My Treatise for Ensuring Credible Elections in Africa – Tlakula

My Treatise for Ensuring Credible Elections in Africa – Tlakula

She comes across as a woman who’s been virtually everywhere with her intimidating and daunting credentials. You may be right if you call her ‘Madam Elections’. No doubt, Ms Faith Dikeledi Pansy Tlakula, 62, former Chairperson, Electoral Commission of South Africa has an imposing mien spiced by her rich background in Law, Human Rights, Electoral

She comes across as a woman who’s been virtually everywhere with her intimidating and daunting credentials. You may be right if you call her ‘Madam Elections’. No doubt, Ms Faith Dikeledi Pansy Tlakula, 62, former Chairperson, Electoral Commission of South Africa has an imposing mien spiced by her rich background in Law, Human Rights, Electoral Management and Information Data Regulation.

Graduated with a Bachelors and Masters degree in Law from the prestigious University of the Witwatersrand and Harvard University in 1984 and 1989 respectively, Tlakula who was born in Evaton, one of the poor townships neighbouring Johannesburg, on June 7, 1957, also bagged a Honorary Doctorate in Legal Studies in 2006 from the Vaal University of Technology.

Appointed a member of the African Commission of Human and People’s Rights (ACHPR) in 2005, she was elected Chairperson of the Commission in 2015. That was after serving as one of the first members of the South African Human Rights Commission (SAHRC) from 1995 to 2002.

As ACHPR Commissioner, she was responsible for the promotion of human rights in Lesotho, Mauritius, Namibia, Swaziland and Sierra Leone. She was also Special Rapporteur on Freedom of Expression and Access to Information in Africa.

Tlakula who spoke to Tony Iyare on the sidelines of the recently held West Africa Media Excellence Conference and Awards (WAMECA) in Accra, Ghana, narrates her story:

“In 2010, I was mandated by a resolution of the African Commission to begin the process of drafting a Model Law on Access to Information for Africa to guide African countries in drafting and possible adoption of their national access to information legislation. The two and a half year project culminated in the draft Model Law which was adopted by the Commission in 2013. Several countries on the Continent are already using the Model Law to guide the development of their national legislation.

“By 2012, I launched a campaign for the decriminalisation of laws limiting freedom of expression in Africa. Specifically, criminal defamation, sedition, insult laws and publication of false news. The campaign is based on the guarantee of freedom of expression under article 9 of the African Charter on Human and Peoples’ Rights (African Charter) as further elaborated by Principle XII of the Declaration of Principles on Freedom of Expression in Africa.

“Previously in 2011, I participated in the UN Inter-Agency meeting on the Safety of Journalists and the Issue of Impunity which culminated in the adoption of the UN Plan of Action on The Safety of Journalists and The Issue of Impunity.”

As Chief Electoral Officer between 2002 and 2011, and later, Chairperson of the Electoral Commission of South Africa from 2011 to 2014, Tlakula managed several national, provincial and local government elections. She was also President, Electoral Commissions Forum of Southern African Development Countries (SADC-ECF) spanning 2011-2014.

During her tenure, the Electoral Commission hosted several delegations on study visits from around the world including, but not limited to the following countries: Afghanistan, Iraq, Vietnam, Nepal, Indonesia, Palestine, Egypt, India, Mexico, Thailand, Malaysia, Nigeria, and Liberia for information sharing on the South African electoral model and systems.

Under her leadership, the Electoral Commission also entered into electoral technical assistance agreements with several Election Management Bodies (EMBs) from around the world including; Mexico, India, Palestine, the Democratic Republic of Congo (DRC) and Madagascar.

Hinting further on her enviable forays across the African Continent and the Commonwealth on electoral matters, Tlakula explains:

 “In 2013 I was member of the Steering Committee that championed the revival of the Association of African Election Authorities (AAEA). The meeting was facilitated by the African Union.

“I was earlier invited in 2012 by the African Union (AU) to form part of their election observation mission to Kenya. I have also observed elections in numerous African and other countries. The most recent of these was the snap-election in Lesotho where I headed the observer mission of the Electoral Institute for Sustainable Democracy in Africa (EISA) in February 2015.

“I led the team of the Electoral Commission of South Africa in 2006 that assisted the Democratic Republic of Congo with their first democratic elections in 40 years.

“In 2006, I was a member of the African Union Election Experts that sought to develop sustainable electoral practices on the African Continent through the Establishment of the AU Electoral Assistance Unit.

“I was appointed by the United Nations Development Programme (UNDP) in 2007 as one of the international technical advisers to the Independent National Electoral Commission (INEC) of the Federal Republic of Nigeria for the Presidential Elections of 2007.

“I was later invited by the INEC as one of the experts that undertook a review of electoral legislation in Nigeria in 2008.

“In 2010, I was one of the two experts appointed by the Commonwealth Secretariat on a scoping visit to the Interim Independent Electoral Commission of Kenya (IIEC) to identify the technical assistance needs of the Commission.

“In 2009, I was invited by the Commonwealth secretariat to a working meeting of experts to conceptualize the formation of the Commonwealth Community of Election Management Bodies, now known as the Commonwealth Electoral Network.”

