Electoral Amendment Bill: Electoral Commission response to public submissions

Meeting report

Opening remarks
The Chairperson said the Committee had convened this meeting on a Monday to cover ground on the Electoral Amendment Bill. Dealing with the Bill expeditiously would allow sufficient time for its processing by the National Council of Provinces (NCOP). The Independent Electoral Commission (IEC) would respond to the proposals contained in the public submissions.

Mr G McIntosh (Cope) requested that the Committee deal with its fourth quarter programme, in light of the report that was compiled by the Public Protector (PP) on the procurement of the Centurion accommodation [by IEC Chairperson, Adv Pansy Tlakula]. Would the Committee deal with the report at all, and if so, how did the fourth quarter programme look like?

The Chairperson replied that an indication in the plenary on Thursday 12 September was that an Ad hoc Parliamentary Committee would deal with the report. The matter was not in the hands of the Committee as the report had been submitted to the Office of the Speaker. The programme would continue in the Fourth Term as it was. She invited the IEC to brief the Committee on its responses.

IEC presentation
Mr Mosotho Moepya, IEC Chief Executive Officer (CEO), said a total of six submissions had been received by the September deadline. He outlined the matters that submissions were made on as: definitions, registration of voters, nominations of candidates, rights of prisoners to vote, special votes, and e-voting.

Definitions
The South African Catholic Bishops Council (SACBC) submitted that it was not clear whether the “identity card” in the definitions of the Amendment Bill also referred to the green bar-coded identity document (ID). Not all citizens would have the identity cards by the time of elections

IEC Response: The green bar-coded ID would be used in the elections and would remain a competent and positive form of identification for all purposes. The IEC technology would work on both the ID and the smartcard identity document.

Voters’ registration
Ubuntu Centre raised a concern about section 8(2)(c) and (d) in that the sections discriminated against persons with psychosocial disabilities and those detained under the Mental Health Act (MHA). The Act was in conflict with the Constitution. The Mental Health Care Act of 2002 provided that mental health care users had all the rights in the Constitution.

IEC Response: Many jurisdictions did not permit persons with mental disabilities to register as voters due to concerns about the faculty to form informed opinions. In South Africa the IEC may not register a person if such a person had been declared by a High Court to be of an unsound mind. The exclusion was not arbitrary and automatic, and came into operation at the instance of the High Court after examining medical evidence presented.

Nomination of candidates
The Commission on Gender Equality (CGE) proposed an amendment to section 27 of the Act, that lists of candidates should be constituted of names of women and men who alternate and that the number of women and man on the list should not differ by more than one. The proposal enforced the quota and “zebra system” on the compilation of the candidate lists. Possible sanctions for non-compliance could include the seats remaining vacant, or reduced allocations on party funding as well as fines. The CEO could return the party’s list of candidates if it did not comply with the quota.

IEC Response: The rights of women should be advanced and the IEC supported that position. The proposal had been noted as necessary to ameliorate the country’s history of patriarchal relations. It would be prudent that interaction with political parties was entered into before such quotas were enforced. The IEC held the view that this was a national policy matter that must be decided
by political parties in Parliament.

Rights of prisoners to vote
The SACBC welcomed the amendments related to the right of prisoners to vote.

IEC Response: The Constitutional Court had expressed itself on the matter.

Special votes
AfriForum welcomed the proposed dispensation permitting all registered citizens abroad to vote in the election of the National Assembly. The organisation recognised the complexity of the provision of a ballot in the elections of provincial legislatures. AfriForum further submitted that whilst it presented challenges for registered voters to travel to missions of the Republic, the principle of using home territory was sound. The SACBC elaborated there was sufficient time between now and the elections to make the necessary arrangement for the provincial ballot at the missions abroad.

The Deputy Minister of the Department of Women, Children and People with Disabilities, Ms Hendrietta Bogopane-Zulu raised the issue of whether persons with visual impairments would be allowed to use the Universal Ballot Template (UBT) during special votes. Mr Itumeleng Mmusi requested that a database of persons using Braille in John Gaotsewe District be created.

