After we were not able to get a satisfactory response from the IEC, we have gone ahead and laid a complaint with the Human Rights Commission. Below is the letter we sent last week regarding the site.
http://www.iec.org.za/Netscape.htm
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The South African Human Rights Commission
Complaints Registration
Per Telefax 011 484 1360
Dear Ms Sebongile Mutlwane:
Unequal treatment by Independent Electoral Commission
It is our unfortunate duty to bring to your attention a failure by the Independent Electoral Commission (IEC) to carry out is functions as described in the Electoral Commission Act, which amounts to discrimination on an arbitrary ground contrary to the Bill of Rights, and failure to provide information as required by the Bill of Rights. This failure is particularly pointed as the IEC is a Chapter 9 institution, constitutionally required to be impartial, and exercise its powers without favour or prejudice.
The issue concerns the website maintained by the IEC, which can be found at the following Universal Resource Locator on the World Wide Web: http://www.elections.org.za/
However unlike the vast majority of websites on the world wide web, and unlike other South African government websites, this website is not accessible to viewers, except those who have purchased a particular software product from a specific software vendor. This is apparent from the page which appears when anyone using other software attempts to access the site, whereupon the site presents a page with the following words:
“Welcome to the IEC web site!
Our server detected that you are using a Browser or Operating System (e.g. Netscape, Mozilla Firefox, etc) which is currently incompatible with our site.
This web site is designed for Microsoft Internet Explorer versions 4 and above on Microsoft Windows. The IEC is currently in the process of enhancing the web site so that it will also cater for other browsers. We apologize for the inconvenience caused.
Please click on the image below to download the latest version of Internet Explorer.”
A copy of the webpage in question is attached. As is apparent on the webpage there is an icon which advertises Microsoft Software, and links to a page maintained by Microsoft Corporation which will allow use of the Internet Explorer browser only if the user installs the Microsoft’s operating system.
The consequence is that anyone attempting to access the IEC site is presented with a refusal of access if the person does not obtain the proprietary software not only for a specific browser but for a specific operating system. Anyone using a different browser cannot access the site, and therefore cannot access the IEC information.
The error page referred to above does not comply with any standard version of html or xhtml, which makes it difficult to render using screen readers and other forms of assistive technology. If, as is fair to assume, the remainder of the site is also not strictly html or xhtml compliant, it would imply that there is potentially yet another element of discrimination in the access to information by visually impaired users.
The discrimination is self evidently objectionable. However it is essential that appropriate control is exercised over the imposition of technology which impacts on delivery of government services. The Public Service Regulations (PSR), 2001 (Government Notice No. R. 1 of 5 January 2001) Chapter 5 Part III on interoperability makes it mandatory to comply with minimum interoperability standards (MIOS) for the public service as it is essential for seamless and integrated service delivery. The PSR clearly states that “A head of department shall include compliance with the MIOS in the project approval procedure for the department. The MIOS shall be used in the audit and review of every project of a department. ” The MIOS in turn stipulates conformance to the W3C Hypertext Mark-up Language HTML v4.0 and XHTML . Compliance with these standards would enable any Internet browser to access the website. The Internet Explorer which is currently the only browser which can access the website could also access a website compliant with these international standards. The issue has been raised with the Chief Information Officer of the IEC who has failed to respond satisfactorily.
The IEC’s decision to make its website inaccessible to everyone except for purchasers of a proprietary product violates the rights set out in the Constitution.
Electoral Act:
Section 181 (2) of the Constitution states that the Commission has the additional functions described in national legislation. National legislation in the form of the Electoral Commission Act 1996 set out these functions. Section 5 provides that these functions include:
(c) promote conditions conducive to free and fair elections;
(d) promote knowledge of sound and democratic electoral processes;
…
(h) undertake and promote research into electoral matters;
(i) develop and promote the development of electoral expertise and technology in all spheres of government;
…
(k) promote voter education;
(l) promote cooperation with and between persons, institutions, governments and administrations for the achievement of its objects.
All of these functions may be carried out using the unparalleled communication power of the World Wide Web. It may be that these functions are carried out for the portion of the population which purchases the products of a single software vendor. In choosing to limit its communication only to those who have purchased a particular type of software the IEC is failing to discharge its constitutional functions.
Favour:
Section 181 (2) of the Constitution requires that the institutions listed in section 181, which includes the IEC at 181 (f) should be “impartial and must exercise their powers and functions without fear, favour or prejudice.”
Permitting access only to the purchasers of a particular commercial product, and then linking to the vendors of the product is an entirely untoward favouring of that vendor.
Equality:
Section 9 (3) of the Bill of Rights prohibits the state, which includes the IEC, from discriminating against anyone on one or more grounds. The IEC discriminates against anyone who does not use the commercial products of a particular commercial vendor.
It may be that the IEC will claim that it is necessary for technical reasons for it to discriminate against everyone who has not recently purchased Microsoft products. This claim is obviously unsustainable when other government websites, such as the website of the South African Human Rights Commission itself are freely available without discrimination.
The discrimination is particularly pernicious since it operates on the basis of wealth, granting access to those able to afford the required operating system and refusing it to those who make use of free Internet browsers such as Mozilla’s Firefox browser which may be obtained free of charge, and those who make use of free operating systems such as the Ubuntu operating system.
Access to Information
Section 32 (1) (a) of the Bill of Rights states that everyone has the right of access to information held by the State. Although section 32 (2) goes on to stipulate national legislation to deal with access request it is not necessary to refer to the Promotion of Access to Information Act 2002, since the issue is not a request for a specific document in terms of that Act. Instead it involves a principle that a state institution such as the IEC may not impose unreasonable restrictions on access to information. The IEC can have no objection to making the content of the IEC website available since it already makes that content available to Microsoft customers. The imposition of a requirement that in order to access information from the IEC South Africans should purchase software from a particular vendor is contrary to core of the right of access to information.
We note that it is not simply that the IEC favours one proprietary browser over another but that the IEC favours a proprietary browser which is tied to a proprietary operating system in a way which has been the subject of government investigation and imposition of unprecedented penalties in Europe. The IEC favours a proprietary browser and operating system over free alternatives, thus exacerbating the Digital Divide. Internet access is beyond the reach of far too many South Africans, to impose additional cost barriers on those who obtain access in favour of a software vendor is unacceptable.
We request the Commission find that when government bodies communicate with and deliver services to people that:
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government bodies should never force people to use a particular proprietary vendor’s products;
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government bodies should not favour a particular proprietary vendor’s products;
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government bodies should never require people to purchase a particular proprietary vendor’s products;
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government bodies should adhere to open standards, especially those set out in the MIOS;
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government bodies should support free and open source software.
We believe that the Commission will find that the IEC website manifestly does not comply with these requirements, nor with the IEC’s obligations to respect, promote and fulfil the rights in the Bill of Rights, as set out above.
Accordingly the IEC should be required to;
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furnish a date by when the situation will be rectified
publish that date together with an apology to the people of South Africa for failing to fulfil its obligations, and commit itself to the five points above on its website.
We would like to point out that this complaint would not have been necessary if the IEC had followed Government’s policy by adhering to the MIOS and the “policy on free and open source software use for South African Government” that has been approved by Cabinet. We understand that there are a number of technological issues which arise and are able to assist the Commission with these should that prove necessary.
Sincerely,
Aslam Raffee
Chair, OSS and Open Standards Working Group
Daniel Mashao
Chief Technical Officer, SITA
Helen King
The Shuttleworth Foundation
