The quest for collective bargaining and reiterating working class agenda (Part 2)

Correspondent | Wednesday February 15, 2017 16:32

The expression, isn’t important just as a social norm, it has a greater significance even in the political sphere. It seeks to make an association between you and your connections; family; background; political associations and possible “social standing”.

Similarly with one’s right to vote. The vote must be informed and for it to be so, one must know “who” they are voting for and whether their vote is being made to its intended target, both physically by a ballot and figuratively by knowing there is no one pulling the strings on the person you have voted for. 

In Botswana, there is no state financing of political parties, neither is there any law regulating political party funding or expenditure. Importantly neither political parties nor their candidates are required to disclose their sources of funding. The Electoral Act as amended only contains provisions regulating the expenses of candidates. Expenditures by candidates are restricted to a maximum of P50,000.

This limit does not include expenses incurred generally by political parties or interest groups, but only those incurred specifically for the election of a particular candidate, nor does it include the deposits paid by candidates when a candidate is nominated. The limit also excludes personal expenses, travelling and living costs and phone calls.

For a country that has in recent years expressed an increasing concern on internal security and has taken a very public stance (though some would argue by paying mere lip-service only) on corruption, the failure to pass legislations to make election funding transparent is unusual let alone contrary to Botswana’s international obligations. Such legislation must be tied with a disclosure of assets legislation.

Botswana is a signatory to the UN Convention against Corruption. Article 7(3) requires each State Party to “consider” implementing appropriate legislative and administrative measures “to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties”. Botswana is also a signatory to the African Union Convention on Preventing and Combating Corruption which imposes imperative terms that, unlike the UN Convention, expressly addresses the funding of political parties.

But it is not just the obligations under international law that require parties to avail information on their funding. In a democratic society such as ours in order to effectively exercise the right to vote the voter must enjoy the right of access to information.  It is only with access to information, that citizens are empowered to make responsible and informed political decisions and participate meaningfully in public life. In the absence of information such participation is undermined.”

Political parties are the vehicles for facilitating and entrenching democracy and furthering the mandate that has been given to them by the electorate, they serve a public purpose.  The private funds parties and politicians receive consequently also impact on public purpose, the development of democracy. The flow of funds to political parties is inextricably tied to their pivotal role in our country’s democratic functioning. 

“There is a further corollary: given parties’ emphatically public role, any notion of privacy attaching to their private funding must be significantly attenuated.” Contributions to political campaigns are actuated by motive.  Such contributions are given in the hope that a party or politician will progress a particular interest or policy, for example climate change, abortions laws or worker agendas. 

Political parties and politicians, in turn, rely on contributors for the very resources that allow them to conduct their democratic activities, particularly so in a country such as Botswana which has no laws in respect of public funding for political parties.  Private contributors only continue make contributions to the extent that the parties they have funded, and the politicians they have funded continue to meet the donors’ expectations. 

It must be said therefore, in no uncertain terms, that the identity of such donors, and the extent of their contribution, offers vital information about the parties’ and a politician’s likely agenda.  The  United States Supreme Court set out the rationale for disclosure in Buckley v Valeo, in respect of political funding—

“…provides the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate’ in order to aid the voters in evaluating those who seek federal office.  It allows the voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches.  The sources of a candidate’s financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office”.

The international obligations on creating legislation on party funding under the UN and AU conventions are symbiotic to local legislation on corruption to deter corruption not only at the ballot but subsequently, as well as to avoid the appearance of corruption by exposing large contributions and expenditures to public scrutiny.  The implementation of such legislation may expose and discourage those who would receive and use money for improper purposes either before or after the election.  “ A public armed with information about a candidate’s most generous supporters is better able to detect any post-election special favours that may be given in return.”

Under the current legal framework however, such legislation if implemented, would fall under the either the IEC, DCEC or even within the purview of the DISS, all of these institutions currently fall under the Office of the President. It is unlikely, given this scenario that any political party, let alone an individual politician would be willing to expose themselves to a political office that may be driven by ulterior motives. 

The need however for legislation to make public private funding of political parties, is outweighed by the need to effect urgent Electoral reform that mandates public funding for political parties.  As already alluded to above, the political will must be present to drive such legislation forward. It is currently absent. Moreover the legal framework for any such legislation must take cognisance that the regulatory bodies that would have oversight of private funding, be it the IEC, DCEC or DISS must be completely independent from even the perception of political oversight.

Transparency in the election process inspires the confidence and trust that electorate demand. Elections are however a process and not merely an event occurring every  five years. In 2012 President Khama, speaking at the 8th Africa Governance forum in Gaborone, noted the need for transparency in respect of elections; a position he has reiterated on several occasions since, most notably at Official Opening of the ECF-SADC 18th Annual General Conference on the 23rd August 2016.

