Electoral Laws A/B: NCOP amendments; Statelessness in SA; DHA Report back on Committee Resolutions: with Minister & Deputy Minister

Meeting report

The Chairperson welcomed Members and the delegations from the Independent Electoral Commission (IEC), the Department of Home Affairs (DHA) and Lawyers for Human Rights ( LHR).

The purpose of this virtual meeting was for the Committee to be briefed by the IEC on the proposed amendments to the Electoral Laws Amendment Bill [B22B-2020]. The second item on the agenda was for Members to receive a briefing from the LHR on the matter of statelessness in South Africa. The last item on the agenda was for the DHA to report on the Committee’s Resolutions.

The Chairperson stated that the Electoral Laws Amendment Bill has been returned to the National Assembly (the NA) for the Committee to consider. The Committee has called an urgent meeting for 12 March 2021 to give Members the opportunity to engage further with the Electoral Laws Amendment Bill.

Dr Aaron Motsoaledi, Minister of Home Affairs, remarked that the Electoral Laws Amendment Bill needs to be finalised before Parliament goes on recess. The consequence of failing to finalise this issue is that Parliament would be on dangerous grounds in preparing for the upcoming local government elections. It is paramount that the engagements on the Electoral Laws Amendment Bill is completed and finalised before 23 March 2021. He urged Members to make this a priority for finalisation.

Briefing by the IEC on proposed amendments to the Electoral Laws Amendment Bill:

Background to the Electoral Laws Amendment Bill:

Mr Glen Mashinini, Chairperson, IEC, stated that the Electoral Laws Amendment Bill was passed last year by the National Assembly following its approval by the Committee. The IEC expressed its gratitude to the Committee for leading this process and ensuring that the Bill is finalised as a matter of urgency. The Bill shows the strength and importance of South Africa’s democracy. Submissions were received when the Bill was introduced in the National Council of Provinces (the NCOP). In consultations between the IEC, the Information Regulator, and the Parliamentary Legal Services, two sections (section 16 and 47) of the Electoral Laws Amendment Bill were redrafted, which the Committee will be briefed on. This process sought to find the balance between the protection of personal information and the right to freedom of expression. The input by the IEC was limited to two instances of divergence between the version of the Electoral Laws Amendment Bill approved by the NCOP and that adopted by the NA. The Electoral Laws Amendment Bill has a total of 23 clauses.

Amendments relating to section 16 (Publication of the voters’ roll):

Section 16 of the Electoral Act 73 of 1998 relates to the publication of the voters’ roll. The amendments as was approved by the NA included the following:

The first amendment to section 16 included the deletion of subsection (2). This provision in the Electoral Act placed an obligation on the Chief Electoral Officer to release a segment or copy of the voters’ roll when the prescribed fees have been paid. Essentially, the NA regarded this provision as problematic because it allowed for the unfettered access to the voters’ roll by people even if it is not required for electoral purposes. This had the consequence of allowing access to voters’ personal details, such as their confidential ID numbers. The NA decided to delete subsection (2) that would have required the Chief Electoral Officer to give unfettered access to the voters roll to protect individual privacy, but political parties would continue to have access to the roll.

The second amendment related to the introduction of subsection (5) which reads as: “The Chief Electoral Officer must redact any information appearing on the voters’ roll provided to a registered party or candidate in terms of subsection (3) as may be necessary for the protection of the personal information of voters against unreasonable disclosure”. The purpose of the introduction of subsection (5) is to protect the personal information of voters and to guarantee that the constitutionally enshrined right to privacy are upheld in the implementation of the proposed amendments.

The amendments approved by the NCOP (regarding these clauses) included the following:

The first amendment related to subsection (2) should not be deleted but rather redrafted and substituted with a more suitable provision. Instead of opting for the deletion as approved by the NA, the NCOP decided to reinstate this clause but limit right of access to those wanting to monitor the voters’ roll for election purposes, wanting access for statistical or research purposes, or for any other prescribed purpose. The NCOP opted for this choice to strike a balance between the safeguarding of the voter’s personal information and the access to the voters’ roll by parties or stakeholders with a legitimate interest, and to contextualise the redrafting of the clause. This amendment followed submissions that restricting access to the voters’ roll would impede the media and civil society organisations in performing its roles as watchdogs in elections and would be unlawful.

