Shortly before the last national election five years ago, the Constitutional Court upheld an application for an order declaring a section of the Electoral Act that prevented prisoners from voting to be unconstitutional.

As SA prepares for election 2009, there is every chance that the guardians of our constitutional democracy will be called on to repeat the process. This time it will be to ensure that expatriates are not denied their rights as citizens by an amendment to the law that was — ironically — approved by Parliament at about the same time as prisoners were regaining theirs.

South Africans living abroad were able to vote in both the first democratic poll in 1994, and the subsequent national election of 1999. But the ruling party, in its wisdom, either decreed that the mainly white expatriates who continued to leave SA’s shores in droves were unpatriotic and had therefore forfeited their voting privileges, or was persuaded by the Independent Electoral Commission (IEC) that the logistics involved in collecting ballots from abroad were too onerous. Either way, the law was amended in 2004 and hundreds of thousands of South Africans were disenfranchised at a stroke of then-president Thabo Mbeki’s pen.

As the Electoral Act now stands, the IEC is obliged to grant special votes only to those who are based outside the country on official business, or are studying abroad, participating in an international sporting event, enjoying an overseas holiday or on a business trip. But this throws up any number of inconsistencies that fly in the face of administrative justice. A number of opposition parties are in the throes of challenging the amendment, both in the lower courts and through direct applications to the Constitutional Court, pointing out that somebody who happened to be visiting a neighbouring state on election day would not be allowed to vote if he was there to bury a family member, but could if the intention was something as frivolous as seeing Victoria Falls. And if a Springbok happens to be playing a test in Australia on that day he will qualify for a special vote, but the same player will be turned down if he is there with his Super 14 team.

Such silliness obscures a more serious issue: why South Africans who have chosen to live abroad, for whatever reason, have been arbitrarily disenfranchised. Section 19 of the constitution states that every citizen of the country has the right to vote, and the Constitutional Court made clear in its ruling in favour of convicted prisoners that, given SA’s history of denying people their fundamental rights on the basis of race under apartheid, limiting the right to vote in a democratic SA should not be considered in any but the most extreme circumstances.

That hardly applies to the IEC arranging for expatriates to vote, since it already has to allow for all the diplomats, students, business people and holidaymakers who will presumably be applying for special votes in terms of the existing law. How difficult can it be for that right to be extended to all South Africans who happen to be out of the country, regardless of whether they consider their absence to be temporary or longer term? Living abroad is not a crime, whatever the motivation, and even if it was the court has already ruled that the only qualification criminals need to vote is that they are South African citizens.