AmaBhungane Centre for Investigative Journalism comments on the draft

Electoral Laws Amendment Bill, 2020 (“Bill”)

29 January 2021

1. Introduction

1.1. This submission is made by the amaBhungane Centre for Investigative

Journalism (“amaBhungane”).

1.2. AmaBhungane is an independent, non-profit company founded in 2009 to

develop investigative journalism so as to promote free, capable and worthy
media and open, accountable, just democracy. This submission is made
under our advocacy mandate, which is to help secure the information rights
that investigative journalists need to do their work.

1.3. As amaBhungane practises investigative journalism, we are ideally placed

to identify legal, policy and practical threats to the information flows that
are the lifeblood of our field. We have worked on information rights matters
of direct benefit to investigative journalists and the public at large since
2010.

1.4. We make this submission to present our concerns that the proposed
amendments to the Electoral Act 73 of 1998 (“the Act”) contained in the Bill
have the potential to hamper the media’s ability to access information,
namely the voters’ roll, with the result that the media could be impeded
from performing properly its watchdog role in relation to elections. This has
an impact on the media’s enjoyment of its right to freedom of expression.

1.5. In addition, the proposed amendments contain an overbroad provision that

may be used to limit the ability of political parties and independent
candidates to scrutinise the voters’ roll for anomalies and potential fraud.

1.6. AmaBhungane appreciates that these proposed amendments are

motivated by concern for the privacy of voters’ personal information. We
do not suggest that these concerns are unfounded. In fact, we agree that
voters’ personal information should be protected from misuse.

1.7. However, our view is that the Bill chooses mechanisms to protect voters’
information that have the effect of removing legitimate access to the voters’
roll. In doing so, the Bill goes too far, needlessly so.

 1.8. Our view is that it is possible to balance the privacy of voters in a manner
that preserves the ability of the media and political parties (and
independent candidates) to scrutinise the voters’ roll. In this submission,
we provide legislative drafting suggestions that would achieve this balance,
by:

(a) allowing for public access to the voters’ roll to those engaged in the
work of detecting potential fraud; and

(b) by specifying clearly what information may be redacted from voters’

rolls in order to protect privacy.

1.9. In this submission, we will firstly identify the relevant provisions of the Bill
that are of concern. We will then analyse them, setting out our reasons for
concern and proposing solutions.

1.10. We confirm that we are willing to make oral submissions before the
Committee should we be requested to do so.

2. Relevant provisions of the Bill

2.1. We do not take issue with the insertion of references to ‘independent

candidates’ in section 8(b) and (c), as was required by the Constitutional
Court’s judgment in New Nation Movement NPC and Others v President of
the Republic of South Africa and Others.1

2.2. Our concerns relate to the following aspects of the Bill:

2.2.1. The deletion of section 16(2) in section 8(a), which has the effect
that access to the voters’ roll for any person other than members of
political parties and independent candidates is only possible by way of
inspection at the designated electoral offices or through a time-
consuming and laborious Promotion of Access to Information Act
(PAIA) process; and

2.2.2. The effect of the proposed new section 16(5) contained in

section 8(d), which is vague and provides for a wide discretion to be
conferred upon the chief electoral officer to decide which information
must be redacted. Excessive redaction may unreasonably restrict the
ability of political parties and independent candidates to monitor the
accuracy of the voters’ roll.

1 [2020] ZACC 11; 2020 (8) BCLR 950 (CC); 2020 (6) SA 257 (CC).

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 2.3. These will be considered in further detail below.

3. The proposed deletion of section 16(2) of the Act

3.1. Section 16(2) of the Act currently provides: "The chief electoral officer must
provide a certified copy of, or extract from, a segment of the voters’ roll as
it exists at that time, to any person who has paid the prescribed fee."

3.2. The effect of deleting this section is that in order to inspect the voters’ roll,
members of the public would need to attend at offices of the Independent
Electoral Commission (IEC) in person to inspect physical copies of the
voters’ roll during prescribed office hours. An alternative proposed by IEC
officials in meetings of the Portfolio Committee on Home Affairs was that
copies of the voters’ roll can be requested using PAIA.

3.3. To have these two procedures as the only avenues of access is untenable.
The former does not serve the needs of members of the public engaged in
detecting and exposing electoral fraud; the latter is problematic as a matter
of law. Both of these issues are discussed below.

3.4. This group of “election watchdogs” referred to in this submission includes

the media (by which we mean any person practising journalism, including
so-called citizen journalists). While our mandate pertains to the media
specifically, we note that this group may also include other civil society
actors — academics, researchers, and activists — whose work concerns
electoral probity.

3.5. We set out the media’s role below, before describing the deficiencies in the
two proposed procedures by which to inspect the voters’ roll.

