Leader of Opposition in Parliament and President of Botswana National Front (BNF), Duma Boko, has warned the Independent Electoral Commission (IEC) not to create chaos or destroy the peace and tranquillity that the country has enjoyed over the years. Leading a BNF delegation at a meeting with the IEC on Wednesday, Boko said the peace prevailing in Botswana has been largely due to opposition parties' restraint, and that the IEC should guard against losing public confidence with controversial decisions. The BNF delegation made it clear that their members are angry, displeased and highly suspicious of the conduct of IEC over the introduction of Electronic Voting Machines (EVMS). Boko said they reject the EVMs in the current form. He cautioned the IEC that the BNF has in the past threatened to boycott national elections and that the current situation is inviting the same wrath.
Weeks after Parliament passed a motion authorising the introduction of EVMs – on urgency – the IEC on Tuesday started consultations with political parties and other stakeholders, seen as an afterthought to save face. After failing to quell a barrage of criticism over failure to consult and the haste with which BDP MPs sneaked in amendments to the Act at the eleventh hour, the IEC has bowed to pressure. The IEC announced the ongoing engagement last week, advising that although the amendment of the Electoral Act has been passed by Parliament it has not been assented to as yet, and is awaiting signature into law. The IEC said it is putting in place a programme to consult stakeholders on the electoral reforms which will be shared with the public.
“Consultations with various stakeholders will start on September 06 and will continue into 2019 in an endeavour to ensure appreciation and understanding of the new development by the electorates,” said Gabriel Seeletso, IEC Secretary on September 1. At a meeting between the IEC and the BNF on Wednesday, Seeletso asked political parties to support the consultation process, after which stakeholders' views will be taken to the Executive. In a telling revelation Seeletso said the IEC could not consult prior to the motion seeking ammendment was presented in Parliament as it would be seen as pre-empting the matter. He said their fears were that it could be shot down before it becomes a law, so the best way was to let it go through first.
Too little too late
But with the Bill already approved by Parliament, legal experts say consultations are an exercise in futility calculated to legitimise a flawed process. Former Botswana based attorney Joao Carlos Salbany, who lived in Botswana for 23 years before government denied him a work and residence permit in 2016, said at this stage only courts can reverse the process. "One would imagine such consultation ought to have been conducted prior to placing the Bill in Parliament. Electronic voting may have its advantages; but those advantages should not be used to justify a lack of transparency in elections. Elections are managed on trust, the trust of the electorate and that trust is derived from transparency," said Salbany, who is now resident in neighbouring South Africa.
The Electoral Amendment Bill No. 10 of 2016 has been passed and is awaiting signature into law. The bill seeks to amend the Electoral Act to provide efficiency into the electoral system through amongst others; introducing electronic voting machines, deleting provision for supplementary voter registration, increasing penalties for election related offences, increasing candidate nomination fees. It will also provide efficiency in provision for assistance of voters by election officers, and provision for voter’s education as the duty of the Secretary.
Issues on EVMs; Bhara Electronics Limited
It has since emerged that the introduction of the EVM was discussed as far back as 2005. One of the presentations at a 'stakeholder evaluation workshop, 2004 General Elections' held from 9th to 10 June 2005, was the introduction to electronic voting by Bharat Electronics Limited. This is the same company that conducted a workshop with IEC on July 27, 2016 in Gaborone, which clearly reflects an on-going relationship-spanning over a decade between the two. This relationship has sparked controversy in the tender process despite that the IEC maintain that a supplier of the EVM has not been identified yet.
Interestingly last year a Namibian company announced it had been awarded the Botswana tender for electronic voting, but this claim was disputed by a South African company that said they were involved in the process and the tender was going to be a sealed or closed bid due to security reasons and they had not been approached. There was also an Australian company that was interested and they declined to attend the conference in July for undisclosed reasons. Apparently the other companies, except for Bharat, declined an invitation to the July workshop refusing to participate in and authenticate a pre-arranged procurement exercise as Bharat Electronics appears already earmarked for the project.
Experts say if indeed the EVM was discussed as far back as 2005, there was no justification for its introduction on urgency in Parliament on August 11, 2016 – eleven years later. It would seem there was lack of progress between 2005 and 2016. There are requirements to be met for an urgent motion; clearly with this history those requirements were not met, said Salbany. "Looking at the Hansard for the day, there is no reference to ongoing consultations, which surely would have been raised. It would be interesting to compare the 2005 report to what was said in Parliament to justify the urgency. But the report is not even on the IEC website," he said. Were political parties consulted? Major opposition political parties BCP, BNF and BPP have rubbished suggestions that their participation at the 2005 workshop translates into consultations about the introduction of EVMs. They maintain that the workshop was organised to evaluate the 2004 general elections, not the pro and cons of EVMs.
Shortly before the BDP majority in Parliament passed amendments to the Electoral Act in August – paving the way for the introduction of EVMs against protests from opposition MPs – political parties attended a one-day workshop organised by the IEC and Bhara Electronics Limited in July. The BNF and other opposition parties have since rejected the EVM, insisting that it should incorporate safeguards like the Voter Verifiable Paper Audit Trail (VVPAT). "In the absence of the safeguards outlined by the Supreme Court of India or panel of experts in India, the opposition bloc must reject the use of EVMs as currently configured," says BNF's Nelson Ramaotwana, who was part of the delegation that represented the party at the July workshop on EVMs.
