The South African Human Rights Commission (SAHRC) welcomes this opportunity, at short notice, to come and present its position on certain aspects of the Electoral Laws Amendment Bill (the Bill). The SAHRC will comment on the Bill as far as it addresses the rights of prisoner’s to vote and the rights of citizen’s abroad to participate in our third democratic election next year.

The South African Human Rights Commission (SAHRC) is one the institutions created in terms of Chapter 9 of the Constitution to support democracy in South Africa. The SAHRC is mandated by section 184 of the Constitution to:

1. Promote respect for human rights and a culture of human rights;
2. Promote the protection, development and attainment of human rights; and
3. Monitor and assess the observance of human rights in the Republic.

Section 1(d) of the 1996 Constitution provides that one of the values on which the Constitution is founded is universal adult suffrage and a national common voters role.

Political rights

19(3) every adult citizen has the right-

1. to vote in elections for any legislative body established in terms of this Constitution, …

The history of denial to the vast majority of this countries citizens is the context in which the right to vote must be interpreted.

To limit the right to vote Parliament would have to do so in terms of a law of general application which meets the requirements of reasonableness and justifiability as set out in section 36 of the Constitution (the limitations clause).

• 1994 election, some categories of prisoners excluded from voting. These included two grounds relating to mental incapacity; third to drug dependency and the fourth to imprisonment for specified serious offences. Section 13(d) of the Electoral Act 1993 set out that persons convicted and sentenced in respect of robbery with aggravating circumstances and rape; or, any attempt to commit such an offence were excluded from voting.
• 1999 election, all prisoners allowed to vote
• August decision, Constitutional Court

The constitutional court explicitly stated in August that the judgment should not be read to as suggesting that Parliament is unable to disenfranchise certain categories of prisoners.

The case specifically did not determine whether Parliament could limit the rights of prisoners to vote.

Any limitation of the rights of prisoners to vote would have to pass constitutional scrutiny

"In a country of great disparities of wealth and power it [the right to vote] 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 policy. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement." Par 17 August Case

"It is a well established principle of our common law, predating the era of constitutionalism, that prisoners are entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they have been placed." Par 18 August Case

"There are a variety of ways in which enfranchisement of prisoners could be achieved in practice. Polling stations could be set up in prisons or special votes could be provided to prisoners. Prisoners are literally a captive population, living in a disciplined and closely monitored environment, regularly being counted and recounted. The Commission should have little difficulty in ensuring that those who are eligible to vote are registered and given the opportunity to vote, and that the objective of achieving an easily managed poll on election say is accomplished." Par 28 August Case

"We recognise that in a country like ours, racked by criminal violence, that the idea that murderers, rapists and armed robbers should be entitled to vote will offend many people. Many open and democratic societies impose voting disabilities on some categories of prisoners. …. this judgement should not be read as suggesting that Parliament is prevented from disenfranchising certain categories of prisoners." Par 31 August Case

The court noted that thousands of prisoners are in prison due to their inability to pay small fines "one should not underestimate the difficulties that would confront the legislature in our particular context in determining whether or not certain classes or prisoners may legitimately have their right to vote limited." Par 32 August Case

One of the founding principles of the South African democracy is universal adult suffrage. It is recognised that a distinction can be made between different categories of prisoners based on the seriousness of crime. The SAHRC holds the position that prisoners who have committed more serious crimes should have their right to vote limited. This limitation would be consistent with the constitution and reasonable and justifiable in an open and democratic society. The SAHRC position is based on the principle that punishment is proportionate to the seriousness of the offence, this must mean that the more serious the offence the more serious the nature of the punishment can be. This position takes into account our historical context that some people are in poverty due to poverty (e.g. can not for example pay their fine).

The SAHRC supports the provisions of the Bill that allows for awaiting trial prisoners to vote. This is in line with the constitutional right to be presumed innocent until proven guilty.

• 1994 position should be reverted to.
• Serious crimes including, serious fraud should be included
• Principle of proportionality must be adhered to in determining which prisoners are excluded
• Awaiting trial prisoners should vote

The SAHRC has already received a complaint from a student who will be studying abroad and who wishes to exercise his right to vote.

The current Bill recognises a number of categories of persons who may vote by special vote. These are set out in Section 9 of the Bill and include:

1. Physical infirmity or disability, or pregnancy
2. Absence from the Republic on Government service or membership of the household of the person so being absent
3. Absence from that voting district while serving as an officer in the election concerned
4. Being on duty as a member of the security services in connection with the election

The Electoral Act is further amended by removing the IEC’s power to prescribe other categories of persons who may apply for special votes.

A number of further different categories of persons who are unable to vote in the district in which they are registered on the day of the election may still want to exercise their right to vote by way of special vote. These possible categories may include:

1. Person’s on State duty (e.g working for United Nations, peacekeepers in Congo, members of state institutions on duty abroad)
2. Students studying abroad
3. Citizens residing temporarily abroad
4. Persons residing permanently abroad with no intention of returning to South Africa.
5. Persons on business trips abroad
6. Persons on vacation abroad

It is acknowledged that it is a difficult issue to determine which categories of citizens abroad may vote. Many people may be temporarily out of the country on election day for a variety of reasons. However, categories of persons who can be identified with precision and certainty ought to be able to vote. In the circumstances the SAHRC is of the view that persons on state duty and students abroad should be allowed to vote. These categories can be easily identifiable with precision.

It is proposed by the SAHRC that the following identifiable categories of persons abroad be allowed to vote by special vote:

1. Person’s on State duty
2. Students studying abroad

The proposed categories are easily identifiable small categories who ought to be accommodated without too much difficulty.

The SAHRC calls upon the Home Affairs Portfolio Committee in the National Assembly to consider the position of the SAHRC regarding prisoners and citizens abroad. In respect of the limitation on prisoners rights the SAHRC call on the Committee to seriously consider broadening the categories of prisoners who may vote. Finally, the Committee is called upon to consider the submission made here today in respect of citizens abroad.