Legal Framework —
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Legal Framework

A legal and regulatory framework may be viewed as a set of constitutional, legislative, regulatory, jurisprudential and managerial rules that together establish the voting rights citizens use to elect representatives. Beyond the selection of public officials, citizens often use elections to accept or reject legislative bills, governmental decisions and resolutions. 

Countries differ in the organization of their territorial, political and governmental systems, which affects the design of their electoral frameworks. Similarly, the legal instruments and traditions upon which electoral frameworks rest, vary. These factors greatly influence the design and revision of frameworks. 

The objective of this Legal Framework Encyclopaedia topic  is to analyze, from a comparative perspective, specific issues related to legal and administrative regulations which are fundamental for any election which aspires to be free and fair. It aims to provide better understanding of what an electoral legal framework is and can aspire to be, and how it can be reformed and improved. 

 

Context

The study of electoral processes in any particular jurisdiction will always reference  specific considerations of social and political context. Even in the context of international law and standards, “States have, and must have, wide discretion to establish institutions in accordance with national and local conditions and requirements.”[i]

As any other legal institution, electoral systems cannot be created or adopted in a blind way. Historical, social, political, economic and cultural particularities of each country have to be taken into account.  Such conditions will likely be central to the planning, definition, objectives and the stages that the democratization of any single country has to follow.

For example, the starting point for a country which has overcome an authoritarian regime is not always the same. While some countries have been democratic (as the Czech Republic), others may have never or not recently been so, such as may happen with those that have just finished a lengthy colonial period. The democratization strategy followed in a country characterized by high levels of social development and education is unlikely to be similar to the one followed in a country lacking minimum social structures.

Democratization seen as the conclusion of a process suggests that it is necessary to take into account each country’s particularities. Democratization is the final stage of a process that must not to be extended more than necessary. Democratization requires, however, a period of stabilization and a number of successful elections and stable governments to be become consolidated.

It can be risky to rush the undertaking of a democratization process. Any democratization process based on undemocratic institutions and on undemocratic laws will be frustrating. Exaggerated expectations as well as impatient actions are always dangerous. Social and political particularities have to support the adoption of democratization models.

There are no bulletproof solutions, but taking into account social and economic particularities represents a reasonable starting point. Such is also the case when the particularities distinguishing judicial and administrative systems, the prestige of legal systems, political parties and political organizations, media and broadcasting corporations, educational level and previous democratic experiences are taken into account.

A fundamental component of national particularities can also be found in the so-called historical or institutional memory: other times, in countries just liberated from dictatorships, electoral preferences are guided by territorial and social facts in an astonishing way.

The extension of the right to vote and the evolution of the role played by the main actors in a representative democracy (political parties) are closely related to each other. In their origin, political parties reflected the basic structure of constitutional law. Back then, voting was undertaken to limit governmental powers, and political participation was limited to a small number of individuals (usually male and adult individuals). At their origin, flexible programs and ideologies ruled political parties. As a matter of fact, personal interests often guided the existence of political parties. The evolution of political parties in America has been quite different to the evolution of political parties in Europe. However, both models have tried to export their fundamentals to other regions of the world.

The endorsement of the right to vote as a universal right had quite different effects in democratic regimes from those in undemocratic ones.

Recent decades have borne witness, to a kind of “democratic wave”, which began in Southern Europe at the end of the seventies and was extended to Latin America during the eighties and more recently in the phenomenon popularly referred to as the “Arab Spring”. Such “democratic waves” have been supported by effective international cooperation and have also affected Eastern Europe and Africa.

Furthermore, normative designs, the reform of normative designs, and the creation of international or regional electoral systems (European Union, Central American Parliament, for instance), the creation of national (in each single country), state, autonomous, departmental, municipal, or county electoral systems must take into account cultural, economic, legal, social and political particularities which affect electoral institutions and electoral processes. This reality is also imposed on both the execution and the adjudication of electoral laws.

An electoral system context can be seen as a group of conditions which are closely related to each other, and which are fundamental for the design, execution and results of such a system, not as a group of isolated referents.

Electoral models are not perfect. Different electoral systems can be used to reach the citizens’ aims in a particular place. An electoral system will be adequate as long as it fulfills the expectations of democratic development of the political community in which it will be applied, or as long as it facilitates the transitional period or the democratic consolidation of such country.

Electoral designs can produce some results, help build-up ruling majorities or represent in a more faithful way the existence of political groups. Nevertheless there are some other non-electoral elements that can produce the existence of non-representative majorities, just as happens with the size and distribution of a Congress, the balance of powers between political parties, and the construction of alliances and coalitions, territorial distribution of voters, electoral agreements, and so on.

Any democratic undertaking, which aspires to be legitimate, inclusive and viable, has to be cognizant of and answer to all the expectations and political ideologies from every single political agent (citizens, political parties, citizens’ organizations, interest groups, and so on), whether such political agents’ opinions are opposite or not.

Political agreements, social contexts and contingent circumstances, are important in designing and developing the legal framework for electoral systems. Electoral systems have to avoid turning themselves into unsustainable or unrealistic theoretical postures. However, they cannot violate principles on which free and fair elections are based, which can be listed as follows: the human’s right to vote, to be elected, to hold regular elections, to have neutral electoral authorities, to vote in a secret way, to have an equal access to elections, and to have a judicial review of electoral disputes.  Therefore, as concluded in the 2005 UN Declaration of Principles for International Election Observation, “while all election processes should reflect universal principles for genuine democratic elections, no election can be separated from the political, cultural and historical context in which it takes place."[ii]



[i] DRI and The Carter Center, Strengthening International Law, 10.

[ii] European Commission, Handbook for European Union Election Observation, 181.

Overview

The most basic questions are why a legal framework is important to democratic elections and what exactly is meant by the term “legal framework”?  The first question is well answered by a publication of the National Democratic Institute for International Affairs (NDI) entitled, Promoting Legal Frameworks for Democratic Elections:

 Establishing the “rules of the game” for elections should be a vital concern to political parties, candidates and citizens alike. Democratic elections serve to settle fairly and peacefully the competition among those seeking to exercise governmental powers as representatives of the people. Democratic elections also serve as the means for citizens to express freely their will as to who shall have the authority and legitimacy to wield the reins of government as their representatives. It is thus in the direct and immediate interests of electoral contestants – political parties and candidates – and of the population as a whole – citizens and their associations – to ensure that the rules for electoral competition, as well as the way those rules are enforced, guarantee that a genuine democratic election takes place.[i]


From an electoral point of view, “legal framework” has both a broad and a technical meaning. Broadly speaking, a legal framework may be seen as the entirety of a group of constitutional, legislative, regulatory, jurisprudential and managerial rules that together establish the voting rights used by citizens to elect representative officials. In a more technical sense, the legal framework can also be seen as a collection of procedural techniques. From this topic’s point of view, “legal framework” is understood in both such meanings however the default approach will be to develop a working definition of “legal framework” as broad as possible in order to achieve a more fulsome understanding.

Indeed, a legal framework may also be further extended by electoral regulations that authorize citizens to use public powers on their own (using legal devices to achieve legislative goals, to define public policies, to impeach any public officer). Elections are neither the only way to elect public officials (there are legal and randomly made appointments; besides, elections are also undertaken by collegiate institutions such as corporations’ boards following no electoral laws whatsoever) nor are used to exclusively to select public officials. As a matter of fact, citizens also use elections to accept or reject legislative bills, governmental decisions or resolutions taken by a public authority (referendum, collective lawsuits and impeachments are used to do so).



[i] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections: An NDI Guide for Developing Election Laws and Law Commentaries (Washington D.C.: National Democratic Institute for International Afairs (NDI), 2008: 1).

Guiding Principles

Any country is free to select the most suitable electoral system. However, such a freedom is limited and to be considered democratic has to be established in line with international regulations and principles. Countries also bring along their own history and context.  For example, among countries with a colonial history, there is a common trend according to which the revision of legal frameworks includes adoption of colonial electoral systems. That is the reason why the revision of any country’s legal framework has to be undertaken in a sensitive way that takes into account each country’s historical, social and cultural particularities. This will be discussed further in the next section.

It can be said, however, that a legal framework has to be structured in a way in which principles are included as follows:

  • It has to be straightforward;
  • It has to be intelligible;
  • It has to be clear;
  • It has to include all electoral components, which are necessary to ensure the undertaking of democratic elections.

Likewise, it is necessary that a legal framework includes effective mechanisms to ensure full enforcement of the law and civil rights. Punishments must follow transgressions. 

Legal frameworks have to endorse the rights of voters, political parties, and candidates to file appeals before legitimate authorities or legitimate courts to challenge any violation against civil rights. The legal framework has to oblige electoral authorities and courts to resolve electoral appeals related to violations of the right to vote and provide for this to be done in an agile way. In order to achieve definitive rulings on electoral issues, electoral laws have to authorize higher authorities to review the orders and resolutions issued by inferior ones. Rulings issued by the highest authorities and the highest courts, have to be enforced immediately

Legal frameworks also have to establish reasonable deadlines within which electoral appeals can be filed, analyzed and resolved. The rulings on electoral appeals have to be communicated to the contesting parties immediately. Some appeals can be solved with no delay, while the resolution of others can take days or even longer. Bearing this in mind, the introduction of some flexible deadlines can be useful as long as the rank of the deciding authority, the nature of the case and the electoral urgency are all taken into account. Many problems can be avoided when appeals are solved just in time. However, some appeals can only be filed after the election has concluded.

Viewed from the most basic perspective, “Elections are examples of human rights in practice”[i] As such, free and fair elections must always fulfill basic principles aimed at ensuring universal, free, equal, direct, and confidential votes.

Perhaps the most fundamental of international standards related to elections is that in fact elections must be held. Article 21 (3) of the Universal Declaration of Human Rights (UDHR 1948) reads, “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”[ii] To do otherwise, it is observed, “the government does not ground its authority in the will of the people.”[iii] Although non-binding the UDHR was a watershed, establishing the broadly accepted rights of the individual in relation to the state[iv] and important components are now part of international customary law.

Additional core principles established and promoted by international standards can be listed as follows:

  • Voting should be universal and the oft referred to statement of “one person; one vote” must apply. Having set this broad standard it is recognized in international law that there may be restrictions of the right to vote but such restrictions need to be minimal and always demonstrably justified.
  • Voting must be secret. Not only does this imply that the act of voting must be secret but also that ballots may never be able to be attributed to a specific voter.  The goal is that, “the ballot paper when marked and dropped into the ballot box, must be completely anonymous in relation to the voter who marked it.”[v]
  • Democratic rights and freedoms have to be used in a free way in “genuine” elections, including freedom of expression, association and assembly.
  • The right to stand for election should be extended broadly and limited to the minimal extent justifiably demonstrable.  
  • Elections have to be undertaken on a regular basis. Although no specific term is fixed in international law, there is a range of views that terms should be limited to a maximum of 5 or 6 years[vi]Electoral authorities have to be neutral and “at all levels should act in a professional, efficient and unbiased manner”[vii]
  • Every single vote has to be counted in an accurate and transparent way and “Ballot papers should be deemed valid if the intent of the voter is clear.”[viii]

An independent system of control, including the right to legal remedy, has to be installed in order to ensure the integrity of elections It is interesting to note, that while the requirement for genuine elections is clearly set out in international law, a specific definition of this term is not equally well established. However, “over time, the term “genuine elections” has come to be understood as elections that are competitive and offer voters a real choice, where other essential fundamental rights are fulfilled, where the will of the voters is freely expressed, and where votes are counted honestly and accurately.”[ix]  The Organization for Security and Co-operation in Europe (OSCE) offers a further very succinct summary of key principles in its Election Observation Handbook (2010) stating them, “can be summed up in seven words: universal, equal, fair, secret, free, transparent and accountable.”[x]

Such principles are usually contained in international treaties and covenants. Yet it is interesting to observe that while international law establishes key minimum standards regarding democratic governance, “it does not establish a stand-alone “right to democracy” per se. This is largely because the term and concept of democracy is too broad and too vague to be regulated by a single legal norm.”[xi]

Nevertheless international law and standards do establish critical rights such as the right to genuine elections as referred to above in Article 21(3) of the UDHR and as set out in Article 25 of the International Covenant on Civil and Political Rights (ICCPR 1966).  Together with the UDHR, the ICCPR is among the very leading sources of international standards. In fact, Article 25 of the ICCPR has been referred to as “the cornerstone of democratic governance and genuine elections in international law.”[xii] Of note, the ICCPR has been signed and ratified by more than 160 States thereby making it legally binding in those cases.

International standards are also contained in further United Nations and regional treaties and documents. Important among these are:

  • Convention on The Political Rights of Women (1952)
  • Convention on the Elimination of All Forms of Discrimination Against Women (1979)
  • Convention on the Political Rights of Women (1952)
  • International Convention on the Elimination of Racial Discrimination (1966)
  • Convention on the Rights of Persons with Disabilities (2006)
  • The European Covenant for the Protection of Human Rights and Fundamental Freedoms (1950)
  • Charter of Paris For a New Europe: CSCE Summit (1980)
  • The Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe (OSCE-1990)
  • The American Declaration of the Rights and Duties of Man (1984)
  • The American Convention on Human Rights (1969)
  •  American Convention on Human Rights (1969)
  • The African Charter on Human and Peoples’ Rights (1981)

A requirement to adhere to the aforementioned principles in a particular country depends on the inclusion of that country as signatory to the international document. However, the normative guidance delivered by international rules is expected to further encourage promotion and support of international rules and guiding principles beyond simply the signatory countries. The European Union Compendium of International Standards for Elections concludes that legal force notwithstanding, “these instruments have strong political and moral force.”[xiii]When a nation’s legal framework is created or under revision, the nation is bound by the international treaties it has signed. Therefore, electoral rules derived from international treaties have to be upheld and will have even constitutional or statutory rank. Other United Nations’ documents unsigned by a country can, nonetheless, incorporate persuasive electoral standards within the electoral regime of that country.

In addition to international and regional treaties, covenants and convention the review and revision of legal frameworks can also take into account additional references such as:

  • Political commitments, e.g. League of Arab States (LAS), The Organization of the Islamic Conference (OIC), The Commonwealth, The Organization for Security and Co-operation in Europe (OSCE), The European Union (EU), among other initiatives[xiv];
  • Final reports from the different missions of electoral observation (both national and international), as long as such reports are available;
  • Requirements from any additional international agreement signed by the country that may have an impact on electoral laws;
  • Codes of conduct related to electoral topics and developed by governmental or non-governmental international organizations. (Codes of conduct are considered further in the section dealing with legal instruments.);
  • Best practices, such as in the areas of transparency, level playing field for electoral contestants, voter education and establishing a peaceful environment for voting, “While not always specifically referred to in universal or regional instruments, many of these practices can be considered essential to a genuine and democratic electoral process.”[xv]

As the International Institute for Democracy and Electoral Assistance (IDEA) sums up, “The legal framework should be so structured as to be unambiguous, understandable and transparent, and should address all components of an electoral system necessary to ensure democratic elections.”[xvi]  The requirement for accessibility of the legal framework should also take into consideration the multiple language requirements that may exist in a given country.

In addition to whatever force of international law may arise from such documents, “In any case it is hoped that the overall normative guidance they provide will nevertheless foster the promotion of, and support for, these international standards.”[xvii] 

It is important to evaluate the way in which electoral legal frameworks governing a country are in line with international standards. Such evaluation can offer a catalogue of constructive proposals in order to improve and correct legal frameworks as well as to introduce more effective practices aimed at improving the legislation. At the same time, it is important to remember that there are no general models or “one size fits all” when it comes to  electoral rules. Therefore, systems and practices that are applied in one country are not necessarily ideal for another one.



[i] European Commission and Network of Europeans for Electoral and Democracy Support (NEEDS), Compendium of International Standards for Elections, Second Edition (Sweden: Elanders Graphic Systems AB, 2008), Preface.

[ii] Ibid., 38.

[iii] Ibid., 5.

[iv] European Commission, Handbook for European Union Election Observation, Second Edition, (Sweden: Elanders Sverige AB, 2008), 16

[v] European Commission and NEEDS, Compendium, 6.

[vi] Ibid., 5.

[vii] Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR), Election Observation Handbook, 6th Edition. (Poland: Poligrafus Andrzej Adamiak, 2010: 23).

[viii] Ibid., 23.

[ix] Democracy Reporting International (DRI) and The Carter Center.  Strengthening International Law to Support Democratic Governance and Genuine Elections (Berlin, Germany/Atlanta Georgia, United States of America.  2012), 26.

[x] OSCE,Election Observation Handbook, 7.

[xi] DRI and The Carter Center, Strengthening International Law, 7.

[xii] Ibid., 6.

[xiii] European Commission and NEEDS, Compendium, 1.

[xiv] Ibid., 68.

[xv] European Commission, Handbook for European Union Election Observation, 15.

[xvi] International Institute for Democracy and Electoral Assistance (International IDEA), International Electoral Standards: Guidelines for reviewing the legal framework of elections (Halmstad, Sweden: Bulls Tryckeri, 2002: 11). 

[xvii] Ibid.,  8.

Introduction

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Structural Underpinnings of the Legal Framework

The organization of territorial, political and governmental systems differs from country to country and impacts the design of the electoral framework. Similarly, the legal instruments upon which the electoral framework rests may differ markedly and be further differentiated by different legal traditions which interpret and apply the law. These underpinnings greatly influence the design and revision of the legal framework of elections so as to be relevant to the particular country.

Different countries may design structural underpinnings in very different ways. There are other structural underpinnings which may differentiate countries and impact the electoral legal framework.  For example, indirect elections and semi-direct instruments are both options; however, the resulting limitations to the vote, tending to particularize it instead of being universal, as well as non-competitive one party elections, should not be welcomed.

Although the juridical tradition over which the legal framework is developed is not itself a concrete design such as the political or governmental system, its location in this topic is due to its contextual importance.

Sub-sections of this chapter:

 

Different Legal Traditions

There are certain general categories of legal tradition that differentiate legal systems by country or time. These legal traditions are shared by a certain group or whole systems and make it possible to identify different legal families. In other words, from understanding the legal tradition in which each legal system is affiliated it is possible to speak of different  legal families. However, even though a national legal system can belong to an identified  legal family, simultaneously, at the local or “communitary” jurisdiction, a diverse legal system belonging to a different legal tradition can exist. Indeed, “It is difficult to point to one country that has a pure legal tradition without influence from other systems. For historical reasons, as well as political and economic influences, the legal systems of countries are often an amalgamation of various legal systems, incorporating elements of different legal traditions.”[i]

Canada is an example of this situation: its national system belongs to the common law tradition, while the legal system in the province of Québec belongs to the Civil Law tradition. Another example can be found among the different Latin American countries with indigenous populations, whose national systems belong to the Civil Law family and, simultaneously, in more reduced territorial jurisdictions, the so called indigenous consuetudinary law is applied; including with respect to electoral matters.

Indeed, there are several legal families derived from a common origin or past, from similar institutions, from a language code or shared concepts, from the similarity of the sources of the law, from the community of proceedings and the methods or techniques used by jurists, as well as from the similar philosophical, economic or political principles which inform each legal system. 

Knowing the family in which each national legal system belongs is useful to widen the perspective of the institution or the electoral process, as well as to obtain a more informed and reliable understanding of differences among legal systems. 

Since the study must take into account the family which the system belongs to and consider its cultural, economic, political and social contexts, the translation of terminology can be problematic when trying to understand, explain or compare a certain country’s or countries’ electoral institutions, instruments, or processes.  

The Roman-Germanic, Roman-Canonic, or civil law families, have their origins in Roman Law (the Twelve Tables, Corpus Iuris Civile, and Corpus Iuris Canonici) and was decisively influenced by Canonic Law. Also, it was enriched with the contributions of commentators and “post-commentators”, and the work of the Latin-Germanic universities’ jurists. This way the so-called ius commune was formed. Later through codification processes, from which several civil, commerce, criminal or procedural codes were made, continued to the conformation of national laws arriving in the creation of the constitutions. In this legal tradition, the development of civil laws and the codification of legal dispositions based on justice and equity was favored. Countries in the Scandinavian region, Latin America, several African countries which had been European colonies, and several Continental European nations fundamentally belong to this legal family. 

The common law family arrived during the XI century in England. This legal tradition has had a wide diffusion in the majority of the English-speaking countries. It is characterized by the creation of legal dispositions coming from the judicial resolutions. In other words, the system follows the judicial precedent through which a particular case receives the same legal solution given to a previous and similar case. Therefore, opposite to the families that favor legislative creation, the law is a product of the judges’ labor. Basically, the United Kingdom, some African, American and Oceanic nations belonging to the Commonwealth legal system are found within this legal family. Most of these countries enforce English Law and recognize the monarch of the United Kingdom as Head of State. Another example is the United States.

Since they do not share a common juridical tradition, the religious systems do not constitute a legal family. The only adhesive feature is the religious or philosophical nature of its law, where law and religion are practically synonyms. In the different systems belonging to this tradition, the applicability of this mixture of conduct rules is restricted to certain subjects, such as in Hindu or Brahmanic law, observed in wide regions of India, or Hebrew law, kept by Orthodox Jewish communities spread through many countries.

However, there  are a significant number of countries where the great majority of citizens practice the Islamic religion and effectively share legal culture and tradition; therefore it is possible to attach them to the Islamic family.  

These notions are useful when considering the legal framework in a given country and in particular in subsequent sections when considering the role of the judiciary and judicial overview.



[i] Information for Development Program and International Telecommunications Union.   “Snapshot of Different Legal Traditions.” ICT Regulation Toolkit Website.

 

Political and Governmental Systems

As is the case with respect to international standards, the legal design, reform, and implementation of an electoral system, cannot disregard the cultural, economic, legal, social, and political reality or context. The application and interpretation of constitutional, legal, and regulatory regimes must agree with the context. This is true whether the system is supranational or regional (European Union or Central American Parliament), national (of each country), state, autonomous, departmental, municipal, cantonal, or of a county.

There is not one unique or perfect electoral model, but different electoral systems used to accomplish the objectives established by the citizenship and political actors as  determined at a particular place and time. A system will be adequate when it is consistent with the degree of democratic development of the community in which it is applied or when it is capable of facilitating the community’s transition to democracy or democratic consolidation itself.

System  design can provoke certain results, such as an easier construction of majorities or can serve to reflect in a more reliable or proportional way the existence of different political groups. However, the truth is that other factors which are not necessarily derived from technical electoral elements are the ones that can result in  the existence of “artificial” or circumstantial majorities. Such influencing factors can include the legislative body size, the correlation of forces among the diverse political parties and the consequent construction of coalitions or alliances, the geographical distribution of the electorate, electoral pacts or agreements, etcetera.

An inclusive and representative democratic model  which is politically viable and with high standards of legitimacy, must consider, and even accommodate the different expectations and political ideologies of each of the political actors (citizens, political parties, citizens organizations, pressure groups, etcetera) regardless of the coincidence, convergence, proximity, or even diametrical divergence of their positions in certain topics of the political agenda. Electoral systems are a product of political agreements. They are the way in which the aggregation of political groups’ interests is shown. Those interests shall not be ignored by juridical figures except  when they are opposite to the existence of free and fair electoral processes.

The choice of a concrete electoral model (direct or indirect elections), its development (majority system, proportional representation, or either mixed or segmented) and its characteristics or combination of elements (simple, absolute or qualified majority; pure or impure proportional representation; or with a governability clause) must be  decisions based on consent or majority. However, not even the majority’s agreement nor wide consent shall exclude minorities’ possibility of representation or voice in the government’s functioning whether in parliaments, congresses or legislative chambers, executive or administrative organs (town or city councils).

In order to prevent  electoral systems from becoming theoretical, inefficient or inoperative formulas, political agreement, the social context, and the circumstantial aspects are important and will be further discussed. However, those aspects cannot annihilate or proscribe the principles which inform free and fair electoral processes: the human right of a passive and active vote; the celebration of periodical and authentic elections; universal, secret, and equal suffrage; respect for human rights; neutrality of the electoral administration regarding other State apparatus and political actors; and jurisdictional control of the electoral acts’ application.

 

Territorial Organization of the State

By design in the creation of countries consideration is given to the notion of decentralization of authority to territorial subunits.  This decentralization may apply to the realms of political or judicial authority or division of powers or any combination. Thus, it is possible to distinguish among diverse degrees of decentralization of such power. From the maximum centralization of authorities and power in national bodies, up to the absolute decentralization of them to subnational entities allowing them to create and enforce legal norms within that jurisdiction.

In other words, the spatial applicability of the law is not one. Therefore, depending on the territory, there are several creators and enforcers of the legal rules. Within a country, there are national, local, provincial, departmental, regional, autonomic, and eventually, county bodies with a specific and exclusive competencies which vary from state to state. These competencies might be classified along normative, administrative or jurisdictional lines, valid in the whole territory for certain topics (when national) or just in part of the territory for other topics.

From a lower-higher perspective of decentralization, states can be classified as central or unitary, regional or composed by autonomies, federal, and confederations.  

Since the federal state coexists with national, local, state or province, and even county authorities, it represents one of the most defined grades of decentralization of juridical-political power. This coexistence implies that all of the territorial units are elected by the community, autonomous from each other, and entitled to absolutely function within their own jurisdiction. It is about two different delegated branches of government with equal level, on one hand the federal level and, on the other, the local states level. In the first one, there are whole-territory valid rules issued and applied by federal bodies and made for all the people living there. On the other hand, there are local norms created by local bodies always taking into account the federal constitution, which are valid only in some part of the national territory and with a narrow scope of validity.

Power is not just concentrated at the center, but also in the provinces or local states. The territorial subunits have political, normative, administrative and jurisdictional authorities within their own jurisdiction. The distribution or decentralization of political power is consistent with centrifugal theory. This feature does not imply that the State should not be considered as a whole national federal State. Even taking into account the national or federal Constitution, as well as national or federal authorities (legislative, administrative and jurisdictional), there are also local states Constitutions and authorities (legislative, administrative and jurisdictional) which the local states Constitutions and authorities nevertheless have to adjust to the federal Constitution which sets out the principles and fundamentals of the federal or national State. These features appear in most federal States. However, there might be some authorities reserved exclusively to the federal authorities like, for instance, the administration of justice.

Some examples of federal States are Germany, Argentina, Australia, Brazil, the United States of America, Mexico, Nigeria, and Venezuela.

On the other hand, the Regional or Autonomic State is a form of organization of a national State, by which certain public, executive, as well as normative functions correspond to “the depending territorial bodies”. This way, some nations as Belgium, Spain, Portugal, and Italy, have developed regions with constitutionally guaranteed self-government which, from a narrow point of view, does not match the rest of the local States of a federal State, or the territorial subunits of a unitary State.

Through the national Constitution, there are some central authorities in this State, in addition to some secondary authorities. Nevertheless, without implying that this can be considered as the authority to design their own Constitution, there are some other regional, territorial or provincial authorities that also have certain faculties and legislative autonomy. In these cases there is not a representative chamber with the express aim to protect territorial interests nor may these regional authorities participate in the constitutional amendment process, nor have any recognized attributes in the jurisdictional ground.

Due to the monopolization of power as well as the exercise of faculties that characterize  some national authorities, within the so-called central or unitary State, political power is completely centralized. Every person is subject to the same and only central or national authorities and thus, they are subject to one constitutional regime and one set of national laws. 

However, some degree of  decentralization in favor of the local, regional, departmental or county collectivities is not entirely incompatible with the unitary State. Nevertheless, due to the fact that it is the central authority that concedes and supervises the exercise of such power, full autonomy is never reached. Since a national authority accumulates public power, it can be said that it attends to a centripetal theory. Bolivia, Colombia, Ecuador, and France are some examples of unitary States.

There is yet another model of organization of the State: the confederated State which is represented by Switzerland. In these cases, the preservation of freedom, sovereignty and independence of the confederated entities before the national Authority strengthens the level of autonomy. Also, the entities are equal among each other and, therefore, they have the right to separate from the confederated State at any moment.

Furthermore, the confederation of two or more national independent States is aimed to satisfy economic demands from their components. It is regulated basically by international law thorough treaties or agreements like in the paradigmatic case of the European Union. It is based on interstate cooperation and coordination principles, as well as on the integration of communitarian or union and states body of laws. Besides the mainly economic and commercial topics, some other area in which the confederation may take hold are the ones related to the infrastructure and exercise of communication, as well as cultural, scientific and technological assistance and sanitary integration, among others.

Even though there are communitarian and national bodies with diversify competences, the communitarian bodies can issue rules with direct efficacy within the internal national States body of laws. In some other cases, an adoption of some internal acts is required.

In other words, what distinguishes a federal State from a central or autonomic one is the degree of decentralization. And between those and the international association of States, the difference is that the first ones find their legal fundamentals in the national body of laws, while the confederation of States is based on international law.

Since the authorities to be elected, as well as the regulatory legal framework, depend on the model of the State, it is necessary to take into account the diverse forms of organization that  can be adopted. Within a federal State, there exist federal (executive body representative or president and legislative body, normally with an upper and a lower chamber), local, and state or provincial authorities. These authorities will be declared through electoral processes ruled, in each case, by different laws appropriate to that authority. The subunits will also contain the institutions in charge of the preparation of the election, as well as some others in charge of resolving electoral disputes both, local and federal, but always with reference to the principles established in the federal Constitution. However, this is no obstacle to necessarily prevent a central body from organizing the elections and a different one, also national, solving electoral process disputes that might arise from the local, federal, and even at the county level.

Central authorities in a unitary State design the legal framework for elections of the national and, if such is the case, departmental and local or provincial authorities. Although there can be some local authorities responsible for the administration of the local electoral process, in a regional or autonomic State, the standards to which the institutions as well as the national and local electoral processes should stick to is established by the national authorities.

 

Democratic Political Government

The contemporary classification of forms of government basically distinguishes between two main categories: The European parliamentary system and the American presidential system. These legislative and executive systems can be distinguished between one another by the organization of each of the state powers, the relations among them and the form in which they are connected.

The presidential system arises in American Constitutionalism and is characterized by: a) the executive power is unitary, given that it concentrates the figures of head of state and head of the government; b) the president is elected by the people and not by the legislative power, which gives the president the relative greater autonomy; c) the president freely appoints and removes the members of the cabinet, state secretaries or ministers; d) neither the president nor the state secretaries and ministers are politically accountable in front of the congress; e) the president, the state secretaries, ministers, and members of the cabinet cannot be members of the Congress; f) The president can be affiliated or militate in a different political party than the Congress majority, and g) the president cannot dissolve the congress nor the congress can give a censure vote to the president.

The parliamentary system comes from the political evolution of a great number of European countries, especially England, and is characterized by the following: a) the members of the cabinet (executive power and government) are members of the parliament as well; b) The cabinet is conformed with the heads of the parties which by coalition form the parliamentary majority; c) The executive power is divided among a head of state with representation and protocol functions, and a head of government who handles the administration and government itself; d) In the cabinet there is a person identified as the prime minister, with great political influence in the government; e) the cabinet’s subsistence is guaranteed through parliamentary majority’s support; f) the public administration is commended to the cabinet, under the parliament’s constant supervision, which can demand political accountability to the government; g) there is a permanent inter-organic control between the parliament and the government, and h) while the parliament can deny a vote of trust or can give a censure vote to the cabinet, under which the latter one would be bound to resign, the government can ask the head of state to dissolve the parliament.

