Electoral Laws Amendment Bill: briefing

1. The attached draft bill contains proposed amendments to the Electoral Act, 1998 and the Electoral Commission Act, 1996. Explanatory notes in respect of the sections (seriatim) of the draft bill are given below:

2. Section 3 of the Electoral Act provides that the Act applies to national, provincial and municipal elections. However, in preparation for the 2000 municipal elections the Local Government; Municipal Electoral Act, 2000 [Municipal Electoral Act] was enacted to introduce new electoral provisions in respect of the newly implemented municipal dispensation. The Electoral Act now only applies to municipal elections to the extent stated in the Municipal Electoral Act. The necessary amendment to section 3 of the Electoral Act is proposed in Section 1 of the drat bill.

3. Only citizens of eighteen years or older qualify to vote, and therefore, to be registered as voters. However, to ensure that voters can exercise their right to vote from the day they become eighteen, they are allowed to apply for registration as soon as an identification document has been issued to them (which can happen once they have turned sixteen). An amendment of section 6 of the Act is proposed to make it clear that those aged between sixteen and eighteen may already apply.

4.1 Section 7(1) of the Electoral Act provides that a person may apply for registration as a voter only for the voting district in which that person is ordinarily resident. Section 8(2) (e) thereupon provides that the Chief Electoral Officer (CEO) may only register that person for the voting district for which that person has applied. This means that if a person has erroneously applied for the wrong voting district, the CEO cannot register that person at all.

4.2 It is proposed that section 7(1) of the Electoral Act be amended to delete the requirement that a person may only apply for registration for the voting district where she/he is ordinarily resident. It is further proposed that section 8(2) (c) be deleted and that a provision be inserted in section 8(3) to provide that the CEO must register a person in the voting district where she/he is ordinarily resident. In doing so a more logical regime is established whereby a person merely applies for registration and the CEO places the applicant in the correct voting district.

4.3 It is further proposed that section 8 of the Electoral Act also be amended to provide that the CEO may only register applicants who are eighteen years old or older and who are not serving a sentence of more than 12 month's imprisonment without the option of a fine. This last amendment deals with an outstanding issue, namely whether persons convicted of and sentenced to imprisonment for serious crimes, should be allowed to vote. In 1994 prisoners convicted of murder, robbery with aggravating circumstances and rape (or attempts to commit any of these offences)

and sentenced to imprisonment without the option of a fine, were not allowed H vote (Electoral Act, 1993 (Act 202 of 1993)). The 1998 Electoral Act (governing the 1999 elections) however contained no provisions in this regard, probably because there was no intention to give prisoners special votes. When a Constitutional Court judgement changed this at the last moment, the issue, probably because special votes are not available in municipal elections. The question will have to be considered now and the proposal is that the disqualification that applies to membership of the National Assembly (section 47(1 )(e) of the Constitution) be used as a guideline and that prisoners serving sentences of more than twelve months imprisonment without the option of a fine will be disqualified from voting.

5. The deletion of section 19 of the Electoral Act is proposed as it deals with the calling of municipal elections which is now regulated by the Local Government:

Municipal Structures Act, 1998.

6.1 The voters roll to be used in al election, is the one as it exists on the date of the day the election is proclaimed. This voters roll is then certified for the election and the roll cannot thereafter be corrected. Even if it had been legally possible to do so, it would have been impractical because of the tight election time-tables tha1~ apply.

6.2 In the preparation for and printing of a document with such a massive amount of detail, administrative mistakes are inevitable. They have occurred in the past and will again occur in the future. If such a mistake results in a voter's name appearing on the roll twice, or in more than one voting district, no harm has been done. Bit if the voter's name is mispelt, or his or her ID number is incorrectly printed, or the name is omitted from the roll, or the name appears in the wrong voting district, it could result in a perfectly eligible voter, who had properly applied for registration, being disenfranchised. It may also lead to a qualified person being prevented from becoming a candidate in the election. All this can lead to justified frustration and anger and disillusionment in respect of the fairness of an election; even if only a small number of voters is affected.

