By Mette Bakken
1. Background
Background
In November 2013, South Africa’s national
assembly pushed through a number of amendments to the legal framework that
governed the electoral process. Whilst most changes were mainly of a technical
nature, two changes had direct implications for enhancing enfranchisement (with
particular reference to voters abroad and voters serving a prison sentences).
Two Constitutional Court cases provide the
back drop for the changes concerning enfranchisement. First, a number of cases
consolidated into the so-called “Richter case” were brought before the
Constitutional Court challenging Section 33(1) of the Electoral Act and related
to voting rights for persons being out of the country during Election Day. The
case challenged an article specifying that only members of the diplomatic corps
and their families as well as persons temporarily abroad due to holidays or business
trips, visits to tertiary or educational institutions, or participation in
international sport events were allowed to vote outside the country. In March
2009, the Constitutional Court ruled that “all South African citizens who are
registered voters and who will be abroad on polling day will be entitled to
vote” (Constitutional Court Case CCT 03/09 and CCT 09/09: 2). Whilst the court
ruling ensured that all persons registered to vote were enabled to do so in the
2009 elections, accessibility to the ballot box remained limited for persons
residing abroad that were not on the voters roll. In an effort to broaden
voting rights, the Independent Electoral Commission proposed to offer citizens
abroad with an opportunity to also register outside the country.
Second, amendments to the Electoral Act
promulgated in 2003 which affected the rights of prisoners to take part in the
elections were put to the test at the Constitutional Court in the “Minister of
Home Affairs v NICRO and Others” case. The 2003 amendments established the
right for prisoners to register and to vote but excluded a specific group of
prisoners, namely those “serving a sentence of imprisonment without the option
of a fine” (Electoral Amendment Act 18-2013, Sections 8 and 24B). The Ministry
of Home Affairs argued to keep the amendment unchanged due to costs and
logistical constraints and also claimed that “making special provisions for
convicted prisoners to vote... would send an incorrect message to the public
that the government is “soft” on crime” (Constitutional Court Case CCT 03/04:
1). The Constitutional Court ruled in favour of the defendant highlighted that…
… given the history of disenfranchisement in our
country, the right to vote occupies a special place in our democracy. Any
limitation of this right must be supported by clear and convincing reasons (Constitutional
Court Case CCT 03/04: 3).
In this context, the electoral reform
process initiated in 2013 primarily aimed to bring the legal framework
governing the electoral process in line with Constitutional provisions as
clarified in the rulings of the Constitutional Court.
Additional amendments were made
responding to operational challenges as identified in the 2009 post-election
review process and hence built on the input from IEC internal review sessions,
election observation recommendations, opinions as expressed in the National
Party Liaison Committee (NPLC) and the Portfolio Committee on Home Affairs.
Content
The legal framework governing national
elections in South Africa is composed of the Constitution, the Electoral Act 73
of 1996, the Electoral Commission Act 51 of 1996 and the Public Funding of
Represented Political Parties Act 103 of 1997. The 2013 review carried out in
2013 only sought to revise sections in the Electoral Act 73.
Substantive revisions were proposed for,
and later approved by parliament, in the areas of:
i) The right
to register and vote for South Africans living abroad; and
ii) The right
to register and vote for citizens serving prison sentences.
In addition, the Bill included amendments
related to certain uncontentious definitions and technical aspects. For
example, due to the introduction of voting centres and substations at voting
centres the legal framework governing the number of polling agents was amended.
A total number of 11 clauses in the Act were changed (Electoral Amendment
Act 18-2013).
It is worthwhile noting that some potential
issues were finally not included in the reform process. For example, two
submissions that were submitted to the Portfolio Committee on Home Affairs drew attention to issues concerning the rules
regulating nomination of candidates and e-voting, respectively. On candidate
nomination, the Commission on Gender Equality (CGE) proposed to revise section
27 of the Election Act in order to ensure that party lists constitute names of
women and men who alternate and thereby ensuring that the number of women and
man on the lists would not deviate by more than one. In its response, the
Independent Electoral Commission supported that the rights of women need to be
advanced but argued that there was a need for further interaction with and
input from the political parties before enforcing such a quota system. On
e-voting, a personal submission was raised asking why the Bill did not include
provisions for e-voting referring to Namibia where such legislation had been
recently promulgated. The IEC response argued that further investigations had
to be carried out as per the indications of a seminar organised on the issue
the same year.
Electoral system reform – whereby the
current system proportional representation system would be replaced by another
proportional representation system with smaller constituencies to ensure
greater accountability of MPs – was tabled by MP James Selfe (representing the
Democratic Alliance, DA). The private member bill was debated by Portfolio
Committee on Home Affairs which decided on adopting a motion of undesirability.
Finally, the rules governing party access
to public funding remained off the table notwithstanding the observation made
by the EISA election observation mission who noted that:
“… the ANC enjoys most of the seats in parliament and
hence receives a large part of the public funding. The mission is of the view
that the law should be reviewed to provide an equal minimum amount to all
political parties represented and share another portion of the funds in respect
of the number of seats won in parliament” (p. 13)
IEC undertook an internal research process in
regards to party financing regulations, but the report has not yet been
disclosed and the debate is pending.