3.6. The media’s “watchdog” role in relation to elections

3.7. The role of the media as a “watchdog” of elections is well established.

Scholars have pointed out that a free and independent media deters
manipulation of elections in two ways: directly, by journalists’
investigations that expose electoral fraud; and indirectly, by giving
political parties, civil society organisations and international observers
a channel by which to disseminate their views on whether the elections
were free and fair.2

2 NicholasKerr and Anna Lührmann, “Public trust in elections: The role of media freedom and
election management autonomy”, Afrobarometer (2017) accessed at
https://media.africaportal.org/documents/afropaperno170_public_trust_in_elections.pdf.

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 3.8. While journalists play a vital role in reporting on elections as and when
they occur, the work of journalists is not limited to election years.
Rather, they follow the work of the IEC and other role-players on an
ongoing basis, providing important information to the electorate
regarding the functioning of electoral systems. In doing so, they can
instil public confidence in the electoral process, which bolsters
perceptions of its legitimacy. The legitimacy of elections is necessary
for a healthy democracy.

3.9. Part of the work of investigative journalists is to undertake the laborious

task of poring through official records to detect anomalies. In the
context of elections, this exercise could unearth evidence of
manipulation of the electoral process. Even small discrepancies could
act as clues that result in the exposure of greater malfeasance. It is for
this reason that journalists should be given as much access as
possible, subject only to essential reasonable limitations, to information
relevant to the conduct of elections.

3.10. The problem with physical inspection of the voters’ roll at IEC offices

3.10.1. If section 16(2) is deleted from the Act, the roll may be available for
inspection during office hours at the IEC’s head office, while the
provincial and municipal segments may be made available for
inspection at designated locations.

3.10.2. This access is not sufficient to satisfy the purposes set out above.
The IEC itself states that the voters’ roll contains some 20 million
names.3 Even discrete segments may run into many millions of names.
Scrutiny of the voters’ roll is painstaking work, and may well require
computer-assisted analysis, such as search functions. This is not
possible if only physical inspection is permitted.

3.10.3. It also follows that those who are close to the relevant offices are
more easily able to access the voters’ roll. This advantages those in
urban areas, while unfairly prejudicing those who live and work far from
urban centres.

3.10.4. We have no objection to allowing access through this mechanism in

principle. However, if this is the only means by which to inspect the
voters’ roll, the effect would be that access would be provided in name
only. This cannot serve the purposes of the Act, nor electoral
legitimacy in general.

3 See https://www.elections.org.za/content/Voters-Roll/About-the-Voters--Roll/.

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 3.10.5. What is required is meaningful access. In other words, in addition to
in-person physical inspection, there must be means to obtain physical
and/or electronic copies of the voters’ roll and scrutinise them without
temporal or geographic restrictions.

3.11. The problem with requesting a copy of the voters’ roll in terms of
PAIA

3.11.1. At meetings of the Portfolio Committee of Home Affairs and the

National Assembly plenary hearing, IEC officials have suggested that
the removal of section 16(2) does not diminish opportunities for
access, as copies of the voters’ roll may still be requested from the
IEC. A report by the Parliamentary Monitoring Group provides a
summary of IEC Commissioner Mr Mosotho Moepya’s justification for
section 8 of the Bill:

“The intention was not to withhold any record on the voters’ roll that is
used for legitimate purposes. It is a misunderstanding to say the only
way that the voters’ roll can be accessed is in-person at an IEC office.
It can be accessed on the IEC’s website and by contacting the IEC call
centre. Section 8 of the Electoral Laws Amendment Bill was intended
to stop the abuse of accessing the personal information of voters,
particularly the identification numbers of voters, in ways that do not
further or enhance electoral processes and practices. The information
remains available for the media”.4

3.11.2. We assume that Mr Moepya's reference to the IEC website and call
centre reflects the current position where an individual can check their
registration status by providing their identity number. This will not
assist journalists and others seeking to unearth voter fraud. Access to
the entire voters' roll or whole segments is required.

3.11.3. Regarding Mr Moepya’s further comment that the "information

remains available for the media", it is not clear whether he is
suggesting that the IEC will provide the voters’ roll upon request in the
absence of a legislative provision authorising it to do so, or to a request
made in terms of PAIA.

3.11.4. Assuming that it is the latter, it is not clear how requesting the voters’
roll under PAIA protects personal information from abuse any more
than the existing provision. Rather, using PAIA has the potential to
introduce legal uncertainty and delays, both of which do nothing to
further access to the voters’ roll nor advance voters’ privacy. Removal

4 Source: https://pmg.org.za/committee-meeting/31652/

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 of the existing section 16(2) therefore serves no practical or legal
process. This is for the reasons below.

