Every vote counts

THE BILL OF RIGHTS guarantees the right of "every adult citizen to vote in elections for any legislative body". In its first decision on voting rights in the context of the 1999 election, the Constitutional Court upheld a claim by prisoners that they should not be debarred from voting by virtue of their incarceration. In this judgment, the Constitutional Court laid great emphasis on the importance of the franchise. It described South Africa's history of race discrimination and stressed that this had rested on the exclusion of the majority from voting. Universal adult suffrage on a common national voters' roll were "foundational values of our entire constitutional order", it said.

Citing a Canadian case, it continued: "The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts . . . It declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement."

Yet two weeks later, on April 13-14, 1999, the Constitutional Court rejected the appeals of the New National Party and the Democratic Party against the requirement that anyone wishing to vote in the June 2, 1999 general election must possess a bar-coded identity document (ID). The court's reasoning in this case merits examination in detail.

The Independent Electoral Commission (IEC) had initially recommended that only the bar-coded ID should suffice for registration and voting. (This form of ID had been issued to all South Africans, irrespective of race, since July 1, 1986. Before that seven different identity documents had come into existence, including the "dompas" issued to Africans and the IDs issued by four of the homelands.) However the commission changed its mind, fearing that too many people would be disenfranchised, after a survey by the Human Sciences Research Council (HSRC) reported that:

• Some 80 per cent of the 25m South Africans entitled to vote had bar-coded IDs;

• about 2.5m eligible voters had no ID at all; a further 2.5m eligible voters had older IDs, but not bar-coded ones;

• about a quarter of those without bar-coded IDs had applied for them;

• of those who had applied almost 40 per cent had been waiting for more than 12 weeks, and a further 25 per cent had been waiting for more than 20 weeks.

The HSRC concluded that it would be unrealistic to attempt to issue all the bar-coded IDs required, and urged that all older IDs be accepted. Efforts could then be concentrated on issuing IDs to those without any form of identification at all. The HSRC findings were confirmed by a further independent survey, Opinion 99, while other evidence showed that at the end of November 1998 the department of home affairs, responsible for issuing bar-coded IDs, had a backlog of over 450,000 applications.

Opposition political parties had an additional fear: insistence on a bar-coded ID would affect the election outcome. Early on in the campaign ANC general secretary Kgalema Motlanthe caused an outcry when he declared that the ANC wanted a two-thirds majority so that it could govern "unfettered by constraints". The survey results showed that higher proportions of likely ANC (82 per cent) and Inkatha Freedom Party voters (84 per cent) had the correct documents, than Pan Africanist Congress (73 per cent), United Democratic Movement (72 per cent), New National Party (71 per cent), or Democratic Party voters (65 per cent). It would clearly assist the ANC to obtain the two-thirds or "overwhelming" majority it sought if 2.5 million prospective voters, about half of whom were likely to support opposition parties, found it difficult or impossible to vote.

Concerned about the likely disenfranchisement of millions of voters, ANC MPs on the parliamentary portfolio committee on home affairs initially urged that all older IDs be accepted. ANC whip Jannie Momberg stated in July 1998 that it would be "unrealistic" to do otherwise. However when the ANC's national executive committee met the following month, at the same time as the HSRC survey was publicly released, it resolved that only bar-coded IDs, or temporary ID documents, would be allowed. It wanted, it said, "to encourage voters to apply for bar-coded IDs and was confident in the government's ability to issue the documents". The ANC instituted a three-line whip to ensure that party discipline prevailed and that all ANC MPs voted in accordance with its wishes.

The Electoral Act that became law in mid-October 1998 duly laid down that bar-coded IDs were required for registration and voting. Since the IEC planned to have only a single three-day registration period, from November 27-29, this gave holders of older IDs six weeks at most to obtain the requisite documents. (Only on November 24 did the IEC agree to postpone registration in four provinces until December 1998 and to allow further opportunities to register in early 1999.)

However, the Act allowed those who had applied for bar-coded IDs to register using temporary registration certificates (TRCs) and to vote using temporary identity certificates (TICs). Neither of these temporary documents would have bar-codes. During the registration process at the end of November, it emerged that some election officials would allow TRCs to be used for voting too - provided they had bar-codes stuck on to them during registration. The government made no attempt to explain why the same could not be done for older IDs. Nor did it clarify why a new non-bar-coded temporary certificate (issued in a hurry by home affairs, with all the possibility of error arising from undue haste) would do for registration - and even for voting once a bar-code had been glued on - but an existing non-bar-coded ID would not.
Both the NNP and the DP challenged the constitutionality of the bar-coded ID requirement in separate legal cases. In February 1999 the Cape High court dismissed the NNP's application on the basis that those who wanted to vote but did not have the required documents had effectively disenfranchised themselves. The Pretoria High Court dismissed the DP's application on the basis that any limitation on the right to vote arising from the bar-coded ID requirement was reasonable and justifiable. Both parties appealed to the Constitutional Court.

