The Secretary for the Independent Electoral Commission (IEC) – Gabriel Seeletso – retires from the public service on Friday November 18, 2016 and will immediately report for work the next Monday hired as a consultant by Government. Before he vacates office, Seeletso – currently employed on an FO salary scale – was scheduled to make another trip to India yesterday October 22) with some officers redeployed under the newly formed EVM unit. Employees of IEC have expressed concern that the Secretary continues to undertake critical assignments where decisions about the future operations of the organisation are made despite that he will retire in three weeks. Having reached retirement age of 65, Seeletso is forced to vacate office stipulated in the Electoral Act but has been contracted as a consultant for the transformation from a paper-based ballot process to an electronic voting system which will see the introduction of the controversial Electronic Voting Machines (EVMs), it is alleged. Deputy Secretary, Keireng Zuze, is said to be in line to be promoted to succeed him. Questions are being asked on Seeletso's appointment because he does not have any experience or expertise on electronic voting process. His new role as Coordinator EVM – on F2 scale – is at the level of Deputy Permanent Secretary. One of the indicators that Seeletso has been appointed to a new position is his inclusion in an itinerary for countrywide consultative meetings over EVMs way beyond November 18; his last day in the office. The countrywide public education campaign, through which IEC plans to address 490 ward meetings and 57 constituency meetings, will cost P150 million.
IEC spokesperson, Osupile Maroba, confirmed that Seeletso will retire on November 18. Until then, he will continue performing the duties of the Secretary before handing over when he vacates office, said Maroba. He, however, said he is not aware if Zuze will take over as that has not been communicated to the Secretariat. "Appointment of the Secretary is the prerogative of the President, based on advice from the Commissioners. I am not even privy to information about the engagement of Seeletso as a consultant for EVM as alleged," said Maroba. Government spokesperson Dr Jeff Ramsay said an announcement will be made soon on Seeletso's replacement but said he is not aware if the latter will be engaged as a consultant after retirement. He referred further questions to the IEC because "they are an independent entity". Seeletso had not responded to messages left with his secretary as he was said to be attending meetings outside the office. The IEC is chaired by Justice Abednico Tafa, with attorney John Carr-Hartley who has replaced Omphemetse Motumise as his Deputy and five ordinary members Martha Sayed, Shaboyo Motsamai, Alpheus Matlhaku, Agnes Sethogile and Dr Molefe Phirinyane.
The paramount importance attached to electronic voting has been confirmed by the setting up, staffing and equipping of a new EVM division within the IEC, away from the existing Elections Unit. The core mandate of the latter unit – headed by a Chief Electoral Officer who supervises Principal Election Officers (PEOs) – is to manage the electoral process to deliver free, fair and credible elections. Maroba denied knowledge of the formation of an independent EVM unit. He said as far as he is aware some officers have been assigned to oversee the implementation of the five new amendments recently signed into law. These are the two coordinators, an IT officer, political officers and a driver who have always been employees of the IEC. IEC management is alleged to have been granted permission by the Directorate of Public Service Management (DPSM) to create new positions to staff the new unit headed by Seeletso as Coordinator. At least five employees from within the IEC and others from other government departments have been transferred from their stations in Letlhakane and Francistown to populate the EVM unit. A new vehicle has been purchased and the Central Transport Organisation (CTO) has re-deployed two of its drivers to the unit. A graphic designer and an IT expert from DIT will also join the EVM team. The EVM unit team comprising Seeletso, Principal Electoral Officer EVM, Principal Electoral Officer Procurement, Chief Systems Analyst and one Electoral Officer travelled to India yesterday (Saturday) for a week-long trip. They are expected back on Friday. "I am not privy to any information about a trip to India or that the current Secretary is heading a new division. He is only driving processes because he is still an employee but will hand over responsibilities to the successor when he leaves," said Maroba, responding to why Seeletso is not handing over the reigns.