The second amendment related to the introduction of subsection (5). The NCOP’s amendments to this section would include requiring anyone seeking access to the voters’ roll to prove that the information concerned will be used for monitoring, research, or other prescribed purposes, and not processed in contravention of the Protection of Personal Information Act 4 of 2013. Other than in ‘exceptional circumstances’, information about registered voters on any copy of the roll made available will reflect only their dates of birth and citizenship. The NCOP was also of the view that the discretion vested in the Chief Electoral Officer could lead to an abuse of power.

Amendments relating to section 47 (Publication of the voters’ roll):

Section 47 of the Local Government: Municipal Electoral Act 27 of 2000 relates to the voting procedure. The amendment as was approved by the NA included an insertion of subsection (7) which reads: “The Commission may prescribe a different voting procedure for those voters whose names appear on the voters’ roll, without addresses: Provided that if such voter’s place of ordinary residence is located outside …”

The amendment as was approved by the NCOP (regarding these clauses) included an insertion of subsection (7) which reads: “The Commission may prescribe a different voting procedure, which must accord with the provisions of this section, for those voters whose names appear on the voters’ roll, without addresses: Provided that if such voter’s place of ordinary residence is located outside …”

Conclusion on the Electoral Laws Amendment Bill:

Mr Masego Sheburi, Deputy Chief Electoral Officer: Electoral Operations, IEC, stated that the amendments proposed sought to strike a balance between two core rights, namely the right to access to information and the right to privacy. The NCOP’s choice is to strike a balance between the safeguarding of the voter’s personal information and the access to the voters’ roll by parties or stakeholders with a legitimate interest, and to contextualise the redrafting of the clause. The different options selected by the NA and the NCOP are not mutually destructive, and a compromise can be reached that addresses the concerns raised.

Discussion

Mr A Roos (DA) welcomed the presentation by the IEC. He stated that one of the important points the Committee made in approving the Electoral Laws Amendment Bill was the concern that providing access to the voters’ roll opens the door to abuse of personal information such as identity theft. He stated that subsection (5) goes against the purposes of the Protection of Personal Information Act, and should be removed.

Mr M Tshwaku (EFF) asked for clarity on whether the amendments proposed by the NCOP meant that when information from the voters’ roll is given to a third party, it will be given without disclosure of the ID-numbers and physical addresses of the voters. How will the IEC ensure that an institution or individual requesting the information on the voters’ roll will not use that information for rogue activities? This is paramount because the voters’ roll contains overly sensitive and personal information. What information will be used by the Chief Electoral Officer in deciding whether an applicant will receive a full disclosure of the voters’ roll?

Ms L van der Merwe (IFP) stated that it is concerning that the Committee sent the Electoral Laws Amendment Bill to the NCOP while it was unlawful, especially given that such concerns have been raised by two Members of the Committee during the clause-by-clause deliberations. How will the IEC monitor how people who have been granted access to the voters’ roll do not misuse the information it contains?

Mr M Chabane (ANC) stated that it is incorrect of Ms van der Merwe to suggest that the Committee has passed the Electoral Laws Amendment Bill in an unlawful state. Different viewpoints emerge during processes of deliberations. He welcomed the work that has been done by the NCOP.

Mr Mashinini responded that it is important the amendments are contextualised, especially regarding the publication of the voters’ roll. The Constitution provides that every citizen is entitled to free and fair elections that are held regularly, which is intrinsically linked to being able to verify the correctness of the voters’ roll. The principle of minimality has been endorsed by the Protection of Personal Information Act by requiring that only the necessary information be disclosed. The insertion of section 16(5) will enable people to verify whether the voters’ roll is constitutionally qualified in that only South African citizens older than 18 years are registered as voters. Safeguards must be put into place to ensure that those individuals who use the information on the voters’ roll for malicious purposes be held accountable. The information on the voters’ roll must be provided to political parties to monitor the accuracy of the voters’ roll and to assist its campaigns.

