ELECTORAL INSTITUTE OF SOUTH AFRICA
20 July 1998
SUBMISSION ON THE ELECTORAL BILL [B69-98]

The Electoral institute of South Africa (EISA) wishes to make the following submissions on the draft Electoral Bill.

Chapter 3 Part 5: Special Votes
Clause 32 (1) provides that the Commission may decide to allow special votes to be cast in an election. Clause 32 (2) allows the Commission to prescribe, inter alia, the categories of person who may apply for special votes.

In order to give effect to the right in section 19(2) in Chapter 2 which provides that 'every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution, it is proposed that the Bill provides appropriate voting facilities for voters unable to attend a voting station due to pregnancy age or physical disability.

The categories mentioned in clause 32(2) should also include voters who are involuntarily unable to attend a voting station on an election day. For example, these are, members of the security forces, Electoral Commission employees, and journalists.

The section 19(2) right granted to all South African citizens who happen to be abroad at the time of an election also needs to be upheld. Certain citizens (especially South African business people or those in foreign missions) would fall into a further category contemplated by clause 32(2).

In order to ensure that all citizens are guaranteed the right to vote, it is suggested that the Bill introduce a tendered ballot for those who are unable to vote during the established voting hours.

In this regard reference may be made to the Electoral Act 23 of 1994 of Namibia. Section 35(3) provides:
Where, at an election for... members of the National Assembly, any voter is by reason of absence unable to attend on any polling any at a polling station at which he or she is in accordance with subsection (1) required to record his or her vote, the presiding officer of any polling station, whether in or outside Namibia, shall, at the request of such voter, permit such voter to his or her vote by way of a tendered vote at that polling station during the polling hours applicable to that polling station... Provided that where at such an election the poll has been determined to take place over more than one day, a voter shall, at the polling station outside Namibia, be entitled to so record his or her vote only on the first day of the polling days so determined.

Section 73 of the Namibian Act also provides;
'In order to enable voters outside Namibia to record their votes by way of tendered votes at an election for... the National Assembly, the Commission may establish polling stations outside of Namibia at any Namibian diplomatic mission or at such other convenient places as may be determined with the Minister of Foreign Affairs.'

The reliance on a tendered ballot would address the potential unconstitutionality of an Act which does not ensure the s19(2) rights of all South African citizens.

Chapter 3 Clause 25 Requirements for parties to contest election
After the 1994 election, 117 of the 490 members in the National Assembly and National Council of Provinces (formerly the Senate), were women. This is a notable improvement on the previous apartheid government where women constituted 2.8% of parliamentary representatives. Today, women constitute 25% of representatives, placing South Africa seventh highest in the world in terms of representation1.

It is submitted that there is a need to increase women's representation and participation in elections for the different legislative bodies in South Africa.

It is submitted that a paragraph be added to this clause which makes it a requirement that every political party must ensure that at least 40% of the candidates on its regional and/or national lists are women.

Chapter 3 -Clause 22 - Inspection and Conies of the Voters' Roll

Chapter 3. Clause 28- Inspection and Copies of list of candidates and accompanying documents

Chapter 4- Clause 34 - Hours of voting

Chapter 8 - Clause 62 - Inspection of copies of maps of voting districts

Chapter 6- Clause 66 - Mobile Voting stations

The clauses the above-mentioned Chapters refer to the Chief Electoral Officer's reliance on the public media to make known information about the various features of the election mentioned in the above clauses.

The Chief Electoral Officer has the discretion to rely on the public media that he considers will ensure wide publicity of the information mentioned in each clause.

There is no indication as to how the media should be selected, nor is there reference to language, taking into account the fact that there are 11 official languages.

The broad term 'media' is used and this does not provide any guidance to the Chief Electoral Officer as to what extent the media should include electronic media (for example, the Internet).

It should be noted that there appears to be only implied references to the publicising of the locations of voting stations. It is proposed that publication of the locations should be clearly set out. (See note below on Voting Stations).

It is submitted that to ensure fairness of an election, the Bill must provide clarity on the categories of public media the Chief Electoral Officer would rely on to make electoral information available to the public. It should also provide clarity on which of the various South African languages should be relied upon in conveying the information to the public.

Chapter 4 Voting Stations
The clauses in this Chapter of the Bill make no provision for publicising the location of voting stations. It may be envisaged, by the drafters of the Bill that in publishing the hours of voting, and in establishing the voting districts, it would not be necessary to refer to the precise locations of the voting station.

It is proposed that a provision to deal with this issue should be included in the Bill.

Chapter 6 Part 3
Clause 83 Powers and duties of accredited observers
It is proposed that a simplified procedure be instituted for the observance of an election by media organisations.

The rigid procedures outlined in this clause are appropriate for, inter alia, observers from international organisations or foreign governments, human rights and other non-governmental organisations. These organisations would observe specific polling stations in allocated areas. These organisations would be in the position to comply with the application requirements of the clause.

The clause contemplates the observation role to be performed by juristic persons. It does not purport to apply to individuals, or natural persons. Clause 84 recognises that an individual appointed by the accredited organisation may observe an election.

The clause takes no cognisance of the practical requirements of the print and broadcast media in carrying out their duties as observers on behalf of the general public on an election day.

Individual members of the media may well find themselves without the status afforded by clause 84 as they would not have been appointed as an observer by an accredited organisation.

Individual members of the media would then find that they are not allowed to observe the election in the manner provided for in clause 84 which sets out the powers and duties of accredited observers.

