Electoral Act Amendment Proposal: Mr G R Morgan, MP

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS STANDING COMMITTEE
23 February 2007
ELECTORAL ACT AMENDMENT PROPOSAL: MR G R MORGAN, MP

Acting Chairperson: Mr Y Wang (ANC)

Documents handed out:
Presentation by Mr G R Morgan MP (DA) on a Legislative Proposal to amend the Electoral Act (73 of 1998)
23 February 2007
Electoral Act Amendment Bill

Audio Recording of the Meeting

SUMMARY
The aim of the legislative proposal was to prohibit government advertising during election periods, with certain exceptions. If implemented it would significantly contribute to levelling the playing fields for political parties during elections, would ensure that the line between party and state was not blurred, and that state resources would not be used to promote any particular governing party. The matter of the use of taxpayers’ money for electioneering activities that could benefit incumbent parties was a subject that should be debated in all our legislatures.


MINUTES
Mr Y Wang was elected Acting Chairperson.

Thirty minutes after the meeting was scheduled to start, only two members of the committee were present.
Mr S Mshudulu (ANC) clarified that procedure permitted the sponsor to present his proposal for the first time, even if no quorum was present, as long as some parties were represented. A quorum would be required for future engagements.

Ms S Rajbally (MF) asked whether the meeting would discuss the documents presented by Hon Morgan as no decisions could be taken due to lack of quorum.

Mr Wang submitted that it would be unfair to have discussions without a quorum. It was more important for the Hon Morgan to brief the committee since four parties were represented.

Mr M Ellis (DA) asked the secretary what a quorum would be for such a meeting.

The Secretary responded that the issue of a quorum only arose when the committee had to take a decision. This being the first opportunity granted to Mr Morgan to explain the document a quorum was not necessary. The normal process would be for discussion after the briefing, a decision was not normally taken at the first briefing. A quorum would be necessary at the next briefing. In this case a quorum would be 50% plus one, which would be approximately nine members.

Mr Mshudulu clarified that this meeting Hon Morgan would present, there could be questions on clarity, but decisions would only be taken at the next meeting.

Mr Morgan asked whether that meant he would have to make the presentation twice.

Mr Mshudulu explained that the proposal would be tabled at this meeting, the next meeting Mr Morgan would be defending it and the committee would engage on the basis of whether it agreed or not.

Ms Rajbally had found the document to be very interesting, entailing a lot argumentative points, and suggested it be taken into serious consideration and discussed in full committee.

Mr Morgan expressed the wish to make the presentation.

Mr Morgan then briefed the committee. He was passionate about the issue of government advertising during election periods.
The background to the proposal was that just two weeks before the 14 April election day, 2004, the Democratic Alliance (DA) in the Western Cape launched an interdict against the Premier of the Western Cape, the ANC and the NNP for what it argued were several cases of abuse of taxpayers money for electioneering purposes that involved one or more of these parties. The matter was settled amicably and the application was not proceeded with. However, a press statement was issued jointly by the DA, the Premier, the ANC and NNP, in which it was agreed that the issue would receive attention after the 2004 elections.
While the undertaking pertained to the Western Cape, Hon Morgan decided to take the issue up on a national level, as the matter of the use of taxpayers’ money for electioneering activities that could benefit incumbent parties was a subject that should be debated in all our legislatures.
He subsequently asked colleagues in each of the nine provincial legislatures and the NCOP to request the respective Speakers or Chairpersons to convene ad hoc committees to discuss the matter of government advertising during election periods. He made the same request to the Speaker of the National Assembly. Motions were placed on the order papers of various legislatures, including the Western Cape, where it was the subject of a debate. No actions or resolutions followed from this debate. The Acting Speaker of the National Assembly at that time corresponded that the request for a committee on this issue could not be granted, arguing that it was not urgent, and other courses of action were suggested.
Mr Morgan then decided to draft a legislative proposal on the Prohibition of Government Advertising, which was submitted to the Speaker on 7 September 2005 in accordance with Section 235 of the National Assembly rules, and the proposal submitted to this committee for consideration.

