By Mette Bakken
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.
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:
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.
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.
Looking specifically at the 2013 reform process, the following risks can be identified:
References:
Laws:
Constitutional Court Case Documents:
Informants:
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.