Circumstances
Vibrant discussions took place between
the IEC and the political parties – both in individual meetings as well as
through the NPLC. Upon presenting the IEC proposal, the political parties
forwarded numerous submissions suggesting either slight revision of the IEC
proposed texts and/or raised additional issues that they believed ought to be
on the reform agenda. Continuous deliberations between the IEC and the political
parties took place over a 6-month period.
2. EMB role
Mandate
The Electoral Commission Act 51 of 1996,
para. 5, outlines the powers, duties and functions of the IEC. In the field of
electoral reform, it establishes that the IEC shall:
“(j) continuously review electoral legislation and
proposed electoral legislation, and… make recommendations in connection
therewith”
In the IEC Vision 2018 (IEC 2011), the IEC
outlines five strategic priorities of the organisation. Under priority number 1
concerning the achievement of “pre-eminence in the area of managing elections
and referenda”, it is established that the IEC will contribute to “Continuously
improving the legislative framework” (IEC 2011: 9).
Scope
The IEC plays an important role in the
reform processes related to the legal framework governing the elections. In
practical terms, the IEC:
- Carry
out post-election and post-referenda assessments
- Initiates
reform process
- Provides
recommendations on electoral reform issues
- Drafts
bills
Structure
Two key units within the IEC are
crucial to electoral reform processes. First, under the leadership of the Chief
Electoral Officer, the Electoral Operations Division conducts internal
post-election evaluation sessions. The outcomes of this process are fed into
policy development phase, which also includes research into international
practices. Following the debate and adoption of policy positions, the Legal
Services Unit drafts legislative amendments in support of approved policy
positions.
3. EMB approaches
Activities
Research
and policy development
The IEC occasionally carries out research
and develop policy positions on key topics related to electoral reform issues. In
context of the 2013 reform process, research was done in areas of international
trends and best practices in topic areas such as administration of voter
registration and out-of-country voting (OCV). Based on this research, the IEC
developed policy papers that provided an overview over the different options at
hand and their implications from a technical point of view. Internal workshops
were organised in which the options were further deliberated on and, finally,
the a policy approach was adopted at the Commissioner’ level.[1]
Seminars
Following the 2009 elections and upon the
request of the President, the IEC also undertook investigations on the concept
of and international experiences related to electronic voting technologies. In March
2013, the IEC organised a seminar entitled “E-voting: An enabler or disabler to
strengthen electoral democracy?”. The two-fold objectives of the seminar were
i) to acquire a deep understanding of e-voting based on international and local
expertise and ii) to test the views on e-voting among local stakeholders (IEC 2013a: 35). The
seminar gathered international expertise from countries like Brazil, India,
Ireland and the Philippines as well as a variety of stakeholders from within
the country, including IEC staff at national and provincial levels, political
party representatives, ICT experts, academics, media etc. (IEC 2013b). Prior to
the seminar, the IEC had commissioned a research project that was presented
alongside the case study experiences from the above-mentioned countries and
comparative experiences from across the globe by amongst others International
IDEA. More than 200 participants took part in the two-day event. Notably, the
research and seminar was used as the basis for responding to the personal submission
that dealt specifically with the issue of e-voting during the public hearing on
the Electoral Bill that took place in August-September 2013.
Developing
a draft Bill
IEC is engaged in the drafting of bills
that they present to the Portfolio Committee on Home Affairs. Looking more in
detail at the 2013 reform process, legislative amendments were drafted based on
the adopted policy position as mentioned above. The draft bill was presented to
the NPLC for their input and feedback and, consequently, new rounds of
re-drafting and “text tweaking”. Finally, the draft was put forward to the Portfolio
Committee on Home Affairs and, once again, refinements were carried out to the
specific text in question.
Implementation
Being responsible for organising elections,
the IEC of course plays a key role in operationalising plan, inform and implement
legal reforms. During the autumn of 2013, the IEC started preparing for the
implementation of the new laws concerning OCV. Whilst the parliamentary process
was not finalized and hence the new law had not come into being, the IEC initiated
a parallel process due to the strict timeline under which it was working. Under
this process, it prepared for out of country voter registration and voting
under both the existing legal framework as well as under the potential new law
vis-à-vis the Ministry of Foreign Affairs and the foreign missions. The most
crucial issue in this regard was to ensure that staff dedicated to registering
voters and to receiving ballots in foreign missions would be up to speed with
the new legal framework to avoid misunderstandings and confusion.
Stakeholders
The most important external relationships
for IEC to nurture and consult during the electoral reform process were the
representatives to the NPLC, the Portfolio Committee on Home Affairs and the
Ministry of Home Affairs.