In addition, another form of government can be identified: the dictatorial form of government is the one in which a dictator or autocrat uses the attributions from its own authority and not by temporal delegation. This form of government generally derives from institutional crisis in which there is a general belief that the existent powers of the government are not capable of handling the situation.  It can also be originated by plebiscitary processes or by armed movements and coup d’ etat. The first situations establish governments with charismatic leaders; the latter ones more likely establish praetorian dictatorships. The dictatorial government tries to consolidate its support by penetrating into a great part of the community’s life, through the organization of a unique party and propaganda, or through a military apparatus. Dictatorship could create a totalitarian state.

It is important to have reference to the form of government (presidential, parliamentary or dictatorial) in order to determine the viability of institutions and the legal design of the electoral process in order that representivity and functionality are guaranteed in the electoral system, as well as governability in the political one. Of course, it also makes sense to face the technical aspects and the cultural, economical, political and social contexts, with regard to presidential and parliamentary forms of government.

 

Political Parties System

The “party system” is the whole of political parties in a certain State and the elements which characterize its structure: the number of parties; the relations among them, consideration of their magnitude as well as their relational forces, their ideological and strategic locations, are all elements to determine the ways of interaction and the nature of relations.

With respect to the number of political parties existing in a given political system, reference is made to multipartisanship, bipartisanship, or unique party. Regarding dictatorial or totalitarian forms of government, it can be said of a unique party system (as it happened in the fascist regimes, or Communist China or the Soviet Union) that it is not about institutions derived from a democratic process, but rather structures for power preservation.

Bipartisanship (as in the United States and England, for example) is identified as derived from an electoral system based on a majority principle, while the multipartisanship system (such as in Germany, Belgium, Finland, The Netherlands and Switzerland) is identified as an effect from the proportional representation system. This reductionist way of analysis establishes a line of connection between fragmentation (multipartisanship-proportional representation) and polarization (bipartisanship-majority), which has made to consider that either one system or the other contributes to the crisis and lack of stability of the democratic system.

Other criteria disregard quantitative typology in order to favor competition or are not within the political party system.

 

Legal Instruments

A legal framework is always fundamental. Legal norms are mandatory and determine how the regulation of an electoral system works. Legal devices provide electoral actions with certainty and security.

Within democratic and constitutional regimes, electoral issues are legally regulated by diverse and coordinated legislation derived from a fundamental norm, or by a Constitution. Such instruments can be listed as follows:

  • Constitution: It is a fundamental and mandatory rule from which derives the legal system of a country. The Constitution sets down basic rules on the way a nation and its government are organized, on the fundamental rights which will be enforced, on the basic principles guiding the electoral system, on the conditions that individuals have to satisfy to become citizens, on the existence of political parties, electoral authorities and electoral courts, and on procedural issues. Constitutional rules are the highest rules in a legal system; they cannot be modified easily and last longer than others.
  • International treaties: International treaties promote fundamental rights, particularly those related to political participation and voting.
  • Electoral laws: Electoral laws are normally enacted by the Congress. Democratic Congresses around the world represent the people’s will, through a representative mandate. The majority of electoral rules are contained in electoral laws. They are much more flexible than constitutional laws and are useful to regulate electoral topics in a more handy way. 
  • Judicial precedents: These are rulings and resolutions issued by judges and courts in order to solve electoral disputes. Nowadays, they have reached a top standard quality due to the relevance of the judges and courts in general within a nation’s institutional life.
  • Electoral Authorities’ Executive Orders: These are issued by administrative authorities in order to complement constitutional and legal rules.
  • Codes of Conduct: These are rules agreed by political agents. The codes of conduct aim at enhancing respectful, ordered and civilized conduct during elections. Referees are usually in charge of enforcing these codes.

At the same time, it must be recognized that the terminology for elements of the legal framework differ between jurisdictions and also that jurisdictions need not necessarily have all the elements, as is the case for example in the United Kingdom where there is no written constitution. In other specific cases, additional unique instruments are relevant, for example, ”In post-conflict countries, the peace agreement may Stipulate the conditions for elections.”[i]



[i] United Nations, Department of Political Affairs, Women & Elections: Guide to Promoting the Participation of Women in Elections (United Nations, 2005), 22.

 

 

 

International Treaties

Experts debate whether constitutions or international treaties have to be seen as the highest norm of a particular legal system. However, a compromise has been reached according to which some topics contained in international treaties, such as the protection of human rights (including political and voting rights which are part of the so-called “second generation” of human rights) have to be included within any nation’s legal system. Otherwise, such a nation can be seen as unconstitutional and undemocratic.

International treaties, which are now mandatory for more and more countries, have promoted and consolidated political and voting rights. Among such treaties are: the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the International Covenant on Civil and Political Rights, the American Convention on Human Rights (also known as the San Jose Convention), and the Convention on the Political Rights of Women.

International documents are an important source of electoral law. It is impossible to underrate the high number of international covenants, resolutions, charters, declarations and reports related to human rights in general and to political rights in particular. Many important rules are derived from international documents. For instance, every democratic country has to vote the appointment of its representative officials. In the same line of reasoning, international documents enhance the importance of international observers in electoral processes.

In the Compendium of International Standards for Elections, the European Commission proposes a typology based on level of standard (Universal meaning adopted within the UN or regional) and treaty standard (meaning either a treaty binding under international law once ratified or non-treaty standard reflecting statements of international organizations).[i]

International documents are regulated by specialized rules of international law. However, treaties in particular have to be adopted by national constitutions. National constitutions must see international treaties as producers of national laws, as higher regulations, as mandatory norms. Ordinary legislation and regulation have to detail both the content and procedural issues established by international treaties.

According to some rules derived from the Vienna Convention on the Law of Treaties (1969), there are three main principles regulating this topic: a) Every treaty binds the states which approved it; b) No State can be bound by a treaty which has not been approved by it; and c) Convened obligations are based on the consent of the states. 

However, even once ratified, “One of the big challenges of international human rights law is how human rights are enforced and what actions can be taken against a State Party that is not complying.”[ii]  Where a treaty has been ratified then recourse through the national court system is possible.  Internationally, compliance is less straightforward although there are two main options. First, core international human rights treaties have a committee or monitoring body which checks compliance and second, States can choose to recognize the competence of the treaty monitoring committees to receive complaints from individuals.[iii]  In practical terms, there may be significant limits on the effectiveness of compliance.

International treaties are so important in the world that it is very difficult to think of a national rule or constitutional norm (particularly in the field of electoral and political rights) that can oppose them. Democratic constitutional states do recognize and adopt international documents in their internal legal system.



[i] European Commission and NEEDS, Compendium, 25.

[ii] European Commission, Handbook for European Union Election Observation, 17.

[iii] Ibid., 17.

Constitutions

As set out by the Electoral Commissions Forum of SADC Countries and Electoral Institute for Sustainable Democracy in Africa (EISA) in the text, Principles for Election Management, Monitoring, and Observation in the SADC Region, the main rules governing an electoral regime have to be established at the constitutional level:

The constitutional and legal frameworks are fundamental documents of the state that provide the context and legal environment in which elections take place. The Constitution of any country should both provide the legal framework for that country and serve as the basis for the conduct and delivery of free, fair, credible and legitimate elections.[i]

Subsequent regulations must then be enacted in order to develop the content and application of constitutional rules to the actual conduct of the electoral process. 

There are no clear rules to follow in order to know which topics have to be included in the Constitution. Such a decision depends on many different conditions prevailing in every single country. Having said this, some of the topics commonly set down by constitutions are basic rules on the form of government, how representative agencies must be integrated, fundamental rights as well as the legal devices which can be used to protect them, the main principles governing the electoral system, the main features distinguishing voting, the existence of political parties and their internal regime (including topics such as funding, for instance), the existence of electoral authorities and electoral courts, and the kind of procedural rules that have to be followed.

According to the level of complexity of the rules used to reform the Constitution, and even though constitutions are usually intended to last for long periods in order to deliver certainty, rigid systems are nonetheless distinguished from flexible ones.

Some fundamental principles which can be included in the Constitution in order to ensure the undertaking of free, authentic and periodic elections in every country can be listed as follows: the right to vote is universal and has to be used in a free, secret and direct way; elections must be organized by an autonomous public agency or agencies; elections must be undertaken in a legal, independent, impartial and objective way; candidates and political parties must have equal access to the media; finally, every single electoral order has to be judicially reviewed in order to confirm its constitutionality as well as its legality.

A constitution must be seen as the main legal norm of any state, which implies that it is not only mandatory, but has to be enforced and honored as well. Electoral rules set down by constitutions are not an instance of wishful thinking, but are legal norms that have to be obeyed by constitutional and democratic regimes. 

Likewise, since the constitution is the highest law within a given legal systems, it validates all the other norms within such legal system. Constitutional rules and constitutional principles cannot be violated or ignored by non-constitutional norms. Any constitutional violation perpetrated by unconstitutional norms is null.

There are all different sorts of electoral authorities. However, constitutionally autonomous institutions have often been established. Such institutions are usually the highest electoral authorities and are completely independent from any traditional branch of government.

The creation of constitutional tribunals is a welcome development. Such tribunals have been empowered to directly interpret and adjudicate constitutional law. Bearing this in mind, since electoral topics have been constitutionally recognized, not only the creation of constitutional tribunals which are specialized to resolve electoral disputes, but also the extension of the powers of traditional constitutional tribunals to do so, seems to be reasonable.

Federal systems work under a double-leveled scheme. On one hand, federal constitutions develop the electoral topics that we have referred to for the federal level. On the other hand, even though states must use their legislative autonomy to enact electoral laws, they must nonetheless follow all electoral principles set down by the federal Constitution.

The inclusion of electoral topics in the Constitution does not mean that a new constitutional document has to be enacted. Such an addition can be undertaken enacting some strategic and specific reforms



[i] Electoral Commissions Forum of SADC Countries and Electoral Institute of Southern Africa (EISA). Principles for Election Management, Monitoring, and Observation in the SADC Region,(South Africa: Electoral Institute of Southern Africa, 2004: 7).

 

Electoral Laws

Constitutions are basic statements of a nation and are often subject to formal deliberation and a significant amendment process.  This helps to entrench the bedrock for genuine and periodic democratic elections.  However, the relative permanence of a constitution also implies that, “In order to allow for necessary flexibility, provisions related to the management of elections should be incorporated into parliamentary legislation, and administrative and procedural matters should be left to administrative rules and regulations.”[i]

Electoral law is the legal instrument used to develop the majority of electoral topics that are relevant for a nation (especially in the case of those nations following the so-called civil law tradition). Electoral laws are enacted by ordinary legislators (legislative branches of government, chambers, congresses, assemblies, parliaments) in order to develop the general principles established by the Constitution.

Often, since electoral systems have to be legitimate, strong and permanent electoral laws have to be enacted by at least a two-thirds majority of congressional members.

There is neither a model to follow in order to enact electoral laws, nor a recipe to follow regarding their contents and structure. In some countries, for instance, electoral laws are contained in a single piece of legislation (code or statute), while in others, many codes or statutes contain electoral rules in a specific way (in such cases, there are specific codes to regulate electoral authorities, political parties, systems of appeals, and so on).

Whatever the intent to create a single election law, in great likelihood, “An election law neither can nor should contain all regulations relevant to the election process. The election process will require involvement of institutions and procedures that are based on other parts of the national legal system.”[ii]  Among other matters, related legislation may be expected to include statues providing for mass communication media, non-governmental organizations, the civil service, refugees and displaced persons, citizenship, military, use of state resource, access to information and civil and criminal codes and procedures.[iii]

Under the Constitution, electoral laws can regulate electoral topics including the following:

  •  The nature of representative offices, including seat allocation and term of office
  • Individual rights to vote, to be voted, to associate freely with others and to affiliate to political parties
  • Characteristics of the voting system
  • Conditions that must be addressed by candidates to be elected
  • Legal requirements for political parties (such as the requirements that they have to fulfill to be registered, members’ rights and duties, funding, coalitions, and so on)
  • Electoral authorities’ main features (such as their structure, organization and powers)
  • Geography and elections
  • Registry of voters
  • Voter education
  • Electoral process (campaigning, election day, counting, and electoral results)
  • Electoral planning
  • Elections and the media
  • Electoral integrity
  • Disciplinary measures; system of appeals
  • Electoral courts

Countries that have constitutional tribunals can also authorize electoral laws to be challenged on constitutional grounds. The highest court of the nation will be empowered to decide on such disputes.

Drafting electoral laws is a critical undertaking and should take care to use plain language where possible and avoid conflicting references, Usually, major changes to electoral laws cannot be undertaken if the electoral process is about to begin. Such a prohibition aims at preserving political stability and legal certainty.  Once adopted, election legislation should be made widely known. In short, as the UN Report, Women and Elections, stresses, “The election law should be clear, comprehensive and transparent.”[iv]Electoral laws cannot be enacted to detail electoral regulation related to specific, concrete, administrative or internal issues of electoral authorities. Such regulation must be contained in other normative devices such as executive orders.


[i] International IDEA, International Electoral Standards, 14.

[ii] Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR), Guidelines for Reviewing a Legal Framework for Elections, (Warsaw, Poland: OSCE, 2001: 6).

[iii] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 8.

[iv] UN, Women & Elections, 22.

Administrative Regulations

Administrative regulations are issued by electoral authorities to regulate specific managerial issues in an agile and simple way. Such regulations are more flexible than legislative procedures. 

During elections, a lot of managerial issues have to be solved in an urgent way within short deadlines.

Electoral laws do not have to regulate such topics, which can change from election to election.

Administrative regulations complement electoral laws, and they have to be issued by electoral authorities in charge of undertaking elections from an executive point of view. Electoral authorities empowered to oversee electoral actions have to review the regulatory amendments.  There are many electoral structures empowered to undertake such a task. Usually, such structures have to be independent and permanent.In countries with independent electoral authorities, such authorities are empowered to issue administrative regulations. The aim in those countries is to prevent the existence of insufficient regulations. Administrative regulations allow electoral authorities to regulate specific topics such as how political parties have to file their reports, how to handle candidates’ registry, electoral campaigns, electoral advertisement, election day, and so on.

There remains however an advantage where electoral legislation specifically addresses the matter of administrative regulation. Specifying the regulation making power of the electoral authority and defining the circumstances, nature and extent of that authority as well as stipulating publication of regulations and an efficient and timely hearing of complaints are useful inclusions in statute.  After all, while there is a place for regulation making in support of electoral legislation there must also be limits so that the electoral authority, “does not act as a substitute legislator.”[i]



[i] International IDEA, International Electoral Standards, 16.

Judicial Precedent

Judicial precedents are essential to the integration of the electoral legal system. Such a claim implies a very important change: electoral disputes are no longer solved exclusively by political authorities but also by judicial ones (on one hand, there are some cases in which the resolution of electoral disputes is carried out at the courts; on the other hand, some other cases can be seen as instances of mixed systems in which both political and judicial authorities play a role in solving electoral disputes). Political authorities used to solve electoral disputes by means of political criteria. Now electoral disputes are solved by special electoral courts, which sort out disputes using legal criteria). Electoral litigation has been judicialized and the rulings issued by electoral courts and electoral judges (which can be seen as judicial precedents) have become capital to understand what electoral law is supposed to be. 

In common law systems, judicial precedents can be seen as the origin of the law (on the contrary, in civil law systems, enacted law is seen as the origin of the law). According to legal concepts such as stare decisis or ratio decidendi, the reasons supporting previous rulings have to be taken into account to solve new and similar cases. Electoral law is defined not through codes and statutes, but through judicial opinions.

In common law systems, electoral courts are very important. Such courts deliver a fundamental contribution to build-up the legal system. Judicial opinions (seen as judicial precedents) produce the law; electoral judicial opinions (seen as precedents) produce electoral law.

The so-called English system or ordinary litigation system empowers judges at the judicial branch of government to solve electoral disputes in a definitive way. Their definitive resolutions can also have the power to put an end to a sophisticated system of electoral appeals (which can be either administrative or political, as previously explained).

It is clear that for non common law systems (which are usually known as civil law systems), judicial resolutions of electoral disputes are also important.  Electoral judges in civil law systems have also made important contributions, which have strengthened and developed electoral law. In those countries, judicial precedents issued by electoral courts have to be used to solve new cases.

Judicial resolutions of electoral disputes are so important that in some cases they also decide on the constitutionality of executive orders issued by electoral authorities. When electoral resolutions do so, they can be seen as constitutional courts delivering constitutional interpretations.

Those who are authorized to establish mandatory precedents are the highest courts. Precedents are established following some formal requirements such being reached through unanimous or composed decisions. Judicial precedents (usually known as jurisprudence) are established through repeating the use of one ratio decidendi to solve more than one case. Such cases have to be similar in order to be solved using the same ratio. The highest courts’ resolutions on opposite judicial opinions, which have been upheld by different courts, are also helpful to establish judicial precedents. Usually, judicial precedents can only be interrupted or revoked by grounded and justified decisions of the highest judges.

How far do judicial precedents and judicial opinions reach? What are their effects? Who are the authorities bound by them? There are restricted legal systems within which judicial opinions and judicial resolutions are constrained to resolve the issues contested in each single case and which are mandatory only for courts and judges. However, there are also legal systems within which judicial opinions and judicial precedents can have general effects (erga omnes) and far reaching powers not only affecting every single authority but also nullifying enacted legislation.

Electoral Authorities Executive Agreements

Electoral authorities are empowered to issue executive orders aimed at regulating electoral issues. International agreements between electoral authorities (whether administrative or judicial) of different countries have been very useful to establish international cooperation and shared academic, publishing or research projects, all of which have been undertaken through high-profile conferences, seminars, congresses, workshops and publications related to electoral topics.

International agreements signed by electoral authorities do not have the same legal status as judicial resolutions. However, they are also important because they do bind the signing countries in a formal way. Once an electoral agreement has been reached, rights and duties are produced and common efforts should be performed to tackle the agreement’s objectives. International agreements (including non-electoral agreements) can be seen as a particular way to create electoral law within a general framework demanding global solutions for global problems.

International agreements must be signed by authorities authorized to do so. They must also be in line with preexisting legal rules. Unconstitutional or illegal agreements are all null and void. Agreements violating the rules set down in other agreements have to be considered null and void as well.

In federal systems, electoral agreements have been reached by authorities of different levels (the federation, the state authorities and the municipalities) and have been useful to solve electoral issues involving them (especially managerial issues) in a cooperative way. Such agreements have benefited electoral know-how and efficiency including the following topics: management, electoral training, the common use of the voters’ registry and voting identification (all of which, expensive, huge and technologically complex matters, are commonly developed by federal electoral agencies and contractually transmitted to local agencies which apply them in local elections).

Codes of Conduct

The expression “codes of conduct” can refer to many different things. Therefore, it is convenient to exclude three instances of such an expression from the outset. Those three instances affect not only electoral agents but also elections’ undertakings and cannot be seen as codes of conduct legally included within electoral processes:

  • Broadly speaking, regulations of electoral management cannot be seen as codes of conduct. Therefore, it is possible to distinguish general “codes of conduct”, such as the ones regulating Australian electoral officials, from individual codes aimed at particular individuals, such as many which have been drafted by international organizations (electoral observers). Such rules aim at establishing neutral practices for persons or organizations in charge of undertaking elections. These rules can be easily seen as a kind of managerial ones, similar to those drafted by public officials or professional bars.
  • The general codes enacted by political parties cannot be seen as codes of conduct either. Such codes are not mandatory for other political parties, but only for their active members.
  • Implicit codes for electoral performance that exist in many different democratic regimes cannot be seen as codes of conduct. Such codes establish rules regarding the candidates’ acceptance of the final results or the agreement according to which particular issues will not be discussed by the candidates. Implicit codes for electoral performances are neither explicit, nor public.

Which are the main features distinguishing a code of electoral conduct? There are at least two:

  • A code of conduct is a product of an agreement reached by political parties. Such an agreement can be in force for more than one election.
  • A code of conduct aims at complementing electoral rules. That is the reason why they play an important role in transition elections. Their main objective is two-fold. On one hand, they aim at reaching a peaceful development of the election. On the other hand, they aim at preventing abusive actions from powerful groups.

There are many differences distinguishing the two of them from each other. Such differences are based on their distinctive features and on how strong the obligations derived from them are.

Political parties can draft codes of conduct, which can include international organizations among their signers. Codes can be promoted by electoral authorities.

Codes of conduct promoted by electoral authorities can face a fundamental challenge, which can be put as follows: can codes of conduct be mandatory? From a speculative point of view, codes of conduct have to be voluntary. Some interesting conclusions can be drawn from some studies, though:

  • Some countries have incorporated codes of conduct into the electoral legislation enacted by the Parliament. Here, discussion must be started from a different perspective: Is it still possible to talk about a code of conduct?
  • Some other complications are derived from those cases in which codes of conduct freely agreed by the contenders set down punishments that have to be applied to anyone who does not honor them. In such cases, codes of conduct get a more normative status.

A majority of codes of conduct are by consent. They do not present any punishment whatsoever if someone fails to honor them. Such a situation can be considered as integrating the normative dimension of an electoral process.  Effective codes of conduct do regulate very important issues and they tend to become mandatory.

Regarding the codes’ content, it can be said that they are rules aimed at:

  • Preventing any kind of intimidation and violence.
  • Establishing rules of conduct on campaigning.
  • Preventing any kind of abusive conduct from powerful political parties.

A majority of codes of conduct promote cooperation between electoral authorities and usually impose periodical meetings. However, they do not empower electoral authorities to interpret them, nor to execute them.

Creation and Amendment Process

Comparative law shows how the enactment of a new electoral law is derived from extreme circumstances in which political institutions are afflicted by a serious crisis. The most frequent case is the one in which a transition from an authoritarian regime to a more democratic one is taking place. In such a case, the enactment of electoral laws is necessary both to legitimize and to put the situation under control.

A distinction must be drawn between:

  • The creation of electoral laws, which means to draft completely new electoral rules for a country that is facing a political change;
  • The reform of electoral laws, which refers to the adaptations of an electoral legislation that do not imply a dramatic political change. The reform of electoral laws is not as far reaching as the creation of electoral laws can be. However, it can imply important changes to every electoral system, as long as basic principles such as the right to vote, the right to be voted, the existence of political parties and the thorough supervision over the elections prevent the undertaking of a major political transformation.

The difference between the creation and the reform of electoral laws is based on pragmatic reasons related to how each one of those processes is undertaken.

  • Electoral reforms can be undertaken one step at a time. Political agents and electoral authorities can be taken into account in reformative process.
  • The creation of electoral laws can be seen as the opposite. Frequently, the enactment of new electoral laws has to be done quickly such as in  urgent cases in which legitimacy has to be fulfilled and new governments have to be on duty. 

Creation Strategies

Any country going through a democratic transition has to develop a strategy on its own. Such a strategy can follow one out of two available routes. In the first one, the importance of a new electoral law is fully evaluated as well as the impact of such an option on the legal system. Political parties debate the proposal in order to reach a sound understanding about it.

From a comparative point of view, the most successful cases are those in which a multi-party commission is empowered to draft the new law. A broad consensus opens up the most desirable route to begin the electoral process and the democratic transition.

However, this option has some practical setbacks with respect to the first elections organized at the beginning of the transition period. Some of such setbacks are worth being mentioned:

  • First, this option can contribute to extend the powers of provisional authorities in charge. Such an extension cannot be good and may bring along serious consequences. It may extend the powers of provisional authorities, affecting both their legitimacy and the efficacy of the new regime.
  • Secondly, a new law may produce an illusion. Such an illusion can be seen as a rather frequent event in transition periods, because political parties, which took a relevant role drafting the law, do not usually get an equivalent prominent role in the new regime. Therefore, the electoral legislation derived from the process can lack a real representative dimension.

The second route available would be to adopt a strategy aimed at shortening the legislative process. In such a case, the government usually decides to modify existent laws. Experts are commissioned to work on the matter using international support. This strategy too can face some setbacks, although:

  • On one hand, as long as many important issues of the old regime can be preserved, legislative reforms can be either inadequate or inconsistent.
  • On the other hand, electoral laws are not very easily reformed. It is not very simple to reform electoral laws in a deep way.

Bearing all this in mind, additional strategies can be explored as follows:

  • This third approach can be described as a synthetic strategy in which the government enacts provisional rules aimed at regulating the undertaking of elections. Such regulation forces the elected Parliament to draft new electoral laws.
  • Finally, we can talk about a gradual and slow-paced process that takes place in some locations. Such a process is aimed at political transitions and takes place by means of several elections which progressively introduce plural features reflected in law.

Gradualist strategies are derived from the political dialogue and the compromises reached between governments and minorities and can be more or less explicit. The more explicit such dialogues are, the more legitimate they become.

Amendment Process

The legal framework for elections has several sources and each source may have more or less flexibility for amendment.  The International IDEA publication, International Electoral Standards: Guidelines for Reviewing the Legal Framework of Elections, provides this very useful chart setting out the source, formal authority and flexibility of amendment:[i]

 

The chart above illustrates that in order to establish fundamental aspects of genuine and periodic democratic elections; there is an advantage to constitutions and international agreements arising in part from their difficult nature of amendment thereby better enshrining core principles. On the other hand, this same safeguarding function of difficult to amend instruments, can result in very practical problems such as how to keep up with needed change and best practices in a current and systematic manner and how then to ensure that in the course of an election there will be rapid decision making on matters that may be unique to those prevailing circumstances?  The degree with which various instruments can be amended is an important consideration in the overall legal framework.

Ideally,” Democratic legislative and regulatory processes present opportunities for individual citizens to review existing legal frameworks and comment on proposed changes, as well as to suggest modifications.”[ii] Similarly for those in the political arena, “Knowing the rules, however, is not enough. The electoral contestants must analyze the legal framework to determine whether the rules actually ensure a genuine chance to compete fairly.”[iii]  Academics, media and all manner of civil groups as well have significant interest in how the legal framework for elections is created and amended and so understanding these processes is very important to the health of the overall electoral system.  Each source of the legal framework will have its own process and opportunities and challenges to change.

Usually, electoral laws in consolidated democratic systems have a two-fold and inconsistent nature.

  • On one hand, they are evolved within political and social debates, which cause some of their weaknesses to be more frequently addressed than their strengths. Frequently, such a situation encloses a contradiction that can be summed up by the following example: how come a proportional system can be criticized when a clear separation between voters and candidates has been promoted?
  • The study of consolidated electoral systems draws a significant conclusion: electoral systems are supported by a very important degree of continuity. A kind of universal rule can be established as follows: electoral systems tend to consolidate their fundamentals; however, they can be modified when the political system is in crisis.

Such a situation is consistent with the permanent, technical, minor and procedural changes afflicting electoral laws. Among the reasons supporting the basic continuity of electoral systems, some can be mentioned as follows:

  • First, no one is eager to change what is known for the unknown. Agents of any electoral system have certainty regarding the way in which such system works. Such a certainty does not prevent citizens or even political parties from having different opinions about the electoral system.
  • Secondly, those who can modify electoral laws are the winners of the elections. Those who have benefited from the current system are the ones who must promote any change.
  • Besides, there are some historical facts that make any modification more and more difficult. Citizens usually show a kind of empathy towards their traditional electoral system, which is by the way and according to them, the closer representation of democracy. The older the electoral system is, the stronger the citizens’ empathy becomes. Tradition forces legislators to endorse traditional clauses, which may be seen as legislative relics somewhere else.
  • Finally, there are many legal challenges derived from reforming electoral laws. The most important electoral rules are set down by the Constitution and vested, therefore, with such a special protection. Electoral laws can only be reformed by composed majorities. Such a fact obliges political parties to reach a clear and broad understanding on the subject.

Nonetheless, minor reforms to electoral laws are frequent. Electoral laws in both new democracies and consolidated democratic systems are constantly reformed, constantly adjusted.



[i] Ibid., 12.

[ii] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 5.

[iii] Ibid., 2.

Essential Elements

The study of electoral processes can be divided into fifteen similar groups from a legal point of view.  These topics cover a broad range including:

  • General topics related to the design of electoral systems, to the design of electoral authorities, and to the management of electoral processes;
  • Material activities related to the electoral process’ development including boundary delimitation, voter registration, voting operations and vote counting;
  • The entities and individuals that contest elections as candidates and political parties; 
  • Related topics which are not essential to develop an electoral legal framework, but are closely related to electoral processes including voter and civic education, the role of observers and the media and elections;
  • Political financing topics including the funding of political parties and candidates, restrictions on contributions and expenditures and disclosure;
  • A fundamental topic related to electoral litigation and the resolution of electoral disputes. Such a system is fundamental because it provides the election’s results with legitimacy in a definitive way. 

Any legal framework design or reform of an existing legal framework for elections should take into consideration the topics listed above.  The general design, material activities, contesting groups and individuals, related topics supportive of the electoral process, political finance and dispute resolution are all of critical relevance to the democratic quality of elections.

Sub-sections of this chapter:

Electoral System

The Electoral System is an essential component of any legal framework because such a system defines the integration of elected public offices and the relation between the political parties in a country, in a State, or in a group of countries. Among other things, the legal framework should clearly establish the type of electoral system and the regular scheduling of elections.[i]

Broadly speaking, an electoral system can be defined as the regulation of the election of public officials.  In a more constrained definition, an electoral system can be seen as the regulation of the relation between voting and the elected officials.  Therefore, an electoral system is the way in which votes can be translated into elected representatives, and so their political content is rather clear. Such regulations  result in the enactment of very important legislative decisions. 

The design of an electoral system, seen in a more restricted way, refers not only to practices of parliamentary systems, but also to practices of both presidential systems and constitutional monarchies. In respect to the election of public officials, the selection of the electoral system is important. If the electoral system follows the majority principle, then the candidates who have more votes than their opponents are declared the winning ones. On the contrary, if the winner is elected in a second round out of the winner of the first round and the runner-up, or if the winner is elected in an indirect way (as it happens in the United States), the results can be quite different. 

Besides, electoral systems not only involve the way in which votes are turned into congressional seats, but can also affect other components of the political system (such as the development of a system of political parties, the separation of political ideologies, the representation of diverse social interests, the main features of electoral campaigns, the ability of political regimes to provide individuals with working political institutions, and the political system’s legitimacy).  Electoral systems can also be important linking citizens to their leaders (through some mechanisms such as accountability, representation and political liability).  As a matter of fact, electoral systems do generate important consequences for democratic governance in the long run.  Incentives must be brought along to help out those contending for power to summon voters in different ways, according to the socio-political reality (in societies deeply divided by languages, religious beliefs, racial or ethnic considerations, a specific electoral system can promote and praise cooperation and conciliatory attitudes from candidates and political parties, while punishing those who are neither cooperative, nor conciliatory).

Electoral systems have to be based on Constitutional Law and other Legislation.  As we have said, the design of electoral systems determines the ways in which votes are turned into public offices.  In other words, such a design determines how voting affects political representation.  That’s why an electoral system’s regulation begins at the constitutional level, and continues at the legislative one. 

A couple of characteristics distinguish the fundamental components of an electoral system (on the one hand, they affect the way in which votes are turned into political representation; they can be distinguished from others according to the political decisions which outline each one of them).  Bearing this in mind, the fundamental components of an electoral system which have to be included in electoral legislation can be listed as follows:

  • The regional division for electoral purposes, which refers to the geographic territory used to turn votes into congressional seats.
  • The electoral system (which can either recognize relative majorities–which can be simple, absolute or qualified—or proportional representation).
  • The mathematical procedure that has to be applied to turn votes into congressional seats. 
  • Electoral thresholds, which have to be seen as the minimum percentage of votes which have to be obtained by candidates in order to be included in the distribution of congressional seats distribution.
  • The way in which the election is carried out (directly or indirectly), which refers both to the voter’s ability and to the political parties’ ability to determine who are going to occupy public Offices.

