Electoral Bill: discussion

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
28 July 1998
ELECTORAL BILL: DISCUSSION

Documents handed out:
Electoral Bill [B69-98]
This bill can be accessed from http://www.polity.org.za/

SUMMARY:
The committee members deliberated on clauses 1 to 55 of the Electoral Bill with Judge Kriegler, Chairperson of the IEC, who gave an explanation where it was needed. Some issues, such as who should be included under special votes, will be discussed at a later stage.

MINUTES:
Prof. Du Toit (ANC) mentioned that "identity document" was not adequately defined in the definition section of the Bill. Judge Kriegler said amendments would be made in the Bill regarding the definition. Section 19 of the Constitution guaranteed every citizen the right to vote freely but that did not mean that a person was allowed to vote without an I.D. Hence Section 36 of the Constitution would be applicable to limit the right to vote freely.

Clause 31 of the Bill leaves open the issue of municipal council elections. It was drafted in a flexible way and would be followed by the formulation of regulations which were being drawn up in consultation with the Department of Constitutional Development on a daily basis.

A question was asked whether clause 6 and clause 8(8.2) were not repetitive. Judge Kreigler replied that clause 6 refers to the detail of whom can apply for registration as a voter and clause 8.2 is the principle enunciated. Hence it is not repetitive.

No discussion occurred with clauses 7 and 8.

Mr Momberg (ANC) asked if there were any penalties for transgressing clause 8(3), which said that a person's name may not be entered in the voters' roll for more than one voting district. Judge Kriegler responded in the affirmative.

Regarding clause 9(1), Applications to change registration details, it was suggested that a time limit was needed. Judge Kriegler responded that it would help to circumvent the problem if no time period was included in the Bill.

Mr Bester (NP) asked with regard to clause 11 (1)(a) (which allows for an electoral officer to register a person who has not registered him/herself) should a person be forced to register in this manner. Again Judge Kriegler responded in the affirmative. Ms Smuts (DP) mentioned that in clause 11(1)(a) notification was required and persons should be given a receipt when they have registered to vote.

Focussing on clause 12 (1)(d) Judge Kriegler commented that if a person's registration details have changed such persons should be given notice thereof. Mr Van Deventer (NP) said that the IEC should not reregister people on its own initiative because it leaves the door open to abuse.

Ms Smuts (DP) wanted to know why, according to s49 of the Constitution, elections should only be proclaimed once the parliamentary term came to an end. Judge Kriegler said that he had raised the issue with the Minister of Constitutional Development and a proposed amendment had been drafted, which allowed for an earlier, automatic cut-off date for the closure of the voters roll. This would more or less be the end of February or the middle of March. If there is a amendment to the Constitution then this proposed amendment to the Electoral Bill will not be necessary.

A committee member asked what the difference was between clauses 15 and 14. The answered given was that there was a special provision relating to why the acting president would call an election. The acting premier can call elections in the provinces but the acting president may not, according to the provisions of clause 15.1. Hence a difference did exist.

Regarding clause 17, Ms Smuts said that in Schedule One of the Bill there was a timetable without dates. She said that the IEC should not be given this choice to make dates. There was a need for clear time-spans and the Bill must show this. Judge Kriegler replied that they will put in clear time-spans and dates.

Mr Albertyn (NP) said that in connection with clause 20 (Revote at voting station), there was a need for criteria to be set when ballot papers were lost or where there was no record of them. The Chairperson, Mr Lockey, said this was at the discretion of the IEC. It was noted that the question of lost ballots was not a simple issue because of the effect of lost ballots on the legitimacy of the whole electoral process. Judge Kriegler responded that the Commission was responsible for a clause 20 decision and not the decision which pertains to clauses 53, 54 or 55 (which involves the Electoral Court). If there is an irreversible effect in the election process due to lost ballots then clause 53 and 55 (dealing with Objections material to the final results of the election) would be looked at.

A committee member wanted to know why time periods were not included for the
re-voting process. The Chairperson mentioned that there was a timeframe given in the Constitution, which was within 7 days.

Concerning clause 22, Inspection and copies of voters roll, announcements concerning inspection of the roll would be made on radio and in the print and electronic media. The language of the announcements would be the language of the majority of people in that voting district.

Mr Bester (NP) wanted to know if the voters roll would be available electronically. Judge Kriegler said that it was only available internally electronically because it exists in a central database.

Pertaining to clause 23(2)(b) , Objections to voters' roll, Ms Smuts said it was unrealistic to expect political parties to notify a person. She felt the IEC should do it. The Chairperson responded that the issue would be discussed later.

Mr Bester asked if "include" meant excluding others in clause 27(3), which dealt with non-compliance concerning submission of lists of candidates. Again the Chairperson responded that the issue would be discussed at a later stage.

In clause 29(2), which focusses on objections to lists of candidates, a committee member wanted to know who served the notification. Judge Kriegler said that it was the duty of the IEC.

Concerning clause 32 the Chairperson said it was constitutional to have a special vote section because one must cater for the disabled, those women who are in the advanced stages of pregnancy, diplomats, people who work during the election as well as the aged because they make up about 10% of the population.

A question was asked why was there no mention of citizens abroad in that clause. The IEC should not be able to decide on this. Those categories mentioned already were agreed upon but there were other categories that needed earmarking. The Chairperson said that there was a need to categorise the special votes.

Ms Smuts informed the committee that her party wanted citizens who are overseas to be able to vote. Judge Kriegler said because of the system of voting and the spilt into constituencies, it made it impossible for a person to vote in another voting district. Also special offices would have to be opened, thereby incurring enormous costs. The Chairperson interjected by saying that that the discussion was a lengthy one and would also be discussed at a later stage.

The Chairperson said that "within the perimeter" or "within the outer perimeter" should be added to the provision in clause 34, Hours of voting.

Mr Bester mentioned that the measures taking against someone who transgressed the provisions of clause 36, Voting procedure, should be stated. Again the Chairperson said that this would be discussed later.

Mr Lekgoro (ANC) wanted to know how was secrecy of one's vote could be secured in terms of clause 37, Assistance to certain voters. This issue was not discussed at the meeting.

Mr Abrahams (NP) wanted two party agents present at the voting stations. Others agreed with the suggestion.

The Chairperson said that if the party agent became a nuisance then it was at the discretion of the chief electoral officer to discipline the party agent, according to clause 39, Objections concerning voting.

Relating to clause 40, Sealing of full ballot boxes, Mr Albertyn said that the sealed full boxes must remain in sight at the voting stations during voting hours until the counting of the votes.

In clause 42, Mobile voting stations, Mr Bester wanted the routes and times of the mobile station to be part of the Bill and not the regulations. Judge Kriegler responded by saying that clause 66(2) should be looked at regarding the timetable and route of the mobile voting stations.

In clause 45 Ms Smuts pointed out that a former procedure had been left out. This procedure reconciled the number of papers with the amount of stubs, which allowed one to see the difference in number. The Chairperson asked if there was a provision for that. Judge Kriegler responded negatively and the Chairperson said the issue should be discussed at a later stage.

Regarding clause 48(2) and (3), the method to be used to inform the IEC of provisional results was via cell phones.

It was mentioned that the IEC could announce the final result without having received the results from all voting stations, according to clause 55(3), Determination and declaration of final result of election. Judge Kriegler explained that if, for example, 100 votes were outstanding, why should the whole country wait for votes that will not make a difference to the final result.

The meeting adjourned. The next meeting will be on 3^rd August 1998.

Appendix

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.