All parties agree on ‘special votes’ case

By the time the judges of the Constitutional Court had finished with them, all the parties in the case — about the right of South Africans living abroad to vote — including the minister of home affairs and the Independent Electoral Commission (IEC), agreed that it was unconstitutional that some citizens living abroad were entitled to vote in April’s election, while others were not.

The main applicant yesterday was Freedom Front Plus (FF+) member Willem Richter. Richter’s case was that sections 33(1)(b) and (e) of the Electoral Act were unconstitutional. Section 33(1) provides for “special votes” for certain groups of South Africans living abroad, like government employees. But others were excluded by the section on an arbitrary basis, Richter said.

While the home affairs ministry had originally defended section 3, at the hearing it conceded that Richter’s case was fair. In the end, debate on what Richter sought came down to practicalities. Following Richter’s application, a host of organisations, individuals and political parties sought to join the proceedings.

Two of them, the A Party and Kwame Moloko, went a step further than Richter, asking the court to also declare sections 7 and 8 of the Electoral Act as unconstitutional because they did not allow South Africans living abroad, who had not registered, to register as well as to vote. Moloko’s argument was that absent the right to register, the right to vote was something that “hangs in the air”.

In order to achieve both registration and voting, Moloko wanted the court to read words into the act. But it seemed to concern some judges that the A Party and Moloko came to the Constitutional Court directly, wanting more than Richter (the court has yet to rule whether it is in the interests of justice to even consider their cases).

Deputy Chief Justice Dikgang Moseneke said: “You are inviting us to rewrite the statute quite extensively. What about the separation of powers? If the application was brought in time, all of this rewriting would have been unnecessary. We could have simply declared the (sections) unconstitutional and given Parliament the time to do what it is constitutionally mandated to do.”

The concern of the home affairs department was to protect the integrity of a district-based electoral system. While home affairs conceded on Richter’s case, it said to allow citizens living abroad to register and to allow them a provincial vote would “strike at the heart” of the electoral scheme.

Judgment was reserved.

Source: Franny Rabkin, All parties agree on ‘special votes’ case, Business Day, March 5, 2009.

For text:

FMF Policy Bulletin/ 10 March 2009

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