IEC Response: The mixed reaction was indicative of inherent complexity of the provincial ballot. The matter was before the Portfolio Committee and the Western Cape High Court. The use of the UBT in both the voting stations and during the special voting day would be reinforced in the intended amendments to the election regulations. The possibility of bringing in a person for assistance, if desired, for purposes of voting was retained in terms of section 39(2). The outreach division at the Commission was in consultation with the disability sector for the purposes of making improvement to electoral processes and ensuring the needs of persons with disability were addressed. This included the correct use of the UBT.

e-Voting
Mr Red Haines was of the view that the Bill did not include provision for electronic voting technology, despite other countries including Namibia having adopted the use of technology.

IEC Response: The Commission had earlier in the year convened a seminar on e-Voting technologies. Constant discussions and advocacy was required on the matter. Based on the outcomes of the seminar, the introduction of the e-Voting technology and the cost implications required further exploration.

Mr Moepya said two considerations had been made related to the amendment to section 33(3) in clause 6 of the Bill. Members could deal with the amendment by noting that it could be removed. Another issue related to 33(4): the old section contained a proviso for the Commission to make special arrangements for military personnel. It appeared that the proviso had been removed from the clause; the person dealing with military personnel had raised the matter.

Discussion
The Chairperson sought clarity on section 33A as well as the section on the military.

Mr Moepya clarified that the military provision was under 33(4). IEC was making a provision that the military personnel, outside the Republic, at the time of elections, be allowed to vote. The Commission should allow a person outside of the Republic to apply for, and cast a special vote if the name of the person appeared on the voter’s roll. In the past, military persons serving outside the country were provided for in the Act, but this was not clearly outlined. This provision was important as there would always be this category of persons. If the Committee was of the view that this was a category worth considering, the Commission would include a provision for this category at the end and make a special arrangement for military personnel.

The Chairperson said the insertion of the military clause would be proper.

Mr M Mnqasela (DA) sought clarity on whether the arrangement would also include the provincial ballot as well, for people outside the country.

Mr Moepya replied that the section dealt with the elections for the National Assembly only.

Mr McIntosh sought clarity on whether the Commission had applied its mind as to where it wanted to insert the clause on military personnel. There were nearly 10 000 South African soldiers serving on the continent. It was indeed appropriate that they be able to vote if they wanted to.

Mr Moepya replied the provision in the Amendment Bill was fine; these were members not serving in the country that the provision was intended for. Those that were in the country were covered.

Mr McIntosh said it was important that the Commission realise that it would have to have infrastructure to enable soldiers outside the country to vote; and that had implications.

The Chairperson commented the soldiers were wherever they were on a mission; it was only proper that necessary arrangements be made in order to allow them to cast their vote on the particular day.

Mr Mnqasela sought clarity on the proposed amendment the IEC intended to make with regards to section 33, and said that needed to be in writing.

Dr C Mulder (VF+) asked about people voting abroad and whether those individuals would have both their ID and passport. Usually people did not carry their IDs abroad; what had been done with regards to that? This usually caused a lot of traffic with the country trying to post the IDs abroad around elections time.

Mr Moepya replied the Commission had been in discussions with the Department of Home Affairs (DHA) on the issue of ID documents. DHA had indicated that SA citizens could be verified.

Adv Tsietsi Sebelemetja, DHA Director: Legal Drafting, explained that verification could be done on persons who did not have their ID abroad. They could take their passport and their ID number. The Department could work out a mechanism if such persons did not have a copy of the original ID. Means could be made to ease the process.

Dr Mulder commented that verification was one thing, but would such persons have a document that confirmed their identification for voting purposes.

Ms P Maduna Pietersen (ANC) asked if the universal voting template existed in the previous Act.

Adv A Gaum (ANC) agreed on the issue of identification in foreign countries. This was a good point; passports should be a valid form of identifying someone. The mechanism should be as easy as possible even if people did not have their IDs with them. He sought clarity on whether the position of the IEC – as stated in the Bill – was that people had to register at missions. He asked if there was any other form of registering.

Mr Mnqasela commented that the passport was a legal document and could be used as a positive form of identification and thus could be used for voting. He had expected the Commission would come and indicate that it had considered giving those a right to vote in the provincial ballot as well.

Mr Moepya replied registration was meant to happen at SA missions in those countries.

Mr Sy Mamabolo, IEC Deputy Chief Electoral Officer, replied the universal ballot template was used in the 2011 municipal elections. The intention was that its usage would be reinforced in the coming elections. The modalities of how registration would work had not been considered, the matter was still under consideration.