3.11.4.1. First, as the information on the voters’ roll contains personal

information of third parties who are natural persons held by a
public body, section 34 of PAIA would apply. Under section 34(1),
the request would have to be refused – unless any of the
circumstances in 34(2) apply. In this case, as the voters’ roll would
be “publicly available” in the sense of being open for inspection at
the IEC’s offices in terms of section 16(1) of the Act,
section 34(2)(c) would apply. Consequently, the request for
access to the voters’ roll “may not be refused”. The operation of
PAIA is therefore no different to section 16(2) of the Act. This
means that under PAIA, there is therefore no gain for privacy of
voters in removing section 16(2) of the Act.

3.11.4.2. Secondly, there is much to be lost if requests can only be

made through PAIA. This includes the introduction of a 30-day
time period within which to respond to the request, which may be
extended further. This introduces a potential for needless delay
which could hamper election scrutiny if, for instance, suspicions
of voters’ roll fraud arise at a time that is close to an election. In
addition, the PAIA process is more burdensome and involves
more steps than the simple, elegant section 16(2).

3.11.4.3. A justification for the removal of section 16(2) was provided

based on bringing the Act in line with PAIA as it is the flagship
access to information legislation. However, that PAIA exists is no
bar to having specific access provisions in other legislation. An
example of this is section 26(2) of the Companies Act, 71 of 2008,
which provides for access to share registers of companies. That
provision allows requesters to rely directly on the Companies Act
when making a request, or to make one under PAIA. It is clear,
then, that having a specific, fit-for-purpose access provision need
not preclude the use of PAIA. There is therefore no need to
remove section 16(2) of the Act. Incidentally, in our experience, it
is simpler and more effective to rely directly on section 26(2) of
the Companies Act rather than using PAIA when requesting
access to share registers, precisely due to the problems with
PAIA set out above.

3.11.5. If section 34 of PAIA applies in the manner set out above, the only
difference between deleting section 16(2) and retaining it is that
deleting would make it more difficult and time-consuming for the public
– including election watchdogs – to gain access to the register. PAIA

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 does not provide for any sorting mechanism to enable the IEC to
withhold access from those wishing to “abuse” voters’ personal
information any more than section 16(2) does. There is accordingly no
benefit for voters’ privacy. It is therefore profoundly irrational to delete
section 16(2) of the Act.

3.12. Our proposed solution

3.12.1. We propose that section 16(2) of the Act be retained, but amended
to provide for access only for election purposes and in accordance with
the provisions of the Protection of Personal Information Act, 4 of 2013
(POPIA). POPIA grants those with a legitimate purpose a right to
access and process personal information, subject to prescribed
safeguards. It prescribes the conditions that apply to the processing of
personal information, and imposes sanctions for abuse. Section 7 of
this Act exempts journalists (among others) from the provisions of
POPIA “to the extent that such an exclusion is necessary to reconcile,
as a matter of public interest, the right to privacy with the right to
freedom of expression”. There is no reason why electoral laws should
go further than POPIA where concerns arise with regard to personal
information.

3.12.2. A further alternative recommendation would be to extend the

criminal sanction provided for in section 16(4) to include any person
who uses the voters’ roll for any purpose unrelated to the conduct of
elections. This could address concerns that the voters’ roll is being
abused for commercial gain.

3.12.3. These proposed solutions allow those who wish to access the voters’
roll in order to “further or enhance electoral processes and practices”
to have access, while at the same time creating a layer of protection
against misuse and abuse by unscrupulous actors. Put differently,
these solutions will provide the filtering mechanism which PAIA does
not have.

4. The proposed insertion of section 16(5)

4.1. Political parties and independent candidates have an interest in the proper
conduct of elections, and are well-placed to detect manipulation of the
voters’ roll. Indeed, it was through the intervention of independent
candidates that it was discovered that voters were registered in incorrect

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 districts, as was described in the Constitutional Court judgment of Electoral
Commission v Mhlope and Others.5

4.2. The information that political parties and independent candidates can
access in the roll: names, identity numbers (which include dates of birth),
and addresses, are all very useful when trying to determine irregularities in
the voters’ roll. Moreover, a strong safeguard exists where it is an offence
in terms of section 16(4) to use the voters’ roll for a reason unrelated to
elections. Therefore, our view is that there should be no redaction of these
voters’ rolls. Rather, other safeguards should apply to prevent misuse.

4.3. However, should it be deemed necessary that some information be

redacted from the voters’ roll to protect voters’ personal information, we
propose that this be limited to certain digits of the identity number,
excluding the first six digits, being the date of birth. Under no circumstances
should full identity numbers be redacted.

4.4. At the various meetings of the Portfolio Committee on Home Affairs

concerning the Bill, there appeared to be suggestions from IEC officials
that this is indeed the information that will be redacted, namely, portions of
identity numbers.

