Preliminary Statement SA Elections SADC Lawyers’ Association

The SADC Lawyers Association (SADCLA) Preliminary Statement on the Election Observation Mission to

KwaZulu-Natal Province, South Africa

08 May 2014

  1. Introduction

The SADC Lawyers Association is an independent voluntary association made up of law societies, bar associations and individual lawyers from the 15-member Southern African Development Community (SADC) region. Its vision is to uphold human rights and respect for the rule of law, promote and uphold the independence of the judiciary and promote the protection of fundamental liberties. In that regard, election observation and monitoring is part of the strategy of SADCLA to contribute towards the development of just and democratic societies in the region and the promotion of free, fair and credible elections as conditions for durable peace and sustainable development.

The SADCLA observed the 2014 South African Provincial and National elections with a focus on KwaZulu- Natal, in partnership with the KwaZulu-Natal Christian Council (KZNCC), a provincial fellowship of churches and church-based organisations established in 1996. With SADCLA’s regional legal expertise and KZNCC’s deep understanding of the local context, this mutually supportive partnership provided opportunities for the cross-fertilization of ideas and sharing of experiences, which enhanced the strength of the Election Observation Mission. Each partner will release separate mission statements and reports in line with individual organizational strategic objectives.

  1. Background

The Province of KwaZulu-Natal (KZN) has a long-standing history of politically motivated violence and intolerance. During the late 1980s and early 1990s, thousands of people died, with thousands more injured, rendered homeless or reduced to internal refugees while fleeing their homes as political violence engulfed most of the Province. While there has been a significant downturn in the levels of political violence over the twenty (20) years of democratic rule, the Province is still susceptible to violence as witnessed in the recent murders of community activists and other forms of violence in certain flashpoint areas. It is against this background that the elections were held, and that the SADCLA was motivated to focus its Election Observation Mission to promote free, fair and credible elections as a means of supporting peace processes in the Province. Consistent with this and its strategic objectives, SADCLA expressed its intention to observe the 2014 national and provincial elections to the Independent Electoral Commission (IEC). SADCLA wishes to express its gratitude to the IEC for inviting and welcoming its Election Observation Mission to observe the
national and provincial elections. SADCLA is also indebted to the people of KwaZulu-Natal Province and its partner, the KZNCC, for extending a warm welcome and hospitality to the Election Observation Mission.

The objectives of this Election Observation Mission were to:

  • Observe and monitor the general elections in KwaZulu-Natal Province and assess how the national and regional (SADC) standards governing democratic elections were complied with, in order to ensure the achievement of free and fair elections.
  • Promote understanding and awareness of the state of democracy, electoral laws and processes, as well as human rights in South Africa, particularly in the KZN Province.
  • Promote principles of democratic governance, including free, fair and credible elections as a means to building sustainable peace in KwaZulu-Natal Province.
  • Produce a report, which will inform future democratic processes and contribute to the strengthening of peace-building processes in the Province.

The SADCLA drew from its pool of experienced legal practitioners and other seasoned civil society organisations from ten (10) countries in the SADC region. The strong 30 member Observation Mission comprised of observers from the following SADC countries: Botswana, Democratic Republic of the Congo (Congo), Lesotho, Malawi, Swaziland, Zimbabwe, Tanzania, Zambia, Mauritius, and the host country, South Africa. The Observation Mission was deployed in the following areas of KwaZulu-Natal: eThekwini Metropolitan Municipality – Durban; Ugu District Municipality – Port Shepstone and Mdoni; uMgungundlovu District Municipality – Pietermaritzburg; uThekela District Municipality – Ladysmith; Okhahlamba; Zululand District Municipality – Ulundi; uMkhanyakude District Municipality -The Big Five Falsy Bay; iLembe District Municipality – KwaDukuza; and uThungulu District Municipality – Empangeni.

The Mission was led by Boma Ozobia, former president of the Commonwealth Lawyers Association and current partner at the Nigerian law firm Sterling Partnership. She brings a wealth of expertise and experience from other election observation missions in other parts of the African continent.