“We should therefore be resolute in our efforts to align our national policies and legislation with these principles which include, among others, free, fair and transparent elections; constitutional transfer of power; predictable laws; protection of citizens’ rights; equality before the law; favourable macro-economic policies; the rule of law, respect for human rights; an effective and credible judicial system; and efficient and effective public service to name some.

Thus the theme for this, the 8th Africa Governance Forum “Democracy, Elections and the Management of diversity in Africa”, is timely and appropriate. It is my strong conviction that our overarching goal as we deliberate in this gathering is to provide input as to how we should deepen and nurture governance and democracy, in line with the aspirations of our peoples.   I therefore urge you to be as creative and innovative as possible in order to enrich the deliberations during this important meeting.”

(emphasis added)

The importance of the national ethos on democracy cannot be over-emphasised. As already alluded to, legislation and espousing democratic ideals by the political leadership without appropriate action to implement such ideas creates internal tensions in the political environment as such positions appear to be no more than mere lip service. 

Carlos Lopes, the then UN Under-Secretary General and Executive Secretary of UNECA  stated in response at the same conference that: “Violence in the electoral process may be overt or covert; it could also run through the electoral cycle beginning with access to ID or citizenship recognition, voter registration, down to intra-party elections, peaking on the Election Day and its aftermath. Electoral violence is a product of uneven playing field amongst political actors and actors; low capacity, credibility, and partisanship of electoral institutions, including protection and security services; unfairness in the distribution of electoral resources; use of incumbency power, or blatant manipulation of election results. 

Electoral violence is obviously unethical. It is a subversion of the purpose of elections in the first place. It runs counter to the establishment of a democratic culture and the growth of democracy. It should not be justified or tolerated. 

If we were to create the safeguards that would preserve us from the bad experiences we have witnessed in the last decades I would suggest we stick to the following policy measures:

Political parties must give a firm written commitment not to use force, violence or any other intimidating tools to pursue their agenda;

Electoral institutions including the security services must be made free, fair, impartial and transparent in the conduct of elections;

Electoral resources must be evenly distributed amongst political parties and contestants;

Transparent means of counting, collating and transmitting election results must be put in place; A role for Civil society organisations must be promoted in the entire electoral process including the final stages of the counting, collation and announcement of election results;

Perpetrators of electoral violence must be duly prosecuted. Electoral laws must make adequate provisions to deal with political leaders who perpetrate or mobilise citizens for electoral violence. Apart from being prosecuted, they should be banned for a space of time from participating in the political process.”

The need for transparency lies with the election cycle, not merely on Election Day, it is the transparency in the entire process that enhances voter confidence. Be such transparency in the form of funding or at the ballot itself. Prior to dealing with the electoral cycle and the institutions that govern them, regulate them and possibly determine them one must look at the election itself and the method of casting the vote.

Under the Electoral Amendment Act 2016, Botswana has introduced electronic voting. I had the good fortune of being invited as a joint panellist with the then Head of the IEC Botswana, Rre Seeletso, on a radio programme, “The Point- Breakfast with Reg”. It was the last show to be hosted by the now dismissed Reginald Richardson and his producer Keikantse Shumba. The discussion centred on the introduction of Electronic Voting Machine (EVMs).

Their compliance with the Constitution, their vulnerability to hacking, the lack of transparency and the education programme being embarked upon by the IEC.  Important concessions were made by the former head of the IEC on public radio, illustrating the importance and value of independent media and freedom of speech. Firstly, Rre Seeletso, acknowledged despite initial views to the contrary, that EVMs did operate on basic computer programming; secondly that the IEC was aware of judgements from other jurisdictions that outlawed the use of such machines due to their vulnerabilities.

And critically he stated that the IEC would be willing to put in place a system for voter verification, a paper trail, if such was in the interests of transparency. He acknowledged that the current Act did not have provision for this currently, in spite of a recent position paper by the IEC to the contrary (posted on the IEC’s official Facebook page).

Rre Seeletso, added that there would be ongoing consultation with key stakeholders, and their input on the voting machines would be sought and such input would be taken under consideration on the advice of the Attorney General.

On the 18th November 2016, a meeting with “key stakeholders” was purportedly held, I say purportedly, because only two political parties attended. However, ominously and conspicuously absent due to lack of invitation was the public, civic society and interested organisations such as Unions. 