6.3 To alleviate such situations, a mechanism was introduced in section 7 of the local

Government: Municipal Electoral Act, 2000, whereby voters who had properly applied for registration, who are eligible to vote but whose names had been omitted from the voters roll of their voting district, or whose details have been incorrectly recorded on the voters roll, could be allowed to vote. The Electoral Act (for provincial and national elections) do not have a similar provision.

6.4 Section 6 of the draft bill proposes the insertion of a new section 24B in the Electoral Act, dealing with the situation of prisoners on election day.

6.5 Section 6 of the draft bill proposes the insertion of such a provision in the Electoral Act; dealing with the situation of prisoners on election day.

6.6 Resulting from a Constitutional Court judgement the Commission had to make special arrangements for prisoners to vote in the 1999 national and provincial elections. For purposes of registration on the voters roll, prisoners were deemed to be ordinarily resident in the prison, and therefore also in the voting district, where they were detained at the time of registration.

6.7 After the 1999 elections, electoral legislation and arrangements were reviewed in preparation for the 2000 municipal general elections. It hen appeared that a prison in any particular municipality were not necessarily populated only by prisoners from that municipality. Invariably prisoners also came from other areas. In the case of some large prisons, nearly as many prisoners would be eligible to vote for the municipal council as residents of the municipality itself. In national and provincial elections this would not have created a problem, but in municipal elections it w as just not acceptable that non-residents should be able to have a major influence on who is elected to the council.

6.8 To address this anomaly the Electoral Act, 1998 (section 7) was amended to provide that for purposes of registration on the voters' roll, prisoners are regarded to be ordinarily resident at the last home or place where they normally lived when not imprisoned or detained.

6.9 This resolved the problem for municipal elections, but now creates new problems for the coming national and provincial elections: on election day very few prisoners will find themselves in the voting district where they are (or can) be registered. It is exactly because of this problem that the Constitutional Court had in 1999 ordered that, in the absence of defining legislation, prisoners must be deemed to be ordinarily resident in the prison where they find themselves.

6.10 Prisoners cannot be taken from a prison to go and vote at a voting station where they are registered. They only way in which prisoners can be given the opportunity to vote in national and provincial elections, is to take a mobile voting station to the prison; but then, for prisoners to vote at that mobile voting station, they will have to be registered for the voting district in which the prison is situated. To this end, section 6 of the draft bill seeks to introduce a provision in the Electoral Act, 1998 (a new section 24B) whereby in national and provincial elections a person who, on election day, is lawfully imprisoned or detained and whose name appears on the voters' roll for another voting district, is deemed for that election day, to have been registered by his or her name having been entered on the voters roll for the voting district in which she or he is so imprisoned or detained.

7. At the time when the Electoral Act, 1998 was drafted and passed by Parliament, the new local government structures and their electoral systems had not been finalized (the Local Government: Municipal Structures Act, 1998 was passed quite some time after the Electoral Act, 1998). Only measures for national and provincial elections could therefore be spelt out in the Electoral Act. However, at that time, the possibility was still foreseen of municipal general elections being held simultaneously with, or soon after, the national and provincial elections, leaving no time for a municipal electoral act being passed by Parliament. Section 32 was therefore included in the Electoral Act, 1998, giving the Electoral Commission the power to enact such provisions by way of regulations, should the need arise. The Municipal Electoral Act having been passed in the meantime, section 32 can, and should, now be withdrawn. This is being done in section 7 of the draft bill.

8.1 Section 33 of the Electoral Act sets out three categories of persons for whom special votes must be provided. The section, however, also authorizes the Electoral Commission to prescribe other categories of persons who may apply for special votes.

8.2 It is proposed in section 8 of the draft bill that the provision permitting the Commission to identify further categories that may qualify for special votes be deleted. The categories to qualify for special votes are essentially political choices Parliament has to make and the decision should not be conferred in the election administration. This provision has led to class actions that obliged the Commission to make last minute arrangements that were highly disruptive of its preparations for the elections.

