Keeping An Eye On The 2019 National & Provincial Elections

Introduction

Elections do more than facilitate democracy: they are also imbued with immense symbolic value[i]. The understanding that the act of voting is an expression of hope for the future[ii] has been articulated many times. In South Africa, events of the past few years have given citizens little to be hopeful for as politics has been dominated by the exploits of certain members of the political class. The electorate has been virtually powerless to do more than be washed along with the tide of events. Will 2019 be the year of the voter? Or will political machinations overshadow electoral will and further entrench the systems of patronage and corruption to which the citizenry has been subject?

The Electoral Commission (Commission) is the institution mandated by the Constitution to manage national, provincial, and municipal elections; ensure that those elections are free and fair; and thereafter announce the results of those elections.[iii] Therefore, the work of the Commission enables voters to express their political preferences – and in so doing, on a symbolic level, their hopes and vision for the future.

The purpose of this brief is to cast an eye on the Commission and its work, with a focus on the pressures it faces in the run-up to the 2019 National and Provincial Elections. It will also evaluate the Commission’s responses to these pressures thus far, and highlight areas of concern that should be monitored going forward.

Resource constraints

The Commission’s work is resource-intensive. Its mandate includes not only electoral operations[iv], but also outreach in the form of civic education and research, the compilation and maintaining of the voters’ roll and register of parties, engaging with parties concerning electoral issues, and the adjudication of disputes regarding administration in respect of elections.[v] Recently, meeting the obligations imposed by a court order concerning the information contained on the voters’ roll[vi] has placed further strain on the Commission’s already stretched resources.

Underfunding the Commission can quickly lead to elections of poorer quality. For example, there would be less funds available to employ election observers and monitors – important actors in ensuring the integrity of the electoral process.

In the 2016/2017 financial year, the Commission reported a funding shortfall of R311 million. This was despite it having received some R1.66 billion by way of parliamentary grant, R24.2 million from sponsorship income, and R16.2 million from sundry sources such as interest.[vii] It is too early to know how much will be allocated to it by Parliament in 2018, but no doubt there will be questions whether that will be enough to meet the many expenses that follow from the upcoming national and provincial elections.

Conflict-management

The atmosphere around an election is often ripe for conflict. Taken to extremes, electoral conflict can result in violence[viii], calls for review of the election process[ix], and attempts by aggrieved parties to delegitimise the electoral authority’s work.

The 2019 election is poised be of great import in post-apartheid South Africa. The election will no doubt be fiercely contested. It is vital that the Commission is resourced and prepared to prevent conflict from arising and, if this is not possible, to assist in resolving disputes peacefully.

What can be done to minimise conflict? A key step is for the Commission itself to have its own house in order. The electoral code of conduct must be stringently adhered to by the Commission’s employees, and if not, enforced. Thereafter, civil society can play a role in assisting the Commission with its work, such as by acting as non-partisan electoral observers. All actions that contribute to maintaining the integrity of an election reduce opportunities for conflict to arise.

Another type of conflict that needs to be addressed on an ongoing basis is that which arises from the drawing of boundaries of voting districts. Litigation has arisen in the past in relation to the boundaries of Merafong[x] and Matatiele[xi]. Similar disputes could arise in the future which may give rise to protest and public unrest, and so it is important that these issues are decided in consultation and engagement with affected communities.

Voters’ Roll

On 14 June 2016, the Constitutional Court handed down judgment in the case of Electoral Commission v Mhlope and Others[xii]. The Court ordered that the Commission report to it every six months with updates on its progress in obtaining addresses of all voters on the national common voters’ roll who had registered to vote after 17 December 2003. As of 30 November 2017, the Commission had complete addresses for 75% of registered voters. It still faces challenges in rectifying incomplete addresses and decreasing the numbers of voters without any registered address at all. The Commission has endeavoured to meet its obligation by capturing addresses in the 2016 Municipal Elections and by-elections, setting up an online facility, and hosting registration weekends, one of which is upcoming over 10 and 11 March 2018.

The Commission has to contend with obstacles such as resource constraints, difficulty in geo-locating addresses, lack of formal addresses (particularly in informal settlements and rural areas), population migration, and voter apathy. With less than five months before the final report to the Constitutional Court is due (30 June 2018) it remains to be seen whether the Commission can overcome these hurdles and meet the deadline.

It is not clear as to what will happen if the Commission is unable to satisfy the requirements of the Constitutional Court’s order in time – one could anticipate that the Court will have little option but to accept what is presented to it.

Protection of Voters’ Personal Information

Strangely enough, compliance with the Constitutional Court’s order could lead to another source of pressure on the Commission in the form of the interplay between provisions of the Electoral Act 73 of 1998 and the Protection of Personal Information Act 4 of 2013 (POPI Act). While the provisions of the POPI Act that create compliance obligations are yet to come into force, once they do, they arguably will apply to personal information contained on the voters’ roll.

Voters’ rolls are made public to enhance the openness and transparency of elections as it affords people an opportunity to inspect the roll and object to the registration of any voter if they detect an irregularity. Names and physical addresses of individuals (particularly when they appear together) fall within the definition of “personal information” for the purposes of the POPI Act. This information is subject to restrictions on disseminating information or making it available.

Section 16 of the Electoral Act, however, provides that a copy of the voters’ roll must be made available for inspection by the public, which is likely a form of “processing” as defined in the POPI Act. If this is indeed the case, the Commission will have to audit its processes relating to the handling of information to ensure compliance with the POPI Act and prevent undue burden on the Commission. Such an undertaking would require engagement between the Commission, the Information Regulator, and the Legislature.

Civil Society

While the Commission is primarily responsible for electoral operations, civil society can – and should – assist in ensuring that elections are free and fair. Involvement of civic organisations can extend to voter or civic education, conflict management or dispute resolution before, during, and after elections, and election monitoring or observation during elections.

One aspect of voter education that can benefit from dynamic input from civil society is engaging with young people, who are more likely to obtain information from the internet than, for instance, attending town hall meetings.

Conclusion

There is clearly much to do in preparation for the 2019 elections. The Commission made steady progress in the face of many challenges. At the very least, the new leadership has thus far kept away from scandals such as the lease of premises in Centurion, which was found to be flawed by the Public Protector and ultimately led to the resignation of former Chairperson Pansy Tlakula[xiii]. Following the resignation of former President Jacob Zuma and the instatement of President Ramaphosa, the elections next year can be seen as a litmus test of the condition of South Africa’s democracy. Therefore, we watch and wait.

Cherese Thakur
Legal Researcher
cherese@hsf.org.za