Electoral Bill: briefing

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
21 July 1998
ELECTORAL BILL: BRIEFING

Documents handed out:
Electoral Bill: Options (prepared by IEC) (see appendix)

SUMMARY
Judge Kriegler noted the following issues about the Electoral Bill: it applied to all legislatures, it would establish a universal voters' roll, one can vote only where one is registered, there is no provision for campaign funding of political parties, voting will be on one day only, registration requires the bar-coded identity document and there is no provision for special votes.

DETAILED MINUTES
Judge Kriegler, chairperson of the IEC, raised the following points in his briefing:
1 The Electoral Bill applies to elections in all spheres of government.
2 It provides for the establishment and maintenance of a national common voters' roll as required by the Constitution .
3 The cut-off provision for the closing of the voters' roll will need amendment. Closure of the voters roll should happen at the time of the proclamation of an election however the Commission wants closure to be earlier than the proclamation date as it needs administrative time to ready the voters roll for the election. The Commission proposes the end of February 1999 for the closure of the voters' roll.
4 Citizens will only be allowed to vote where they are registered. Registration should occur in the voting district where a citizen is ordinarily resident.
5 The Electoral Code of Conduct in Schedule 2 follows the Queensbury Rules. The Electoral Court will adjudicate disputes relating to breaches of the Code of Conduct only. Non-Code of Conduct breaches will be referred to the ordinary courts.
6 Attention was drawn to Point 6(b) of Schedule 2 which states:
"[Every registered party and every candidate] must facilitate the full and equal participation of women in political activities". Judge Kriegler stated that this might need more precise formulation.
7 There is no provision for the funding of political party campaigning unlike the 1993 Electoral Act. Judge Kriegler appealed to the committee that if it believed that campaign funding was a necessary concomitant and this provision needed to be included in the Bill that it not be an "open-ended handout" as was the case in 1994.
8 The election will be one day only. There is no need to extend the election to a second day as each voting station will only have to cope with 3000 - 3500 voters in the urban areas and 1200 - 1500 voters in the rural areas. He granted that for ideological reasons, people would want to extend the elections but put forward the following considerations for why it should be one day only:
- an extra day would be costly (the salaries for election staff alone would cost R80 million a day)
- a two-day election would increase any mounting of tension
- the ballot boxes would never be out of the public's eye and thus the legitimacy of the election would be promoted.
9 The Bill does not provide for the declaration of a public holiday for election day. The President has the power to declare a public holiday and such a political decision can be taken later.
10 Special votes have not been allowed for in this Bill though it does empower the Commission to make such special arrangements. Judge Kriegler stated that the Commission does not have the money for special votes which he termed an "electoral luxury". He listed those categories of voters that would be excluded in this way:
- the disabled, the aged and the infirm as well as confined mothers
- diplomats abroad
- people on election duty
- workers working away from their voting district
- prisoners
- expatriates and citizens overseas on holiday.

He mentioned that the majority of countries do not allow for overseas voters. Permitting prisoners to vote would be administratively difficult and he wanted to avoid the problems encountered in the 1994 elections in this regard. If special votes were allowed, voting at a different time or at a non-registered place would have to be allowed and these would both have major cost implications. He asked the committee that if they insisted on special votes that they should explain how this is to be done administratively.
11 The green bar-coded identity document is required in order to register. This would avoid all duplications, forgeries and ghost voters as this identity document is only issued after a person has had his finger prints entered in the National Population Register. This Bill allows for the preparation of a unique document, a universal voters' roll, which will be the basis for all future elections which the Commission does not want to be tainted.

However the Commission has had an independent body investigate the availability of the bar-coded ID and is awaiting the results. Depending on these results, it might have to rethink this requirement. If it goes ahead with this requirement, Judge Kriegler said that it would need the cooperation of the Home Affairs Department, adding, "I hope the cooperation in the future is better than the cooperation to date".

Questions by committee members:
Mr Chikane (ANC) asked what the cost implications of allowing people outside the country to vote are. Judge Kriegler relied that it would cost R6 to 7 million (in 1994 96 000 people voted overseas) and would result in a delay in the voting results (as the ballots would have to be couriered to South Africa) thus increasing tension.

Ms Smuts (DP) was interested to know which countries did not permit citizens to vote who were overseas at the time of the election. Judge Kriegler promised to furnish the committee with a list of these countries.