The selection of an electoral system has to be inserted within a legal framework which regulates the social structures and the political differences in an adequate way.  Such a regulation must organize a representative political system in charge of solving social disputes through conciliation.  It can be said, therefore, that the selection of an electoral system can be undertaken more easily if particular objectives are identified at the outset (a greater degree of legitimacy, for instance, or results’ proportionality, or a strong representation of political groups at a regional level, and so on). Based on such considerations, and taking into account the social, political, geographic and historical conditions of each single country, electoral systems are selected.

The selection of an electoral system is a very relevant decision from an institutional point of view. Such a decision is very important to a satisfactory performance of any democracy. Electoral systems can help out not only to build up specific results, but also to promote the cooperation and conciliation of divided societies.   

The selection process of an electoral system supports the electoral legal framework.  The application of a specific electoral system in each country can have a relevant impact in the electoral performances of political contenders.  The evaluation of a country’s electoral system can be based on the results rendered by previous elections. Doing so can shed some light on important issues such as what benefits, if any, are received by the political party in power if compared to other political parties.  Some light can also be shed upon the system’s components which can be seen as distorting international regulations or the election’s results.

No electoral system can be universally applied to all the cases.  Nor can a universal norm be applied to all cases.  The selection of an electoral system has to aim at clear objectives, and has to be seen as an ad hoc decision in the relevant circumstances.  The effects derived from the operation of electoral systems are contextual and are based on political and territorial particularities, as well as on different social realities and specific conflicts which differ from one country to the other. The general consequences of every single electoral system depend on contextual conditions distinguishing each single case.  Democracy Reporting International and The Carter Center, in Strengthening International Law to Support Genuine Elections and Democratic Governance, conclude,”International law recognizes the need for an electoral system, but does not advocate or proscribe a particular system. Rather, all electoral systems are permissible as long as they uphold fundamental rights and freedoms and international obligations.”[ii] 

Electoral systems are generally categorized in relation to how votes cast result in the election of representatives.  According to this continuum there are at least three main classes of electoral systems (it should also be recognized that there are other ways to organize electoral systems with greater specificity resulting in a broader number of classes).  The Handbook for European Union Election Observation distinguishes:

  • Plurality-majority systems are usually used for elections where one candidate will be elected to a single seat in an electoral district; the winning candidate must either win the largest number (i.e., the plurality) of votes (known as the simple majority), or win more than half (i.e., the majority) of the votes cast (known as the absolute majority).
  • Proportional systems are usually used for elections where there is more than one seat in an electoral district. Mandates are allocated using formulae that distribute seats so that they represent the proportion of the vote won by candidates or parties
  • Mixed systems use a combination of plurality majority and proportional systems.[iii]

It follows that each system will have a different impact on the translation of votes into representation. For example, and speaking very broadly:

although the simple majority system can result in election without a majority of votes the system is reputed to entrench the accountability of the representative to the community; although proportional representation systems tend to result in a better reflection of the actual vote it is reported to diminish the accountability of the representative to the community in favour of the political party; by definition the mixed system will represent some of the best and worst aspects of each system and so on.[iv]

The revision of an electoral system has to take into account whether the country is deeply divided or not from a political, geographical, religious, or ethnic points of view.  It has also to take into account whether political minorities are fairly represented in the political system.  The revision of an electoral system aimed at improving a country’s electoral regime, has to take into account the recommendations derived from the experiences undertaken by other countries on how inequalities can to be solved.



[i] SADC and EISA, Principles for Election Management, Monitoring, and Observation8.

[ii] DRI and The Carter Center, Strengthening International Law, 8.

[iii] European Commission, Handbook for European Union Election Observation, 31.

[iv] SADC and EISA,Principles for Election Management, Monitoring, and Observation, 10.

Electoral Management

Electoral management is fundamental and must be taken into account in the design a legal framework. The more successful electoral management can be, the more successful the election as a whole becomes. To achieve efficient and effective electoral management requires several conditions as follows: first, electoral legislation has to detail every single phase, stage, activity, and procedure in order to prevent any mistake or illegality; second, electoral authorities have to be designed according to the country’s or the region’s political and social particularities; third, such authorities must have institutional powers to perform their duties under the general principles ruling electoral processes: certainty, legality, independence, impartiality, transparency and objectivity. 

International law does not proscribe in detail the attributes of electoral management bodies but the United Nations Human Rights Council has stated that, “an independent electoral authority should be established to supervise the electoral process, and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant.”[i]

The”primary objective of a legal framework is to guide the EMB and enable it to achieve the delivery of a free and fair election to the electorate”[ii] and to do so the efficient and effective performance of electoral management is fundamental.

Bearing this in mind, the ideal requirements that electoral authorities have to meet are further discussed in this section but can be summed up as follows:

  • Professional and independent performance in respect to the political party in power.  They have to treat all the contenders in an impartial way. 
  • Neutrality has to be recognized as one of its distinctive features by every single contender.
  • Performance has to be efficacious and authority must be provided with as much material resources as required to fulfill the duties.  
  • Performance has to be closely related to the legal framework ruling the existence of the electoral authority.  Electoral managers have to be scrutinized by permanent and independent examiners, which can be judicial. 

The performance of electoral management bodies will also face constraints in any environment.  Some of these constraints are limited independence, unclear mandates, inadequate resources, the appointment procedures and tenure of members of the electoral management body.[iii]  Especially in post-conflict countries, the political stakes may be extremely high, and the commitment to democracy among former combatants may be weak.[iv]

The management of democratic elections requires independent and non-partisan electoral authorities that are free from any kind of political bias.  This a fundamental issue, especially for countries in which a democratic regime is not yet consolidated and where electoral managers may take and execute important decisions which can directly affect the electoral results.  Therefore, specific political conditions have to be taken into account to determine who is going to be in charge of electoral management and what kind of institution will be empowered to do so. 

Such legislative decisions have to determine both the size and the integration of electoral authorities.  Such legislative decisions also have to determine who will be appointed and how the appointments and the removals from such appointments will be done. The establishment of electoral authorities has to take into account considerations as follows:

i. Structures

The managerial structure has to include a higher electoral agency whether central or national.  There can also be some lower agencies at state or regional level.  Depending on the extension of electoral jurisdiction and communications systems there can even be district electoral agencies. Intermediate electoral agencies can exist as long as the respective electoral system, the geographical situation and the demographic density of the country make it reasonable. The pre-eminence of the central electoral authority and the relationship between levels of electoral authority should be clearly set out in the legal framework. At the same time, it is convenient to prevent a widespread creation of trivial electoral agencies.  Trivial and unnecessary electoral agencies have a straightforward effect: they do increase electoral spending. 

The electoral structure is organized around voting places.  Voting places are the core of any electoral structure. A fundamental task for the legal framework is to define in a precise and clear way how the voting places will be integrated, and how they relate to headquarters and to other electoral authorities. The legal framework also has to set down the nature of relations voting places will have with governmental authorities on election-day. In addition to the electoral management body, the structure to deliver elections will likely also count on the assistance of government departments at various levels.  It is preferable that the legal framework anticipates these relations and establishes the direction of the electoral authorities as paramount.                                                                                                                               

ii. Accountability

The accountability of electoral authorities should be legislated in a clear way given the fundamental importance of these organizations, the constraints and challenges they may encounter and the need for overriding public confidence.Accountability may be achieved in a number of ways.  Ultimate accountability should be directly to the national elected assembly in order to avoid government interference or control. Often this may take the form of reporting to a legislative committee.  In addition to legislative oversight, independent audits, public reports and open meetings are all manners, in which accountability may be pursued,[v]

iii. Composition Requirements

There is no single best way to constitute an electoral management body that is transferrable to all countries.  The situational context of each country is an important consideration.  Perhaps foremost among considerations is the relationship of public trust and power.

The lower the public confidence in public institutions, the stronger electoral authorities may become.  Such a situation is not the case for consolidated democratic federations.  As a matter of fact, electoral management can be grouped as follows:

  • Countries in which electoral management is vested in ordinary executives (national or local). In such cases, regular review systems are not modified for ordinary executives are usually seen as trustworthy, neutral, and impartial.  In these cases, disputes may also be settled by the ordinary courts.  This situation may likely be associated with established democracies.[vi]
  • Countries in which electoral boards are created to review the electoral management carried out by the Executive Branch of Government.  Such boards are usually not empowered to manage electoral processes.  
  • Countries in which specific electoral divisions within a traditional branch of government are empowered to organize elections.
  • Countries in which the level of confidence is so low that autonomous electoral authorities are set down in the Constitution.  Such authorities not only replace the governmental management of elections, but also prevent any kind of external influence by any other governmental organization.  Actually they can be seen as a kind of fourth branch of government. The creation of autonomous electoral authorities can be seen as an important step towards the construction of an independent and impartial electoral management trusted by voters and political parties. 

In some countries, the composition of electoral management bodies may include or be comprised of political representatives.  The potential disadvantage to this approach is the apparent politicization of the management of elections but at the same time, “it can be useful in building confidence in countries (such as those emerging from conflict) in which there are doubts about the honesty and integrity of the election system.”[vii]  If this partisan approach to composition is selected it is,”greatly enhanced where its membership is representative of the political spectrum.”[viii]  Some countries may, of course, define a composition that includes both partisan and non-partisans but in any event the obligation once appointed is to act in an independent and impartial manner. 

In some cases, electoral management bodies may incorporate the judiciary directly and in other cases, such as post-conflict situations, membership might also be extended to the international community.[ix]  Other considerations may include composition that is reflective of the nation as a whole and ensuring participation by women.[x] 

As long as it is possible, it is recommended to appoint professionals who know the legal framework ruling the election’s management.  Usually it is required that at least some of the individuals comprising electoral authorities are legal professionals.  Some problems affecting lower electoral authorities can be released from such a requirement if it is reasonable in the circumstances.  Both the independence and the impartiality of electoral authorities that include officials or judges appointed by the ruling party can be jeopardized. A reasonable solution can be found in those cases in which political parties are empowered to express their opinions before the electoral authorities, with no power to play a role in solving electoral issues whatsoever. 

The appointment of honorable political agents such as non-governmental organizations and members of the Judicial Branch of Government to occupy electoral Offices, are usually good options.

Of course, to select an agency independent from traditional powers is the right move for countries going through a political transition.  However, such a selection can raise some questions in the long run.  The more successful the democratic transition can be, the less crucial an independent electoral authority may become.  This is particularly true in the case of countries in which a real system of checks and balances has been consolidated. Checks and balances represent the existence of the rule of law and the strengthening of public confidence towards public agencies.  To keep an independent electoral authority under such circumstances can be very expensive therefore requiring careful thought.  

Whatever the determination of the nature of composition of the electoral management body, “The overall credibility of an electoral process is substantially dependent on all relevant groups (including political parties, government, civil society and the media) being aware of and participating in the debate surrounding the formation of the electoral structure and processes”[xi]  Therefore electoral management bodies must be sustained by on-going communication and transparency. 

A similar requirement for communication within electoral management bodies also exists and can be further amplified dependent upon the composition of the body. Communication and consensus are particular assets to electoral management bodies, “Since decisions on election issues are often of extreme political sensitivity, those taken by vote rather than by consensus can undermine the election management bodies appearance of neutrality and professionalism.”[xii]

 As a 2010 report of the OSCE concludes:

Whichever body is constituted to administer a particular election, its work should be efficient, collegial, impartial, transparent and independent from the state authorities and other political influences. It should be guided by the fair implementation of laws with no regard for political considerations, especially in cases where election commissions are multipartite, and should enjoy the confidence of election stakeholders.[xiii]

 

iv. Terms

Electoral authorities have to be permanent. In some countries they are open for business only during a period of time.  However the permanent work of electoral authorities is necessary when these bodies are in charge of the voter registry.  In such cases, the permanent activities of electoral authorities have to be legislated. A voter registry has to be up and running for every single election.  Usually lower electoral authorities, as those in charge of small electoral territories or those in charge of voting places are not permanent; they are open at the beginning of electoral periods and are shut down once the final results have been validated. 

Electoral organizations should better be partially renewed over time.  It is not very wise to renew the entire composition of electoral authorities every single election As a matter of fact, experience can help to raise the institutions’ productivity.    In terms of process, all the procedures and fundamentals supporting appointments and impeachments have to be legislated in order to immunize members of electoral authorities against any sort of political pressure. Furthermore, “If the legal framework adopts a party-oriented formula, then it should address how and when changes in commission membership should occur when there are changes in the strength and membership of parties, especially where there are new parties.”[xiv]

As important as it is to ensure that the appointment to electoral management bodies is well defined and transparent, so too should the removal or suspension of members be clearly set out in the legal framework in a way that is, “designed to foster the independence and impartiality of members, including provisions protecting members from arbitrary removal.”[xv]

 

Both the appointment and removal procedures should be,” undertaken in a manner that is impartial, accountable and transparent.”[xvi]

The electoral officials’ wages must not be directly controlled by the government. Some countries also grant immunity to electoral officials in the  performance of their duties. 

v. Funding

Electoral authorities have to be comprised before the election takes place under the law. It is also crucial that electoral authorities are provided with adequate funding to perform their duties.  Legal frameworks have to include clear and objective rules on how permanent activities of electoral authorities will be funded, in order to prevent budgets from becoming a political tool which can be employed by a Parliament, political parties or the Government against electoral authorities. 

Among the major methods by which electoral management bodies may be funded are:

  • allocation through a department of government,
  • a direct vote of parliament (sometimes enabled through an all-party committee),
  • an advance lump sum and audited allocation or
  • direct and uncontrolled access to the State treasury for funding elections and reports to parliament only after an election.[xvii]

In some cases, international aid may also assist the financing of elections.

The effectiveness and trustworthiness of an autonomous electoral authority is based not only on the existence of sound finances, but on the existence of impartial and independent employees working for it. Both material and personnel resources are required to be clearly identified and provided on a timely and transparent basis.

Overall, electoral management bodies in general tend to be expensive institutions.  Actually they can be seen as representing a disproportionate expense within the general framework of public services offered to taxpayers. In some countries at critical points, however, democracy is considered to be so valuable that whatever public funds used to pay for electoral institutions seem to be justified. Usually successful elections are not reviewed from financial points of view. This is particularly true for those cases in which electoral expenses have been funded through international cooperation.  However, as soon as electoral processes become more and more successful, democratic regimes become more and more consolidated and international funds become more and more scarce, financial considerations can become a central consideration. Under such conditions democratizing countries should do well to ensure that electoral expenses are appropriate and not exaggerated. 

vi. Powers and Duties

Electoral management bodies’ (EMB) power and duties have to be legislated in a clear way. Clear electoral legislation will also contribute to more efficacious supervision of electoral authorities

The legal framework should clearly define the duties and functions of the EMB. These must particularly include the following:

• Ensuring that election officials and staff responsible for the administration of the election are well trained and act impartially and independently of any political interest

• Ensuring that clear voting procedures are established and made known to the voting public

• Ensuring that voters are informed and educated concerning the election processes, contesting political parties and candidates

• Ensuring the registration of voters and updating voter registers

• Ensuring the secrecy of the vote

• Ensuring the integrity of the ballot through appropriate measures to prevent unlawful and fraudulent voting

• Ensuring the integrity of the process for the transparent counting, tabulating and aggregating of votes.

In some cases the duties and functions of an EMB may also include the following:

• Certification of the final election results

• Delimitation of electoral boundaries

• Monitoring and overseeing electoral campaign finance and expenditure

• Research, advice to government and/or parliament, and international liaison.[xviii]

In still other cases, electoral management bodies are empowered to resolve election related disputes.Electoral authorities have to be independent, transparent, and impartial.  Once an electoral authority has been comprised, it must perform its duties and execute its powers in an impartial way.  Every legal framework aims at guiding electoral authorities on how they have to organize a free and fair election.  In doing so, electoral authorities have to perform their duties in an efficient as well as impartial way. 

Some of  the fundamental features of electoral authorities some can be listed as follows: a) Independence and Impartiality; b) Efficiency and Effectiveness; c) Professionalism, Legality, and Objectivity; and d) Clarity.

Bearing this in mind, it is important to notice that when an electoral system finds itself in a consolidated stage, it is possible to identify additional considerations which can be addressed because of the existence of an autonomous body and assuming the available funds.


[i] and The Carter Center, Strengthening International Law, 39.

[ii] International IDEA, International Electoral Standards,

[iii] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 11.

[iv] UN, Women & Elections, 65.

[v] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 19.

[vi] International IDEA, International Electoral Standards, 37.

[vii] UN, Women & Elections, 67.

[viii] European Commission, Handbook for European Union Election Observation, 36-37.

[ix] Ibid., 36.

[x] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 12.

[xi] International IDEA, International Electoral Standards, 43.

[xii] UN, Women & Elections, 68.

[xiii] OSCE, Election Observation Handbook, 52.

[xiv] OSCE,Guidelines for Reviewing a Legal Framework for Elections, 11.

[xv] Ibid., 12.

[xvi] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 12.

[xvii] International IDEA, International Electoral Standards, 40.

[xviii] Ibid., 41.

Electoral Boundary Redistribution

Electoral territories have to be defined in order to be studied from a legal point of view.  An electoral territory is, thus, a territorial unit in which voting defines how congressional seats will be distributed among candidates or political parties. 

The boundaries of electoral territories are not equally important for all electoral systems. For some of them, distributing congressional seats can be seen as a very important and debated political decision.  In many countries turning votes into congressional seats can bring along very dramatic changes for the political balances of a nation. 

A legal framework has to prevent any kind of manipulation or gerrymandering from being adopted within an electoral system’s design.  Every single vote has to be as valuable as any other.  

Legal frameworks have to organize the way in which electoral districts will be outlined and defined. Electoral districts have to be seen as supporting political representation and have to be modified once and again in order to match political and social realities.  Legal frameworks have to answer some important questions, which can be put as follows: how often and under which circumstances electoral districts’ boundaries have to be redesigned; which will be the participation of both traditional branches of government and autonomous institutions in doing so; who will have the final word about it.  

There are different ways to set boundaries between electoral districts.  Since such an activity can be seen as very significant from a political point of view, many countries exclude non-independent electoral authorities from such a task. Usually the whole process is vested in an especial commission which is helped out by the electoral authorities from a technical point of view.  Especial commissions are integrated in many different ways: they can include political parties, non-partisan citizens, experts such as demographists.

An electoral system will generally aim at turning the public will of voters into a representative government. Therefore, setting boundaries for each single electoral district can produce different results in different countries, even though basic principles always have to be followed. According to international standards, every single vote has to be as valuable as any other in order to elect an effective representation. 

Now, setting boundaries is not solved in an identical way by all countries.  However, there are three universal principles which guide such an activity everywhere.  Such principles can be listed as follows: representation, equal consideration of votes, reciprocity and anti-discrimination.  

Boundaries bringing apart electoral districts have to be set in a way in which, at the end, voters see elected candidates as legitimate winners of the race.  Usually, such a requirement means that electoral districts have to match interest communities, i.e, governmental regions, ethnic communities, racial communities, geographic zones (such as islands) limited by natural borders. 

From a structural point of view, setting boundaries for electoral districts is supported by a universal constitutional command: each person's vote is as valuable as any other’s.  Such a constitutional command turns every single vote into a definitive one in order to compose representative organs.  Such principles can not be constrained by territorial considerations; on the contrary, each single electoral district must be represented by as many representatives as its population makes it necessary (proportional representation) or by as many representatives as any other electoral district is represented (direct representation).

Boundaries for electoral districts must be set down using legal and clear procedures.  Here the rules have to provide us with as much certainty as possible. 

Setting down electoral districts will have managerial consequences as well.  Such consequences will have to be met by electoral authorities in charge of electoral management because they will have to adapt their structures to match electoral territories.   

It is also important to highlight that, once specific electoral districts have been implemented, such territorial units are not eternally fixated.  Demographics will always demand a permanent revision of electoral districts.

Voter Registration

The right to vote must be seen as the right to participate in public affairs in a direct way. Free and fair elections can not be undertaken without the proper verification that voters fulfill the legal requirements to vote.. Voter registers must be seen as catalogues of citizens who have a right to vote.  Therefore, voter registers are fundamental for any voting system, and for any electoral legal system. Usually all the requirements that have to be met by citizens are established in the Constitution.  Electoral laws have to regulate, design, and update such requirements (which have to be non-discriminatory).  All the procedures related to the voter’s registration have to be complete and inclusive.

Bearing this in mind, voter registers generate certainty and security and have, therefore, a key role in establishing and consolidating a democratic regime. As well, voter registers can promote more enthusiastic participation of citizens within electoral processes. There is a general trend towards a more sophisticated development of voter registers from a technical point of view.  Such a trend has to be consolidated by electoral officials and political parties working together in order to generate public participation campaigns aimed at all the people. 

However, a voters register is not only important but also very expensive.  The registration of voters and the production of voters’ lists usually represent 50% of the electoral expenditures as a whole.  There are many different things that affect such expenditures, among which the kind of system used to register voters, the design of electoral identification, the managerial abilities of electoral authorities, and the social, economic, and demographic characteristics in each single country are important in order to achieve a sound balance between the costs and the efficiency of voters registers.

In order to achieve such objectives, there are many different kinds of electoral registrars.  They can be grouped once questions as follows have been answered: Is voting mandatory? What kind of electoral authority is in charge? Registers can be mandatory, voluntary, centralized, de-centralized, permanent, non-permanent, independent or dependent of higher electoral authorities who are in charge of both creation and updating of the voter register. Among such higher authorities are electoral authorities, demographic registrars, civil registrars, and so on.

Requirements

i. Requirements

The right to “universal suffrage emphasises inclusiveness as well as non-discrimination within the group of persons to whom the right to vote is granted.”[i]On this point, international law is clear and further establishes (ICCPR s.25) that. “the rights to vote and to be elected should be enjoyed by citizens without discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.”[ii] Therefore, such a right has to be enacted at the highest legal level (in the Constitution, for instance).  The right to vote has to be seen as a very important constitutional right in any constitutional democracy. 

International law is also clear, however, that limits on the right to vote may be applied provided that such restrictions are reasonable and objective[iii] and not applied arbitrarily. Both a Constitution and enacted laws can regulate other requirements demanded from voters to be entitled to vote. 

There exist some common requirements which must be met in order to allow an individual to exercise their right to vote.  Included among such requirements are citizenship, residency, age and specific categories such as prisoners, those with mental incapacities and active military and police.[iv]  It is clear, however, that any extra requirement can not be discriminatory. 

ii. Limiting the Right to Vote

Individuals have a legal right to vote and to be voted.  However, the use of such rights can be limited on conditions which have to be set down in democratic regulations, and which can be listed as follows:

  • First of all, since we are dealing with a limitation of fundamental rights, a fundamental principle must be honored: every single limitation imposed on fundamental rights has to be previously established under the law.
  • Besides, laws restricting fundamental laws must be interpreted in a very strict and constrained way.  Analogical reasoning is not a valid method of interpretation when fundamental rights are at stake.  
  • The upholding of fundamental rights has to be preferred to any other consideration.  In respect to electoral issues, interpretations favoring the full participation of citizens are better than others.  
  • They must be applied in a non-discriminatory way.  In other words, in the face of identical situations, identical limitations will be applied, without any personal consideration whatsoever.
  • Limitations to the right to vote must aim at the achievement of a free and more democratic electoral process.  Limitations imposed on both the right to vote and the right to be voted are justified as long as they produce a more successful execution of the right to vote or of the right to be voted from a collective point of view. 

There must be an independent authority empowered to control decisions related to limits imposed on fundamental rights.  Usually such authority can be identified with the electoral authority or with the Judicial Branch of Government. Any limitation imposed on fundamental rights must be judicially reviewed. Examples of unreasonable restrictions on the right to vote would include, “those based on “race”, sex, religion, ethnic origin, (past) political affiliations, language, literacy, ownership of property or ability to pay a registration fee.”[v] 

Nevertheless, reasonable limits on the right to vote have been established in international law.

1. Citizenship

Usually, citizenship presupposes the existence of nationality seen as a legal connection between an individual and a State.  Such a connection represents a requirement demanded from voters which has an historic justification.  To be part of a political community allows citizens to participate in public affairs. 

Nationality and citizenship are not always twin concepts: such a distinction is important for those States in which inhabitants and citizens have different nationalities, because they have different historical backgrounds, different cultural backgrounds, and different political backgrounds. Besides, it is also important to remember that many times citizenship presupposes adulthood. A distinctive characteristic of a State is based on how sovereign it is, and to develop such a characteristic it is necessary to know who can be seen as citizens. Such a determination is usually developed by both the Constitution, and the laws.  Both have to determine in a precise way who is a citizen, according to rules based on the place of birth, age and other elements.  Both have to establish, therefore, what other requirements have to be met in order to achieve nationality or citizenship: to be considered as a legal resident in the country, the relation between the alien and the new country, marriage, parenthood and other legal connections to some nationals, and so on.   

Bearing this in mind, it can be claimed that citizenship is a legal concept, not a political one; both the Constitution and the laws of each single country determine when someone can  considered as a national.  In some countries, citizenship is not enough to exercise the right to vote, (especially when citizenship has been acquired on grounds different than birth). Usually, in such cases in order to vote it is a requirement as well to live for a while in the country where the election is going to take place. 

The immediate relationship linking citizenship to the right to vote, has lost some ground, sometimes as a consequence of historical and cultural reasons, on the one hand, or as a consequence of other reasons such a migration, or the obligations derived from international treaties. 

Usually, when provisions are not set down legally, foreigners are allowed to vote in municipal elections.  There is a powerful reason behind such an authorization: legal foreigners do participate in the daily life as any other individual does.  Besides, municipal elections do not have a very influential political scope. The Treaty of the European Union of 1992, for instance, endorses the right to vote and the right to be voted for local posts in all the Union’s countries.  Some similar precedents can be found in Denmark, Sweden and Norway.  The British case is quite interesting; there, citizens of the Irish Republic and the Commonwealth have also a right to vote in the British Elections.   

Likewise, it is important to mention the regulation of the election of members to the European Parliament.  Such regulation pioneered many efforts which can now be seen as typical (cfr. The Election of Members to the European Parliament).  There, European citizens are allowed to vote whatever their residence might be.  They also can be voted when their names appear in ballots voted in a European country different to their own.

Many conflicts can arise from the regulations surrounding nationality.  Such is the case some of the former Soviet Republics have faced (cfr.  The Minorities Excluded from the Right to Vote in the Difficulties to be a Russian National). The restriction of citizenship to individuals of certain countries (from both a historical and a cultural point of view) has curtailed the right to vote of many different individuals. 

2. Residence

 

An individual’s residence can be relevant to voting rights from two different points of view.  First, foreign citizens can have a right to vote in an alien country’s local elections (they can even get the citizenship of the country in which they reside). Second, living in a foreign country can have a detrimental effect on foreign residents’ voting rights.

The place of residence is very important for local or regional elections, and it can even be very important for electoral registration.  In some cases, particularly in those related to advanced democracies, citizens can vote in regional or national elections living abroad. In such case, electoral laws allow them to send their votes by mail, to vote in their consulates, or to vote in other places (as the right of soldiers, or diplomats living abroad). There are, however, some countries in which such is not the case.  Voting abroad is very important for countries affected by massive and critical migrations.  

Some experiences can make irrelevant where the actual voting takes place.  In Costa Rica, for instance, votes can be cast at ATM Machines.  It is worth mentioning, however, that the places in which voters do live is very important to determine the electoral territory (not the voting place) in which their vote will be counted. The  voter register draws clear borders separating electoral territories which is important to determine which election is impacted by voters. 

3. Age

    The age requirement to vote has followed the evolution towards universal enforcement of the right to vote.  From a historic point of view, the age to vote has not matched the age to be punished for a crime.  As a matter of fact, voters (around 25 years) were older than those criminals undergoing punishment.  Different voting ages were also established for women.  However, the great majority of nations have set down that young individuals of eighteen years are citizens and can vote. 

    Usually the age to vote is determined in the Constitution, for it represents a limitation against a fundamental right.  Even though countries differ in respect to how old a person can be to be held accountable for a crime, there is a universal trend towards identifying adulthood to civil rights at eighteen years old. 

    4.  Other Restrictions

      Other specific restrictions on the right to vote have been applied to prisoners convicted and serving a sentence, persons with mental incapacities and active military and police.  The legal framework should exercise caution that such restrictions are minimal and proportional.  In fact the trend, “is to broaden the franchise, for example, by requiring a court proceeding to determine that a person does not have the capacity to make an informed electoral choice, by allowing military and police personnel to vote and by limiting restrictions on the voting rights of those convicted of crimes in accordance with the principle of proportionality of punishment to the nature of the crime.”[vi]



      [i] European Commission and NEEDS, Compendium, 11.

      [ii] DRI and The Carter Center, Strengthening International Law, 29.

      [iii] Ibid., 30.

      [iv] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 12.

      [v] OSCE, Election Observation Handbook, 60.

      [vi] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 12.

      Registration Procedures

      Citizens have to fulfill another requirement to vote: they have to be registered in the electoral register.  Such a requirement is fundamental.  The electoral register is a catalogue within which citizens entitled to vote are included.  The inclusion of citizens in such a register implies that citizens have met other requirements and are residents of a valid electoral territory. 

      Depriving a qualified voter from being included in the voter register is equivalent to denying the fundamental right of suffrage, therefore the, “international standard for voter registration is that the register must be comprehensive, inclusive, accurate and up to date, and the process must be fully transparent.”[i]  Electoral laws have to establish adequate and simple mechanisms aimed at promoting the inclusion of qualified voters in the voter register.    As has been said, electoral registries play a fundamental role in generating trust among citizens. Equally, the voter register must safeguard against the improper inclusion of persons not qualified or the multiple inclusion of qualified voters. However creating and maintaining a voter registry is by no means an easy task as, “Establishing and maintaining accurate voter registers at the national level, or voter lists at the regional or local level, can be one of the most difficult and, sometimes, the most controversial elements of an election process.”[ii] 

      There are two basic classes of voter registers: “Active, or affirmative, registration systems require individuals to apply to be registered as voters. In passive systems the voter register is compiled automatically on the basis of residency or citizenship registers, or some other form of record.”[iii] Sometimes voter registers are compiled through a combination of these approaches.   “Active” registration systems place the emphasis on the voter and so informing and motivating voters to register is a necessary adjunct.  In general, “are somewhat more likely to exclude ineligible persons, such as those who have died or those who have permanently emigrated from the country.”[iv]  Passive or state initiated systems may take the form of drawing a voter register from other government records such as a national registry or may be compiled exclusively for an election by a door to door enumeration, or by a combination of both.  The success of this approach is directly impacted by the reliability and currency of national records in the case the voter register is drawn down or compiled from existing records. In general, comprehensive active systems, “are more likely to ensure that all eligible voters are registered, though they do not guarantee that more of these constituents will actually turn out to vote.”[v] 

      In either case, the resulting voter register should be made public so that voters and political representatives alike may review the register to ensure that qualified voters are included (and included only once) and unqualified persons are not included. The notion of transparency of the register of voters is critical in the same way as accuracy is critical.  It follows that the legal framework needs to clearly establish the processes by which the voter register may then be revised and that process as well must remain transparent. In doing so, the legal framework must specify, “sufficient time for eligible voters to register, for public inspection of the voters’ roll, for objections and for the adjudication of appeals.”[vi] 

      Some countries as well permit registration of voters on early voting days and election day.  Additions to the voter register at the voting place require establishing the qualifications of the voter to vote and in that particular electoral district.  Additions to the voter register at voting places need to be tracked carefully to avoid the potential for double voting. 

