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South African Constitutional Court rules on inmates' right to vote.

"A government that restricts the franchise to a select portion of citizens is a government that weakens its ability to function as the legitimate representative of the excluded citizens, jeopardizes its claims to representative democracy, and erodes the basis of its right to convict and punish law-breakers."

Section 19(3) of the South African Constitution states that every adult citizen has the right to vote. This right, as it extends to inmates, was recently tested in February in the Constitutional Court case Minister of Home Affairs and Others v. National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and Others. South Africa's particular history frames the right to vote in a context that is often loaded with emotional content, while South Africans are coming to grips with the obligations (and fragility) of a constitutional democracy. Current crime levels and, particularly, violent crime do not engender sympathy for offenders among the general population.

On March 3, 2004, the South African Constitutional Court ruled on the application brought by NICRO and two inmates regarding the Electoral Laws Amendment Act (34 of 2003) that excluded inmates serving a sentence without the option of a fine from registering for and participating in the elections. Due to a convergence of circumstances, the Constitutional Court allowed the Department of Home Affairs' application direct access to the highest court of the land, without the application to the Cape High Court being decided upon, as is normally required. Each election since 1994 has seen constitutional litigation regarding inmates' right to vote.

Before looking at the results and consequences of this Constitutional Court ruling, NICRO's motivation for bringing this application and its importance within the broader context of prison reform needs to be explored.

Motivation for the Application

NICRO and the Community Law Centre at the University of the Western Cape established the Civil Society Prison Reform Initiative (CSPRI) to address the human rights concerns of inmates and to support prison reform in South Africa through research and evidence-based lobbying and advocacy. It was through this collaborative project that litigation was initiated, using NICRO as the applicant in the Cape High Court.

The government's response to crime levels has placed the emphasis mainly on a "law and order" approach; thus, stimulating an increasingly intolerant attitude of the public toward inmates. CSPRI is deeply concerned about the general erosion of inmates' rights and this trend is not unique to South Africa; it can be observed in other parts of the world as well. The concern about the erosion of inmates' rights is based on a number of factors that informed the decision to litigate.

First, there is limited involvement from civil society in the debate on corrections and prison reform, and the quality and depth of the debate is often based on very select and dated information. In addition, there currently is weak civilian oversight in corrections and what oversight that exists is occurring within the context of widespread corruption, as evidence before the inquiry of the Jali Commission, which was established to investigate corruption in the Department of Correctional Services, continues to show. This creates a dangerously fragile environment for human rights in prisons.

At the stage when litigation was contemplated, it had been six years since the Correctional Services Act (111 of 1998) had been passed by South Africa's Parliament, but not yet promulgated in full. Limited sections, such as those relating to the Office of the Inspecting Judge of Prisons and the National Council on Correctional Services, were put into effect. It was especially the chapters of the act that described the minimum standards in relation to inmates' basic rights that remained in limbo. (2) In the absence of a clear legislative framework that regulates prisons, there was an obligation to be extra vigilant.

Another important factor is the severe overcrowding of South African prisons that has a direct impact on the rights of inmates on a daily basis. On average, South African prisons are 68 percent over capacity, although there are individual prisons that are close to 300 percent over capacity, according to the Judicial Inspectorate for Prison. In addition, as a result of their physical containment, inmates have limited ability to address their concerns. While most prisons have independent prison visitors, (3) and although there are departmental complaints mechanisms in place, CSPRI is aware that much of what happens in prisons does not reach the outside world.

Finally, if inmates were to lose the right to vote, it would signal a fundamental departure from South Africans' understanding of a constitutional democracy in the post-1994 period. This could open the door for the curtailment of other rights of inmates, and possibly other sectors in the population.

Inmates and Citizenship

Central to the issue of the rights of inmates to vote is the understanding of citizenship. In modern times, the imprisoned offender does not suffer "social death" leading to forfeiture of all civil rights. (4) The history of democracy is indeed one of growing inclusion. Constitutional Court Judge Albie Sachs described this notion of citizenship in August and Another v. Electoral Commission and Others: "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 that everybody counts." (5)

For inmates, the right to vote becomes a fundamental--even symbolic--link to the outside world. More important, it affirms that they enjoy protection under the constitution because they are full citizens and can participate in political decision-making. If an inmate cannot vote, what is his or her status in a democracy? Is it akin to that of a foreigner with permanent residence?

The right to vote is absolutely fundamental in a democracy and both the Canadian Supreme Court and the South African Constitutional Court have accepted this premise. Justice Arthur Chaskalson described this in the South African context in Minister of Home Affairs and Others: "In the light of our history, where denial of the right to vote was used to entrench white supremacy and to marginalize the great majority of the people of our country, it is for us a precious right, which must be vigilantly respected and protected."