An ANC MP noted that eliminating all special votes created problems with regard to a person's constitutional right to vote.

Ms Smuts (DP) wanted to know how the Committee could help to ensure that the Commission received sufficient funds to permit special votes.

Mr Momberg (ANC) referred to the fact that permanent residents would not be allowed to vote. Judge Kriegler replied that those who voted in 1993 as permanent residents were now eligible anyway to take out citizenship and thus be able to vote.

Mr Bester (NP) requested clarification regarding the need for the early closure of the voters' roll.

The chairperson noted that only written submissions would be entertained and the closing date for these was set for Monday, 3 August 1998. The following dates have been set for consideration of the Electoral Bill:
29/7/98 Room G26 9-11am
04/8/98 Room V475 9-11am
05/8/98 Room G26 9-11am
11/8/98 Room V227 9-11am
12/8/98 Room G29 9-11am
18/8/98 Room V454 9-10am
19/8/98 Room G29 9-11am.

An NP MP suggested that the relevant NCOP committee be invited to attend these meetings and the chairperson agreed. The meeting was adjourned after the Births and Deaths Registration Act amendment was agreed upon unanimously.

Appendix
Briefing [B69-98]
ELECTORAL BILL: OPTIONS [PREPARED BY INDEPENDENT ELECTORAL COMMISSION]

1. PURPOSE OF DOCUMENT
The purpose of this document is to draw attention to certain constraints in the electoral process as envisaged by the Bill and to policy issues on which there may be differences of opinion in Parliament and in civil society at large. The financial implications of various options are highlighted where these are relevant. Debate would appear to focus on the registration of voters (and various issues related to registration), special votes and the number of voting days. Other issues may of course also come to the fore.

2. REGISTRATION OF VOTERS
2.1 Financial constraints
The present intention, of registering voters on sixteen days over a period of three months, is necessitated by budgetary considerations. The intention is to have a series of "registration weekends", the first of which may extend over, say, a Saturday and a Sunday, the second, a week or two later, over a Sunday and a Monday and the third over a Friday and a Saturday. Such variations would accommodate voters of various religious persuasions by enabling them to register on a day of the week when such activity is acceptable to them. Door-to-door registration is also planned whenever necessary.

It may be possible to register all voters during these sixteen days, but it is of course also possible that the proportion registered at the end of the period will not have reached an acceptable level. The number of sixteen days has largely been dictated by financial constraints rather than necessarily by an accurate calculation of the period needed to register all voters. Should the period prove inadequate, each additional registration day would cost approximately R16 million. Should the number of registration days be increased by, say, ten days, from sixteen to twenty-six, the total increase in cost would amount to R160 million which would have to be provided in addition to the funds already requested by the IEC.

A useful criterion for measuring the success of the registration drive could be derived
from the percentage of those eligible who voted in 1994, which was approximately
87%. Rounding this off, one would be seeking a minimum registration rate of 90%.

2.2 South African citizenship
Other than in 1994, in accordance with the 1996 Constitution this Bill provides for voting by South African citizens only and permanent residents are excluded. It should, however, be noted that fewer categories of South African citizens would be disqualified from voting in 1999 than was the case in 1994. At this point, all South
African citizens who have reached the age of 18 enjoy the franchise, with the sole exceptions being those who are of unsound mind, mentally disordered or detained under the Mental Health Act. The criminal categories disqualified in 1994 are not mentioned in the new Bill. The only point at issue would be the practicability of all those eligible to vote being able to do so.

The second point to be noted is that, other than in 1994, permanent residents will have no right to vote in 1999. Many people who had settled in this country prior to 1994 felt themselves morally persuaded not to take out South African citizenship under the existing regime. The changeover to democracy has, however, eliminated this particular factor and, given that all those who had permanent residence in 1994 and were therefore entitled to vote in those elections qualify for South African citizenship on application, those who wish to become South African citizens will obviously be enfranchised. Those who do not apply for South African citizenship, even though we are now a democracy, will be exercising that choice voluntarily, and therefore the moral argument for them to have the vote is not persuasive.