      In a typical situations such as an immediate post conflict situation where records are simply not available, there may not even be a voter register and instead voters would present themselves on election day and establish their identity and qualifications right at the voting station.  In such cases, the risk of multiple voting necessarily increases and so other security features such as dipping a finger of the voter in indelible ink is often introduced. 

      In whatever manner voter information is collected for the register, that information should be limited to what is required to establish the qualification to vote and the legal framework should specify that other than purposes related to the conduct of the election that the information shall not be used for unauthorized purposes.  The legal framework should specify if there are any other valid purposes for which the list may be used, for example for campaigning by candidates or for citizen contact by the elected members.Often voter registries are maintained centrally on the national level, however, in federal states it is often the case that regional and local authorities will maintain registries as well for their own purposes or may contribute to the national registry.

       Whatever the nature of the voter register and the jurisdictional relationships involved, the responsibility for the accuracy of the voter registers lies with a local or central state authority or electoral management body, “must ensure that voter registers are maintained in an accurate and transparent manner.”[vii] The stakes are high because,” Inaccurate voter registers can disenfranchise voters, undermine public confidence in election results, and create opportunities for manipulation or fraud.”[viii]



      [i] International IDEA, International Electoral Standards, 45.

      [ii] OSCE, Election Observation Handbook, 58.

      [iii] Ibid., 59.

      [iv] UN, Women & Elections, 49.

      [v] Ibid., 50.

      [vi] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 16.

      [vii] International IDEA, International Electoral Standards, 47.

      [viii] UN, Women & Elections, 54.

      Political Parties and Candidates

      A fundamental characteristic of the electoral legal framework  is how it regulates the activities of political parties and candidates.   

      Political Parties can participate either on their own or associated with others. Sometimes candidates contest elections as “independent”, that is, without party affiliation. Some countries authorize the existence of other political organizations including associations of individuals to participate in the election either on their own or in partnership with traditional political parties (as happens in Mexico). However, for a democracy based on the existence of political parties, the role played by parties and their relations with other organizations are fundamental.

      The regulation of the activities of political parties and candidates within an electoral process, especially in respect to the selection of candidates and electoral campaigns, is fundamental. To begin, electoral laws must establish who is authorized to run, under which conditions and how authorization is established.  Usually, such topics are regulated by the Constitution (the fundamental right to vote is involved).  However, in some countries the fundamental rules are established by law.  The important thing, however, is to highlight that every aspect of political organizations and political parties has to be addressed.  Such a regulation has to be detailed in order to include the funding regime, the rights and privileges of members, the relations between the organizations and the candidates, and electoral participation, among other things. 

      Political Parties and Other Organizations

      Broadly speaking, a political organization is an institutional expression of a particular ideology of a people, or an institutional expression of some political interests of some social groups.   Such an ideology is related to specific public affairs of general interest and can affect both politics and governments. 

      Every single political organization is derived from a particular reality and it is expressed through subjective and objective devices.  Structural topics can be seen as subjective devices, while normative realities understood as objective ones.

      Objective devices have a more important role to play to build-up a legal framework.  Objective devices will affect the society in which they exist as long as they are publicly recognized, regulated, and funded.

      The foundation of political organizations is derived from specific rules and general principles aimed at ensuring the achievement of general objectives derived from the law or from decisions made by such organizations on their own. 

      As a matter of fact, political organizations are not capable to ensure a permanent existence on their own.  That is the reason why their aims, objectives, powers and legal existence have to be legally established.   Without a legal support, political organizations’ existence would be unstable, anarchic, and disordered. 

      Besides, a legal system has to recognize that internal regulations applied to political organizations and which affect their structure, relations, composition, scope of action, discipline, and other topics, must be enacted and applied by members of the organizations.  A legal system has to recognize the organization’s right to self-determination.

      The activity of political organizations has to be limited by specific rules, i.e., such activity has to be regulated and oriented by established rules and procedures which are derived from the legal system within which political organizations exist. 

      Political organizations neither have the same origin, nor the same compositor. Political organizations do not have identical objectives.  That is the reason why a legal framework has to distinguish and constrain their independent activities.  In what follows (Political parties, Coalitions, and Other political organizations) the more important types of political organizations that have to be addressed in law will be detailed.

      Political Parties

      Political parties in representative democracies are so important that democratic states are often described as "party states". Among the most important functions of political parties are:

      • They constitute the basic channels for the development, compilation and representation of political views and interests in the electoral processes;
      • They contribute to the selection of political elites and rulers;
      • They formulate programs and ideologies that compete in the political arena, combine interests and ideological preferences, and
      • Finally, they can function as a counterweight to governmental decisions.

      Given the critical role of political parties in pluralistic electoral systems,” The legal framework should ensure that all political parties and candidates are able to compete in elections on the basis of equal treatment before the law.”[i] 

      For the purpose of this topic, attention will be directed to the fundamental elements of the legal framework governing political parties that are related to their participation in the electoral process. The level of political party involvement in the electoral process varies according to the electoral system and the level of election. In parliamentary elections, political parties often have a near monopoly over the candidate nomination and in most cases the fact that a list is supported by a political party is crucial for the identification. In presidential elections, focus is obviously placed on candidates but their party affiliation usually plays an important role.

      Political parties can also be defined as voluntary groups of citizens formed with the aim of contributing to the determination of State policy (or at the respective territorial level) through the shaping of citizens’ political will, the nomination and support of candidates, the development of political programs and any other activity oriented towards the achievement of these goals.

      International law (Article 22 of the ICCPR), “guarantees the right to freedom of association, which includes the right to establish and operate political parties.”[ii]  The establishment and functioning of political parties in a democratic state should be free, but they may be subject to certain typical requirements (such as the elaboration and submission of party statutes to a public registry or to the electoral authority) and substantial requirements, such as the obligation to conform to democratic principles respecting the Constitution, the laws and the democratic system.

      Special requirements may also be imposed on political parties when some of their activities are funded or subsidized by the State and considering the fact that political parties are a vehicle for access to elected office. Certain legal orders have also created mechanisms to ensure that the structure and operation of political parties are democratic.  However, “Any limitations to the rights to freedom of association, expression and assembly must be prescribed by law and necessary in a democratic society.”[iii] As such, it is up to the legal framework to protect against undue restrictions and to entrench due process to ensure that restrictions are not applied in an arbitrary fashion.[iv]

      Political parties may have very different structures. In contemporary democratic systems, there are two main types of political parties: small parties marked by liberal ideas that originate from the French and American revolutions and big labor parties that have emerged since the second half of the nineteenth century.

      Participation in democratic elections should be open to all political parties that share democratic values and incorporate democratic rules with regard to both their internal functioning and objectives and external functioning. Faithfulness to the democratic system should not be conceived, however, as absolute acceptance of existing laws and policies. Nothing prevents political parties from advocating for legal or constitutional reforms, provided that they respect the valid procedures prescribed by law on access to government or legal and constitutional reforms.

      Most systems impose certain minimum requirements for the recognition of political parties. In general, these requirements aim to ensure a minimum standard of publication of the establishment of political parties through registration in a public record or other similar publication depending on the country, and to determine the democratic nature of their internal and external functioning.

      Political parties are usually registered in a public register under the authority of the administrative or electoral authorities. In a pluralistic system, this should be a formal requirement aiming to prevent a situation where the name or symbol of a new party is confused with the name or symbol of any previously registered party.  In addition, political parties should submit their statutes which should prove that the party pursues lawful purposes through democratic means and democratic internal procedures. 

      However, the purpose of registration must not be to limit or put up barriers to the registration of political parties; “A genuine election requires an open and inclusive registration process for political parties and candidates from across the political spectrum, contributing to presentation of a real choice to the electorate.”[v]  For example, registration is often accompanied by the requirement of a monetary deposit and/or the collection of signatures in support of the application.  If a monetary deposit is required it should be justifiable and of a reasonable amount and the deposit should be returned on fulfilling clearly set out criteria such as receiving a given percentage of the vote. In the case of signatures, an application should not be dismissed because a certain number or percentage of invalid signatures but rather the party should be permitted to submit additional valid signatures of support.[vi]

      Neither should de-registration be taken lightly.  In order to respect the fundamental rights of association, expression and assembly and to avoid speculation and abuse, a review of party registration should be restricted to only those cases of serious violations of the law and under clear and processes.[vii] 

      There is a constant debate regarding the extent of the restrictions that a democratic system should impose on the functioning of associations and political parties that advocate against the democratic system. There are, of course, different solutions which must take into account the powers and the roots of each system.  Nevertheless, it is essential to ensure the application of the rule of law and democratic principles. This cannot be achieved by imposing restrictions on the freedom of expression, but by regulating the exercise of organized political activities related to electoral competition.  In some countries, such as Mexico, the provisions regarding political parties are included not only in the legislation but also in the Constitution, given the great importance of their role in the political life.

      When party systems and democracies have reached a certain level of maturity, stricter requirements are imposed with regard to the internal functioning of the political groups seeking access to government or to other elected offices. Thus, it is usually required that the internal functioning of political parties is governed by open and transparent rules. The most common requirement is that the leaders and the program of each political party are selected on the basis of democratic procedures open to all party members. This situation most often arises in mature party systems where there are well-established political parties able to implement these principles. Certainly, the election of party leaders is largely determined by the candidates’ popularity and leadership skills. Nevertheless, regardless of the factors that determine the decision of party members, they should be given the opportunity to make a democratic decision which includes the possibility to seek redress through the judiciary or other independent monitoring bodies in case their rights have not been respected. As regards the external activities of political  parties, there are two aspects that should be regulated; the instruments  used in their general political action and the specific requirements and rules of conduct that govern their participation in the different electoral processes.

      Regarding majority parties, their activities should be governed by the current rules for the protection of constitutional rights and the activities of other parties. Violent, coercive, or intimidating measures must be excluded, as well as measures that distort the rules of ideological competition between parties, such as vote buying, the breach of the rules on political party funding, forms of prohibited propaganda etc.

      Political parties are more and more establishing voluntary codes of conduct setting out stricter rules, especially before elections. These codes of conduct point out the admissible means of electoral propaganda and the means that should be avoided (for instance, exposure of the private life or personal status of the candidates), the basic rules of political criticism among parties or candidates in order to avoid excesses or excessive tension, and in certain cases, those matters that should not be the subject of electoral debates due to their particularly sensitive nature or because there is a general consensus on certain issues that should be preserved (governmental structure, territorial or religious issues, etc.).

      The legal framework should also take into account the financing of political parties, given that they have become almost exclusive channels through which voters elect their governors. Therefore, political parties are considered to be an essential element of current democracies for the exercise of political rights, citizen participation and pluralism.

      The financing of political parties consists of the economic resources at the disposal of the party and for the achievement of their mission as set or regulated in the law. In certain countries, such as most Latin American countries, the regulation of political party funding has constitutional status. Codes or specific laws governing political party financing form a complementary legal framework providing for controls and prohibitions. Party financing can be divided in two main categories: funding related to the parties’ maintenance, which is used to cover their regular expenses, and funding in relation to the electoral processes, which is used to cover the expenses of their election campaign.  Political financing is considered in more depth in a subsequent section.



      [i] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 15.

      [ii] DRI and The Carter Center, Strengthening International Law, 22.

      [iii] OSCE, Election Observation Handbook, 56.

      [iv] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 66.

      [v] European Commission, Handbook for European Union Election Observation, 47.

      [vi] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 16.

      [vii] Ibid., 18.

       

       

      Alliances of Political Parties

      Political parties can establish collaboration agreements on a wide variety of issues, including; joint participation in elections, joint government formation after the elections,  offering external support to an existing government  joining forces with several parties  to overturn another party,  to modify elements of the political system or to jointly determine specific policies. In this framework, it is interesting to examine the features of political alliances in view of an electoral process. Alliances between parties can take very different forms and degrees.

      First of all, political parties can form coalitions, whose lists include candidates from each political party or are independent, identifying themselves as a coalition and no longer representing themselves independently in the constituencies affected by the coalition.

      Another option is to alternatively submit lists of either of the parties in each constituency, in order to optimize the expected electoral support for each party. This is common practice in mature party systems, thus ensuring maximum effectiveness of their campaigns and prevention of the negative effects of vote dispersion on themselves or on the parties from which they can expect certain support or co-operation.

      Finally, they can agree on the withdrawal of the candidacy which has received the least votes in the first round and request their voters to support the candidacy of the allied party.

      These agreements can be applied to different areas; to all the constituencies or only to some, to presidential, general or municipal elections or for a given or undetermined period.

      The legal effects of these agreements are generally limited consistent with the freedom that should govern the strategic and political actions of the parties in a democratic system.

      As a rule, however, coalitions formed for a particular electoral process and registered as such at the time of the nomination do produce legal effects. These effects are basically related to two aspects of the process; relevant state contributions and the prohibition on the nomination of candidates independently by the groups forming the coalition. Further, there may be a higher electoral barrier than the one applying to individual parties in some Eastern European countries, such as Croatia or the Czech Republic.

      On the other hand,  agreements on the withdrawal of candidatures that received the least number of votes, and even more so, agreements concerning post-electoral conduct of elected parties or candidates have only political importance and parties or representatives cannot be forced to comply with them.

       

      Other Political Organizations

      To broaden the channels of political participation and representation and to complement the political party system, some legal orders provide for alternative types of political organizations, such as associations that contribute to the development of the democratic and political culture.

      The objective of these organizations is not necessarily to participate in the electoral process, although some jurisdictions provide this possibility, but can be to lay the groundwork for the formation of political parties, or even to function as channels for the accomplishment of political tasks and the free expression of political ideas. 

      The legal framework should provide as well for these organizations to be ensured the right to be established and to participate and compete in the political process on the basis of equitable treatment before the law.[i]



      [i] International IDEA, International Electoral Standards, 49.

      Candidates

      Candidates constitute an essential element of elections. Hence, it is very important that this matter be regulated in the constitution and, in more detail, in the legislation.  The requirements to be a candidate are directly linked with the exercise of fundamental rights, the right to elect and be elected. Putting forward candidates enables voters to choose and, at the same time, it permits citizens interested in access to elected office to be elected. The candidate constitutes a political offer on which voters can pronounce.

       The regulation of candidates should deal mainly with issues concerning the requirements for nomination for election. It should also determine who is entitled to nominate candidates, that is to say, whether this right is only reserved for political parties or is extended to other political organizations, groups of citizens, social movements or individuals as independent candidates. Furthermore, the legal framework for candidates should provide for gender equality with regard to nomination and specify the registration procedure and campaign requirements before the competent authority.

      Depending on the electoral system, voters are faced with different types of choice regarding candidates, as there is the possibility of ranked choice voting, preferential vote or gradual elimination, voting for individual candidates or voting for candidates included in a party a list.

      Overall, the form in which candidates appear on the ballot affects the outcome of the vote. The basic distinction between the various forms of ballots is between the nominal ballot and the party list ballot. In the case of nominal ballots, seats are allocated according to the votes obtained by a specific candidate, while in the case of party lists the decisive factor for translating votes into seats is the sum of votes obtained by each list or by the total of candidates included in each party list.

      Qualifications

      The right to be elected is, “clearly established in international law. However, these rights are subject to reasonable restrictions.”[i] In turn, the obligation of the legal framework is to, “ensure that all eligible citizens are guaranteed the right to universal and equal suffrage as well as the right to contest elections without any discrimination.”[ii]  However, it is key to understand the word “eligible” in this context because just as international law and legal frameworks guarantee such inviolable rights, it remains permissible to apply reasonable limits with respect to candidate qualifications just as is the case with regard to voter qualifications.  The reverse remains true as well; that it remains unacceptable to apply discriminatory and unreasonable limits on such basic human rights. 

      Inclusiveness is a key principle when considering the qualifications and nomination of candidates. Failure to apply the principle of inclusiveness results not only in the abridgement of the rights of those wanting to stand for election but also the choice of candidates presented to voters.[iii]

      The eligibility requirements for candidates are not always the same as the eligibility requirements for voters. Although the right to stand for election has historically evolved in line with the right to vote, there are some differences that make the first subject to more restrictions. Consequently, eligible voters are not always eligible to stand for election.

      In the same sense, those willing to stand for elections do not necessarily manage to be amongst the final nominated candidates.

      As a starting point, it can be stated that according to the democratic principles, the eligibility criteria for candidates include at least the same criteria required to be a voter: citizenship, adulthood and full possession of civil and political rights. Any further requirement for candidacy must be explicitly mentioned in the Constitution or in the law and sufficiently justified by constitutional principles ​​that permit the limitation of fundamental rights of certain categories of citizens.

      Most systems establish special candidacy requirements or set up certain restrictions due to various reasons:

      • In certain cases, the aim is to ensure the neutrality of people in key positions of the electoral process by establishing incompatibilities with being a candidate (such as for the king, judges, members of the armed forces, etc.).
      • Others establish special requirements in order to ensure the maturity of candidates (an age greater than that required to vote).
      •  Others aim to ensure that candidates are part of the community, requiring for instance, that they have fulfilled their military service obligations, they possess the citizenship of the country concerned or they reside for a certain period of time in the geographic constituency concerned.
      • Others exclude for similar reasons those convicted of serious crimes or specific offences.
      • In other cases, the restrictions aim to protect community interests, providing for the disqualification of candidates whose economic relations with public entities could result in conflict of interests.
      • Certain restrictions have their roots in the social or political history of each country: this is the case of the exclusion of preachers of certain religions that exercise influence in certain countries.
      • There are other formal requirements, such as the requirement to register by a set deadline with the competent election authorities.
      • In addition, candidates may be required to have a certain level of education or a particular profession.

      Finally, in systems where political parties have the monopoly on the nomination of candidates, candidates must be nominated by a political party.Unreasonable and discriminatory restrictions on the right to stand for office are, however, not permissible.  For example, there may be no discrimination of an otherwise qualified citizen to contest an elections, “on the basis of race, colour, sex, language, religion, political or other opinion, association with a national minority, property, birth or other status.”[iv] In the view of the HRC in Bwalya v. Zambia, single party electoral systems are also to be added to the list of unreasonable restrictions.[v]



      [i] DRI and The Carter Center, Strengthening International Law, 8.

      [ii] International IDEA, International Electoral Standards, 33.

      [iii] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 12.

      [iv] International IDEA, International Electoral Standards, 34.

      [v] DRI and The Carter Center, Strengthening International Law, 31.

       

       

      Independent Candidates

      Since under international law no one may be compelled to join a political association[i],Unless the electoral system is restricted to parties or party lists, individuals should not be precluded from being nominated as independent or unaffiliated candidates.”[ii]

      However, in practical terms the possibility of independent candidates’ participation in electoral processes is quite limited in most parliamentary systems. These systems consider that in elections, at least at the national level, only parties can truly compete. This is often especially the case where only parties have the right to receive public funding.

       
      Independent candidates and groups of non-affiliated candidates often have so limited practical and legal possibilities to participate in elections that their role in modern democracies is marginal. The following restriction can be identified:

      • The nomination of independent candidates is usually subject to some specific requirements regarding support by a certain number of signatures;
      • Independent candidates are often obliged to pay a deposit;
      • They usually have limited access to free broadcast  time in public media, and
      • They rarely have the right to receive in advance public contributions to their election campaigns.

       

      Article 220 (4) of the Spanish electoral law is illustrative of the requirement of a certain number of signatures. In practice, the signature requirement is eliminated for political parties given that the 15,000 signatures required for the nomination of candidates can be replaced with the signatures of 50 elected officials at any level, even municipal. In this case, groups of non-affiliated candidates that usually do not have the possibility to be supported by 50 elected officials, must present 15,000 signatures. In addition, the possibilities for independent candidates to run big electoral campaigns are generally very limited unless they have their own significant financial resources (think of the case of Ross Perot, who largely self-financed two successive U.S. Presidential election campaigns. Indeed, the second time he obtained a reduced number of votes, partly because he was also excluded from access to the Presidential media debates).

      Elections of a limited scope, such as local elections, where independent candidates or groups of non-affiliated candidates can compete with limited means constitute an exception to this rule.

      On the contrary, in presidential systems, usually more emphasis is placed on the personality of the candidate. As a result, the role of political parties in the nomination of candidates is less important. This is a consequence of the different distribution of powers between a directly elected president and members of the Chambers who are affiliated with a party. In these cases, the nomination by a political party is not always sufficient but there is often a requirement of a certain number of signatures from citizens.

      Another aspect that should be considered when establishing the possibility for nominations of independent candidates and the accompanying registration requirements is the principle of equality, and that the registration requirements must not discourage participation. At the same time, regulation should generally provide mechanisms that discourage the scattering of votes and the attendant deterioration of the party system.



      [i] Ibid., 32.

      [ii] International IDEA, International Electoral Standards, 51.

      Registration Process

      Individuals having the right to participate as candidates in an election (because they fulfill the eligibility criteria and have met certain additional requirements) must formally notify the electoral authority. It is then up to the electoral authority to assess the acceptance or otherwise of candidate registration and announce the names of candidates for the election.

      Registration with the electoral authority and the declaration of the officially nominated candidates serves multiple functions:

      • To permit the electoral authority to verify whether candidates meet all the eligibility criteria;
      • To formally identify candidates standing for election;
      • To recognize additional candidate entitlements  as appropriate, for example, the potential  to obtain certain public funding for the campaign; media presence; use of  local or public facilities etc.;
      • To allow the necessary administrative and other preparations to be undertaken to ensure the smooth conduct of an election;
      • To allow voters to know with certainty the names of the candidates for whom they may vote.

       

      As a rule, those who wish to stand for elections are required to fulfill certain criteria besides having the right to stand for election. The purpose of these criteria is to ensure that candidacies are serious and to prevent an unlimited number of applications without satisfying minimum requirements to compete in the election, which would only create perplexity and require additional public resources.

      a. Presentation of Candidates


      Although various possibilities exist in different legal frameworks, usually candidates are presented and supported by political parties.

      The prevalence of candidate association with political parties is due to reasons inherent to representative democracy, which not only aim at the fair representation of citizens, but also at the formation of majorities with enough electoral support to allow sufficiently stable governments. Political parties respond to this need as they allow the integration of candidates and have the means for political support above the constituency level.

      The dominant role of political parties is not without criticism, most commonly in consolidated democratic systems. Identified problems related to political parties include: excessive influence or power of internal structures or mechanisms; professionalization of those engaged in political activities, thus hindering the emergence of alternatives; that sometimes political parties focus on the single minded defense of  their partisan interests; a growing gap between politicians and ordinary citizens, etc. However, these critiques should not obscure the irreplaceable role of political parties. Rather, the dysfunctions of political parties should be resolved in favor of the democratic system. In a democratic and open society, a political party experiencing any such dysfunctions faces a dilemma; either is it able to evolve and resolve these problems or public criticism will gradually undermine the credibility and perhaps even the legitimacy of the party. Furthermore, opposition parties would become stronger or, in the absence of a satisfactory alternative, abstention would increase until the emergence of new political parties or political groups to replace of dominate those resistant to change.

      In addition to political parties, it may be possible for a candidate to be nominated by coalitions or groups of parties resulting in different formalities and requirements in different countries. Contrary to what happens with post-electoral alliances, coalitions and alliances formed prior to an election may have legal effects, for example, the ability to prohibit parties that comprise the alliance from   presenting their own lists of candidates in the same electoral constituencies.

      The presentation of candidates who are independent from political parties or coalitions is a third possibility. However, the degree of difficulty in doing so increases in proportion to the level of the election and the size of the constituency because of the greater complexity of  preparatory activities and the financial resources needed for the conduct of such campaigns. With this in mind, the presentation of independent candidates is easier in small constituencies or in regional elections, for instance at a municipal level.

      It is certainly easier and more usual for independent candidates to compete in local elections or in small constituencies. Exceptions to this rule usually show that only exceptional economic resources (such as in the case of Ross Perot running as an Independent candidate for the US Presidency) or highly visible prior expertise (such as in the case of Vargas Llosa in Peru) allow independent candidates to cross the barrier and gain voters’ preference in competition with candidates included in party lists.

      b. Selection of Candidates

      The way candidates are selected in political parties is a very important issue in a representative system. The constitutional role of parties obliges them to respect stricter internal democratic rules than those governing other types of associations. This aims to ensure that political parties have democratic internal procedures, without prejudice to the elements of leadership (including charisma) that are essentially present within political organizations. These requirements may be set by different acts, depending on the historical and political circumstances of each country. Nevertheless, in certain contexts it has been observed as well that, “The selection of candidates at party level is not always democratic.”[i]

      One of the methods aiming to limit the undue influence of internal party mechanisms is the selection of candidates for the various elected offices through internal elections, either limited to members of the local department of each party or open to citizens voluntarily registered as supporters of that party. These two procedures for internal elections are, however, entirely different.  The democratic election of candidates by party members can ensure a certain level of transparency and promote open discussion on nominations. However, in reality, it is only a guarantee of internal democratic participation open only to party members which therefore leaves the nomination of candidates up to the parties. The second procedure allows greater and broader participation given that it includes citizens at large who support a political party and registering as such in an ad hoc register.

      Open nomination of candidates by party supporters is usually favorably assessed by citizens of  countries where the nomination of candidates is still a monopoly of the party structure, even though party leaders are rarely in favor of this selection procedure.

      In most cases the role of political parties is simply critical as they, “often control decisions about who will be nominated to run for office, what positions candidates will be given on party lists, and who will receive support during the campaign and after the election.”[ii] 

      c. Formalization of Applications

      The formalization of candidates’ applications must be carried out objectively: the purpose is to verify whether candidates fulfill the eligibility criteria and once confirmed their names should be formally announced without delay. Any fraudulent act aiming at limiting the number of candidates or impeding any of the eligible candidates must be prevented. It is important for fairness and confidence that the registration process is accessible and transparent and that timelines allow reasonable time for candidates to complete the requirements.[iii]

      The application must include the individual’s name and proof of identity, nationality, age and enrollment in the voter register. The non-existence of disqualification requirements (not having been deprived of the right to vote and not satisfying any of the ineligibility criteria) may be proved with a certificate of the relevant public authorities (for example, a negative criminal record certificate) or even a formal statement and declaration by the candidate.

      The above requirements should be justified by the legal framework of each country. Thus, in order to justify age or nationality requirements, an identity card, passport, civil registry or any other means of proof of identity shall be sufficient.

      In the absence of these documents, the legislative framework should allow proof by other effective means. Official documents issued in the country (driving licenses, census or municipal records, etc.) that provide sufficient proof should be preferred rather than establishing new systems of documentation or verification that can delay the electoral process and increase the cost. 

      It is common that the legal framework may require support of the nomination of a candidate in the form of either the collection of signatures in support of the nomination or a financial deposit or potentially both.  It is important that in setting such criteria should be set at reasonable limits so as not to impose a barrier to the right to run as a candidate.  It is also crucial that any conditions are applied equally among all candidates and not in a discriminatory fashion.[iv]

       

      The legal framework must also allow the correction of formal errors or omissions within the short but nonetheless reasonable deadlines that characterize the preparatory phase of the electoral process.

      A  brief deadline for registration of candidates and a requirement to demonstrate that the candidate meets all the requirements should not be considered unfair provided that this deadline does not lead to discrimination of any kind.  Electoral processes often require that numerous tasks are completed within short deadlines in order that election periods not become excessively long.

      The names and symbols used by a list of candidates (initials, emblems or representative signs) are very important for their identification and recognition by potential voters. Hence the misuse of a name by another political group running for elections or use of a name so similar that can mislead the public must be prevented.

      As a rule, a list of candidates presented by a political party should bear the name of the party unless the party is part of a coalition identified by another name. The use of ambiguous names shall not be prevented for ideological reasons but rather for reasons of identification: the electoral authority should not assess the possible ideological confusion between two candidates but should ensure that each candidate can be clearly identified by his/her name and symbol without possible graphic, phonetic or other confusion.

      d. Control and Objections

      The control of compliance with the procedural and substantive requirements shall be vested in the election authorities. It must be carried out according to criteria that do not hinder participation in the electoral process and facilitate the correction of material errors. This pre-electoral procedure allows the reduction of errors that later cannot be corrected, in order to facilitate participation and prevent election results possibly being cancelled because of rigid or excessive formal legal provisions or technicalities. The law must clearly set deadlines for the presentation of candidates, the eligibility control and the declaration of registered candidates by the electoral authorities, including with brief deadlines, if necessary, to resolve material errors. Candidates should be afforded a fair opportunity and time to correct deficiencies because only the most serious grounds should result in the disqualification of a candidate.[v] After these deadlines have expired, the election administration should publicly announce the names of the candidates that meet all the requirements to participate in the electoral process. The final list of candidates is usually published in the official journal but other publication means can also be used, such as publication of the candidates’ names on the press or in public places, etc.

      Candidates and all interested parties should have the possibility to lodge an appeal against a decision of the electoral administration regarding the rejection or declaration of a candidacy not only before the electoral administration itself but also before the judicial authority (either ordinary or specialized courts or other competent independent bodies such as a Constitutional Court).

      e. Proclamation and Publication

       Official and public notice should be made of the names of the candidates that will participate in the election. A list with the candidates’ names is usually published on the official journal, on election authority websites, etc. After the resolution of any appeals regarding the validity of candidacies or the expiration of the deadline to lodge an appeal, the proclamation of candidates has the following effects:

      • Determines which candidates are competing for election;
      • Determines which candidates are entitled to public funding to cover expenses of their electoral campaigns: use of public spaces or buildings, direct allocations, reserved broadcasting time in the public media and other forms of public assistance;
      • Gives way to the next phases of the preparatory electoral procedure: the conduct of the electoral campaign and the logistical and preparatory operations of the electoral administration including the printing of ballots.


      [i] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 17.

      [ii] UN, Women & Elections, 13.

      [iii] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 17.

      [iv] European Commission, Handbook for European Union Election Observation, 49.

      [v] Ibid., 48.

      Voting Operations

      This section examines the different aspects related to the organization of voting operations, such as ballot content and design, voting stations establishment, staffing and keeping order and the maintenance of secrecy of voting and special voting procedures.

      The procedural conduct of an election involves the integration of numerous widespread processes. For instance, the 2009 general election in India (15th Lok Sabha) was an operation in which over 716 million electors were eligible to vote in nearly 835,000 polling stations.  Voters in the 543 constituencies had an opportunity in total to choose from amongst over 8,000 candidates.  Almost 4.7 million polling staff were deployed.  National voter turnout was 58% and the final results were available in a matter of several days.[i]

      Although the organization of an election rarely reaches this scale, it is always a complex and delicate operation. The electoral administration should be able to use the necessary means so that for all citizens the vote is safeguarded.  Regardless of the scale of an election, elections organizations must ensure that voting places are well staffed with trained personnel and that all the materials are on site and in sufficient quantity as,”Inadequate voting supplies effectively undermine the right to vote.”[ii]

      Voting operations are at the heart of voter interaction with the electoral process and as such can impact participation and confidence: 

      Increasing popular participation in the electoral process is an important way of strengthening democracy. This can only be achieved if the public has confidence in the electoral process and if it is accessible to them. Lack of confidence and limited access may lead to voter apathy, as reflected in the generally poor voter turnout evident in some countries.[iii]

      The rules governing voting operations and vote counting at polling stations are usually thorough and detailed. They try to cover every possible situation and to set out clear and precise guidelines that facilitate the solution of possible problems.

      However, these rules should also be clearly understandable for ordinary citizens because experience shows that complicated legal frameworks regulating voting operations or inadequate design of electoral materials giving form to the legal framework inevitably generate high rates of abstention and invalid votes.

      The objective, simply put, is that, “The legal framework should ensure that secrecy of the vote is guaranteed, and that all votes are counted and tabulated equally, fairly, and transparently.”[iv]

       


       

      [i] Election Commission of India, “Key Highlights, General Elections, 2009 (15th LOK SABHA).”, Official Website

      [ii] DRI and The Carter Center, Strengthening International Law, 42. 

