November 14, 2018

Home Affairs Committee faces usual dilemma about expat voters?

Was that an elephant spotted lurking in the corner of the Home Affairs Committee room when the Democrat Alliance’s (DA’s) Deputy Chief Whip, Michael Waters, presented his proposed Private Member's Electoral Amendment Bill on 23 October?

Waters first announced back in June that he was planning to introduce a Private Member’s Bill which would make it easier for the growing numbers of overseas voters to exercise their constitutional right to vote.

His campaign started almost a year ago, in November 2017, when Waters asked the South African Minister of Home Affairs, Ayanda Dlodlo, whether her department is taking steps to ensure that there will be more voting stations at overseas venues where a sufficient number of potential South African voters live. The Minister replied that the Electoral Commission (IEC) has undertaken a review of procedures for voting outside the Republic in national elections.

Based on research conducted by the grouping known as DA Abroad, and using available census data from foreign countries, the DA is pushing for additional voting stations in the following cities: Miami, Florida, Austin, Vancouver ,Brisbane, Perth, Sydney, Melbourne, Auckland in New Zealand as well as several UK towns and cities that are far from South African consulates, embassies or high commissions, which at present are the only places you may find a voting station.

Every South African has the right to vote, including those who have opted for a quieter life in Australia, UK or US.

In his presentation to the Home Affairs Committee, Waters made an impassioned appeal to defend expatriate voting rights, reminding the Committee that the Constitution gave every South African the right to vote. Making it easier for South African voters abroad was spelled out in Section 1(d), Section 9(1) and 19(3) of the Constitution he said.

Well, he didn’t quite say that in so many words, but he reminded the Committee that our Constitution made it abundantly clear that every South African has the right to vote, including those who have opted for a quieter life in Australia, UK, US or any other place on the globe that offers a quieter life.

Drawing on separate Constitutional Court rulings by former ConCourt judges, Albie Sachs and Kate O’Regan, to reinforce his message he cited August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC) in which Sachs said “the vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.” He added the moving words of O’Regan: “the right to vote, and its exercise, has a constitutional importance in addition to [a] symbolic value. The right to vote, and the exercise of 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 imperilled.”

The question of voting rights for expats goes back to the earliest days of democracy, and the same issues tend to resurface before every election. It is worth remembering that voting rights for expats used to be far more exclusive in the past. Before the Electoral Amendment Act No 18 of 2013, South Africans living outside of the country could only vote if they had already registered in South Africa. The Electoral Act was amended in 2013 to allow South African citizens the right to register and vote abroad.

Waters said “we must ensure that we are empowering South Africans with the constitutional right to vote.”

No one in the Committee was disputing South Africa’s post-apartheid universal right to vote, but where Waters was going with this argument was interesting. Placing obstacles in the way of exercising the right to vote was, well, not quite unconstitutional, but close to it.

Here is where it got a bit uncomfortable. Committee members wasted no time in pointing out that he had singled out places around the globe where the SA expat community tended to be white.

That was the word the Committee Chairperson used, and while he didn’t go as far as to say that they are also more likely to be DA voters, he did ask Waters if he had any idea how many South African citizens live beyond the country’s borders in Africa.

“You can see it on the day of SASSA [social welfare grants],” he said. South Africans emerge from Lesotho, Swaziland, from throughout the SA Development Community in their thousands, he related. “Do you know how many South African citizens live in Lesotho?” he asked Waters.

Waters didn’t, but he told the Committee Chairperson how hard he had tried to find out. Not a single embassy of our neighbouring states keeps figures on how many South African citizens are resident in their country. He has also been asking this question in Parliamentary Question Time since February, but the Department of International Relations and Cooperation (Dirco) still hasn’t replied.

He sounded frustrated, and a little bemused – it was not clear at that stage if even the Chairperson could explain where the argument was now headed – but it was too late for Waters.

He had already listed all those countries where, according to his Bill, South African voters’ right to note was under threat. He said more voting stations were needed in these places to avoid voters having to travel unfair distances to register, and then again to vote. He could list the time and distance this could require. If you have set up your new life in Australia, for example, you can only vote in the unlikely town of Canberra, and if, say, you were one of the 6,609 South Africans who lived in Adelaide that would mean a journey of 1,159km. In other words it would take 12h10min to reach the nearest polling station.

But you could get some comfort by estimating how much more petrol would have cost for a journey that distance if you had stayed in SA, or you could congratulate yourself on not being one of those who had braved the cold and settled in Canada. The 6,000 South Africans who have set roots in Vancouver have to travel to Toronto if they wish to exercise their right to vote, which apparently is 4,173,7km away and would take 40 hours by car.