In the period leading up to the 1999 national and provincial elections, the Task Group Government Communication and Information System (GCIS) established election period regulations. Cabinet decided on a possible ‘framework to regulate against the dissemination of government information during election periods in a way that is to the disadvantage of one political party and to the disadvantage of others’. These regulations relied on self-regulation by government communicators. In practice they were neither enforced nor desirable. The current regulations argue that government communicators ‘should continue exercising their responsibilities to articulate, promote and defend the policies, programmes and actions of the government.’ This created a grey area in the regulations allowing the spirit of the regulations to be undermined. Mr Morgan contended that promoting and defending the policies of government should be performed by the political party running a particular department or municipality, and not by the communicators of government, specifically during the election time, although there were exclusions.

Mr Morgan proposed a prohibition on government advertising being included in the Electoral Act, Which already includes extensive prohibitions in Chapter 7 relating to the running of elections such as impersonation, undue influence, and so on, and were enforced by the Electoral Court.

The types of government advertising he considered to be election advertising to promote or oppose, directly or indirectly a particular political party, were advertising containing information that specifically promoted or opposed a candidate or political party; advertising specifically targeted to an electoral district in which an election was being conducted; advertising specifically designed to coincide with the campaign period; or a material increase in the normal volume of advertising, either generally or in relation to an electoral district, during a campaign period.
An example was during the 2004 election campaign period national departments took part in the ‘Ten Years of Democracy Campaign’ and made extensive use of advertising. There was nothing wrong with celebrating ten years of democracy, which was something we all applaud, however it emerged that ministries were invited to submit budgets for the Ten Years of Democracy celebrations. Starting this advertising campaign during an election campaign provided a significant advantage to the governing party. It was revealed that during this celebration period the department paid for an advertorial in a Sunday Times newspaper supplement in which it celebrated ten years of infrastructure development at a cost of R127 000. The objection was that it should had been the job of the ANC as a political party to inform the electorate of what its successes had been over the previous five years, for example, the area of infrastructure and development, and not the department. In the example of this advert the ANC’s campaign was supported at the expense of the taxpayer, as the reasonable voter knew that an ANC minister had been running that department.
The total expenditure on that particular campaign was not easily dismissed. The Department of Defence spent R9.1 million, the Department of Education spent R8.7 million and the Department of Health spent R2 million on publications and adverts relating to the Ten Years of Democracy Campaign.
Only a month before provincial elections in 2004 the provincial government published an insert in the Sowetan entitled ‘Gauteng News’ with the headline ‘Gauteng was now a better place’. While that may be true, during the election period it was incumbent on the ANC as a political party and not the provincial government to convince the electorate that Gauteng was indeed a better place. Also in March that year a half page advert promoting a youth rally was published in the Beeld newspaper with the slogan ‘Saam skep ons werk en beveg ons armoede’ (together we will create work and fight poverty), which was not very different from the ANC’s 2004 election slogan ‘A people’s contract to create work and fight poverty’. Such an advert, paid for by the government, and hence the taxpayer, would have actively helped promote the ANC as a party.
Mr Morgan also gave examples of government advertising during an election period at local government level, of which one for the City of Tshwane alone cost R72 000.
The practice of government advertising during election periods was widespread, and while the degree to which such advertising benefited the party that runs any of these particular departments or municipalities could be debatable, the fact was it did benefit the governing party and placed any other party contesting elections at a significant disadvantage.

Aims and objectives of the Legislative Proposal
Objectives of the proposal were:
- The prohibition of government advertising, with limited exceptions, from the date on which an election is
called to the date the result of the election is determined;
- the provision of penalties for offences registered in this regard;
- the prevention of any governing party from receiving an unfair advantage through the use of government
advertising; (he stressed any government party - in south Africa there were municipalities run by at least
three political parties)
- the promotion of multi party democracy.

The proposal would be a relatively simple amendment as an addition to the Electoral Act as it currently stands. This includes
1. The insertion of a new section entitled ‘Prohibition of Government Advertising’ under Part 5: Other
General Provisions.
Part 5 currently included all the other provisions and prohibitions that exist during election times. The Act stopped political parties from intimidating each other, using undue influence, etc. It would merely be an addition to that particular part. He had defined clearly that government meant any department, state or administration in the national, provincial or local sphere of government.
Advertising was defined as ‘any newspaper, book, periodical, pamphlet, poster, media release, bill board, mailing insert or other printed matter or statement or any audio and video material, or any information in electronic form such as CD ROM, incidental e-mail or any display which was produced and disseminated to the public which was financed by or directly under the control of government’.
Mr Morgan then referred to exclusions. Government could not stop communicating. It was the core function of government to do a certain amount of things, and that could not stop at any time of year, irrespective of whether it was election period or not. The concern was that advertising which could be seen to promote any particular party. Some exclusions were: government had to suspend all advertising except for advertising relating to community health, welfare and safety issues, including environmental hazards, advertising relating to emergency measures, advertising relating to policies and legislation that required public comment; factual information having clear commercial consideration including but not limited to tourism promotion, international investment and trade marketing, tender processes, legal processes, recruitment and factual information on how to access government services and expertise.