The Observation Mission employed a multi-pronged information gathering strategy which included review of the constitutional and legal framework governing elections in South Africa, consultative discussions with key stakeholders such as the IEC, political parties, Chapter 9 institutions, particularly the South African Human Rights Commission (SAHRC), Civil Society Organisations, other Election Observation Missions, attending campaigns and perusal of the national and local mass media. In addition, prior to deployment, Observers participated in a mandatory briefing session and workshop co-hosted by the SADCLA and the KZNCC. These various methods enabled the Observation Mission to gather comprehensive information and to critically assess the manner in which the 2014 national and provincial elections were managed and conducted.

  1. Constitutional and Legal Framework

The Mission’s observation process was anchored on the constitution and legal framework governing democratic elections in South Africa as well as various regional and international electoral instruments.

Nationally and provincially, the electoral process in South Africa is governed principally by the following pieces of legislation:

– The Constitution of the Republic of South Africa, 1996,

  • Electoral Act 73 of 1998 including Regulations as amended by: Local Government Municipal Electoral Act 27 of 2000; Electoral Laws Amendment Act 34 of 2003; Electoral Laws Second Amendment Act 40 of 2003; General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Act 55 of 2008; Electoral Amendment Act 18 of 2013.
  • The Regulations include: Regulations on the Accreditation of Voter Education Providers, 1998; Voter Registration Regulations, 1998; Regulations on the Accreditation of Observers, 1999; Election Regulations, 2004; Regulations Concerning the Submission of Candidate Lists, 2004
  • Public Funding of Represented Political Parties Act, 103 of 1999 and
    • Independent Broadcasting Authority Act, 153 of 1993

The SADC Principles and Guidelines Governing Democratic Elections are a notable instrument relevant to the work of the SADCLA Election Observation Mission.

The above constitutional and legislative framework on elections contributes to creating a conducive environment for free, fair and credible elections in the country, while also providing conflict management mechanism for election related conflicts. One of the key dominant characteristics of the political system in South Africa is the adoption of the proportional representation electoral system. Although the system has been criticized for its lack of direct accountability to the electorate, it has also been commended for its inclusive nature which guarantees the participation and representation of minority and disadvantaged groups including women, youth and people with disabilities.

  1. Preliminary Findings
  2. Pre-election environment

As SADCLA employed a short-term observation mission and was not on the ground during most part of the pre-election era, it relied on its strategic partner, the KZNCC which had deployed a long-term observation mission in the Province for information. SADCLA also monitored the pre-electoral environment through regular analysis of the news reports from the media. Meetings held with political parties and other stakeholders in the Province during this phase also enabled the SADCLA to gather sufficient information to be able to express an opinion about the pre-electoral environment prevailing in KwaZulu-Natal.

  1. Registration

Following announcement by the IEC, voter registration was undertaken in November 2013 and February 2014. The SADCLA notes with satisfaction reports that the number of registered voters has increased in this election, even though it is yet to be determined how many of those actually turned up at the polls. SADCLA also notes with satisfaction the manner in which the IEC managed the voter registration process in the Province. Political parties consulted by the SADCLA also expressed satisfaction with preparation and regular consultations.

  1. Special Vote

The special vote took place on 5 and 6 May 2014. According to reports, there were some glitches in some parts of the province with special voters not turning up to vote or IEC officials delaying to visit the special voters. However, the SADCLA noted the IEC’s commitment to ensuring that all those requiring assistance to vote in their homes would be

visited, however late. In addition, the SADCLA observers noted that the IEC went as far as calling voters on their phones to encourage them to come to the voting stations to cast their votes. SADCLA however also noted with concern that in other areas of the Province observed, there seemed to be a low turn-out of special voters. For example, in one polling station in the KwaMashu area observed by SADCLA, there were 32 special voters registered, however by closing of the polling station, only 13 people had voted.

  • Civic and Voter education

SADCLA noted with satisfaction the various voter education and information programmes undertaken throughout the Province in order to enhance participation and encourage voters to make informed choices. SADCLA commends the IEC and local Civil Society Organisations for the extensive coverage of voter education activities. SADCLA also wishes to encourage the provincial IEC and other provincial stakeholders to continue looking for creative means of disseminating information, especially in remote areas where there is no electricity to mount posters such as the villages around the Emthunzini area.

  1. Campaigning

The SADCLA notes with concern the apparent political intolerance among some members of various political parties in the Province, which has contributed to politically motivated violence in some areas. While, for the most part campaigning has been peaceful, the continued intimidation of political opponents remains a cause for concern. Intimidation goes against the letter and spirit of the electoral code of conduct that political parties signed and committed to upholding during the elections.