Issues of the Case

The Electoral Laws Amendment Act, (6) promulgated in December 2003, provided that only awaiting trial inmates and inmates serving a prison sentence with the option of a fine would be allowed to register for and participate in elections. The result was that inmates who were serving a prison sentence without the option of a fine would not be able to register and, thus, not vote.

The Department of Home Affairs motivated this exclusion with essentially three arguments. First, the department argued that it would be logistically difficult and too costly to register all inmates. They also suggested that it would be unfair to make special arrangements for serious offenders (presumed serious because they are serving a prison sentence without the option of a fine) while the same arrangements were not being made for law-abiding citizens who could not vote at ordinary voting stations. Finally, the result would be that the message being sent out to the public is that the government favored offenders and was, therefore, soft on crime.

The Constitutional Court did not accept the cost and logistics argument for two reasons: The Electoral Commission had already visited all the prisons to register inmates awaiting trial and those not affected by the legislative amendments, and the government did not present the court with sufficient evidence to show the contrary. (7) This left the court to deal with the issue of whether policy is sufficient reason for a limitation of rights and whether this meets the requirements set out in Section 36 of the constitution.

The Constitutional Court based its decision to declare the relevant sections of the Electoral Laws Amendment Act unconstitutional on essentially three points. First, the Electoral Laws Amendment Act resulted, in effect, in the disenfranchisement of all inmates serving a term of imprisonment without the option of a fine and this limitation of the right to vote does not conform to the requirements set out in S 36(1) of the constitution, which states:

36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

a. The nature of the right;

b. The importance of the purpose of the limitation;

c. The nature and extent of the limitation;

d. The relation between the limitation and its purpose; and

e. Less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

The Constitutional Court has stated on several occasions that section 36 requires a proportionality analysis, which Chaskalson described, stating that what must be considered is the importance of a right against the impact of its limitation, and ask if a less restrictive measure will not achieve the same result. (8)

In this process, different and sometimes conflicting interests and values may have to be taken into account. Context is important and sufficient material should always be placed before a court dealing with such matters to enable the court to weight up and evaluate the competing values and interests in their proper context.

In weighing these rights and concerns as a possible justification for the limitation, the court found that the government was not convincing and was critical of its attempt to use the right to vote as a means of improving its public image: "It could hardly be suggested that the government is entitled to disenfranchise prisoners in order to enhance its image; nor could it reasonably be argued that the government is entitled to deprive convicted prisoners of valuable rights that they retain in order to correct a public misconception as to its true attitude to crime and criminals." (9)

The court's next argument was that the state failed to provide the court with sufficient information as to why it sought to disenfranchise the group of inmates targeted and what purpose the disenfranchisement was intended to serve. Chaskalson described it as follows: "Mr. Gilder [director general, Department of Home Affairs] mentions crimes involving violence or even theft, but the legislation is not tailored to such crimes. Its target is every prisoner sentenced to imprisonment without the option of a fine. We have no information about the sort of offenses for which shorter periods of imprisonment are likely to be imposed, the sort of persons who are likely to be imprisoned for such offenses and the number of persons who might lose their vote because of comparatively minor transgressions. In short, we have wholly inadequate information on which to conduct the limitation analysis that is called for." (10)

There is another layer to this in the sense that the entire criminal justice system is there to address crime--the police, prosecution service, courts and even prisons. But, the inmates' right to vote for those serving a sentence without the option of a fine was being presented as the final hope for addressing crime in South Africa.

The final argument was that the Electoral Laws Amendment Act provided for blanket exclusion that had long since failed scrutiny in the first Sauve v. Canada case, which also examined inmates' right to vote. (11) In the absence of information explaining why these inmates are being targeted, what the potential impact of the limitation would be and how this will address current crime levels, the court was left with no option but to rule in favor of NICRO.

Consequences of the Decision

The most immediate result was that all inmates were allowed to register and vote in the April 2004 elections. Given the limited time between the judgment date (March 3, 2004) and election date (April 28, 2004), there were some problems because not all inmates had access to their bar-coded identity documents. However, feedback from the Judicial Inspectorate for Prisons indicated that registration did take place in time.