Tlakula served as the Co-Convenor, 1st National Conference on Racism that was convened by the South African Human Rights Commission on behalf of the Government of the Republic of South Africa in preparation for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR). The conference was held in the Sandton Convention Centre, Johannesburg in September 2000.

“I was part of the South African Government’s negotiating team at the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance that was held in Durban in August – September 2001,” she quips.

Holding forte as Executive Director, Black Lawyers Association (BLA) from 1994 to 1995, Tlakula was a Lecturer and Senior Lecturer, Department of Private Law at the North West University (formerly University of Bophuthatswana) between 1985-1993. She was also a Visiting Scholar, University of Cornell from 1989 to 1990. She also served as Chancellor, Vaal University of Technology from 2010 to 2014.

In December 2016, she was appointed Chairperson of the Information Regulator of South Africa. The Regulator is responsible for monitoring and enforcing the right to privacy as it relates to data protection and the right of access to information.

Also in June 2019, Tlakula was elected to serve on the United Nations Committee on the Elimination of Racial Discrimination (CERD) for a four year term commencing in January 2020. Her job of managing elections and promoting human rights in Africa is an interesting read. Excerpts:       

When and where were you born? Do you wish to share the circumstances of your birth?

I was born and bred in a township called Evaton, South of Johannesburg on 12 June 1957. Until the early nineties, the township did not have electricity and sanitation. Clean running water was only installed in the late sixties. Until then we drew water from a well.

Your resume is packed full, do you relax at all? How do you really relax? Do you play golf or tennis? What kind of music do you listen to? Or do you spare time to dance? What really are your hobbies?

I love music. All types of music. In particular, I love African Jazz, Rythm and Blues and Choral music. I enjoy dancing at a good party. I do not play any sport. I do not have a lot of time to relax but I enjoy spending time with my family, especially my eight year old grandson.

Many complain about the rising cost of elections in Africa, what do you think is responsible for this? Do you think it is justified to complain about rising costs of elections?

Democracy is expensive. Technology is the main cost driver. At times Election Management Bodies (EMBs) are lured by tech companies to deploy technology unnecessarily. Before deploying technology, EMBs should always conduct a thorough needs analysis.

It is generally believed that elections are almost like war in Africa, why is this so?

I do not agree with this statement. There is nothing wrong with elections. The challenge is the transparency, credibility and integrity of the process. In some instances, the electoral system such as the first past the post, winner takes all may contribute to election related conflict, particularly in post conflict countries.

Some gender activists say South Africa has done well in terms of gender mainstreaming in political representation. Do you share this view? Women are in vital positions in government. The Foreign Minister, Defence Minister and Speaker of Parliament are all women. Do you agree the women have done well?

Yes I do. Gender activism is part of our ‘DNA’ as South African women. They were a great part of the anti-apartheid struggle and were part of the negotiation for a multi-racial South Africa. There’s no way women could have been shoved aside. I won’t however be happy and fully fulfilled until the women get the big price, that is, a woman becoming the President of South Africa.

What do you think is responsible for the backlash against fellow Africans in South Africa and what can be done to stem it?

Challenges are multi faceted and complex. Poverty, inequality, poor economic and social conditions, particularly in the African communities and corruption in government departments are some of the challenges responsible for the backlash. The government should address these challenges.

Why do you think is responsible for the rise in the arm twisting by many governments in Africa against the media and journalists?

Exposure of corruption and criticism of governments are some of the reasons for this

You have cautioned EMBs against the misuse of voters’ personal data. Do you have personal experiences that you wish to share as former Chairperson, Electoral Commission of South Africa?

The personal information of voters should only be used for election related purposes and not for any other purpose. Failure to do so will discourage people from registering as voters.  EMBs should always be mindful of the fact that the right to privacy, which is part of human dignity, includes data privacy. No one should be allowed to misuse the personal data of another. As Chairperson, Electoral commission of South Africa, I resisted pressures to release the data of voters including one demanded by a mother who wanted to use it to trace her missing daughter. Although I felt so much for her, all I agreed to do for the woman was to pass on her number to her daughter so that they could contact each other.

What do you say to people who look at your background and say, this woman has been virtually everything? What really keeps you strong? What has prepared you for all the huge responsibilities?

I have not been everything. I have never run for political office and do not intend to do so. I try to execute any responsibilities that I have been given to the best of my ability. I always strive to put my best foot forward. Growing up under the evil system of apartheid made us strong and resilient.

What role did you play during the anti-apartheid struggle?

Although I was not an active political activist in the sense that I did not go into exile and was never detained, the political environment in which I grew up as a black South African female who suffered triple oppression, namely, gender, race and class, sharpened my political awareness.

What’s your thought about the relationship between the African Charter on human rights and credible elections?

There’s a need to reflect on the intersection between technological innovation and participatory governance, particularly as they relate to free, fair and credible elections. In this regard, it is important to reflect in particular, on how the use of technology in the electoral process impacts positively or negatively on human rights such as the right to peaceful, free, fair and credible elections, the right of access to information, the right to peaceful assembly, the right to freedom of expression and the right to privacy amongst others.

