South African authorities should drop criminal trespass and intimidation charges against freelance journalist Thomo Nkgadima and ensure that members of the press do not face reprisal for reporting issues of public interest, the Committee to Protect Journalists said Wednesday.

In a statement to CPJ, Thabiso Mokoena, a spokesperson for the mayor, said that a case had been lodged against two men who “entered the Mayor’s premises without his knowledge or consent.” Mokoena did not name the second person and added that they “later learned” that one of the men was a journalist.

Ngkadima denied the allegations and told CPJ that he only took photographs from outside the property in Praktiseer, about 15 km (9 miles) north of Burgersfort, the municipality’s main town, in connection with a story he was reporting about illegal electricity connections in the area.

On December 27, Nkgadima appeared at the Praktiseer Magistrate Court on charges of intimidation and trespass, according to the journalist and a statement by the South African National Editors’ Forum (SANEF), an industry body. Nkgadima told CPJ that he appeared without legal representation and was denied bail.

Nkgadima said that on December 29, the court released him on bail of 1,000 rand (US$ 53) and scheduled his next appearance for February 7.

“Thomo Nkgadima’s arrest and detention over the holiday period was a disgraceful attempt to deter him from reporting on a matter of public interest,” said CPJ’s sub-Saharan Africa representative, Muthoki Mumo, in Nairobi. “South African authorities should halt all criminal proceedings related to Nkgadima’s journalism and provide guarantees that he can continue to work without further harassment.”

Nkgadima told CPJ that he was detained under “inhumane conditions” at Tubatse police station, which is adjacent to the court.

“It’s a filthy place; there’s no functioning toilet,” he said, adding that he did not eat anything because he did not trust the food and that his relatives were not allowed to visit him. “I was unwell by Friday. I was shivering while in court but got better when I got home.”

If found guilty of trespass, Nkgadima could face up to two years’ imprisonment plus a fine of up to 2,000 rand (US $107), while the penalty for intimidation is up to 10 years in jail, plus a fine of up to 20,000 rand (US$1,068).

“I’m ready to defend myself and defend the freedom I enjoy as a journalist,” Nkgadima told CPJ. “I won’t be intimidated. I’ll defend my rights because I didn’t commit any crime.”

Limpopo Province police spokesperson Brigadier Hlulani Mashaba told CPJ that a complaint had been lodged against Nkgadima and another person who was “on the run” but declined to comment further while the matter was in court.

South Africa’s constitution protects media freedom and its courts have supported that right, including by pushing back on legal efforts to gag investigative reporters and a ruling prohibiting former President Jacob Zuma from privately prosecuting journalist Karyn Maughan. However, CPJ documented at least nine assaults on journalists in 2023 and there have been calls for greater protection of the press ahead of elections due to take place between May and August 2024.

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Reporters Without Borders (RSF) calls on the Johannesburg high court to overturn the entirety of the gag order it issued preventing South African investigative media outlet amaBhungane from publishing any further articles based on a leak of documents from within the Moti Group, a South Africa business conglomerate.

In a letter dated 12 April, the Moti Group accused amaBhungane of using stolen documents as the basis of damaging articles about conflicts of interest in the company’s relations with President Emmerson Mnangagwa’s government in Zimbabwe and the methods it has used to promote its Zimbabwean mining operations. AmaBhungane denies that the documents were obtained illegally.

In response to a secret application by the Moti Group, a Johannesburg high court judge issued a ruling on 1 June ordering amaBhungane to return the documents and banning it from publishing any further articles in its #MotiFiles series. After amaBhungane appealed, another Johannesburg high court judge ruled on 3 June that the media did not have to return the documents. But the publication ban remains in effect.

The high court must quash the entire initial ruling restricting the work of amaBhungane’s journalists and compromising the confidentiality of their sources. We are outraged by the injustice suffered by this public interest investigative media outlet, whose seriousness and professionalism are undeniable. The courts must respect editorial freedom and the freedom to reveal information in the public interest.

Sadibou Marong, Director of RSF’s sub-Saharan Africa bureau

According to amaBhungane, the judge who issued the second ruling said it was “inexplicable” that the court had ordered the return of the documents. A follow-up application by amaBhungane, seeking the quashing of the publication ban, is expected to be heard in the coming weeks.

