conditions of anonymity would serve as challenging the legitimacy of political parties to govern or remain in parliament.

NOTA a small matter?

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The Supreme Court of India's recognition of a negative vote afforded to the electorate as a constitutional right should be followed in South Africa as well as it serves as by a rejection of all candidates/political parties. With #NkandlaReport now firmly on the table, I argue that this option be included in forthcoming elections, after May 7 that is, and that the IEC and the relevant administrative arm of government be approached with this in mind.

The recent NOTA (none of the above) order of the Indian Supreme Court supports my arguments for electoral reforms in our 20 year old democracy. Why not?

In India an attempt to to save MPs found guilty of offences that would instantaneously unseat them was thwarted because of public pressure.

It is said that nature abhors vacuum. So whilst the current flawed electoral laws remain, we should agitate and canvass non-partisan support for a groundswell movement to force government to consider placing the NOTA on the national discourse.

In India, the Congress Government's reluctance to bring meaningful electoral reforms, forced a sustained groundswell movement to apply for remedy and the courts have had to intervene wherever they could to give some push to the reforms and to restore the public’s faith in the system.

So what is stopping civil society agitating against corruption with #NkandlaReport being the tipping point, to do the same in South Africa? Yes, we can and yes,we should.

Lessons from the NOTA experience in India

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The NOTA case in India, was a classic example of the government’s failure to do the right thing at the right time. Corrupt parliamentarians could not be unseated because of the existing laws.

In 2001 the Election Commission of India (ECI) moved the Law Ministry for an amendment to the rules to provide for a button in electronic voting machines in order to protect the identity and secrecy of a voter who does not want to vote for any candidate.

That was the equivalent of the unmarked ballot paper of the earlier era. The ECI received no response to the proposal for amending the said rule, although the Minister in charge needed neither the Union Cabinet’s nod nor Parliament’s assent.

It persevered nevertheless. In 2004, the then Chief Election Commissioner, T.S. Krishnamurthy, reiterated the proposal after christening the button as ‘none of the above’ but, for the first time, clearly articulating that it was to “to enable a voter to reject all the candidates, if he chooses so.”

By then an application had already moved the Supreme Court in the matter. The case came up for hearing in 2009 but in the intervening years the protagonists for the ‘no vote’ button had raised the pitch claiming for it to be included.

Finally in September 2013 that people driven agitation for electoral saw fruition. The Supreme Court verdict arrived almost a decade after the petition was filed, in favour of the NOTA button but with far-reaching consequences.

NOTA and affording wider choice for voters and promoting democracy

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In limine I opine that , if NOTA is considered, it will make parties more responsible as well as responsive to the demands of the electorate which will make them nominate better and competent candidates.

Having read the judgment , I note that the learned judges themselves pointed out that it can widen participation "and curb impersonation". A careful reading of the judgment indicates that the judges strove to make this happen through some deft side-stepping and innovative interpretation of past judgments of the Supreme Court and provisions of the Constitution, on the nature of the right to vote, with the sole objective of giving the voter a wider choice. They said that “Democracy (was) about choice. This choice (could) be better expressed by giving the voters an opportunity to verbalise themselves unreservedly and by imposing least restrictions on their ability to make such a choice.” The Supreme Court was emphatic that the no vote option gave " the voter the right to express his (or her) disapproval with the kind of candidates that are being put up by the political parties.” Going further, the judges declared that the “provision of negative voting would be in the interests of promoting democracy.”

That judgment may sound very plebian but the skilfully worded order has puts a seal of approval on the distinction between the right to vote, which it confirmed was a statutory right, and the act of exercising that right by the casting of a vote which it confirmed as a constitutional right as enshrined in Article 19(1) (a)[of the Indian Constitution, that is] namely the right to freedom of speech and expression.

NOTA gives the Constitution a living face to ‘negative voting’ as declared by the Indian Supreme Court that “not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21, i.e., the right to liberty.”

Are we in South Africa any different in our demands and expectations? No.

Incidentally our Constitution permits us to refer to foreign judgments and dicta in arguing for our rights in South Africa.

So I maintain that the Indian Supreme Court’s recognition of “negative voting” as a constitutional right is by all means a giant step forward for the voter in South Africa and should be pursued.

Civil society needs to consider the merits of the arguments I raise. For this step would inevitably have to follow if political parties do not see the writing on the wall and belie the expectation that NOTA “will indeed compel the political parties to nominate a sound candidate,” as the Indian Supreme Court unequivocally declared.

If our political parties keep imposing tainted candidates on voters or, while selecting candidates, pay scant regard to their performance or integrity, the electorate can hit back with NOTA. A time will come with demands for fresh election with a fresh set of candidates if, in the first election, NOTA scores the highest votes. If that happens, even if the lawmakers are reluctant, the Constitutional Court may not be unsympathetic given the contours of that judgment.

With NOTA looming before them in forthcoming elections national,provincial and local elections the stage would be ripe for the electorate to challenge political parties’ commitment towards fulfilling the prescripts under the Constitution.

Yes, clearly a comprehensive electoral reform is the need but if the political class keeps dragging its feet, courts should be called upon to clean the Augean stables.

Yes we can do this!

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Just those who persevered in forcing government to rethink policies vis-a-vis HIV/AIDS I strongly believe yes, like our Indian counterparts who remained focused for over a decade, to moved the Supreme Court in this matter, we as civil society organisations would do well to educate voters of the power the court has placed in their hands and let the button beep louder and speak for them.

NOTA will thereafter not remain a small matter for long.

Saber Ahmed Jazbhay

(follow me on twitter @jazlaw24)

Sunday 23.3.2014

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