Southern African Catholic Bishops’ Conference

PARLIAMENTARY LIAISON OFFICE

SUBMISSION TO THE PORTFOLIO COMMITTEE ON HOME AFFAIRS

ON THE

ELECTORAL LAWS AMENDMENT BILL (B75 – 2003)

 

 Introduction

  1. In its judgement in the case of August v The Electoral Commission (1999 (3) SA 1 (CC)) the Consitutional Court stated as follows:
  2. "The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody 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." (at paragraph 17)

  3. The Catholic Church strongly endorses these sentiments; indeed, we believe that they apply in a special way in South Africa precisely because of our history, in which the majority were systematically disenfranchised. Through its work in voter education programmes, alongside numerous other civil society organisations, and by offering its facilities for use as registration and voting stations, the Church seeks to give practical effect to its view, firstly, that every effort must be made to ensure that all qualified voters have the opportunity to cast their ballot; and, secondly, that all voters must carry out their duty to vote in a responsible and thoughtful manner.
  4. Against this background we wish to highlight a few points of concern that emerge from the Bill.
  5.  

    Permanent Residents

  6. In terms of section 8 of the principal Act, dealt with in clause 4 of the Bill, only South African citizens may be registered as voters. In our view there is no sound reason for excluding permanent residents from the vote. Many people who live here and are committed to this country may choose not to take out South African citizenship for good reason. For example, they may wish to retain citizenship of another country, or they may risk losing social benefits; family ties may also play a part. The point is that such people live here permanently, are affected by the laws and governance of the country, and in most cases contribute to the life of the nation. The vote should be regarded as an entitlement for such people, not as a reward for taking out citizenship.
  7.  

    Those Absent from the Republic

  8. We note that provision is made for voters absent from the Republic on Government service to apply for a special vote. We understand that the drafters have distinguished between such voters and others who may be abroad at election time on the basis that those in government service may be ‘consistently not able to vote’ (8.3 of the explanatory memorandum to the Bill.)
  9. We suggest that there are many other people who will be absent from the Republic for reasons essentially beyond their control. For example, people studying abroad and those who have sent overseas by their employers. Likewise, there will be people within the Republic whose work (or study) makes it impossible for them to be in their voting district on election day.

    We strongly urge that provision be made for such voters to apply for special votes. We do not accept that such measures would ‘double the cost’ of the election, as it is put in the explanatory memorandum; nor do we agree that special voting arrangements would necessarily impact negatively on the ‘quality and credibility of an election’. Indeed, the opposite is true: to deny a portion of the electorate the right to vote because of circumstances beyond their control may very well discredit the election.

    In any event, if special votes are already provided for in principle – and will be granted to the categories set out in clause 9 of the Bill – then all that is need is an extension of the process, rather than the institution of something new and untested.

     

    Prisoner’s Voting Rights

  10. The proposed section 8(2)(f) of the principal Act (dealt with by clause 4 of the Bill) provides that people ‘serving a sentence of imprisonment without the option of a fine’ may not be registered. By implication, then, those serving imprisonment who had the option of a fine, but could not afford to pay it, will be allowed to register. However, in terms of the proposed section 24B(2) ‘only prisoners who are awaiting trial may vote’. This creates the anomalous situation that certain prisoners (those who could not afford to pay a fine) will be allowed to register to vote, but will not be allowed to vote.
  11. Apart from this anomaly, however, this is also a clear case of unfair discrimination. If you are financially able to pay a fine you will be able to vote; but if you are too poor you will lose your vote.

  12. We note that paragraph 4.3 of the explanatory memorandum proposes that ‘the disqualification that applies to membership of the National Assembly (section 47(1)(e) of the Constitution) be used as a guideline’ for determining which prisoners may vote; and that therefore ‘prisoners serving sentences of more than 12 months’ imprisonment without the option of a fine will be disqualified from voting’. This is not what is provided in the Bill: as already mentioned, the proposed section 24B(2) excludes all sentenced prisoners from voting.
  13. It must also be pointed out that section 47(1)(e) of the Constitution goes on to say that ‘no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired.’ If, then, this section of the Constitution is to be used as a guideline for prisoner voting, it should be used consistently; prisoners who have not yet exhausted the appeal process should be allowed to vote.

  14. We submit that the right to vote is not one of the rights which a person loses upon imprisonment. In the 1994 election all prisoners (with the exception of those convicted of murder, rape and aggravated robbery) were allowed to vote. In the 1999 elections all prisoners were allowed to vote following the Constitutional Court judgement already referred to. Prisoners have an interest in the governance of the country and the passing of legislation; many of them will return to society between one election and another, having paid their debt. We do not believe that the fact that he or she has committed a crime is sufficient reason to deprive a prisoner of the vote.
  15. If it is argued that allowing prisoners to vote will be a logistical impossibility, we would simply point out that it is intended that awaiting trial prisoners be allowed to vote. Since such prisoners are held in virtually every prison, mobile voting stations will have to visit all prisons. In addition, it is reported that about one third of all those currently held in prison (about 60 000 out of 175 000) are awaiting trial. The logistical challenge is thus already a significant one, which would not be much exacerbated by having to take the votes of sentenced prisoners as well.

     

    Conclusion

  16. We take this opportunity to wish the Electoral Commission every success in the arrangements and conduct of the election. We are confident that the smooth, credible and successful elections of 1994 and 1999 will be repeated next year, and we reiterate the willingness of the Church to assist in whatever way may be necessary.