Rethinking the Right to Vote

• Jurisdiction: South Africa
• Published date: 27 May 2019
• Citation: (2015) 26 Stell LR 486
• Date: 27 May 2019
• Author: Henk Botha
• Pages: 486-517

486

RETHINKING THE RIGHT TO VOTE

Henk Botha

BLC LLB LLM LLD

Professor of Law, University of Stellenbosch

1 Introduction

South African constitutional scholars have been puzzling for some time

over a basic tension in the Constitut ional Court’s voting rights jur isprudence.

While some of its judgments show a commitment to a vigorous defence and

enforcement of an inclusive, egalitaria n and participatory vision of democracy

and an active notion of citizenship, others appear to be characterised by a

deferential posture and a shallow conception of democracy. The court’s

emphasis on the centrality of the right to vote to dignity and democratic

citizenship and its endor sement of the voting rights of marginalised categor ies

of persons such as prisoners1 is seemingly contradicted by its willingness,

in cases like New National Party of South Africa v The Government of the

Republic of South Africa (“NNP”)2 and United Democratic Movement v

President of the Republic of Sou th Africa(1) (“UDM”),3 to defer to legislative

choices. The deferential posture struck in these cases sits uneasily with the

widely shared assumption that democracy itself requires judicial vigilance in

the face of electoral rules th at tend to thwart electoral competition and distor t

the representative nat ure of government. It is also at odds with later judgme nts

dealing with political rights other than the right to vote, in which a robust,

participatory vision of democracy formed the basis for successful challenges

to the validity of conduct or legislation.4

Academic analyses of these judgments have focused, for the most part,

on the standards of review employed by the Constitutional Court, and the

level of judicial interference or restrai nt at work in these cases. The resulting

focus on institutional and separation of powers concerns has proved helpful

I am indebted to the National Research Foundation and the Alexa nder von Humboldt Foundation for

financial assistance.

1 August v Electo ral Commission1999 3 SA 1 (CC); Minis ter of Home Affairs v NICRO 20 04 5 BCLR 445

(CC).

2 1999 3 SA 191 (CC).

3 20 03 1 SA 488 (CC).

4 T he court str uck down two Acts of Parl iament in Doctor s for Life Internati onal v Speaker of t he National

Assembly2006 6 SA 416 (CC) and an Act of Parliame nt and a constitutional ame ndment in Matatiele

Municipalit y v President of the Republi c of South Africa (2) 2007 1 BCLR 47 (CC) for a fai lure on the

part of the legi slature to facilit ate adequate public involve ment in the legislative pro cess. In Ramakatsa

v Magashule 2013 2 BCLR 202 (CC), the Free State provincial elective conference of the ANC was

declared void in v iew of certain irreg ularities that were held to b reach both the constitut ional right to

participa te in the activitie s of a political party (s 19(1)) and the ANC’s constit ution and audit gui delines.

And in Orian i-Ambrosini v Speaker o f the National Assembly2012 6 SA 588 (CC), cer tain rules of the

National Asse mbly were invalidated t o the extent that the y required the Natio nal Assembly’s permiss ion

before a member cou ld introduce a Bill in t erms of s 73(2) of the Constitut ion. The court int erpreted the

relevant const itutional prov isions in view of the pr inciples of repre sentative and pa rticipator y democracy,

multipart y democracy, plura lism, democrat ic deliberation, r esponsiveness, ac countability a nd openness.

(2015) 26 Stell LR 486

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in explaining and critiquing some of the apparent anomalies in the court’s

jurisprudence, and in suggesting alternative approaches that would protect

voting rights more rigorously. At the same time, it has resulted in an under-

emphasis on the substantive content of the right to vote. Academic criticisms

of the shallow conception of democracy that is supposedly at work in the

NNP and UDM judgments, is as a rule supplemented neither by a critical

analysis of the court’s substantive understanding of the right to vote, nor by

the development of an alternative interpretive framework for understanding

this right.