      [iii] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 23. 

      [iv] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 25.

      Ballots

      Of course, one of the most fundamental instruments of electoral administration is the ballot itself and the most fundamental act of an election is casting a ballot. However, like many aspects of electoral administration the way in which ballots are cast is subject to innovation. Although many countries have carried out electronic voting, in the vast majority of cases electronic voting has created a need for parallel systems to verify the count and in some cases counting and has been carried out by automation companies instead of the official electoral authority. The use of e-voting is increasing with great prospects of development in the future, especially due to lower cost in the long run, however at present most electoral processes use ballot papers with the names of candidates.

      Two different types of ballot papers can be distinguished; single ballot papers and separate ballot papers. With a single ballot paper, all candidates who participate in the election are listed and voters must mark their choice. In the case of separate ballot papers, each candidate or party list has its own ballot and voters have to choose amongst them. In the latter case, the election administration must ensure that all ballots are available in similar quantities and placed in a non-discriminatory way.

      There is also another distinction that should be made between systems that allow only official ballot papers printed and approved by the election administration and available on polling day, and systems allowing ballot papers that have been officially approved and printed by the election administration to be distributed to supporters and even printed by each candidate or party before polling day. Undoubtedly, the use of single ballot papers, officially printed and distributed by the election administration is the most appropriate and widespread system. Allowing candidates and parties to print and distribute their own ballot papers can only be seen as a way to promote electoral propaganda. Indeed, this practice presents at least three major disadvantages. First, it may be used for electoral fraud, given that it may significantly reduce the guarantees of a personal and secret vote. Second, it may impede and significantly delay vote counting, as it can cause uncertainty about the validity of the ballots. Third, it increases the cost of elections, since the state is obliged to print an adequate number of ballots, but also the cost of extra ballots printed by parties and candidates may be calculated as an election expense which is often reimbursed by the state. Moreover, “If not properly handled by the EMB, the procurement, distribution and types of election material may generate conflict.”[v]

      In terms of content, ballot papers should include the names of the candidates and party lists. Furthermore, the symbol of the list is usually included in order to facilitate voting by illiterate voters. Photographs of candidates or party leaders may also be included, and although this implies higher costs. To facilitate the vote, ballots should also be printed in all official languages as well as possibly major languages spoken. In terms of candidate presentation on the ballot paper, contestants should be represented in equal size, and their order should be determined in a fair manner, for example, by drawing lots.[vi]  Taking into account the quantity of ballots required, the use of colors or high paper quality may result in considerable expenditure. Overall, the percentage of the electoral budget spent for ballots is considerably high and, in some cases, expensive ballot features may not be justified as necessary to secure the right to free suffrage.

      The ballot paper, as a voting tool and not a political propaganda tool, should have a simple design in line with the principle of a free and secret vote.  Complex ballot papers should be avoided since they, “can cause confusion for voters and may also delay voting and counting”[vii] as well as resulting in a greater number of invalid ballots.[viii]  The design and production of ballots may also consider economic, organizational and environmental concerns. However, in some countries especially with new-born democracies, ballots with certain security measures are used in order to ensure the credibility of valid votes. Notwithstanding an implied increased cost, such measures are sometimes essential in order to avoid counterfeiting and in order to ensure that the only ballot papers used for voting are those officially produced (and accurately counted) by the electoral authority. 

      In some countries, the ballot has a counterfoil with a serial number in order to provide for better control and care of the ballots. If such a process is used then it is very important that steps are taken to ensure that the ballot cannot be reconciled in any way to reveal the identity of the voter.[ix] After all, the secrecy of the vote is guaranteed by international law.

      Other ways in which voter secrecy may be best preserved and ballots can be well controlled include:

      • Affixing an official stamp specific to the polling station on ballots when they are given to voters;
      • Having one or more polling-station official(s) sign the back of the blank ballot before it is issued to the voter;
      • Using numbered ballot stubs to monitor the number of ballots in a ballot box;
      • Using a stamp, rather than a pen, to mark ballots;
      • Using heavy paper for ballots so that marks cannot be seen through the back of the ballot paper; and
      • Printing ballots with watermarks or other devices to make them harder to counterfeit.[x]
      • Electronic ballots.



      [v] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 25.

      [vi] European Commission, Handbook for European Union Election Observation, 77.

      [vii] Ibid., 77.

      [viii] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 54.

      [ix] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 25.

      [x] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 55.

       

       

      Polling Stations

      Polling stations are an essential element of an electoral process. They are the sites where voting takes place and where votes are counted by the election administration. Therefore, it is essential to ensure freedom and secrecy of the vote in the polling stations.

       

      1. Establishment 

      In order to locate and create polling stations, it is necessary to establish an electoral map. To this end, the location of polling stations should be determined in each district according to the following criteria:

      • The distribution of polling stations should be publicly announced, so that citizens participating in the electoral process know in advance the location of the polling station at which they are entitled to vote. With this in mind, changes to the distribution and location of polling stations between elections should be minimized;
      • The distribution of polling stations should take into consideration geographical criteria, so that polling stations are as close as possible to the voters’ residence. On the contrary, a distribution of voters on the basis of other criteria (for instance, by name) implying mass transfers of citizens to polling stations very far from their residence would discourage voter turnout;
      • Polling stations must have a minimum size, serving the need to maintain the secrecy of the ballot, and a maximum size, serving the need to perform complex electoral operations in a relatively short period of time. It is difficult to establish general rules in this regard, given the wide variety of geographical and communication conditions under which different electoral processes are carried out. Normally, a polling station has a minimum capacity of 300 voters and a maximum of 1500. Often the minimum and maximum permitted sizes are fixed by law. Depending on the geographical circumstances, it may be necessary to establish mobile polling stations that fulfill the legal requirements. In this case, after all citizens have voted, the mobile polling station moves to a suitable place for the vote counting;
      • The polling stations must be accessible to all voters including the elderly and disabled persons;
      • The location of polling stations must be in an ideologically neutral site in order not to discourage the free expression of the vote. In this sense, polling stations should not be located in police stations, army barracks, headquarters of political parties, offices of religious groups and government buildings in times of political transition. On the contrary, it is appropriate to use schools as polling stations;
      • The prospective location must have adequate lighting and communications, transport and other logistical considerations. This requirement may prove in some countries more challenging in the rural areas than in urban areas given the sometime imbalance between urban and rural infrastructure.[i]
      • In some countries, consideration may be given to the need to establish separate polling stations for women in order to provide them with an opportunity to vote in an environment free of intimidation and pressure and thereby increase the likelihood of their participation”.[ii]

       

      The hours for voting should be set in law and uniformly applied[iii] and should include some time outside regular working hours.  It is also commonly understood that voters arriving at a polling station prior to the official closing time, but are still in line to vote as the polls close, will be allowed to vote.[iv]

       

      2. Personnel and other Authorized Persons 

      The polling staff or Electoral Board is the key to the proper conduct of the voting and counting processes. They organize and supervise the voting procedure, count the ballots and prepare the minutes for the central election administration that is in charge of the tabulation of votes and allocation of seats. In this way, local boards and polling staff are responsible for the key operations of the entire electoral process. More specifically, they perform the identification of voters, decide on the validity of ballots and may certify the results. In many cases, the decisions of the Electoral Board cannot be challenged.

      Thus, it is essential to achieve a suitable composition of the Electoral Board. In particular, polling officers must be independent from the government and political parties. With this in mind, polling officers are sometimes chosen by lot amongst individual citizens and their appointment binding. This procedure, if followed correctly, ensures the greatest likelihood that polling officers will act independent of any political party or candidate, and greatly reduces the possibility of fraud. The only drawback to this system is the lack of legal knowledge of the appointed officers, as an inevitable consequence of their largely non-professional character. Nevertheless, various measures may be taken to ensure knowledgeable and effective polling officers:

      • First, certain legal orders impose specific education requirements for the appointment of polling officers and presiding officers, so that the members of the Electoral Board are chosen only amongst citizens that fulfill the requirements;
      • Most legal orders, to a greater or less extent, offer specific training to polling officers, either through courses or by giving them detailed instructions and manuals on how to perform their duties and how to resolve the different problems that may arise on election day;
      • In certain northern European countries the system is slightly modified, so that while members of the Electoral Board are chosen by lot, its President is a permanent municipal officer. This is probably the most effective system, given that it combines the benefits of citizen participation and professionalism and is a characteristic pattern used in consolidated democracies.

      This composition is perfectly compatible with the fact that, in most of the jurisdictions that use it, there is the possibility for political parties and candidates to appoint representatives to each polling station (prosecutors, auditors, attorneys). The representatives of parties and candidates can be present at all operations, but usually without any decisive powers. In general, they contribute to electoral transparency, providing an important complement to the appointment of polling officers by lot. The presence of party or candidate representatives during the voting and counting operations should not be confused with national or international electoral observation, as they are two entirely different mechanisms.

      It is good practice for electoral management bodies to institutionalize selection criteria for the recruitment of polling staff and performance management processes.[v]

       

      Finally, it is necessary to ensure that people that do not play any role in the organization of the electoral process do not remain in the polling station, as their presence may hinder or interrupt the free conduct of elections. The legal framework usually grants to the President of the Electoral Board the power to authorize or prohibit the presence of other people in the electoral operations.

       

      In addition to polling staff, other persons when authorized may also be present in the polling station.  This includes of course voters but only while in the act of exercising their franchise, representatives of political parties and candidates, domestic and international observers where allowed, and security forces when necessary.

       

      To facilitate the proper operation of a polling station it is imperative that even those authorized to be present in addition to polling station personnel clearly understand what they may and may not do.  Training and written materials are useful and of course it is preferable if the legal framework also specifically addresses this matter.

       

      Political parties and candidate have a clear vested interest in the conduct of an election and therefore their representatives should be enabled to observe all aspects of the process including the conduct of voting and the count.  The legal framework should stipulate both the rights and obligations of party and candidate representatives while at the poll.[vi]  In addition to the right to observe proceedings it is good practice that the legal framework requires challenges to voters or complaints about the operation of the polling place made by a representative of a party of candidate to be recorded in writing in the documentation for the voting place.[vii] On the other hand, authorized political representative must not otherwise disrupt the conduct of the voting place and of course, no campaigning, political displays or intimidation are to be permitted.  The President of the Electoral Board should have the right to remove representatives for a breach of the regulations regarding their presence.

       

      To facilitate the important role of authorized political representatives at the voting place and at the same time ensure that they act within what are proper limits it may be useful that the legal framework, including possibly a code of conduct, specify that at a minimum authorized political representatives must declare that they will:

       

      • maintain voting secrecy.

      • follow the directions of polling officials.

      • not interfere with election processes.

      • be bound by the legal framework for elections.[viii]

       

      The legal framework should otherwise specifically prohibit the presence in the polling station of other than persons whose presence is authorized under the law, such as local executive leaders.[ix]

       

      3. Maintaining Order 

      The effective conduct of electoral operations during polling day presupposes that the polling stations be sufficiently protected in order to avoid disorders that may hinder the voting, and to ensure that the right to vote is exercised under democratic conditions.

      For this purpose, the electoral law often vests the presiding officer with public authority, including the possibility to take the necessary measures for the maintenance of law and order.  This authority often includes the ability to give precise instructions to whoever, in each polling station, performs electoral police functions.

      In consolidated democracies, these functions are carried out by security, police or military forces. Sometimes however,” the presence of security forces around polling station may intimidate and instil fear in voters”[x] particularly in countries in political transition where this option is sometimes looked at with suspicion, due to its relation with the previous regime. This mistrust can lead to a very expensive and likely unreasonable appointment of special civil police, which performs its duties on polling day under the command of the electoral administration. Experience has shown, however, that the use of the armed forces during voting operations can present many advantages, not only because of its effectiveness and low additional cost, but also because of its importance for the stability of a country. Thus, armed forces may be attributed functions of cooperation and democracy strengthening under the command of the electoral administration. It is also very important for public opinion to see such collaboration between the different public institutions for the purpose of strengthening democracy, instead of the creation of an ephemeral and untrained electoral police.  Where public security forces provide order at voting stations, it is preferable that the legal framework set out a code of conduct.[xi]



      [i] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 23.

      [ii] UN, Women & Elections, 70.

      [iii] European Commission, Handbook for European Union Election Observation, 75.

      [iv] DRI and The Carter Center, Strengthening International Law, 41.

      [v] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 24.

      [vi] International IDEA, International Electoral Standards, 83.

      [vii] Ibid. 84.

      [viii] Ibid., 85.

      [ix] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 26.

      [x] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 20.

      [xi] Ibid., 20.

       

       

      Voting Procedures

      This section will review fundamental aspects of voting at voting places including privacy and secrecy, various special voting procedures and guarding against fraud.

      While international law is clear regarding the right to vote in genuine elections, “International law is largely silent on the issue of voting procedures. This is likely in large part due to the variety of practice among States. However, election day procedures greatly impact the enjoyment of electoral rights.”[i] Therefore it is largely left to the national legal framework to establish voting procedures and to find effective ways to both make the secret ballot accessible to qualified voters and at the same time to safeguard against fraudulent voting.

      1. Privacy and Secrecy

        Voting procedures to ensure that qualified voters are able to exercise their right must always be vigilant to respect that, “The secrecy of the ballot is one of the great pillars on which free and fair, credible and legitimate elections rest.”[ii]  Election regulations must underline that not only is secret voting a right of the voter but an absolute obligation.[iii]

         

        The basic international standard to be met is that voting by secret ballot should take place in the privacy of a voting booth, and in that the a manner that marked ballot cannot be seen as it is cast and cannot be later identified with a particular voter.[iv]  Where for specified reasons a voter is unable to come to a voting place to vote the legal framework must provide for alternate mechanisms that will none the less meet the test of secrecy of the ballot.

         

        Certain countries have specified in their legislation the minimum requirements for polling stations. For example, with respect to secrecy of voting, ensuring that polling officers have clear visibility of the entrance to the voting compartment in order to verify that voters enter the compartment unaccompanied, the absence of windows, holes or other ways of observation of  the voting compartment and the requirement for a door or curtain. The custom in some countries, “of family voting -- where the head of a family casts ballots on behalf of the other members of the family -- should not be condoned.”[v] Similarly, voting at the same time as another person is in the voting compartment or voting outside of the voting booth should both be prohibited.[vi]

         

        The provisions regulating voting procedures must ensure the proper identification of all voters and the existence of mechanisms to prevent multiple or fraudulent voting. However, the procedures should not be so complicated or cumbersome that they impede the voting process.[vii] The law should require that all ballots and voting materials are adequately safeguarded, before, during and after polling day.

        As additional guarantees to the right to a free and secret vote, some legal orders require that ballots are cast and then placed in an envelope behind a curtain or inside a compartment provided at the polling station. In some jurisdictions voting in a compartment or behind a curtain is mandatory while in others it is simply optional often depending on the existence of a single ballot for all parties and candidates or separate ballot papers. With regard to the use of envelopes to protect the mark on the ballot, it could be argued that this is unnecessary, expensive, disturbs or at least delays the counting process and can be easily avoided by slightly increasing the thickness of the ballot paper. On the contrary, the mandatory use of compartments or curtains is an essential practice and with high educational value, even in those countries where the freedom to vote cannot be questioned. Another way to ensure the democratic character of the electoral process is the use of indelible ink to prevent an elector from voting more than once, as well as the use of transparent ballot boxes.

        Finally, basic electoral materials should also include a record or register that reflect the accounting of ballots and the election results and the various incidents that occurred at each polling station. To the extent that the official tabulation and the allocation of seats are usually done based on these records and not directly on a recount of the ballots, these documents acquire a special significance for the electoral process. Taking into account that in many countries these documents are completed by citizens without special knowledge in the field, it is necessary that the records have a simple and understandable form. This need increases in inverse proportion to the level of social and cultural development of the country concerned. However, it is worthy of attention because this aspect does not always attract the attention it deserves by electoral management bodies and international organizations monitoring elections.

        The fact that these records are usually filled at least in duplicate (even in more copies where representatives of political parties or candidates can have a copy) and the legal framework provides for alternative procedures aiming to ensure that they reach the electoral authorities on polling day reflects the important role of these documents.


        The legal framework should be sufficiently flexible to allow the use of technological innovations in aspects related to the voting and vote counting procedures, such as the use of electronic machines for recording and counting votes. However, this degree of flexibility should be regulated by establishing requirements for approval and control before the use of new technologies.[viii]

        2.  Special Voting Provisions

        Electoral laws may contain special mobile or mail voting provisions to facilitate voting by persons with disabilities, people in hospitals or prisons, voters abroad (for example, citizens abroad for professional reasons, diplomats or voters displaced by war), or voters who cannot personally reach the polls due to any other significant reason.

        Such voting provisions may be available to a single individual, such as a housebound, or incapacitated voter or a person who is abroad on business; or to a class of voters, such as diplomats, police, the military or other security forces; or to an entire community, such as a hospital, or other institution or persons displaced due to the outbreak of war. However applied, these provisions must not be discriminatory and must be applied uniformly to all voters who are in the same situation and should be designed to prevent abuse.[ix]

         

        Special voting provisions should also strive to respect the dignity of the person.  For example, in the case of disabled or illiterate voters, “Wherever possible …steps should be taken to enable them to vote without assistance.”[x]  At other times, this may not be practical and the voter may require the assistance of another.  In such cases, the legal framework should consider who may qualify to assist the voter (e.g. should political representatives be allowed) and how many times a single person may assist other voters.

         

        Where the law specifies that qualified voters may vote other than at a designated voting place there are generally a variety of provisions including the following:

         

        • Mobile voting, where polling officials transport a mobile ballot box to voters who

        cannot attend their designated polling station (e.g., ill or elderly voters can cast

        their ballot at home or a hospital). Mobile voting usually takes place on election

        day but may also happen in advance;

        • Postal voting, where voters cast their ballots by post in advance of election day;

        • Early voting, where voters unable to attend their designated polling station on

        election day (e.g., election officials or security personnel) cast their ballot early;

        • Prison-voting, where prisoners who retain suffrage cast their ballots in special

        polling stations within the prison;

        • Out-of-country voting, where expatriate citizens entitled to suffrage cast their ballots

        at special polling stations, often at their country’s embassy or by post; and

        • Military voting, where members of the armed forces vote at a designated local

        civilian polling station or in their barracks.[xi]


        In the application of these provisions, all possible and reasonable steps should be taken to continue to safeguard the secrecy and privacy of the vote and other procedures that would otherwise be in effect at a voting place.  For example, where a mobile poll is used, the presence of party or candidate representatives together with voting officials will help to ensure the integrity of the process.   Where mail ballots are employed then a double envelope system should be used so that the inner envelope in which the ballot is deposited is a blank envelope thereby preventing identification of the voters.[xii]  In the case of early voting, for example, steps need to be taken to ensure that the name of the voter is marked as having voted so that the voter may not vote again either at another early voting place or their regular voting place on election day.

         

        It is generally accepted that the legal framework may provide that members of the army or the police forces can exercise their right to vote while on active duty. While it is important to protect the voting rights of members of the army or the police, the relevant legal provisions should be carefully designed to prevent abuse.

        Furthermore, the legal framework often allows the establishment of polling stations in military units located in remote areas far from any population center. While in some cases the adoption of such measures may be inevitable, it should be accompanied by an express provision specifying that it applies only in exceptional situations and, where possible, members of the military and the police should vote in advance. Members of the armed forces who are not on active duty on polling day must vote at an ordinary polling station, without wearing uniform and carrying arms.[xiii]

         The principle of voter accommodation is commendable, however related provisions should be written to prevent abuse and fraud. To minimize this possibility and safeguard the integrity of the special voting provisions, the legal framework should include the following:

        • A process to clearly identify voters eligible to use alternative voting provisions and to prevent double voting.

        • Special voting provisions should only be applied in well-defined situations, e.g., in cases where it is not physically possible for the voter to travel to a regular polling station to vote; however, some jurisdictions might provide exceptions to this for special reasons, for example, allowing a large section of its voters to vote by mail.

        • Representatives of parties and candidates as well as election observers should be permitted to monitor special voting stations.

        • The number of ballot papers with serial numbers and other security features used and the number later returned, should be formally and transparently recorded.

        • The number of ballot papers issued should correspond with the number of requests received, plus a specified small number of extra ballots to allow for voters who may spoil their ballot paper.

        • The names and number of requesting voters who have used or are using the special provisions should be recorded in polling-station and other protocols in order to avoid double voting and to identify particular areas where the proportion of votes cast is unusually high, which may point to the occurrence of fraud.[xiv]

        Once voting takes place outside of the confines of a voting place in particular it is evidently more difficult to control, “Therefore, an assessment of the advantages of special voting provisions must be weighed against the ability to regulate them properly, securely and transparently, as well as their effecton degree of confidence in the overall election process.”[xv]  Special voting provisions are enfranchising and a practical necessity but so too must the legal framework strive to safeguard the integrity of the process.


        Electronic voting processes likely have significant potential applications to some Special Voting Provisions, and may ultimately pave the way for more general application of electronic voting.



        [i] Democracy Reporting International (DRI) and The Carter Center, “Overview of State Obligations relevant to Democratic Governance and Democratic Elections.” (Berlin, Germany/Atlanta Georgia, United States of America: DRI,  2012), 17.

        [ii] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 24.

        [iii] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 25.

        [iv] OSCE, Election Observation Handbook, 23.

        [v] International IDEA, International Electoral Standards, 72.

        [vi] European Commission, Handbook for European Union Election Observation, 79.

        [vii] International IDEA, International Electoral Standards, 72.

        [viii] Ibid., 72.

        [ix] Ibid., 73.

        [x] European Commission, Handbook for European Union Election Observation, 77.

        [xi] Ibid., 80.

        [xii] Ibid., 81.

        [xiii] International IDEA, International Electoral Standards, 73.

        [xiv] Ibid., 73.

        [xv] OSCE, Election Observation Handbook, 76.

         

         

        Vote Counting

        International law establishes the fundamental right to genuine elections but, “international law does not provide a great deal of guidance on the interaction between the counting process and fundamental rights.”[i] It is up to the national legal framework to ensure that all votes are counted accurately, fairly, equally and transparently.  As a result, there is a great variation among specific vote counting procedures. (Note: The text in this section considers several sources but relies heavily upon the vote counting discussion in International IDEA’s, International Electoral Standards: Guidelines for Reviewing the Legal Framework of Elections).

        A fair, honest and transparent vote count is an essential component of democratic elections. This implies that votes be counted, tabulated and consolidated in the presence of representatives of political parties, candidates and election observers, and that the whole process through which the winners are determined is fully open to public scrutiny. Therefore the legal framework itself must ensure the right of presence for such representatives during the counting, tabulation and consolidation of votes.[ii] In fact, the HRC, “specifies that ballots should be counted in the presence of candidates and their agents.”[iii] 

        Votes are most often counted immediately following the close of voting at each voting place. However, it is not unusual that special counting centers may be established in order to provide a more secure, controlled and highly supervised environment. One other advantage to counting centers depending on the circumstances is that, “through the mixing of ballot papers from different polling stations, (counting centers) can address concern that retribution may be taken against voters where the results of individual polling stations are known.”[iv] 

        Regardless of whether votes are counted at the polling station or at a special counting center, representatives of political parties and candidates and election observers must be allowed to be present during this process. This is especially important where special counting centers are established because, “The transportation of ballot papers between centres of voting and counting is a potential source of suspicion and fraud.”[v]

        Besides ensuring the presence of these stakeholders during vote counting, the legal framework should include safeguards when technological devices are used during counting. The legal framework may provide the possibility for independent verification of the reliability and accuracy of the equipment and software used for counting. Whether the counting is manual, mechanical or electronic, revising processes are necessary in order to ensure reliability and accuracy. The law must also establish means of challenging the counting procedures, including objections relating to the criteria used to determine the validity of ballots.

        The legal framework must also clearly indicate the formula that will be used to convert votes into seats. The thresholds, quotas or other details of the electoral formula used should be stated clearly, and any other possibility, such as a tie, withdrawal or death of a candidate must be addressed. 

        Clear criteria should be established for determining the validity or invalidity of ballots. The rules for determining the validity of ballots to be counted should not be so severe as to result in an unreasonable exclusion of voters. The core principle should be that if the voter's intention is clear, the ballot must be counted. For example, “The adoption of overly strict rules for determining the validity of ballots, for example, requiring that a ballot with a check mark rather than a cross next to the chosen candidate be disqualified can work against illiterate or poorly educated voters.”[vi] Or it may be added, the careless voter or voter in a hurry.  It is particularly important that the law clearly sets out what is and is not a valid ballot especially when considering that in many cases the count of the local voting place officials is determinative often final subject only to judicial appeal. As such, training of local counting officials is also critical.

        The legal framework should also clearly specify, where possible, that certified copies of the results are provided to the representatives of parties and candidates and to election observers. The law should also specify which bodies or authorities shall be entitled, if applicable, to receive this information before the competent election authority issues the certified results.

        The legal framework has to set, in clear and objective language, the procedures for transmitting or transferring the certified copies of the results, ballot papers and other election materials from the polling stations to the various offices of the electoral authority for consolidation and safeguarding. It is important that the law requires that the tabulation or consolidation of every vote count be available in a format that allows representatives of parties and candidates and election observers to record and keep track of vote counting from the polling stations until its final consolidation through the different levels.

        The tabulation for any polling station must provide detailed information on the number of ballots used, the blank ballots, spoiled or invalid ballots, and the number of votes obtained by each party or candidate. This information can be broken down according to the different voting methods used, such as voting by mail or by mobile devices, where this can be done without compromising ballot secrecy. The information at this level of detail is necessary to enable the representatives of parties and candidates and election observers to track and control for results and to determine accurately, in case fraud or irregularity have occurred, where figures were illegally altered during the process of consolidation of results.

        In many cases, the opportunity to publish the results may be key to its acceptance by all contenders. Therefore, the legal framework must provide for the timely publication of the results, and indicate whether the electoral authorities may announce partial or preliminary results before the final certification. If results can be announced prior to the final certification, the legal framework should clearly regulate the manner of making such announcements. With the exception of restrictions indicated by the existence of several time zones, the media and representatives of parties and candidates should be free to publish the results of the election. It is typically the president of the polling station, in case of counting at that level, or the director of elections at the highest level of the EMB, who announce the results of the count. It is common for countries comprising more than one time zone to impose certain restrictions on the dissemination of results before all polls have closed.

        It is desirable that the legal framework requires that all relevant counting documents, such as tabulation or tally sheets and generally documents containing decisions that influence the outcome of the election be publicly accessible. Such documents can be posted in public places at all levels of the election administration, from the polling station to the various levels of the electoral body. Detailed tabulations of the overall results, including results by polling station, can be posted in each electoral office. They may also be published in state-owned or state-controlled print media and, if possible, on the website of the electoral body, as soon as the final results are certified.

        To prevent any kind of fraud, it is also recommended that the legal framework require posting of formats or documents in public places showing the counting and tallying of votes in each of the levels where these operations were carried out. The possibility of fraud is present to the extent that there is no requirement for election authorities to publicly display the results of tallies and tabulations.

        The legal framework must clearly specify the period within which the final certification of the election results and the corresponding certification process must take place, including notifications or announcements to candidates on their election and term of office. In addition, the law should clearly specify under what conditions a recount or new election can be conducted in one or all of the polling stations. The law should clearly state who can request a recount or a new election, the deadline and procedure for doing so, the deadline for adjudicating on the request and the date and procedures that, if applicable, must govern the recount or a new election. When using some sort of technological device for counting or tabulating, the law should clearly indicate exactly what the recount will entail, for example, if all data will be reintroduced, if a parallel manual count will be conducted, etc.

        The legal framework must provide for secure storage of all ballots and electoral materials until the deadline to challenge the certified results has passed, or in case a challenge is made, until a final judgment is pronounced.

        In extreme circumstances, the publication of election results at the polling station level could jeopardize the security of voters or polling officials. This possibility exists in those cases where the election takes place after a civil war or in societies marked by sharp conflicts where tensions prevail. Under extreme circumstances, the law may provide exceptional measures regarding the local publication of results in order not to jeopardize the voters.



        [i] DRI and The Carter Center, Strengthening International Law, 43.

        [ii] International IDEA, International Electoral Standards, 77.

        [iii] DRI and The Carter Center, Strengthening International Law, 46.

        [iv] European Commission, Handbook for European Union Election Observation, 82.

        [v] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 26.

        [vi] UN, Women & Elections, 72.

         

         

        National and International Observers

        Election observation is an often used term.  Nevertheless, it is instructive to begin with a working definition taken from the 2005 UN Declaration of Principles for International Election Observation which states:

        International election observation is: the systematic, comprehensive and accurate gathering of information concerning the laws, processes and institutions related to the conduct of elections and other factors concerning the overall electoral environment; the impartial and professional analysis of such information; and the drawing of conclusions about the character of electoral processes based on the highest standards for accuracy of information and impartiality of analysis.[i]

         

        In consolidated democratic systems it is considered that the electoral processes are carried out in line with sufficient guarantees and that the establishment of systems for observation and additional control are not necessary. Thus, the combination of electoral management bodies, polling officials, representatives of political parties, the possibility to challenge the procedure before an independent authority and freedom of the media are seen as sufficient elements to ensure electoral transparency. In these cases, there is no imperative need for observation of the electoral process by international, national and politically neutral organizations, with the exception of missions of a very limited scope to demonstrate electoral transparency, such as for example, the presence of international visitors. In contrast, observation seems extremely useful in the transition to democracy. It is, in this light, possible to establish a qualitative division between electoral events based on the requirement or not for national or international observation.

        Election observation may take the form of domestic observations (sometimes referred to as “monitoring”) and international observation.  Election observation also varies with short term observation most often focusing on election day and involving a large force of observers, and long term observation which involves usually smaller expert teams of observers in country well in advance of an election in order to observe the preparatory and campaign phases as well as voting, vote counting and results. 

        Both types of election observation play an important role in terms of enhancing the transparency and credibility of elections and the acceptance of results and may potentially contribute to the prevention, management or transformation of election-related conflicts.[ii]  Therefore, “The legal framework should provide for observers, including domestic and foreign, and representatives of the media, political parties and candidates, to ensure transparency of all electoral processes. Transparency of the electoral process is a minimum standard necessary to ensure democratic elections.”[iii]

        International law is largely silent in terms of the rights of observers[iv] but the value of election observation can be enhanced by a legal framework that goes beyond simply acknowledging its possibility.  It would be helpful if the legal framework specified the rights of observers to do their job by freedom of movement, inspection of documents, attending meetings, monitoring all phases, and having a right of recourse where observers have complaints about interference.  At the same time, it would be helpful to specify what an observer may not do, such as interfere with electoral procedures or act in any partisan manner. Ideally, “The legal framework should strike a balance between rights of observers and the orderly administration of the election processes.”[v]

        Beyond the legal framework, there are also expectations regarding how observers should conduct themselves.  As general principles, election observation must must recognize and respect the sovereignty of the host country, be non-partisan and neutral, comprehensive, transparent, accurate and professional.[vi]  In 2005, standards for the conduct of international election observation were created by way of the Declaration of Principles for International Election Observation and an accompanying Code of Conduct. 

        Notwithstanding that, “International election observation is neither a right, nor as yet a recognized international standard”[vii] there has been and continues to be a tremendous amount of such activity. In the 80’s and 90’s various international entities carried out complex election observation operations in African (Uganda, Mozambique, Angola, South Africa) and South American countries (El Salvador, Nicaragua) as a form of cooperation in the political transition process. However, since 1986, as an alternative to the increasingly costly operations of international election observation, national or international NGOs play the same role.

