Monday, October 13, 2003

Hi, this is my first entry on Southern Cross. Andrew and I decided to start this blog because were both rather disappointed by the poor level of debate in and about South Africa. In general, the South African press is rather lacklustre and we seem to lack a public sphere equivalent to that which exists in the US and UK. We've also both been impressed by the British press and the fact that US students seem keen on debating their national issues - especially in the blogosphere. Since we discuss politics a lot anyway, we thought there'd be no harm in putting our thoughts online and trying to get more people involved. Not that we think we can change anything over night. But it would be great to hear from others who are interested. As this blog develops, we're also likely to branch out into UK and maybe US issues. But, as the name implies, South and Southern Africa will be the focal point.

Where to start? I thought I'd kick off by adding my two cents worth to the voting debate. For those out of the loop, the ANC has amended the Electoral Act so as not to allow South Africans abroad to vote, ostensibly on the basis of resource constraints. Now, most South Africans overseas are white and its no secret that most whites - although not all - are unlikely to vote for the ANC. I therefore don't think its particularly controversial to conclude that the political advantage that would accrue to the ANC as a result of this amendment was - at the very least - a factor taken into account.

Like Andrew, however, I was surprised by the response that this suggestion provoked during an e-mail discussion. At least one camp insinuated that even holding this view betrays some sort of prejudice, or inherant lack of faith in the present government. Any criticism of the ANC seems to immediately lump you in with those who believe that the country as whole is going down the tubes because blacks can't govern etc. Needless to say, this is an extremely unhealthy situation. Democracy thrives on public debate; it is not meant to stifle it. As the late Edward Said once remarked, 'I want there to be a Palestinian state so that I can begin to criticise it.' As young educated South Africans we should see this as our task; diligently constructing defences of questionable government policy isn't going to get us anywhere.

Enough of that. Andrew's said this better than me. I thought I'd pick up on one very interesting remark that Andrew made. He said that the right to vote is a right and shouldn't be subject to resource constraints. Given that I've just written an Mphil on socio-economic rights in the South African Constitution, I naturally feel compelled to comment on this.

Firstly, all rights cost something. That might seem surprising. After all, certain rights - such as the right not to be tortured - seem only to require that the government abstain from doing certain things. But, if the right not to be tortured is to mean anything, the state has to provide a system of independent courts for its enforcement. Otherwise it isn't a legal right. And that does cost money. For a good book on this see The Cost of Rights by Holmes and Sunstein.

That said, some rights cost more than others. And, here, sadly, resource constraints do determine the scope of rights. This is obvious in relation to socio-economic rights, such as the right of access to housing, which are expressly framed in terms of available resources. But its also the case with more well-established rights, such as the right to be tried within a reasonable time. I won't go into details but there's a Canadian case called R v Askov in which the Supreme Court implicitly took resource constraints into account in determining what constitutes a reasonable time within which to be tried.

Now, most relevantly to our present discussion, the right to vote also costs a lot of money. As a result, when adjudicating this right, the South African Constitutional Court has employed what we lawyers call 'low-intensity' review. In the NNP and DP cases - which challenged the government's decision to restrict voting to people with bar-coded IDs - the Court held that the state need only show a 'rational connection' between the electoral scheme established and the purpose that it was seeking to achieve, namely, a free and fair election. The Court's reason for adopting this stance was, reading between the lines, that elections cost money and require a great deal of complex organisation that the judiciary is ill-equipped to oversee.

Regarding the present controversy, it seems clear that the government's argument - that resource constraints prevent it from extending the vote overseas - is rational, even if we have reason to think it is disingenuous. For this reason, I don't think that a legal challenge would succeed. That's not to say that I agree with the government's decision. As mentioned, I agree with Andrew that its a cynical move. Its just not one that can be resolved through the courts.


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