Adv Sebelemetja replied the process should be made easier, to ensure that people’s details were verified even in the absence of an ID.

Mr Mnqasela asked when would the IEC conclude discussions on registration of those living abroad.

Ms Rene Taljaard, IEC Commissioner, replied the Commission would meet on Friday, and that the issue had been discussed at an EMC. The Commission was prioritising the matter and it would be on the agenda this Friday 20 September.

Mr Mnqasela said the submission from the organisation that represented mentally unsound persons was convincing. The matter was very serious. As things stood, no one would be able to state how many people were in that condition, and who had been declared of unsound mind and thus would not be allowed to vote. It was crucial for the Commission to have that statistic. He asked if the Commission was not discriminating against this category of people by not including them in the voters’ roll.

The Chairperson said it was crucial that the Commission applied its mind to this category and that it avoid any situation that could be perceived as discriminating against the people. The IEC should assist in the matter. She sought clarity on how this matter was handled in other countries.

Adv Gaum asked if it was appropriate that mentally unstable people should be declared by the High Court; where did this situation leave those people who had been clinically declared of unsound mind. Why should SA make this distinction. Should the country not be taking the lead in the world in terms of extending the right to vote to mentally disturbed persons? He asked if it was desirable to have a potentially discriminatory law in the statute book.

Dr Mulder commented that the current provisions made sense. The court would not just declare someone as unsound; there was a review process that was followed and reports were provided. For this reason, he supported the provision.

Mr Moepya said in practice, persons that come to registration stations could submit their registration; IEC did not qualify anyone for registering. The Commission had not gone to any institutions, but it had not turned anyone back because such person did not have a certificate.

Commissioner Taljaard said it was important to take into consideration the possibility of an existing diminished legal right. This was where the difficulty arose - whether this might be a reasonable limitation. This was an issue that ought to be discussed by Parliament.

Adv Gaum commented that the issue was the IEC was not enforcing the provision. What purpose did the provision serve remaining in the statute book? It served no purpose at all; why not simply remove it? It was more of a hassle to keep the provision in the statute book than to remove it.

Mr Mnqasela said it was important to remove the provision in order to avoid any possible litigation that might be costly to the State. He requested the IEC look at the implications of the matter seriously.

Mr Bongani Finca, IEC Commissioner, said the provision appeared to be embedded in the Constitution. A person who had been declared of unsound mind by a court in the Republic could be excluded from many other rights. This was outside the IEC’s control.

Mr Sy Mamabolo, IEC Deputy Chief Electoral Commissioner, said the IEC could not make a determination about this and did not have means to do so. This was the reason it was left to the courts, as they would not have easily arrived at such a conclusion without having canvassed proper medical reports. If a person presented, it was not for the IEC to make an inquiry to ascertain whether the person was of unsound mind. It was incumbent upon the person to raise an objection.

Commissioner Taljaard said many individuals who might have been declared by the courts might be detained somewhere in medical institutions, and might not even have the opportunity to exercise that right anyway. Officials should be thinking about practicalities. This was a real issue; people certified by courts to be of unsound mind would be held in a mental institution, and might be in a space where they might not even need to register for voting. The merit in retaining the provision was to do with practical reality.

Mr Mnqasela disagreed and said that he would investigate the matter. The concern was once the person had been discharged from a mental institution; what would be the implication of such a vote?  The Commission should look at the way in which it could try and mitigate the potential election flaws.

The Chairperson sought clarity on section 33A.

Mr Moepya replied the Commission would submit this in writing to indicate where it had made provision for the section.

Adv Gaum said a lot more work needed to be done on the e-voting. Members were in agreement on many of the issues except that of whether people should be able to vote in the provincial vote if they had moved or were abroad. This was a good opportunity to adjourn and political parties could consolidate their party positions.

DA court application
Dr Mulder agreed and said the Committee found itself in a tight corner with the DA’s application to the Western Cape High Court. He said it would have made sense if the DA had taken its proposals and tabled them in front of the Committee, so that Members could follow the thinking of the DA. It would be ideal if the IEC could also comment on the matter.

The Chairperson agreed the matter was unfortunate and said she was not sure if the matter was sub judice.