The Moti Group has so far not brought any defamation suit against amaBhungane or referred its articles to South Africa’s press ombudsman. Instead, it has waged a huge publication relations campaign by means of TikTok videos and paid articles designed to repair its image and smear amaBhungane.

Zunaid Moti, the Moti Group’s CEO until his resignation last March, said in a press release on 4 June that the company’s dispute with amaBhungane was about “preventing journalists from reporting upon stolen information,” not “gagging” the media. Dondo Mogajane, the new CEO, accused amaBhunganeof publishing a series of “highly distorted, inaccurate and defamatory reports.”

AmaBhungane has repeatedly demonstrated its competence as an investigative media outlet in South Africa and its journalists played a leading role in the 2017 “Gupta Leaks” exposé of large scale corruption within former President Jacob Zuma’s administration and among Zuma associates, which was based on more than 200,000 documents found on a decommissioned corporate server.

South Africa is ranked 25th out of 180 countries in RSF’s 2023 World Press Freedom Index.

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In response to the Wednesday, June 7, ruling by the Pietermaritzburg High Court prohibiting former South African President Jacob Zuma from continuing the private prosecution of journalist Karyn Maughan, the Committee to Protect Journalists issued the following statement urging the former president to accept the ruling:

“The unanimous ruling of three high court judges, including a punitive cost order, is a legal smackdown for former South African President Jacob Zuma and a massive victory for Karyn Maughan to continue her journalism freely without the sustained harassment campaign that Zuma, his family, and his supporters have waged both online and within the legal system,” said Angela Quintal, CPJ’s Africa program coordinator. “We urge the former president not to appeal the judgment. Zuma took an oath to uphold the Constitution when he became president, and he should accept the constitutional right to media freedom that the court has so eloquently upheld.”

The case began in September 2022, when Zuma’s legal team filed criminal charges which launched a private prosecution against Maughan in connection to her August 2021 News24 report on Zuma’s medical condition. The court found that the alleged confidential information that Zuma claimed was unlawfully given to Maughan was in fact public and had already been filed in court three times by the time she published them.

On Wednesday, the Jacob Zuma Foundation, the former president’s personal foundation, tweeted that he would appeal the “bizarre judgment.”

In their ruling, the judges labeled Zuma’s attempt at privately prosecuting Maughan an “abuse of process” and a violation of the right to media freedom recognized in the South African Constitution. The judges also noted that the media’s right to freedom of expression “is not just (or even primarily) for the benefit of the media: it is for the benefit of the public.”

“Such [a] right we agree encompasses the right of journalists to report freely on matters of public interest without threats and without intimidation and harassment,” the judges wrote. The judges said it was evident in Zuma’s affidavit and tweets by his associates and his daughter that the former president harbors “great hostility” towards Maughan.

Prosecutors have previously criticized Zuma for his “Stalingrad Strategy” in attempting to delay his trial over alleged corruption in an arms deal for nearly 20 years.

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In March 2023, journalists in multiple towns in South Africa were attacked, harassed, or threatened in connection with their reporting.

On March 2, in the city of Newcastle, Mayor Xolani Dube and his deputy Musa “Sugar” Thwala accused Estella Naicker, a reporter with privately owned newspaper Northern Natal News, of being paid by political rivals to write negative stories about them while she reported on a residents’ association filling potholes in the city, according to the journalist, who communicated with CPJ via messaging app, and a statement by the South African National Editors’ Forum, a local trade group.

Thwala asked Naicker what she was doing there, told her no one had invited her, and said that he and the mayor were unhappy about her recent coverage of them. He warned her against publishing further stories about them without talking to him first and asked her to leave.

Naicker had recently reported on alleged corruption in the municipality, according to CPJ’s review of the newspaper’s print edition. Naicker said she did not obey their orders and instead went across the road, where she began taking photographs.

Two of the mayor’s bodyguards approached, took her phone, and deleted the pictures she had taken that day. “After that, I had two of their bodyguards standing on either side of me so that I don’t take other pictures,” Naicker told CPJ.

