Elections 2024: Are Prisoners in South Africa Allowed to Vote?

03 June 2024 ,  Ethan Du Toit 748

The right to vote in South Africa carries unique significance in our democracy. It is a right that was withheld from the majority of people in South Africa during the apartheid regime. The context in which the right to vote must be viewed is that the right was not freely given to all citizens, but it is a right that was fought for during apartheid and obtained through democracy. The purpose of this article is to explore the question of whether prisoners in South Africa, irrespective of the crime they have committed, are entitled to vote. 

In the case of August and Another v Electoral Commission and Others (“August”) the Constitutional Court was faced with the question of whether prisoners are entitled to vote in democratic South Africa. In this matter, the first applicant was a convicted prisoner serving a long sentence for fraud and the second applicant was an awaiting trial prisoner on charges of fraud. They acted in their own interest and on behalf of all prisoners. In essence, they sought clarity on whether prisoners are entitled to vote in South Africa. 

The Independent Electoral Commission (“IEC”) refused to take the necessary steps that would allow prisoners to vote in the elections. The reasons behind the IEC’s refusal were two-fold: they argued that prisoners are the authors of their own misfortunes and that there would be numerous logistical arrangements involved to ensure that prisoners could vote. The applicants argued that the IEC had a duty to facilitate the registration of prisoners which would enable them to vote. It was up to the court to decide whether such a duty had in fact existed. 

The Constitutional Court in its reasoning held that “Universal adult suffrage (voting rights) on a common voters’ roll is one of the foundational values of our entire constitutional order. The achievement of the franchise (right to vote) has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. 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.”

The Constitutional Court emphasised the importance of voting rights in South Africa’s democracy and also referred to Section 19 (3) of the Constitution which protects the right of every adult citizen to vote. The words “every adult citizen” as mentioned in the Constitution, include those who are in prison. Furthermore, the court held that there was a positive obligation on the IEC in the present matter to facilitate the registration of prisoners which will enable them to vote. 

In addition, the Constitutional Court acknowledged the fact that South Africa is a country characterised by criminal violence, and the idea that murderers, rapists, and armed robbers should be entitled to vote will offend many people. It can be inferred from the court’s reasoning here, and throughout the judgment that irrespective of the nature of the crime committed by a prisoner, they remain legally entitled to vote. 

The right of a prisoner to vote is not an absolute entitlement and Parliament can in certain instances exclude certain prisoners from voting. The Constitutional Court held that the judgment must not be read to suggest that Parliament is prevented from excluding certain categories of prisoners from voting.

Currently, in South Africa, no legislation excludes prisoners or certain categories of prisoners from voting in the national elections. Should Parliament in the future decide to adopt legislation to exclude certain categories of prisoners or prisoners in general from voting, such exclusion would need to be reasonable and justifiable in terms of section 36 of the Constitution (general limitation clause). 

In conclusion, the current legal position in South Africa is as follows; prisoners in South Africa are entitled to vote in the national and provincial elections irrespective of the nature of the crime committed, and the length of the sentence. However, Parliament can exclude certain categories of prisoners from voting, provided that such exclusion passes constitutional scrutiny under section 36 of the Constitution. 

Reference List:
1. August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1. 
2. Muntingh, L. (2019) “The right of prisoners to vote in Africa: An update” Africa Criminal Justice Reform, University of the Western Cape, 2. 

Ethan Rico du Toit is a candidate attorney at Miller Bosman Le Roux Attorneys.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. 

Tags: Elections