Since there has been intense public debate and media attention on this matter, if this is to be used as any gauge, the conclusion has to be that the Constitutional Court did not make a very popular decision. Nonetheless, it also provided the platform for other matters regarding prison reform to be raised, especially at the time when a new Correctional Services White Paper (a policy document) has become available and the Correctional Services Act promulgated in full. The case highlighted the position of inmates in terms of their constitutional rights and the judgement raised a number of issues that are relevant to prison reform on a broader level. The most important is that should the government wish to limit any rights of inmates, it will have to pass intense scrutiny by the Constitutional Court and that the court will not be swayed by public opinion or knee jerk reaction from government. (12)

What also resulted from the judgement is the confirmation that inmates are full citizens and are, thus, entitled to vote, and only those rights that need to be curtailed to implement the sentence of the court are in fact affected. Inmates remain part of society, although temporarily segregated, and need to be treated as citizens. Curtailing their rights in more ways than the absolute minimum required places society on a slippery slope of creating second class citizens. Central to the successful reintegration of inmates are human rights and approaching reintegration from a rights-based perspective, engendering a respect for the self and fellow humans. It is, therefore, not surprising to see that the Canadian Supreme Court, in Sauve v. Canada, comments on this: "Lastly, the negative effects of denying citizens the right to vote would greatly outweigh the tenuous benefits that might ensue. Denying prisoners the right to vote imposes negative costs on prisoners and on the penal system. It removes a route to social development and undermines correctional law and policy directed towards rehabilitation and integration."

There is a growing body of local and international case law relating to the right of inmates to vote. It is clear that the South African Constitutional Court and the Canadian Supreme Court are thinking along similar lines at this stage. It should also be said that in both courts, the decision was not unanimous. In Canada, the bench was split 5-4, while two judges in South Africa dissented. Also, the European Court of Human Rights recently struck down a law that prevents convicted offenders from voting in Hirst v. the United Kingdom. (13)

The relevant sections of the Electoral Laws Amendment Act were found to be unconstitutional, essentially because its blanket exclusion of a large number of inmates was not sufficiently motivated by the state. However, this decision may not be the end of the road should the government decide to make another attempt to limit this right and present a more convincing and factually based argument that meets the requirements in terms of S 36(1) of the South African Constitution.

ENDNOTES

(1) Sauve v. Canada (Chief Electoral Officer). 2002. 3 S.C.R. 519, 2002 SCC 68, paragraph 34.

(2) On July 30, 2004, the remaining chapters of the act were promulgated save for Chapters 6 and 7, which came into force on Oct. 1, 2004.

(3) Independent prison visitors are members of the public who are appointed by the Judicial Inspectorate for Prisons in terms of the Correctional Services Act (111 of 1998) to visit prisons on a regular basis, hear complaints from inmates and, where possible, resolve them. For a more detailed description and evaluation of the Judicial Inspectorate and the independent prison visitors system, see: Gallinetti, J. 2004. Report on the evaluation of the Independent Prison Visitors System, CSPRI Research Paper Series No. 5. Available at www.nicro.org.za/cspri; and Jagwanth, S. 2004. A review of the Judicial Inspectorate of Prisons of South Africa, CSPRI Research Paper Series No. 4. Available at www.nicro.org.za/cspri.

(4) Sauve v. Canada (Chief Electoral Officer). 2002. 3 S.C.R. 519, 2002 SCC 68, paragraph 43.

(5) 1999. (4) BCLR 363 (CC).

(6) Act 73 of 2003, amended by the Electoral Laws Amendment Act 34 of 2003.

(7) Minister of Home Affairs and Others v. NICRO and Others, CCT 03/04, paragraphs 49 and 51.

(8) Citing S v. Manamela and Another (Director-General of Justice intervening). 2000. (3) SA 1 (CC).

(9) Minister of Home Affairs and Others v. NICRO and Others, CCT 03/04, paragraph 56.

(10) Minister of Home Affairs and Others v. NICRO and Others, CCT 03/04, paragraph 67.

(11) Minister of Home Affairs and Others v. NICRO and Others, CCT 03/04, paragraph 67.

(12) De Vos, P. 2004. South African prisoner's right to vote: Addendum to "prisoner's rights litigation in South Africa: A critical evaluation," CSPRI Research Paper No. 2, Cape Town, South Africa. Available at www.nicro.org.za/cspri.

(13) Hirst v. United Kingdom, unreported Application number 74025/01.

Lukas Muntingh is deputy executive director of the National Institute for Crime Prevention and the Reintegration of Offenders, a national nonprofit organization based in Cape Town, South Africa. He is also co-manager of the Civil Society Prison Reform Initiative.
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Title Annotation:CT FEATURE
Author:Muntingh, Lukas
Publication:Corrections Today
Geographic Code:6SOUT
Date:Dec 1, 2004
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