8.3 The matter of special votes has to be carefully considered. They are not intended to cater for the individual circumstances of voters who may very well on a given voting day for good reasons not be able to cast a vote. They are rather intended to cater for categories of persons who would otherwise consistently not be able to vote. If one has to cater for the individual circumstances of every business person, worker, student and holidaymaker (that will not be the same election after election) then one would have to create a system of prior voting where a sizeable portion, if not the majority, of votes are cast before voting day. Such a system could double the costs of an election, can be highly disruptive for the normal logistical arrangements relating to an election and the training of election day staff and can impact on the ultimate quality and credibility of an election. (Special voting takes place outside of the controlled and transparent voting station situation and marked ballot papers are transported and stored for days out of sight of observers and agents. No matter how securely and properly the special voting process is conducted, the process lends itself to allegations and suspicions of irregularities).

9.1 Section 36 of the Electoral Act now provides that the Commission must prescribe voting hours for every election and it must do so by not later than a dalLe stated in the election time table. The effect hereof is that although 07h00 to 21h00 has become the generally accepted voting hours, voting hours for a particular election remain uncertain (and it debated afresh) until fairly late in the electoral process.

9.2 In the Municipal Electoral Act the situation was therefore reversed. Section 45 of the Act provides that the voting hours for a particular election is from 07h00 to 21h00 unless the Commission determines other voting hours for a particular election. This has brought much greater certainty and has eliminated last minutes debates on the issue at every election (or by-election).

9.3 It is proposed that the Electoral Act be brought in line with the Municipal Electoral Act. Section 9 of the draft bill does so. A few minor technical amendments are simultaneously affected for the sake of greater clarity.

10.1 Section 39 of the Electoral Act provides for -

10.2 After the 1999 national and provincial elections, the South African National Council for the Blind complained bitterly that, invariably, blind people had been treated by presiding officers as people who could not read, and had insisted on themselves marking the ballot papers of blind people. They said that blind voters struggled tq convince presiding officers that they fell in the category of voters who should

allowed to be assisted by a person of their choice.

10.3 In the drafting of the Municipal Electoral Act, it was specifically provided that a presiding officer or a voting officer could only assist voters who could not read (the blind can read Braille) and that they could not assist voters who needed assistance due to a physical disability (visual impairment or blindness is a physical disability). After the Municipal Electoral Act had been passed by Parliament, the blind were still dissatisfied, saying that blindness should have been specifically mentioned in the act. They asked that clear instructions should be given to presiding officers; which was done in the training of presiding and voting officers.

10.4 After the 2000 municipal elections, the Council, alleged that a number of blind voters had still encountered resistance when they asked to be assisted by a friend that they trusted. They again asked for blindness to be specifically mentioned as a physical disability. When it was pointed out that blindness may be interpreted to mean total blindness, it was agreed that the term visually impaired would be used.

10.5 The amendments to section 39 of the Electoral Act, proposed in the draft bill, includes the identification of visual impairment as a physical disability and the exclusion of agents and candidates from the persons that could assist a disabled voter. A presiding officer or a voting officer is not excluded (as it is done in the Municipal Electoral Act) as it is felt that a disabled voter arriving at a voting station without a trusted person to assist him or her, might prefer that the presiding officer or a voting officer should do so.

11.1 Section 55 of the Electoral Act provides for "objections material to the final results of an election" to be made to the Commission not later than 21h00 on the second day after voting day. These objections must be decided before the final results are determined and the outcome of the objection (if successful) is taken into account in the determination of the final results. An appeal lies to the Electoral Court.

11.2 Section 65 of the Municipal Electoral Act contains comparable provisions, difference being that here the objections are considered after the results of election (or elections) have been declared. Having considered the objection, Commission must either reject the objection, amend the declared result of election, or rescind the declared result of the objection. An appeal also lies to Electoral Court.

11.3 In 1999 numerous objections were received. Although many were resolved administratively or through conciliation (as allowed by section 92 of the Electoral Act) the Commission still had to deal with large numbers of objections. It managed to do so because it only considered those objections where there had been full compliance with the formal submission requirement and where the objections related mainly to the voting or the counting procedures. The Commission did not consider objections relating to other issues like contraventions of the Code of Conduct - issues where the facts were not easily ascertainable and where it would have been necessary to have "trials" to establish the facts. Such issues were extraneous to the electoral management process and had to be adjudicated either by the Electoral Court or the High Court. The Commission could limit the range of aspects subject to objection, because section 55(1) introduces the objection provisions with the words "Despite Parts 1 to 3...". Parts 1 to 3 deal with the voting and counting processes and objections that can be raised during the course of those processes.

