Everybody Counts
August and Another v Electoral Commission (1999)
Do prisoners have the right to vote under the new Constitution?
Background
In the first democratic elections held in 1994, all prisoners could vote. This was because the Interim Constitution provided for universal adult suffrage and did not expressly disqualify anyone. It did, however, provide for the passing of future legislation that could disqualify certain people from voting. Indeed, the Electoral Act 73 of 1998 subsequently disqualified persons from voting on four grounds, two of which related to mental incapacity, the third to drug dependency, and the fourth to imprisonment for specified serious offences such as murder and robbery. All other prisoners were therefore entitled to vote. This Act went on to state that the Electoral Commission (IEC) should make regulations providing for voting stations for prisoners and persons awaiting trial.
In 1999, two prisoners, Arnold Keith August and Veronica Pearl Sibongile Mabutho, acting in their own interest and on behalf of all prisoners, sought an undertaking from the IEC that prisoners would be able to take part in the elections. When no satisfactory response was received from the IEC, August and Mabutho launched a court application for an order enabling them and other prisoners to register and vote.
Given the importance of the right to vote and the history of its suppression under apartheid, limitations should be subjected to rigorous scrutiny.
Henk Botha
Academic, 2015
Path to the Constitutional Court
August and Mabutho first took the matter to the Transvaal High Court, asserting their constitutional right to vote. The Transvaal High Court held that the IEC had no obligation to ensure that awaiting trial and sentenced prisoners may register and vote in the general elections which has been announced for 2 June 1999. The applicants then approached the Constitutional Court.
Meet Some of the Parties
Applicants:
Arnold Keith August – a convicted prisoner serving a sentence for fraud.
Veronica Pearl Sibongile Mabutho – an awaiting trial prisoner for charges of fraud.
Respondent:
Independent Electoral Commission- a permanent body created by the Constitution to manage free and fair elections at all levels of government. Although publicly funded and accountable to parliament, it is independent of the government.
Animus Curiae (Friends of the court):
The Centre for Applied Legal Studies (CALS) – a civil society organisation based at the School of Law at the University of the Witwatersrand. CALS is also a law clinic, registered with the Legal Practice Council. CALS connects the worlds of academia and social justice. CALS’ vision is a socially, economically, and politically just society where repositories of power, including the state and the private sector, uphold human rights.
Some of the Arguments
Arnold August and Veronica Mabutho
The applicants sought an order declaring that they and all prisoners are entitled to register as voters on the national common voters’ roll and to vote in the forthcoming general elections. They also required the IEC to make all necessary arrangements to enable them and all prisoners to do so. For their argument, the two prisoners relied on the right to vote clause in the Constitution, as well as the right to equality and the right to dignity.
Independent Electoral Commission
The IEC and its chairperson respectively agreed with the judgment of the High Court that the IEC had no obligation to ensure that awaiting trial and sentenced prisoners register and vote in the general elections. The Department of Home Affairs and the Department of Correctional Services did not oppose the application.
What did the Constitutional Court decide?
The Constitutional Court held that the IEC’s failure to take steps to allow prisoners to register and vote was unconstitutional as it was an impermissible restriction of section 19(3)(a) of the Constitution, namely that every adult citizen has the right to vote in elections and to do so in secret.
The IEC was accordingly ordered to make all reasonable arrangements to enable prisoners eligible for the vote, to register as voters, and to vote.
The Court was clear that convicts do not forfeit all their rights upon entering prison – prisoners retained a residue of personal rights that were not excluded by law.
The IEC was required, by 16 April 1999, to serve on the applicants, the Minister of Home Affairs, and the Minister of Correctional Services, an affidavit setting out the manner in which it would comply with the order.
The judgment pointed out that more than a third of persons in prison were awaiting trial and that, of these, thousands were locked up simply because they could not afford to pay low amounts of bail and small fines.
These were not serious offenders. It also emphasised that Parliament was not prevented from disenfranchising certain categories of prisoners, for example, those convicted of serious offences.
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 everybody counts.
Justice Albie Sachs
the August Judgment, 19 March 1999
Impact and Significance
The Constitutional Court’s judgment effectively expanded the electorate and set the bar quite high for the justification of the disenfranchisement of categories of South African citizens.
Prisoners are probably the most unpopular category of person in South Africa, and it would be difficult for a court – even the Constitutional Court – not to be influenced by this fact. Yet, the Court rejected the notion that the government could deprive them of their rights.
Prisoners were given the opportunity to vote in the 1994 elections. Avusa / The Bigger Picture / Reuters
About 160 000 prisoners in South Africa had the opportunity to register to vote in the 2019 National and Provincial Elections.