Political parties may certainly be “key stakeholders” but it is the public that are the ultimate stakeholders. There is a need to expand the definition of “key stakeholders” as perceived by the IEC to enable public debate and public input. Having gone so far as to, belatedly accept that Political Parties can post fact the introduction of the new legislation, have input on the specifications of EVMs, so too must the opportunity be given to the public at large, civil society and in particular worker representative organisations; the Unions; and not as an education exercise. “Key stakeholders” must at the very least be in line with the pronouncements of Carlos Lopes in order, to use his words, avoid election violence.

Speaking in Parliament in defence of NDP11, Minister Kgathi on the 22nd November, alluded to the meeting of the 18th, setting out who the key stakeholders were that had been invited by the IEC. There is no mention of civil society, members of the public and Union organisations. I hope that such will be corrected in the near future and Unions will be allowed to address the IEC and provide input on their concerns; of course this would be done in the spirit of transparency of the electoral process, the principle so often alluded to by the IEC and the State President in respect of elections.

The EVMs pose many difficulties. There are numerous international organisations that have successfully challenged their introduction within their various jurisdictions, notably in Germany, the Netherlands and Ireland. 

At the centre of these challenges lies the lack of transparency and the ability to manipulate them. The two key issues obviously are intrinsically inter-connected. The focus here in Botswana has however been, erroneous in my view, to focus mainly on the lack of a paper trail, or voter verification trail.

This focus, has obscured the more profound difficulties with the Indian-made EVMs, their simplistic design, lack of security both in terms of hardware and software and their lack of ability to provide a recount other than from their own data.  Returning however to the current focus (even though it ought not to be the sole focus), the inability to provide independent voter verification. The IEC, as indicated has issued a statement that “Form Y” of the Act, was a voter verification, and that clarity would be sought in this regard from the Attorney General. I make the assumption here, and I emphasise that it is an assumption, that the Attorney General has provided this advice due to the fact that Minister Kgathi, in his response to NDP11 reiterated, verbatim the IEC position. It would be unimaginable that he would make pronouncements on legal issues without the input of the Government legal advisor.  With respect, there is either a singular misunderstanding of what voter verification entails, or there is a deliberate intent to mislead. “Form Y” is provided for under the amendment of Section 67 of the Electoral Act with the introduction of Section 27(3B), as correctly pointed out by the Minister. However the section provides that “form Y” constitutes a verification paper of the readout of the EVM and NOT the voter’s ballot. “Form Y” is no more than a paper recording of what the machine display is reading. To equate this “Form Y” to voter verification and to go further and argue that such provisions amount to the inclusion in the Act for a print out of the voters ballot, is deliberately misleading.

The voter verification, or paper trail as it is commonly used, provides the voter with a receipt of their vote, it substitutes a traditional ballot. It is placed in a sealed box, much like under the old system. This paper trail, enables, in the event of an electoral challenge to have a recount of the ballots, independent of the machines computation.

Once again the purpose behind such a paper trail is to ensure transparency in the system.

The University of Michigan, and Professor Alex Halderman, a leading expert on the use of computer technology, reverse-engineered an Indian EVM, revealing its weaknesses to manipulation.  Prof. Alex Halderman and the University of Michigan is currently offering a five-week online course . There are two options for the course, one is free and the other is available at a cost of US$50 (approximately P550). Disclosure: - I have enlisted for the course and would highly recommend it to anyone who is interested in making informed input to the IEC.

What is apparent from the revelations by the University of Michigan is however, that in order to have constructive input of the EVM, their internal mechanisms must be disclosed by the IEC. Whether it be in the form of schematics or by availing an EVM to allow it to be reverse-engineered. The University of Michigan was able to illustrate the flaws in the machine and its vulnerability to manipulation due to having been availed a sample machine from a whistle-blower.

There are weighty constitutional issues pertaining to the introduction of EVMs and the removal of a vote given by ballot, as set out in the Constitution. The basic rule of statutory interpretation is that words must be given their ordinary and common meaning. In the event of ambiguity in the meaning of the word, then and only then do the additional rules of interpretation come into effect.  A ballot, is in common usage a piece of paper on which the voter marks their selection of their candidate of choice. By altering the term “ballot” to be a “voting machine ballot paper” (which is not marked at any point during the vote), and or a “voting machine ballot paper screen”, without an appropriate amendment to the Constitution, the Electoral Amendment Act is seeking and in fact does alter a protected provision of the Constitution.

Protected provisions of the Constitution can only be altered by way of a national referendum. This has not been done.

With respect to such advice that the Attorney General may have provided vis-à-vis the need for a referendum when advising on the draft Bill, and whether “Form Y” constitutes a voter verification paper trail, such advice would have been made to the IEC in the fulfilment of its mandate to provide free and transparent elections. If there is to be genuine transparency in the electoral process, such advice is of public interest and must be disclosed by the IEC to enable informed discussion.

(To be continued)

Joao Slabany