This article takes a different approach. It places the emphasis on the

Constitutional Court’s substantive understanding of the right to vote, and

is interested in the role played by constitutional values like dignity and

democracy in the int erpretation of this right. On the one ha nd, it asks whether

and to what extent the Constitutional Court’s dignity-based construction of

voting rights can explain the apparent anomalies and contradictions referred

to above. D oes the court ’s focus on dignity, coupled with its failure to esh

out the meaning of democracy in the voting rights context, result in an

interventionist stance in some cases and an overly deferential one in others?

Does it blind the court t o the ways in which seemingly neutral measures feed

into systemic disadvantage and further the political disempowerment of the

poor and marginal ised? Does it shift the attention away from str uctural issues

relating to democratic accountability and electoral competition, and pay too

much attention to the symbolic value of the vote?

On the other hand, the article asks whether an articulation of dignity with

the values of democracy, equality and citizenship might provide the basis for

a more rigorous understanding of the right to vote. First of all, how could

such an understanding enable a jurisprudence that is responsive to the ways

in which electoral laws intersect with systemic disadvantage and structural

power, to reproduce private inequality in the political sphere? Secondly, how

would it react to struggles for the extension of the right to vote to those who

are subject to state power, but are excluded from membership in the political

community by vi rtue of their nationality?

2 The Constitutional Court’s voting rights jurisprudence

2 1The dignity of citizenship: August and NICRO

In August v Electoral Commission (“August”), the Const itutional Court held

that the failure of the Electoral C ommission to take steps to allow prisoners to

register and vote amounted to a n impermissible restrict ion of section 19(3)(a).5

The court was clear that convicts do not forfeit all their rights upon entering

prison – even under common law, prisoners retained a residue of personal

rights that were not excluded by law.6 It rejected the reasoning of the court a

quo, which had held that the prisoners’ inability to register and vote was of

5 S 19(3)(a): “Every adul t citizen has the right to vo te in elections for any legislat ive body established in

terms of the Co nstitution, an d to do so in secret”.

6 Au gust v Electoral Com mission1999 3 SA 1 (CC) paras 18-19.

RETHINKING THE RIGHT TO VOTE 487

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their own making. Instead, it stressed that the right to vote imposes positive

obligations on the state, and that it is untenable to equate prisoners’ position

with that of othe r citizen s who nd it difcult or i mpractical to exercise

the vote. Since their inability to register and vote arose directly from their

incarceration by the st ate and from the failure to make provision for them, the

Electoral Commission could not escape r esponsibility for their plight.7

It was unnecessary for the court to pronounce on the question whether

the d isenfranchisement of pri soners constituted a reasonable and justiable

limitation of the right to vote i n accordance with section 36 of the Constitut ion

of the Republic of South Africa, 1996 (the “Constitution”). This was because

the restriction was not sourced in the Electoral Act 73 of 1998 (“Electoral

Act”), but resulted from the inaction of the Electoral Commission. In the

absence of a law of general application there was no need to engage in an

assessment of proportionality or to balance the state’s objectives against the

severity of the limitation. The court expressly left open the possibility that

legislation, which disenfranchises certain categories of prisoners, could be

justiable under section 36.8

Despite the narrowness of its holding, the judgment nevertheless suggests

that, given the impor tance of the right and the history of its suppres sion under

apartheid, li mitations would be subjected to rigorous scr utiny. In an oft-quoted

passage, Sachs J endorsed the u niversality of the vote in the following terms:

“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

of 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”.9

In the view of the court, laws and measures which deprive South Africans

of equal citizenship not only impoverish democracy and are at odds with

the inclusive community of equals established by the Constitution, but also

impair the human dignity of those deprived of the basic rights of citizenship.

Dignity is here ar ticulated with a range of other values, including citize nship,

representative democracy, political equality, nationhood and belonging. By

grounding the right to vote in this formidable cluster of values, the judgment

appears to set the bar quite high for the justication of the disenfran chisement

of categories of South Afr ican citi zens. A compelli ng justi cation would

presumably be needed for limitations which signal that some adult citizens

are incapable of meaningful participation in political life or are unworthy

of integration into the political community. Yet, in view of the gap between

the breadth of Sachs J’s rhetoric, the depth of his democratic vision and the

7 Paras 20-22.

8 P ara 31.

9 P ara 17.

488STELL LR 2015 3

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