Electoral Laws Amendment Bill: deliberations; with Deputy Minister & Home Affairs BRRR

Meeting report

The Chairperson opened the virtual meeting and welcomed Members and the delegations from the Department of Home Affairs (the DHA) and the IEC. The ministerial delegation from the DHA consisted of Mr Njabulo Nzuza (the Deputy Minister of the DHA).

Deputy Minister Njabulo presented the apology of Dr Aaron Motsoaledi (Minister of DHA) who was unable to attend the meeting because of commitments with the Cabinet. The delegation from the IEC included Mr Masego Shaburi (the Chairperson of the IEC), and Mr Mosotho Moepya (Commissioner at the IEC).

The purpose of this meeting was for the Committee to continue its deliberations regarding the Electoral Laws Amendment Bill [B22-2020] alongside the IEC. The second item on the agenda was for Members to discuss the Budgetary Review and Recommendations Report (BRRR) with the Content Advisor.

The Chairperson stated that it is the Committee’s last meeting for the year, and it is the task of this Committee to finalise the outstanding issues, particularly its stance on the Electoral Laws Amendment Bill. He stated that in the previous meeting, Members received an outline of the remaining work of the Committee for this year. Members need to ask their questions to the Ministry through the central point of the Committee or the Chairperson. The Committee received notice of the Constitutional Court’s recent ruling relating to our electoral system which held that independent candidates may participate in an election without affiliation with a political party. It is now the task of the Executive to table a Bill to Parliament outlining the relevant legislative changes, which will then be debated. Given the nature, complexities, and financial implications of this Bill, it cannot be a parliamentary Bill. This is to ensure that Parliament does not pass a Bill that the Executive can not fund.

In the last meeting, a Report was tabled by the IEC regarding the Electoral Laws Amendment Bill, and Members must now engage with that briefing. In line with the core objectives of Parliament, the mandate of this Committee is to consider and pass legislation, oversee and scrutinise Executive action, facilitate international participation, facilitate cooperative government, and to facilitate public participation and involvement. A vast amount of public submissions was received regarding the Electoral Laws Amendment Bill. He asked Members for further input regarding the Committee’s deliberations, especially regarding clauses 14 and 21 of the Electoral Laws Amendment Bill.

Deputy Minister Nzuza stated that most of the issues for discussion in this meeting centres around the submissions made by the IEC and public comments raised to the Committee. The purpose of the DHA attending the meeting is to ensure that the Executive and the legislative arms of government are working together regarding the finalisation of the Electoral Laws Amendment Bill.

Committee deliberations regarding the Electoral Laws Amendment Bill
Mr A Roos (DA) thanked the IEC for the very properly considered amendments made to the Electoral Laws Amendment Bill. He congratulated Deputy Minister Nzuza for passing his course in governance in the economic sector, and the Committee is looking forward to its impact on the work of the DHA.

Looking at the Bill as it stands, it is generally an agreeable Bill. As mentioned by the Chairperson, here was only disagreement around clauses 14 and 21. The DA has previously requested that these two clauses be removed from the Bill and that a requisitioning paper be released on the subject for public comments regarding the alternative voting mechanisms it encapsulates. It is unfair to expect the public to understand the contents and impact of clauses 14 and 21 when they have not been adequately informed what it involves. It is also unfair towards the Members as legislators who need to understand the full implications of these sections. The Committee is left with guessing what the IEC is trying to do. For example, the Committee was initially informed that the amendments were about e-voting procedures, but recently it was informed that it was not about implementing e-voting. It is a reasonable request from the Committee to ask for information that would help Members to develop a deeper understanding of the matters before them. If voters do not have faith in the e-voting measures implement, it undermines the entire electoral process as well as the acceptance of the election results.

It is important to consider the effectiveness of the mobile units that took a year and a half to become operational because of connectivity problems. Even the Home Affairs offices that are at fixed locations suffer significant connectivity problems. This must be kept in mind when proposals are made for the widespread implementation of new technologies, especially in a critical area such as elections. The IEC and the DHA are struggling to even maintain the existing technologies in these more traditional spaces. Obtaining the necessary funding from the National Treasury is extremely difficult, even for the already approved new zip-zip technologies. There are other existing mandates, such as the Border Management Authority, where it is not yet clear whether it is fully funded. There is a challenge in the DHA in funding its projects, and economic indicators show a further drop in tax revenue which limits the funding available from the National Treasury. The question is whether e-voting is the best thing to spend the limited financial resources on. The IEC projected that e-voting could be implemented in the next ten years, and thus the Committee realises that it will not play a role in the upcoming 2021 elections. E-voting is a medium to long term project. There is concern that when public participation is conducted, it is mainly the public that already has reliable internet connections and devices to be able to participate via the internet.
However, even these people who participate have serious and broad reservations regarding e-voting. This shows that the public has not been properly informed what the intentions of the IEC is or the implications of these two clauses in the Bill. Clauses 14 and 21 are critical to consider.