2.3 Ordinary residence
A person should apply for registration in the voting district in which he or she is ordinarily resident. The determination of place of ordinary residence would in the first instance be left to the individual concerned, and this would therefore to a large extent deal with the situation of migrant labourers. It is, however, important to note that a voter would have to exercise his/her vote in the voting district in which he/she is registered, so the choice of where the person regards him/herself as ordinarily resident would also have to be influenced by the practical reality of the person having to be in that voting district on voting day itself. It is logistically impossible to permit anyone to cast a vote for a different province from the one in which they find themselves on voting day. Even if this were practicable, it would be undesirable in that it would open the door to large-scale electoral fraud.

2.4 Identity document
In terms of the Bill, only South African citizens in possession of a South African identity document issued on or after 1 July 1986 would be eligible to register as voters.

The importance of this document lies in the fact that those who applied for it had to supply their fingerprints in their applications, which means that duplications do not occur. (The same applies to the old reference books; for these too fingerprints were supplied.)

It does not, however, apply to the identity documents issued to coloureds, Asians and whites before 1 July 1986 (here we are referring to the old dark blue "Book of Life" and the green identity document without a barcode which was issued up to 30 June 1986). No categorical assurance can be given that there are no duplications among these particular documents, although since they all incorporate an identity number, they can be linked to the Population Register and at least one can be sure that an individual does not appear twice under the same name.

The other documents of relevance here are the old TBVC identity documents, for which no fingerprints were supplied. That apart, the databases/population registers that underpinned these particular documents are no longer available or usable. Thus there would be no basis on which to verify information provided by such voters.

In terms of the integrity of an election, it is preferable that only the documents (green identity books with barcodes) issued since 1 July 1986 be accepted for purposes of registration, since there can be no duplications. On the other hand, in practical terms, because of the lack of base data a TBVC document could not support an application for registration as a voter, since there is no basis on which one could check for possible duplications nor a database from which to extract details. One would therefore simply have to accept such a document at face value.

3. SPECIAL VOTES
3.1 Background
Special votes are intended to provide for persons who, for specifically identified reasons, are unable to cast their votes at the voting station for which they are registered. The inherent problem with special votes involves deciding on the particular categories of voters to be provided for. This is problematic because there is always "just one more ... "deserving category to be added to the list, and eventually one arrives at a situation which is really one of prior rather than special votes. This would present enormous logistical problems (which may in fact be insurmountable given present capacity) and would also be extremely expensive.

What follows is a brief categorisation (in no particular order) of the special votes that might be considered, always bearing in mind that a special vote can be arranged for any voter - but at a cost. In general, special votes are always more expensive to administer than ordinary votes, and special votes in certain categories may cost considerably more than others.

3.2 Possible categories of voters to be granted special votes
3.2.1 Diplomatic staff posted abroad
It would be relatively easy to arrange for diplomatic staff and their families, whose numbers and identities can easily be determined in advance, to vote at our diplomatic missions abroad. As to the voting districts in which they should be registered, these too could be easily determined: if an individual owned property in South Africa, that would determine the voting district; if not, the location of the head office of the individual's department (Foreign Affairs, Home Affairs, etc.) could be used. Given the limited numbers of voters involved, the cost implications of such special votes should be relatively small, amounting to some R1,5 million. The case for permitting such special votes rests on the fact that diplomats serve their country abroad and that that should not "disenfranchise" them.

3.2.2 Election workers (including state security forces)
Some workers directly involved with the election, as well as others such as the police and military, will be stationed in the voting districts in which they are registered. Their circumstances would present no problems and a special provision could enable them to vote before the official opening of the voting station.
Many election workers will, however, come from elsewhere and they will be "disenfranchised" if they do not qualify for special votes. In such circumstances it may be difficult to recruit election workers.

3.2.3 The disabled, elderly, pregnant etc.
Presiding officers can make special "rapid throughput" arrangements for those voters who are unable to queue because of physical disability. However, certain voters will simply be unable physically to get to their voting stations. The exclusion of such voters from practical access to voting facilities might very well be open to constitutional challenge.

The cost of providing special votes for disabled voters and election workers could be expected to amount to approximately R80-90 million.