        International election observers rely upon some form of invitation or agreement with a sovereign state in order to officially observe an election.  On the other hand, “As citizens, domestic observers have a right to participate in the public affairs of their countries.”[viii]  As such, “A legal framework for elections should provide guarantees for the right of domestic non-partisan observer groups.”[ix]

        The phenomenon of national election observation deserves to be carefully analyzed. On the one hand, it is clear that this alternative presents many advantages, as it implies significantly lower costs than the international operations and contributes to the development of democratic awareness at national level. It is also an essential element in countries where international election observation missions are legally banned and this prohibition cannot be sufficiently overcome by using international visitors. It should be acknowledged that certain countries are not favorable towards international election observation, which explains why such operations are sometimes "observed" themselves with suspicion, as national electoral authorities and political parties consider that foreign interests are now pursued through these NGOs.

        National election observation is an ambiguous phenomenon. On the one hand, it is very positive when seen as an alternative to the transfer of thousands of international observers, of whom the vast majority is not familiar with the country and even with the electoral process. On the other hand, it is questionable whether it contributes to the reinforcement of the electoral administration and the political parties. In the most effective scenario it is not a case of either/or but a case of both national and international election observation.  Each approach has its own limitations but each also can bring great value.

        Overall, election observation and monitoring by international and domestic election observers may provide tremendous value in terms of aiding transparency, accountability and confidence in elections. Increasing trends toward longer term international observation and the role of domestic observers bode well and should be seen as an obligation:

        An adage often repeated in the electoral arena is that it is possible to conduct a credible election under a weak or even bad legal framework, if those with governmental power have the will to do so – and it is extremely difficult to conduct a credible election, even under a strong legal framework for democratic elections, if those with governmental power intend otherwise. Civil society therefore has a responsibility to organize itself to monitor implementation of legal frameworks to ensure that credible elections take place and to expose the facts when elections lack credibility. Knowledge of legal frameworks is essential to accurately making that distinction.[x]



        [i] European Commission, Handbook for European Union Election Observation, 181.

        [ii] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 30.

        [iii] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 23.

        [iv] DRI and The Carter Center, Strengthening International Law, 8.

        [v] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 24.

        [vi] International IDEA, International Electoral Standards, 17.

        [vii] Ibid., 91.

        [viii] DRI and The Carter Center, Strengthening International Law, 45.

        [ix] European Commission, Handbook for European Union Election Observation, 73.

        [x] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 6.

        Voter and Civic Education

        Education may seem to be a distance from the traditional role of electoral management bodies to prepare for and undertake the logistical requirements of an election but increasingly this is an active area for such bodies because there is recognition of a direct linkage: “For an election to be successful and democratic, voters must understand their rights and responsibilities, and must be sufficiently knowledgeable and well informed to cast ballots that are legally valid and to participate meaningfully in the voting process.”[i]  In post-conflict situations the challenges and opportunities may be even starker. In fact, failing to provide the information necessary to participate in elections in a way that is fulsome and timely, “may, by omission, constitute an unreasonable restriction on the exercise of electoral related rights.”[ii]

        When speaking of education in the context of electoral processes, two related but different concepts emerge. First, there is the notion of “voter education” which is most directly related to electoral management bodies informing voters of how to go about all the technical aspects of an election including being registered and voting. “Civic education” may be understood as a broader term intended to increase the population’s knowledge of principles and features associated with government, such as the political system.

        The purpose of civic education and voter education campaigns is often not purely informative, but aims also by encouragement and incentive to increase overall engagement in the election and voter turnout specifically, although some electoral laws formally prohibit such purpose. It is essential that civic education and voter information campaigns respect the principles of objectivity, transparency, equality, pluralism and neutrality of electoral authorities. Some legal orders include an explicit prohibition against using voter information and civic education campaigns to direct voters towards a specific candidate or political party. In such a framework, one of the functions of electoral administration bodies is to regulate voter information and civic education campaigns carried out by the government in order to prevent partiality, such as acts that may prejudice the public interest or the regular function of public services.

        As electoral processes are more and more institutionalized and increasingly conducted in compliance with rules, voter education becomes a more prominent task in the activities of the electoral bodies. Voter education programs will target all voters but special attention should be directed to historically marginalized or disadvantaged groups of voters as, “Any special measures likely would not be considered discriminatory because they support the fulfillment of the State’s duty to ensure the rights of groups who suffer (or have historically suffered) discrimination.”[iii]  As well, low turnout groups such as youth are often specifically targeted.

        A strong voter education program is critical to ensuring the free participation of qualified voters in genuine elections.  This initiative, however, “is most effective when linked with a programme of civic education that puts the election into context for voters and provides an explanation of the election’s purpose, the surrounding issues, and their significance.”[iv] A main channel for civic education is the school system beginning with pre-voting age youth and preparing them with concepts that one day will have expression in the act of voting.

        Informing and educating voters also implies greater voter participation in electoral processes.  While voter turnout is a very complex phenomenon with many variables, as Elections Canada reports on Canada’s Democracy Week 2012 Website, “Studies in Canada, the United States and Australia demonstrate that civic education has a positive impact on key factors associated with voter turnout, such as political knowledge, interest, attitudes, civic participation and intent to vote.”[v] Thus, education in the framework of a democratic culture becomes more and more necessary. It requires building a political culture in which all members of a community, from an early age should assimilate and be informed of democratic values ​​that citizens should share and spread. Therefore, in addition to the educative role that ordinary social stakeholders, such as the family, schools and meeting places can play, electoral authorities should play a significant role.

        It is, of course, important that as electoral management bodies increasingly take on a role in civic and voter education that sufficient funding is provided in order that programming will be adequate and sustained over time.  In some jurisdictions in Canada, for example, funding for voter education is expressly provided for by a direct draw on the treasury without need for an enabling vote.  However, in all instances including budgeting considerations, there is value in the efforts of electoral management bodies being supported by like-minded initiatives by the public and private media, political parties, and non-governmental and international organizations playing a vital role.[vi] Elections management bodies must take the lead however, as they are uniquely qualified to provide technical, credible and non-partisan voter information on a timely basis as it is needed.

        One other way to encourage efficiency in this area is to share lessons learned and best practices.  On this front, a major cross-national study on civic education, the Civic Education Study (CIVICED), is currently being carried out under the auspices of International IDEA and l'Université de Montréal, Canada and is targeted for completion in 2012. The  study draws upon questionnaires completed by civic education specialists in over 35 countries in order to compile a database to serve as a resource for researchers, policy makers, educators and academics around the world.[vii]

        Increasingly legal frameworks are recognizing the role of electoral management bodies related to voter education. Not only do electoral authorities have the technical  competence to add value to voter education but also there exists an inherent obligation to contribute to such an important undertaking that may eventually be translated into political participation.



        [i] UN, Women & Elections, 56.

        [ii] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 15.

        [iii] DRI and The Carter Center, Strengthening International Law, 39.

        [iv] UN, Women & Elections, 60.

        [v] Elections Canada, “The Impact of Civic Education on Voter Turnout.”  Canada’s Democracy Week 2012 Website.

        [vi] UN, Women & Elections, 59.

        [vii] Elections Canada, “The Impact of Civic Education on Voter Turnout.”

         

         

        Media and Elections

        Media play an essential role in the conduct of democratic elections, “Not only do media outlets provide candidates a platform to voice their political opinions, they also provide information to voters and can serve as a watchdog for government actions.”[i] A free and fair election does not only imply that citizens are allowed to vote in proper conditions but also that relevant information on political parties, candidates and the election process itself is provided so that voters are able to make informed choices.  Therefore, freedom of the media is very important in order to ensure a democratic election.  (Note: The text in this section considers several sources but relies heavily upon the vote counting discussion in International IDEA’s, International Electoral Standards: Guidelines for Reviewing the Legal Framework of Elections.)

        However, regulation of the political use of the media is reasonable given the fact that media exposure and elections have an increasingly close relationship. Due to the fact that the media is considered the best mechanisms for message dissemination, it has become a focal point, especially with regard to election campaigns. However, while some regulation of the media is very well founded, Any legal measures applied to the media sector should not, however, be overly restrictive or unnecessarily impede the activities of the media, and they should be proportional and ‘necessary in a democratic society’.”[ii]

        Indeed, recent experience shows that the ranking of political parties has become more dependent on the use of economic rather than ideological tools, as parties use their constant presence in the mass media as an effective strategy in order to gain social exposure as they strive to claim voters’ preference. In this sense, it is highly important that aspects of the activities of mass media with regard to politics and elections are regulated. Media regulation should ensure that the use of mass media, such as radio, television or the Internet do not become a factor that creates inequality in elections. It is crucial that the legal framework guarantees that all political parties and candidates have access to the media and are treated on an equal basis by the media owned or controlled by the State, and that no excessive restrictions are imposed on the right to free expression of political parties and candidates during election campaigns.

        Some political parties own newspapers and even television channels, which play a vital role in the dissemination of the party's campaign to the voters. Where there are more private rather than government owned media the question of equal access for parties and candidates also arises and may need to be regulated. Unlike with regard to state-controlled media, “it seems that, according to international law, private media is under no compunction to provide equal access to political contestants.”[iii]

        There is however, an acceptable international standard of non-discrimination which is held to be applicable to private media. If political advertising is allowed, the private media must charge the same rates to all parties and candidates without discrimination. In certain countries, paid political advertisement is banned, while in others such a ban has been interpreted as an unjustified breach of the freedom of expression. Nevertheless, paid political advertising should always be identified as such and should not be disguised as news or editorial coverage.

        • Give all political parties and candidates the necessary legal guarantees to enable them to compete on the basis of equal treatment before the law and the state authorities;
        • Prevent any legal or administrative obstacles from hindering access to the media on a non-discriminatory basis for all parties and individuals wishing to participate in the electoral process.[iv]

        It is important that there are clear legal provisions for the timely implementation of these guarantees before and during elections. The process for establishing a formula or schedule for access and equal treatment in the media for a particular election should not contain ambiguities and must allow its objective application. For example, 50% of the time could be distributed equally among all parties and 50% in proportion to the votes obtained in the last election or to the number of seats held in the parliament. Since political debate and some form of political campaigning also takes place outside of election periods, a further entitlement promoting open dialogue could be, ”to require provision to political parties of the right to free time on public radio and television on a permanent basis, and not only during electoral periods.”[v]

        The access of political parties and candidates to the media may be regulated in a national law covering the media or public information, and not necessarily in the electoral law. Media law may only contain general provisions on access and delegate the authority for determining the details of its implementation to an administrative body, such as a specialized media committee. There are various forms, “for such a supervisory body, including a self-regulatory model, a traditional regulatory authority that is responsible for overseeing the activities of the media on a permanent basis, or, sometimes, a branch of the EMB.”[vi] Whatever the model, the important obligation is that the body act with independence, impartiality, transparency and consistency.[vii]

        The rules on access and equal treatment can be breached if the state-owned media are able to favor a political party or candidate in alleged news coverage, discussion forums or editorials. The law should prohibit partial coverage or preferential treatment in the state-owned media and establish applicable corrective mechanisms and penalties.  Such regulation is necessary because, “in many countries the ruling party dominates the public media. Though the emergence of independent media has had the effect of challenging this monopoly there is still a perception that in some cases the public media are not sufficiently accountable to the populous, often resorting to sensational and biased reporting.”[viii]

        The rapidly changing nature of media is also having a significant impact on the conduct and media coverage of election campaigns.  Certainly, international law has struggled to keep up with such rapid changes but among the issues to be considered are, “that impartial information regarding the election and electoral contestants is available online; the role and regulation of blogs and non-professional, citizen journalism during the electoral period; and the impact of new media on the regulation of campaign finance.”[ix]

        A democratic election is not possible where the legal framework for elections inhibits or creates obstacles for campaign speeches and free expression. Very often, the legal framework of countries in transition to democracy censors campaign speeches by imposing penalties against public speeches that "defame" or "insult" another person or political rival, which may include criticism of the government, a government official or a candidate. Such provisions can be found not only in the electoral legislation or media law, but also in the Constitution or in civil, criminal and administrative laws. Any legal provision regulating defamation of reputation should be limited to civil law. Any provision, regardless of its legal source, that imposes penalties of disqualification, imprisonment or a fine for criticizing or "defaming" the government, another candidate or political party, may lead to abuses. Restrictions on freedom of expression may well violate international human rights law.[x] In addition, such provisions may violate the guarantees to freedom of expression enshrined in the Constitution of a country. These freedoms need to be taken into consideration when reviewing provisions that permit censorship of candidates, supporters or the media and are contrary both to international and domestic standards. The only exceptions may be a specific prohibition of communications likely to incite racial or religious hatred [xi]or inciting violence.

        Regulations and conditions that create obstacles and penalize free speech not only deny fundamental rights and the ability of political parties and candidates to communicate directly with voters but also, “In an overly restrictive media environment, journalists may practice self-censorship to avoid harassment or sanctions by the authorities, thus limiting the information and diversity of views available to the electorate.”[xii]

        The conduct opinion polls and exit polls-especially when their results can influence the judgment of voters who have not yet gone to the polls-is another area that needs to be taken into consideration. In some countries it is considered that any limitation on opinion polls or exit polls constitutes an infringement to the freedom of expression and is therefore unacceptable. Moreover, in some countries, the publication of such results is permitted only after the polling has closed. Any legal provisions placing unreasonable or disproportionate restrictions on the freedom of expression during election campaigns should be amended or deleted from the legal framework.

        The legislative framework should consider the establishment of a specific regime for conducting opinion polls during election periods. The purpose of regulation related to opinion polling is to prevent political groups and parties from manipulating the electorate through opinion polls that may eventually affect the election result. The most common measures in this regard are the following:

        • Setting out the requirements for conducting opinion polls and publicly releasing their results. For example, the legal framework often requires the disclosure of the name of the company that carried out the survey, the date, the methodology that has been used, the size of the sample and other technical characteristics such as the margin of error and the characteristics of the sample;

        • In line with the above, the legal framework grants special powers to the election administration regarding the control of dissemination of opinion poll results, usually including the possibility of imposing corrective measures to the media;

        • The prohibition of releasing opinion poll results some days before the election. Although the enforcement of such ban is difficult, given the global scope of mass media, the electoral administration usually has the right to impose corrective measures if the legal requirements are not met.

         

        Another form of opinion polling is the mechanism of "exit-polls", which was used for the first time in Israel. Unlike opinion polls, exit-polls do not refer to voting intentions, but are based on the replies of randomly selected voters after having voted. However, unlike preliminary election results which are recounted and verified after the closing of the polls, exit-polls are only based on voters’ affirmations. Hence, a reliability problem arises. Although it may be assumed that voters in stable democracies have no reason to hide or lie about their vote, especially taking into account that there is no obligation to reply to an exit-poll, in practice they often do so. Indeed, exit-polls have failed to predict election results in many European countries. Thus it may be expected that the level of reliability of exit-polls is even lower in countries in transition, where citizens’ fears may have some factual basis.

        Exit polls may therefore result in the disclosure of inaccurate data, generating confusion and hindering the acceptance of the results by the defeated, especially in countries in transition. Moreover, their compatibility with the principle of the secret ballot may be questioned. The efficiency of exit-polls is even questioned in consolidated democracies, where new technology systems of rapid count allow the release of accurate and fully reliable preliminary results in a very short period of time. To sum up, exit-polls may hinder the electoral process in countries in political transition and, in any case, they are expensive and unreliable.

        Not only is it important to regulate the allocation of broadcasting time in the media, but also to regulate other issues, such as unfair media coverage of election campaigns and the dissemination of polls and surveys in certain periods, as these can eventually be factors that hinder equal competition.



        [i] DRI and The Carter Center, Strengthening International Law, 37.

        [ii] European Commission, Handbook for European Union Election Observation, 54.

        [iii] DRI and The Carter Center, Strengthening International Law, 38.

        [iv] International IDEA, International Electoral Standards, 61-62.

        [v] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 19.

        [vi] European Commission, Handbook for European Union Election Observation, 56.

        [vii] Ibid., 56

        [viii] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 18.

        [ix] Ibid., 38.

        [x] International IDEA, International Electoral Standards, 63.

        [xi] European Commission, Handbook for European Union Election Observation, 54.

        [xii] OSCE, Election Observation Handbook, 64.

         

         

        Elections and Technology

        Thanks to the technological advances developed at the end of the last century, it is possible to implement advanced technology in elections and that interest is growing.  The everyday impact of technology on election management is very significant and growing. This technology can be aimed at assisting document creation, processing and management, new and more powerful election management information systems, creating and managing voter registers, vote casting, vote counting, expanded public access to information such as filings and reports, powerful tools to make boundary redistribution more effective and efficient or new and expanded ways to share information among practitioners, to name a few. 

        In this regard, regulation has lagged behind technological developments. Appropriate regulation should allow the wise implementation of technology in electoral processes ranging from database systems for voter registration, electronic voting, bio-identification systems, scanning and geographic information systems. However, nothing captures the potential and challenges of the implementation of technology in elections more so than electronic voting and vote counting and while it is far beyond the scope of this section to examine all facets of this debate, it does serve as a good example of the relationship between technology and the legal framework.

        On the one hand, electronic voting and counting has the potential to increase speed and voter access, while potentially reducing human error and cost. There is also the matter of public expectations in an increasingly technological savvy world.  The strongest advocates argue that new technologies may even increase voter participation.  However, on the other hand, especially in an uncontrolled environment outside a voting location, this innovation faces potential risks such as the loss of transparency, observation and audit, fraud and manipulation, vote selling, intimidation and loss of secrecy.  Of course, there is much that can be done to manage risk and indeed numerous jurisdictions now employ electronic voting technologies including, direct recording electronic (DRE) equipment, ballot-scanning devices, the Internet and mobile telephone networks.[i]  However, it is also reasonable to acknowledge that, “such technologies also pose challenges to the transparency and accountability of an election process, to the secrecy of the vote and may influence perceptions about the security of the vote and have a negative impact on voter confidence.”[ii]

        However, in the matter of something as important as elections, what is not up for debate is that, “the standards for assessing elections using traditional ballot papers apply equally to e-voting. Thus, all eligible voters should have the right to vote, the secrecy of the ballot should be guaranteed, and results tallied by e-voting equipment should accurately reflect voter intention.”[iii] The use of technology should not jeopardize the citizens' trust in elections.

        Positive regulation should encourage the use of technology which in most cases implies cost reduction. However, the use of technology should not jeopardize the security of elections and citizens’ trust in elections given the vulnerability especially of certain electronic systems. The secrecy and freedom of the vote must be ensured as paramount.  For these reasons, while the legal framework needs to be flexible enough to make best use of available technology, where the application of such technologies may impact the fundamental principles of elections, “Such wide flexibility might be regulated by requiring that certain types of approval be obtained before adopting them.”[iv]  At the very least, this would allow careful consideration, debate and purposeful decision making going forward.



        [i] Ibid., 67.

        [ii] Ibid., 67.

        [iii] European Commission, Handbook for European Union Election Observation, 85.

        [iv] International IDEA, International Electoral Standards, 72.

         

         

        Electoral Campaign

        An electoral campaign can be defined as the set of organizational and communication activities carried out by candidates and/or political parties with the aim of attracting voters. The electoral campaign often begins in earnest once the candidacies are formally announced. This period is distinguished by candidates and political parties mounting heightened political campaigns.[i]

        This period is critical to a democratic election and rests on the fundamental rights of freedom of expression, association, peaceful assembly and movement. The importance of campaigning is recognized in international law:

        The free communication of information and ideas between candidates and their supporters is recognized as necessary in international law, as is the need for candidates, parties and their supporters to be able to debate public affairs criticize and oppose one another publish political material and advertise political ideas. In addition, voters have a right to access information about the candidates for whom they will vote.[ii]

         

        Having said this, it is important to acknowledge that the state may in certain defined circumstances limit candidates and their supporters and their right of expression (when those expressions seek to destroy or undermine other established rights or when they are in advocacy of national, racial or religious hatred that constitutes incitement) and rights of association and assembly (for example in the case of national security, public safety, public order, public health or morals or the protection of the rights and freedoms of others).[iii]  The onus must be to ensure that whatever the restrictions, they are established in law, reasonable in a democratic society, uniformly applied and that there is the right to a timely appeal to the judiciary or other independent body.

        Important elements of the electoral campaign are analyzed below:

        i. Actors in the electoral campaign

        In a strict sense, political campaigns can only be conducted by legally established political parties and formally proclaimed candidates. Nevertheless, other organizations such as trade unions, employer organizations, groups of citizens, the media and even famous people completely unrelated to politics often publicly express their support for a particular candidate and encourage the public to vote for that person thereby in a practical sense engaging in election campaign activities. In democratic systems it is not possible to impose restrictions on freedom of expression which would prevent such groups and individuals from making public declarations, especially taking into consideration that during elections citizens are called to express their opinion. However, legal provisions do regulate the conduct of candidates and political parties in electoral campaigns, including that certain electoral actors will receive public funding or benefits to cover the expenses of their electoral campaign.

        In addition, the legislative framework should ensure that electoral campaign activities are not carried out by people who because of their professional or political position may influence voters in a way that violates ethical principles of equality. Furthermore, members of institutions and bodies that are involved in the electoral process (members of electoral administration bodies, the judiciary, etc.) or may unduly influence the opinion of voters (army and police) should also remain neutral and not be allowed to perform any acts of electoral campaigning. These restrictions on fundamental rights can be legally justified, provided that they are accurately stated and predetermined in the Constitution or the law and aim to ensure a fully democratic election. Therefore, the violation of such rules should also be followed by criminal, disciplinary or electoral penalties.

        ii Time limits

        Electoral campaigns take place between formally and officially proclaimed candidates or parties and are usually limited to a certain period of time.  Normally, the electoral campaign starts at the proclamation by the competent authorities and ends the day before the election day. In this way, the electoral laws seek to restrict acts of campaigning outside the campaign period, including the transmission of political advertisements. The length of the electoral campaign period often ranges from two to four weeks; however there are those exceptions that provide for longer periods of time. Such is the case in Mexico, where the campaign period for presidential elections lasts more than four months resulting among other things in excessive electoral campaign expenditures.

        However, prohibitions are more problematic for periods prior to the formal proclamation of candidacies, starting from the announcement of elections. In this case, a conflict arises between rules proscribing prohibitions and freedom of speech as well as the constitutional functions of political parties. Therefore, in jurisdictions where such prohibitions are explicit, these rules are usually interpreted extremely narrowly and are mainly related to the prohibition of vote requests, rather than the performance of any other campaign act that does not constitute a formal vote request.

        The legal framework usually includes a “period of reflection”, which consists of a prohibition of any electoral campaigning at least twenty-four hours (in some cases days) before the opening of the polls.  The intent of this period is to restrict electoral campaigning as major voting operations open and thereby allowing voters to reflect and decide on their vote. One of the most important elements for achieving free and fair elections is the existence of an election campaign that respects the above-mentioned rules, thus ensuring free formation of voters’ preferences to be expressed on polling day. The level of equal opportunities for all candidates and of government neutrality in electoral campaigns depends to a large extent on the level of democratic development in each country and, ultimately, on the mechanisms for the protection of fundamental rights and the separation of powers.

        Sometimes, however, when in the extreme the succession to power is at stake, mechanisms of public power are often used for the benefit of their holders. Hence, emphasis should be put on the role of electoral bodies and the judiciary to ensure full implementation of the equality of opportunities.

        To sum up, elections are a means to convert the popular will to a representative government. In order to achieve this goal, it is necessary that all parties and candidates are free to transmit their political messages to the voters - to address political issues and propose solutions - during the campaign period. This period must be clearly defined, starting after the nominations of parties and candidates have been announced and ending before the polling day.

        iii. In-kind support for political campaigns

        The State often provides candidates and parties with different kinds of support for their electoral campaigns aiming to encourage campaigning on an equitable basis and considerate of not wasting the resources of political parties. As such, the legal framework should contain provisions not only with regard to state funding of political parties, but also regarding maximum ceilings of campaign expenses (these aspects are dealt with in a subsequent section). The state may provide various in kind means of support to political campaigns but in doing so care must be taken that, “No party or candidate (especially the ruling party) is favoured, financially or otherwise through the availability or use of state resources.”[iv]

        In kind support for electoral campaigns of parties and candidates usually include the following:

        1. Material and Human Public Resources

        The legal framework should make it clear that public resources may not be used in such a way as to tip the campaign playing field in favour any candidate or political party.

        Public spaces and buildings, for example, can often be used for campaigning and for the placement of campaign posters or signs of the different candidates. However, the fairness of a campaign will be undermined where state resources such as public buildings are used for campaign events in an unreasonable way to favour one candidate or political party.[v] From a democratic perspective, this space should be allocated on an equitable basis or according to reasonable and objective pre-determined criteria, for example, in proportion to the votes obtained by the party in the most recent elections. The same approach should apply to other material resources such as vehicles and office use where such use is permitted. These operations should be conducted or supervised by the electoral management bodies in order to ensure equal opportunities for all candidates and parties.

        In terms of human resources the legal framework should clearly specify the extent to which public employees may participate in the political campaign and at a minimum require a complete separation of roles as public servant and partisan of a political campaign.  Public servants should also be protected against intimidation or coercion to support a particular candidate or party in fear for their employment.[vi]

        The banning the political contribution of government resources (other than direct political funding schemes) is a global trend with 94 of 110 countries for which data is available, reporting a ban, albeit the effectiveness of which is open to further study.[vii]

        2. Broadcast time on state media

        The allocation of broadcast time is highly important taking into account that electoral campaigns are more and more conducted through the media. As a result, it is essential that the allocation of state controlled media broadcast time be included in the legal framework. In doing so, the following principles should be respected regarding state controlled media:

        • Free broadcast time for all candidates;
        • Neutrality of the media, which should ideally cover not only the broadcast time reserved for candidates but also all the other programs. The electoral management bodies should be responsible for monitoring equitable coverage;
        •  Political pluralism, so that no candidate is excluded from access to the media;
        • Prohibition or strict limits on paid broadcast time that is not dedicated to news programs;
        • Allocation of airtime according to pre-determined objective criteria.

        Globally, 69% of countries, including a large focus in Africa, provide free or subsidized media access to political parties.[viii]

        With respect to private media, electoral legislation usually contains two types of provisions. The first is addressed to the candidates and usually sets a limit on the amounts that can be spent on this type of activity. The second is addressed to the Media and prohibits discrimination regarding prices and inclusion or exclusion of candidates from political advertising.

        3. Copy of updated electoral lists

        Another public contribution or indirect method of public funding is providing to candidates a copy of the census or the updated electoral lists, with the dual purpose of enabling parties and candidates to carry out a personalized campaign and to monitor and manage voter turnout during voting. In some countries, a problem has emerged regarding the protection of valuable and personal citizen census data for only authorized purposes As a result, there have been cases of candidacies by organized economic groups with the sole purpose of obtaining these documents that contain valuable data. Regulatory response to this problem have been the penalization of the use of such documents for purposes other than the election and regulations providing for the maintenance of archives of the information obtained by each political group. In this way, people or entities using this data for commercial purposes can be more easily tracked and held to account.

        4. Electoral mail

        In addition to the above public support, political parties and candidates can often send electoral materials or print ballot papers at very low rates or even for free. In some cases, political parties and candidates may be reimbursed for the printing of electoral campaign materials by being granted an amount of money per actual shipment.

        5. Other legal guarantees

        The election campaign is limited to a relatively short period of time. This means that any legal dispute arising between the contenders must have a rapid and definitive resolution, because otherwise it would prejudice the electoral process. This is the main reason for the broad decision making powers attributed to electoral management bodies and for the establishment of accelerated procedures for adjudication. However, the final control of such decisions poses a new problem; the prevention of judicial review is an exception to the traditional structure of judicial control and even to the concept of the separation of powers, but in order to be effective, petitions should be resolved within a short deadline

         

        iv.  Freedom to Campaign

         “Campaigning as part of a genuine election process requires that a number of related rights and freedoms be enjoyed, for example the freedoms of expression, association, assembly, and movement.”[ix]  To give effect to these international principles, the domestic legal framework should establish the right to open and fair campaigning.[x]

        It is essential that, “The legal framework should state in clear language what type of conduct and behaviour is prohibited during the electoral campaign.”[xi]  The intent is not to limit freedoms of expression, association or peaceful assembly but rather to prohibit behavior that could impede these fundamental freedoms enshrined in international law. Sometimes in addition to statute, codes of conduct are arrived at by political actors often with the assistance of the electoral management body, however just as with legislation the provisions, codes of conduct, “should not be unduly restrictive and should provide the opportunity for active and open campaigning, free from interference.”[xii] 

        Law enforcement at times will be necessary to ensure both the freedom to campaign and the enforcement of reasonable limitations such as where demonstrations become violent.  However, “While the authorities are responsible for providing a safe and secure environment for campaign activities, security concerns should not be misused as a reason to abridge fundamental freedoms.”[xiii]  The primary obligation of law enforcement agencies should be act in a politically neutral manner and protect citizens from election-related violence, intimidation and coercion.[xiv]  Timely and effective judicial redress should be available where rights are violated or unreasonable restrictions are applied.[xv]

        In addition to legal sanctions and enforcement mechanisms, it is preferable that the legal framework also provide a more flexible mechanism such as an advisory committee coordinated by the electoral management body allowing, “the stakeholders to exchange views with each other or raise complaints of violations of campaign provisions or codes of conduct with a view to finding a common approach to resolving them and containing electoral violence.”[xvi]

         


        [i] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 18.

        [ii] DRI and The Carter Center, Strengthening International Law, 36.

        [iii] Ibid., 36.

        [iv] International IDEA, International Electoral Standards, 56.

        [v] European Commission, Handbook for European Union Election Observation, 52.

        [vi] OSCE, Election Observation Handbook, 62.

        [vii] International Institute for Democracy and Electoral Assistance (International IDEA), Political Finance Regulations Around the World: An Overview of the International IDEA Database, Edited by Magnus Ohman (Sweden: Trydells Forum, 2012), 10.

        [viii] Ibid., 10.

        [ix] DRI and The Carter Center, Strengthening International Law, 54.

        [x] European Commission, Handbook for European Union Election Observation, 51.

        [xi] International IDEA, International Electoral Standards, 56.

        [xii] Ibid., 56.

        [xiii] OSCE, Election Observation Handbook, 61.

        [xiv] European Commission, Handbook for European Union Election Observation, 52.

        [xv] OSCE, Election Observation Handbook, 61.

        [xvi] International IDEA, International Electoral Standards, 57.

         

        Political Financing

        One aspect where the need for public controls to foster equal opportunities is most clearly reflected in electoral law relates to the funding of the electoral campaigns; political finance is a vital issue for democracy, governance, and development. No matter how flawless are the country’s elections, how active its civil society, how competitive its political parties, and how responsible its local authorities, the role of money in politics undeniably influences the quality of democracy and governance.[xvii] 

          

        Among other publications, Political Finance Regulation: The Global Experience. International Foundation for Electoral Systems (IFES 2009) and Political Finance Regulations Around the World: An Overview of the International IDEA Database. (International IDEA 2012) are excellent resources to augment the following high level review of what is a very broad, complex and changing subject.

        i Funding Political Parties and Candidates

        Multiparty elections are a characteristic of democratic elections and it stands to reason that in order for political parties and candidates to present alternate choices to voters, those political entities must have financing adequate for election campaigns and annual activities.[xviii]  Private and public funding are two channels for such financing.

