Rethinking the Right to Vote

JurisdictionSouth Africa
Published date27 May 2019
Citation(2015) 26 Stell LR 486
Date27 May 2019
AuthorHenk Botha
Pages486-517
486
RETHINKING THE RIGHT TO VOTE
Henk Botha
BLC LLB LLM LLD
Professor of Law, University of Stellenbosch
1 Introduction
South African con stitutional scholars have been pu zzling for some time
over a basic tension in the Constitut ional Court’s voting rights jur isprudence.
While some of its judgments show a comm itment to a vigorous defence and
enforcement of an inclusive, egalitaria n and participatory vision of democracy
and an active notion of citizenship, other s appear to be chara cterised by a
deferential posture a nd a shallow conception of democracy. The court’s
emphasis on the central ity of the right to vote to dignit y and democratic
citizenship and its endor sement of the voting rights of marginalised categor ies
of persons such as prisoners1 is seemi ngly contradicted by its w illingness,
in cases like New Nation al Party of South Afri ca v The Government of the
Republic of South Africa (“NNP ”)2 and United Democratic Move ment v
President of the Republic of Sou th Africa (1) (“UDM ),3 to defer to legislative
choices. The deferential posture s truck in these c ases sits uneasily with the
widely shared assumption th at democracy itself requi res 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 r ights other than the r ight to vote, in which a robust,
participator y vision of democracy formed the basis for succe ssful challenges
to the validity of conduct or legislation.4
Academic analyses of these judgme nts have focused, for the most part ,
on the standards of review e mployed by the Constitutional Cour t, and the
level of judicial interference or restrai nt at work in these cases. The resu lting
focus on institutiona l and separation of powers concer ns has proved helpful
I am indebted t o the National Res earch Foundat ion and the Alexa nder von Humboldt Foundation for
financial assistance.
1 August v Electo ral Commission 1999 3 SA 1 (CC); Minis ter of Home Affairs v NICRO 20 04 5 BCLR 445
(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
Assembly 2006 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 p rovincial elec tive conferenc e 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 Assembly 2012 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
© Juta and Company (Pty) Ltd
in explaining and cr itiquing some of the apparent anom alies in the cour t’s
jurisprude nce, and in suggesting a lternative approaches th at would protect
voting rights more rigorously. At the same time, it has resu lted in an under-
emphasis on the substantive conte nt of the right to vote. Academic criticisms
of the shallow conception of democracy that is sup posedly at work in the
NNP and UDM judgments, is a s a rule supplemented neither by a cr itical
analysis of the court’s substantive under standing of the right to vote, nor by
the development of an alternative inter pretive framework for underst anding
this right.
This art icle takes a different approach. It places the e mphasis on the
Constitutional Cou rt’s substantive understand ing of the right to vote, and
is interested in t he role played by constitutional values like dign ity and
democracy in the int erpretation of this right. On the one ha nd, it asks whether
and to what extent the Constit utional Court’s dignity-bas ed construct ion of
voting rights can explain t he apparent anomalies and cont radictions referr ed
to above. D oes the court ’s focus on dignity, coupled with its failure to esh
out the meaning of democrac y in the voting rights context , result in an
interventionist st ance in some cases and a n overly deferential one in others?
Does it blind the court t o the ways in which seemingly neutral measures feed
into systemic disadva ntage and fur ther the political disemp owerment of the
poor and marginal ised? Does it shift the attention away from str uctural issues
relating to democratic acc ountability and elector al competition, and pay too
much attention to the symbolic value of the vote?
On the other hand, the a rticle asks whether a n articulation of dign ity with
the values of democracy, equality and citi zenship might provide the basis for
a more rigorous understa nding of the right to vote. First of all, how could
such an understa nding enable a jurispr udence that is respon sive to the ways
in which electoral laws intersec t with systemic disadva ntage and struct ural
power, to reproduce private inequal ity in the political sphere? Secondly, how
would it react to struggles for t he extension of the right to vote to those who
are subject to state power, but are excluded from membersh ip in the political
community by vi rtue of their nationality?
2 The Constitutional Cour t’s voting rights jurisprudence
2 1 The dignity of citizenship: August an d 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 t hat convicts do not forfeit all their right s upon entering
prison – even under common law, prisoners r etained a residue of personal
rights that were not excluded by law.6 It rejected the reasoning of the cour t a
quo, which had held that the prisoners’ inabilit y 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 mission 1999 3 SA 1 (CC) paras 18-19.
RETHINKING THE RIGHT TO VOTE 487
© Juta and Company (Pty) Ltd
their own maki ng. Instead, it stre ssed that the right to vote imp oses positive
obligations on the state, and that it is u ntenable to equate prisoner s’ position
with that of othe r citizen s who nd it difcult or i mpractical to exercise
the vote. Since their inabilit y to register and vote arose di rectly 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 unnecessar y for the court to pronou nce 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 b ecause
the restriction was not sou rced in the Electoral Act 73 of 1998 (“Electoral
Act”), but resulted from the i naction of the Electoral Commi ssion. In the
absence of a law of general application there was no need to e ngage in an
assessment of proportional ity or to balance the stat e’s objectives against the
severity of the limitat ion. The court expre ssly left open the possibility that
legislation, which disenfr anchises cert ain categories of prisoners, c ould be
justiable under section 36.8
Despite the narrow ness of its holding, the judgment nevertheless su ggests
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 depr ive South Africans
of equal citizenship not only i mpoverish democracy and a re at odds with
the inclusive community of equa ls established by the Constit ution, but also
impair the human d ignity of those depr ived of the basic rights of citizenship.
Dignity is here ar ticulated with a range of other values, including citize nship,
representative democra cy, political equality, nationhood and belonging. By
grounding the r ight to vote in this formid able 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 lim itations which signal that some adu lt citizens
are incapable of meaningf ul participation i n political life or are unworthy
of integration into the political c ommunity. Yet, in view of the gap between
the breadth of Sachs J’s rhetoric, the depth of his democr atic vision and the
7 Paras 20-22.
8 P ara 31.
9 P ara 17.
488 STELL LR 2015 3
© Juta and Company (Pty) Ltd

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT