ENHANCING CONDITIONS CONDUCIVE TO FREE AND FAIR ELECTIONS – Submission to IEC

I wrote and presented this paper to the IEC seminar on behalf of the ACDP:

ACDP PRESENTATION (IEC Free & Fair Elections Seminar 3-4.03.2015)

The African Christian Democratic Party (ACDP) welcomes the seminar and thanks the Independent Electoral Commission (IEC) for the opportunity to participate and present its views on the subject. Certainly, we believe this seminar is timeous if not overdue.

The Founding Provisions of our Constitution (Chapter 1) states that:  “The Republic of South Africa is one, sovereign, democratic state founded on the following values: [inter alia]  Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

Multiparty democracy is enshrined in the constitution precisely so that all voices may be heard in parliament through inclusion rather than expressed through violence outside parliament, because of exclusion.

In “Multi-Party Democracy and it’s Relevance in Africa”, Prof K K Prah of The Centre for Advanced Studies of African Society asserts that “Multi-party political systems are generally regarded as the most reliable systems for the cultivation, development and institutionalization of democracy. The multi-party model lies at the heart of the tradition of modern liberal democracy.  Its central advantage is that, in modern capitalist society, it permits the coexistence of contrastive views of how social life should be ordered without suffocating relatively inferior constituencies.  It allows “a hundred flowers to bloom and a hundred schools of thought to contend”. It is the structure, par excellence, of political pluralism in modern bourgeois society. It permits policy options to contest for popular support in order to be governmentally adoptable.”

A two-party state, or a push towards that, will only serve to entrench our divisive and dehumanising past as too many diverse voices remain excluded or at least crowded out.  When elections are not free and fair, our multi-party democracy is undermined, threatened even negated.  Far from ensuring the promotion and consolidation of multi-party democracy, some aspects of our election processes are undermining it, and in so doing, South Africa is increasingly at risk of being labelled a „two-party democracy or state‟, or even worse a „dominant party democracy‟, trending toward a state power-sponsored single party democracy.  Therefore, it is in South Africa‟s best interests that elections are free and fair in order that multi-party democracy can play its role in uniting and healing South Africans in our diversity and improve the inclusivity and legitimacy of the electoral process.

Indeed, should multi-party democracy not be enhanced and protected, our fragile and young democracy will be undermined even further, in ways Songezo Zibi of the Business Day described on 20 February 2015: “To work, democracies need a reasonable balance of power and tension between different forces in society, and between the three arms of the state. Too much power or weakness in any of them tilts the scales in a direction that can only compromise the promise of democracy itself. In cases where strength, weakness, or both, exist in excess, the democratic architecture, even if retained, can be relegated to a token while a country slips into de facto dictatorship. 

SA’s constitution is founded on this principle. However, the same constitution is unable to provide sufficient remedies for nefarious intentions by a collective that wishes to abuse constitutional process for its own ends. As a result, they have used their parliamentary majority to stymie executive accountability rather than enhance it.”

Any discussion, therefore, on the freeness and fairness of our elections ought to result in an assessment of our achievement, maintenance and promotion of multi-party democratic governance.  ie: When elections are free and fair, multi-party democracy is promoted even guaranteed and a united South Africa is closer.

While the ACDP commends the IEC, which has run both general and municipal elections with great competence, resulting in worldwide acclaim and requests for assistance from other countries, the ACDP‟s assessment is that multi-party democratic governance through elections are free and fair on paper, but not always in practice, for the following reasons:

  1. Political party funding:
  2. from the IEC:

As parties elected to the National Assembly and legislatures, thus qualifying for IEC funding, it is impossible for smaller parties to compete equitably, to reach our voters and the broader electorate, given the current IEC funding allocations model, based on the Public Funding of Represented Political Parties Act (103 of 1997).

The media and independent analysts agree: “Much to the dissatisfaction of the smaller parties, 90 percent of the Represented Political Parties Fund is allocated on the strength of representation, and just 10 percent allocated equally between all represented political parties.”

As far back as March 2006, the ACDP called on the National Assembly to debate, “The impact of political party funding on multi-party democracy” saying that if the playing field is not level, smaller parties, that represent a percentage of the electorate, are put at a disadvantage in even reaching and educating their voter base, and more so the broader electorate due to a lack of funds.  This can be addressed well ahead of LGE 2019. b. from external sources: 

In South Africa, where corporate funding is allowed, the ruling party and the largest opposition party enjoy significant amounts of private sector funding giving them the means to reach their electorate particularly during elections whereas smaller parties are at a disadvantage exacerbating our inability to educate and inform the electorate.  Disclosure of political funding is important and the ACDP has long been committed in principle to transparency in this area.  It has however had a negative impact on us as donors do not want to be seen to be donating to a political party other than the governing party nationally or provincially, even if it is the party they vote for, if they think it may impact negatively on their businesses.  Donors also want to be seen to be supporting the party in power in an area or nationally. For this reason, we are not prepared to disclose our funders should this not be obligatory for all parties contesting elections.

This poses a threat to multi-party democracy because South Africans do not have fair access to information about other political parties in order to make informed decisions.

The ACDP has proposed in the past and does so again, that it is necessary for a fund to be established and administered by an independent body such as the IEC.  If all donations to political parties go through this one fund and are distributed on a proportional or other agreed basis, it will remove the growing perception of wealthy individuals and companies buying favour or protection, or multi-nationals interfering in the power dynamics of our country.  Without this one fund freeing money from the ties it has to the donors, it will continue to be in the donors best interests to fund those in power, for their mutual gain, to the exclusion of smaller parties and the electorate.  An independent body can also better regulate the funding in line with future legislation and issues such as funds resulting from illicit means can be detected and dealt with.  Smaller parties would not have the means to detect and deal with these issues.  Such a fund can be set up well ahead of LGE 2019.

  1. The Fourth Estate. The media’s role:

“Democratic consolidation is strengthened where [the media] facilitates greater transparency and accountability in governance, by serving in their watch-dog roles to deter corruption and malfeasance, as well as providing a civic forum for multiple voices in public debate, and highlighting problems to inform the policy agenda.” (Goran Hyden, Michael Leslie, and Folu F. Ogundimu, eds. Media and Democracy in Africa.)

Even in the information era we live in, information is still carried to most South Africans through mass media sources (radio, newspaper, TV, magazines, etc) rather than alternative and new media forms (internet, social media, etc).  Therefore the media‟s social responsibility in promoting free and fair elections, and facilitating participatory democracy includes the duty to inform, educate and empower, and increasing the quantity and quality of informed citizens who can participate in the growth and development of South Africa and its people.  Public interest and public trust should come before all else, even own rights like media freedom and freedom of expression.

To this end, the ACDP believes it‟s not sufficient for the media to merely ensure their reported information on government announcements is correct. Instead, reporting should be fair, truthful and balanced by promoting a diversity of informed views. Doing so adds depth to an otherwise shallow and one-sided report.  Indeed, there is also no need for the media to act as a surrogate opposition to government because the plethora of opposition views are ready, willing and able, and trying desperately to make themselves heard.  Yet all too often, we are ignored, ridiculed or boxed by some sections of the media. Instead, by strengthening the voice of opposition parties and independent analysts, the media will be educating and informing the electorate, thus promoting free and fair elections and strengthening democracy.  This is immediately achievable.

 

  1. Electoral Laws:
  2. governing the conduct of parties before and on election day.

The ACDP agrees with those who contend that state organs are prone to abusing state resources to promote one party to the disadvantage of others.  This is done in a myriad of ways including:

  • advertising government achievements with costly full page ads on the eve of elections;
  • choreographing radio adverts promoting government achievements with voice-overs from executive members, that are then flighted immediately before or after paid-for radio adverts promoting the party with voice-overs from the same executive members this time wearing a party political hat;
  • radio and TV interviews with executive members where their party political positions are announced;
  • executive members displaying party regalia at televised government events, and/or actively promoting the party they represent during these events;
  • Municipal governments are often accused of using “due-process” to block campaign events of other political parties in public facilities and public open spaces, and of frustrating the planning or execution of these events in various ways including imposing

new and often onerous requirements for the events to be approved, withholding approval till the last minute, etc;

  • Promising to advantage voters or unduly influencing them to vote for a particular party, through the offering of food parcels, or stating that businesses will benefit when supporting a particular political party, for example.

In as much as Election Day in South Africa is a proud day of celebration, it is also frenetic, pressurised and intimidating too – for voters and opposition parties.  The larger political parties campaign with impunity on Election Day, and use their numbers and resources to intimidate and crowd out other parties and even voters.  This can easily, and must be addressed ahead of LGE 2016.

  • The area outside the voting station precinct becomes a battle-ground not only of ideas, but of numbers, insults, disruptions, stand-off‟s and even physical altercations, sometimes to the point where the Presiding Officer is so overwhelmed dealing with numerous issues that SAPS needs to intervene;
  • This worsens markedly once night falls, especially in informal settlement areas, townships and voting stations with inadequate street lighting. Voters who attempt to vote are often reluctant to the point where other political parties have to escort them into the voting station, or they simply leave without voting or stay away;
  • The voting station precinct has become a place for large crowds of political party supporters (often well over 50) to gather, who then turn it into what is explained as a festive atmosphere, but that merely swamps the precinct with a t/shirt wearing, singing, dancing, shouting mass of people whose actual impact on the voting process is more negative than positive;
  • The ACDP questions the wisdom of having voting stations close at 21h00 especially since Election Day is a public holiday, giving the overwhelming majority of voters the entire day to vote. The ACDP proposes the voting hours be changed to 07h00 – 19h00 with effect from LGE 2016;
  • Vehicles with loudhailers are used to call voters to vote for them, yet this message is simultaneously broadcast right into the voting station, with the effect that voters expecting to be protected from party political influence at that point, endure a barrage of political messaging while in the voting booth itself. Complaints to the presiding officer that this equates to prohibited conduct within the boundaries of the voting station, are dismissed with a shrug, even when escalated;
  • Political party campaigning on Election Day takes forms other than those already mentioned, including encouraging party members to call in to radio shows explaining who they voted for and why (in fact some radio stations encourage this), sending out text messages repeatedly during the day urging voters to vote for them before voting closes.

All of these, even individually, negatively impact perceptions of the freeness of elections – as political parties but particularly for voters who, once disenchanted, will disconnect from the democratic process.  This too can easily, and must be addressed ahead of LGE 2016.

  1. Training and capacity of IEC officials at voting stations:

It was the ACDP‟s experience in NGE 2014, that too few IEC officials at Voting Stations had the requisite training and/or demonstrated the requisite political neutrality to deal with complaints and disputes or to apply the Electoral Act in a free, fair and consistent manner.  The ACDP experienced numerous instances of unfettered party agent interference in the voting process inside the voting station to the point of impersonating  IEC officials, officials who interfered with or unduly influenced the voting process of voters with physical disabilities or did not conduct themselves in a politically neutral way, party agents not being allowed to oversee this process, officials who had to be trained and re-trained on the day on the use of the scanner, officials with sight impairments conducting ballot counting, party agents being refused entry into the voting station just prior to its closing, party agents being locked out of the counting venue after a comfort break, officials who refused to recount ballots after the results slips didn‟t balance. Complaints, disputes or objections lodged with the Presiding officer are not always dealt with or decided in a consistent manner and/or timeously, thus impacting the perception of the fairness of the election process.