2. The amendment of Section 97 to include the new prohibition as an offence.
Mr Morgan had made use of the current loop in the electoral Act so as not to overcomplicate it. It created the prohibition and included that prohibition under Section 97 of the Electoral Act, which was Offensive.

3. The amendment of Section 98(b) to stipulate the penalty carried by the offence.
This prohibition fits into that loop which currently existed, that being that any person convicted of an offence was liable of a fine or imprisonment for a period not to exceed five years. That was the current penalty in the Electoral Act applied to any number of prohibitions that were on the statute books with regard to transgressions during election campaigns.

4. An appropriately amended Short title.
This being in the tradition of legislative proposals.

Mr Morgan then went through some practice from around the world, citing Canada, Australia and New Zealand.

Mr Morgan concluded that the aim was to prohibit government advertising during election periods, with certain exceptions. If implemented it would significantly contribute to levelling the playing fields for political parties during elections, would ensure that the line between party and state was not blurred, and that state resources would not be used to promote any particular governing party.

Mr Wang thanked Hon Morgan for his presentation and asked for contributions from members.

Mr H Bekker (IFP) concurred with the spirit and had no questions for clarity.

Ms Rajbally thanked Mr Morgan for the presentation. The document had some substance but one had to go through it properly and it merited wider discussion. The document should be circulated to committee members before the next meeting to give them time to go through it in order to had full discussion in committee meeting.

Mr Wang agreed.

Mr Mshudulu thanked Mr Morgan for the presentation. He confirmed the spirit of this committee. It had had very exciting engagement with petitions and bills proposed that impacted on our democracy. He added that this committee usually encouraged the sponsor to take advantage of any further information that Mr Morgan could bring to motivate the case. The channels would always be made available through the secretary. The committee was always open to any further research and it was always wiser to make any additional information available.
He explained that this committee did not have a party attitude. All issues were dealt with openly. Debate would be triggered on the basis of substance and how best to assist the democracy. That process must not be compromised. Mr Morgan had been given an opportunity and would be given another opportunity to motivate in the next session.
He also wished to sensitise the sponsor in terms of the procedures followed in the committee should there be a need to engage a decision usually take different directions. One that was evident was as it related to communication and to find out as to whether it affected the relevant sections such as Home Affairs in the case of the Electoral Act. It was important for the sponsor to understand that the proposal was played between different committees and departments. He was not pre-empting the outcome, but it was important that the Member of Parliament should understand he process. Because of the workload the committee dealt with, it did not keep proposals long.

Mr Bekker endorsed what Mr Mshudulu had said. He would prefer, if it could be agreed by the sponsor, with regard to certain advertising mentioned in his report, that he could possibly also supply the committee with direct examples and bring that to the fore and indicate to the committee what was being perceived from their side as politically biased and could have an influence on the electoral process so that when the committee was in a position to discuss it would had direct access.

Mr Morgan thanked members for their contributions and suggestions. He was very keen to create real debate and thanked the committee for the opportunity to make his presentation. He would e-mail the document to the committee secretary and would also put together a table providing some of the outcomes of the Ten Years of Democracy Campaign from the various replies to questions he had put and would bring some examples of the type of advertising he believed there was a problem with.

Mr Mshudulu suggested he could deal with specific areas as an annexure. He asked the secretary to make the document available to members before the next meeting. He suggested to Mr Morgan that opinions were always beneficial.

Mr Wang queried whether the examples from Canada, New Zealand and other countries were also the result of complaints in those respective countries for the same reason that Mr Morgan was proposing this legislative proposal, and, if they were, what were the complaints and what were the results or consequences.

Mr Morgan responded that the outcomes and complaints were exactly the same as presented. Many other countries had these debates before and our legislature had not had this debate before.

Mr Wang asked how long ago those debates took place.

Mr Morgan replied that they varied from the 1980’s to ongoing concerns in Australia today. There were no hard and fast rules and there was no particular way to do this. His motivation was to create some debate. It was a good time as there was a long period before the next election.

The meeting adjourned.