On April 13 Judge Zac Yacoob handed down the majority judgment in the NNP case. Judge Richard Goldstone delivered the majority judgment in the DP case and simply concurred with Yacoob's judgment of the previous day. In both cases the court divided - with Judge Kate O'Regan dissenting from the majority rulings.

The Constitutional Court's usual approach, where a breach of a guaranteed right is alleged, is to apply a two-stage inquiry. First, an applicant must demonstrate the infringement or limitation of the right. Secondly, the respondent must show that the limitation is nevertheless reasonable and justifiable. This, said the Pretoria High Court in the DP case, was "common wisdom". It was also the approach that had been followed by the Constitutional Court in a number of earlier decisions.

In the NNP judgment, however, Yacoob ruled that the first question to be decided was whether Parliament had acted "rationally". He gave no explanation as to why this test was relevant and cited no authority to justify its use in this context.
Yacoob acknowledged the importance of the franchise, but gave it relatively short shrift. The importance of the right to vote was self-evident and could never be overstated. There was, however, "no point in belabouring its importance and it was sufficient to say that the right was foundational to democracy because without it there could be no democracy". The court ignored what it had said two weeks earlier, in the prisoners' voting rights case, about the crucial importance of the vote and of the need to interpret voting law in favour of enfranchisement.

The majority judgment also dismissed O'Regan's minority ruling that the relevant test was whether Parliament had acted "reasonably": "Decisions as to the reasonableness of statutory provisions are ordinarily matters within the exclusive competence of Parliament. This is fundamental to the doctrine of separation of powers and to the role of courts in a democratic society. Courts do not review provisions of Acts of Parliament on the grounds that they are unreasonable. They will do so only if they are satisfied that the legislation is not rationally connected to a legitimate government purpose. In such circumstances, review is competent because the legislation is arbitrary. Arbitrariness is inconsistent with the rule of law, which is a core value of the Constitution."
Here Yacoob failed to acknowledge a simple reality. Where courts have been given a testing right under a bill of rights, they have a duty to examine, not whether Parliament has acted either reasonably or rationally, but whether it has infringed the guaranteed rights of citizens. This is the key issue, yet it is one that the majority judgment seems continually to skirt.

There were various good reasons for insisting on the bar-coded ID, continued Yacoob. It "facilitated quick, easy and reliable verification" of identity. It confirmed that the individual in question had been entered on the population register. The use of a single ID, rather than a multiplicity of documents, would reduce potential confusion. Moreover, bar-coded IDs, unlike older ones, were issued only after fingerprints had been taken and this provided an important safeguard against electoral fraud. In addition, all the older IDs shared a common feature. They reflected the race of their holders and were thus "a powerful symbol and reminder of a shameful past characterised by racial discrimination, oppression, and exploitation, untold misery and suffering, and the denial to the majority of South African citizens not merely of their right to vote but also of their essential humanity". On the other hand, the "documentary requirements posed no real disadvantage" to most people with older IDs. Their names were already on the population register and TRCs could be issued to them within 24 hours. Hence, the documentary requirements were not arbitrary. On the contrary, they were "rationally connected to the legitimate governmental purpose of ensuring the effective exercise of the right to vote".
Yacoob failed to deal with any of the following issues:

• the IEC itself placed little store on the increased convenience or security of the bar-coded ID;

• TRCs and TICs did not have bar-codes either and were issued before fingerprints could be checked;

• in 1997 Parliament had expressly recognised the validity of all these older IDs for all purposes, including registration and voting;

• TRCs became available only on November 9, a scant three weeks before registration was expected finally to close.

Yacoob then went on to consider whether the bar-coded ID requirement constituted a denial of voting rights. Here the majority judgment becomes particularly tortuous. Much of the complexity stems from confusion as to the relevant test to be applied. The majority began by saying that the right to vote would be infringed by the bar-coded ID requirement if its "probable consequence" was to prevent people from voting, "even if they acted reasonably". It quickly went on to say that the NNP would have to prove that "the machinery or process provided [ie home affairs] was not reasonably capable" of ensuring that prospective voters would be able to vote, even if they acted reasonably. It then gave notice that, if the NNP proved this, this would not necessarily assist it. If "a governmental agency did not perform efficiently" in implementing a statute that did not mean the legislation was invalid. The remedy for this would lie elsewhere - in getting the governmental agency to do its job properly. This shift is an important one, and its significance becomes increasingly apparent as the majority judgment proceeds.