  1. Media coverage

The SADCLA notes with satisfaction the broad media coverage that political parties enjoyed through the South African Broadcasting Cooperation (SABC). SADCLA noted various election related-programmes and political party debates where parties were provided the opportunity to discuss matters of concern to the voters.

SADCLA has also taken note of the Electoral Court judgment ordering the Democratic Alliance (DA) to retract an earlier sms sent to potential voters regarding President Jacob Zuma’s Nkandla homestead. While SADCLA expresses no opinion on the matter, it wishes to note the maturity of South Africa’s judicial system that enables electoral disputes to be resolved speedily.

The SADCLA has also noted the ruling by the Independent Communications Authority of South Africa (ICASA) in favour of the SABC’s ban on an advert by the Economic Freedom Fighters (EFF). Again, while the SADCLA doesn’t express any opinion on the matter, it commends the constitutional institutions in the country that are able to respond to electoral conflicts speedily.

  1. Election Day

The SADCLA Mission observed that the polling day was generally calm and peaceful, with no major incidences of violence and intimidation. Generally, it appeared that the electoral machinery operated efficiently and smoothly. Many SADCLA Observer teams reported that voting in their

 

respective areas progressed well, although some concerns and inconsistencies were noted. These include, among others, the following:

–       Some polling stations opened late. For example the Pumulani polling station delayed opening due to the late arrival of electoral equipment in the form of a scanner. Similarly, electoral officials in the polling stations in KwaDukuza Town Hall and Grootvlei Primary School experienced problems with scanners, which delayed the voting process.

–       There seems to be different interpretations of section 24 of the Electoral Act, which requires voters to complete a form, section 24 form, when voting in a different Polling Station from where they are registered. In some Polling Stations, voters were allowed to vote, while in others they were sent to the stations where they were registered. This confusion was observed, among others, in the KwaDukuza Township Hall and the Stanger Correctional Services Voting Stations.

–       In some Polling Stations, there were voters who were assisted to cast their votes by people wearing party insignia. For example, in the Merlewood polling station near Port Shepston, elderly voters who were transported into the polling station by ANC supporters, were assisted to vote inside the polling booths by ANC members wearing ANC regalia. While the law allows assistance by any person of the voter’s choice, SADCLA notes with concern that this arrangement might compromise the secrecy of the assisted voter’s vote, their rights to a free choice and may possibly lead to intimidation.

–       Political intolerance was reported in one area where NFP supporters tried to blockade ANC supporters from entering the eMahlashini School. Members of the Police were called in to intervene and the crowd was dispersed.

–       A ballot box went missing in the Stanger Correctional Services voting station.

–       In the Durban CBD, SADCLA Observers witnessed about 30 ANC supporters singing and dancing in the street close to a polling station. In the Ndwedwe area, Observers also witnessed an event hosted by the ANC very close to the polling station called an inter- cultural festival. There were loud singing and music, which could possibly be heard from inside the polling station.

–       There were inconsistencies in attending to the elderly and pregnant women. While in some areas there was adequate assistance, in some Polling Stations no special assistance was provided.

–       In the Ndwedwe and other rural villages observed by the SADCLA, no wheelchair facilities were provided. This was different for urban areas where the Polling Stations were wheel chair accessible.

  • SADCLA Observers noted with concern that the ballot papers for the visually impaired, written in braille, provided numbers and not names of political parties. This necessitated a visually impaired voter to ask for the name of the party of their choice against the numbers provided on the ballot paper. This had the potential of compromising the secrecy of their vote.
  1. Gender and Human Rights

The Mission noted with satisfaction the fair representation of women and men in the polling stations visited. In some areas, the Mission noted higher participation of women voters than men. Generally from observation, there seemed to be more representation of women as electoral officials. For example, of the
12 Polling Stations visited in Ethekwini Municipality and surrounding environs by one of the SADCLA teams, 9 of the polling station Presiding Officers were women.

Apart from the above observations, no major human rights concerns have been reported that could negatively impact on the outcome of the election.

  1. Participation of Youth

The SADCLA wishes to commend the IEC for efforts taken to attract the young first time voters, the so-called “born frees”.

