Author: Marystella Auma Simiyu
Centre for Human Rights, University of Pretoria
According to the 2020 African election calendar, at least 23 countries had scheduled a presidential, legislative and/or local election. As of 20 April 2020, 10 of these countries including South Africa, Tunisia, Nigeria, Zimbabwe, The Gambia, Cameroon, Libya, Ethiopia, Kenya and Ghana had been forced to postpone these elections and other electioneering activities due to the risk and uncertainty posed by the COVID-19 pandemic that has upended ordinary socio-economic and political activities.
On the political front, the ability of countries to conduct periodic, free and fair elections to facilitate the exercise of the right to vote has been put to test by the coronavirus. The right to vote is a fundamental human right that is codified under Article 25 of the International Covenant on Civil and Political Rights (ICCPR), Article 13 of the African Charter on Human and Peoples’ Rights (ACHPR), and majority of constitutions around the world. However, the right to vote is not a non-derogable right. In the wake of the coronavirus, many governments have invoked their emergency powers leading to the derogation of a range of civil and political rights including the right to vote. This can be justified under Article 4 of the ICCPR that provides:
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
Nevertheless, stakeholders need to scrutinize the exercise of these powers to ensure the limitation of any right including the right to vote meets the international standard of legality, necessity and proportionality in a democratic society.
The decision to postpone elections or modify the conditions in which elections take place in the wake of COVID-19 is a sound one given the risk presented by the pandemic juxtaposed with the circumstances in which elections occur in most African countries. Packed campaign rallies as well as long queues of voters in polling stations is a typical scenario for the days preceding Election Day and the polling day. Needless to say, this is not feasible in the COVID-19 era when the World Health Organisation (WHO) has advised that social distancing measures are critical to the containment of the coronavirus. Further, mobility restriction measures such as lockdowns and curfews complicate the free movement of the electorate, political candidates and poll workers.
However, it is unclear when coronavirus will be sufficiently contained to allow for free movement. Ultimately, the decision on whether to proceed with scheduled elections or to postpone the elections depends on the severity of the pandemic in the respective countries, as well as the risk mitigation measures put in place. Should elections continue, certain factors have to be considered to ensure the polls meet the requisite standards of democratic elections, and are a true reflection of the will of the people. Of particular importance are principles of universal and equal suffrage, by secret ballot, and free from intimidation or undue influence.
Universal and equal voter participation is of concern during the COVID-19 era with special focus on persons already infected with coronavirus, vulnerable populations such as the elderly, and diaspora voters. For example, South Korea which chose to proceed with its 15 April 2020 elections had to close down 40 polling stations that were located abroad given the social distancing measures implemented in the oversees destinations, effectively excluding the vote of approximately 53.2% of eligible diaspora voters. For persons who had tested positive for the virus, special early voting procedures were implemented, and those in self quarantine were allowed to vote after the official closing time of the voting stations.
Closer to home, Guinea chose to proceed with the conduct of a constitutional referendum vote as well as its National Assembly election scheduled for 22 March 2020. This culminated in a 91.5% vote in favour of the new constitution as well as a victory for the ruling party Rassemblement du Peuple de Guinée (RPG) which won the majority of the seats. The election was preceded and followed by violence particularly in opposition strongholds who opposed the election claiming it was a ploy by the 82-year old president to secure a third term in office. While the credibility of the election was already in doubt, a concern that had been raised by the African Union (AU) and Economic Community of West African States (ECOWAS) which had both previously withdrawn their observer missions as a result, the imprudence of moving on with the vote was further compounded by the fact that many local and international observers were unable to attend and independently verify the credibility of the elections in the wake of the coronavirus. Nevertheless, Guinea registered a voter turnout of 61% which is noteworthy under the ensuing circumstances. However, the post-election unrest in Guinea is far from ideal in this scenario given that as of 20 April 2020, the country had registered 579 cases, 87 recoveries and 5 deaths of the coronavirus as compared to 22 March 2020 when it only had two cases and zero deaths.
Similarly, on 29 March 2020, Mali proceeded with its first-round legislative elections, that had been postponed in 2018 and 2019, amid health and security concerns stemming from COVID-19 and terrorist attacks. Understandably, Malians were apprehensive about their safety given that the first death had been recorded just a day before the polls. Unlike Guinea, Mali recorded a low voter turnout of approximately 35.6% nationwide and 12% in Bamako, its capital city. The provision of Personal Protective Equipment (PPE) such as masks, and hand washing stations were seen as insufficient measures to curb fears of the spread of the coronavirus. This is further complicated by the fact that the country has a poor health delivery system and large sections of the country are not under the control of government but terrorists. The second round of elections scheduled for 19 April 2020 proceeded despite of the continuing security and health threats. Given the ramifications of COVID-19, such decisions to proceed with elections in the absence of effective risk mitigating measures come with unnecessary risks to the safety of the electorate as well as poll officers.
