Electoral Laws Amendment Bill: further deliberations

Meeting report

The Chairperson opened the virtual meeting and welcomed Members and the delegation from the Independent Electoral Commission (IEC). The delegation from the IEC consisted of Mr Glen Mashinini, Chairperson of the IEC, Mr Mosotho Moepya, IEC Commissioner, and Mr Sy Mamabolo, IEC Chief Electoral Officer.

The Chairperson said the purpose of the meeting was for the Committee to continue its deliberations on the Electoral Laws Amendment Bill [B22-2020[. Special request was tendered for the Committee to hold this meeting because the amendments need to be effected within a specific timeframe to not interfere with the timetable of the IEC. The Committee has been deliberating on the Bill for some time now, and further deliberations will be conducted during this meeting.

The Committee will then go through the Bill clause-by-clause during its next scheduled meeting on 1 December 2020 to work towards adopting the Bill. Sections 14 and 21 of the Bill remained a point of concern for Members during previous deliberations. The Committee must make a proper decision by ensuring that the appropriate research and consultations are conducted. It is the duty of the Committee to interact with the clauses of the Bill that it deems problematic or should be removed. The timeline of the IEC would be adversely affected if the Committee does not finalise its deliberations and stance on the Bill speedily.

Discussion

Mr A Roos (DA) raised an issue regarding section 8 of the Bill that entails redaction of information on the voters’ roll. The Bill includes provisions on what the voters’ roll can be used for and the necessity for redaction. One of the inputs received during deliberations included an enquiry on why journalism was excluded, because if one looks at section 7 of the Protection of Personal Information Act 4 of 2013, it specifically excludes journalism and art. His concern with the redaction is that there are already sanctions in place for people who would need to use the data for auditing purposes. The Committee needs to understand the purpose of the redaction clearly. The purpose of redaction in general is to take out information to prevent the personal identification of someone to ensure that such personal information is not used for the wrong purpose. How will the IEC achieve the confidentiality of the voters’ roll while also ensuring that the list is fully auditable when there are millions of registered voters? It will have to run through a verification process to achieve the redaction of the voters’ roll. Why is the reduction necessary as provided for in section 8 of the Bill? Political parties and candidates are already allowed to use the data and they are subjected to sanctions if they abuse the data.

The amendments to sections 14 and 21 of the Bill do not address the concerns that the Committee raised in previous deliberations. The amendments only changed the Bill in the sense that it changed the ability to bring in any other voting procedure in a selection of predetermined voting districts. There is no mention of a piloting programme in this regard. It is also not specific regarding how many voting districts are included – it can be 10 000 or 5 000, no one knows. The points the Committee has made throughout the deliberation processes is that the IEC is not open enough regarding the contents and nature of the sections included in the Bill. Section 1 of the Constitution refers to universal adult suffrage, and the three fundamental elements of our democracy – accountability, responsiveness, and openness. It is a concern that there is not enough openness about what sections 14 and 21 are about. Members of the Committee must understand that they are constitutionally obligated to ensure that any process or system that comes into operation is an open system that is understood by the public. The Committee would be in a dangerous position if it enacts a law that it does not fully understand.

He reiterated the Chairperson’s comment from the previous meeting that the Committee needs to receive a briefing on these disputed sections of the Bill. The Committee must be in the position to understand the processes of e-voting as well as the legal implications and associated risks. The Committee needs to be able to compare its understanding of the Bill to the constitutional requirements in place relating for elections. Every risk and possible objection to the e-voting processes must be considered. The public has not been adequately informed or consulted on sections 14 and 21. The Committee and the IEC must consider whether e-voting processes are really needed right now in South Africa. It is fundamental to the integrity of the country’s elections that the Committee goes through the proper processes of a Green and a White Paper on this matter before it approves an Amendment Bill that Members do not understand. He proposed that the amendments to sections 14 and 21 be held over to a later Amendment Bill to allow further consultation on the issue and to allow the IEC to educate the public and provide the relevant research to the Committee.

Ms M Molekwa (ANC) stated that the decision of the Committee regarding the Bill will have serious consequences. It is fundamental that Members make an informed decision, and this will require more time for research, consultations, and to facilitate further processes of public participation. She agreed with the proposal made by Mr Roos that sections 14 and 21 be held over to a later Amendment Bill.