        1. Private Contributions

        Private contributions are a legitimate way to finance the operational and campaign expenditures of political parties and candidates, however, the public policy concern is that, 'campaign financing may come with strings that attach the party or the candidate to the donor. To prevent legitimate campaign funding from transgressing the line and becoming a non-legitimate method of influence, some regulatory measures are needed.'[xix]

        The main sources of private funding are:

        • Membership subscriptions

        • Donations to political parties or candidates by individuals

        • Funding by institutions such as large business corporations, trade unions etc

        • Contributions in kind by supporters.[xx]

         

        It is quite common to establish restrictions on private funding of political entities. Such restrictions may be in the form of source and/or amount.  However, it is important that, 'Any limits on fund-raising and campaign spending should not be so stringent as to render candidates unable to pay for basic campaign costs.'[xxi]  The same notion applies to political parties.  Candidates and political parties must have the ability to communicate effectively with the electorate; this is as important to the free choice of voters as it is to political entities.

        In terms of amount, reasonable limits on private contributions are often a part of the legal framework.  However, what is 'reasonable' is heavily influenced by the context in which the election takes place and depends, 'on the type of election and factors unique to the particular country, such as geography, demographics, and relative costs of media and other campaign materials.'[xxii]  However, while more common in Europe, globally 55% of countries do not limit the amount of contributions that may be given to political parties or candidates.[xxiii]

        Source restrictions may include a prohibition on receiving donations from public or semi-public entities, as well as from foreign states, organizations, companies and individuals. Some legal provisions contain more specific rules, such as the prohibition of donations from religious associations. In a similar way, anonymous donations and money from unknown sources are often prohibited or limited to very small amounts.

        Globally, bans on foreign contributions are quite common.  In the case of political parties, 68% or countries and in the case of candidates, 51% of countries ban donations from foreign sources.[xxiv]  Only 22% of countries ban corporate contributions.[xxv]

        One variation of source restriction of private contributions is found in frameworks that deny direct contributions to political entities in favour of private political contributions being aggregated in a public pool and then redistributed to political participants based on a formula.  In effect, the contributor will then be contributing to both the desired recipient and competitors and for this reason such a scheme should be carefully evaluated as to whether it amounts to a violation of a person’s rights to free association and expression.[xxvi]

        Donations should be publicly disclosed.

         

        2. Public Funding

        Public funding of political parties and candidates may take many forms.  For example, the previous section on the electoral campaign included a discussion of the provision of state resources to candidates and political parties.  In other countries public funding of political parties and candidates is direct, for example, in the form of an annual payment. A further example of public funding is the reimbursement of the partial value of candidate and political party election campaign expenses usually where the candidate or political party demonstrates a certain level of support in the election. In other cases, indirect state funding may be provided in the case of tax receipts issued to encourage private political contributions. 

        In many countries where it occurs, annual public funding for the administration of the ordinary activities of political parties often constitutes more than fifty percent of the parties’ annual budgets.

        Generally, where public funding occurs, "the aim is both to enhance the positive role played by political parties and to help curb some of the excesses of money in politics.'[xxvii]  Thus it is an acceptable practice for a legal framework to provide for the campaign financing of parties and candidates.

        Among the positive outcomes anticipated to flow from public funding are; an increased ability to communicate resulting in a more informed electorate, a more level playing field of electoral competition, increased institutionalization of political parties, reduction in corruption and the role of money in general and, influencing party behavior regarding such things as transparency and gender equality.  Possible downsides include; delinking parties from the people, failure of the party system to adjust to new trends in support, governing parties solidifying their position and generally the unpopularity of direct public funding.[xxviii]

        Early instances of public funding for political parties include Uruguay, Costa Rica and Argentina in 1928, 1954 and 1959 respectively and introduction in Europe (West Germany) in 1959.[xxix]  Of a 175 multi-party system countries for which information about direct public funding is available, 58% have legal provisions for some form of direct public funding to political parties.[xxx]

        To satisfy international standards, public funding should be determined on the basis of pre-determined objective and reasonable criteria which result in equitable funding of political entities and which must be applied in a non-discriminatory manner.[xxxi]  Often, such criteria for the allocation of direct public funding are based on a proportion of actual campaign expenditures, the proportion of votes received in the previous election or the number of each party’s seats held in the legislature.[xxxii]

        Where there is public funding, it is critical that the criteria for equitable distribution and key definitions (such as 'campaign expenses' where there is reimbursement) are clearly established in the legal framework and that the framework is then applied equally and without discrimination.

        Worldwide, 116 countries provide direct public funding to political parties, including the vast majority (86%) of European countries.[xxxiii]

        Overall, "The notion of public funding adds a positive approach of assisting the capacity of political contestants while simultaneously coun­tering the perverse impacts that public funding may have."[xxxiv]

        ii. Ceilings on Campaign Expenditures

        Controls on the amount of election expenditures incurred by political parties and candidates are common to many countries and primarily intended to encourage competitive elections.  Specifically, "limits on party and campaign expenditures are used to avoid excessive increases in the cost of party politics, control inequalities between parties and re­strict the scope of improper influence and corruption." [xxxv] In other jurisdictions, however, expenditure limits are regarded, "as an unconstitutional curtailment of the fundamental right to freedom of speech and expression." [xxxvi]  As such, spending limits, "contribute to a conflict between two fundamental principles of modern liberal democracy – the need to secure political equality and the need to secure political liberty." [xxxvii]  Nevertheless, the HRC recognizes that 'reasonable limitations' on campaign spending may be justified to ensure the free choice of voters is not distorted by disproportionate expenditures among candidates or parties.[xxxviii]

        Although the first examples of limiting campaign expenses of parties were observed in the UK in the late nineteenth century, these measures are now encountered in many states. The principal aim is to limit the excessive cost of campaigns, in the context of frequent scandals related to improper funding of political parties. On the one hand, to participate in a democratic election, the limit must be high enough to allow effective communication with voters but on the other hand, in excess, 'there is no minimum standard that requires that electoral contestants be given an opportunity to buy an election.'[xxxix]

        Furthermore, ceilings on campaign expenditures aim to prevent political parties with greater financial resources from dominating electoral campaigns and ensuring their success through high expenditures, thus marginalizing small political parties.

        Therefore, in reality, taken together these rules may be understood as an auto-limitation of the big parties, rather than as a way to allow the participation of political parties with limited financial resources.

        Despite the best intentions of regulation of this subject within the legal framework, experience also shows that the imposition of unreasonably low limits, such as those for the presidential elections in Russia, may provoke illegal financing of political parties. This is a factor that should be taken into account when regulating this matter.

        One other aspect related to expenditure limitations is the matter of so called 'third party' spending by individuals or groups that are not a part of a political campaign but who may spend money to either promote or oppose a particular candidate or political party.  When introducing expenditure limits, the legal framework should consider whether 'third parties' should also be subject to expenditure limitations in order to avoid an unbalanced situation where expenditures of political entities are limited but 'third party' spending to defeat or elect candidates and political parties is unlimited.  This is not necessarily easily accomplished, for example in the U.S., Citizens United v Federal Election Commission (2010), the Supreme Court held that constitutional guarantees of freedom of speech prohibited the government from restricting independent political expenditures by corporations and unions.

        Another, indirect, but very effective way to limit electoral campaign expenditures is the limitation of the electoral campaign period, which is also in line with the new reality of the mass media. A campaign period of two weeks can be considered as minimum.

        Where limits are placed on campaign expenditures it is absolutely critical that a clear and specific definition of 'campaign expenditures' is included in the legal framework. Practice shows that it is also important to provide the electoral management body with interpretive or regulation making power regarding what is considered a campaign expense because campaigning techniques and requirements are constantly evolving and to be effective so too must the definition in order for limits to be effective and so that all political actors are well aware of the rules.

        Globally, only 29% of countries limit political party expenditures although candidate expenditures are limited in 44% of countries.[xl]

        iii. Disclosure and Reporting

        Disclosure, or transparency, is another element in the regulation of political finance. In fact, it can be argued that transparency is the key element of regulation because effective disclosure is required for each of the other regulatory mechanisms to function properly.[xli]

        The notion of transparency is codified in the United Nations Convention against Corruption (UNCAC) which calls on all countries to strive to, 'enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties' (article 7(3)).[xlii]  UNCAC was adopted by the General Assembly in 2003 and came into force in 2005. On hundred and forty states are signatories to UNCAC.

        The legal framework should establish periodic reporting of contributions and other income as well as expenditures as, 'Legitimate limitations on campaign expenditures are meaningless without reporting and disclosure requirements.'[xliii]   

        Globally 88% of countries have some financial reporting from political parties or candidates but only 53% require both to report which suggests a potential loophole.[xliv]  Further emphasizing the potential for underreporting, a gap between formal rules and practical application may result in a much higher de facto lack of effective oversight.[xlv]

        Financial disclosure reports should be filed with the political finance regulatory body established in the legal framework for such matters and once filed every effort should be made to ensure that the information is available to the public in meaningful ways.  However, over 25% of countries that do require some form of reporting from political parties or candidates do not require that information to be made public.[xlvi]

        Auditing of financial disclosure reports is a common practice in some countries and which adds value to the credibility of the reports.

        While common approaches and themes do emerge, the context in each state and the differing normative objectives lead to the conclusion that, "there is no model political finance disclosure system." [xlvii]

        iv. Monitoring and Enforcement

        Approaches to monitoring and enforcement vary across countries but there is some consensus on basic issues including, " the independence of political finance regulatory bodies, the need for sanctions, monitoring of party and campaign finance, and a clearly defined legal framework." [xlviii]

        The agency responsible under the legal framework for the enforcement of political financing laws may be the electoral management body, or a specialized board or commission or located in the judicial branch of government.  Globally, it is not uncommon and, may occur in 25% of the cases, that countries do not formally specify an agency to monitor financial returns or investigate potential violations of political financing laws.[xlix]  This, plus other dynamics, leads to the observation that, often there are too many laws and too little enforcement.[l]  While decisions to prosecute must be based only on the available evidence, 'At the same time, failure to prosecute electoral offences can undermine confidence in the election and encourage further offences.'[li]

        In terms of enforcement, the possibility of civil and / or criminal penalties for non-compliance with the above rules should be clearly set out in the legal framework and should be proportional in terms of the gravity of the offence.[lii] There is also the possibility to cancel a candidacy or the election of the affected candidate, accompanied by a possible deprivation of the right to participate in future elections. Finally, the legal framework may provide for further civil or criminal liability and, in less serious cases, for a proportional reduction of public funding. Political parties and candidate financial regulation,' is an area in which enforceability is critical to the credibility of the effort to control political corruption.'[liii] 

        In conclusion, money in politics and the recognition that money in politics should be addressed in some manner or another by the legal framework is phenomenally consistent throughout the world.   A 2012 global study published by International IDEA found that all countries in the world have some regulations regarding the role of money in politics.[liv]  The nature and objectives of such regulation, however, as might be expected varies tremendously and, ' the international community has not yet endorsed more detailed working standards; hence despite the importance of money in politics, it remains difficult to establish a legitimate global yardstick to evaluate financial practices.'[lv] However, it is reasonable to keep in mind that regulation essentially intends to encourage healthy multiparty democracy and, " Regulation must not curb healthy competition." [lvi]

        An additional observation is that, " Global experience also clearly indicates that regulation and monitoring by government agencies is not sufficient, an active civil society and vigilant media is necessary if effective oversight is to be achieved." [lvii] 



        [xvii] International Foundation for Electoral Systems (IFES), Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai  (United States of America: IFES, 2009), 13.
         

        [xviii] International IDEA, International Electoral Standards, 65.

        [xix] European Commission and NEEDS, Compendium, 12.

        [xx] International IDEA, International Electoral Standards, 67.

        [xxi] OSCE, Election Observation Handbook, 61.

        [xxii] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 32.

        [xxiii] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

        [xxiv] Ibid., 10.

        [xxv] Ibid., 10.

        [xxvi] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 22.

        [xxvii] Magnus Öhman, 'Public Funding of Political Parties and Election Campaigns.' In International Foundation for Electoral Systems (IFES), Political Finance Regulation: The Global Experience (United States of America: IFES, 2009), 57.

        [xxviii] Ibid., 73-74.

        [xxix] Ibid., 57.

        [xxx] Ibid. 59.

        [xxxi] International IDEA, International Electoral Standards, 66.

        [xxxii] Ibid., 66.

        [xxxiii] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

        [xxxiv] Magnus Öhman, 'Public Funding of Political Parties and Election Campaigns', 77.

        [xxxv] Marcin Walecki, 'Practical Solutions for Spending Limits.'  In International Foundation for Electoral Systems (IFES). Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai (United States of America: IFES, 2009), 46.

        [xxxvi] International IDEA, International Electoral Standards, 68.

        [xxxvii] Marcin Walecki, 'Practical Solutions for Spending Limits', 47.

        [xxxviii] DRI and The Carter Center, Strengthening International Law, 37.

        [xxxix] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 22.

        [xl] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

        [xli] Magnus Öhman & Jack Santucci, 'Practical Solutions for the Disclosure of Campaign and Political Party Finance.' In International Foundation for Electoral Systems (IFES). Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai (United States of America: IFES, 2009), 27.

        [xlii] IFES, Political Finance Regulation: The Global Experience, 13.

        [xliii] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 22.

        [xliv] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

        [xlv] IFES, Political Finance Regulation: The Global Experience, 13.

        [xlvi] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 11.

        [xlvii] Magnus Öhman & Jack Santucci, 'Practical Solutions for the Disclosure of Campaign and Political Party Finance.', 41.

        [xlviii] Hani Zainulbhai, 'Practical Solutions for Political Finance Enforcement and Oversight.'  In International Foundation for Electoral Systems (IFES), Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai (United States of America: IFES, 2009), 98.

        [xlix] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

        [l] International IDEA, International Electoral Standards, 68.

        [li] European Commission, Handbook for European Union Election Observation, 60.

        [lii] International IDEA, International Electoral Standards, 67.

        [liii] ACE Electoral Knowledge Network, Encyclopaedia. Parties and Candidates Financial Regulations, Website.

        [liv] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 11.

        [lv] Pippa Norris, 'Are There Global Norms and Universal Standards of Electoral Integrity and Malpractice? Comparing Public and Expert Perceptions,' Faculty Research Working Paper Series (Harvard Kennedy School, March 16 2012), 5.

        [lvi] IFES, Political Finance Regulation: The Global Experience, 16.

        [lvii] Ibid., 13.

         

         

        Election Integrity

        In broad terms, ‘electoral integrity’ refers to, “agreed international principles and standards of elections, applying universally to all countries worldwide throughout the electoral cycle, including during the pre‐electoral period, the campaign, and on polling day and its aftermath.” [i] This definition highlights a couple of notions that have been present throughout discussion of the legal framework, namely; that no country can export its legal framework to another country, as context plays an important role in the application of international standards and, that elections must be understood as comprising all the components of the cycle and not just election day or the election campaign.  In this sense, election integrity is a daily obligation to be strived for.

        Election integrity is closely related to moral integrity and responsibility on the part of the various political actors, election officials and public opinion makers acting together in order to achieve free and fair elections. Generally speaking, as in several Latin American countries, the fundamental ethical principles and values regarding electoral democracy are guaranteed by various legal orders and therefore violations may entail liability. However, there are other ethical values and principles which, even if they are not necessarily prescribed by law, have governed -or should have governed- the transition and democratic consolidation processes.  This is especially the case in Latin America during the last two decades.

        The establishment and consolidation of a democratic system requires constant learning and reinforcement of the values of participation, stability, plurality and peace, as well as the exercise of rights and legality, the deployment of self-interest and auto-limitation, competition, cooperation and tolerance.  This learning process leads to the recognition of mutual rights and obligations, to the acceptance of the values of plurality and diversity, and to the renunciation of dogmatic principles and political Manichaeism. This learning process also leads to the formation of political parties and tendencies that are aware of the scope and limits of the proper democratic competition, in which no one can be above the law or invoke privileges over the majority. Indeed, eventual majorities should always be perceived as a part, not as a whole, and, therefore the rights of minorities must be fully respected, including their right to become a majority.

        A serious view of the role of integrity in politics leads to the belief that not only should the electoral institutions and political actors (parties and candidates) take on an ethical role, fully recognizing democratic rules, but also the media have an ethical responsibility towards the society.   After all, society is informed about politics and assesses democracy through media such as radio, especially through television and increasingly through the internet.

        The place of the media has a universal dimension and is present in all modern democracies. Thus, questions about the role of media in democracy and in election integrity are not random or secondary issues. In fact, reflecting on the relationship between media and politics is an essential task in order to consolidate democratic change and improve the quality of our democratic coexistence. These matters should undoubtedly be taken into consideration by the legal instruments.

        The need to establish codes of ethics or conduct, which would complement the respective legal orders, has arisen in practically all fields of human activity. At the international level, there are several collective efforts aiming to prevent the misuse of the professions through the implementation of codes of conduct and universal application by various international organizations and professional associations.

        In Latin America, several countries have adopted codes of ethics or conduct related to electoral processes such as: Argentina (applicable in two of its provinces: Code of Ethics for Judges and judicial officers of Córdoba and Code of Ethics of the Judicial Authority of the Province of Santa Fe, taking into account that electoral petitions in Argentinian provinces are usually resolved by the respective judicial authority); Colombia (Oath of Ethics, which is applicable to the National Registry of Civil Status, which is in charge of voter registration); Costa Rica (Code of Ethics of the Judicial Authority and Professional Code of Conduct of  Lawyers, considering that as a complement to the relevant functions of the Supreme Electoral Tribunal of Costa Rica, which is autonomous, the Constitutional Chamber of the Supreme Court of Justice has jurisdiction to protect certain fundamental political and electoral rights and to rule on other relevant constitutional issues); Guatemala (Ethical Standards of the Judiciary of the Republic of Guatemala, considering that the Supreme Court hears objections on grounds of unconstitutionality against decisions of the Supreme Electoral Tribunal which organizes elections and resolves electoral disputes); Honduras (Code of Ethics for Civil Servants and Judicial Employees, while the Supreme Court Justice also hears certain challenges against rulings of the Supreme Electoral Tribunal which has administrative and judicial powers in this regard); Mexico (Code of Ethics of the Federal Judicial Power and Statute of the Professional Electoral Service and the Federal Electoral Institute Staff ); Nicaragua (Electoral Ethics Regulation); Panama (Code of Ethics of the Electoral Tribunal of Panama); Peru (Democratic principles for officials and employees of the National Office of Electoral Processes); Puerto Rico (Regulation of Government Ethics and Norms of Judicial Ethics for the Supreme Court) and; Venezuela (Draft Code of Ethics for Venezuelan Judges) and; the Statute of the Ibero-American Judges (approved by the VI Ibero-American Summit of Presidents of Supreme Courts and Tribunals; as in several countries in the region its jurisdiction in electoral matters prevails over the respective national Supreme Courts or the corresponding specialized courts like in Argentina, Brazil, Mexico , Paraguay and Venezuela).

        International organizations may similarly adopt codes of ethics or conduct.  The International Institute for Democracy and Electoral Assistance (International IDEA) has adopted both a Code of Ethics and a Code of Conduct for Ethical Election Observation. International IDEA’s Code of Ethics sets out "universal minimum standards" regarding "election administration and professional ethics." This code of conduct aims to systematize the principles that should guide the conduct of election officials. In addition, this code establishes ethical principles that form the basis of the electoral administration and aims at ensuring both the appearance and the actual integrity of the electoral process. Thus, it is stated that election administration should conform to the following fundamental ethical principles: a) Respect for the law b) Impartiality and neutrality c) Transparency d) Accuracy and e) Voter-oriented.

        In addition, there is the, “the indispensable role of public confidence in democratic elections.”[ii]  The extent of integrity, and perceived integrity, in the electoral process will heavily influence public confidence.  From time to time it may be expected that challenges and scandals will emerge. This is true in consolidated and transitional democratic countries alike although in consolidated democracies challenges to electoral integrity may be less damaging than in less consolidated democracies where such challenges may be more corrosive and potentially destabilizing.[iii] Having said this as a broad outline, certainly consolidated democracies may also face very significant challenges such as was the case for example with the Watergate scandal.

        Electoral laws should recognize and encompass ethical principles and regulate in a way that contributes to the integrity of the electoral process because, “Only upon its firm foundation can legitimate elections be built and in its absence voters can have little trust in their representatives or government.”[iv]



        [i] Pippa Norris, 4.

        [ii] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 21.

        [iii] Pippa Norris, 7.

        [iv] Georgetown University, Democracy and Governance Studies, “The Chinese Electoral Framework Project.” Website, Executive Summary.

         

         

        Electoral Dispute Resolution

        It is almost inevitable in the course of electoral competition that disputes will arise and so effective electoral dispute resolution mechanisms are vital because such disputes, “have the potential to undermine the integrity of the electoral process and lead to either overt or covert social conflict.”[i]

        According to both legal-electoral theory and political science, the “System for the Resolution of Electoral Disputes” refers to the system of appeals through which every electoral action or procedure can be legally challenged. Legal appeals related to electoral issues can be submitted before judicial or political agencies. Such a system aims at ensuring regular and completely legal elections. Legal elections depend on legal corrections of any mistake or unlawful electoral action. Therefore, the system’s aim is to ensure real protection for and  effective enforcement of the political rights to elect or to be elected. To do so, the system ensures to all participants (political parties, citizens and candidates) that the voter’s decision will prevail. The system aids in the protection of certain values that support every electoral action and every electoral procedure as follows:

        • Legality
        • Certainty
        • Objectivity
        • Impartiality
        • Authenticity
        • Clarity
        • Justice

        The whole system is based on an overriding principle: the judicial agents in charge of sorting out electoral controversies must be independent, impartial and technically proficient  in order to ensure constitutional resolutions.

        The system for the resolution of electoral disputes in modern democracies is fundamental to build up stable political systems and to build up a regular legal system as well. The system’s contribution to protect fundamental rights and to strengthen the democratic governance of any country is evident.  The legal framework should therefore clearly state that every voter, candidate, and political party has the right to lodge a complaint with the competent election commission or court, require that body in turn to render a prompt decision and provide for the right to appeal to the court of last resort.[ii]    

        The legal system should also ensure that the complaints system is transparent, understandable and free of unnecessary obstacles, particularly high cost.[iii] Transparency also needs to respect the need for confidentiality during investigation and internal decision making but to the extent possible the reporting on general progress is encouraged and most importantly the final adjudication should be fully public.[iv]The judicial resolution of electoral disputes has become a fundamental feature of any electoral democracy, not only for those countries undergoing democratic transition and consolidation, but also for those countries whose democracies can be seen as both advanced and mature.

        From a historical point of view, the initial trend within democratic constitutionalism to empower parliamentary electoral colleges in both Europe and America has been diverted; electoral controversies are now sorted out by judicial institutions.  

        In Latin America for instance, the Uruguayan Electoral Court and the Chilean Electoral Qualifying Court were created in 1924 and 1925, respectively; in the decades following those years, especially during the second half and last quarter of the twentieth century under the so-called “third wave”, other countries in this region of the world, followed the Uruguayan and the Chilean examples. Mexico created the Federal Electoral Tribunal of the Judicial Branch in 1996.

        In Europe, since 1879 the British system empowered a couple of judges of the King’s (currently Queen’s) Bench Division at the High Court of Justice to solve electoral disputes. In 1919, according to its own constitution, Austria provided the Court of Constitutional Justice with such powers. Besides, France empowered its Constitutional Council in 1958 and Spain, when civil rights where involved, empowered the Constitutional Tribunal in 1978.

        Indonesia empowered its Constitutional Court to sort out electoral disputes in 2003.

        The relevance of electoral courts in charge of reviewing the constitutionality and legality of elections can be fully understood by mentioning some of their rulings:

        In Mexico, elections aimed at electing governors (Tabasco in 2001 and Colima in 2003) were declared null and void, and historical fines were imposed upon national political parties (2003). The Argentinean Supreme Court of Justice nullified the primary elections of the Justicialista Party (2003). A ruling from the Electoral Tribunal of Paraguay adjusted the percentage and location of electronic voting machines to be used in general elections (2003). The electoral courts of Guatemala reviewed the presidential aspiration of Efraín Ríos Montt (2003), just as the electoral courts of Venezuela did in respect to the presidential referendum aimed at removing the President from office (2003-2004).

        The United States Supreme Court also played a decisive role at the 2000 presidential contest. Similarly, the Spanish courts in charge of sorting out electoral disputes, delivered important rulings such as declaring both illegal and unconstitutional those political parties apparently related to terrorist groups (2003). The role played by the Central Electoral Agency between March 11th and election day (2004) is also worth mentioning. The Supreme Court of Justice of the Russian Federation made a very important distinction between broadcasting general information and electoral advertisement (2003-2004).

        The previous precedents fully prove for democratic societies of the 21st century the significant role played by the electoral justice system and the protection of the fundamental right to legal elections.

        Judicial systems for electoral disputes resolution uphold many judicial principles established by the rule of law, such as the existence of independent and impartial judges or tribunals, legally empowered and in charge of reviewing legal appeals. Such principles are recognized by international rules aimed at protecting human rights, such as those contained in articles 2, section 3, paragraph a) and 14, section 1 of the International Covenant on Civil and Political Rights, or  those contained in article 8, section 1 of the American Convention on Human Rights.

        Even those countries that have not provided courts with electoral reviewing powers are nonetheless supposed to accomplish these duties. Such is the case of Nicaragua and Dominican Republic where the electoral reviewing powers are vested in executive but independent agencies. It is also the case of Argentina, where some cases are sorted out by executive agencies and reviewed by political institutions.



        [i] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 29.

        [ii] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 31.

        [iii] Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR), Denis Petit, Resolving Election Disputes in the OSCE area: Towards a Standard Election Dispute Monitoring System (Warsaw: ODIHR, 2000), 10-11.

        [iv] Robert Dahl and Michael Clegg, “Legal Frameworks for Effective Election Complaints Adjudication Systems.” In International Foundation for  Electoral Systems, Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE),Edited by Chad Vickery. (United States of America: IFES, 2011), 102.

        Different Systems for Dispute Resolution

        Processes to resolve disputes, “are well established in international law through the rights to an effective remedy and the right to a fair and impartial hearing”[i] and although international law has not explicitly tied these concepts to electoral disputes the same rights are generally held to apply.  However, in terms of international standards, the following are suggested as guidelines for the design and administration of complaint adjudication systems:

        1. A right of redress for election complaints and disputes

        2. A clearly defined regimen of election standards and procedures

        3. An impartial and informed arbiter

        4. A system that judicially expedites decisions

        5. Established burdens of proof and standards of evidence

        6. Availability of meaningful and effective remedies

        7. Effective education of stakeholders[ii]

         Electoral laws  establish different systems for the resolution of electoral disputes.  This is to be expected as just with other aspects of the electoral process the, “electoral frameworks and administrative practices for election complaints adjudication must be based on the unique cultural, political and legal traditions in each country. No single approach or model works everywhere”.[iii]

        Such diverse systems can be classified according to the nature of the top institution in charge of undertaking the legal review of electoral actions and electoral procedures alike. While the procedures for dealing with complaints and appeals vary among countries they will be expected to provide for a hierarchical right of appeal.[iv]  Clear and hierarchical processes of the right to appeal also helps, “avoid the potential for a complainant to appeal to the body considered likely to offer the most favourable consideration of the complaint. It can ensure that all complaints are addressed in a consistent manner.”[v]Different systems can be distinguished as follows:

        • Systems for the resolution of electoral disputes which are based on a system of judicial appeals (which can be used to challenge the planning, undertaking and results of both legislative and presidential elections);
        • Systems for the resolution of electoral disputes which are carried out by political institutions (congresses or representatives which can review whether the elected officials’ history can be considered legal or not, and by ruling over electoral appeals), and
        • Those which can be seen as alternative systems of resolution of electoral disputes.

        Therefore, based on the methods and institutions established by modern electoral legislation, there are two core distinguishable models of resolution of electoral disputes: political systems are those carried out by political assemblies, and judicial systems are those carried out by judicial or by quasi judical institutions. In addition, there are alternative systems for the resolution of electoral disputes that have been usually adopted by emergent democracies. Such systems involve the intervention of international agencies empowered to resolve electoral disputes.  

        Judicial systems can be also be distinguished from each other. The criteria to do so is based on the nature of the Court empowered to sort out electoral disputes brought before it. There are systems in which ordinary courts (i.e. the judicial Branch of government) review electoral disputes. In some other places, specialized tribunals (external or internal to the Judicial Branch of Government) undertake such a responsibility (such is the case of so-called electoral courts or tribunals prevailing in Latin America). Finally, there are some places in which constitutional courts are empowered to sort out electoral disputes. It is important to note that the idea of vesting the powers to sort out electoral disputes in non-ordinary courts is aimed at preventing ordinary judges from getting involved in political disputes or being subject to political parties’ pressure.

        Electoral Judicial Review must be generally seen as composed of the legal disputes derived from electoral actions or resolutions taken by executive officials. Such disputes are brought by two contesting parties before a court or before a tribunal that is empowered to act as a referee in order to sort out such disputes in an imperative and impartial way.

        There is a clear trend aimed at setting down different systems of judicial review regarding elections. Such systems can be distinguished according to the nature of the court that is empowered to sort them out. Electoral disputes can be brought before ordinary judges (as is the case for Canada and Great Britain); before an specialized area within the Judicial Branch of Government (as is the case for Argentina, Brazil, Mexico, Paraguay and Venezuela); before specialized and independent courts (as is the prevailing case for so-called electoral courts in Latin America); or before constitutional courts (as is the case for Austria). As each country develops systems in its own unique context the result is often, “a coordinated mix of election administrative and election complaints adjudication duties, including specialized responsibilities.”[vi] 

        Whichever systems are adopted, it is very important that the legal framework is clear because, “Ambiguous or conflicting jurisdictions among courts and administrative bodies are confusing and unfair to political parties, candidates, the news media and the voting public.”[vii]  For example, systems that allow the choice of venues to appeal (as is often the case in the former Soviet Union and new democracies in Eastern Europe) may result in counterproductive results including duplication, dual appeals, institutional rivalry and ‘forum shopping’.”[viii]



        [i] DRI) and The Carter Center, “Overview of State Obligations relevant to Democratic Governance and Democratic Elections.” 17.

        [ii] International Foundation for Electoral Systems, Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE),Edited by Chad Vickery (United States of America: IFES, 2011), 16.

        [iii] Robert Dahl and Michael Clegg, 100.

        [iv] European Commission, Handbook for European Union Election Observation, 60.

        [v] OSCE, Election Observation Handbook, 51.

        [vi] Robert Dahl and Michael Clegg, 121.

        [vii] Ibid., 101.

        [viii] Ibid., 113.

        Legislative Model

        In some cases where legislation has not followed the dominate trend towards a full judicialization of electoral processes (which demands that electoral disputes must be sorted out by an impartial referee), either Congresses or elected legislators are empowered to validate the contested election. In France, such processes are known by many different names such as “power verification”, “election qualification” or “certification”. In Mexico, such empowerment was erroneously known as “self-qualification”. The verification of powers, also known as election qualification refers to the examination of the legality and validity of a certain election, which starts without any appeal whatsoever. Such verification is aimed at reviewing the electoral results and whether the elected candidate fulfills all eligibility requirements to be legally elected or not. Such verification is distinguished from the appeal used to challenge any unlawful activity performed during elections. There is a historical argument behind the legislative model based on the principle of checks and balances, which can also help to distinguish that model from the judicial one. According to this principle whereby all branches of government must be seen as independent from each other, no branch of government can intervene in the functioning of the others. Bearing this in mind, the argument runs as follows; since the legislative branch has to be independent, it must be protected from any kind of intervention by the executive. Likewise, the principle aims at preventing any kind of damage to the judicial branch, which has to be kept outside the political arena. The objective of the judicial branch is to sort out all legal disputes submitted before it by means of its technical skills.