The NNP contended that "millions of people would be deprived of the franchise because the department of home affairs did not have the capacity to issue the relevant documents to all persons entitled to vote within the limited time available". This was largely irrelevant, responded the majority. "The issue was not whether the department had performed its functions in a manner that resulted in a denial of the vote to a substantial number of South Africans, but whether the legislation itself constituted such a denial."

There could have been no complaint if the bar-coded ID requirement had been introduced four years earlier. "The crucial question was whether it had been established that the time was so short that the scheme prescribed by the Act for registration and voting was not reasonably capable of achieving its purpose of ensuring that those who wanted to vote and who acted reasonably in pursuit of that purpose would have been able to do so." But the time was not too short, continued the court. Those who did not have bar-coded IDs had been given "six months within which to apply for the necessary documents" before registration closed in March 1999.

Yacoob omits the fact that on October 16, 1998, when the Electoral Act was promulgated, registration was expected to close a few weeks later on November 29. The validity of the documentary requirements had to be assessed as at the date of their promulgation (as he himself had earlier confirmed). It is thus irrelevant that the IEC was subsequently compelled to allow further registration periods in 1999. It is also inaccurate to state that people had had six months to get the right documents when, at the relevant time, they were being told by the IEC that they had six weeks at most.

The majority judgment then turned to the capacity of home affairs to issue the necessary documents. The NNP's argument, said Yacoob, was based on various assumptions: that the department was continually building up a backlog, that it would be flooded with applications, and that it would not be able to cope. The department, by contrast, had pointed out that there was no knowing what the demand for bar-coded IDs would be, for many people might not be interested in voting in any event. It had also "given the assurance that it did have the capacity to cope", and that it had contingency plans to deal with any flood of applications that might arise. In addition, said Yacoob, individuals could register on the basis of a TRC, and this could be obtained within 24 hours. "Adequate time was available for TRCs to be procured before registration closed." Again, he omits to mention that TRCs became available only from November 9 and that registration was then expected to close for good within 20 days.

Yacoob agreed with home affairs that it was difficult to know how great the demand to vote would be. He then went on to rule that the demand to vote could be determined by the demand for TRCs. This also offered, in his view, a simple solution to any problem regarding home affairs' capacity. Once it was known how many TRCs had been used to register, this would make it clear "how many IDs had to be issued before the date of the election." If home affairs was unable to issue this number of documents, then Parliament could still amend the Act to solve the problem.

Yacoob then emphasised again that whether or not home affairs was performing efficiently, and whether it had the capacity to issue all the necessary IDs, was irrelevant. "It related to the question of implementation, not to that of constitutionality." In addition, "the mere possibility of people not being able to register" was not enough. The probable consequences of the statutory provision had to be shown, and "on the evidence before the court there was no probability that potential voters who really wanted to register would not be able to do so".

The majority judgment continues in similar vein and at some length, but without adding anything of particular substance. Through- out, it is full of verbiage and circular reasoning. It is also plainly misconceived - from its unexplained use of the rationality test, to its omission or mis-statement of relevant facts, to its attempt to make the NNP provide ever more proof of the department's incapacity while simultaneously ruling this irrelevant.
Judge O'Regan's dissenting judgment, by contrast, is clear, crisp, and compelling. It begins by emphasising the importance of the right to vote. The right was particularly significant in South Africa, where many of the injustices of the past had flowed directly from the denial of the right to vote to the majority. Moreover, the right to vote, as the United States Supreme Court had emphasised, was "preservative of all other basic civil and political rights". Hence, "any alleged infringement of the right of citizens to vote had to be carefully and meticulously scrutinised."

A key test, according to the majority judgment, was whether Parliament had acted "rationally" in requiring bar-coded IDs. This test, responded O'Regan, was "too deferential" in the context of the crucial right to vote. Instead, Parliament should be expected to act "reasonably". In holding the legislature to this standard, the Constititutional Court was not "trampling on the terrain of Parliament", but "providing protection for a right fundamental to democracy". It was not enough to ask, as the majority of judges did, whether voters had "acted reasonably in pursuit of their right to vote". A further necessary question was whether "Parliament had acted reasonably in enacting the electoral regulations with which citizens had to comply".