3.2.4 Prisoners
Prior to 1994, enfranchised prisoners were not disqualified from voting but, since voting stations were not set up inside prisons and prisoners were not allowed out to vote, in practice they could not vote. In 1994, albeit with certain criminal categories disqualified from voting, prisoners had the vote and voting stations were set up for them inside prisons. It was considered important for the legitimacy of the 1994 elections of national reconciliation that extraordinary means be employed to ensure their inclusivity, given that at that stage South Africa still had political prisoners and victims of the system. No criminal categories are disqualified from voting in 1999, but considerations of security, logistics and cost may lead to a decision not to set up voting stations inside prisons to cater for the approximately 120 000 voters involved. It must be remembered that the constitutional requirement of a voters' roll would create logistical problems that did not exist in 1994, such as presumably requiring a voter to register some six months ahead of voting day in the prison (voting district) where he/she will be on voting day. It would be logistically impossible to record the vote of a prisoner who, although in prison on voting day, registered while still free in another voting district. It could also be argued that certain other categories of potential voters, being in no way responsible for their inability to reach their voting stations on voting day, are more deserving of special attention than are prisoners. This is particularly the case given our present bail arrangements, the fact that there are no longer political prisoners and the fact that there are no detainees or prisoners who have not had the benefit of appearing in court. It is accordingly not unreasonable to suppose that the absence of a provision for special votes for prisoners would not be open to successful attack on constitutional grounds, given the "limitation provisions" in the Constitution. Should prisoners, however, qualify for special votes, the cost incurred would be in the region of R10 - 12 million.

3.2.5 South African citizens living abroad
In 1994, political considerations of inclusivity dictated that South Africans living abroad, many not by their own choice, should be able to vote for our first democratic government. The IEC went to great lengths and expense to set up voting stations abroad to cater for an estimated several hundred thousand voters. In the event, fewer than 100 000 foreign votes were cast. Apart from the near-Insurmountable logistical problems that would be encountered in administering foreign votes in a voters' roll-based election such as that in 1999, and the enormous cost that would be involved, there would seem to be a weaker argument for extending the vote to South Africans in foreign countries who could have returned to the country since 1994 had they wished to, all political impediments having been removed. It must also be pointed out that the vast majority of countries do not permit special votes for their citizens living abroad. Should voting abroad be permitted the cost thereof would come to approximately R6 - 7 million.

3.2.6 Workers in essential services
It would not appear to be the responsibility of election administrators but rather of the individual employer and employee to see that arrangements are made for workers in essential services to be able to vote. It should additionally be possible for the IEC to make "rapid throughput" arrangements for voters who have to return to work in essential services, irrespective of whether or not voting day is a public holiday.

3.2.7 Others
Various other categories of special voter could be discussed. These include business people, holiday-makers, truck-drivers and fishermen. As to these categories, it is important to remember that it has been known for several years that the election will take place in May-July 1999 and that the actual voting day (possibly a public holiday) will be known several months in advance. The principle has, however, been clearly set out here; special votes can be arranged for any category of voter - but at a price.

4. NUMBER OF VOTING DAYS
Two main considerations underpin the recommendation of one voting day only:
4.1 Expense
Every additional voting day incurs enormous additional costs. Salaries, for instance, would alone amount to some R80 million and various other direct costs would be incurred for rental of voting stations, etc. Indirect costs would also be involved, in that, for instance, a clinic being used as a voting station would be out of commission for an extra day, election workers would be absent from their normal work for another day, etc.

4.2 Security
It is doubtful whether the capacity exists in the country adequately to safeguard all the voting stations and their contents overnight; even if it does, such security would be costly. Most tellingly, however, the potential for political violence, interference with ballot boxes and a subsequent cloud over the legitimacy of the elections can be avoided almost entirely if voting takes place on one day only and votes are counted at the voting stations where they have been cast as soon as the polls close, with the result being announced on the spot immediately it is known.

4.3 Legitimacy
Public confidence is essential to electoral legitimacy; suspicion and rumor fatal. Therefore every opportunity for fraud should be eliminated. Ballot stuffing is a popular suspicion and can best be avoided by taking ballot boxes shown to be empty, sealing them, keeping them in public view throughout the voting process and until they are publicly opened and emptied at the start of the count. Removing ballot boxes from public scrutiny for safekeeping overnight therefore not only entails a substantially increased logistical and financial cost, but runs the serious risk of eroding public confidence.

5. CONCLUSION
The current draft leaves the addition of "extra's" to the Commission. Should Parliament decide that any one or more of them should be mandatory the IEC would have no objection. Within the bonds of administrative feasibility any number of special arrangements can be made - but in each case at a cost.