In the KwaMkhulu informal settlement, SADCLA observers noted a high number of youths voting. The same youths were also involved in high intensity campaigning immediately outside the polling station. At the YMCA polling station in the Durban CBD, there were long queues comprising predominantly of young voters, apparently from the nearby universities. The high numbers were attributed to young people voting in the area which they were not initially registered, which necessitated the completion of Section 24 forms to be able to cast their vote.

  1. Conflict Management

As mentioned in the background of this statement, the Province of KwaZulu-Natal is prone to electoral violence. This election has witnessed its share of politically motivated violence, albeit on a smaller scale as compared to previous elections. This may be attributed, to a certain extent to the conflict management mechanisms put in place by the IEC and the Provincial Government of KwaZulu-Natal. Civil Society Organisations like the KZNCC and its members have also played a critical role in promoting peace and building mechanisms for peace at a community level. Political parties have also taken an active role in promoting messages of peace and calling on their supporters to exercise tolerance and respect.

The SADCLA wishes to commend these efforts, while also encouraging stakeholders to strengthen the conflict management mechanisms to rid the Province of electoral violence completely and to instill a culture of peace among the inhabitants of the Province.

  1. Areas of Concern

The following is a list of concerns and areas that require improvement:

  • Electoral violence: politically motivated violence remains one of the key and primary concerns in KZN Province with the potential to hinder free and fair elections in the Province.
  • Political intolerance: Very closely related to the above, the lack of tolerance and respect also constitute one of the major concerns and threats to free and fair elections in the Province.
  • Voter education: While the SADCLA notes the high level of voter education in the Province, there are concerns about the possible neglect of faraway rural villages
  • SADCLA is also concerned about the different interpretations of section 24 of the Electoral Act by election officials, suggesting a need for further training of electoral officials and voter education.
  • High levels of campaigning outside of polling stations: In the KwaMkhulu rural settlement there was high intensity campaigning by four (4) political parties with loud music and singing, a few steps from the polling station. Only two police officials were present, which Observers felt were inadequate in the event that the crowd got out of hand.
  • Missing ballot box: Observers noted that there was a missing unused ballot box during observation at the Stanger Correctional Services Voting Station, which electoral officials could not account for.
    • Special Vote: While many voters registered, it appears that in some instances, there was a low turn out of special voters
  1. Recommendations
    1. IEC
  • Continuous voter education is required as well as training for electoral officials.
  • Ballot papers for the visually impaired should include the names of political parties instead of the numbers.
    1. Political parties

Political parties should promote continuous respect and tolerance amongst their members and between members and opponents. Messages of peace should be communicated throughout the years and not just during the pre-election campaign. Peace-building programmes involving local traditional leaders, women’s groups, the youth and all other stakeholders should be enhanced to ensure broad-based support and ownership by all stakeholders.

  1. Provincial Government of KZN

Support to local peace structures should be enhanced. Each provincial department should appoint a peace agent to ensure that conflict management and peace-building mechanisms form an integral part of government programming.

  1. Civil Society Organisations (CSOs) in KZN
  • CSOs are encouraged to continue to promote peace-building through, among other things, peace education, joint community dialogues and imbizos.
  • CSOs should also engage communities in continuous voter education to build a culture or peace and tolerance.
    1. Chapter 9 institutions – SAHRC

The SAHRC as the body with the broadest human rights mandate in the country should play a more active role during the election period. For example, it could partner with the IEC to address, promote and protect human rights during elections. In addition, it may assist the IEC in dealing with complaints relating to human rights violations during elections.

  1. Elected National Government

The newly-elected government is encouraged to work closely with the provincial government to create an environment for openness and political tolerance in KZN.

  1. International Community – UN, AU, SADC

The international community should continue to support electoral processes in South Africa as a contribution to strengthening the consolidation of democracy in this country. One way of doing this is to continue election observation of South African elections to ensure that South Africa continues to improve its election management systems.

  1. Conclusion

The SADCLA will release its final report in June 2014 which will outline in detail its analysis and findings following the 2014 South African Provincial and National elections.

Boma Ozobia

Head of Mission,

08/05/2014

Contact details:

Boma Ozobia: Head of Mission, SADCLA Observation Mission to KwaZulu-Natal Province: boma@spnglegal.com and johnaustinlegal@gmail.com

Makanatsa Makonese: Executive Secretary/CEO, SADC Lawyers Association: makanatsa@sadcla.org Emilia Siwingwa: SADC Lawyers Association: emilia@sadcla.org Chantelle de