SELECT COMMITTEE ON SOCIAL SERVICES 19 OCTOBER 2010

SELECT COMMITTEE ON SOCIAL SERVICES 19 OCTOBER 2010 PRESENTATION ON THE LOCAL GOVERNMENT: MUNICIPAL ELECTORAL AMENDMENT BILL, 2010

TABLE OF CONTENTS • Introduction • Background • Problem statement • Proposed Amendments

1. Introduction • Following on the 2006 Local Municipal and 2009 National and Provincial election debriefing reports and sessions, attention was given to those areas of the current legislation that may need remedial amendments. • The Electoral Commission, acting in terms of section 5 of the Electoral Commission Act, 1996, reviewed the current legislation, in particular the Local Government: Municipal Electoral Act, 2000, and, after having consulted, inter alia, the NPLC made recommendations to the Minister of Home Affairs for amendments to this Act. • The Minister of Home Affairs thereupon introduced MEA Bill, 2010 now serving before this Committee.

2. Background The main objective of the Bill is to amend the Local Government: Municipal Electoral Act, 2000, with regard to the following: • Insertion of a prescribed election timetable outline; • Revision of provisions relating to nomination of candidates; • Insertion of new provision to regulate central payment of prescribed deposits by parties contesting an election; • Revision of powers of presiding officers to alter boundaries of voting stations when necessary; • Revision of provisions regulating the number of party agents permissible in a voting station; • Clarification of provisions relating to assistance to voters;

2. Background (cont’d) • Insertion of new provision to allow for special votes and the procedure related thereto; • Enhancement of the powers and functions of the Commission and the Electoral Court in relation to the determination and declaration of results; • Revision of provisions relating to objections material to results of an election and the procedure related to the submission, handling and resolution of such an objection by the Commission and/or Electoral Court.

3. Problem Statement 1. The 2009 National and Provincial Debriefing Sessions identified certain areas in the current legislation that need remedial or enhancing amendments. 2. These sessions offer the Commission with an opportunity to appraise the effectiveness of the current regulation of elections on a continuous basis. 3. The Commission is of the view that for efficient preparation and management of the 2011 local government elections, we needed to better deal with the following areas:

3. Problem Statement (cont’d) • The Act makes reference to an election timetable but there is no specific outline of such a timetable. The current Act does not specifically link any act or submission of documents to a specific date and time that may be envisaged in the timetable. Previously, the Commission used the outline prescribed in the Electoral Act, 1998. • Save for provisions of the Code, there is no obligation in the current Act for the representatives of parties/candidates to bind themselves to the Code and declare that none of the candidates are not disqualified from standing for election (also with independent candidates)

3. Problem Statement (cont’d) • In terms of section 158(1) of the Constitution, 1996, membership of a council is limited inter alia to a person who qualifies to vote i.t.o section 157(5) of the Constitution, read with section 7 of the Act. However, the Commission does not have the power to remove a person who is not on that municipality’s segment of the VR from the party list or if he/she is an independent candidate. • Parties have submitted that the requirement for “certified” copies of ID’s is onerous and unnecessary as the Commission has other means of confirming details of candidates.

3. Problem Statement (cont’d) • The Act, in particular section 14(1), does not allow for payment of deposits for candidates contesting in an election to be paid centrally. This obviously creates an administration problem for parties who intend to contest an election in different municipalities throughout the country. • Once boundaries are determined by the PO i.t.o. section 21, the current Act does not authorise him/her to re-determine such boundaries if it is necessary to ensure proper control and security at that VS. This can, however, be done in the NPE i.t.o. section 66(3) of the Electoral Act.

3. Problem Statement (cont’d) • Section 39 limits party agents to two per voting station. This would equally be applicable to large voting stations like Joubert Park. The problem would be where parties want to have a presence in all rooms of such large VS. • Section 48 is currently not clear on the responsibilities of voting officers w.r.t. assistance to voters, in particular, voters with physical disabilities and which disabilities may be included in this category, and who can assist a voter who cannot read (illiteracy).

3. Problem Statement (cont’d) • The current section 55 prohibits the Commission from making any special arrangements for voting on any day other than voting day. This essentially excludes persons like security officers deployed during elections from exercising their right to vote. At the same time, the security and integrity of elections/results are of pivotal importance. • Section 5(1)(n) of the ECA, obligates the Commission to declare results of an election within 7 days. The Commission may, because of certain circumstances beyond its control need more than 7 days to declare results. There is no exception and this may invariably and unnecessarily lead to by-elections.

