Submission to the Portfolio Committee on Home Affairs

Introduction

1. The South African Council of Churches (SACC) is the facilitating body for a fellowship of 23 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.



2. The SACC welcomes the publication of the Electoral Laws Amendment Bill [B54-2003] (hereafter, "the Bill") for public comment. We are conscious of the fact that the electoral system developed for the first democratic elections in 1994 emerged from a unique historical situation and needed to respond to a number of important considerations. That system was used again for the 1999 national elections, with the understanding that there was a continuing need to review the electoral system and decide upon a permanent arrangement. As we approach our third democratic national election and the tenth anniversary of democracy, this need is becoming increasingly urgent.

Electoral Task Team Recommendations

3. As a result, Cabinet resolved in March 2002 to appoint an Electoral Task Team (ETT) "to draft the new electoral legislation required by the Constitution". The ETT, under the leadership of Dr Fredrick van Zyl Slabbert, heard submissions from various stakeholders and deliberated at length before making their recommendations earlier this year. The ETT identified four core values that they said should underpin the electoral system: fairness, inclusiveness, simplicity and accountability. Although members of the Team agreed on the importance of these core values, they reached slightly different conclusions regarding the electoral mechanisms that would best reflect and entrench these core values. A majority (eight) of the team members felt that by creating 69 multi-member constituencies, it would be possible to enhance the electoral system's capacity to promote accountability without undermining the other core values. More important, this system seems to permit future evolution that would further improve accountability. A minority (four) of the team members felt that the existing electoral system was sufficient for South Africa's needs.



4. The SACC applauds the work of the ETT and acknowledges that there was a substantial amount of consensus in the team's report. We endorse the four underlying principles identified by the ETT. We also feel that it is desirable to enhance elected representatives' accountability to voters if it is possible to do this without jeopardising the principles of fairness, inclusiveness and simplicity. The current system of artificially created "constituencies", in terms of which an elected official from one area can be assigned to "represent" a completely different area, was a response to a particular set of historical conditions. There is now a need to move towards the development of more natural ties between elected officials and constituencies. We are therefore persuaded by the ETT's majority report and support the majority report's call for modifications of the current electoral system.



5. At the same time, we recognise that there is limited time to implement changes to the electoral system prior to next year's general election. We therefore view the current Bill as another stopgap measure to address immediate issues, rather than a permanent solution. Our remarks on the Bill should be understood in this context. We strongly urge the government to initiate further revisions to the Electoral Act, along the lines recommended by the ETT majority report, soon after the 2004 elections.



6. In light of the above, we wish in this submission to address two of the most contentious aspects of the Bill - the voting rights of prisoners and South Africans abroad - and to raise a few technical drafting concerns.

Voting rights for prisoners

7. During the 1994 elections, prisoners convicted of serious offences (murder, rape, aggravated robbery and attempts to commit such offences), were excluded from voting. In 1999, this position was relaxed and all prisoners were allowed to vote.



8. The SACC supports the view that prisoners are entitled to fundamental human rights and protection of their personal dignity. At the same time, we acknowledge that incarceration necessarily constrains the exercise of certain rights, such as the rights of free movement and association. Consequently, we are of the view that it is not inherently unconstitutional to prevent some or all convicted prisoners from voting.



9. However, we believe that there must be a compelling case for limiting anyone's constitutional rights. At the same time, we are eager not to jeopardise the safety of electoral officials. We are also concerned about the inconsistency between section 4 of the Bill, which would amend section 8 of the Electoral Act (hereafter, "the Act") to prohibit registration of people who are serving sentences of imprisonment without the option of a fine, and section 7 of the Bill, which would insert a new section 24B in the Act prohibiting voting by all but awaiting trial prisoners. The first of these amendments correctly recognises that some people are incarcerated for economic reasons: they cannot afford to pay a fine in lieu of a prison sentence. The second mendment ignores this factor, excluding all prisoners from voting.



10. If it could be demonstrated that there were administrative, security or cost implications that ade it prohibitive to provide for prisoners to vote, this might be grounds for a general law of application limiting the voting rights of prisoners in terms of section 36 of the Constitution. However, the principle that accused people are considered innocent until proven guilty requires that provision be made for awaiting trial prisoners to vote. If this must be done anyway, it is difficult to envision that the additional cost of accommodating other prisoners would be prohibitive.



11. We therefore propose a reversion to the 1994 principle that only the voting rights of serious offenders be constrained.

Voting rights for South Africans abroad

12. Section 9 of the Bill would amend section 33 of the Act (dealing with special votes) to eliminate the Electoral Commission's power to prescribe additional categories of persons eligible to apply for special votes. This would effectively lock in the existing categories of special votes. With respect to people absent from the Republic, the Act currently makes provision only for government employees to exercise their voting rights.



13. The SACC has strong reservations about this approach. There is no obvious reason why individuals who are compelled by work or studies to be absent from the Republic for extended periods - or even those who elect to reside abroad for other reasons - should, in general, be denied their voting rights. Whilst we recognise that there are unique logistical and administrative difficulties with trying to accommodate citizens who are temporarily absent from the Republic for business or leisure purposes, we believe that if provision is being made to enable government employees stationed abroad to vote (presumably through embassies and consulates) that it should not be substantially more difficult to accommodate other South Africans living abroad, provided that they are required to register and vote in a manner similar to government employees.



14. One exception to this rule might be where a South African citizen living abroad also enjoys citizenship (and voting rights) in the country in which he or she resides. In such a case, there would be less compelling grounds to ensure that such a person also has a right to vote in South Africa.



15. We therefore propose that section 33(1)(b) of the Act be amended to read:
    "absence from the Republic, provided such person is a South African citizen, maintains a foreign domicile and does not have the right to vote in the country in which she or he is domiciled."
    Alternatively, the provision for the Commission to prescribe other categories of special voters should be retained. If the cost of allowing those living abroad to vote is determined to be prohibitive, then this principle should be consistently applied and government employees abroad should also be excluded.

Registration of first-time voters

16. Section 2 of the Bill would amend section 6 of the Act to insert a new subsection after subsection 1, which allows any South African citizen in possession of an identity document to apply for registration as a voter. The new subsection (1A) reads: "A person 16 years or older may apply, but if successful is only added to the voters roll at 18." These two clauses appear inconsistent. To clarify the meaning of this section, we propose that subsection 1 be amended to read:
    (1) Except as noted in section 1A, any South African citizen 18 years of age or older and in possession of an identity document may apply for registration as a voter.



17. Section 24(2) of the Act states: "By not later than the relevant date stated in the election time table, the chief electoral officer must certify the voters' roll or the segments of the voters' roll to be used in that election and publish it by making it available in the following venues …" Given that the certification date may well be several days or even weeks prior to election day, we are concerned that there is no explicit requirement compelling the chief electoral officer to include in the authorized voters' roll the names of all registered voters who will turn 18 on or before election day (as opposed to the certification date). We would therefore propose that this requirement be clearly spelled out in a new subsection (3):
    (3) The voters' roll, or segments of the voters' roll, referred to in subsection (2) shall include all registered voters who will be 18 years of age or older on election day.

Publishing candidate lists on the internet

18. We propose that section 29(2) of the Act be amended to require publication of the lists of candidates on the internet, in addition to the other media currently listed.