O'Regan accepted the findings of the HSRC and Opinion 99 surveys as correct. She noted the backlog of over 450,000 applications that had built up at home affairs by November 1998, and said there was no clear evidence as to whether this had since got better or worse. All that was clear was that "a very significant number of people probably still had not applied for bar-coded IDs and therefore had become unable to vote". Moreover, whether or not the department had increased its capacity since October 1998 was irrelevant. What mattered was "the reasonable perceptions of its capacity at the time the legislation was enacted".
Parliament was reasonable in requiring prospective voters with no identification at all to acquire bar-coded IDs. However, the situation for those who already held valid IDs was different. The legislature had previously signalled its intention to introduce a completely different identification system in the form of an identification card. In the interim, it had "expressly preserved" the validity of all older IDs. These remained valid for all purposes except, now, for registration and voting. Moreover, those who applied for bar-coded IDs for voting purposes would soon have to return to home affairs to obtain their new IDs in the proposed card format.

In addition, there was no compelling reason for using the bar-coded ID in the election. Electronic scanning of bar-codes would speed up the checking process, but it was also possible to do the checking manually. The bar-coded ID would be marginally more convenient, but then again neither TICs nor TRCs contained bar-codes. Since 80 per cent of the electorate already had bar-coded IDs and could rapidly be processed, there would be little overall delay in processing voters with older IDs. It would be harder to check ID documents from the former "homeland" states, but there were only about 150,000 of these documents and the IEC foresaw no problems in their use. Nor was it clear that the bar-coded IDs would increase security. The IEC itself had seen no particular advantage here. It had initially wanted the bar-coded ID because the details of holders were already on the population register. It knew that the same applied to older IDs, except those issued by the former homelands. In fact, it had originally wanted to recommend the use of all older IDs, other than the homelands ones, but had feared this would be seen as discrim- inatory.

The impact of the bar-coded ID requirement on eligible voters with older IDs was also relevant. They would clearly be disenfranchised unless they applied for bar-coded IDs, along with TRCs or TICs. Yet it would be "a Herculean task" for home affairs to issue all these documents in the limited time available, and the IEC itself had thought it unwise to attempt this. "By effectively doubling the number of voters without the prescribed forms of identification, Parliament had made the achievement of that task all the more unlikely. This was done although the forthcoming election was to be only the second democratic general election ever held in South Africa and at a time when there was a constitutional imperative to strengthen democracy and encourage participation in political processes."

Parliament's insistence on the bar-coded ID was thus unreasonable, stated O'Regan. Nor was it justifiable. There were few real benefits to be obtained from its use, while its effect would be to disenfranchise "large numbers of voters who had lawful and valid forms of identification" and who were unlikely to be able to obtain new ID documents in time.

O'Regan's conclusion is sound. The only weakness of the minority judgment is that it also abandons the normal two-stage inquiry for guaranteed rights in favour of an assessment of whether the legislature had acted "reasonably". In enacting law to govern the elections, Parliament's first duty is not to act reasonably, rather it is to respect the right to vote. Moreover, as US and Canadian authorities confirm, any barrier to voting has to be rigorously scrutinised, while courts should always lean in favour of enfranchisement rather than the opposite.

In both the NNP and DP cases, the sudden imposition of the bar-coded ID requirement, six weeks before registration was due to close, prima facie threatened the voting rights of some 2.5 million South Africans - all of whom held valid identity documents that had, until October 16, 1998, been recognised for all purposes. At the stroke of Parliament's pen, these IDs no longer sufficed for registration or voting. Moreover, there was little likelihood that the necessary new documents could be issued to all 2.5 million of these prospective voters before the end of November - the relevant period to consider. This prima facie evidence of a breach of the right to vote should have been recognised as sufficient to put the government on its defence. The onus should hereafter have been placed on it to demonstrate that the bar-coded ID requirement was nevertheless reasonable and justifiable.

As it turned out the technology used to read the bar codes on election day very frequently failed to work and IEC officials had to check voters against the register in the old-fashioned way. Survey data suggest that some 500,000-600,000 people would have voted if they had had the correct ID.

The Constitutional Court has always stressed its independence from the executive and from the ruling party. It has also invalidated post-1994 legislation and executive action on various occasions and no final conclusion about its potential "executive-mindedness" can be reached without taking these judgments into account. But the right to vote is the most fundamental of all in any democracy and is particularly important in this country. In addition, it was clear that the ruling party, with its determination to obtain a two-thirds or "overwhelming" majority, had a keen interest in the contested provisions. Here, then, was an opportunity for the Constitutional Court to strike two simultaneous blows for constitutional democracy: to restore the right to vote to those who had clearly enjoyed it prior to October 16, 1998 but thereafter stood to lose it; and to demonstrate its independence from the ruling party on an issue of seminal importance to it. Instead, the majority of the court upheld the contested provisions and did for reasons that are flawed and unconvincing.

There are defining moments in the history of countries and their most important institutions. The Constitutional Court decision on voting rights figures as one of these. The court failed to stand up to the executive and the ANC on this key occasion - and its willingness to do so in the future is inevitably now more questionable than it was before.