Municipal Electoral Bill: hearings

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
5 June 2000
LOCAL GOVERNMENT MUNICIPAL ELECTORAL BILL: HEARINGS

Relevant submissions:
South African Local Government Association (see Appendix 1)
Lawyers for Human Rights (see Appendix 2)

SUMMARY
The committee held public hearings on the Local Government Municipal Elections Bill. Presentations were made by the South African Local Government Association (SALGA) and Lawyers for Human Rights.

Discussion focused on whether section 7(1)(b) of the Bill should be amended. The section currently excludes prisoners and those awaiting trial from voting in municipal elections. Lawyers for Human Rights supported the clause as is, arguing that it would cause an "administrative nightmare" since most prisoners are not incarcerated in the same municipalities in which they reside. A decision on the clause has yet to be made by the committee.

MINUTES
South African Local Government Association (SALGA)
Mr C Mathebe, Treasurer of SALGA, briefed the committee on SALGA's submission on the Municipal Electoral Bill (see Appendix 1).

The Chair asked SALGA to submit their proposed amendments to the Bill based on the criticisms that had been made.

No discussion followed.

Lawyers for Human Rights
Mr Butiki Pitikoe, Legal Advisor for the Penal Reform Project, presented their submission (see Appendix 2).

Mr Pitikoe stated that while his organisation supported 7(1)(b) of the Bill, which excludes prisoners from voting in local government elections, they were very much committed to ensuring the rights of prisoners to vote both nationally and provincially.

It was also submitted that denying awaiting-trial prisoners the right to vote was justified due to the administrative difficulties that would result from detainees being incarcerated in municipal wards different than those of their normal residence.

Discussion
The DP asked whether Lawyers for Human Rights were happy with the wording of 7(1)(b). Mr Pitikoe replied that the wording of the clause was both vague and confusing. The Department of Home Affairs had previously stated in their legal opinion that a more succinct phrasing of the clause was needed.

Debate centered on whether prisoners should be excluded from voting in municipal elections. SALGA refuted the claim made by Lawyers for Human Rights, stating that not allowing prisoners to vote would create the perception that municipal elections were not important. Mr Pitikoe replied that involving prisoners in municipal elections would create administrative nightmares. The Chair admitted that further discussion on this issue was necessary.

The meeting was adjourned early.

Appendix 1:
SALGA'S COMMENTS ON THE MUNICIPAL ELECTORAL BILL

MATTERS OF PRINCIPLE

Section 7(2)

This section deals with allowing voters not appearing on the voters roil to cast a vote if they have a receipt in their identity document and have completed a sworn affidavit. etc. This allowance leaves the door wide open for fraud on election day as a Zip-zip machine producing bar-coded receipts or a manual receipt book could be stolen and receipts issued which would allow a non-qualifying person to cast a vote in a voting district of his/her choice.

Section 10

The issue of tampering with the ballot papers is not addressed. A procedure needs to be identified.

Section 14

Whilst section 14(4) provides for the Commission to allow a party to correct any omissions in respect of its documentation. No provision is made at all for a similar dispensation for ward candidates.

Section 19(1)

This section empowers the Commission to establish voting stations. This section should be amended to allow the responsible election officer to decide that more than one fixed voting station in a voting district may be established and he/she should further be entrusted with the authority to split the voters' roll between such stations.

Section 23

This section deals with ballot papers. However, no provision is made for serial numbers on ballot paper counterfoils. It is recommended that this be included either in the Act or any regulations that might be promulgated for this purpose.

Section 28(3)

This section deals with the presiding Officer's power to instruct people to leave the area within the boundary of the voting station, if that person's conduct is not conducive to a free and fair election at the voting station. As it is currently drafted this provision is too narrow and the Presiding Officer should be authorised to remove all categories of persons who misbehave within a voting station.

Section 31(2)

This sections deals with the appointment of the voting staff to do the count after the close of voting. ECLOGA indicates that this should not be allowed as the staff are tired. (This might cause problems with the staff as normally they all want to count as well as they are being paid separately for the count which is normally done over a shorter period than election day)

Section 37

This deals with the criteria for disqualifying persons from becoming election officials. ECLOGA recommends that this list of persons disqualified should include the fact that the person is an immediate family member of any of the parties mentioned in section 37(1 )(a) - (c). (This should probably only apply to a specific ward and not an entire election.