4.5. However, this is not what the Bill states. The Bill itself is overbroad in that
section 8(d) provides that the chief electoral officer “must” redact “any”
information on the voters’ roll “as may be necessary for the protection of
personal information of voters against unreasonable disclosure”. The
provision affords the chief electoral officer a wide discretion to determine
what information should be redacted.

4.6. What is the need for this discretion? The categories of voters’ information
that appears on the voters’ roll supplied to political parties and independent
candidates are well-established. They do not change. There are therefore
no unique circumstances that can arise warranting the exercise of the chief
electoral officer’s discretion on a case-by-case basis. It should therefore be
for the legislature, not the chief electoral officer, to determine what
information is capable of being redacted in the interest of voters’ privacy.

4.7. It cannot be that IEC officials’ stated intention can be relied upon when
crafting legislation. The very purpose of legislation is to authorise exercises
of power, but at the same time, setting limitations on that power in the public
interest. It is not good practice to legislate based on the good faith
demonstrated for any particular incumbent in public office. Rather,
legislation should be crafted with some degree of scepticism.

5 [2016] ZACC 15.

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 4.8. A sceptical view of this provision is that it could be used to hide important
identifying information on the voters’ roll from political parties and
independent candidates, including full names, ID numbers, dates of birth,
and addresses, either generally or in relation to specific voters. This could
be done to obscure voters’ roll fraud or other electoral impropriety from the
view of political parties and independent candidates so that they cannot
expose it and hold relevant persons to account.

4.9. There is no need to confer a broad discretion, as section 8(d) seeks to do.
The only discretion that should be afforded is whether or not to redact
clearly described information (that is, digits from the identity number) at all.
The potential pitfalls described above can be avoided in the simplest of
ways: the provision should state clearly and specifically which personal
information can be redacted.

4.10. Our proposed solution

4.10.1. Practically, the voters’ roll referred to in section 16(3) of the Act
contains three types of personal information: names, identity numbers,
and addresses. All three are important when determining whether
fraud in relation to the voters’ roll has taken place. The proposed
amendment limits the access of political parties to an unredacted
voters’ roll in a way that undermines their right to check its accuracy
and integrity. There is no reasonable justification for this approach. The
proposed new access provisions are not suited for that purpose. We
therefore propose that this clause not be inserted into the Act.

4.10.2. Alternatively, should it be deemed necessary to insert a clause of

this nature into the Act, we note that it is wholly unclear what is meant
by “unreasonable disclosure”. The provision should state explicitly
what information can be redacted. Our view is that all three types
mentioned above are essential, and that it is not feasible to redact
names and addresses as doing so would undermine the purposes of
providing the voters’ roll to political parties and independent
candidates. Nevertheless, it may still be possible to monitor voters’
rolls for fraud using dates of birth instead of full identity numbers.

1. Legislative drafting suggestions

1.1. We propose the following drafting suggestions in order to give effect to the
recommendations above. Insertions are indicated by underlining while
deletions are indicated by strikethrough.

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16. Publication and copies of voters’ roll

(1) A copy of the voters’ roll as it exists at any time must be available for
inspection during office hours at the Commission’s head office, and the
provincial and municipal segments of the voters’ roll must be available
for inspection at the times and venues mentioned in a notice published
by the chief electoral officer in the Government Gazette.

(2) The chief electoral officer must provide a certified copy of, or extract
from, a segment of the voters’ roll as it exists at that time, to any person
who has paid the prescribed fee, provided that such person may use it
only for election purposes and in accordance with the provisions of the
Protection of Personal Information Act, 4 of 2013.

(3) Notwithstanding subsection (2), the chief electoral officer must, on

payment of the prescribed fee, provide copies of the voters’ roll, or a
segment thereof, which includes the addresses of voters, where such
addresses are available, to all registered political parties and
independent candidates contesting the elections.

(4) The voters’ roll with addresses referred to in subsection (3) may only be
used by political parties and independent candidates for election
purposes and anyone using such voters’ roll for other purposes is guilty
of an offence and liable on conviction to a fine or imprisonment for a
period not exceeding one year or to both a fine and such imprisonment.

(Alternative proposal: subsection 4)

(4) The voters’ roll with addresses rolls referred to in subsection (2) and
subsection (3) may only be used by political parties and independent
candidates for election purposes and anyone using such voters’ roll for
other purposes is guilty of an offence and liable on conviction to a fine
or imprisonment for a period not exceeding one year or to both a fine
and such imprisonment.

(Alternative proposal: subsection 5)

(5) The chief electoral officer must may redact up to five digits of the identity
numbers of voters, excluding the six digits indicating the voter’s date of
birth, appearing on the voters’ roll provided to a registered party or an
independent candidate in terms of subsection (3) as may be necessary
for the protection of the personal information of voters against
unreasonable disclosure.

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