This right and its significance go to the heart of our constitutional democracy. This much is evident from section 1(d) of the Constitution where “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness” are enshrined as some of the foundational values. The importance of these values is reiterated in section 19 which provides for the right and freedom of every South African to support and campaign for a political party of choice; the right to free, fair and regular elections for those legislative bodies established by the Constitution; and the right to stand for public office, to hold such office if elected and to vote – in secret – in such elections.
The Constitutional Court previously expressed itself on the importance of this right – not only the importance of the symbolic right to vote, but also the democratic value of the right to vote. In August v The Electoral Commission & Others the Court stated that the vote of each and every citizen is a “badge of dignity and personhood. Quite literally, it says that everybody counts.” It seems, however, that not all South Africans have yet come to grips with the importance of this badge of dignity and citizenship. According to the International Institute for Democracy and Electoral Assistance (IDEA), roughly 32 million South Africans were eligible to register as voters for the 2009 elections. However, according to IDEA and data made available by the Independent Electoral Commission (IEC), only 23 million South Africans registered to vote in that election, of which only about 18 million voters actually cast a ballot on Election Day. As a result, the biggest constituency in South Africa following the 2009 elections was the 14 million citizens who were either not registered to vote, or who were registered but did not vote. In Richter v The Minister for Home Affairs & Others the Court, in reference to the aforementioned August-judgment, held that the right to vote, as well as its exercise, has a constitutional importance in addition to this symbolic value: “[It] is a crucial working part of our democracy. Without voters who want to vote, who will take the trouble to register, and to stand in queues, as millions patiently and unforgettably did in April 1994, democracy itself will be imperiled“.
In 2014, South Africans will again have the opportunity to exercise this fundamental right to choose – albeit indirectly so – those who must represent them. By doing so, voters will also be able to influence the quality of their national and provincial governments. In the Richter-case the Constitutional Court emphasised the importance of exercising the right to vote in the context of the values and principles of our constitutional democracy: “Each vote strengthens and invigorates our democracy. In marking their ballots, citizens remind those elected that their position is based on the will of the people and will remain subject to that will“. A responsive, transparent and accountable government therefore starts with the election of responsive, transparent and accountable representatives – or political parties in the case of South Africa’s system of proportional representation based on closed party lists.
Are we taking the right to vote, and therefore democracy, for granted by being complacent? Some may say one’s right to vote incorporates one’s right not to vote. It may be one way of looking at this right. After all, in terms of the Constitution and our electoral legislation, voting is not compulsory in South Africa (unlike in countries such as Australia and Brazil). Though, by not voting, one does little more than abdicating one’s right to be governed by consent to the next person. The right to vote is conceivably more than a right in a democracy. It is arguably also a responsibility and a duty – if only a moral duty – to participate in such democracy and to do so in an informed manner. The importance of this duty and responsibility is eloquently elaborated upon by Jason Brennan in The Ethics of Voting where he contends that “voting is morally significant” as it “changes the quality, scope, and kind of government“. According to Brennan, “from a moral point of view, voting is not like ordering food off of a menu. When you order salad at a restaurant, you alone bear the consequences of your decision. No one else gets stuck with a salad. If you make a bad choice, at least you are hurting only yourself… Voting is not like that. If anything, when we vote, we are imposing one meal on everybody…We decide electoral outcomes together.” Be that as it may, the importance of actually ordering a meal – instead of waiting for someone else to order and then to complain about what is served – is rather obvious.
In our constitutional democracy, to exercise one’s right to vote and to vote for whomever one chooses, is to ensure government by consent. Moreover, it is to ensure that those whom we entrust with our vote continue to represent the people in a manner that promotes, respects and upholds the constitutional values, principles and rights on behalf, and in the interest of, every South African. In keeping with the Constitutional Court in the Richter-case: “…the right to vote itself cannot be exercised by a citizen unless he or she takes the trouble to exercise it“. However, when exercising the right to vote, bear in mind Brennan’s cautionary remark: “When we vote, we can make government better or worse. In turn, our votes can make people’s lives better or worse…The way we vote can help or harm people“.
The right to vote is afforded to every South African 18 years of age and older – a right (following the Richter-judgment) which now also extends to all South Africans residing abroad. In the Richter-case, the Court held section 33(1)(e) of the Electoral Act (and related provisions of the Regulations in terms of the Act) – which prevented South Africans residing abroad from voting – to be an unjustifiable limitation of the right as provided for in section 19 of the Constitution. Subsequently, Parliament adopted the Electoral Amendment Act at the end of 2013, which, among others, amended the Electoral Act in order to allow South Africans living abroad to register and vote in national elections from within the respective countries in which they reside.
However, in order to vote in elections, all South African citizens – whether residing in South Africa or abroad – must be registered on the Voters’ Roll. Accordingly, South Africans have until 17:00 on the day on which the President proclaims the election date, to register in order to vote. At 17:00 on the day of proclamation, the Voters’ Roll closes. South Africans living in South Africa can register at any time (before such proclamation) at any municipal electoral office of the IEC or at their designated voting stations during special registration days (the final one of which will be on Saturday, 8 February and Sunday, 9 February 2014). South Africans residing abroad and who wish to vote in the national election in 2014 must register in person – either in South Africa or at the South African embassy, high commission or consulate-general located in their country of residence before Friday, 7 February 2014. In order for South Africans living abroad to register, they need to be in possession of a valid South African identity document (either a green bar-coded South African ID book, a new smart-card ID or a valid temporary identity certificate) and a valid South African passport.
For more information, visit the IEC website: http://www.elections.org.za/content/For-Voters/How-do-I-register-/
By Adv Johan Kruger, Director: Centre for Constitutional Rights