On the other hand, postponement or modification of electoral processes carries with it unique legal consequences. There is a real possibility that alterations to the election process or calendar may result in a constitutional crisis with governments remaining in power past their due date. Overcoming this challenge is dependent on the constitutional and legislative frameworks of the different jurisdictions including provisions on strict timelines for election procedures, guidelines on modification of election deadlines, frameworks for continuity of leadership in the event of an emergency, and powers conferred on the Election Management Body (EMB) to make timely and relevant regulations. Therefore, before a government decides on whether to modify or postpone an election, there should be a wide consultative process with political and civil actors, legal experts, and health professionals.
Digital technologies to the rescue?
An alternative to delayed or postponed elections and sidestepping questions about a possible constitutional crisis would be the adoption of alternative voting procedures, for example, remote voting. The success of remote voting is largely predicated on the availability and efficiency of election technologies, as well as public access to Information and Communications Technology (ICTs). Never has the right of access to internet been more important as the age of COVID-19. According to statistics released by the International Telecommunication Union (ITU), Africa has the lowest mobile and internet penetration in the world, with only 28.2% of the population in Africa having access to internet. This is evidence of the need for Africa to pay greater attention to bridging the global digital divide.
Democratic processes cannot be held at ransom by the coronavirus indefinitely. Obviously, mobility restrictions currently in place have implications on preparatory arrangements that have previously required in-person interaction. To avoid delays, countries should harness the benefits of digital technologies in election management. Technological solutions for voter education, voter registration, and voter identification and verification, as well as electronic voting and counting measures would certainly reduce the risks presented by human to human interaction. Further, online platforms as well as traditional media are particularly important for connecting political candidates with the electorate as traditional campaign rallies are unfeasible under the circumstances. However, the implementation of these measures is faced with a myriad of challenges in the African context including poor ICT infrastructure, limited mobile and internet penetration, digital illiteracy as well as income inequalities.
There are existing global lessons to guide this process. Majority of countries worldwide have adopted some form of technology in their election process especially for biometric registration, identification and verification of voters. However, this system still poses challenges in the COVID-19 era. Voters as well as election staff will still need to be physically present in the polling stations. Further, identification and verification of voters as well as the voting, counting and tabulation process require interaction with various fomites including the biometric machine, the polling booth, voting materials and other surfaces one might touch while inside or within the environs of the polling station. Even if all the voters and staff are provided with PPE, additional measures including strict social distancing, provision of handwashing stations and hand sanitizers, as well as constant disinfection of the polling station are necessary. Even if this is done, it is still likely that many voters would avoid the whole process for safety reasons.
E-voting and e-counting technologies that employ remote procedures would serve to allow democratic processes such as elections to continue while maintaining social distancing. However, a far fewer number of countries have already rolled out an e-voting system. Namibia is the only African country to use e-voting in its elections. Worldwide, Estonia, Mongolia, the United States of America, India, Philippines, Brazil, Iraq and Kyrgyzstan have similarly adopted e-voting measures. But realistically, the unique circumstances of a country determine the feasibility of implementing electronic voting and/or counting procedures. For example, in Estonia the fact that most Estonians have a Smart ID coupled with an electronic signature reduces the risk of voter fraud and increases the transparency of voter identification and verification. While other countries have partially adopted, or piloted e-voting and e-counting procedures, security concerns emanating from vulnerabilities to remote intrusion (hacking), the transparency and auditability of the process, and the expense of implementation informed decisions to discontinue or limit their widespread application. This was the case in Paraguay, Germany, Ireland and Netherlands.
However, the disruption brought about by coronavirus on private and public life has necessitated the development of innovative digital solutions. It is time for a global discussion on how to harness the benefits of e-voting and e-counting technologies to allow the continuation of democratic processes. This is an apt time to actively develop solutions to the challenges presented by these technologies, especially to ensure the security of the vote as well as the respect for universal and equal suffrage and secrecy of the vote. Africa particularly has to address the challenges around the global digital divide. The establishment of critical ICT infrastructure and equal access to electricity is essential. Further, African governments have to address digital literacy, which requires ICT training to be integrated in educational curriculums from kindergarten to tertiary institutions. Digital literacy training should equally be accessible to older generations, to allow them to equally participate in the democratic process. To address affordability concerns, governments should liaise with telecommunication companies to facilitate zero rated access to certain public information including government websites as well as that of state institutions such as EMBs. Further, EMBs should have in place effective security measures and backup systems to prevent cybersecurity threats that would compromise the integrity of the vote.
About the Author:
Marystella Auma Simiyu is a Doctor of Laws (LLD) Candidate at the Centre for Human Rights, University of Pretoria researching on ‘Media and elections in the digital age.’ She holds an LLM (cum laude) from the Centre for Human Rights, University of Pretoria and LLB from Kenyatta University in Kenya. She is an Advocate of the High Court of Kenya and currently a researcher at the Expression, Information and Digital Rights Unit at the Centre for Human Rights. Her research areas include democratisation in Africa, international human rights law, constitutional law, elections, digital rights, legal theory, transitional justice, and regional human rights systems.