Naicker called Mbali Butale and Zianne Leibrandt, both journalists with Northern Natal News’ sister newspaper, the Newcastle Advertiser, to support her and record any further incidents, according to those sources and Butale and Leibrandt, who communicated with CPJ via messaging app. When the pair arrived, four bodyguards approached and threatened to slap the journalists if they took pictures. “The atmosphere was very hostile,” Butale said.

Thwala approached the group and told Naicker that he had warned her more than three times to stop publishing stories about him, saying, “I will not warn you again,” according to the journalists.

Thwala and Dube left shortly after, and the reporters finished their assignment. CPJ contacted Thwala and Dube via messaging app for comment but did not receive any replies.

On March 8, in the city of East London, Sithandiwe Velaphi, a senior reporter from the privately owned newspaper Daily Dispatch, received an anonymous phone call that warned him to watch his back as people were hired to shoot him because of his investigative stories, according to a SANEF statement and the journalist, who communicated with CPJ via messaging app.

Velaphi’s employer immediately withdrew him from the field for his safety, according to Cheri-Ann James, his editor, who communicated with CPJ via messaging app. Velaphi said he was unsure which stories had prompted the threat, but he had recently reported about assassinations and alleged fraud and corruption.

“I am working remotely and avoiding public places,” Velaphi told CPJ, adding that he filed a police report in East London on March 10, and the matter was being investigated as of April 6. CPJ called and messaged the Fleet Street Police Station for comment but did not receive a response.

Separately, at about 2 a.m. on March 20, in Cape Town, two unidentified men threw a rock at a South African Broadcasting Corporation vehicle, according to news reports, a SANEF statement, and Angie Kapelianis, SABC’s head of news input, who communicated with CPJ via messaging app.

Corbin August and Atule Joka, both reporters, and Oratile Tlhoaele, a video journalist, were gathering footage for SABC ahead of an opposition-led protest when the two men hurled a rock at the vehicle’s front window and hit Tlhoaele in the head, according to those sources and Joka, who communicated with CPJ via messaging app.

Tlhoaele received treatment at a hospital for head wounds, and the journalists reported the incident to nearby law enforcement officers at the time.

South African Police Service spokesperson Novela Potelwa told CPJ by phone that the attack on SABC journalists is under investigation by police in Cape Town.

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A South African court judgment banning the publication of an intelligence report about alleged U.S. efforts to gather intelligence about South Africa’s ruling African National Congress party must be made public and should be overturned on appeal, the Committee to Protect Journalists said Thursday.

On October 5, Gauteng High Court judge Daisy Sekao Molefe issued a final order banning the Daily News newspaper and Independent Online (IOL) news website from publishing a leaked November 5, 2020 intelligence report marked “secret” by South Africa’s State Security Agency and ordered that all copies of the document in Daily News reporter Thabo Makwakwa’s possession be returned to the agency, according to a statement by IOL and a tweet by Anton Harber, the executive director of local rights organization the Campaign for Free Expression.

However, the court order has not been made public, contrary to the international legal principle of open justice whereby court processes and records should as a general rule be transparent and open to the public and as of Thursday, October 13, neither Harber nor CPJ had been able to obtain a copy of the judgment from the judge’s office and the court registrar.

Harber told CPJ via messaging app that he called the judge’s office on October 6 requesting a copy but the judge’s clerk told him that she had been instructed not to release it. He said that a formal request sent via his lawyer to the judge on October 7 also received no response. CPJ emailed Molefe’s office October 12 requesting a copy of the judgment and also called and emailed the office of the chief court registrar in Pretoria on October 13 for a copy but received no responses at the time of publication.

Independent Media, which owns Daily News and IOL, and Makwakwa will appeal the judgment, according to the IOL statement.

“In the spirit of open justice, the court ruling banning the publication of this intelligence report must be made public immediately,” said CPJ Africa Program Coordinator Angela Quintal, in New York. “An appeals court must reverse this ruling regarding a publication that is a matter of public interest, especially when information appears to have been classified incorrectly or exposes criminal activity. Too often the default when it comes to intelligence classification is ‘secret,’ even when the information is public and the subject of robust debate. The courts should guard against giving the intelligence service a blank check to censor at will.”