Mr MTshwaku (EFF) agreed with the other Members that more time is needed to conclude consultations on the amendments to the Bill. He expressed dissatisfaction that there are no clear guidelines or statements from the IEC regarding the content and nature of sections 14 and 21. Regarding special votes, he stated that parties can do their verification processes but it is found that there are people who are not on the appropriate lists. It will be a nightmare if another system is now implemented where people are voting in other areas using different technologies. He agreed with Mr Roos that more information is required regarding how many voting districts are included and who the people are, as well as where they would be voting. How will the IEC make sure that its e-voting processes are protected against tampering and adequately secured?

Mr M Lekota (COPE) asked how many Members of the Committee can say that they understand precisely what the stance and contents are regarding sections 14 and 21 of the Electoral Laws Amendment Bill. He agreed with Mr Roos that the Committee must go through the proper processes of a Green and a White Paper on this matter before it approves an Amendment Bill that Members do not understand. He agreed with the proposal made by Mr Roos that sections 14 and 21 be held over to a later Amendment Bill.

Mr J McGluwa (DA) stated that on the eve of South Africa’s democratic dispensation, there was an intensive voter education programme. The IEC must comply with the ruling of the courts and must implement the necessary amendments only, and not other proposals that might raise problems later. There should be at least a one or two-year education programme using this mechanical voting sessions. A mechanical voting system will save South Africa lots of money, but there needs to also be a serious intention to educate the voters on the new systems that are proposed.

Mr M Chabane (ANC) appreciated the groundwork that the IEC has done in dealing with the responses of the public’s comments and coming back to report to the Committee. The IEC must go and refine sections 14 and 21 of the Electoral Laws Amendment Bill. Most people that would be adversely affected by the implementation of the e-voting processes are those who are already vulnerable. The IEC must conduct more detailed research and comparisons with other countries that have engaged with e-voting processes more extensively than South Africa has. He emphasised that awareness and voter education is critical to the operation of the electoral system in our country. Members must be clear and informed when they are asked to decide regarding sections 14 and 21 of the Electoral Laws Amendment Bill.

Responses from the IEC

Mr Mashinini thanked the Committee for engaging with the IEC in the process of finalising the Bill. The IEC has noted the comments made by the Members, and stated that the IEC will be in the position to come back to the Committee at a later date to respond to the questions posed by the Committee. He stated that the amendments made over the years have been the routine amendments and that due processes were followed. The IEC noted the concerns regarding awareness and voter education, and the need to provide the Committee with more research. He stated that if there were clear specifics from the Members about proposed phrasing of the impugned clauses that are concerning, then the IEC would be in a position to have responded to such proposals by the Committee. The processing of the amendments is subject to strict timeframes and the IEC must do so within the legally prescribed timeframes. He stated the urgency of the need to finalise the amendments to the Electoral Laws Amendment Bill as presented in the last meeting. There needs to be certainty of the legislation in preparation for the local government elections in 2021. The process itself is circumscribed by legislative command, and the prescribed timeframes. If the IEC does not meet these timeframes, it will have unintended consequences.

Mr Moepya stated that regarding the special votes list, this matter happens in accordance with the terms of the law. All participating political parties are given a list of the people who have applied to have their special votes approved. This information is always available to participating political parties. Regarding section 8 of the Electoral Laws Amendment Bill, the IEC sees it as a threat to the credibility of the elections that people could go vote at any station on voting day. As such, it is introducing a requirement for pre-notification to inform voting station as to who will be voting there and from where the voters are which voted there. Regarding the question on the redaction of the voters’ roll, he stated that the purpose is not to prevent identification of voters as political parties will still be able to identify voters and given the addresses of voters as per the decision of the Constitutional Court. However, sensitive personal information such as the identification numbers of voters will be redacted for obvious security reasons. This is a matter of collaboration between the IEC and the State Information Regulator.

The Chairperson said the Committee has rejected the contentious legislative proposal by the IEC that would have enabled it to introduce alternative voting systems in specified districts in South Africa. The IEC’s intention for the proposed amendments to the Electoral Laws Amendment Bill was to allow it to assess the introduction of e-voting. After extensive deliberations, the Committee resolved that the relevant clauses (i.e. sections 14 and 21) of the Electoral Laws Amendment Bill were too vague and since there was no urgency for the enactment of these clauses, it was held over to a later Amendment Bill to allow further consultation o the issue. Concerns over sections 14 and 21 were raised during public hearings on the Electoral Laws Amendment Bill that the IEC was seeking to usurp the power of Parliament to determine the electoral system. Concerns were also raised about the security measures that would be introduced in an e-voting system, as well as the financial implications of such an electoral system.

The meeting was adjourned.