Electoral Amendment Bill [B22-3013]: briefing by Independent Electoral Commission

Home Affairs

19 August 2013
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Meeting Summary

The Independent Electoral Commission (IEC) briefed the Portfolio Committee on Home Affairs on the Electoral Amendment Bill.  In 2004, the Electoral Act stated that only prisoners who were not serving a sentence without the option of a fine, may vote.  The National Institute for Crime Prevention and Re-integration of Offenders (NICRO) had challenged that provision.  The Constitutional Court had found the provision to be unconstitutional and all prisoners were allowed to vote.  The Bill sought to bring the provisions in line with the Constitutional Court.

In 2009, with regard to South Africans abroad, there were a number of cases that had been brought before the Constitutional Court.  These cases had been consolidated into one case, famously known as the “Richter case.”  It challenged the ruling that only members of the diplomatic corps, or their families, or those temporarily absent from the Republic for purposes of a holiday, a business trip, attendance at a tertiary institution or an educational visit or participation in an international sports event, could vote, provided they were already registered,.  The Constitutional Court had found the differentiations had no basis in law and the provisions to be unconstitutional.  South Africans abroad were then allowed to vote, provided they were already registered and again, the Bill sought to bring the provisions in line with the Constitutional Court

After the Committee had been briefed on the amendments clause by clause, Members asked the IEC delegation for details on their effect on South Africans voting abroad, the use of the new ID cards to identify voters, registration and voting at South African missions and embassies abroad, and the need to protect the integrity and credibility of the voters’ roll.

The Chairperson summarised that the IEC was protecting the voters’ roll by treating all voters, whether in South Africa or abroad, equally.   The Amendment Bill would still go through the pre-determined programme of public submission, public hearings and deliberations.
 

Meeting report

Election of Acting Chairperson
The Committee Secretary said the Chairperson was not present and a chairperson must be appointed.  Mr Gaum (ANC) was nominated and appointed as Acting Chairperson, and welcomed the Committee, the Independent Electoral Committee (IEC) delegates and guests. 

Briefing by Independent Electoral Commission
Adv Pansy Tlakula, Chairperson of the IEC, briefly contextualised the Electoral Amendment Bill.  In 2004, the Electoral Act stated that only prisoners who were not serving a sentence without the option of a fine, may vote. The National Institute for Crime Prevention and Re-integration of Offenders (NICRO) had challenged that provision. The Constitutional Court had found the provision to be unconstitutional and all prisoners were allowed to vote. The Bill sought to bring the provisions in line with the Constitutional Court.

In 2009, with regard to South Africans abroad, there were a number of cases that had been brought before the Constitutional Court. These cases had been consolidated into one case, famously known as the “Richter case.”  It challenged the ruling that only members of the diplomatic corps, or their families, or those temporarily absent from the Republic for purposes of a holiday, a business trip, the attendance at a tertiary institution or an educational visit or participation in an international sports event, could vote, provided they were already registered. The Constitutional Court had found the differentiations had no basis in law and the provisions to be unconstitutional. South Africans abroad were then allowed to vote, provided they were already registered and again, the Bill sought to bring the provisions in line with the Constitutional Court. 

Mr Mosotho Moepya, IEC Chief Electoral Officer, outlined the objects of the Bill. These were to:

• Amend the Electoral Act, 1998 (Act No. 73 of 1998);
• Amend and insert certain definitions;
• Revise provisions relating to special votes in elections for the National Assembly (NA) and Provincial legislatures;
• Revise provisions relating to the number of party agents at a voting station;
• Correct certain important technical aspects in the text of the Act; and
• Provide for matters connected therewith.

Clause 1 amended Section 1 to effect certain technical changes and to insert the definition of a South African passport and a definition of the smartcard identity document.

Clause 2 amended Section 6 to provide for the production of a valid SA passport for any person who was ordinarily resident outside the Republic when registering as a voter, in addition to an identity document.

Clause 3 amended Section 7 in order to provide for an application for registration as a voter to be made in person.  Section 7 was amended by deleting subsection (2) - the creation of an international section of the voters’ roll had rendered this provision redundant.

Clause 4 amended Section 8 for the entering of the name of a person who was ordinarily resident outside the Republic in the segment of the voters’ roll created for that purpose.  Voters may be registered only in the voting districts in which they were ordinarily resident.  To register persons outside of the Republic, a segment was created to accommodate these persons where they were actually resident.  Segments of the voters’ roll connected a voter with “entities” such as a ward, municipality, and province.  Section 8 (2) (f) was declared unconstitutional by the Constitutional Court (Case CCT 03/04), and as such was deleted.

Clause 5 – reference to imprisonment without the option of a fine was deleted in subsection (1) of Section 24B, and subsection (2) of Section 24B was deleted which made provision that a person may only vote if he or she was not serving a sentence of imprisonment without the option of a fine.