The report, titled “Intelligence brief: US interest in ANC party dynamics,” reportedly describes attempts by the United States to gather intelligence about the ANC and influence its policies.

The October 5 order confirmed a late-night interim order by the same court on December 22, 2021, after an application by South Africa’s State Security Agency in the absence of the media outlet’s representatives, which barred Independent Media, the Daily News, Makwakwa, and any other person from publishing or disseminating the report, according to Daily News editor Ayanda Mduli, who spoke to CPJ via messaging app.

State Security Agency spokesman Mava Scott did not respond to a request for comment via messaging app from CPJ.

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Artificial intelligence has moved from the realm of science fiction into our pockets. And while we are nowhere close to engaging with AI as sophisticated as the character Data from Star Trek, the forms of artificial narrow intelligence that we do have inform hundreds of everyday decisions, often as subtle as what products you see when you open a shopping app or the order that content appears on your social media feed.

Examples abound of the real and potential benefits of AI, like health tech that remotely analyses patients’ vital signs to alert medical staff in the event of an emergency, or initiatives to identify vulnerable people eligible for direct cash transfers.

But the promises and the success stories are all we see. And though there is a growing global awareness that AI can also be used in ways that are biased, discriminatory, and unaccountable, we know very little about how AI is used to make decisions about us. The use of AI to profile people based on their personal information – essentially, for businesses or government agencies to subtly analyse us to predict our potential as consumers, citizens, or credit risks – is a central feature of surveillance capitalism, and yet mostly shrouded in secrecy.

As part of a new research series on AI and human rights, we approached 14 leading companies in South Africa’s financial services, retail and e-commerce sectors, to ask for details of how they used AI to profile their customers. (In this case, the customer was us: we specifically approached companies where at least one member of the research team was a customer or client.) We also approached two government bodies, Home Affairs and the Department of Health, with the same query.

Why AI transparency matters for privacy

The research was prompted by what we don’t see. The lack of transparency makes it difficult to exercise the rights provided for in terms of South Africa’s data protection law – the Protection of Personal Information Act 4 of 2013. The law provides a right not to be subject to a decision which is based solely on the automated processing of your information intended to profile you.

The exact wording of the elucidating section is a bit of a mouthful and couched in caveats. But the overall purpose of the right is an important one. It ensures that consequential decisions – such as whether someone qualifies for a loan – cannot be made solely without human intervention.

But there are limits to this protection. Beyond the right’s conditional application, one limitation is that the law doesn’t require you to be notified when AI is used in this way. This makes it impossible to know whether such a decision was made, and therefore whether the right was undermined.

What we found

Our research used the access to information mechanisms provided for in POPIA and its cousin, the Promotion of Access to Information Act (PAIA), to try to understand how these South African companies and public agencies were processing our information, and how they used AI for data profiling if at all. In policy jargon, this sort of query is called a “data subject request”.

The results shed little light on how companies actually use AI. The responses – where they responded – were often maddeningly vague, or even a bit confused. Rather, the exercise showed just how much work needs to be done to enact meaningful transparency and accountability in the space of AI and data profiling.

Notably, nearly a third of the companies we approached did not respond at all, and only half provided any substantive response to our queries about their use of AI for data profiling. This reveals an ongoing challenge in basic implementation of the law. Among those companies that are widely understood to use AI for data profiling – notably, those in financial services – the responses generally did confirm that they used automated processing, but were otherwise so vague that they did not tell us anything meaningful about how AI had been used on our information.

Yet, many other responses we received suggested a worrying lack of engagement with basic legal and technical questions relating to AI and data protection. One major bank directed our query to the fraud department. At another bank, our request was briefly directed to someone in their internal HR department. (Who was, it should be said, as surprised by this as we were.) In other words, the humans answering our questions did not always seem to have a good grip on what the law says and how it relates to what their organisations were doing.

Perhaps all this should not be so shocking. In 2021, when an industry inquiry found evidence of racial bias in South African medical aid reimbursements to doctors, lack of AI transparency was actually given its own little section.