  1. Voting station equipment:

In many instances, insufficient scanners were sent to voting stations or were sent late so that voting stations opened late and/or operated slowly.  In other cases, insufficient ballots or boxes were provided to voting stations, far fewer than required by the voters roll segment for that voting station. Many temporary voting stations (tents, for example) had no means of securely storing full ballot boxes. Many of these tents also used generators for electricity, but they offered inadequate lighting for officials, voters and party agents to confidently and safely fulfil their roles. When these generators failed (by running out of petrol) sometimes repeatedly, the voting station was plunged into darkness, repeatedly, so that voting and counting was conducted via cell-phone light only.

These factors too, even individually, have a serious impact on perceptions of the freeness and fairness of elections, and lead to the same voter disenchantment and disconnect already mentioned.  This can easily, and must be addressed ahead of LGE 2016.

  1. Political campaigning on Election Day

The ACDP has previously contended that political Parties campaign with impunity on Election Day.  Yet perhaps a lesson can be learned from Mozambique‟s Election Law (7/2007) that provides, inter alia, for the presidential and parliamentary elections, that campaigning starts 45 days before the Election Day and ends 48 hours ahead of Election Day.

The ACDP wishes to draw attention to two features of their law – that campaigning ends (48 hours before) and that this prohibition is strictly enforced.

As observers including IEC officials will confirm, this law is obeyed by political parties contesting their elections and welcomed by the electorate who aren‟t badgered incessantly, even harassed to the point of being discouraged from voting. The IEC and NPLC can consider various forms of implementation including dropping it to 24 hours before, imposing an all-out prohibition of party presence and activity on Election Day, to limiting the number of t/shirt wearing party workers allowed outside each Voting Station (to say 5 or 10). Certainly, prohibiting SMS‟s and loud-halers on Election Day is a must, given our Electoral Law.  The ACDP strongly recommends that this be considered for implementation in LGE 2016 and beyond.

RESPONDING TO PROPOSALS FROM OTHER PARTIES

ANC PROPOSAL FOR ONE SINGLE ELECTIONS FOR ALL THREE SPHERES

The ACDP believes, on balance, that this proposal should not be supported for the following reasons:

  • While having a single election may be financially viable in terms of campaigning costs and resources for political parties and the IEC, the practical implications for the IEC of having to administer one electoral process comprising thousands of candidates as MP‟s, MPP‟s, PR and Ward Councillors for all registered political parties for the National assembly, nine Provincial Legislatures and 283 Councils at one time, both ahead of and after the elections, would thoroughly overburden the IEC and ultimately lead to a delayed start to the new term of office.
  • We also believe it would overburden political parties, especially those that are smaller, in terms of nominating these thousands of candidates at one time, and having to contest across the country ward by ward.
  • By disadvantaging smaller political parties in this way, to the point of making it unviable for them, one is undermining the multi-party democracy principle in the Constitution.
  • Furthermore, it would easily be perceived as undermining even contradicting the Chapter 3

Constitutional principles that “government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.”

DA‟S PROPOSED “FREE AND FAIR ELECTIONS BILL”

Whilst we recognise and support in-principle the broader intent of the proposed bill, we wish to highlight the following:

  • Since much of what it contemplates is already provided for in the current Act, it may well be more efficient to seek amendments to the Act itself in the first instance.
  • The ACDP believes the „election period‟ as defined in the proposed bill, of nine months, is too long and would need to be shortened to a more workable three month period from, say, the announcement of and to the Election Day itself. It is imperative for government to constantly and increasingly educate and inform the citizens of its progress, achievements and failures. It does so in the manner anticipated in the proposed bill. Not doing so for nine months would be a disservice to the citizens.
  • It is already a duty of the Broadcasting Complaints Commission of South Africa to monitor broadcasts, and to receive and act on complaints in that regard. We don‟t believe this duty should be duplicated.

In conclusion, we wish to again thank the IEC for convening this seminar, and trust that our contribution was helpful, and that our recommendations will receive a favourable response both from other parties and from the IEC.

 

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