Section 38(8)

This section deals with an institution and each of its employees who exercise powers and performs duties in terms of this Act and seeks to safeguard their independence in relation to their membership association statements or conduct. This section as it is currently drafted is extremely vague and needs to be redrafted more narrowly to have a reasonable application.

Section 39

This section deals with the appointment of agents. The number of agents that a party and an independent ward candidate may appoint differ. It is submitted that both groups should be entitled to appoint the same number of agents.

Section 51

This section deals with objections concerning voting. It is submitted that it would be preferable to set out procedure for objections in regulations rather than the Act.

Section 55

This section deals with special votes. Section 44(3) provides that a special vote must be delivered to the Presiding Officer of the relevant voting station by no later than the date stated in the election timetable. Special votes should be delivered to the LOCAL ELECTORAL OFFICER 's office or a designated office instead of opening all voting stations for an extra day. (Very few special votes were requested in the last election and to Day for a venue and two officials for every voting district is not cost effective.)

Section 79

This deals with the fact that there is no appeal mechanism against a decision of the Electoral Court. Appeal to the Constitutional Court should be allowed.

Section 82

In terms of this section members employees and officers of the Commission have access to private Places when necessary. This might be unconstitutional and the Commission will need to investigate.

GENERAL COMMENTS

The office of an electoral officer is a very stressful one given the environment that he/she has to operate It is therefore essential that the legislation that informs his/her task should be user4riendly. It therefore would seem that it would be preferable to either have all the details relating to an election in the Act or alternatively in a set of regulations. The electoral officer will be at a great disadvantage when operating under pressure having to cross reference his decisions to provisions in an Act and then to scan the regulations to see whether they also contain relevant provisions. This is an important on the ground matter which needs to be attended to.

Legislation relating to elections should not be amended within the month prior to elections as this makes it often impossible to apply such legislation.

Appendix 2:
Submission by Mr Butiki Pitikoe from the Penal Reform Project of Lawyers For Human Rights to the Home Affairs Portfolio Committee on 5 June 2000 on the exclusion of persons in lawful custody from voting in Local Govt elections.

Mr Chairman, honourable members of the committee.

On behalf of Lawyers For Human Rights and in particular on behalf of the LHR Penal Reform Project, I thank you for the opportunity to make this brief submission.

My submission is brief for the simple reason that the LHR Penal Reform

Project supports the exclusion of prisoners from the Local Govt elections.

Our Project has also discussed to issue with other NGO's involved with

prisoners and their attitude seems to be the same.

Our position is however premised on a serious qualification. Our commitment to the rights of Prisoners to vote for the National Assembly and the Provincial Legislatures is as strong as it has ever been, and we believe it is important at this stage to briefly look at the differences between politics at the local level and politics at the National level.

Lawyers for Human Rights was instrumental in assisting Legal Resources

Centre in bringing the case of August v The IEC before the Constitutional

Court. Our project was also allowed to argue amicus curiae before the

Constitutional Court on behalf of trial-awaiting prisoners in that matter.

We believe that allowing prisoners to vote in the municipal elections will unnecessarily involve the voting rights of prisoners in controversy. It will make our cause for the vote at National Level more difficult to advance in the eyes of the public.

Prisoners have almost no interest in good governance at local level. Their interests in clean water and reliable electricity is sufficiently taken care of by the custodial duties that the state has in respect of prisoners. The denial of trial awaiting prisoners is justified on the basis not of their status as prisoners but on practicalities and the fact that such incarceration is normally not at the place of normal residence after the initial period in police custody. Few trial awaiting prisoners are held in their municipal wards. They can therefore properly be regarded as absentees, and a legislative limitation of their rights should be regarded as reasonable.

Prison populations also have the potential to Skew the electoral results in a constituency based system. We accept that this would be unreasonable towards the general public who have direct and substantial interests in local govt affairs.

Elections at National level involve issues fundamentally different. In that context the very essence of prisoners as citizens are at stake. Their situation, as a vulnerable minority demands that they be given an opportunity to vote. There are many other reasons which need not be discussed now.

if the debate were to be raised again in the context of the National Electoral Act, we would urge your committee to grant our project sufficient prior notice thereof so that we can make properly motivated submissions.

Thank you.