PRESENTATION BY G.R. MORGAN MP (DA) ON A LEGISLATIVE PROPOSAL TO AMEND THE ELECTORAL ACT (73 OF 1998)

23 February 2007

Good morning Honourable Chair, Honourable Members.

Thank you for providing me with the opportunity to present a Legislative Proposal that seeks to amend the Electoral Act (Act 73 of 1998). It is a great privilege for me as an ordinary Member of Parliament to come before a committee of my peers to discuss an issue that I am passionate about, that is, government advertising during election periods. I offer this proposal in good faith and trust that we can debate its worth.

Background

Allow me to give the Honourable Members some background to why I initially submitted this Legislative Proposal.

On 29 March 2004, just two weeks before the 14 April election day, the Democratic Alliance (DA) in the Western Cape launched an interdict against the Premier of the Western Cape, the ANC and the NNP for what it argued were several cases of abuse of taxpayers money for electioneering purposes that involved one or more of these parties. The four parties, the DA included, decided to settle the matter amicably and the application was not proceeded with. However, the following press statement was issued jointly by the DA, the Premier, the ANC and NNP in which it was agreed that this issue would receive attention after the 2004 elections.

The statement read as follows:

The parties remain mindful that we are a new democracy and that it is important for the future of our democracy for political parties to agree on what constitutes appropriate conduct during elections campaigns. Therefore we make a mutual undertaking to debate and discuss, after the 2004 election, in the appropriate parliamentary and legislative forums, the issue of good democratic practice for political parties, especially political parties in government at all levels, and if needed, to decide upon further legislative, administrative or other measures to address this issue”

While this undertaking pertained to these parties in the Western Cape, I decided to take the issue up on a national level. I thought that the matter of the use of taxpayers’ money for electioneering activities that could benefit incumbent parties was a subject that should be debated in all our legislatures. I believed that the spirit of this statement following the settlement in the Western Cape indicated that the time was ripe for such discussions.

I subsequently asked colleagues of mine in each of the nine provincial legislatures and the NCOP to request their respective Speakers or Chairpersons to convene Ad Hoc committees to discuss the matter of government advertising during election periods. I made the same request to the Honourable Speaker of the National Assembly. Motions were indeed placed on the orders papers of various legislatures, including the Western Cape, where it was the subject of a debate. Unfortunately there were no actions or resolutions that followed from this particular debate.

The Honourable Mahlangu-Nkabinde wrote to me on 24 May 2005 in her capacity as Acting Speaker of the NA and said that my request for a committee on this issue could not be granted. The Honourable Acting Speaker argued that “while [the issue of advertising during election time] may be important, [it] is however not urgent…”. Other courses of action to obtain a hearing for this issue were subsequently suggested to me by the Acting Speaker.

It was at this stage that I decided to draft a Legislative Proposal on the Prohibition of Government Advertising, which I submitted to the Speaker on 7 September 2005 in accordance with Section 235 of the National Assembly rules. The proposal was subsequently submitted to this esteemed committee for its consideration.

What provisions, if any, are in place to regulate government advertising during election times?

In the period leading up to the 1999 national and provincial elections, media
expert, Mr Raymond Louw, who was a member of the Communications Task Group that set up the Government Communication and Information System (GCIS), established election period regulations.

According to the Government Communicator’s Handbook, Cabinet decided on a possible “’framework to be formulated to regulate against the dissemination of government information during election periods’ in a way that is to the advantage of one political party and to the disadvantage of others”. These regulations rely essentially on self-regulation by government communicators. I believe in practice that these regulations have neither been rigorously enforced, nor are they entirely desirable. While it is obvious that there are certain functions of government communications that must continue, irrespective of whether it is an election time or not (these are outlined as exclusions in my legislative proposals), the current regulations argue that government communicators “should continue exercising their responsibilities to articulate, promote and defend the policies, programmes and actions of the government”. I argue that this creates a considerable grey area in the regulations that can allow for the spirit of the regulations to be undermined. It is my contention that promoting and defending the policies of government should be performed by the political party that has been running a particular department or municipality, and not by the communicators of government. Once again let me point out there are exclusions to this.