IEC fights PEOs
Meanwhile the IEC is headed for a showdown with several PEOs after a decision to surcharge them for election material lost as far back as during the 2009 general elections. Some PEOs have since enlisted the support of their trade unions to fight the IEC after Seeletso wrote letters informing them that management has concluded that they failed to take care of the materials and equipment in their custody as the most senior personnel in polling districts (returning officers). The surcharge – which ranges from about P2 000 to around P10 000 – is for material including water containers (commonly known as Jojo), chairs, tables. The PEOs, some of whom were recently redeployed by DPSM to other government departments without consultation, fear that Seeletso is continuing the witch-hunt to victimise them. "If this equipment went missing as far back as 2009, why did they wait for eight years to take action?" one PEO asked. "This is ridiculous. I never signed for any of the materials I am alleged to have lost, and therefore it was not under my custody as it never came to my possession. We are waiting for them (IEC management) to go ahead with the deductions this month, then we will fight back," said another officer. Maroba said IEC is simply following normal procedure asking officers to account. He denied any victimisation. Anybody with a valid explanation as to what happened to materials in his custody - as head of station - will not be surcharged. "The process has taken a long time because we wanted to carry out thorough investigations and give those implicated an opportunity to show cause why they should not be held liable. It is a long process," he said.
IEC favours Bharat
President Ian Khama recently signed the Electoral (Amendment) Bill of 2016 into law, setting in motion plans to switch from paper-based ballot boxes to electronic voting process, ahead of the much anticipated 2019 general elections. Immediately thereafter the IEC announced plans to procure EVMs, to comply with the new law. Although he denied that they will buy the machines from an Indian state run company Bharat Electronics Limited, Seeletso confirmed at a workshop on EVMs that Minister of Presidential Affairs Eric Molale caused the amendment of the electoral Act after an invitation from Indian High Commissioner to learn about electronic voting process in his country. Molale came back impressed. Seeletso's claim that procurement will be through a public tender has failed to convince detractors who, once again, point to the current visit as clear indication that the IEC is going to cement the long concluded deal.
Seeletso has also given a hint when he revealed that Botswana intends to adopt the Namibia model, after Molale invited the Namibian Attorney General to present to local cabinet. Namibia bought their EVMs from Bharat Electronics Limited of India. Because of the special relationship between Bharat and Botswana, two companies – Smartmatic and Itanettix – who were interested in bidding for the supply of EVMs, declined an invitation to demonstrate at an IEC workshop in Gaborone two months ago.
Legal expert opinion
In a legal opinion on EVMs to National Amalgamated Local, Central Government and Parastatal Workers Union (NALCGPWU), a consultant has recommended that litigation be instituted as soon as possible to declare the new electoral Act ultra vires the Constitution. Pretoria-based attorney Joao Carlos Salbany advised the union last month that under the new Act there is a real risk of undermining the democratic electoral process. "The introduction of EVMs would violate against the Constitution on various fronts. This, coupled with the security risks in the machines themselves, renders the introduction of EVMs singularly unfeasible to the electorate," he advised, adding that free and fair elections underpin the core values of any democratic society. Salbany said transparency and fairness of elections must be gauged not only against the legal framework in which the vote is cast (now by use of the EVMs) but furthermore against the autonomy, independence and transparency of the (the process and) institutions that have conduct and oversight of elections. EVMs have a controversial history, with many countries the world over rejecting and opting out of their use. 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 trail such systems are fallible.
EVMs consist of mainly two types: one is electronic voting where a voter pushes a button corresponding to party/candidate of their choice. The machine has a cable from voting (ballot) unit to counter. Second is a vote counting machine. Here you present your ballot paper (a variant) and it is later counted by the machine. "At the heart of the controversy 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. There can be no doubt that the development of the voting system, with the introduction of electronic voting and the use of EVMs has a potential for more efficient counting and tallying of results; but such potential benefit cannot be allowed to override the fundamental constitutional precept that guarantee of the ability of the electorate and candidate to verify the votes cast," said Salbany.
The Botswana context
There are various pieces of legislation that affect the electoral processes in Botswana. The cornerstone of such laws is the Constitution-which establishes all three arms of government- the Executive, Legislature and Judiciary and the process of appointing each in an open and transparent manner. Botswana is a signatory to the United Nations International Covenant on Civil and Political Rights which provides: “Every citizen shall have the right and the opportunity, and without unreasonable restrictions: To take part in the conduct of public affairs, directly or through freely chosen representatives; To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; To have access, on general terms of equality, to public service in his country". Section 32 of the Constitution of Botswana provides: “(c)where the Parliamentary election is contested in any constituency a poll shall be taken in that constituency at which the votes shall be given by ballot, and for the purposes of that poll any Parliamentary candidate who declared support in accordance with paragraph (a) for a particular Presidential candidate shall use the same voting colour and symbol, if any, as may have been allocated under any law for the time being in force in Botswana to that Presidential candidate for the purposes of the Presidential election”.