There is an International Institute for Democracy and Electoral Assistance which publishes guidelines regarding the legal framework for elections. These guidelines must be carefully examined. When looking at new voting technologies, the guidelines state that its legal framework must properly address the regulation of its use. This includes procedures and requirements that pertain to these technologies, data protection, how votes will be counted and tabulated, all of which must be accurately reflected in the electoral legislation. The guidelines then address the Regulations that can be done in the piece of legislation itself, or it can be left over to the implementing agency, i.e. the IEC. While the latter is the better option regarding allowing for flexibility, it also leaves too much scope for election procedures to be adapted to the needs of technology and not vice versa. This is dangerous as it can lead to the disregard of important safeguards in the election process. The principles of secrecy, transparency, equality, and universality must be given effect to relating to elections as it is safeguarded in our Constitution. The IEC cannot pilot a new technology without understanding how these principles are included or excluded, and how it will be evaluated against these criteria. The guidelines also state that the legal text must incorporate the technological processes involved in a manner that is transparent and objective. The electoral system must be completely open and transparent, especially now that there will be independent candidates. A layperson should be able to fully audit the electoral system. This will ensure that even independent candidates can fully participate in the elections and audit the system. The Committee must be informed where it stands regarding all these criteria, and it cannot be expected that Members approve the Electoral Laws Amendment Bill as it stands with clauses 14 and 21 included when there is no deeper understanding of its consequences. The amendments are very fundamental and not of a technical nature. For these reasons, the DA requests more information to be put to the Committee on the nature and implications of clauses 14 and 21, and how the IEC will ensure inclusivity of all South Africans in the implementation of these proposed technologies. A more careful and nuanced understanding of this matter is required before a piloting system is approved, because South Africa cannot afford to spend money that is not necessary. These voting mechanisms need to be developed only after a mandate has been given by the public.

He proposed that the Committee set aside clauses 14 and 21, and to ask the IEC to document this process properly and comprehensively before it is discussed again by the Committee.

Ms L van der Merwe (IFP) agreed with the comments made by Mr Roos regarding clauses 14 and 21 of the Electoral Laws Amendment Bill. She also agreed that the amendments are not technical in nature but goes to the heart of the elections process in South Africa. The matter cannot be treated lightly, and it must be informed by the proper research, as well as the public participation of the broader South Africa. The IEC must go back to the drawing board and reconsider clauses 14 and 21. South Africa cannot afford to spend money that is not necessary, especially given the budgetary constraints of the IEC and the precarious economic conditions of our country. She agreed that clauses 14 and 21 be removed from the Electoral Laws Amendment Bill until further information becomes available.

Ms L Tito (EFF) stated that there was not enough public participation regarding clauses 14 and 21 of the Electoral Laws Amendment Bill. She agreed with Mr Roos that the IEC needs to provide more information in this regard and increase voter education on the issue.

Mr J McGluwa (DA) stated that the big issues relate to clauses 14 and 21 especially given the budget constraints of the IEC. Why did the IEC not consider hybrid venues for voters who are in remote or rural areas? Public participation is one of the most important aspects of passing legislation. The Committee also needs to be satisfied that the IEC’s budget will allow for e-voting measures to be implemented, as this is the main factor that determines the success of the programme. He agreed with Mr Roos in his request that the IEC put more information to the Committee on the nature and implications of clauses 14 and 21.

Mr M Chabane (ANC) appreciated the responses from the IEC. On the issue of e-voting, he stated that the future demands that the IEC enters these new spaces with new technologies. He agreed with Mr Roos regarding the budgetary constraints of the IEC, noting that it had often reported its financial limitations to the Committee. In principle, however, the Committee must also appreciate the refined amendment provisions of the Electoral Laws Amendment Bill given that e-voting is something South Africa can use in the future. The IEC must raise the awareness of the e-voting process across urban and rural areas. He agreed with Mr Roos that the IEC must report the modalities relating to clauses 14 and 21 of the Electoral Laws Amendment Bill, and to provide the Committee with more in-depth research regarding the measures of e-voting. Members of the Committee need to be fully informed of the advantages and challenges of e-voting to make good decisions for the broader public. It is important that the IEC comes back to the Committee to provide Members with research from other countries regarding the successes, processes followed, and the challenges faced with implementing e-voting. He supported the refined amendment provisions of the Electoral Laws Amendment Bill if there are appropriate resources for the provisions. E-voting will create a foundation where the IEC can conduct the appropriate piloting processes to eventually implement these technologies in South Africa’s elections. There must be research reported to the Committee regarding other countries which have implemented e-voting so that Members can develop a coherent and final understanding regarding this issue. The Committee must also be informed of the legal implications of supporting or not supporting clauses 14 and 21.