The regulations in my opinion are not strong enough, and therefore, I propose that a prohibition on government advertising be included in the Electoral Act, which already includes extensive provisions on other prohibitions in Chapter 7 relating to the running of elections such as impersonation, undue influence and so on, and are enforced by the Electoral Court.

On the 20 September 2005 I wrote to the Chief Executive Officer of the GCIS, Mr Joel Netshitenzhe, informing him of my submission of this Legislative Proposal and asking whether he would consider supporting it. I also drew his attention to cases of government advertising that I believed benefited the governing party during the 2004 elections, and hence did not conform to the prescribed guidelines of the GCIS. He replied to my letter the next day stating that the GCIS would be guided by the Cabinet in response to my Legislative Proposal.

Some examples of government advertising during election times

The types of government advertising that I believe can be considered election advertising to promote or oppose, directly or indirectly, a particular political party are:

• advertising containing information that specifically promotes or opposes a candidate or political party;
• advertising specifically targeted to an electoral district in which an election is being conducted;
• advertising specifically designed to coincide with the campaign period; or
• a material increase in the normal volume of advertising, either generally or in relation to an electoral district, during a campaign period.

Allow me to provide some examples from South Africa over the last few years of government advertising that I believe has aided the governing party.

During the 2004 national and provincial election campaign period, national departments took part in the “Ten Years of Democracy Campaign” and made extensive use of advertising. In a reply to a question to the Minister of Home Affairs it emerged that “the Minister in the Office of the President invited Ministries to submit budgets for the Ten Years of Democracy celebrations…”

Many members may argue that celebrating ten years of democracy is a worthy cause. I certainly agree. Two democratic parliaments following decades of Apartheid is no doubt something we all applaud. However, I would argue that starting this advertising campaign during the election campaign provided a significant advantage to the governing party. There would have been considerable scope to celebrate ten years of democracy after the election period, but this is not what happened.

Allow me to give you an example of the type of advert that was used during this campaign. In a reply to a question put to the Minister of Public Works, it was revealed that during this ‘celebration period’ the Department paid for an advertorial in a Sunday Times newspaper supplement in which it celebrated ten years of infrastructure development, at a cost of R127 000. What do I find objectionable about such an advert during an election period? I believe what is objectionable is that it should have been the job of the ANC as a political party to inform the electorate of what its successes had been over the previous five years in, for example, the area of infrastructure development, and not the department. No doubt the governing party did by means of its own campaign promote this as is expected from political campaigning, but in the example of this advert, the ANC’s campaign was supported at the expense of the taxpayer, as the reasonable voter knows that an ANC Minister had been running that department.

That is but one example, but the total expenditure on this particular campaign is not easily dismissed. The Department of Defence spent R9.1 million, the Department of Education spent R8.7 million and the Department of Health spent R2 million on publications and adverts relating to the “Ten Years of Democracy Campaign”.

Government advertising during election periods does not only happen at a national level. In March 2004, only a month before the provincial elections, the provincial government published an insert in the Sowetan entitled "Gauteng News" with a picture of Premier Sam Shilowa next to the headline "Gauteng is now a better place". That may in fact be true, but I would argue that during the election period it was incumbent on the ANC as a political party and not the provincial government to convince the electorate that Gauteng was indeed a better place. Also in March that year a half page colour advert promoting a "youth rally" was published in the Beeld newspaper. The advert included a large picture of Premier Sam Shilowa next to the slogan "Saam skep ons werk en beveg ons armoede" ("together we will create work and fight poverty"). This was not very different from the ANC`s 2004 election slogan: "A people`s contract to create work and fight poverty". I would argue therefore that an advert like this, paid for by government, and hence the taxpayer, would have actively helped to promote the ANC as party.