The Constitution clearly provides the methodology to be used for voting at Elections: “votes shall be given by ballot”. Unlike other Constitutions, such as Namibia (the context of this comparison being that Namibia is the only country in Africa that has adopted EVM’s) which speaks only of the right to Vote and does not stipulate the manner in which such a vote is to be conducted, leaving such to national legislation; the Botswana Constitution provides specifically voting “given by ballot”. A ballot requires a physical manifestation (a piece of paper marked by the voter) of an electorates vote. Consequently any legislation that removes the “vote given by ballot” is ultra vires the Constitution. The development in technology will find its way into the manner in which the “vote” is conducted in an election; albeit in compliance with the constitutional framework. EVM’s or Electronic Voting is not inherently unconstitutional. "Without the ability of a voter to give their vote by ballot or to have a physically verifiable paper trail (a vote given by ballot; as stipulated in the Constitution) the amendment to the Electoral Act is unlawful insofar as it seeks to remove an essential provision of the Constitution without reference to a Referendum in terms of Section 89 of the Constitution. The framers of the Constitution in 1964 and 1965 could have foreseen machine voting; given that the technology was already available at the time and used in the United State and India. Admittedly they would not have envisaged EVMs in their current form," said Salbany. He added that it is important to emphasise that the Electoral Act has not been repealed but rather amended to cater for among other aspects, electronic voting. In terms of the Act, certain definitions stand out, not only for their conformity with the Constitution but further due to the fact that they have not been removed under the new amendment. As such they remain operative. He said equally important is the fact that Sections 37 to 52 (inclusive) remain untouched, and further that sections 61, 62, 70 and 71 have been supplemented (albeit inconsistently). Recognition is also given to the fact the later provisions of the Act take preference over former sections, though only in the event that such (later) provisions remain compliant with the Constitution, he said.
Excerpts from Salbany's report
Under Section 2 of the Act- Interpretations; the following definitions are given that have a direct bearing to this presentation, namely- "election" means the election of a Member;; "poll" means a poll conducted in accordance with this Act; "tendered ballot paper" means a ballot paper issued under section 62; "tendered vote" means a vote cast using a tendered ballot paper. The following Sections remain unaffected by the Amendment; “42. Contested elections - If at the close of nominations there is more than one person standing nominated a poll shall take place as provided for in this Act. “PART VII Polling (ss 43-79) 43. Poll to be taken by ballot - A poll for the purposes of this Act shall be taken by ballot and the results shall be ascertained by counting the votes given to each candidate, the candidate to whom the majority of votes has been given being deemed to have been elected”. “61. Voting by election officers and police officers (7) Subject to the provisions of subsections (8) and (9), the provisions of Part VII relating to the conduct of polls shall, with such modifications as may be considered necessary by the Secretary, apply to any poll conducted under subsection (4). (8) The presiding officer of each polling station as soon as practicable after the closing of the poll, shall- (a) place all the ballot papers containing the votes of each constituency in a separate packet and close that packet in such manner as to prevent its contents from being tampered with and nothing can be inserted therein; and (b) transmit all the election documents in safe custody to the returning officer of the constituency in respect of which the votes were cast. (9) The returning officer of each constituency to whom election documents have been transmitted in accordance with the provisions of subsection (8) shall retain such documents unopened in safe custody until after the close of the poll on the date fixed under section 34(1)(b) and the documents shall be dealt with in accordance with the provisions of section 70.