Led by Advocate Thembeka Ngcukaitobi, the inquiry’s interim findings concluded that a lack of algorithmic transparency made it impossible to say if AI played any role in the racial bias that it found. Two of the three schemes under investigation couldn’t actually explain how their own algorithms worked, as they simply rented software from an international provider.

The AI sat in a “black box” that even the insurers couldn’t open. The inquiry’s interim report noted: “In our view it is undesirable for South African companies or schemes to be making use of systems and their algorithms without knowing what informs such systems.”

What’s to be done

In sum, our research shows that it remains frustratingly difficult for people to meaningfully exercise their rights concerning the use of AI for data profiling. We need to bolster our existing legal and policy tools to ensure that the rights guaranteed in law are carried out in reality – under the watchful eye of our data protection watchdog, the Information Regulator, and other regulatory bodies.

The companies and agencies who actually use AI need to design systems and processes (and internal staffing) that makes it possible to lift the lid on the black box of algorithmic decision-making.

Yet, these processes are unlikely to fall into place by chance. To get there, we need a serious conversation about new policies and tools which will ensure transparent and accountable use of artificial intelligence. (Importantly, our other research shows that African countries are generally far behind in developing AI-related policy and regulation.)

Unfortunately, in the interim, it falls to ordinary people, whose rights are at stake in a time of mass data profiteering, to guard against the unchecked processing of our personal information – whether by humans, robots, or – as is usually the case – a combination of the two. As our research shows, this is inordinately difficult for ordinary people to do.

ALT Advisory is an Africa Digital Rights Fund (ADRF) grantee.

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This report focuses on the progress made regarding the state of broadcasting and digital migration in Angola, Botswana, South Africa and Zimbabwe

We are happy to release a report on the State of broadcasting and digital migration in the region

Most countries in the region and beyond adopted a phased approach to the digital broadcasting migration (DBM) process and the modernisation of the infrastructure was synchronised with consumer awareness and acquisition of receiver gadgets, the set-top boxes (STBs). Digital broadcasting migration hinges on three pillars and these are:

• Infrastructure
• Content
• Consumer awareness and set-top boxes

It should be noted however that some SADC countries have made good digital broadcasting migration progress and are in the final phases of the process. Others are struggling due to various factors, chief among them being financial constraints and lack of urgency to comply with the ITU timelines. It is also unfortunate that the Covid-19 pandemic that hit the world from the beginning of the year 2020 also negatively impacted the progress of digital broadcasting migration programs, as resources had to be channelled towards fighting the pandemic.

A copy of the State of broadcasting and digital migration in the region report is available for download in the MISA resource centre.

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Statement on International Day to End Impunity for Crimes Against Journalists

As the world commemorates the International Day to End Impunity for Crimes Against Journalists, MISA urges the authorities in Mozambique to account for the whereabouts of journalist Ibraimo Mbaruco.

Mbaruco has been missing since April 2020.

This is very worrying because of the chilling similarities of his unknown fate with that of Tanzanian journalist, Azory Gwanda, who disappeared in mysterious circumstances in November 2017. The Tanzanian government only reported him as dead in 2019. Gwanda was investigating a spate of high profile killings in the Rufiji area when he went missing.

It is, therefore, inexplicable, given the state machinery at the disposal of the Mozambican government, that a human being, let alone a journalist, can just vanish from the face of the earth, leaving his traumatised family in the dark as to what could have happened.

The seemingly lackadaisical, if not offhand manner, with which the Mozambican government is handling this serious matter, is disconcerting and raises unnecessary speculation and conspiracies on who was involved in Mbaruco’s disappearance.

Throughout the world, it is the State’s responsibility to ensure the safety and security of its citizens, including journalists.

Mbaruco’s last known message was that he was surrounded by soldiers.

His fate is not a matter that should easily be swept beneath the carpet but deserves the serious attention of the Mozambican government for the knowledge and peace of his family and colleagues. Allowing the perpetrators to go unpunished will spawn and perpetuate a culture of impunity that poses great risk to the work of journalists whose profession is at the core of accountable governance, respect for fundamental human rights and socio-economic development.