11.4 Under section 65 of the Municipal Electoral Act, things however developed differently. Just as section 55 of the Electoral Act, section 65 of the municipal Electoral Act also provides that any interested party may lodge (make) an objection "concerning any aspect of an election that is material to ... the ... result of an election". The reference to parts 1 to 3 (voting and counting) however, do not appear in section 65. Perhaps this is the reason why the Electoral Court has interpreted that section to also cover aspects far beyond the confines of the voting and counting processes. Thus for instance the Electoral Court has required the Commission (in a particular by-election case) to investigate and conduct a hearing where an objection touched on issues such as that a vacancy should not have been declared, that a candidate had been intimidated and that voters had been stopped quite a distance from a voting station and ordered away. Commissioners dealing with the objection had to travel to a distant town to hold a formal hearing with witnesses and lawyers to cross-examine them and had to decide on disputed facts without having the powers of a court of law.

11.5 The Electoral Court also adopted a more forgiving attitude to objectors who had not complied with the prescribed formalities, resulting in the objection process being drawn out for objectors to be given the opportunity to comply (e.g. by giving notice to other parties involved). Where a single ward by-election is involved, the situation is manageable, but if this approach is followed in respect of a combined national and provincial election, or a municipal general election (+250 elections on the same day), the Commission will just no be able to cope.

11.6 It was never the intention that the section 55 (national and provincial) and 65 (municipal) objection procedures should side-step the courts. Section 55 with its reference to parts 1, 2 and 3 of Chapter 4, indicates that the objection procedures were intended for voting and counting processes only; processes managed by the Commission and where the facts are easily discernable from material that is till in the Commission's possession. Unfortunately such a reference does not appear in section 65 (municipal) which probably prompted the Electoral Court to adopt such an inclusive approach toward the aspects of an election that could be the subject to of an objection.

11.7 To ensure that in future national and provincial elections section 55 objections are confined to voting and counting issues (and thus preventing a chaotic situation arising at a critical time of elections), it is proposed in section 11 of the draft bill that subsection 55(1) of the Electoral Act be substituted by a new subsection making this clear.

12.1 Section 56(b) of the Electoral Act provides for certain orders the Electoral Commission or the Electoral Court can make where a serious irregularity has occurred in an election. Amongst other things, the votes cast in favour of a party "or candidate" at a voting station can be deducted from the total of votes cast in favour of that party "or candidate" in that election.

12.2 To eliminate any uncertainty, section 12 of the bill seeks to delete the reference to a candidate from the section.

13. The 1999 national and provincial elections were held in terms of a system of representation provide for by way of transitional arrangements in the 1996 Constitution. Provision for electoral systems for future national and provincial elections must be made in national legislation in terms of sections 46 and 105 of the Constitution. Sections 13 and 23 of the Bill contain proposals in this regard. In essence the continuation of the current system is proposed.

14. Section 59(3) (a) (ii) of the Electoral Act mentions the registered party "or candidate" represented by an agent. There is no provision in the act for a candidate to be represented by an agent. For the sake of clarity section 14 of the bill seeks to delete the reference to a candidate.

15.1 At the moment, the Electoral Act contains provisions for the establishment of "voting districts for the whole of the territory of the Republic", i.e. for the initial division of the country into voting districts (sections 60 and 63). It makes no provision for the redelimitation of voting districts, the creation of new voting districts or the subdivision of voting districts.

15.2 Over the last years it has become necessary for a number of good reasons to so redelimit or subdivide existing voting districts or to create new voting districts. This was done without explicit statutory regulating authority to do so.

15.3 Section 15 of the draft bill seeks to crate such authority by inserting a new section, section 63A, after section 63 of the Electoral Act.

16.1 Section 64 of the Electoral Act authorizes, amongst others, the establishment of both a voting station and a mobile voting station in a voting district. Where this is done, copies of the same segment of the voters roll are used in each of the voting stations. The names of voters that have voted in the one voting station are only marked off on the copy of the list used at that voting station, while they remain unmarked on the list used at the other one. Theoretically this may open the way for double voting.

