Wednesday, November 26, 2008

Why expats should get the vote

Expats should not be relegated to second class, disenfranchised status.

It is good news that Dr Brigalia Bam, head of the Independent Electoral Commission, is giving her positive consideration to Helen Zille's request that South Africans living overseas be allowed to vote in next year's general elections. At the moment, the IEC makes provision for South Africans overseas to vote only if they are temporarily outside South Africa on election day on holiday or business or if they are serving abroad as military personnel or diplomats. This means, in effect, that as many as a million South Africans living abroad for longer periods are effectively disenfranchised.

International practice is increasingly to recognize the right of citizens living abroad to vote in national elections. In some cases (including the United Kingdom, Canada, Australia, New Zealand and Germany) the right expires after a specified period - ranging between 3 and 25 years. In other countries, citizens overseas retain their right to vote in perpetuity (including the Czech Republic, Georgia, Hungary, Indonesia, Italy, Kazakhstan, Lithuania, Moldova, Poland, Portugal, Russia, Spain, Sweden, Thailand, Ukraine, and the United States).

In an increasingly globalised world, prolonged residence overseas is not viewed as a sign of disloyalty, but as a reflection of the growing international economic integration.

The problem for South Africans living abroad is that the Electoral Act of 1998 stipulates that "the Chief Electoral Officer may not register a person as a voter if that person is not ordinarily resident in the voting district for which that person has applied for registration".

However, as the Constitutional Court declared in the 1999 case regarding the right of prisoners to vote (August and Another v. the Independent Electoral Commission) that the Electoral Act must be "interpreted in a way which enhances enfranchisement and underlines the positive responsibilities of the Commission in facilitating registration and voting. The phrase ‘ordinarily resident' must therefore be interpreted in a way which facilitates both the constitutional and legislative objectives".

The Court was also eloquent with regard to the constitutional objectives involved:

"Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and or personhood. Quite literally, it says that everyone counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement."

The foundational principles of the Constitution require universal adult franchise, a national common voters roll and regular elections. Section 19 of the Bill of Rights states that "every citizen has the right to free, fair and regular elections, and every adult citizen has the right to vote in elections".

There is no possibility of relegating citizens who happen to live abroad to some kind of second class, disenfranchised, status - since equality is another foundational principle, entrenched in Section 9 of the Constitution which proclaims inter alia that ‘equality includes the full and equal enjoyment of all rights and freedoms' - undoubtedly including the fundamental right to vote.

The Constitutional Court decision regarding the right of prisoners to vote ought to afford Dr Bam some guidance when she and her team at the IEC consider the request that overseas based citizens be allowed to vote. There can be no great hardship or practical difficulty in adding this category of voters to those in the diplomatic corps, the military based in foreign climes and business people and holiday makers who find themselves overseas on election day.

It is simply a question of finding some practical arrangement to enable South Africa citizens abroad to exercise their right to vote. Sachs J, in August and Another v. the IEC, quoted with approval Centlivres CJ's view in Minister of the Interior and Another v. Harris and Others, that there could be no doubt that the authors of the Constitution intended that those rights (rights entrenched in the Constitution) should be enforceable by the Courts of Law. "They could never have intended to confer a right without a remedy. The remedy is, indeed, part and parcel of the right. Ubi jus, ibi remediam."

There is a readily available remedy. Why not simply allow South Africans living abroad to register in the voting district in which they were resident when they last lived in South Africa? They could then vote at our embassies overseas - in the same manner as South Africans who are temporarily abroad on election day. It is not beyond the ability or resources of the public service to make arrangements to accommodate overseas-based citizens in an appropriate manner.

The IEC would be seen to be fulfilling its functions and mandate in a constitutionally compliant way. And South Africans living abroad would also be able to use their votes as "a badge of dignity and or personhood" and show that they also count as members of "the same democratic South African nation" whose destiny is intertwined "in a single interactive polity".

0 Opinion(s):