As interesting as these travel statistics were, they did not divert Waters from his central argument, which was that confining voting booths to cities abroad with consular facilities effectively obstructed the average expat, who still cared to do so, from exercising the right to vote that he or she had fought so hard for. What was more, it was discriminatory and against the spirit of inclusion at the core of the South African Constitution.

Those who are right now hurriedly packing for Perth, Miami, Liverpool, even Austin, (which is in Texas in the US), check with Waters who can tell you how far your nearest voting station will be.

Waters’ draft Bill is based on five “objectives,” which he listed to the Committee as follows:

  1. All South African citizens to be permitted to register to vote on production of a valid ID document only. Currently South Africans registering abroad have to produce both an ID and a passport, which Waters described as discriminatory.
  2. Polling day must fall on a weekend because South African living overseas don’t get to enjoy Freedom Day. Those back home can spend the whole day in the voting queue but expats have to rush to work. This discriminates against them as they have to take at least one day’s leave in order to vote.
  3. South Africans overseas may only participate in the national election. Existing legislation does not allow them to vote for the Provincial Legislatures, like South Africans back home can do, probably on the grounds that it would be impossible to determine which province expats would vote in as they don’t live in any of them. Waters uses Section 19(3)(a) of the Constitution to support this as it states: “Every adult citizen has the right to vote in elections for any legislative body established in terms of the Constitution,” which makes this unconstitutional according to Waters.
  4. Voting stations overseas must not be limited to consulates, embassies or high commissions because of the distances more remote voters have to travel. The main thrust of the Bill is for provision for more voting stations.
  5. Vote counting procedures to properly account for differences in time zones when considering deadlines. Waters cited the election in which the votes from Canada arrived too late for the count and were thus excluded from the total, making the poll results questionable.

There was total silence as Waters spoke, and then the questions came from Committee members, thick and fast. What about the voting rights of South Africans who live in the Democratic Republic of Congo or the Central African Republic? Are there simply not enough SAFs there to justify setting up voting stations and IEC staff? What about South Africans who live in Africa, Asia, India, Pakistan? What about South Africans at home who lived far from where they had registered, and who also had a long way to travel in order to exercise their right to vote? And someone came right out and asked why had Waters only used as examples those countries where the South African expatriates are most likely to be white?

The discussion became heated. “Are these people patriotic?” was one question directed at Waters. “What are they doing there anyway?”

Waters came back fighting. “You are still a citizen [if you are abroad] and the Constitution doesn’t differentiate between different categories. The Constitution believes everyone is equal.” This is what makes it so inclusive – this “gives life to the Constitution,” Waters said ‑ and this is what his Bill is designed to protect.

Excluding time zones was simply “bad planning”; holding a poll on the weekend would “boost voting”; and the IEC must “apply its mind” to decide which province South Africans living outside the country’s borders would vote for, he said, suggesting perhaps a form of proportional representation.

“I don’t know if people are patriotic,” said Waters. “I am not the patriotic police. I don’t know why people leave. That’s irrelevant as long as they still have the right to vote. And if they are all white – that is also irrelevant. People can’t be excluded from voting.”

Chairperson Patrick Chauke announced that the only thing to do would be to try to imagine what the original drafters of the Constitution had in mind when they gave all South Africans the right to vote. Clearly they hadn’t considered the numbers, and demographics, of those who would in time and in some haste, opt to emigrate.

“That’s what the IEC has been doing, making it as simple as possible for people to vote. Even people incarcerated in prison have a right to vote,” said Chauke. “But it can’t be an unconditional vote because they have to take into account the resources available. That is the test and the question we have to ask ourselves as the Committee.”

The answer, he declared, would be determined by what is in the best interests of the country, not any individual party.

Chauke thanked Waters for his presentation and assured him that the Committee would consider his Bill. He congratulated Waters for his thorough research, although it had unfortunately had to be confined to the developed world which keeps tracks of the numbers of expats it hosts.

He did make a few sharp interventions. By the end of the discussion he said rather pointedly that South Africa would love to have voting stations for expats in Lesotho, Swaziland, Mozambique as well as London “but we have to face reality,” he concluded.

Meanwhile, South Africans Abroad and DA Abroad run vigorous election online information campaigns aimed at South Africans living overseas. These declare: “Did you know that South Africans can vote abroad in the 2019 elections? Lekker right?

“There are hundreds of thousands of us South Africans living abroad and our country needs every vote to ensure that our Democracy is maintained ... Sign up and we will do all the organising for you, letting you know when and what you need to do to ensure you cast your vote in 2019.”

Moira Levy

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  • Author: Moira Levy
Last modified on Tuesday, 06 November 2018 18:12

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