Ms Janet Love, Vice-Chairperson, IEC, commented that the system capturing the voters’ roll does not allow for duplicated ID-numbers to be recorded. There are measures in place designed to reduce the risks of crimes like identity theft. In addition, there are measures that the political parties have in place to ensure the integrity of the voters’ roll that also contributes to ensuring that the voters’ roll is accurate.

Mr Tshwaku responded that the Committee is aware of the constitutional obligation that all political parties must be provided with a fully disclosed voters’ roll. How will the IEC monitor how people who have been granted access to the voters’ roll do not misuse or misappropriate the information it contains?

Mr Sheburi stated that the IEC cannot define all the instances where exceptional circumstances might arise, as it will depend on a case-by-case basis. Where there appears to be inconsistencies on the voters’ roll, it might justify the full disclosure of the personal information for investigation. Instances of malfeasance does not entitle the IEC to refuse to disclose information that it is required by law to provide.

Minister Motsoaledi stated that an exceptionally clear balance must be struck in passing the Electoral Laws Amendment Bill. All that political parties are interested in is ensuring that the right people have been allowed to vote. The digits of the ID-numbers that will not be redacted are those numbers required to determine whether someone is old enough to vote and whether that person is a citizen of the country.

The Chairperson thanked the IEC for the presentation. He stated that the Committee has resolved to defer its decision on the amendments to the Electoral Laws Amendment Bill, as proposed by the NCOP, to 12 March 2021 where the Committee will have an urgent sitting to discuss this matter. This will enable Members to consult with their caucuses and various political parties.

Briefing by the LHR on the issue of statelessness in South Africa

Background to the issue of statelessness
Ms Thandeka Chauke, Manager: Statelessness Unit, LHR, said that the LHR is an independent human rights organisation with over 40 years of experience in human rights activism and public interest litigation in South Africa. Citizenship is not just a legal status, but it goes to the core of a person’s identity and their sense of belonging in a community. It also serves as a link between an individual and their enjoyment of the rights and protections in South Africa.

The South African government has been viewed to have a crisis of immigration management. The LHR reported that sometimes stateless persons or people who are at risk of being stateless are invisible to the casual eye. People who are subjected to statelessness face a life of exclusion and are unable to exercise basic rights, such as the right to vote. Statelessness and citizenship are different things altogether. According to Article 1(1) of the 1954 Conventions relating to the Status of Stateless Person, a stateless person “is defined as a person who is not considered as a national by any State under the operation of its laws”. South Africa has many cases where children born of illegal immigrants and these children are not documented in South Africa or the country of their parents’ origin. These children risk being stateless as they not recognised by any state as their citizens. Some children are born from South African parents, especially in rural areas and farms. They are not documented; therefore, they do not have citizenship because they were never issued with birth certificates and do not have any form of identity documents. This shows the generational impact of statelessness. Deliberate action has been taken in South Africa through the enactment of the Citizenship Act 88 of 1995 to provide a safety net for children at risk of statelessness as long as their births have been registered. Stateless people in South Africa do not have access to essential services such as healthcare, and often resides in overcrowded areas which compounds the impact of the COVID-19 pandemic. This leaves stateless people in extremely vulnerable situations. This issue must be considered to ensure that there is a legal basis for the LHR to reduce statelessness in South Africa.