3. Problem Statement (cont’d) • The current section 65 is not clear with regards matters that may premise objections material to results, the extent of the powers of the Commission and the import of decisions that the Commission may take. • Against the backdrop of the responsibility to ensure and promote conditions that are conducive to free and fair elections, the current Act is sometimes not specific enough to authorise the Commission to act in a particular manner to protect the freeness and fairness of the elections.

4. Proposed Amendments: Clause 1 • Current: Section 11 of the Act requires the Commission to compile and publish an election timetable. Unlike the EA, this Act does not have a pro forma election timetable. • Amendment: Seeks to insert a new schedule with a pro forma election timetable, and to regularise the inclusion in the timetable of a time and day by which acts must be performed and/or documents submitted in terms of the Act.

clause 2 (section 14: PR) • Current: Unlike in the EA, parties wanting to contest a PR local government election are required to only submit their notice of intention to contest, a party list and proof of payment of the prescribed deposit. The copy of the ID attached to the party list must be certified. • Amendment: The clause adds the following- (a) that when registering to contest the election, the authorised representative of the party must submit an undertaking to bind the party, supporters, members, candidates to the Code and a declaration that all candidates qualify; (b) that the copy of the ID need not be certified; (c) that the candidate on the list must be registered as a voter on that municipality’s segment of the VR

Clause 3 (section 17: wards) • Current: Parties and independent candidates not required to submit a declaration and an undertaking. • Amendments: In addition to the current requirements, the nomination must be accompanied by a declaration that the candidate is not disqualified from standing in the election, and an undertaking to be bound by the Code. Copy of ID need not be certified. • Current: If parties or independent candidates omit to submit certain required documents, there is no second opportunity to resubmit such documents. • Amendments: EC will be required to notify the party or independent candidate of such omission, and indicate the cut-off date for submission of omitted documents.

Clause 4 • Current: section 14 of the Act requires parties to pay the prescribed deposit at the MEO office. • Amendment: Parties participating in elections in more than one municipality may make payment of such deposit at one central point. • Note: That EC requests that clause 4 be swapped with clause 3. This is based on the fact that the provisions of the new section 17A will be dealing only with PR candidates, and would therefore be logical to follow on section 14 in the Act.

Clause 5 • Current: Once the PO has determined and demarcated the boundary of a VS i.t.o. section 21, there is no provision that allows for the changing of the boundary should changed circumstances necessitate that in order to secure proper control and security at the VS. EA has such a provision. • Amendment: The PO, after consultation with party agents and members of the security services present at the VS, will have authority to re-determine and re-demarcate the boundary.

Clause 6 • Current: In terms of section 39, appointment of party agents limited to 2 per party and one per independent candidate per VS. • Amendment: In cases where a VS caters for very large number of voters, and voting process is divided into streaming in separate rooms, the EC may allow more than two agents for parties and more than one agent for independent candidates.

Clause 7 • Current: Section 48 prohibits a PO or any voting officer from assisting a voter who requires assistance due to physical disability as opposed to those who are unable to read. This category of voters does also not expressly include persons who are blind or have other visual impairments. • Amendment: The PO, if and when asked, may assist the voter with a disability, in voting.

Clause 8 • Current: Section 55 does not allow for any special votes. Voting must occur on voting day and in the voting district where a voter is registered. • Amendment: Any person who will not be able to vote on voting day in his/her VS may apply to vote on a day prior to voting as shall be determined by the EC. However, such a voter must still vote in his/her VD.

Clause 9 • Current: Section 64 obligates the EC to determine and declare election results within 7 days (section 5(1)(n) of ECA). No exceptions are permitted. • Amendment: Should the EC, through circumstances beyond its control, need more than 7 days to declare results, then it can invoke this amendment on application to and approval by the Electoral Court.

Clause 10 • Current: I.t.o Section 65, any interested party may lodge an objection with the EC concerning any aspect of an election that is material to the declared result. EC must then decide the objection within 3 days and reject the objection, amend or rescind the result. A party aggrieved by the decision of the EC may appeal to the Electoral Court. • Amendment: This will define what “any aspect of an election” means, enhance powers of the EC when deciding an objection, review the period within which the objection must be disposed of, clarify the powers of the Electoral Court, and most importantly, re-regulate the process to enhance effectiveness and fairness.

SELECT COMMITTEE ON SOCIAL SERVICES 19 OCTOBER 2010