"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. …