Clause 6 (special votes) removed categories of voters outside of the Republic, and was brought into line with the judgment of the Constitutional Court in the Richter case (CCT 03/09 and 09/09). The clause brought parity between the Act and the Municipal Electoral Act (27 of 2000) by introducing a special voting dispensation for any person who was absent from the voting district on Election Day.  The clause substituted Section 33 of the Act in order to provide for the Commission to allow a person to apply and cast a special vote, prior to election day, in the election for the National Assembly (NA), if that person could not vote at a voting station in the voting district in which he/she was registered as a voter, due to specifically outlined reasons.

Clause 6 (Special votes – National Assembly) - the proposed Section 33(3) provided for the persons who intended to be absent from the Republic to vote on special voting days in the voting district before proceeding abroad.  Such persons must notify the Chief Electoral Officer (CEO) of their intended absence within 15 days of proclamation.  Section 33(4) provided for persons who were registered in voting districts in the Republic, but who would be outside the Republic on Election Day.  Such persons should notify the CEO of their intention to vote and the mission where they intended voting within 15 days of proclamation.  Section 33(5) provided for special votes for persons registered on the segment of the voters’ roll for persons ordinarily resident outside of the Republic, and such persons should notify the CEO of their intention to vote and the mission at which they intended to vote.  Section 33(6) proposed votes cast in accordance with subsections (4) and (5), i.e. votes cast outside of the Republic, would for the purposes of Schedule 1A be counted nationally.  Section 33(7) provided that the Commission should prescribe procedures for the application of special votes for the NA.

Clause 7 (Special votes – Provincial Legislature) – inserted Section 33A, which provided for the Commission to allow a person to apply for and cast a special vote, prior to election day, in the election for provincial legislatures, if that person could not vote at a voting station in the voting district which he/she was registered as a voter due to specific circumstances. The proposed Section 33A (2) was a general provision for all persons who would be absent from the voting district on Election Day and, if approved, would vote within the voting district on a special voting day. The proposed Section 33A (3) provided for persons who intended to be outside the Republic on Election Day, but wished to vote in the voting district before going outside the country.  Such persons should notify the CEO within 15 days of proclamation of their intention to vote before proceeding abroad.  Section 33(4) conferred the authority on the Commission to prescribe n procedures for application of special votes for provincial legislatures.

Clause 8 repealed Section 34 which provided for the declaration of votes in certain circumstances.

Clause 9 amended Section 57 in order to effect certain technical amendments.

Clause 10 amended Section 58 in order to make provision for sufficient agents, if counting at a voting station took place in more than one room or separately enclosed area, i.e. two agents in respect of each area or room, in the case of a party contesting an election.  Each sub-station in a voting area would have two party agents per party.

Clause 11 dealt with the short title.

Mr Moepya said that the National Part Liaison Committee had been consulted and the Bill had been published for public comment.  There would be substantial financial implications relating to the registration of voters outside the Republic and the administration of special votes both inside and outside the Republic.  The projected amount was R5.7 million, and would be funded by re-adjusting existing allocations.

Discussion
The Chairperson explained his understanding of the key points.  An ordinary resident not in the voting district in which they had been registered, being elsewhere in South Africa, could vote in the provincial legislature or the NA if they applied under the special vote regulations.  If a person was not in the voting district on election day, being elsewhere in South Africa or abroad, and such a person could vote only in the NA.  He asked the Commission to confirm this.

Adv Tlakula confirmed the Chairperson’s summary.

The Chairperson asked how the registration and voting process for South Africans abroad would work – could they vote only at missions. Why was it not possible to allow the casting of a provincial vote by South Africans not in the voting district, either elsewhere in South Africa or those abroad?

Mr Sy Mamabolo, Deputy Chief Electoral Officer: Electoral Operations, IEC, replied that a person residing abroad would register at the mission or embassy, and segments of the roll would have components for overseas registration specified for countries such as Botswana, or the US, for example.  Voting overseas would work as per normal.   The provisions of the Bill stated that a person should register to vote

Mr M de Freitas (DA) asked, in connection with the voters’ roll, since South Africans abroad could only vote nationally, how would it be possible to distinguish between the national and provincial ballot.  Why could people not have the provincial ballot as well, as was the case with diplomats and other people abroad?
If only the national ballot would be counted, how would the other half that constituted the provincial ballot be calculated?  Registering and voting only at missions abroad would result in people having to travel unreasonable distances -- could that not be changed?

Mr Norman du Plessis, Deputy Chief Electoral Officer, IEC, explained the composition of the NA calculation.  He gave the following example.  If there were 200 regional seats, the number for each region or province was calculated in advance, based on the number of registered voters.  If 20 million votes were cast, the votes cast in each province were used to calculate the proportional distribution.  To calculate the overall composition of Parliament, if 15 000 votes were cast overseas, it would be 20 million plus 15 000, and the percentage of votes would determine seats.  The voters’ roll was not taken into account until the final overall determination, and would result in a mathematical result, ensuring equal representation.

