SA must urgently oppose a seemingly innocuous Bill that could threaten free and fair elections – IRR

A profound risk to constitutional democracy could arise from a sweeping provision in the Electoral Laws Amendment Bill, B22 of 2020, introduced in Parliament by the Minister of Home Affairs – and for which the deadline for written submissions is 4pm today.

Though most of its proposed changes are technical, the Bill also contains a sweeping provision allowing the Independent Electoral Commission (IEC) to introduce “a different voting method” – and to override all laws to the contrary in doing so.

Clause 14 of the Bill amends the Electoral Act of 1998 by introducing a new sub-section stating:

“Despite anything to the contrary contained in this Act or any other law, the Commission may prescribe a different voting method.”  (The Bill has a similar provision allowing the IEC to do the same for local government elections.)
These provisions could open the way to introducing an electronic voting system in South Africa. Since the 2019 election, the IEC has been actively exploring this option.  However, electronic voting systems are vulnerable to manipulation in many ways.

Attacks on electronic voting systems require a high level of technical expertise. But such attacks, whether internal (carried out by the incumbent government) or external (carried out by outside hackers), can be implemented in a much more systematic and covert way than is possible with traditional voting systems.

Traditional voting systems are more transparent because they generate a paper trail and can be observed at every stage. Paper ballots are not immune to irregularities, but their in-built safeguards are stronger.

Electronic voting, by contrast, is more vulnerable to manipulation. In An introduction to vulnerabilities in electronic voting, Robert Duigan, who completed an MSc in Crisis and Security Management at Leiden University College, writes: “Traditional safeguards for ballot security have the advantage of being legible to the entire public, and violations of protocol are easy enough for anybody to comprehend.”

By contrast, “electronic systems are transparent only to a tiny selection of technicians, whose access to voting procedures is controlled by the state…. In South Africa, where the government is openly hostile to checks on its power,… this is grounds enough to reject attempts to digitise future elections.”

If South Africa is to shift to an electronic voting system, all the risks in doing so must be made clear to the public.

People must also be given a proper opportunity to understand the dangers and make informed submissions to the government on whether this is what they want.

Instead, the Bill, read together with Section 190(2) of the Constitution, gives a blank cheque to the IEC – an institution vulnerable to cadre deployment and political interference – to introduce an electronic voting system without further reference to Parliament and without any proper consideration of the dangers in this voting method.

The Bill thus poses a great risk to democracy in South Africa. Yet the opportunity for public comment on it has been extremely short. Comments were invited in the Sunday Times on 11^th October, with the deadline for written submissions set at 4pm today (30^th October).

The IRR sought an extension of this period, but this has not been granted. Yet most people will battle to get to grips with the Bill in the short time allowed.

Part of the problem is that the Bill amends three different statutes, each of which must also be read to understand its provisions. In addition, the Memorandum on the Objects of the Bill makes no attempt to explain what “different voting method” is envisaged or why this is to be introduced.

Says Hermann Pretorius, deputy head of policy research at the IRR: “Legislation affecting the foundation of our constitutional democracy cannot be adequately considered by the South African public in a mere three weeks.  It is also troubling that Parliament merely published a call for comments in a single newspaper. This is not the participatory democracy required by the Constitution. It points to a cynical attempt at box ticking – and excludes all South Africans who did not read the relevant newspaper, from cover to cover, on the particular day.”

The IRR urges the Minister of Home Affairs to immediately retract the Electoral Laws Amendment Bill and delete from it all clauses seeking to introduce “a different voting method”. If the Minister is unwilling to do this, Parliament must extend the period for public comment to three months, so as to give the public “a reasonable opportunity to know about the issues” and “a meaningful opportunity to be heard” in the making of the laws that govern them. This, as the Constitutional Court has ruled in several instances, is what the Constitution requires the legislature to do.

The IRR further urges all South Africans and institutions wanting to protect our constitutional democracy to take similar actions to the IRR: make an urgent submission on the Electoral Laws Amendment Bill, B22 of 2020, and call out the irresponsible handling of this issue by Parliament.
 

Media contact: Hermann Pretorius, IRR Deputy Head of Policy Research – 079 875 4290; hermann@irr.org.za
Media enquiries: Michael Morris Tel: 066 302 1968 Email: michael@irr.org.za
Kelebogile Leepile Tel: 079 051 0073 Email: kelebogile@irr.org.za
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