Advocacy comment: Proposed electoral law rolls back voting transparency — for no clear gain

The Electoral Laws Amendment Bill, intended in part to protect voters’ personal information, will restrict access to the voters’ roll and the information contained in it. The gains are negligible compared with the cost: a potential threat to democracy itself.

Why is electoral transparency so important? One need only look to the events in the United States in November last year to know that the suspicion of electoral fraud — even if meritless — can be used to fuel raging political fires.

Closer to home, concerns about anomalies in Zimbabwe’s voters’ roll were raised in 2018, with one report identifying 250 000 discrepancies, such as duplications and registered voters being under the legal voting age. More recently, commenters have referred to Zambia’s scrapping of its voters’ roll (and refusal to submit the new voters’ roll to independent audit) as a red flag that may threaten the legitimacy of the upcoming election.

Allegations of fraud can give rise to court challenges, delaying the declaration of election results and sometimes even leading to civil unrest. Such circumstances are not conducive to peaceful transitions of power.

In short, electoral fraud poses a real threat to democracy.

A tried and tested antidote to minimise manipulation of elections is transparency: as much of it as possible, on as many aspects of the electoral process as possible. This includes voters’ roll transparency.

Such scrutiny doesn’t take place only in election years; it must happen constantly to achieve the desired effect.

The problematic Clause 8

It is for these reasons that amaBhungane made written submissions to committees of both the National Assembly and the National Council of Provinces about a provision in the Bill (clause 8) that seeks to roll back transparency in relation to the voters’ roll in the name of complying with the Protection of Personal Information Act.

*Click on the Evidence docket to access our submission.

Clause 8 purports to do this in two ways: First, it proposes to delete section 16(2) of the Electoral Act, which currently allows members of the public to obtain a copy of the voters’ roll on payment of a fee.

With this provision gone, persons wishing to inspect the voters’ roll would have to do so in person at Independent Electoral Commission (IEC) offices.

Second, it seeks to grant the chief electoral officer a wide discretion to redact personal information from the version of the voters’ roll provided to political parties and independent candidates “as may be necessary for the protection of the personal information of voters against unreasonable disclosure”.

The effect of this change would be to build a mechanism ripe for abuse right into the Electoral Act itself. Unnecessarily so: voters’ personal information can be protected effectively with a much more narrowly-phrased provision.

Why access to the voters’ roll matters

Whether through error or willful abuse, there are many ways that the voters’ roll can be inaccurate: where deceased persons are not removed from the roll, where there are duplications or omissions of registered voters, or where voters are recorded in incorrect voting districts.

It is in the public interest that discrepancies are discovered, corrected, and reported on.

But it is not just officials of the IEC who seek to unearth voter fraud. Journalists, academics, election-focused civil society organisations, activists as well as political parties and independent candidates — all “election watchdogs” — also collect and analyse information about elections, enabling them to expose anomalies.

They cannot do this without proper, meaningful access. Why then, do the powers that be seek to alter two decades-old provisions of the Electoral Act to reduce access? The reason provided by IEC officials at meetings of the portfolio committee on home affairs is that voters’ personal information must be protected from misuse.

Voters’ personal information

The voters’ roll would not work without voters’ personal information. This includes their full names, identity numbers (which contain dates of birth), and in the case of the version of the voters’ roll provided to political parties and independent candidates, physical addresses.

The IEC is concerned that access provisions enable unscrupulous persons to use this information for purposes unrelated to elections, although no specific examples of this were provided. IEC officials said that they had engaged with the Information Regulator, who administers the Protection of Personal Information Act, about these concerns. The result appears to be clause 8.

The reasoning in relation to the deletion of section 16(2) must be that only the most determined fraudster would go through the effort of going to IEC offices to conduct their nefarious activities – and if it hampers genuine election watchdogs from doing their jobs effectively, that is acceptable collateral damage.

Regarding redaction of voters’ information, political parties and independent candidates must also simply make do with incomplete information. The extent of such incompleteness is left to the chief electoral officer to decide.

Problem solved.

Right? Wrong.

The right to obtain copies of the voters’ roll

The ability to obtain a copy of the voters’ roll enables important work by election watchdogs. The full roll contains some 20 million entries. To go through it carefully, one needs ample time and likely the use of electronic search and analysis tools.

If the voters’ roll is accessible only at IEC offices, this is of negligible practical value for the purposes of detecting error or manipulation of the roll.

IEC officials argue that anyone wishing to obtain a copy of the voters’ roll need only submit a request in terms of the Promotion of Access to Information Act (Paia), and that such a request would be granted. Clause 8 merely “harmonises” access regimes, bringing voters’ roll access under the ambit of generic legislation.

There are many problems with this, including:

• Paia does not distinguish between access for “legitimate” purposes (such as detecting electoral fraud) or the illegitimate purposes referred to by IEC officials. Paia is blind as to the purpose for which a requestor wants to access information from a public entity.

• As the voters’ roll would already be “in the public realm” by being accessible at IEC offices, in terms of section 34(2)(c) of Paia, IEC officials would not be able to refuse any request for access.