“62. Tendered ballot papers; If a person representing himself to be a voter named in the election roll and being in possession of a voter's registration card in such name applies for a ballot paper after another person has voted in such name, the applicant shall, after making a declaration on oath in Form S be entitled to receive a ballot paper in the same manner as any other voter, except that such ballot paper (hereinafter referred to as a "tendered ballot paper") shall be crossed in the manner of a registered letter. The name of such voter, his number in the election roll and the number of the tendered ballot paper issued to him shall be entered on a list to be called the tendered votes list, which shall be admissible in any legal proceedings arising out of the election. Sections 70 and 71 then become imperative in order to ascertain the method by which certain votes can be tabulated. Sections 70 and 71 been supplemented by the insertion of sections 29 and 30 of the Amendment Act. Without the current amendment they read: “70. Verification of ballot paper accounts; The returning officer shall, as any ballot box is received from a polling station, in the presence of any candidate or counting agent who wishes to be present, proceed to verify the ballot paper accounts of that polling station by opening the sealed packet containing the unused, spoilt and cancelled ballot papers in it and the total number of ballot papers found in the ballot box for that polling station. It is clear that the Act, even as amended envisages a clear paper trial to allow for proper tabulation and verification. This, it is posited is to ensure compliance with the provisions of the Constitution.
In India, the Supreme Court took a robust approach in interpreting “vote given by ballot” by holding that it could not entail voting by machine. The Constitution of Botswana as required by both the Common Law and the Interpretations Act requires that where it confers a right, such right must be widely interpreted, conversely where the Constitution limits a right, such limitation must be narrowly construed. In the current instance the right to Vote must be given its fullest and broadest interpretation which includes the right to verify and contest election results, in other words; transparency. The enforcement of this right and the availability of a remedy must be such that is not obscured by the “black box” of EVM’s and the limited knowledge of technical experts. The enforcement of the right must be plain and open to all to understand; the essence of electoral transparency. The right to vote freely and in the absence of coercion must entail the right to vote with the least potential for manipulation. The Electoral Amendment Act opens the floodgate to manipulation in the absence of a paper trail. It is therefore unconstitutional not only in what it seeks to attain; the introduction of the EVM’s and the removal of the “vote given by ballot” but also, consequently in that as a result of its effect of removing “vote given by ballot” (as defined) it infringes on Section 32 of the Constitution without compliance with Section 89. An EVM that is incapable of producing a paper trial as proof of the voter’s ballot not only violates against section 32 of the Constitution of Botswana, but further renders the voters’ right to ensure their vote has been correctly cast and counted in the manner they opted (a denial of which would be to disenfranchise the voter) with a lack of remedy before the Courts of Law.
The right to vote, the franchise, can only have significance if there is certainty that the vote has been cast and tallied correctly (otherwise the right is meaningless). The right does not extend to merely casting a vote but the ability to verify the vote and the vote counting itself. The electorate’s right to verify their vote must be open both to the public and to the Courts in order to give remedy to the voter and the candidate who challenges the result. The inability of the public and of the court to physically check the ballot of each individual voter denies the voter the fundamental ability to enforce his right to vote. The IEC in conjunction with the “supplier” of the EVM’s at its presentation on 27th July 2016 stated that the “internal workings” of the machines should not be queried and that stakeholders must accept on “faith” that the machines are not capable of being tampered with and work. Critically it was further stated that the cost of obtaining an additional module (EVM with voter verifiable paper audit trail (VVPAT)) to produce a voter verification was an “unnecessary” expense. Unfortunately this position intentionally obfuscates the truth in order to create a false impression to an audience that is insufficiently conversant with both the hardware and software technology used in the EVM’s. What is certain is that “faith” and “trust” in the electoral process play a significant part in elections. It is the ability to ascertain and verify a vote that enforces the faith and trust in the system. Any conduct or mechanism that creates a lack of transparency undermines the faith and trust the electorate has in the election process. Consequently undermining a key factor in a democratic state and significantly: national security. The Indian Constitutional Court, the country in which the Botswana EVM’s, for all apparent purposes, originate from has held that without the ability to produce a verifiable paper-trial EVM’s violate against the Indian Constitution. The position is mutatis mutandis applicable to Botswana.