Overview of key definitions relating to statelessness:

"Nationality" and "citizenship" are used in international law interchangeably. Neither term has any connotation of ethnic or racial content but is simply the status that gives a person certain rights and obligations in relation to a particular state. Citizenship is defined as “a relationship between an individual and a state to which the individual owes allegiance and in turn, is entitled to its protection”. Citizenship implies the status of freedom with accompanying responsibilities which include, amongst others, allegiance, taxation, and military service. It is important to bear in mind that some asylum-seekers, refugees, Internally Displaced Person (IDPs) and migrants may also be stateless. In addition, some stateless persons have never crossed borders and find themselves in their "own country". Their predicament exists in a situation in the country of their long-term residence, in many cases the country of their birth. For these individuals, statelessness is often the result of problems in the framing and implementation of nationality laws.

The problem of statelessness in South Africa:

The LHR estimates that there could be at least 15 million undocumented people residing in South Africa, and 3 million are under the age of 18. There are no statistics available on statelessness in South Africa due to a lack of established procedures to capture data on the issue. Nonetheless, there are indicative estimations of the prevalence of stateless persons or persons at risk of statelessness in the country. While being unregistered or undocumented is not synonymous with being stateless, being unable to prove nationality due to a lack of documentation can place an individual at an elevated risk of statelessness.

The broad causes of statelessness includes discrimination on the basis of race, ethnicity, religion, language, and gender; conflicts or gaps in nationality laws; loss, deprivation, or renunciation of nationality; and procedural barriers in civil registration systems. Statelessness is a man-made problem and occurs because of a wide range of causes. Entire swathes of a population may become stateless overnight due to political or legal directives or the redrawing of state boundaries. Families endure generations of statelessness despite having deep-rooted and longstanding ties to their communities and countries.

Scenarios to illustrate the problem of statelessness:

Scenario no. 1: In South Africa, unmarried fathers cannot register the births of their children in the absence of or without the consent of the mother. This can place the child at risk of statelessness if the mother is undocumented, missing or deceased. The LHR, representing the Centre for Child Law, launched a constitutional challenge to this provision in the relevant legislation after Mr Naki (a South African citizen) could not register the birth of his new daughter because the mother was unable to renew her expired visa close to the time that she was due to give birth.

Scenario no. 2: The LHR assists an increasing number of South African citizens with duplicate identity documents. These clients only realise their IDs are blocked after trying to apply for a travel document or to access their bank accounts and do not receive any prior notice or an opportunity to challenge the decision to block their IDs. This constitutes an arbitrary deprivation of nationality as the Constitution stipulates that all administrative action must be procedurally fair, lawful, and reasonable. It can take the DHA years to resolve the situation while the affected person’s life is in limbo. Without an ID-number or identification documents, a person cannot register for school, register a birth, get a job, access a bank account or a social support grant.

Scenario no. 3: In most African states, nationality laws are based on the concepts of jus soli (‘right of soil’) and jus sanguinis (‘right of blood’). Under the former, a person can obtain citizenship if they are born in the country, while the latter bases a person’s nationality on the origin of their parents. A client of the LHR “Daniella” was born in Cape Town and was stateless for the first 8 years of her life. Her parents assumed she would automatically be Cuban because they are Cuban. However, her parents were deemed “permanent emigrants” as a result of not returning to Cuba for an extended period and the Cuban embassy refused to recognise Daniella as a citizen. Since 1994, the Citizenship Act has made provision for stateless children to obtain citizenship in South Africa but the DHA is required to draft Regulations to guide this process. The LHR obtained a court order in 2016 declaring “Daniella” to be a citizen of South Africa and ordering the DHA to publish the Regulations that permit children like “Daniella” to access citizenship in South Africa, but to date there are still no Regulations published by the DHA in this regard.