Mr Mosotho Moepya, Commissioner, IEC, noted the Committee’s comment that the Bill is generally considered to be acceptable except the issues with clauses 14 and 21. The IEC has previously offered to alleviate the difficulties. He noted that Member would prefer that clauses 14 and 21 are removed entirely from the Bill. He thanked Members for appreciating the challenges that the IEC faces and it will consequently be considering removing those provisions.

He explained that the Bill is not about implementing e-voting. Countries that have previously implemented or migrated to e-voting have done so after years of piloting and following a trial-and-error approach. The IEC needs to manage the challenges that South Africa will face in implementing e-voting in the future. This will be done to balance the vast amount of factors and then the IEC will come back to Parliament with comprehensive proposals in this regard. As soon as the possibilities and financial means exist to implement e-voting, this issue needs to be considered once again. E-voting has been researched since the late 1990s, and the Committee could be provided with the research and reports relating to this issue. In 2013, there was an international conference in Cape Town where political parties and Members of this Committee were present. During this conference, an extensive look was taken at e-voting and how it has been implemented in other countries. The existing challenges with traditional voting mechanisms remain a challenge for the IEC.

The IEC is cognisant of the fact that people vote from the worlds and circumstances in which they live. The IEC recognises the Committee’s concerns that voting must be available to the poorest and most rural areas of South Africa. He noted that the Committee needs to be as informed as possible to allow Members to make good decisions regarding the Bill. E-voting is not intended to be ready for the 2021 local government elections, but it will be implemented in South Africa at some future date and all the necessary preparations for it must be made well ahead of time. Submissions have been made to the legal advisors of the State regarding the constitutionality of clauses 14 and 21. He welcomed the views and concerns expressed by the Committee.

Mr Masego Shaburi, Chairperson, IEC, agreed with Mr Roos regarding the enunciation of the principles that the election system must adhere to. He reiterated the position of the IEC by assuring Members that any pilot study on e-voting technologies will be responsive to issues of inclusivity, verifiability, and equality. This will ensure that all votes are counted as equal regardless of who casts a vote where in South Africa. Clauses 14 and 21 have been redrafted to make it clear that the system in place will still be subjected to the requirements that a voter must be clearly identifiable and registered on the voters’ roll, and that the voter must not vote more times than they are entitled to. A pilot study will afford the IEC to learn from other jurisdictions where countries have procured the technologies needed for e-voting.

The Chairperson stated that the Committee intends considering and adopting the Bill in February 2021 and must have received the requested report from the IEC by then. He recommended that the IEC must consider amending or removing clauses 14 and 21 and further clarify the intentions of the amendments, especially as it relates to the piloting of e-voting. The IEC must provide Members with detailed case studies on countries that have implemented election technology as a mode of voting, including the implications, challenges, and successes of the process. This will guide the Committee when it continues its deliberations on the Electoral Laws Amendment Bill. He summarised Members’ concern regarding the right to access to information, mainly to the poor, especially when it relates to the piloting of e-voting. When the IEC comes back to the Committee, it must make sure that its proposals are backed up by good arguments, research, and public participation processes. The truth of the matter is that technology is upon us and preparation must be started to ensure that we have both the legal framework and the technical experience that will ensure that elections are secure if a decision to vote through e-voting is taken.

Mr Moepya stated that the IEC is content to offer that clauses 14 and 21 of the Electoral Laws Amendment Bill be removed. He asked the Committee to approve the portion of the Electoral Laws Amendment Bill that do not raise concerns as this will not affect the local government elections in 2021.

The Chairperson restated that the Committee intends considering and adopting the Bill in February 2021. However, the IEC must come back to the Committee and provide an update regarding its responses to clauses 14 and 21. The Committee will meet with the IEC again in February 2021 regarding these issues.

Home Affairs Budgetary Review and Recommendations Report (BRRR)

The Chairperson Bongo stated that the Committee has not yet received the Annual Report as the Auditor-General of South Africa (the AGSA) is still in the process of finalising it.

Mr Adam Salmon, Parliamentary Content Advisor, presented the Committee’s BRRR on the DHA.

The Report has been revised to indicate the processes of the delayed Annual Reports. The Speaker of the National Assembly wrote to the Leader of Government Business (the LOGB) and the Minister of Finance asking that Annual Reports be tabled as soon as possible, and that the Departments must ensure that Members have the required information to interrogate departmental performance. In response, the LOGB requested Ministers to prioritize the tabling of Annual Reports, preferably before 16 November. The DHA and the Government Printing Works (the GPW), in correspondence to the Speaker and NCOP Chairperson on 10 October, indicated that such reports would only likely be tabled at the end of November given delays in the auditing of foreign missions due to international COVID-19 restrictions. Correspondence was not received from the IEC on why it did not submit its Annual Report by the revised deadline. The Committee was affected by the late submission of the Annual Reports and finalised this Report without the inclusion of Annual Reports on 24 November. Once the BRRRs have been tabled, the National Assembly will then consider the reports for consideration in later budget processes.

