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 \u2014 even if meritless \u2014 can be used to fuel raging political fires.<\/p>\n\n\n\n
Closer to home, concerns about anomalies in Zimbabwe\u2019s voters\u2019 roll were raised in 2018, with one report identifying 250 000 discrepancies,<\/a> such as duplications and registered voters being under the legal voting age. More recently, commenters have referred to Zambia\u2019s scrapping of its voters\u2019 roll<\/a> (and refusal to submit the new voters\u2019 roll to independent audit<\/a>) as a red flag that may threaten the legitimacy of the upcoming election.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n In short, electoral fraud poses a real threat to democracy.<\/p>\n\n\n\n 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\u2019 roll transparency.<\/p>\n\n\n\n Such scrutiny doesn\u2019t take place only in election years; it must happen constantly to achieve the desired effect.<\/p>\n\n\n\n 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\u2019 roll in the name of complying with the Protection of Personal Information Act.<\/p>\n\n\n\n *Click on the Evidence docket to access our submission.<\/em><\/strong><\/p>\n\n\n\n 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\u2019 roll on payment of a fee.<\/p>\n\n\n\n With this provision gone, persons wishing to inspect the voters\u2019 roll would have to do so in person at Independent Electoral Commission (IEC) offices.<\/em><\/p>\n\n\n\n Second, it seeks to grant the chief electoral officer a wide discretion to redact personal information from the version of the voters\u2019 roll provided to political parties and independent candidates \u201cas may be necessary for the protection of the personal information of voters against unreasonable disclosure\u201d.<\/p>\n\n\n\n The effect of this change would be to build a mechanism ripe for abuse right into the Electoral Act itself. Unnecessarily so: voters\u2019 personal information can be protected effectively with a much more narrowly-phrased provision.<\/em><\/p>\n\n\n\n Whether through error or willful abuse, there are many ways that the voters\u2019 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.<\/p>\n\n\n\n It is in the public interest that discrepancies are discovered, corrected, and reported on.<\/p>\n\n\n\n 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 \u2014 all \u201celection watchdogs\u201d \u2014 also collect and analyse information about elections, enabling them to expose anomalies.<\/p>\n\n\n\n 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\u2019 personal information must be protected from misuse.<\/p>\n\n\n\n The voters\u2019 roll would not work without voters\u2019 personal information. This includes their full names, identity numbers (which contain dates of birth), and in the case of the version of the voters\u2019 roll provided to political parties and independent candidates, physical addresses.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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 \u2013 and if it hampers genuine election watchdogs from doing their jobs effectively, that is acceptable collateral damage.<\/p>\n\n\n\n Regarding redaction of voters\u2019 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.<\/p>\n\n\n\n Problem solved.<\/p>\n\n\n\n Right? Wrong.<\/p>\n\n\n\n The ability to obtain a copy of the voters\u2019 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.<\/p>\n\n\n\n If the voters\u2019 roll is accessible only at IEC offices, this is of negligible practical value for the purposes of detecting error or manipulation of the roll.<\/p>\n\n\n\n IEC officials argue that anyone wishing to obtain a copy of the voters\u2019 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 \u201charmonises\u201d access regimes, bringing voters\u2019 roll access under the ambit of generic legislation.<\/p>\n\n\n\n There are many problems with this, including:<\/p>\n\n\n\n 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 \u2014 while at the same time doing nothing to actually prevent voters\u2019 information from potentially being misused.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n The solution here is to simply leave the provision as is \u2014 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\u2019 roll by members of the public for purposes unrelated to the conduct of elections.<\/p>\n\n\n\n Political parties and independent candidates get a different version of the voters\u2019 roll, one that contains addresses of voters.<\/p>\n\n\n\n The Constitutional Court has observed that access to voters\u2019 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.<\/p>\n\n\n\n Clause 8 of the Bill states that \u201cThe chief electoral officer must redact any information appearing on the voters\u2019 roll provided to a registered party or an independent candidate \u2026 as may be necessary for the protection of the personal information of voters against unreasonable disclosure.\u2019\u2019<\/p>\n\n\n\n The Protection of Personal Information Act, however, includes \u201cphysical address\u201d under the definition of \u201cpersonal information\u201d.<\/p>\n\n\n\n Could clause 8, if passed, allow for the redaction of addresses? Or, for that matter, identity numbers or voters\u2019 names?<\/p>\n\n\n\n It\u2019s possible. There are phrases in the clause whose meaning needs defining, namely \u201cnecessary for the protection of the personal information of voters\u201d and \u201cunreasonable disclosure\u201d.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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\u2019 roll \u2013 only a few digits.<\/p>\n\n\n\n However, that is not what this clause states<\/em>.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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\u2019 roll, preventing political parties and independent candidates from exposing potential malfeasance.<\/p>\n\n\n\n If there are concerns about voters\u2019 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.<\/p>\n\n\n\n Most South Africans don\u2019t wake up worrying about voters\u2019 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, \u201croutine\u201d amendments to electoral legislation such as clause 8.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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 \u201crogue journalists\u201d and \u201chired political thugs masquerading as journalists\u201d. ANC MP Moleboheng Modise accused us of being \u201cmasters\u201d of opposition party MPs.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n They have the opportunity to call for oral submissions, to debate these issues with us, and potentially refer clause 8 back for consideration.<\/p>\n\n\n\n Justice Albie Sachs made the following observation:<\/p>\n\n\n\n \u201cThe 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.\u201d<\/em><\/p>\n<\/blockquote>\n\n\n\n The question left is this: will the NCOP choose not to follow the National Assembly\u2019s example and heed the call to engage in critical debate concerning clause 8?<\/p>\n\n\n\nThe problematic Clause 8<\/h4>\n\n\n\n
Why access to the voters\u2019 roll matters<\/h4>\n\n\n\n
Voters\u2019 personal information<\/h4>\n\n\n\n
The right to obtain copies of the voters\u2019 roll<\/h4>\n\n\n\n
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<\/li>\n\n\n\nRedacting personal information<\/h4>\n\n\n\n
Conclusion<\/h4>\n\n\n\n
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