السلام عليكم ورحمة الله وبركاته
1. The Position in South African Law⎯
The Constitution of South Africa founds the state on universal adult suffrage, a national common voters’ roll, regular elections, and a multi-party system of democratic government (section 1(d)).
Section 19 guarantees every adult citizen the right to vote and to do so by means of a secret ballot. The Constitutional Court has treated the franchise as an expression of dignity and equal citizenship (see August v Electoral Commission 1999 (3) SA 1 (CC)). Elections are regulated by the Electoral Act 73 of 1998 and, for municipal polls, the Local Government: Municipal Electoral Act 27 of 2000.
2. Three features of the South African framework matter for the religious characterisation.
2.1. Voting is a right, not a duty. There is no compulsory voting.
2.2. The vote is secret, personal, and equal. There is no formal utterance, no personal contract with the candidate, and no oath of obedience.
2.3. The elected representative is not the voter’s agent in the legal sense. The voter has no power to instruct or unilaterally dismiss the representative during the term.
3. South Africa is also a secular constitutional state. Section 15 protects freedom of religion, and section 31 protects the right of religious communities to enjoy their religion. Participation therefore carries no religious commitment to any ideology.
4. The Shariah Characterisation⎯ The issue of voting as it finds application today and in specific in modern states, are not to be found explicitly dealt with in the classical works of jurisprudence.
5. The act of voting, had however received the attention of some modern juristic works. The act of voting was held to fall within four possible applications:
5.1. The act of voting amounts to testimony (shahādah): the voter is a witness to the candidate’s competence and integrity. This view however fails on the formal wording required and, on the certainty, required of a witness. In our view having regard to the legal structure as to how voting occurs, it does not amount to an act of
5.2. The act of voting amounts an allegiance (bay’ah). This characterisation is also not applicable to voting in South Africa, as voting is a means that does not amount to bay’ah. It is a choice of candidates or party, whereas bay’ah is a binding submission to a designated leader.
5.3. The act of voting amounts to an act of agency (wakalah/niyabah). Classical agency requires offer and acceptance between known parties and is revocable at will. Neither condition is met in the voting processes in South African law and
5.4. The act of voting is an act of choice and opinion on the fitness of a candidate (ikhtiyār, dalālah, ibdā’ al-ra’y). In my view, this characterisation accords with the reality of voting and elections in a South African context. The voter is expressing his or her choice, be that choice for a party or an individual.
6. Ruling for Muslims in South Africa
6.1. Voting is not an endorsement of un-Islamic legislation, nor a pledge of loyalty (muwalāt) to any non-Islamic doctrine. The setting within which a Muslim finds him or herself is a reality where the laws of the country are not based or founded on Islamic law. Rather the act of voting can be a means of securing rights, repelling harm, preventing oppression, and promoting justice within the available legal structures.
6.2. The mere fact that voting entails the exercise of choice does not absolve a Muslim of the obligation to consider the objectives of the sharī’ah when exercising that choice. Voting for a candidate and or party, intrinsically amounts to an act of co-operation. As Muslims, we are bound to co-operate to that that which is good and not co-operate to that which is bad.
6.3. Voting may become obligatory where the benefit is paramount for Muslims and where there are parties or candidates that are hostile to Muslims practising their religion.
6.4. Participation must be assessed by weighing benefits against harms (muwāzanāt al-maṣāliḥ wa al-mafāsid).
7. Governing Maxims⎯
The following Islamic law maxims find application when a person decides to vote for a candidate or party:
7.1. Means take the ruling of their ends (al-wasā’il lahā aḥkām al-maqāṣid). What this means is that voting should be seen as a means of achieving a specific objective. This objective should be one that is in accordance with the Shariah.
7.2. Harm must be removed (al-ḍarar yuzāl), and the greater harm is repelled by the lesser (yudfa’ ashadd al-ḍararayn bi-akhaffihimā).
7.3. Repelling harms takes precedence over procuring benefits (dar’ al-mafāsid muqaddam ‘alā jalb al-maṣāliḥ), and a preponderant benefit outweighs a minor harm.
7.4. Hardship brings ease (al-mashaqqah tajlib al-taysīr), and what is feasible is not waived because the rest is not (al-maysūr la yasquṭ bi-al-ma’sūr).
7.5. Matters are judged by their intentions (al-umūr bi-maqāṣidihā). The voter should intend that which will best serve the interests of the Muslims and the public good.
7.6. In summary voting in South Africa is, in law, an individual constitutional right exercised by secret ballot. In Shariah terms it is best characterised as ikhtiyār (choice), dalālah (guidance), and ibda’ al-ra’y (the expression of an opinion on a candidate’s fitness). It is not a form of testimony, allegiance, or agency. As a means (wasīlah) to protect the community and repel harm, it is permissible and recommended for Muslims. It may become a communal obligation to vote, where abstention would foreseeably expose the community’s rights, institutions, or safety to harm.
والله تعلى أعلم
And Allah knows best
Mufti Yaaseen Abass