COLUMN: DR ALEX T. MAGAISA
Dr Alex T. Magaisa
It concerns the extent to which, if at all, the actual voting procedure protects secrecy. A closer look at the legal provisions providing for actual voting under the Electoral Act reveals some loopholes that appear to negate the secrecy of the voting process.
Innocent though these provisions may appear at first sight, they nevertheless raise a number of concerns from a practical point of view. By considering provisions in comparable jurisdictions, this article seeks to highlight the significance of the risks they pose to the fairness of the electoral process.
Presiding Officer’s official mark
Section 57 of the Electoral Act provides for the practical aspects of voting. It states in paragraph (b) that prior to handing over the ballot paper to the voter, the presiding officer is required to place an official mark on the ballot paper.
The official mark made by the presiding officer is, presumably, designed to authenticate all ballot papers used in the voting process. However, the trouble is that there is no indication in the law as to where the official mark should be placed on the ballot paper.
The implication is that the presiding officer may place it in any position on the ballot paper. This assumes greater relevance when considered together with the requirement for the voter to show the official mark to the presiding officer after he has voted.
The risk is that the presiding officer’s mark may be placed in a position where concealment of the voter’s own mark may be compromised. If a voter perceives that the presiding officer may actually see his vote, this potentially compromises the expression of his free will.
To negate this risk, Section 38 (5) (c) of South Africa’s Electoral Act provides specifically that the presiding officer must place the official mark on the back of the ballot paper. This ensures, at the very least, that the presiding officer does not have the liberty to place the official mark in a position that affects the voter’s free will.
Importantly, it allows for consistency as to where the presiding officers should place the official mark and also reduces the perception that the voter’s choice may be revealed to the presiding officer.
‘Holding Up’ the ballot paper
After the voter has signified his choice, he is then required under Section 57 (c)(iii) to fold the ballot paper so that the official mark made by the presiding officer is visible but concealing the names of the candidates and where he has placed his cross. Crucially, the provision stipulates that the ballot paper must be ‘held up’ so that the presiding officer can recognise the official mark that he would have placed moments earlier. Thereafter, the voter will place the ballot paper in the ballot box, ‘placed in front of the presiding officer’.
This prescriptive provision which directs the voter to ‘hold up’ the ballot paper to the presiding officer when showing him the official mark is unnecessary and prone to abuse. The rationale for such a prescriptive provision is not immediately clear. Why should it be necessary to ‘hold up’ the ballot paper as opposed to simply showing the official mark to the presiding officer in any other way?
The trouble is, depending on the quality of the ballot paper or indeed the ink used to place the cross on the chosen candidate, there is a risk that when the ballot paper is ‘held up’ as directed and if this is against a light background, this could potentially reveal the voter’s choice. This possibility, however small, can give rise to perceptions that there is no secrecy and, therefore, may affect the voter’s choice.
By comparison, Section 38(6)(d) of South Africa’s Electoral Act states, very simply, that the voter is required to show the folded ballot paper to the presiding officer so that he can see the mark. There is no specific, potentially prejudicial, requirement for the ballot paper to be shown to the presiding officer in a particular manner, such as ‘holding it up’. Any way will do, so long as the presiding officer sees the official mark.
Similarly, in Tanzania, the voter is simply required to show the back of the ballot paper to reveal the official mark. The Zimbabwean requirement for ‘holding up’ the ballot paper is unnecessary and potentially compromising especially given that the presiding officer has great liberty to place the official mark in a position that could potentially reveal the voter’s choice.
Provisions for Illiterate Voters
Section 59 of the Zimbabwe Electoral Act provides for assistance to illiterate voters. Similar provisions apply to physically incapacitated voters under Section 60. It requires that at the request of such a voter, the presiding officer may provide such assistance in the presence of two other election officers or employees of the Electoral Commission. Clearly, there is no provision for the presence of independent eyes and ears on such occasions.
This is a direct contrast to Section 39(1) of South Africa’s Electoral Act, which requires that such assistance by the presiding officer must be provided in the presence of a representative of an accredited observer and two representatives from different parties, where available.
This clearly is designed to have independent verification and also to give confidence to the voter. In the case of Zimbabwe, it is ironic that not even the ‘friendly’ observers that have been invited can be trusted! This provision creates negative perceptions on the part of voters who may be sceptical of the impartiality of the Commission’s staff.
But the most dangerous aspect of Section 59 is that it enables the presiding officer to put questions to the voter who has requested assistance in order to clarify his choice of candidate. It states that ‘the presiding officer may cause such questions to be put to the voter as, in his/her opinion, are necessary to clarify the voter’s wishes”. There is no comparable provision in the South African law.
This is an ominous provision, especially in a country where the idea of being questioned about one’s choice is a frightening prospect. It is hard to understand what could be less clear about a voter’s choice so as to require ‘questioning’ by the presiding officer. It is harder still, given that the ballot papers are required to have photographs of the candidates and surely even an illiterate person can simply point by finger to his choice?
Even if there is a risk of misunderstanding, I am not sure that such a risk is sufficient to require a legal provision that enables the presiding officer to put questions to the voter. It is unnecessary and provides room for abuse. That this questioning can also take place in the absence of any independent observers raises further concerns.
South African law even allows the voter to take a person of his choice to assist him, so long as he is over 18 and not an election agent. In other words, the voter needing assistance is not restricted to the presiding officer whom he may not trust and also whose political persuasion he may not know.
Worse still, the Zimbabwean law requires that the names of all persons who have been assisted must be recorded on a list. There may be a perfectly good reason for this but one cannot overlook the fact that ‘lists’ during election times are part of a very nasty and frightening vocabulary, especially in the rural areas.
The collective effect of these provisions becomes significant when one considers that the bulk of the voters are in the rural areas and the higher chances of encountering those who cannot read or write and therefore presumably requiring ‘assistance’. The presiding officer may be well known (and feared) in and around the community. That is not a person who can be trusted with the legal power to ‘question’ voters for clarification. Voters are more likely to vote not to express free will but to secure personal security.
There are, of course, Sections 86 and 187, which seek to protect the secrecy of the voting process but it is difficult to see how they sit alongside Sections 57 and 59 which regulate the manner of voting in a way that is potentially prejudicial. There is a very real concern that the much vaunted ‘secrecy’ of the ballot may be nothing more than a charade. The South African law is not perfect, but the Zimbabwean version certainly leaves a lot more to be desired.
is based at Kent Law School, UK and can be contacted at email@example.com
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