• The only potential “sorting mechanism” to protect personal information would be if voters could prevent their information from being disclosed. This could happen if, for any reason, the roll is considered not to be “in the public realm”. In such cases, every time a copy of the voters’ roll is requested, IEC officials would have to notify every person on the voters’ roll – potentially millions of people – and receive representations from those of them who are of the view that the request should not be granted. This would be logistically impossible.

• Paia includes a 30-day period within which to respond to a request, which is not present in the existing section 16(2). Therefore, if access is needed to investigate suspicions of voters’ roll fraud shortly before an election, it is possible that it could be provided out of time, rendering such access meaningless.

• The Paia process involves a number of steps and is more detailed compared to section 16(2). Clause 8 substitutes a simple, elegant procedure with a more onerous one by deleting section 16(2).

• That Paia exists is no reason not to have a direct right of access. Other legislation – such as section 26 of the Companies Act – provides for access in terms of that law as an alternative to Paia.

• Clause 8 seeks to remove a clear, direct right in favour of a general one, and in so doing will introduce legal uncertainty.

With that in mind, what is the benefit of deleting section 16(2)? To us, there is none. It will make access take longer, through more difficult processes, and introduce legal uncertainty — while at the same time doing nothing to actually prevent voters’ information from potentially being misused.

It bears asking why the IEC and certain political parties are married to this amendment, and why some MPs have refused to hear oral submissions from amaBhungane to ventilate our concerns.

The solution here is to simply leave the provision as is — or, if there are concerns about legitimate use, to expand a criminal sanction already found in section 16(4), to penalise the use of the voters’ roll by members of the public for purposes unrelated to the conduct of elections.

Redacting personal information

Political parties and independent candidates get a different version of the voters’ roll, one that contains addresses of voters.

The Constitutional Court has observed that access to voters’ addresses is an important means not only to enable efficient canvassing of voters, but also to ensure that voters vote in their respective districts, which prevents gerrymandering.

Clause 8 of the Bill states that “The chief electoral officer must redact any information appearing on the voters’ roll provided to a registered party or an independent candidate … as may be necessary for the protection of the personal information of voters against unreasonable disclosure.’’

The Protection of Personal Information Act, however, includes “physical address” under the definition of “personal information”.

Could clause 8, if passed, allow for the redaction of addresses? Or, for that matter, identity numbers or voters’ names?

It’s possible. There are phrases in the clause whose meaning needs defining, namely “necessary for the protection of the personal information of voters” and “unreasonable disclosure”.

Under the current formulation, it will be left to the chief electoral officer to decide what those phrases mean. Whatever he or she decides will have the result that the information will be removed. The clause is phrased in mandatory terms.

In briefings to the portfolio committee, IEC officials indicated that what is intended is that certain portions of identity numbers should be redacted from the voters’ roll – only a few digits.

However, that is not what this clause states.

Clause 8 is much broader and indeterminate, leaving the discretion solely to the chief electoral officer. While the current administration of the IEC may have the best intentions, it is bad practice to legislate based on the good faith of the current incumbents of public office.

It is prudent to legislate for the worst possible holders of those positions. In this case, legislators should anticipate that this discretion could be abused to remove important identifying information form the voters’ roll, preventing political parties and independent candidates from exposing potential malfeasance.

If there are concerns about voters’ personal information, then the solution is simple: allow for redaction, but state exactly what can be redacted. Do not leave it to chance or the good faith of any particular holder of office.

Conclusion

Most South Africans don’t wake up worrying about voters’ roll fraud. As recent circumstances in the United States have shown, that can change very quickly. But only if the public is not vigilant and fails to cast a critical eye over seemingly innocuous, “routine” amendments to electoral legislation such as clause 8.

AmaBhungane saw real problems with the clause, and used the prescribed public consultation process to raise them. Our concerns were dismissed with virtually no critical debate, and we were not given an opportunity to make oral submissions to engage with lawmakers in an open forum.

Still, we pushed to be heard on this issue. In return, at a plenary sitting of the National Assembly in December, EFF MP Mgcini Tshwaku branded us as “rogue journalists” and “hired political thugs masquerading as journalists”. ANC MP Moleboheng Modise accused us of being “masters” of opposition party MPs.

The portfolio committee on home affairs and the majority of the National Assembly saw fit to pass this unnecessary and unhelpful clause. However, that is not the end of the road: We have made submissions again, this time to the select committee on security and justice in the National Council of Provinces, which must now consider the Bill.

They have the opportunity to call for oral submissions, to debate these issues with us, and potentially refer clause 8 back for consideration.

Justice Albie Sachs made the following observation:

“The open and deliberative nature of the [democratic] process goes further than providing a dignified and meaningful role for all participants. It is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making.”

The question left is this: will the NCOP choose not to follow the National Assembly’s example and heed the call to engage in critical debate concerning clause 8?

* Thakur is amaBhungane’s advocacy coordinator.

clear

Evidence Docket

Dig into the evidence yourself.