National
Party Liaison Committee and political parties
Discussions vis-à-vis political parties
took place under a two-fold arrangement. First, legal reform issues, including
draft bill proposals, were deliberated on in context of the Party Liaison
Committee meetings on provincial and national levels. The PLC and NPLC constitute
the platform established by regulation under the Electoral Commission Act. The
overall objective of the PLC is to:
“… serve as vehicles for consultation and co-operation
between the Commission and the registered parties concerned on all electoral
matters, aimed at the delivery of free and fair elections” (Electoral
Commission Act, Regulations on Party Liaison Committee, schedule 6)
In addition, the IEC engaged in continuous
discussions with political parties on an individual basis. On some occasions,
IEC picked up issues also from media debates often initiated by political party
representatives on particular legal issues of concern. As a result, the
political parties had multiple entry points for providing input (directly and
indirectly) to the process.
Portfolio
Committee on Home Affairs
IEC reports to the Parliament with which it
relates first and foremost interacts with the Portfolio Committee on Home
Affairs. When electoral reform is debated in Portfolio Committee, the IEC takes
part in meetings to provide information and briefings (e.g. providing response
to submissions to the Portfolio Committee’s call for comments on the Electoral
Amendment Bill), to observe deliberations (e.g. during the presentation of a
Private Member Bill in the electoral field) and to play an advisory role on
implications of the policy options discussed.
IEC
– internal relationships
The legal framework governing the work that
is carried out by the IEC stipulates different roles and responsibilities also
internally. This means that, for example, the Commissioners (lead by the
Chairperson) and the administration (lead by the Chief Electoral Officer),
respectively, have specific mandates to fulfill. In 2009, the courts were asked
to interpret the role of the commissioners versus the administrative arm of the
IEC in relation to an issue related to candidate list submissions. It should be
noted that the process was amicably implemented and aimed to ensure
clarifications on the roles and responsibilities of the different branches of
the IEC as per the legal framework in place.
4. Challenges and risks
Looking specifically at the 2013 reform
process, the following risks can be identified:
- Time management: The issue of having adequate time to carry out fruitful
consultations is a sin qua non for the process itself and for ensuring buy-in
from key stakeholders in the end result. At the end of the day, the actual
adoption of a new law lies with the Parliament and the IEC obviously has no
influence of their schedule.
- Building consensus among
key stakeholders: The consensus-building stage is
crucial. Provided that consensus is not developed, there is a risk that key
stakeholders may bring their case into the court system (i.e. political parties
as was the case in the reform process of 2013). Awaiting the results of court
rulings, the IEC would need to take into account possibly further delays which at
the end of the day may impact on their capacity to implement reforms.
- Effectuating change: Provided strict timelines, there may be lack of time to implement
administrative adjustments to give effect to legislative amendments
- Knowledge management and
staff turnover: Another big risk factor that
emerged in the 2013 reform process related to the fact that key staff involved
in the process retired and/or left their jobs. As individuals with particular
experience in legal drafting left their jobs, a vacuum developed that had to be
tackled for the process to continue with the speed that was required.
5. Recommendations
- Plan
and commence legislative reform well in advance in order to allow for adequate
time for consultations with key stakeholders and for reaching sufficient
consensus. Take into consideration the time allocations required for the
Parliamentary process to take place – which is beyond the control of the EMB.
- Plan
and organise in advance for anticipated legislative amendments and their impact
on the administration of delivering electoral processes. This work relates
particularly to the training of voting staff, party agents, election observers
as well as the updating of related manuals for training and operational
processes. Partners – such as the Ministry of Foreign Affairs in the case of
changes to the legal framework governing out of country voting and voter
registration – need to be appropriately briefed on the implications of the new
laws on their work.
- Plan
and implement effective knowledge management systems to off-set loss of
institutional memory and ensure the existence of contingency planning in terms
of key personnel engaged in the legal reform process.
Annex 1: List of references
References:
Laws:
Constitutional
Court Case Documents:
Informants:
- Independent
Electoral Commission – South Africa (IEC)
- Electoral
Institute for Sustainable Democracy in Africa (EISA)
Annex 2: About the author
Mette
Bakken is a Programme Officer at IDEA’s Africa Programme
(based in Pretoria) where she is primarily covering the electoral processes
portfolio. In this context, she is engaged in the implementation of a wide
range of projects on, amongst others, legal electoral reform processes, EMB
audit methodologies and capacity building among electoral stakeholders. She has
previously worked on elections-specific matters at the United Nations
Development Programme (UNDP) and the European Center for Electoral Support
(ECES). She holds a MA in Comparative Politics from the University of Bergen
(Norway) and in Research Methods from the European University Institute in
Florence (Italy).
[1] In between the 2009 and 2014 elections, the IEC also undertook
studies in the area of political financing. The internal report looks into
comparative experiences from other countries and implications of various policy
options at hand. It is likely that the issue may feature in future reform
processes. Taking into account that the issue – similar to the issue of
electoral reform – is likely to be a “hot potato” due to its political
implications, it is an area where IEC treats with care and ought to defend its
neutrality confronted with strong political opinions from the political
parties’ side.