Salbany said fears of rigging using EVMs expressed by BNF are absolutely legitimate. He said although he does not think the paper trail – the proposed VVPAT – will prevent rigging or address BNF’s concerns; it makes it harder for there to be manipulation of the votes. He said even without manipulation of the system, there is no transparency in a system that tabulates votes by computers. "That is an essential part of an election process because it gives people a way to ensure (as much as possible) that their vote has been recorded the way they cast it. Elections are managed on trust and that trust is derived from transparency. Which is why the German constitutional court declared them (EVMs) unconstitutional. I think the problem in Botswana is compounded by everything to do with elections falling ultimately under one office, the Office of the President, particularly when there is a perception that elections will be closely contested in 2019," he said.
BDP Secretary General, Botsalo Ntuane, recently made a startling revelation when he said his party – the ruling party – has never been consulted by the IEC on the EVMs. Such anomaly has provided fodder for political pundits who opine that decisions within the ruling party are not taken as a collective but remain the preserve of President Ian Khama and his close allies, particularly on sensitive issues requiring high level security. This comes after the leadership of the BDP, including Khama himself conceded in different fora that the disparity between party policies and government does not augur well for the ruling party. Elsewhere, speculation is rife that agents within the intelligence community have been engaged to perfect their hacking skills in readiness for a close contest between the BDP and a united opposition in the 2019 polls. This has not been helped by the fact that the EVM motion was presented to Parliament on urgency by none other than Presidential Affairs minister Eric Molale, a close associate of Director of Intelligence and Security Services (DIS) Isaac Kgosi. The two high ranking officials were in the past fingered over the disappearance of spy equipment at the Botswana Defence Force (BDF) intelligence unit at Sir Seretse Khama Barracks (SSKB).
Is EVM the solution?
Ramaotwana admits that the electoral process in Botswana, especially the counting part, is painstakingly slow and inefficient but argues that it is man-made and deliberate. He said the collection of ballot papers from polling stations in a constituency to the counting centre must be abolished because that in itself is the main cause of inefficiency. To buttress the point, he said, results from vast and spatial constituencies like Gantsi, Kgalagadi, Okavango, Boteti, Ngami, Barolong and Maun will take long because distances from polling stations to counting centres are in excess of 100km. "The same will happen to EVMs which will be ferried over 100km to counting centres. The solution lies with ensuring that the Act is amended and provides that counting should take place at each polling station and results ferried to the counting centres,” said Ramaotwana.
The BNF warns that although technological advancement is good because it enhances efficiency and productivity, it can be easily abused to serve selfish interests. The BNF, therefore, says the EVM is the only hope for BDP to retain power in 2019. EVMs have a controversial and checkered history. Most prominently, and as acknowledged in the various litigation surrounding the issue, EVMs were at the heart of the controversial Al Gore elections loss in the United States’ Presidential elections of 2000. This is in spite of the fact that the US system was verifiable, illustrating that even with the ability to provide a paper trial such systems are fallible. A panel of prominent IT experts and scholars in India has demonstrated that the EVM can be manipulated to fix elections results. In their 2010 paper titled "Security Analysis of India's Voting Machines" they said CPUs and circuit boards that contain microchips and ballot control units can be faked with look-alikes to rig elections. The experts suggested three ways of avoiding election fixing using the EVM being; the use of voter verifiable paper audit trail (VVPAT), precinct count optical scan (PCOS) and paper ballots.
The EVMs have been banned in four European countries; Ireland (2004), Netherlands (2007), Paraguay (2008) and Germany (2009). On the 8th October 2013, the Supreme Court of India ruled that "the paper trail is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the paper trail. EVM with VVPAT system ensures the accuracy of the voting system". At the heart of the controversy surrounding EVMs lies transparency in elections underpinned by the three pillars of the democratic electoral process: voter verification of the vote; compliance with the constitution’s definition of ballot; and security of the vote.
Elections are inherently an issue for national security; not only must elections be devoid of tampering from internal sources but additionally they must not be prone to manipulation from individuals or states that may be seeking to cause electoral manipulation to further their own agendas. The IEC, has neither the expertise nor the infrastructure to conduct security vetting on either the company that will eventually provide the EVM’s or the technical expert appointed by them to service and maintain the machines in terms of Section 53A (1) of the Act. This reality, necessitates the roping in of the DIS whose mandate is to protect national security. The DIS like the IEC, falls directly under the Office of the President, answerable only to the President (Executive).
SADC elections forum
Officially opening the ECF-SADC 18th annual general conference on August 23, 2016, Khama said; "Elections should build a nation and not break it. Elections must promote the citizenry’s right to freely choose their leaders guided by Electoral Management Bodies (EMBs) that serve them without favour, fear or prejudice. To this end, elections have to be conducted in a manner that adheres to the legal framework and also have to, of necessity be accompanied by unquestionable integrity of those who manage and conduct them.”