This right is a domestication of a provision contained in international instruments such as the International Covenant on Civil and Political Rights, Article 25 of which provides that every citizen shall have the right and the opportunity, without any unreasonable restrictions, to vote and to be elected at genuine periodic elections.

The general concern has been that party politics exert representation in proportion to their electoral support and this has undermined the right in Section 19, resulting in issues of corruption as the system lessens accountability between representatives and their constituencies. This is a limitation, to an extent, of democracy that envisages broader public participation.  As the Court stated, the exercise of these important rights is not within the gift of political parties which may choose who gets to enjoy the right to hold office. South Africans are bearers of these rights individually just as they hold the right to vote and which they exercise in secret as individuals.

Starting and running a political party costs lots and lots of money. The requirement that a person can stand for and be elected to public only through a political party is automatically exclusionary to the majority of the poor in this country who cannot establish their own political parties, because of poverty, in case they are not happy with what is on the menu at any given time.

There is appreciation in how the Court sets out the separation of powers between the Judicial and Legislative powers in dealing with the issue at hand and its deferring the Constitutional mandate to Parliament.  Importantly, while Parliament’s mandate extends to setting out legislation for the exercise of this right, an Act cannot prevent the exercise of Constitutionally entrenched rights.  
The Commission welcomes this judgment and looks forward to the necessary amendments being effected by Parliament to bring the Electoral Act in line with the Constitution and international instruments to ensure the exercise by individuals of this fundamental right.

Ends
Issued by the South African Human Rights Commission.
Gushwell Brooks – Communications Co-ordinator Tel: 082 645 8573 This email address is being protected from spambots. You need JavaScript enabled to view it.