Demands on journalists, photographers, technical and administrative staff, in print and broadcast media, and news offices during an election are intense. These pressures, coupled with the nature of media activity, do not lend themselves to the requirements outlined in this clause. Hundreds of journalists and photographers - and in the case of broadcast media, especially television, editing, production and technical staff - will be deployed throughout the country on election coverage, many on an 'immediate instruction' basis, and it will be impossible for them or their employers to comply with the application procedures.

It is proposed that this clause includes a special provision that allows the Chief Electoral Officer to categorise members of the media as observers, who upon identifying themselves to the presiding officer at a voting station during voting hours (and later when counting takes place), will be allowed to observe, photograph and write about proceedings in accordance with clauses 83 and 84 of the Bill.

It is submitted that the 'prescribed identification' referred to in clause 84(2) be determined by regulation as provided for in clause 99 of the Bill.

The regulation should take into account the status of members of the media as observers and should provide for the 'prescribed identification' required by members of the media.

Schedule 2 Electoral code of Conduct
During the last election, there were documented cases of harassment and victimisation of journalists and photographers. Both, broadcast and print media feel strongly that such a clause is essential to reinforce the media's right to freedom of expression, including the freedom of the press and other media.

It is proposed that a section relating to the protection of journalists photographers and other members of the media be incorporated into the Electoral Code of Conduct.

It is, therefore, proposed that the following item be included in the Electoral Code of Conduct.

Role of the Media
Every registered party and every candidate must -
(a) respect the role of the media before, during and after an election conducted in terms of this Act;
(b) uphold the rights of the media to gather and publish information freely before, during and after an election conducted in terms of this Act;
(c) ensure access by members of the media to all public political meetings, marches, demonstrations, rallies, and other political events;
(d) take all reasonable steps to ensure that any member of the media is free to report on all public political meetings, marches, demonstrations, rallies, and other political events;
(a) uphold the rights of any individual to inform the media about any matter or event, pertaining to an election in terms of this Act, which will be of public interest;
(f) uphold the right of an individual to express freely his or her political beliefs and opinions in the media;
(g) promote understanding of, and compliance with this section of the Electoral Code.

It is submitted that the 'prescribed identification' referred to in clause 84(2) be determined by regulation as provided for in clause 99 of the Bill

The regulation should take into account the status of members of the media as observers and should provide for the 'prescribed identification required by members of the media.

Schedule 2 Electoral Code of Conduct
During the last election, there were documented cases of harassment and victimisation of journalists and photographers. Both, broadcast and print media feet strongly that such a clause is essential to the reinforce the media's right to freedom of expression, including the freedom of the press and other media.

It is proposed that a section relating to the protection of journalists photographers, and other members of the media be incorporated into the Electoral Coda of Conduct.

It is, therefore, proposed that the following item be included in the Electoral Code of Conduct.

Role of the Media
Every registered party and every candidate must --
(a) respect the role of the media before, during and after an election conducted in terms of this Act;
(b) uphold the rights of the media to gather and publish information freely before, during and after an election conducted in terms of this Act;
(c) ensure access by members of the media to all public political meetings, marches, demonstrations, rallies, and other political events;
(d) take all reasonable steps to ensure that any member of the media is free to report on all public political meetings, marches, demonstrations, rallies, and other political events;
(e) uphold the rights of any individual to inform the media about any matter or event, pertaining to an election in terms of this Act, which will be of public interest;
(f) uphold the right of an individual to express freely his or her political beliefs and opinions in the media;
(g) promote understanding of, and compliance with this section of the Electoral Code.

Consequently it was necessary to amend the clause.

3. These amendments deals with the change of a Schedule to a regulation

4. This amendment deals with the calculation at the provision for unearned premiums in respect of inwards reinsurance business. The part of the formula which provides that the insurer may take premiums in respect of its retrocession arrangements into account in calculating this provision. was erroneously omitted from the Bill.

SCHEDULES 4, 5 AND 6
1. These Schedules are omitted from the Bill and will become regulations.

SCHEDULE 7
1. The whole of Schedule 7 deals with the security that Lloyd's has to provide
in the Republic to safeguard the interests of South African policyholders.

4 August 1998
RE: Amendment to EISA's submission on the Electoral Bill
Please find attached an amendment to ElSA's submission on the Electoral Bill forwarded to you on 20 July 1998.

It is proposed that the item on the Role of the Media be included as item 7 or 8 of Schedule 2 - Electoral Code of Conduct.

Kindly note that we would like to replace the item on the Role of the Media included in the submission of 20 July 1998 with the attached version.

Role of the Media
Every registered party and every candidate must --
(a) respect the role of the media before, during and after an election conducted in terms of this Act;
(b) uphold the rights of the media to gather and publish information freely before, during and after an election conducted in terms of this Act;
(c) ensure access by members of the media to all public political meetings, marches, demonstrations, rallies, and other political events;
(d) take all reasonable steps to ensure that any member of the media is free to report on all public political meetings, marches, demonstrations, rallies, and other political events;
(e) uphold the rights of any individual to inform the media about any matter or event, pertaining to an election in terms of this Act, which will be of public interest:
(f) take all reasonable steps to ensure that journalists, photographers and other media workers are able freely to report and comment on political activities and ensure that they are not subject to insult, harassment, intimidation, hazard, threat or physical assault by any of their representatives or supporters; and
(g) promote understanding of, and compliance with this section of the Electoral Code.