Before moving on, allow me to give you some examples of government advertising during an election period at a local government level. In January 2006, for example, only a matter of weeks before the 1 March local elections, the Mail and Guardian carried three advertisements in a single edition for ANC run municipalities. One for Johannesburg entitled "Joburg is delivering", one for district municipalities in Limpopo, and a double page spread for the City of Tshwane municipality, which was actually in ANC colours. The Tshwane advert cost R72 000 alone.

I have now provided examples from all levels of government of advertising placed during election periods. This practice is wide spread, and while I believe we can debate the degree to which such advertising benefits the party that runs any of these particular departments or municipalities, the fact is that it does benefit the governing party, and places any other parties contesting elections at a significant disadvantage.

What does the Legislative Proposal Aim to Achieve?

The Legislative Proposal has the following objectives:

1. The prohibition of government advertising, with limited exceptions, from the date on which an election is called to the date the result of the election is determined;

2. The provision of penalties for offences registered in this regard;

3. The prevention of any governing party from receiving an unfair advantage through the use of government advertising;

4. The promotion of multi-party democracy.

The proposed Legislative Proposal would be a relatively simple amendment that is an addition to the Electoral Act as it currently stands.

It includes:

1. The insertion of new section entitled “Prohibition of Government Advertising” under Part 5: Other General Provisions

2. The amendment of Section 97 to include the new prohibition as an offence.

3. The amendment of Section 98(b) to stipulate the penalty carried by the offence.

4. An appropriately amended Short title

Practice from around the World

Many progressive democracies have policies regarding government advertising. The responses are slightly different but the principles are generally agreed upon.

Canada

In Canada the policy on government advertising during election time is supported by legislation.

According to the Canada Elections Act, a piece of Federal Electoral Legislation:

321. (1) No person shall knowingly conduct election advertising or cause it to be conducted using a means of transmission of the Government of Canada.

Application

(2) For the purpose of subsection (1), a person includes a group within the meaning of Part 17.

According to the Communications policy of Canada: "Institutions must suspend their advertising during general elections of the Government of Canada. Advertising is only permitted when: an institution is required by statute or regulation to issue a public notice for legal purposes; an institution must inform the public of a danger to health, safety or the environment; or an institution must post an employment or staffing notice. Otherwise, advertising plans and activities must be held in abeyance effective the day that the Governor in Council issues a writ for a general federal election, and must not resume until the day the newly elected government is sworn into office.

Australia

In Australia, "all campaign advertising by State Government agencies will cease for a period of two months prior to a state election. The only advertising to be exempt during the quarantine period will be publicity relating to community health and safety issues, appropriate public information and services having clear commercial considerations (for example, transport providers, and tourism promotion)." Before the 2001 general election in Australia John Howard agreed to an Opposition request to "withdraw politically sensitive government advertising during the election campaign". (The Australian 8 October 2001.)

In Australia, these provisions are merely policy, and while they are largely successful in curbing government advertising during election times, the issue remains controversial. In the last two parliamentary elections in Australia the Liberal government under Prime Minister John Howard has been heavily criticized by the opposition for increasing government advertising in the lead up to the elections. This advertising is viewed by the opposition as promoting the agenda of the governing party.

New Zealand

In New Zealand there are Guidelines for Government Advertising (20 November 1989), which state, among other things that:

“These guidelines recognise the public concern that government advertising should not be conducted in a manner that results in public funds being used to finance publicity for party political purposes…..The onus is on Ministers and government departments to ensure that these guidelines are followed”.

It is true that many countries use regulations to regulate government advertising. These regulations succeed when they are adhered to by government communicators. But because they tend not to include penalties for transgressions, regulations can be toothless. The Australian regulations, although more often than not adhered to, may suffer from the same problem as the South African regulations. The Canadian regulations backed up by legislation appear in practice to be tighter.

Conclusion

I believe that this Legislative Proposal has good intentions. The aim is to prohibit government advertising during election periods, with certain exceptions. If implemented, or perhaps even if this Proposal can stimulate a debate that leads to a similar measure or measures that aim to achieve its objectives, I believe that it would significantly contribute to levelling the playing field for political parties during elections, would ensure that the line between party and state is not blurred, and that state resources are not used to promote any particular governing party.