Our concerns come at a time when the southern African region is experiencing unprecedented upsurges in media freedom violations in member countries previously envied as paragons of media freedom.

For instance, a South African Broadcasting Corporation (SABC) crew was allegedly held against their will and threatened by African National Congress (ANC) supporters in Buffelshoek, Bushuckridge in Mpumalanga on October 21, 2021.

The news crew had to be rescued by the police.

According to the SABC news website, the ANC supporters, numbering about 20, threatened to burn the broadcaster’s vehicle and take the crew’s equipment.

At least four community radio stations were vandalised, with equipment worth tens of thousands of United States dollars destroyed during protests in South Africa following the incarceration of that country’s former president, Jacob Zuma.

The radio stations that fell victim to the protesters are Alex FM, in Alexandra, north of Johannesburg, Mams Radio, In Mamelodi, northeast of Pretoria, West Side FM, in Kagiso, west of Johannesburg and Intokozo FM, in Durban.

In Malawi, a group of 10 Malawi police officers on January 22, 2021, allegedly assaulted an investigative journalist, Henry Mhango, while he was reporting on compliance with COVID-19 regulations.

Nine journalists were on September 30, 2021, arrested by members of the Zimbabwe Republic Police while at the Zimbabwe Electoral Commission (ZEC) offices in Harare.

The journalists, Leopold Munhende, Thomas Madhuku, Nyashadzashe Ndoro, Robert Tapfumaneyi, Marshal Bwanya, Gaddaffi Wells, Adrian Matutu, Tongai Mwenje, and Tinashe Muringai, had gone to the ZEC offices to cover a demonstration by members of the opposition MDC Alliance.

The journalists were taken to Harare Central Police Station before being released without charge, following the intervention of lawyer Chris Mhike.

MISA urges other SADC governments to take a leaf from the action of the Zambian Information and Broadcasting Services permanent secretary, Amos Malupenga, in his quest to safeguard media freedom and the rights of journalists.

Malupenga marched to the police headquarters in Lusaka on March 12, 2021, demanding that law enforcement agents do more to protect journalists who were facing increased attacks and harassment.

As highlighted by UNESCO, impunity for crimes against journalists damages societies by covering serious human rights abuses, corruption and crime.

We, therefore, urge authorities to investigate crimes committed against journalists on duty and prosecute the perpetrators, as this will send clear messages that society does not tolerate attacks against the media.

As has been pointed out, impunity damages whole societies by covering up serious human rights abuses, corruption, and crime.

The media is at the core of citizens’ right to free expression and accountable governance.

Golden Maunganidze
MISA Regional Chairperson

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The African Freedom of Expression Exchange (AFEX) and its member in South Africa, the Freedom of Expression Institute (FXI) today expressed their deepest concerns as the riot death toll exceeded 200 deaths in two of the 9 provinces in South Africa, following the jailing of former President Jacob Zuma, and which has included looting and destruction of public and private property.

According to the Government Communication and Information System (GCIS), a number of community radio stations in the two affected provinces were negatively impacted, including Alex FM, Westside FM, Mamelodi FM as well as Intokozo FM.

It will be recalled that Jacob Zuma had appeared before the court several times since his reign ended in 2018, to account for public funds embezzlement and mismanagement while he was steering the affairs of the state at the helm of the South Africa nation.

In the line of the prosecution, the court found him guilty of defying a court order to appear at an inquiry into corruption allegations when he was in power. Due to failure of compliance, the Constitutional Court slapped him with 15 months in jail for contempt of court.

According to media reportage, the condemnation of Zuma triggered riots from the former president’s home base of KwaZulu-Natal province and spread across the country.

As a result of the violent protests, business and transport networks have been disrupted by the protesters, including thugs, and ill-intentioned people who took advantage of the situation to break into commerce, and shopping malls. Massive looting was reported by the media and by individuals on social media platforms.

The security forces have also responded to the protests, by arresting more than 200 people, dispersing hundreds of several others, while more than 40 people were reported killed and scores of others injured.

As looting and anarchy continue, people in some communities organized themselves in assuring security and defending commercial centers and shopping malls to prevent looting.