Scenario no. 4: One of the most common causes of statelessness in Africa is lack of birth registration and while birth registration does not necessarily confer citizenship, it is the first official acknowledgement of a child’s existence by a state. It is estimated that only 45% of children under the age of five are registered in Africa and the rate of birth registration in South Africa is comparatively higher in the region at 89%. However, there are certain rules and policies that are an obstacle to universal birth registration. In 2019, the LHR represented ABBA Specialist Adoption Services to obtain birth certificates for 33 abandoned babies who had been waiting for registration for 18 months. The DHA said this backlog was because its policy only allowed two babies to be registered by the social workers each month. The birth certificates were not only crucial to the adoption process, but also to prevent the babies from becoming stateless when birth registration cannot take place,

There is an increasing number of unaccompanied or separated migrant children (USMCs) in South Africa who
are placed in the care system through a Children’s Court order and invariably based on the court’s finding that it is in the child’s best interest to remain in South Africa. These children are often undocumented and/or stateless or at risk of statelessness, but there is no legal safeguard for them to obtain citizenship or immigration status in South Africa. In addition, the following groups are at an exceptional risk of statelessness: orphaned or abandoned children, people of mixed parentage, adults whose births have never been registered, border populations, and undocumented migrants.

The consequences of statelessness:

Statelessness and discrimination in access to citizenship and identity documents has a strong negative impact on the ability of individuals and groups to enjoy respect for their other human rights, and to participate fully in the economic, social, and political life of a country. Nationality is an entry point to access other rights and is described as “the right to have rights”. Without a nationality, a stateless person is vulnerable to exploitation and discrimination, and cannot exercise their rights to health care, to education, to freedom of movement, to work or to vote. Even opening a bank account, signing a lease agreement, obtaining social assistance or being able to get married can prove impossible for a stateless person.

Lack of access to naturalisation does not create statelessness if the person concerned has another nationality and this nationality is documented. But it does create exclusion, if naturalisation is impossible to access for those who have lost any connection to their country of origin; and it greatly increases the risk of
statelessness for later generations. The Citizenship Act governs the acquisition of South African citizenship and sets out the various pathways to obtaining citizenship by birth, by descent or by naturalisation. However, various obstacles impede access to nationality through the Citizenship Act.

The lack of implementation of court orders and mechanisms for documentation:

There have been a number of significant wins towards the right to nationality in South African courts in recent years. However, it can take years for DHA to implement court orders, if ever. The LHR reported that South Africa does not have a dedicated mechanism to identify statelessness or to subsequently work towards the documentation of these people. The identification of stateless persons is however of utmost importance in guaranteeing the rights of stateless persons and children living in the country. Without accurate identification there is also a lack of insight into the extent of statelessness in South Africa. This makes it impossible to respond to the phenomenon at a policy level and in order to protect individual human rights.

The Chairperson Bongo stated that the Committee will hear the report from the DHA regarding progress made regarding the Committee’s Resolutions, and after that Members will be granted the opportunity to engage with the briefing from the LHR and the report from the DHA simultaneously, in the interest of time.

Report back by the DHA on the progress made regarding the Committee’s Resolutions
Mr Tommy Makhode, the Director-General for the DHA, presented the report. He provided an overview of the progress made by the DHA, which broadly included the following:

On the issue of implementing the new Immigration Regulations, the DHA reported that the process is currently in progress and working towards the amending of the Regulations.

Regarding the GPW, the DHA continues to be advocates and ambassadors for the entity and its expansion throughout the African continent.

Regarding the 3 000 people who have been unable to collect their IDs from the DHA, the affected people have been furnished with referral letters that will enable them to collect their IDs from their nearest DHA’s offices. The DHA also prioritises pregnant women in this regard.

On vacancies, the DHA reported the filling of 14 senior management positions, which will stabilise the DHA and improve its overall performance. Processes are underway to ensure that the remaining vacancies are filled as a matter of urgency.

Discussion
Ms van der Merwe thanked the LHR and the DHA for the presentations and information presented to the Committee. She stated that she has not seen the DHA’s prioritisation of pregnant women in practice at its offices. There seems to be a lack of queue management at the offices of the DHA across the country.