The right of participation in political and public affairs is one of the rights entrenched in a number of international and regional human rights instruments. At the international level, the right is provided for in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) also provides for the right of participation in political and public affairs.

On the African Continent, this right is entrenched in a number of African Union human rights instruments which include the Constitutive Act of the African Union, African Charter on Human and People’s Rights (African Charter), the African Charter on Democracy, Elections and Governance. (Democracy Charter), the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (Maputo Protocol), the African Youth Charter and the African Convention on Preventing and Combating Corruption (Convention on Corruption)

The elements of the right of participation in political and public affairs include the right to vote and to be elected, the right to be consulted about public affairs and the right to be appointed to public service. This right can only be fully realised if it is enjoyed with other rights such as the right of access to information, the right to freedom of expression, the right to freedom of assembly and association, the right to equality and equal protection of the law and the right to privacy.

What’s the interconnection between access to information and freedom of expression and the conduct of credible elections?

There’s need to stress importance of access to information and freedom of expression in the conduct of free, fair and credible elections. Most international and African Union human rights instruments mentioned above, including the African Union Declaration on the Principles Governing Democratic Elections in Africa, recognise the importance of the right to freedom of expression and access to information in the conduct of transparent, free, fair and credible election, which in turn ensures the effective exercise of the fundamental and universal right to democratic elections.

The role of the right of access to information in fostering good governance, transparency, accountability and responsiveness cannot be overemphasised. Access to information is a cross cutting right which underpins the enjoyment of other rights, in particular social, economic and  other political rights such as the right to vote.

The lack of information at all stages of the electoral process breeds distrust and lack of confidence in the process, which often poses a threat to peace, security and stability. The elections can only be free, fair and credible if the electorate has access to accurate, credible and reliable information at all stages of the electoral process. Without information on a broad range of issues prior, during and after elections, the electorate cannot exercise their right to vote meaningfully.

Upon realising the absence of a regional standard on access to information in elections in Africa, in 2017 the African Commission on Human and Peoples Rights adopted Guidelines on Access to Information and Elections in Africa. These Guidelines provide guidance on access to information in the electoral process as a means of strengthening democratic governance in Africa. The foundational principle of the Guidelines is that all key stakeholders involved in the electoral process must proactively disclose election related public information they hold without being requested to do so.

The Guidelines require the following key stakeholders involved in the election to proactively disclose public information in order to enhance the credibility and transparency of the electoral process: Authorities responsible for appointing the Election Management Bodies, Election Management Bodies (EMBs), Political Parties and Candidates, Law Enforcement Agencies, Election Observers and Monitors, Media and online Media Platforms Providers, Media Regulatory Bodies and Civil Society Organisation. The Guidelines on Access to Information and Elections in Africa are the first to be developed globally and the State Parties to the African Charter should incorporate them into their national laws.

You have harped on the importance of the right to privacy in the electoral process. What’s this all about?

As already stated above, it is now a recognised principle that there is an interconnection between the right to vote and other rights such as the right of access to information, the right to peaceful assembly and association, the right to freedom of expression and the right to privacy amongst others. However, the discourse on the rights based approach to democratic elections on the African Continent has so far not included the importance of the right to privacy, in particular data privacy, in the electoral process. The reason for this might be the non recognition of the right to privacy in the African Charter.

However, data privacy is provided for in the African Union Convention on Cyber Security and Data Protection (Convention), which was adopted by the African Union in 2014. The Convention recognises the interrelationship between the right of access to information and the right to privacy as it relates to the protection of personal data. This interrelationship is aptly reflected in the preamble to the Convention which stipulates that:

“The protection of personal data and private life constitutes a major challenge to the Information Society for governments as well as other stakeholders; and that such protection requires a balance between the use of information and communication technologies and the protection of the privacy of citizens in their daily or professional lives, while guaranteeing the free flow of information.”

EMBs are indeed allowed to process personal information of voters in the voter’s roll to enable them to perform their duties and functions of managing elections. In fulfilling these duties and functions, they have to strike a balance between the right to privacy of voters and the free flow of information required for the legitimacy, credibility and transparency of the electoral process.

Therefore, EMBs are required to comply with all the principles or conditions for the lawful processing of personal information when they compile the voter’s roll. For example, they must ensure that they obtain the consent of a voter before they register him or her, they must use the personal information or data of a voter for the purpose for which that information was collected from the voter and they must secure such personal information or data. The question which remains to be addressed is whether an EMB should include all the personal information of voters contained in voters’ roll such as an identity number in the case of South Africa, when they publish the roll for inspection.

An identity number in South Africa is a unique identifier which provides information on a person’s age, sex and citizenship status. It also serves as an identifier for a number of other enquiries relating to marital status, searches in the deeds office disclosing matrimonial regime, property ownership, company directorships etc.

Does the inclusion of the identity numbers of voters in the publication of the voters’ roll not amount to the excessive processing of the personal information or data of a voter and therefore an infringement of his or her right to privacy? The view of the Information Regulator is that it does. The balance can be struck between the right of access to information and the right to privacy of a voter by either excluding the voter’s identity number from the published roll or by encrypting it.

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