Mr Mnqasela said he had engaged Dr Mulder on the matter. When the IEC had come to brief the Committee, the DA made its stance very clear on the matter. He failed to understand why Members wondered why the DA went to court. The stance was heckled even by some ANC Members. The IEC gave the DA no other option. The party was open to lobbying, but if Members agreed, the case would be removed from the court roll. Even the security people on missions abroad should be given the provincial ballot. This was not a mammoth task as officials liked to put it. The sooner the court pronounced on the matter the better. Another aspect that the DA would like to put forward was that of SA citizens not present in their home province, but within the country, on Election Day for reasons known to them. Soon after proclamation of Election Day, people should be allowed two weeks to indicate if they would need to vote in a different province and, if so, they should be allowed a special vote.

Adv Gaum commented that the DA acted prematurely in taking the matter to court and bypassing parliamentary processes. The Committee found itself in a unique situation because it dealt with a Bill and not legislation. This was tantamount to asking the court to make legislation for the country; instead of making legislation in Parliament and then challenging it in court. It would have been appropriate if the DA had taken the opportunity to brief the Committee and convince it on the practicalities of the provincial ballot given to people residing outside of the country. He requested that the DA indicate if it would brief the Committee, and try and convince Members that it should be possible to allow people outside the country to have the provincial vote. Would the DA make use of the parliamentary process?

Dr Mulder it was all well and good that the DA was now motivating why people should have the provincial vote even if they were in the country but not in the province. If Parliament’s legal department was not involved yet, they should get involved immediately. They should clarify to Members the legal position even if they were involved. It was not ideal that the Committee complete the process only to experience challenges with how it had processed the Bill when Parliament had debated the issue.

Mr McIntosh said the Committee was dealing with an Amendment Bill, and all sorts of matters were now being added on. What was the status of the Amendment Bill in relation to provincial vote? He did not take kindly to a situation where Members were sent to Parliament to make laws; and yet the official opposition ran to court for legislation making. Where did MPs stand on the matter legally? Amendment Bills required open minds. If the DA’s position would not be accepted for 2014 it could be considered for 2019. He said there was a dragon in the room, and that it made him nervous as a Member of the Committee.

Mr Mnqasela said it was unfortunate that Members fell for the temptation to discuss the court matter. The discussion had happened before in the Committee. A private members bill was tabled and submitted by Honourable James Selfe, but was thrown away by the majority party because the sentiment was that voters outside of the country were DA voters. The Committee failed to engage objectively on the matter.

The DA had not lost confidence in the parliamentary process. The DA was simply trying to allow those outside the country to vote on provincial and national vote, but also to those in the country but not residing in home provinces. This was not difficult; Members ought to have sat and discussed how the bill was approached. The DA never wished courts to legislate on behalf of Parliament. He volunteered to bring the presentation the following day if the Chairperson agreed.

Adv Gaum said he failed to see how taking a Bill to court was different to asking court to make legislation. Members were not debating the court matter, but the matters contained in the bill. There was no reason to be concerned about the court process. It was a Constitutional mandate for the Members to process Bills and make laws. The DA court challenge was premature. Even at the time, even the DA supported the motion of non-desirability when it came to private members bill. To claim the private members bills was thrown away was not correct. The Committee dealt with the Bill now, and would like the DA to participate in that process, and not take the bills to court before they were finalised. The DA should come back with the arguments and show it would be practically possible to do the provincial vote for those outside the country. He invited the DA to use the Parliamentary Processes, and not involve courts in processes they should not be involved in.

Dr Mulder commented that the statement by the DA, that “if the Committee agreed to the amendment, the court case would go away”, sounded like blackmail. The Committee could not be blackmailed like that. He cited a time when SA citizens abroad were not allowed to vote by law, and he had been defeated during the Committee debates when he tried to introduce this provision. When that legislation was passed, the Act was challenged in court and the court ruled against Parliament. This was how this should have happened with this Bill as well. He was concerned, because rules of the House forbade Members from discussing issues that were before the court. He said he would still need the legal advice from Parliament’s Legal and Constitutional Office, and teasingly said the DA should save money and withdrew the case as soon as possible.

The Chairperson requested Members to go to their parties and formulate their positions of the Bill that would be reported on the following day.

The meeting was adjourned.