She agreed with the LHR that vulnerable children in the country needs the protection of Parliament. There is a significant problem within the DHA regarding fraudulent IDs, passports, and birth certificates. The LHR has stated that the Citizenship Act provides a safety net for children at risk of statelessness as long as their births have been registered to become South African citizens. However, the DHA has previously reported to the Committee that these children are not issued a birth certificate, but rather a different certificate that serves the purpose of notifying the parents’ country of origin of the birth. Does this not amount to rendering the child stateless? No child, even if they are undocumented, can be refused education in South Africa. She asked for information from the DHA on the statistics on undocumented people in South Africa to determine whether the LHR’s estimation of 15 million people is correct. If the LHR is correct, it means that a fifth of the country’s population are stateless which is a significant national security risk, and it has the adverse consequences of forcing people in the country to live without basic protections and access to basic services.

Mr Tshwaku agreed with Ms van der Merwe that the Committee must request more information from the DHA on the statistics on undocumented people in South Africa to determine whether the LHR’s estimation of 15 million people is correct. How is the DHA making it easier for stateless people to become documented?

Mr Roos stated that the lack of queue management at the offices of the DHA across the country remains highly problematic. The issue of statelessness is a key priority as a constitutional obligation. The DHA must furnish the Committee with the reasons why the various court orders made against it have not been implemented. If necessary, the Committee must give timelines to the DHA to comply with the court orders in place. The DHA must also respond to the LHR regarding its policy that only allows two babies to be registered by a social worker each month.

Mr K Pillay (ANC) appreciated the briefing by the LHR and the DHA’s feedback on the progress made regarding the Committee’s Resolutions. This goes a long way as the Committee will now be able to track and evaluate the DHA’s adherence and implementation of its decisions.
What could be the reasons that undocumented people are not presenting themselves to the DHA for documentation? Could it because they are illegal immigrants, and they fear consequential deportations? From the South African context, what are the causes of statelessness and what measures the government could implement to resolve statelessness in the country? The LHR alleged that the DHA continues to block IDs of South Africans if they suspect they are illegal immigrants. The DHA must explain to the Committee the criteria or methodology it uses to block someone’s ID if they suspect that they might be illegal immigrants. How many IDs were blocked in the past financial year, and how many of those IDs were blocked only to find out that the persons were actually legitimate South Africans?

Mr M Lekota (COPE) agreed with Ms van der Merwe that the Committee must request more information from the DHA on the statistics on undocumented people in South Africa to determine whether the LHR’s estimation of 15 million people is correct. It is problematic to have such a high percentage of the population stateless.

Mr Chabane stated that the DHA needs to commit to responding to the issues and problems raised by the LHR. He was of the view that the Committee should focus on the lack of queue management during its next oversight visit relating to the DHA. The Committee must also enhance its oversight over the GPW, following allegations that the entity’s processes have disintegrated. The GPW is strategically positioned to increase the revenue of South Africa if it can expand its business across the African Continent.

The Chairperson stated that the in the interest of time to ensure that the meeting finishes timeously, the DHA can respond to the majority of concerns and questions raised by Members in writing. The LHR should brief Parliament if it has received all the birth certificates for the 33 abandoned babies it applied for in 2019. If the matter has not been resolved, what are the DHA’s challenges in resolving these issues?

Mr Nzuza Njabulo, Deputy Minister of Home Affairs, stated that the notification to a foreign embassy relating to a child’s birth is different from a South African birth certificate. There is a need to ensure that South African citizens and non-citizens can be issued with birth certificates to allow them to access fundamental services, such as education and healthcare.

He responded that the LHR’s estimation that there are 15 million undocumented people in South Africa is accurate, as it is the number provided by the World Bank indicating the amount of people in the country without legal identity. This refers to the people without identification documents. The high number of undocumented people sheds light on the problem of a lack of documentation within the country. He stated that the DHA will respond to the remainder of the questions in writing, but that another opportunity to engage with the Committee would be welcomed.

The Chairperson thanked the LHR and the DHA for the briefings presented to the Committee. He reminded Members of the urgent sitting on 12 March 2021 regarding the proposed amendments made by the NCOP relating to the Electoral Laws Amendment Bill.

The meeting was adjourned.