Mr Moepya stated that the provision that allowed diplomats to cast special votes had been declared unconstitutional by the Constitutional Court.

Ms P Petersen-Maduna (ANC) asked what would happen while voters were waiting for the smart card ID.

Mr Moepya replied that the smart card ID had already been admitted as a form of identity and could be used when registering and voting.

Mr M Mnqasele (DA) said that If a person was allowed to register, using their address while in the country, why would they be allowed a national ballot and not provincial ballot as well, which would be a free and fair opportunity to exercise their rights.  With regard to counting areas and party agents, what provisions had been made so that political parties could observe the process outside the country?  He asked about the registration and voting rights of prisoners.

Mr Mamabolo replied that the address a person provided when registering to votes connected that person to a ward or municipality, and it would not serve in the best interests of the credibility of the voters’ roll to use the last address inside the country, because it contradicted the principle of registering in the district where you were resident.

Adv Tlakula said that votes cast outside the country would be counted in South Africa, and party agents would observe the process.

Mr Mamabolo said that prisoners would be afforded the opportunity to register and vote.

The Chairperson said he understood that South Africans abroad were able to register and vote at the missions.  Since in South Africa it was referred to as a voting district, the IEC should explain the mechanics of registering and voting abroad.  He also asked the IEC to explain the motivation behind the provision of allowing voting only in the NA and not the provincial legislature when not in the voting district, either elsewhere in South Africa or abroad.

Ms Petersen-Maduna said clause A1 allowed only for the smart card ID, and since the roll-out of the smart card ID would take a few years, what would happen in the 2014 elections.

Mr Moepya replied that all forms of identification would be used during the elections, i.e. the smart card ID, the green bar-coded ID, and passports.

Adv Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs, clarified that according to the Identification Act the smart card identification definition was already in place, so it had to be used, but the other forms of identification in use were still valid.

Mr De Freitas said he understood the explanation by Mr Du Plessis, but the provincial breakdown was still missing.  He asked if a person, having registered to vote, found themselves in another province on Election Day -- would it not be considered unconstitutional not to allow that person the right to the provincial ballot, since it seemed relatively easy to identify where voters were from?

Mr Mnqasela agreed with Mr De Freitas.  It seemed that affording each and every South African, whether inside or outside the country, both the provincial and national ballot, would be difficult to administer, even though the IEC had not said so. Mr Mamabolo had not answered his previous question, but had simply complicated it. He also asked about the distances people abroad would have to travel to register and vote, and said that it would disenfranchise South Africans abroad.

Ms G Bothman (ANC) said that after 19 years of democracy and based on the one or two previous elections, the IEC was taking things step-by-step.  In past elections, where people had been allowed to vote in any province, it had resulted in shortages of ballot papers at some voting stations because the IEC could not pick up the numbers, and some faith in the credibility of the voting process had been lost.  It should be a lesson learned, and the proposed provisions made it possible for those that were aware that they would either be elsewhere in the country or abroad to apply for a special vote and vote in both the provincial legislature and the NA.  South Africans should be responsible enough to realise and understand the importance of voting, and vote in the country if they had the opportunity.  Another issue was the breaching of the security features of the South African identification documents when voting in other countries and the approach of the IEC to take things step-by-step should be supported.

Adv Tlakula said that persons abroad could only register and vote at missions and South African embassies because this was South African territory.   This practice was benchmarked against other countries that allowed overseas voting.

All voters would be treated equally.  Voters residing in South Africa who were not in their province would forfeit their provincial ballot, but would be afforded a national ballot, as was the case with persons abroad. This was to safeguard the credibility of the election. 

There would be approximately 20 000 voting stations on Election Day.  Nine different ballots would have to be transported to those voting stations for each and every person not able to be in their province, and in no way was it possible to ensure the credibility of the voting process during such an operation.

Mr Terry Tselane, Vice-Chairperson, IEC, explained that the credibility of the voters’ roll should be protected through the process of registering and voting where one was a resident. The logistics of voting integrally connected with integrity.  If people were allowed to vote anywhere, ten different ballot papers would be needed and would result in a logistical nightmare that would hurt the credibility of the voters’ roll and result in a costly and messy exercise that would not be free or fair.  The provisions of the Bill would give everyone the opportunity to vote, and yet still protected the integrity of the voters’ roll.

Mr Du Plessis clarified that his calculations had been based on the national ballot and not the provincial ballot.

Mr Mnqasela said he understood the importance of protecting the integrity of the voters’ roll, but there was still an issue of constitutionality that had to be addressed.

Mr De Freitas said that if persons overseas were geographically far from missions and embassies, and had to fly to vote, they would feel disenfranchised.

The Chairperson summarised that the IEC was protecting the voters’ roll by treating all voters, whether in South Africa or abroad, equally.  The Amendment Bill would still go through the pre-determined programme of public submission, public hearings and deliberations. 

The Chairperson thanked the IEC and Committee members, and the meeting was adjourned.
 

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