16.2 To ensure that a mobile voting station in addition to an ordinary voting station is only used in those cases where it is really necessary, section 19(2) of the Municipal Electoral Act provides that a mobile voting station may only be used if the voting district is large and sparsely populated and the Commission considers it necessary to assist voter who would otherwise have had to travel long distances to reach the voting station.

16.3 Section 16 of the draft bill amends section 64 of the Electoral Act to also insert these limitations in the Electoral Act and to add a provision that a mobile voting station may also be used to visit a prison. The additional provision is necessary as special voting arrangements are made for a number of categories of voters (including prisoners) in national and provincial elections. There are no special votes in municipal elections.

17.1 Section 66 of the Electoral Act provides that for every election, the Chief Electoral Officer must determine the boundary of every voting station. The presiding officer may, on voting day, alter the boundary of a voting station.

17.2 This arrangement is completely impractical. When is came to the drafting of the Municipal Electoral Act, it was provided that the presiding officer, should, before a voting station opens on voting day, and after having consulted with available party agents and security members, determine the boundary of the voting station and visibly mark off that boundary.

17.3 This being a much more practical arrangement, section 17 of the draft bill introduces a similar arrangement in the Electoral Act by the substitution of section 66 thereof.

18. Section 65 of the Electoral Act provides for the relocations in emergencies. It does not, however, contain similar provisions for mobile voting stations. Section 18 of the draft bill introduces such provisions in section 65 of the Electoral Act.

19. This section merely corrects an incorrect reference in section 86 of the Electoral Act.

20. Part 4 of Chapter 7 of the Electoral Act contains "Additional powers and duties of Commission" Section 103(1) in that Part provides that whether the Commission, an officer or the chief electoral officer is required in terms of the Act to decide an objection or an appeal, the Commission or that person attempt to resolve the issue that is the subject of the objection or appeal through conciliation. This formulation may leave the impression that the Commission may not so try to resolve other kinds of disputed or objections that are not by the Act required to be decided by the Commission, e.g. those that are only justifiable by the courts. It is now proposed that a new section 103A be inserted in the Act, making it clear that the Commission may also in such cases, when approached by someone involved, attempt to resolve the issue.

21.1 Section 104 of the Electoral Act provides that members, employees and officers of the Electoral Commission have access to private places in the performance of their functions. Section 81 of the Municipal Electoral Act contains a similar provision. When Parliament enacted section 81 it added a proviso that in such a case there must be a reasonable attempt to notify the occupier of the private place in advance.

21.2 Section 21 of the bill seeks to insert a similar proviso in section 104 of the Electoral Act.

22. In section 22 of the draft bill, the following amendments to Schedule 1 of the Electoral Act are proposed; Schedule 1 being the election timetable must be complied and published.

(c) The deletion of item 14 being consequential of the amendment of section 36 whereby the Commission no longer have to prescribe voting hours for every election. The section itself now prescribes voting hours to be from 07:00 to 21:00 but allow the Commission to determine other hours for an election as a whole for particular voting stations

23. Section 23 inserts the new Schedule 1, dealing with the electoral system, in the Electoral Act.

24. Chapter 4 (section 15 to 17) of the Electoral Commission Act, 1996 regulates the registration of political parties. A number of amendments to this regulatory system in proposed.

24.1 Section 15 of the Act provides that parties already represented in Parliament, or a provincial legislature or a municipal council, must, when applying for registration, submit-

prescribed number of qualified voters

24.2 Parties that have representatives in any one of those bodies, so not have to comply with these requirements, i.e., a prescribed number of voters do not have to support the founding of the party; no registration fee need to be paid and notice of the intention to apply need not be published in the Gazette to enable those opposed to the registration of the newly formed party to raise their objections in time (mostly objections against the new party's name, logo, etc). This distinction was written into the Act in 1996 because the parties already represented in legislature were old established parties with names, abbreviated names and logos that were distinctive and would not confuse voters and they were already been allowed to contest election under controlled circumstances. However, with the implementation of the crossing of the floor legislation, where the floor could also be crossed to newly formed parties, these newly formed parties were already represented in legislatures by the time they applied for registration and thus escaped the requirements on voters support, etc that other new parties are subjected to.

24.3 In order to level the playing field, it is proposed in section 24 of the draft bill that section 15 of the Act be amended so as to subject all new parties to the same registration requirements.