From the perspectives of some sociopolitical analysts, the spate of violent protest, including looting and anarchy is unprecedented since the end of the white minority reign in South Africa, under the apartheid segregationist regime.

It is also believed that the impact of the COVID-19 pandemic and its associated restrictions, including the recent lockdowns measures decreed in the country, compounded with losses as business activities have cut down due to the pandemic, which had frustrated many people.

The sentencing of Jacob Zuma, therefore, opened floodgates of frustrations that were incubating among several underprivileged communities. However, this must not serve as a pretext for violent protests, vandalism, and anarchy ever recorded in the country. Some people are of the view that the country was sitting on a socio-political time-bomb, due to economic hardship, widespread corruption, and criminalities.

”The rioting and looting are a prime way for many criminal elements to take advantage of the situation under the banner of Free Zuma whether they believe in it or not,” Mervyn Abrahams, program coordinator for the Pietermaritzburg Economic Justice Dignity, said to Bloomberg.

Addresses to the nation by President Cyril Ramaphosa have not dissuaded rioting and looting, while security forces are struggling to contain the vandalism, chaos, with several people killed.

AFEX and FXI are appalled by the violent protest, looting, and vandalism. ”This undermines the right of peaceful demonstration and sets a bad precedent that could serve as a basis for detractors of freedom of peaceful demonstration. Such a situation has the potential to downgrade the right of freedom to protest as part of fundamental civil and political rights, including the right to freedom of expression. We call on the authorities to play their roles in a responsible manner,” said Mr Samkelo Mokhine, Executive Director of Freedom of Expression Institute.

Therefore, AFEX and FXI condemn in the strongest terms any violent protests, including vandalism and looting of private and public property.

We demand political leaders, and the organisers of protests to educate their sympathizers on the exercise of the rights to freedom of peaceful demonstration, respect of other people’s rights, and protection of property, including the media.

The demand for accountability from public office holders, including past presidents and high-profile public servants, forms part of the key requirements for the consolidation of any democratic regime, and rule of laws.

We also call on the authorities and security agents to exercise responsibly, their execution of public order and crowd control and bring before the rigor of the law those found to have been perpetrators of looting, vandalism, and anarchy.

Members of AFEX:

ADISI-Cameroon
Africa Freedom of Information Centre
Association for Media Development in South Sudan
Center for Media Studies and Peace Building
Collaboration on International ICT Policy in Eastern and Southern Africa (CIPESA)
Freedom of Expression Institute
Gambia Press Union (GPU)
Human Rights Network for Journalists – Uganda
Institute for Media and Society
International Press Centre
Journaliste en danger
Media Foundation for West Africa
Media Institute of Southern Africa
Media Rights Agenda
West African Journalists Association

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By Tusi Fokane

As South Africa prepares to hold local government elections in 2021, the parliament’s Portfolio Committee on Home Affairs has rejected two proposals contained in the Electoral Laws Amendment Bill, which could have seen the introduction of electronic voting in the country.

The rejected proposals were contained in clause 14, which suggested that the country’s Independent Electoral Commission (IEC) “may prescribe a different voting method” under the 1998 Electoral Act and clause 21 which sought to make a similar amendment to the Local Government: Municipal Electoral Act, 2000. The electoral body had intended to use these amendments to progressively introduce e-voting.

A report adopted by the Committee on December 1, 2020 notes that the introduction of different voting methods is a policy matter that “cannot be left to the IEC alone to decide” and emphasised that “explicit clarity must be given to the effect that the amendments do not authorise e-voting upon signing of the bill into law.”

The proposals were part of the Electoral Laws Amendment Bill which was introduced in September 2020 to amend legislation governing national, provincial and local government elections, including the forthcoming 2021 local government elections. Local government elections are set to take place between August 4 and November 1, 2021, although the final date is yet to be gazetted by the Minister of Cooperative Governance and Traditional Affairs.

The proposed amendments under the Bill seek to align three key pieces of electoral legislation, namely the Electoral Commission Act, the Electoral Act and the Local Government: Municipal Electoral Act. Besides proposals related to methods of voting, the other proposed amendments relate to procedures regarding the registration of parties, the submissions of candidate lists by parties, the casting of votes in a district where a voter is not registered, and the protection of voters’ personal data against disclosure pursuant to the Protection of Personal Information Act.