The Report was included amendments to the targets for the DHA in the revised Strategic Plan and the Annual Performance Plan (the APP).

The changes to the service delivery of the DHA at various stages of the COVID-19 lockdown were outlined to show why it was not able to meet its targets. The Report also outlined the First Quarter Expenditure Report for 2020/21 in more detail.

The following recommendations were added:
The DHA should continue to address the issue of long queues as its service offices; the Committee encouraged the Department to fast track the targets that were greatly affected by the lockdown; the Committee supports the increase of the budget of the DHA for its essential services; the DHA should report to the Committee in February 2021 on all outstanding recommendations and performance targets; and that the DHA should table their Annual Report as soon as possible. It was also included that the DHA’s revised APP was presented at a very difficult time when the budget of the DHA was cut by R 562 million. This could be a trend that could continue in the future. The DHA should start with risk adjusted performance measurement. The passports that the DHA is issuing within 13 days during lockdown are commendable, however, the challenges in the application of passports by people abroad must be resolved as a matter of urgency. Progress on documenting refugees and asylum seekers for getting the social relief grant must be presented to the Committee in early 2021. The migrants found at the temporary camps in Cape Town should be resettled or reintegrated as per the plans presented to the Committee.

Mr Salmon stated that the Committee did not receive the revised APPs from the Electoral Commission and the GPW, and thus there were no additional submissions made from either of these entities and its recommendations remain the same regarding this matter.

Discussion
Mr Roos stated that the recommendations included in the Committee’s Report are comprehensive. The large number of APP items outstanding from the previous year is a concern that the Committee needs to address. There are also items outstanding from the Audit Reports. He urged that these matters must be put on the resolution tracking as a priority in 2021 to resolve these issues. These items have a seven-day period from the time that the BRRR was adopted, and it is problematic that it has not been resolved a year later. He welcomed the addition on the applications from foreign people in response to the petition sent to Parliament regarding people who are travelling back to South Africa just to apply for their passports.

Ms Tito enquired about the recommendation to document refugees and asylum seekers who get the social relief grant. How many refugees or asylum seekers were documented to get the social relief grant?

Ms van der Merwe agreed with Mr Roos to employ a resolution-tracking mechanism in 2021 to keep track of the issues that have not been addressed. On the plan for documenting refugees and asylum seekers who get the social relief grant, she informed the Committee that SASSA has paid 440 people who are documented and legitimately within the borders of South Africa as asylum seekers. She proposed that the recommendation be changed to read: What is the plan with addressing the backlog in the independent application system? The social relief grant will cease to exist going forward, so this issue will not be relevant for much longer. She stated that the DHA lacks a customer service-orientated approach. She asked whether a point should be included on the immigration system and the need for the Minister to come forward with a clear plan of action to address the shortcomings in the immigration system. A discussion is required on whether the shortcomings include a lack of personnel, corruption, or breaches at the borders.

Mr Chabane asked when the last day is for submissions to further correct points in the Committee’s Report. He asked that the reasons for the DHA’s delays in submitting their Annual Reports be better expressed in the Committee’s Report. Regarding the issue of documenting refugees and asylum seekers who get the social relief grant, he asked that the Committee’s stance be better expressed in the Report. With the African Continental Free Trade having come into effect during 2020, the DHA must ensure that the visa waivers signed by government with various partner countries is implemented as per signed agreements. This must also be included in the Report. The Report must also outline the progress made on engaging with the GPW. He agreed with Mr Roos and Ms van der Merwe to employ a resolution-tracking mechanism in 2021 to keep track of the issues that have not been addressed.

The Chairperson stated that the Committee needs to adopt the Committee’s Report on the BRRR during this meeting, as it is the last meeting of the Committee for this year.

Ms van der Merwe asked whether it is possible to include a point in the Report that the DHA should report within six months on how it is addressing issues of corruption in particular in the immigration branch, especially as it pertains to the shortage of immigration inspectors and the backlog in the asylum seeker system and the repatriation of refugees.

Mr Salmon indicated that he has made the amendments to the Report as required by the Members and the concerns they have raised. He stated that Ms van der Merwe’s concerns were incorporated into several different recommendations rather than one large recommendation.

The Committee adopted the Budgetary Review and Recommendation Report with amendments.

The Committee resolved on implementing a monitoring tool to track progress in relation to the implementation of recommendations made in the report. The resolution is intended to heighten oversight and ensure that the DHA implements set targets to ensure quality services to the people. 

The Chairperson noted that the DA has reserved its rights regarding the adoption of the Committee’s Report on the BRRR.

The meeting was adjourned.