The Constitutional issues involved in the use of electronic voting machines in elections arise from the fact that they store votes in an electronic memory only and the tallying of votes is not independently verifiable (in the absence of VVPAT) and therefore infringes the fundamental rights of the electorate in that there is no possibility of a public count, no way of the general public having access to the verification process (being left in the hands of technicians with “expert” knowledge). They lack transparency. The public counting of votes is without doubt one of the most crucial stages in the election process. The failure to complete the count and transmit results in a quick, transparent and accurate manner inherently jeopardizes the public confidence in an election and will directly affect whether candidates and political parties accept the final results. Under the Constitution, “right to vote” is a fundamental right as well as a legal right. A fundamental right as provided under Constitution in terms of Section 67, as well as the ultimate vehicle for the enjoyment of the freedoms of Conscience, Expression and Association. A legal right in that it is given under law: The Electoral Act. The aspirations; the much vaunted position of Botswana being the “Diamond of Democracy in Africa”, to make Botswana’s democracy vibrant and develop, requires that the right to Vote, a fundamental human right, be preserved and expanded and not limited or impeded. The voter has the right to know and ascertain with certainty that his Constitutional Freedoms and Rights are given the actual expression they were intended to be given ensuring that the choice is not merely a mechanical exercise but a fulfillment of his expression.
The provisions under Sections 11, 12 and 13 of the Constitution in respect of the Freedoms of Association, Expression and Conscience, in the case of elections, includes voting. A voter expresses these rights by casting vote; a fundamental and basic necessity for survival of democracy. The emphasis in any democratic state must be on making this right (to vote) absolutely free and transparent from all obstacles imposed by laws and procedures. A voter has the right to know that his vote, exercised in the fulfillment of the nation’s democratic ideals and as a part of freedom of expression, conscience and association, has been exercised in favour of the candidate whom they have chosen. This right which is fundamental in nature and not merely a legal right is completely absent in the electronic voting system. In the traditional paper ballot system, the fundamental right is preserved as a voter knows exactly how their vote was recorded and counted by the use of the “ballot”. The proposed use of EVMs, which do not provide this ballot nor the ability to provide a transparent public counting method, would be unconstitutional in Botswana’s elections process. There is furthermore international precedent for this position as can be seen in the decision of the Federal Constitutional Court of Germany (March 2009) which held that the use of electronic voting machines as unconstitutional.
Paperless elections and security concerns
Various countries have banned EVMs due to concerns over their security and integrity. Ireland, Germany, Netherlands have either abandoned their implementation (at a huge cost to the Tax Payer - in Ireland it cost the Tax Payer €55 million) - or had them declared unconstitutional by their superior Court.
The Constitutional Court in Germany banned the use of EVM’s on the lack of availability of a paper- trial. In addition the court opined that, in contrast to the traditional voting system where manipulations and frauds are more difficult and would involve a high degree of effort and a high risk of detection, "programming errors in the software or deliberate electoral fraud committed by manipulating the software of electronic voting machines can be recognised only with difficulty." On the 18th May 2010, the BBC published a report indicating that Michigan University had hacked the Indian made EVM. The BBC report was based on damning findings against the Indian-made EVMs titled “Security Analysis of India’s Electronic Voting Machines” which concludes; “Despite elaborate safeguards, India’s EVMs are vulnerable to serious attacks. Dishonest insiders or other criminals with physical access to the machines can insert malicious hardware that can steal votes for the lifetime of the machines. India’s EVMs do not provide transparency, so voters and election officials have no reason to be confident that the machines are behaving honestly”.
The Indian state-owned Company that makes the EVM’s has not denied the allegations against the machines however the Professor behind this report was deported from India on his return. Additional Reports on EVMs such as the INTERNATIONAL FOUNDATION FOR ELECTORAL SYSTEMS - “ELECTRONIC VOTING MACHINES (EVMS)” found that: “SECURTY...EVMs are computers, which run software, and the votes cast using an EVM are stored in a safe storage or space in the computer’s memory. All software carries the risk of malfunction or manipulation. The time gap between voting and the counting of votes makes the process vulnerable to hacking and manipulation. The chance of tampering increases as the time gap increases. In the Netherlands, in 2006, licenses of 1,187 EVMs were withdrawn after a citizen group “We do not trust voting machines” showed they could hack into EVMs in five minutes from up to 40 meters away without the knowledge of voters or election officials. Later, in 2008, the Netherlands banned the machines after a group of activists successfully demonstrated that both types of EVMs then in use could be tampered with. The danger for EVM manipulations is not just from its software, but also the hardware. If a person can get access to an EVM, for instance, while it is being transported or assembled, there are several ways the machine may be manipulated. One is that the entire system can be replaced with an unauthorized one. A device could also be inserted between the ballot unit cable and take control of the unit. Another possibility is the chip that records the votes could be replaced with a fraudulent or malicious one”.