Why defranchise aliens?

| Friday November 6, 2009 00:00

I will argue hereunder that it is not only imperative but necessary to enfranchise non-citizens.

It is apt at this juncture to point out that Botswana is a sovereign republic (Section 1 of the Constitution of Botswana, Cap 01:01) characterised by multi-party democracy. This must by extension mean that its governance and social ethos are firmly committed to and guided by the principles of democracy, good governance, rule of law and respect for human rights. To say Botswana's democracy is attended by acute deficiencies is a truism. I seek not to catalogue all the shortcomings of this democracy in this piece.

Some commentators have already touched on this issue elsewhere. For instance, Mike Dingake's sage and erudite column in Mmegi, As I See It hardly fails to decry the erosion of democracy in this country. This notwithstanding, democratic credentials of Botswana are hailed the world over. Courts of law of this land have also joined the chorus.
Remember the words of Aguda JA in the watershed case of Attorney General v Dow [1992] BLR at p. 168 when he said:

'I wish to take judicial notice of that which is known the world over that Botswana is one of the few countries in Africa where liberal democracy has taken root. It seems clear to me that all three arms of the government - the Legislative, the Executive and the Judiciary - must strive to make it remain so except to any extent as may be prohibited by the Constitution in clear terms'.

In the Kenneth Good case [2005] 2 BLR at p.343, Tebbutt P, put the matter thus:
'The 'few countries' of which Aguda JA spoke may have in the intervening years increased in number, but the democratic ideals of Botswana have remained a cornerstone of Botswana society - in all three arms of government. One of the essential fundamentals of democracy is the rule of law. It is undisputed and beyond argument that Botswana has always respected the rule of law and the citizens - and also non-citizens - of the county have those rights that form the very basis of a democratic society protected by the Constitution.

Given the controversial case of the deportation of Professor Kenneth Good by the President from Botswana on undisclosed grounds, the disturbingly spiralling frequency of an ugly phenomenon of allegedly state-sanctioned extra-judicial executions visited on unarmed civilians, tribal inequalities sanctioned by the Constitution of the land, the absence of a robust Human Rights Commission and the exclusion of socio-economic rights in the constitution of the land, can the above judicial pronouncements go beyond mere platitudinous rhetoric? This for you is food for thought. Without further belabour on extraneous issues, I turn to the central issue for discussion in this article.

The hallmark of a vibrant democracy is the holding of regular, free and fair elections. Although there has been general displeasure from opposition parties, arguing that the ruling party monopolises state resources, including ministerial vehicles and state media, there are no readily cognisable legal bottle necks contained in statute books attendant to our electoral processes that undermine the spirit of competition amongst political formations. This said, however, Botswana does not allow aliens to vote or be voted in elections. Section 67(1) of the Constitution recognizes the right to vote. It states, to the extent that is relevant that, a person who is a citizen of Botswana or of any other country to which this section is applied by Parliament shall have the right to vote. Section 67(1) (c) provides that a person who has either been resident in Botswana for a continuous period of atleast 12 months immediately preceding the date on which he applies for registration as a voter or was born in Botswana and is domiciled in Botswana on the date on which he applies for registration as a voter, shall, unless he is disqualified for registration as a voter under any law be entitled, upon his making application in that behalf at such time and in such manner as may be prescribed by any law, to be registered as voter for purposes of elections of Elected Members of the National Assembly, and no other person may be so registered. It is noteworthy to state that the first and primal qualification for registration as a voter in Botswana is that one should be a citizen. Parliament has not exercised its powers given under Section 67 (1) (a) to prescribe a country whose citizens would attract voting rights in this country.
As indicated above, according to Section 61(a) of the Constitution, a person shall not be qualified to be elected to the National Assembly unless he is a citizen of Botswana. The South African equivalent of Sections 61 and 67 of Botswana Constitution is Section 19 of the South African Constitution. It states that every citizen is free to make political choices, which includes the right to form a political party, participate in the activities of, or recruit members for a political party; and campaign for a political party or cause.
Subsection 3 thereof enfranchises citizens only. It states that South African citizens, have the right to elect and be elected to public offices. It grants the right to citizens only to the exclusion of all others. It is argued that the positions presented by these two Constitutions respecting to the participation of aliens in local political processes is a relic of the bygone age. It resembles the ancient Athenian state of affairs where the highest form of democracy was enjoyed by the citizens of Athens who were served by a vast group of aliens. Unlike in Botswana, elsewhere aliens have acquired  voting rights in national elections. In 1975, Sweden became the first country in Western Europe to enfranchise non-citizens.  The decision by the Swiss shall forever be celebrated in the history of international migration policy. Following this watershed decision by Sweden, the European community made a proposal for a uniform policy on the local franchise for aliens.

The issue of voting rights of aliens was also discussed in April 1978 at the negotiation session in Strasbourg. The Council of Europe and the European Conference of Minister of Migration expressed their unflinching support for the idea. A number of countries such as Denmark, Norway, Finland, Netherlands, Ireland and New Zealand have welcomed this noble idea. At present, foreign nationals who have been resident in Sweden for a minimum period of three years directly preceding the election enjoy the right to vote and to be elected.

I must pause here to observe that there and Individual national cases, which are in line with the Swiss practice.

European Union residents in Belgium were given the right to vote and to be candidates for the 1994 European Parliament election, then for the 2000 Municipal elections. They had, however, first only the right to be elected as municipal councillors, not at the executive level (schepen/alderman or burgomaster/mayor), the alderman level was only opened for them from the 2006 Municipal elections.

The mayor level may not be opened to them because it includes a function of administrative police. In conformance with EU regulations, EU residents are submitted to the same residence conditions as Belgian nationals, i.e. residence in the commune at the closure date of the electoral roll (July 31 for the municipal elections).

In 2004, voting rights in municipal elections were extended to non-European Union foreigners living in Belgium, with certain conditions attached. Non-EU foreigners must have been living in Belgium for at least five years before becoming entitled to vote. Any non-EU foreigner who wants to take advantage of the new legislation must also sign an oath of allegiance to the Belgian constitution, formally agree to respect the country's laws and sign the European Convention on Human Rights.

To this end, it is strongly recommended that Botswana must step out of its pre-civilization cocoon and appreciate the import of permitting aliens to participate in the political processes of this country. This argument is more potent when viewed within the context that like citizens, aliens also pay tax. The aliens' right to vote should, however, not be a sweeping right. Only aliens who have lived for a considerable period of time in the country should be entitled to vote.

The legislature is best placed to designate a suitable duration to be endured by an alien before he can be entitled to vote. Surely, decisions of the government of the day directly impact on the lives of all who live within the territories of the country including aliens.

It is, therefore, as preposterous as it is undemocratic and unrealistic to expect aliens to submit to directions of an authority they did not assist in constituting.

In concluding, I must state that in a democratic dispensation, voting is a fundamental right par excellence. A deprivation of the right to vote is perforce a violation of human rights. Respect for fundamental human rights should not remain an ideal to be achieved, but a requisite foundation for every human society.

The question of respect for human rights is so fundamentally important that there should be no difference of views on it. We must, therefore, insist on a global consensus on the issue of enfranchisement of non-citisens. Surely there is no comprehensive rationalisation both at theoretical and practical levels as to why non-citizens cannot vote in national elections in a foreign land yet they continue to contribute to the revenue of that country through tax pay.

Obonye jonas
FRANCISTOWN