24.4 Section 15 also provides that a new party wishing to apply for registration, can only do so after it has published in the Gazette a fourteen days notice of its intention to do so. This affords other parties the opportunity to object to the registration. The crossing of the floor legislation, however, provides for the formation of new crossing process and requires such anew party to apply for registration within the window period. To enable to do so, the requirement of the pre-publication of a notice is removed for section 15 and a provision is written into section 16 (section 26 of the bill) providing for the publication of such a notice even after the application has been submitted.

25. Section 15 A of the Electoral Commission Act prescribes the application requirements for parties that want to register for a particular municipality only. It is proposed in section 25 of the draft bill that section 1 5A be similarly amended for the same reasons.

26.1 Section 16 of the Electoral Commission Act provides, inter alia, that an applying party may not be registered if its proposal names abbreviated name, distinguishing mark or symbol contain anything which portrays the propagation or incitement of violence or hatred or which cause serious offence to any section of the population of the grounds of race, gender, sex, ethnic origin, colour, sexual orientation, are, disability, religion, conscience, belief, culture or language.

These criteria are, however, not also applied to the party's deed of foundation and its constitution, both documents that must be submitted with the application and therefore forming part of the registration. An amendment to section 16 5 proposed that will make these criteria also applicable to the deed of foundation and the constitution, both being documents perhaps more likely than; name, etc, to contain the kind of objectionable material described in the section.

26.2 Of all the divisions from our past, by far the most to overcome on our road towards a united nation, are the divisions along racial, ethnic and colour lines. If ever we were to eradicate violence, hatred or the giving and taking of serious offence in our political and social lives, we must of everything on our power to prevent party political competition to be embedded in racial divisions.

The commitment in our Constitution to the building of a South Africa free of racism, ethnicity, sexism, etc, should be continuously embraced in all sectors and spheres of society, including the party political sphere. To this end. political parties should restrict membership on racial lines, or seek support exclusively along racial, ethnic or colour lines. To do so would contradict the spirit of the constitution and should therefore disqualify such a party for being registered.

While it is accepted that freedom of association is one of the most important rights in our Constitution, this right should not be abused to perpetuate exclusion on the basis of race, ethnicity or colour. Overt exclusion on this basis will probably constitute at least the giving of offence to other groups and thus disqualify such a party from registration in terms of section 16 as it now stands, but it will be much better to create certainly by specifically writing into the Act that parties that discriminate in such a manner should be disqualified from being registered. This is also done in section 26 of the draft bill.

27. Section 27 of the draft bill contains an amendment consequential to section 26 of the bill.

28. As Chapter 4 of the Electoral Commission Act presently stands, a party that wishes to change its name (as parties ate entitled to do under the Constitution), abbreviated name, distinguishing mark or symbol, it can only do so by applying for a new registration as a party. It is proposed that a new section (16A) be inserted in the Act to make it possible for parties to merely apply for a change in their registered name, etc.

29.1 At present the registration of a party can only be cancelled if the Commission is satisfied that it no longer functions; or if the Commission is notified by the party itself that it has dissolved or is intending to dissolve. Nothing prevents a political party from functioning as such without being registered. The sole reason for registering is

that it can only participate in an election if it is registered. There are presently 118 registered parties of which a number have not participated in an election. One gets the impression that in at least some cases the registrations are maintained simply to prevent anyone else from using the name, abbreviated name or logo. Section 17 of the Electoral Commission Act is accordingly amended to make it possible for a party registration to be cancelled if the party does not have representative in a legislature and has not participated in a general election that took place after it has been registered or after it last had such a representative.

29.2 Furthermore a party may, after it has been registered, change its deed of foundation or constitution in such a way that it then contains something that would have disqualified it from registration. It is therefore proposed that section 17 of the Act be further amended to provide that a registered party must within two months after having changed its deed of foundation or constitution, submit a copy of the changed deed of foundation or constitution to the chief electoral officer. If, in the opinion of the Commission, the deed of foundation or the constitution was changed in such a way that it then contained something that would have disqualified it from registration, the Commission is empowered to cancel the party's registration after having afforded the party an opportunity to rectify the problem.

30. Section 27 of the draft bill contains the short title and the normal coming into operation provisions.