My right to vote as a South African living abroad
By Jolané van der Walt-Nieuwoudt (LLB) (LLM)
The vote of every citizen is a “badge of dignity and personhood. Quite literally, it says that everybody counts.”[1] Justice Sachs additionally observed that within a nation characterized by profound inequality such as South Africa, the right to vote affirms our membership in a shared nation and symbolizes our intertwined fates within a unified political entity. This recognition highlights the historical backdrop where the majority of individuals were previously deprived of this fundamental right.
Before 2009, South African citizens residing abroad encountered limitations on their voting rights, only being permitted to vote under restricted conditions. They were frequently compelled to return to South Africa in person to exercise their voting rights, presenting considerable logistical and financial obstacles. Consequently, numerous South Africans living abroad were essentially deprived of participation in the electoral process.
The Constitutional Right to Vote – Section 19
Section 19 of the South African Constitution reaffirms the symbolic significance of every citizen’s right to vote, constituting a fundamental element of our democracy. Voting plays a pivotal role in the operation of democracy, with each ballot adding to the resilience and vigor of our democratic framework. Through their participation in elections, citizens assert to elected representatives that their mandate derives from and remains accountable to the collective will of its people.
Landmark Case in the Constitutional Court: Willem Stephanus Richter vs Minister of Home Affairs and Others [CCT 09-09 – (2009) ZACC3]
The central question before the court was whether the existing legislative framework, which restricted the voting rights of South African citizens registered as voters but residing abroad during the elections on April 22, 2009, aligned with the Constitution. At the High Court in Pretoria, the Applicant argued that section 33(1)(e) under the Electoral Act violated the voting rights of registered South African voters who were absent from the country on polling day. By limiting the categories of absent voters, individuals outside these prescribed categories were denied their right to vote. The applicant contended that this deprivation constituted an unjustifiable restriction on the right to vote. The High Court of Pretoria determined that these provisions amounted to unfair discrimination and declared them inconsistent with and invalid under the Constitution. Subsequently, the Applicant appealed to the Constitutional Court, where the primary issue was whether to uphold the High Court’s decision. The Constitutional Court ruled that section 33(1)(e) indeed limits section 19 of the Constitution by excluding certain classes of voters who are absent from the Republic on polling day from participating in elections. It concluded that the restriction on the right to vote imposed by section 33(1)(e) of the Electoral Act cannot be justified under section 36 of the Constitution.
Legislative Adjustments and Electoral Reforms
In response to the court’s decision, amendments were enacted in the Electoral Act to address the voting rights of South Africans residing abroad. The Electoral Commission of South Africa (IEC) implemented measures to facilitate registration and voting for citizens living outside the nation, including provisions for registration at diplomatic missions and through online platforms.
While the 2009 Constitutional Court ruling represented a significant advancement for democracy, the pursuit of fully inclusive and participatory elections persists. It is noteworthy that, by law, South Africans abroad are eligible to vote solely in national elections; they are not permitted to participate in provincial elections, regional National Assembly elections, or municipal elections.
National Elections: 2024
In January 2024, the Electoral Commission proudly announced that over 18,469 South African citizens residing in 101 countries worldwide had commenced the registration process using the newly launched online registration portal system. This system has been operational since December 2023. For the first time, the Electoral Commission has facilitated online registration to allow South Africans abroad to easily enroll for the 2024 National Elections. In the 2019 elections, approximately 21,000 South Africans voted from abroad, with 7,023 of them being newly registered. The Commission anticipates that the implementation of an online registration system will attract a significant portion of citizens residing outside the country.
In conclusion, the 2009 Constitutional judgment marked a significant milestone in the advancement of voting rights for South African citizens residing abroad. Through legal reforms and procedural adjustments, the South African government has made strides towards ensuring that all eligible citizens, regardless of their location, can exercise their constitutional right to vote.