 Proposals for electronic voting were first tabled by the IEC back in July 2020, when it indicated that electronic voting considerations were still in early stages and would first be trialled as a pilot. The Commission stated that electronic voting would help increase efficiencies in the existing system including counting and capturing of election results. There is currently no provision for online or postal voting in South Africa, as its prevailing electoral laws provide that voters must vote in person at their voting station.

The decision of the Portfolio Committee on Home Affairs to reject alternative methods of voting proposals followed complaints from various stakeholders. Consultations by the Portfolio Committee via the Dear South Africa platform received over 12,000 submissions from the general public and civil society. Many of the submissions received were against the adoption of the Electoral Laws Amendment Bill, citing constitutional concerns over the introduction of the electronic voting method. Members of the public took exception to the powers delegated to the electoral commission to change electoral policy without proper public participation and parliamentary oversight. Some commentators also criticised the short time-frame given for public input – two weeks – from mid to end October 2020, although this was subsequently extended to November 6, 2020.

Submissions also raised concerns on the possibility of electoral fraud, hacking and the rigging of election results. There were also concerns raised about the costs of an e-voting system, given South Africa’s current fiscal constraints, as well as exclusion of communities who may not have access to digital technologies. As at January 2020, internet penetration in South Africa was estimated at 62%.

In response to concerns raised by members of the Committee regarding the public submissions, the IEC has argued that the proposed amendments were intended to create a framework for the piloting of electronic voting, as opposed to rolling it out fully in the country.

Whereas the Portfolio Committee acknowledged the beneficial role of technology in enhancing the electoral process, it cautioned against deploying technology without considering the necessary legal and constitutional implications. The Chairperson of the Committee noted that:

The truth of the matter is that technology is upon us and preparation must be started to ensure that we have both the legal framework and the technical experience that will ensure that elections are secure if a decision to vote through e-voting is taken..

In its statement, the Portfolio Committee on Home Affairs requested the IEC to return to Parliament with case studies on the implementation, challenges and successes of electronic voting in other countries.

In the 2009 general elections, the IEC introduced technological solutions to assist with processing of ballots. Four years later in 2013, the electoral body convened a seminar on Electronic Voting and Counting Technologies to assess the feasibility of electronic voting in South Africa. The then Chairperson of the IEC, Advocate Pansy Tlakula, noted that the country had not formally adopted a position on e-voting and that whilst e-voting presented some benefits such as speed and accuracy in vote counting, it would be expensive to monitor and could reduce transparency in the voting process. She also noted that there was no global standard for the verification and auditing of e-voting systems.

Electronic voting was once again put on the national agenda following the outcome of the ruling party’s June 2020 National Working Committee meeting. The African National Congress (ANC) reported that it had discussed “alternative methods of conducting elections, including the use of electronic voting” in light of the Covid-19 pandemic. This was followed by media reports that the IEC was considering launching an e-voting pilot in July, without providing any details on the roll-out. Shortly thereafter, in September, the IEC indicated that it had scrapped its planned pilot due to a lack of budget.

While the matter is on hold pending a detailed report on international case studies, implications, challenges and successes of e-voting, it is important for the IEC to address the issues raised by stakeholders. These include ensuring the security and transparency of the processing and verification of votes, as well as ensuring that rural voters have access to reliable internet, electricity and networks to cast their e-ballots. Costs of financing the e-voting system also require careful consideration.

Another critical prerequisite is the need to ensure adequate public participation in amendments to laws governing the electoral system. This can be overcome by allowing Parliament to exercise its legislative role and ensuring members of the public are afforded the opportunity to deliberate on and make substantive inputs to proposed changes to electoral policy.

Tusi Fokane is a 2020 CIPESA Fellow focussing on the availability and use of digital technologies to combat the spread of Covid-19 in South Africa. She is also studying the country’s readiness for electronic voting to comply with social distancing and other movement restrictions during the upcoming local government elections.

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