        Such is the classic political model. However, we can find a judicial perspective at the origin of British parliamentarianism. Electoral appeals in the fifteenth century under Henry the Fourth of Lancaster were sorted out by the Chancery (which can be seen at the origin of the equity courts). The Chancellor was a high ranking officer of the Crown and was the King’s Counselor. Eventually, the Chancery’s Courts had the power to modify electoral counting. However, in 1604, the Parliament nullified an electoral ruling issued by the Chancery tribunals (in doing so, the Parliament ignored King Jacob the First’s inconformity), thus establishing a precedent according to which members of Parliament were empowered to judge their own elections. Such powers were valid until a legal reform came into force in 1868.

        In the meanwhile France adopted the system for verification of powers vested in a political assembly. Such system ruled in that country from the general states (in the eighteenth century) to the fifth republic’s Constitution in 1958. The United States framed the Federal Constitution in 1787, which empowered political institutions to sort out electoral disputes. Such a regime was adopted by many emergent democracies during both the nineteenth and twentieth centuries. During those centuries, Latin American countries adopted the political system from the Cadiz Constitution’s model. The Mexican Constitutional Laws of 1836 and the Colombian Constitution of 1886 were the only cases in which the Cadiz Constitution’s model was not adopted. Mexican Laws provided the so-called Supreme Conservative Power with the authority of sorting out electoral disputes. On the other hand, the Colombian Constitution vested such power in counting judges.

        There are almost no systems with an exclusively political model for the resolution of electoral disputes. As a matter of fact, even those countries that have preserved features of a traditional political control system, have also allowed different kinds of judicial intervention to take place, either ex-ante or ex-post. Such an evolution has turned them into mixed systems.

        Among those mixed systems we can consider that of the United States. Federal elections in the United States, which are regulated and organized by state authorities, usually set down a system of legal appeals submitted to ordinary courts (in some cases specialized) which are reviewed by a political institution such as the House of Representatives (if a Representative’s election is at stake), the United States Senate (if a senator’s election is at stake) or the Electoral College (if the presidential election is at stake).

        A similar design rules in Italy and Switzerland. On the one hand, article 66 of the Italian Constitution of 1948 establishes that both the House of Representatives and the Senate are empowered to judge not only on the “admission titles of their members”, but also on the reasons by which an unlawful election might happen. All complaints derived from executive orders are sorted out by the National Electoral Central Office which has the authority to organize elections. On the other hand, once the counties’ governments have finished both the electoral counting and the result’s verification, the Swiss Federation empowers the National Council and the States’ Council to sort out the elections of their members in a definitive way.

        Regarding legal challenges against legislative and presidential elections, Argentina is another example of a mixed political-executive system for the resolution of electoral disputes. There, once the national electoral boards (which can be seen mainly as executive agencies composed by judicial officers) have ruled on the electoral results, a political institution is empowered to review their work. The Constitutional amendment of 1994 empowered the Congress to rule on the direct elections of the President and the Vice-President of the Republic. The congressional elections are reviewed by both the Chamber of Deputies and the Senate, which in those cases are turned into “electoral courts for the validity of the rights and titles of their members”. The rulings issued by those institutions cannot be further challenged.

        Moreover, some Central European and Eastern European countries, such as Hungary, have preserved the self-qualification system, in spite of the sensitive political change from socialism to democracy.

        Judicial Court Model

        The model of ordinary justice, also known as the English model, provides ordinary judges of the Judicial Branch with the power to resolve electoral disputes. Sometimes, ordinary judges resolve the disputes submitted to them. However, some other times, ordinary judges can also review electoral rulings issued by other institutions.

        In 1868 a Parliamentary Act was enacted, aimed at preventing the abusive resolutions from the House of Commons, and was then modified in 1879. Such Act empowered two judges from the King’s (Queen’s) Bench Division of the High Court of Justice to judge electoral disputes. The House of Commons came to terms with the ruling of the appointed judges.  

        This model is based on the independence of the judiciary. The basic principles of  judicial independence can be found not only in some parliamentary acts, but also in several international instruments such as: The Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.  

        As in England, this is the system prevailing in Canada where the ordinary jurisdiction is in charge of resolving electoral disputes. The electoral authority of the judiciary is combined with the functions of Elections Canada in organizing the elections and the corresponding Commissioner of Canada Elections.

        Those who support the judicial model consider that the task of judging and qualifying elections has a judicial nature, and as such, it must be done by a judicial authority in order to guarantee the authenticity, regularity and validity of the election, preventing the officials in charge of organizing the election from acting as the qualifying authority as well. The risk becomes clearer if most of the officials carry out their duties according to political and party interests, ignoring law and justice considerations. From the perspective of the rule of law, the convenience of such an exclusive political control remains somewhat dubious.

        Electoral Tribunal Model

        The characteristic feature of the Latin American model of electoral tribunals is the establishment of specialized electoral tribunals (courts, juries, boards or councils) in charge of resolving disputes on electoral results. The nature of these tribunals can be either judicial or executive and they can function as higher or lower courts. This can be considered as a major Latin American contribution to political science and electoral law as an important condition of recent democratic processes in this region, and it validates as well the rule of law and dispute resolution through legal bodies. Main advantages to the specialized tribunal process include more timely resolution and adjudicators with strong experience and familiarity with the issues and law.[i]

        The jurisdiction to resolve electoral disputes granted to these specialized Latin American electoral tribunals (courts, juries, boards or councils), which in some cases have autonomy with similar powers to the judiciary, has fulfilled the need of guarding the judicial nature of qualifying the election. In this way, resolutions are made in accordance with constitutional and legal principles and without exposing either the judiciary or the Supreme Court to frequent criticism at their response to political or party interests. This competence has been extracted from political assemblies whose members were not impartial, allowing their political interest to influence their resolutions.

        During the nineteenth century and the first quarter of the following one, electoral systems for dispute resolution in Latin America were politicized. In contrast, in the last seventy years there is a gradual but definite trend in the region towards specialized electoral tribunals (courts, juries, boards or councils) in charge of resolving electoral disputes, and in some cases even in charge of organizing the election. These electoral authorities have an executive or judicial nature (some of them are independent and others are part of the judiciary or executive power). Two early examples of this model are the Electoral Court of Uruguay, which was first introduced in the law in 1924, and the Qualifying Tribunal of Elections in Chile included in the Constitution since 1925.   

        The gradual establishment of these specialized electoral tribunals (courts, juries, boards or councils) in the region comes after the politicized system of conflict resolution. They were first introduced –generally and taking into account that each country has its own history–by means of an administrative electoral organ prescribed by law and with a temporal character. This structure is made up by representatives of the political parties and the executive power. The next step resulted in awarding these structures a constitutional level and granting them protection to guarantee their autonomy and impartiality (political parties are less present and in contrast citizens participate more in their functioning; qualified majorities are also required in the structure that finally designates its members). Most of the time, such a transformation also implies that these models of electoral authority become permanent, specialized and aimed at resolving conflicts (yet keeping administrative powers or establishing parallel electoral authorities, some of them in the judiciary).    



        [i] Avery Davis-Roberts, Senior Program Associate in the Carter Center’s Democracy Program, “International Obligations for Electoral Dispute Resolution.”  Electoral Dispute Resolution Discussion Paper presented at the Electoral Dispute Resolution Experts Meeting, Atlanta, Georgia, February 24-25, 2009. 13.

        Autonomous

        The autonomous tribunals are specialized institutions prescribed by the Constitution that are not part of any of the three branches of power.

        The fact that tribunals are not included either in the judiciary nor into the executive power, does not exclude them from the judicial review that guarantees a fair trial. On the contrary, the removal of the traditional powers, especially those elected by the voters, guarantee their independence in the resolution of electoral disputes and the qualification of the election.

        The existence of an autonomous electoral tribunal is a huge step forward for those countries where the powers themselves were in charge of qualifying the lawfulness of their own elections. This is the first step to overcome the traditional model of conflict resolution based on political debate and become a new judicial system of dispute resolution based on legal procedures.

        Autonomy can also be the following step after the integration to the judiciary. If that is the case, autonomy is beneficial if it is required by circumstances, provided that it does not affect the principles of the jurisdictional process. Thus, one of the benefits would be to prevent the judiciary from interfering in political matters.

        In Latin America, judicial agencies are established in sixteen out of the eighteen continental countries. Nine of those sixteen electoral courts are autonomous (Costa Rica, Chile, Ecuador, El Salvador, Guatemala, Honduras, Panama, Peru, and Uruguay).

        Part of the Judiciary

        The electoral tribunals that belong to the judiciary power are judicial institutions specialized in electoral issues and ruled by a due process of law considerations.

        However, such tribunals can be independent from any superior court. In Mexico, for instance, not even the Supreme Court of Justice has power to undertake further revisions of the electoral tribunal’s rulings. Therefore, ordinary courts must not interfere in electoral disputes.

        The judiciary’s authorization to resolve electoral disputes derives from a clear aspiration; electoral disputes have to be resolved from a procedural approach which sticks with a commitment regarding binding, universal and fundamental principles.

        Any tribunal located within the judiciary is vested with more powers than any tribunal that is not. Belonging to the judiciary power provides any tribunal with a higher degree of efficacy, which makes it more reliable.

        Therefore, once a tribunal that belongs to the judiciary is empowered to resolve electoral disputes in an independent, autonomous, impartial and professional way, it ensures authentic, free and legal elections, and this is also the way in which a legitimate and democratic functioning of government must be achieved. Bearing this in mind, two different kinds of judicial principles can be distinguished. Firstly, we have the so-called organic principles, which are those related to both the Tribunal itself and the officials working there. Secondly, we have the procedural principles which are related to the electoral jurisdiction.

        Constitutional Courts Model

        The so-called Austrian model is characterized by the existence of a constitutional tribunal empowered to solve judicial appeals in a definitive way. Sometimes, the Austrian system is combined with appeal systems either political or judicial, which sort out appeals ex ante.The Austrian model empowers a Constitutional Court to sort out electoral disputes.

        Many European Constitutions framed after World War One followed the model used to frame the Weimar Constitution (1919) and the Austrian Constitution (1920) and empowered constitutional courts to solve electoral disputes.

        As a matter of fact, the Austrian Constitution empowered the Constitutional Court to verify the elections of representative institutions at both the National Council and every single Land. The powers vested in the Constitutional Court have been extended in order to validate other democratic events (such as referendum, since 1929, and presidential elections, since 1931).

        Both France in 1958 and Spain in 1978 empowered the Constitutional Council and the Constitutional Court to solve all the disputes derived from parliamentary elections in a definitive way. Besides, France empowered the Constitutional Council to solve appeals derived from presidential elections in a combined system which authorizes administrative courts to solve electoral disputes in a preliminary way. It must be said that Spain does not recognize any jurisdiction as independent from the judiciary power to solve electoral disputes.

        Germany provides a clear example of organization in which a political system and a judicial one are combined to solve electoral disputes. In Germany the Constitutional Court can review the parliamentary validation made on elections.

        It is also worth mentioning that many Central and Eastern European countries, such as Romania, have empowered Constitutional Courts to sort out electoral disputes.

         

        Alternative Dispute Resolution

        Alternative Dispute Resolution (ADR) basically refers, “to any method that parties to a dispute might use to reach an agreement, short of formal adjudication through the courts.”[i]

        The alternative models for the resolution of electoral disputes are structured in both a temporal and alternative way. The existence of alternative models implies the existence of an ordinary one which is not working, an ordinary one which is not producing the expected results.  A main advantage of ADR is its flexibility and the prospects of providing more timely resolutions to complaints when compared for example to the courts system.

        On the other hand it is arguable that just as with electoral management bodies, ADR may not satisfy international obligations of independence and impartiality to serve as a “tribunal” and so it is likely that the value of ADR is as a complement to other mechanisms to resolve disputes.[ii]  Another limitation of ADR is its traditional focus on parties reaching ‘mutually acceptable settlements’ versus the more traditional ‘clear cut’ resolution associated with courts and the ‘winners and losers’ nature of elections.[iii]However, if properly designed, ADR can be particularly appropriate and effective in a transitional context where the legitimacy of state institutions is questioned or the institutions are weak and ineffective.[iv]  In such circumstances, usually,, an alternative model for the resolution of electoral disputes is formed by special agencies composed of experts and endorsed by international agencies under the jurisdiction or the United Nations.

        Under such circumstances those in charge of resolving electoral disputes have to take into account the legal and political customs from every single region. However, neither due process of law considerations, nor the democratic principles such as individual rights to free and fair elections must be ignored.

        Alternative models for the resolution of electoral disputes have been successfully implemented in Cambodia, Bosnia and South Africa.

        Over time, “In post-conflict countries, the gradual replacement of ADR by formal complaints adjudication will contribute to the deepening of democratic processes.”[v]



        [i] David Kovick and John Hardin Young, “Alternate Dispute Resolution Mechanisms” In International Foundation for Electoral Systems. Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE). Edited by Chad Vickery (United States of America: IFES, 2011), 229.

        [ii] Avery Davis-Roberts, 13.

        [iii] David Kovick and John Hardin Young, 229.

        [iv] Ibid., 232.

        [v] Ibid., 254.

        Appeals and Other Challenges

        The analysis of each electoral appeal is a complex task. Such a state of affairs is derived from the confusion that prevails not only often in legislation but also in the academic realm (many times for instance, a clear differentiation between a mere appeal and a complete trial is not made). The naming process for reviews and appeals can be both anarchic and inaccurate (there are several examples which can be used to explain such an anarchic situation: sometimes appeals used to resolve similar disputes have different names, in other cases appeals do not have a name, the expression used in some countries to refer to an “administrative review” is used in other countries to designate a judicial process). Electoral appeals find in the vague regulation applied to them another conceptual weakness derived from the fact that many aspects of such appeals are regulated by different electoral or procedural legislation.

        According to many opinions, electoral appeals are legal instruments which have to be used under the law to correct, modify, revoke or nullify executive orders or judicial resolutions that are deficient, mistaken or illegal.For illustrative purposes, the review of appeals and other challenges as well as the related section regarding election nullification will rely on essentially a case study of Latin America.  This approach will demonstrate trends but also the great diversity in specifics as well as terminology that may be applied.

        Among the main characteristics distinguishing electoral appeals are:

        1. Classes.

        2. Reviewable resolutions.

        3. Who can file electoral appeals.

        4. Terms.

        5. Evidence.

         

        Classes

        Broadly speaking, electoral appeals can be grouped within two different classes; administrative appeals and judicial appeals. In order to avoid the anarchic situation already referred to, it is helpful to adopt formal criteria in what follows. According to such criteria, both the ruling agency nature and denomination will be used to determine whether each appeal is administrative or judicial.

         

        a. Administrative

        Administrative appeals are all legal instruments that can be used by an administrative agency in order to resolve electoral appeals filed by political parties, candidates and citizens against executive orders issued by electoral authorities. Administrative appeals are resolved either by the same authority or by a superior one.

        Many countries authorize administrative agencies to solve all the appeals filed against their decisions (the National Registrar for the Civil State in Colombia in charge of issuing or revoking citizenship cards is an example just as the Electoral Supreme Council of Nicaragua can do in respect to appeals filed against its electoral counting). Some other countries authorize a superior authority to resolve the reviews filed against the orders issued by administrative agencies. Such is the case of the General Director of the Registrar for Citizens in Colombia who can review the orders issued by other departments under the General Director’s command. Such is also the case for the counting commissions of Colombia, which can review the appeals filed against the actions of voting juries. Such is also the case in Mexico’s Federal Electoral Institute, where a superior official can review orders issued by the Executive Secretary or by local or district offices.

        In many regions electoral management bodies will be charged both with managing the electoral processes and resolving complaints.  The real strength of this approach is the familiarity with the subject matter and processes held by the electoral management body but it can also be argued that there exists an inherent conflict of interest which precludes electoral management bodies qualifying as independent tribunals.[i]  Such a process may also reduce the accountability of the management body if it hears appeals of its own decisions.

        b. Judicial

        Judicial appeals on electoral issues are procedural instruments used under the law to file before a court any appeal aimed at challenging a deficient, mistaken or illegal order issued by an electoral authority.

        Judicial appeals can be divided into three groups: procedural remedies, procedural reviews and appealing processes. 


          i. Procedural remedies

          Procedural remedies are essentially, legal instruments aimed at correcting judicial resolutions which are filed before the judicial authority that issued such a challenged resolution. A typical procedural remedy is the clarification of a judicial opinion. Article 78 of the Internal Regulation of the Electoral Tribunal of the Federal Judicial Power in Mexico, empowers such Tribunal’s courts to either clarify a concept within the opinion or to provide a precise explanation of the resolution’s effects, provided such a clarification does not imply a substantial alteration of the resolution. In a very similar way, the Tribunal in charge of qualifying elections in Chile and the Electoral Tribunal of Panama are empowered to clarify their resolutions. The Electoral Tribunal of Guatemala can also do so whenever someone asks it to clarify a resolution that is hermetic, contradictory or not clear.  


          ii. Procedural reviews

          Procedural reviews are effectively appeals that can be filed within a procedure, usually before a superior court, against both procedural and definitive violations derived from a judicial opinion. Procedural reviews are the most important group of judicial appeals. They can be filed within a trial or just after its conclusion. According to the prevailing doctrine, procedural reviews in turn can be divided into three separate groups: ordinary reviews, extraordinary reviews and exceptional reviews.

          - Ordinary reviews:

          The classic ordinary review, which has a universal aspiration, is simply known as an “appeal”. Through an appeal, a superior court that is usually a collegiate one, reviews the decision made by an inferior one. The superior court reviews all the files as well as all procedural and non-procedural wrongdoings in order to uphold, modify or revoke the challenged resolution. In doing so, the superior court can issue a substitutive ruling or a direct order to the inferior court which has to issue a new, valid and legal resolution.

          Some examples within this group are as follows: the appeals filed against electoral judges and electoral boards which are resolved by the National Electoral Chamber of Argentina; the appeals filed against electoral departmental courts which are resolved by the Electoral National Court of Bolivia; the appeals filed against criminal judges’ resolutions on the denial of electoral registration or electoral exclusion which are resolved by the Chilean Court of Appeals; the appeals filed against the local juries for elections, which are resolved by the National Jury for Elections of Peru; and the appeals filed against the electoral boards’ resolutions which are resolved by the Electoral Court of Uruguay.

          - Extraordinary Reviews:

          Extraordinary reviews are those that can only be filed on grounds that are authorized by procedural laws. Such reviews aim at determining whether a particular procedure or a judicial resolution is legal or not. Extraordinary reviews aim at challenging the legal reasons supporting the contested resolution.

          There are many examples of countries in which extraordinary reviews are used. One of them is the so-called reconsideration review filed against the regional courts’ resolutions and which are resolved by the Superior Court of the Electoral Tribunal of the Federal Judicial Power of Mexico. The reconsideration review is used to challenge judicial resolutions already made regarding trials filed against the results of elections of both deputies and senators. Such trials’ lawsuits are only admitted when the final resolution can actually modify an election’s result.

          Other examples include those countries in which the unconstitutionality of electoral courts’ resolutions can be appealed before a Supreme Court of Justice, as is the case in Argentina, Guatemala, El Salvador, Honduras, Panama and Paraguay. The appeals filed before the Constitutional Tribunal of Bolivia and the so-called constitutional electoral review filed before the Electoral Tribunal of Mexico to challenge the unconstitutionality of local electoral authorities’ orders can also be located within this group.

          - Exceptional Reviews:

          Exceptional reviews are those that can be filed to resolve quite complicated cases. Such reviews are filed against definitive rulings after the emergence of new and previously unknown circumstances that could nullify the reasons supporting the definitive ruling. Article 148 of the Costa Rican Electoral Code provides an example of an exceptional review as follows: “An election which has been already declared as a valid one can be challenged nonetheless if new grounds showing the winner’s inability to stay in Office appear”. Article 228 of the Venezuelan Voting Act seems to endorse an exceptional review as well. According to that article a nullification appeal can be filed at anytime on grounds of the winner’s inability to stay in office or whenever fraudulent actions, bribery or violence during the electoral registration, the elections or the electoral counting have taken place. The appeal will be admitted when such circumstances or wrongdoings could be predicted to result in a change in the electoral result.


          iii. Appealing Procedures

            Appealing procedures are legal instruments used to set off a new trial in which the resolution taken in a previous one will be reviewed. The main difference between appealing procedures and procedural reviews can be explained as follows: whereas a procedural review can be seen as an extension of an already existent trial, an appealing procedure is a whole new one. In fact, appealing procedures are derived from the challenge filed against the resolution made in a previous executive procedure.

            Lawsuits that can be filed against executive orders related to electoral results issued by the Argentinean National Electoral Council are worth mentioning as are lawsuits that can be filed before the Fifth Section of the Chamber for Administrative Litigation of the Colombian State Council. Other important cases include the so-called “voter lawsuit” in Argentina or mandato de segurança in Brazil, which can be filed against every action aimed at curtailing the constitutional right to vote. The Argentinean lawsuit can be filed before the closest magistrate. The Brazilian lawsuit can be filed before an electoral judge, a regional electoral court or the Electoral Supreme Court. It is also worth mentioning the Chilean case where an appeal can be filed before the Electoral Qualifying Court against the final resolutions made by political parties in an internal way. In Mexico, a couple of trials are worth mentioning. First, the so-called inconformity trial and second, the trial aimed at protecting citizens’ political and electoral rights. Both trials are filed before the Superior Court or the regional courts of the Federal Electoral Tribunal of the Judicial Branch. The inconformity trial is activated to challenge every district counting or every state counting. The trial aimed at protecting the citizens’ political and electoral rights can be activated to challenge any violation against any citizen’s right to vote, to be voted, to associate to others, or to be registered in any civic association. In Venezuela the appeal used within the so-called “electoral litigation”, which is filed before the Electoral Court of the Supreme Tribunal of Justice, aims at challenging resolutions made by the National Electoral Council.

             



            [i] DRI and The Carter Center, Strengthening International Law, 44.

            Reviewable Resolutions

            There are different kinds of resolutions that can be challenged by electoral appeals. There are those resolutions related to both the electoral registration and voter identity; those related to the administration of political parties, which include any resolution related to a political party regime and its internal democracy; those related to preliminary activities for the election day; those related to electoral results; those related to electoral procedures different to those aimed at electing representative officials; and those related to any order issued by electoral authorities. It must be clarified that this classification has been made on analytical grounds, and does not match any particular electoral regulation. As a matter of fact, some resolutions related to the electoral registry can also be seen as a preliminary instance related to election day.

            a.  Electoral Registry and Voting Card

            The voter register underlies the integrity of an election and may be expected to be the subject of complaints and inquires as to its accuracy. The resolutions within this classification that can be appealed, include all those made by the electoral officials in charge of registering voters, issuing voter identification cards (whenever such cards may have electoral effects) or voting cards (whether such a card includes the voter’s photograph or not), building-up the voters’ register (especially when the resolution unduly approves or dismisses a citizen’s request to be included in the register).

            Electoral registers are different from voters’ lists. The system of appeals of the resolution of electoral disputes recognizes the distinction. Whereas citizens are authorized to file appeals against electoral registers, political parties are authorized to file appeals against voters’ lists.

            Some argue that the legal framework should establish an exclusive venue for filing complaints and appeals in these limited matters so that each instance does not unnecessarily add to the burden of the courts.[ii]

            b. Political Party Regimes and their Internal Democracy

            Reviewable resolutions regarding political parties’ regimes can be distinguished as follows:

            i. Declaration on the Unconstitutionality or Illegality of a Political Party and Resolution on the Approval, Denial or Nullification of a Political Party Registry

              Reviewable resolutions are those related to the foundation, existence or extinction of political parties and to a political parties’ registry. The resolutions that deny, suspend, or revoke a political party’s registry can also be appealed.

              Inspired by the German model, articles 15 and 82 of the Chilean Political Constitution empower the Constitutional Tribunal to declare unconstitutional any organization, including political parties, as long as such organizations are against democracy as well as against the Constitution.

              Broadly speaking, a political party’s dissolution can take place whenever its members legally agree to do so according to the internal regulation of the party itself. Besides, a political party’s registry can be revoked by a judicial resolution issued under the law. There are several legal reasons according to which a political party’s registry can be revoked; one of them is when a political party no longer fulfills the legal requirements to be registered. Among such failures are the following: to have, at some point, less members than those required by law in order to be registered; to breach in a serious and systematic way specific legal duties; to present no candidates for one federal election (Mexico) or more (three elections in a row in Argentina); to receive less than the minimum percentage of votes required in an ordinary election (3000 votes in Costa Rica, 2% in Mexico, 3% in Bolivia, 4% in Nicaragua, 5% in Chile, 5% in Panama); to gain no congressional seats (Colombia); to undertake no primaries for some time (4 years in Argentina).

              In Paraguay, some other grounds to support a political party’s extinction are listed as follows: to organize illegal armed forces; to attack democratic principles set down in the Constitution, the Electoral Code, the Universal Declaration of Human Rights, and other international treaties ratified by the country; to follow the commands of a foreign organization or a foreign government. Likewise, Bolivia revokes the registration of any political party whose participation in a military coup has been proved.

              ii. Funding and Auditing of Political Parties

                Any determination taken with regard to a political party’s public funding can also be appealed. Appeals can also be filed to challenge any ruling regarding a political party’s financial auditing process, whether such auditing is made on the source or the application of the financial resources. Financial auditing resolutions are also challengeable if they are related to campaign spending or to any campaign spending indictment. Any fine derived from financial wrongdoings can also be appealed.

                iii.  Political Parties’ Internal Democracy

                  All the Latin American constitutions and electoral legislation analyzed so far set down a system of appeals to ensure a democratic regime to rule political parties. In doing so, courts (electoral, constitutional or ordinary) are empowered to resolve political parties’ decisions related to their internal democracies. Appeals can also be filed to challenge any violation committed by any political party or endorsed by any electoral authority against the civil and political rights of any of its members.    

                  -Nullity or rejection of non-democratic internal regulations. A majority of Latin American constitutions and electoral laws within the region establish democratic principles that have to be followed by political parties. They also allow political parties to determine a structure and an internal democratic regime on their own. Usually, those regulations can be seen as grounding some other political parties’ obligation such as the registration of the party’s statutes or the notification made upon the party’s statutes to electoral authorities and which is normally used by those authorities to review the statutes’ constitutionality and legality.

                  Usually, electoral courts (courts, councils, boards or juries) are empowered to resolve constitutional and legal controversies related to political party’s statutes. In those countries where the rulings issued by electoral tribunals are not definitive, the resolving powers are vested in the Supreme Court of Justice or in a constitutional tribunal.

                  In a general sense, any constitutional or legal regulation aimed at ruling the internal democratic regime of political parties as well as any court in charge of enforcing it face a clear challenge: the balance between the right of all members to participate within the party’s administration and the party’s right to organize itself in a free way. Of course, public powers must be prevented from exerting any kind of intervention within political parties’ internal affairs. However, the party’s members who are entitled to participate at the party’s administration restrict such a basic right.

                  -The election of political parties’ leaders and candidates. Frequently, political parties have a right to choose leaders and candidates on their own in a free and democratic way. However, there are sometimes some basic rules and principles that have to be followed according to any political party’s internal regulation.

                  Such basic principles sometimes include that the electoral authority is empowered to intervene within a political party’s primaries and internal elections. Some other times, courts are empowered to resolve the appeals filed against resolutions issued by political parties’ authorities.  

                  -Punishments and Expelling members. According to due process of law any member of a political party is empowered to file appeals before a particular court (in Guatemala first the courts of appeals and then the Constitutional Court have powers to resolve such controversies) against illegal decisions taken by political parties that violate a right of the member, especially the right to associate with others. Whenever a member of a political party is expelled, due process of law demands that political parties to allow the member to file internal appeals before doing so at ordinary tribunals.

                  The judicial review of disciplinary rules applied by political parties has not been deeply explored from an academic point of view. Disciplinary rules applied by political parties must be seen not only as composing such parties’ right to administer themselves in a free way, but also as composing the party’s right to free association. Those rights aim at protecting the political party from any undue interference from any branch of government.

                  All the members of a political party are also entitled to the party’s right to free association and, therefore, they can only be expelled from it in a justified way. Otherwise, the affected member of a political party is authorized to file a formal judicial appeal against any wrongdoing whatsoever. Since political parties play a fundamental role in promoting the political activism of citizens and the development of democratic life, they are clearly obliged to protect individual rights.

                  From a procedural point of view, the court in charge of resolving the unfair expulsion of a member of a political party has to decide on different issues. The court has to decide on the constitutionality and the legality of the regulation applied by the party. Then the court has to determine whether the partisan authority that ruled on the case at hand had powers to do so or not. The court has also to determine whether different rights of the member such as the right to be informed about the charges against him, or the right to a due process were honored or not from a procedural point of view.

                  Unfairness within a disciplinary procedure leaves the affected member of the political party with no defense. Such a situation would represent a clear violation of a fundamental right.

                  At first sight, the review made on the content of the appealed decision seems to be aimed at determining whether the grounds on which the party’s decision was made are fair or not, are reasonable or not (such decision has to be proportional, never arbitrary) from both a legal and a statutory point of view. However, such a restriction to judicial review has an exception: whenever the political party’s decision violates at least one fundamental right for the affected member (such as the right to be voted, or the right to privacy or even fundamental social rights), courts can interpret and evaluate all relevant circumstances, even those which were not internally considered by the political party.

                  c.  Preparation for the Election Day

                  All orders related to electoral ballots, the candidates’ registry and the composition and location of voting sites can also be appealed.

                  d.  Election Day

                  Common complaints include, accessibility, long waits or congestion, inaccurate lists, refusal by officials to provide a ballot, double or underage voting, campaigning in or impermissibly close to the polling location and voter intimidation, tampering with or removal of a ballot box from public view or the insertion of fraudulent ballots.[iii]

                  e.  Electoral Results

                  Both electoral results and declarations on the inability of a particular candidate to be elected can be appealed. The validation of the election results and the declaration of winners can also be appealed. In some countries, the appeals filed against electoral results can be filed and must be resolved before the final counting, the election’s validation and the declaration of winners ruled by electoral tribunals (Costa Rica, Chile and the presidential election of Mexico) or by a political agency (Argentina). Any appeal filed after such events have taken place will not be admitted. For the majority of the systems of electoral litigation, the orders related to declaring winners or validating the election can be appealed after they have been issued. The resolution of such appeals is under the jurisdiction of autonomous electoral authorities or judicial authorities.

                  f.  Other Appeals

                  Many electoral authorities, such as the regional ones, are empowered to both review and resolve appeals filed against different kinds of elections (the election of municipal authorities, for instance). Even in some federal cases, local systems of electoral litigation are centralized while federal systems of electoral litigation (to resolve disputes derived from congressional or presidential elections) are vested in the federal authorities empowered to resolve the disputes derived from local or state officials (such as mayors or councilmen).  An example of this is the case of the electoral regional courts in Brazil, the Electoral Chamber of the Supreme Tribunal of Justice in Venezuela, and the Supreme Court of Justice of Argentina which can resolve extraordinary constitutional reviews regarding local elections. The Mexican case is an instance of an opposite situation. In Mexico, each state is authorized to organize a system of electoral litigation to resolve state electoral disputes. Since 1996, every Mexican state has an Electoral Tribunal whose resolutions can be appealed using the so-called unconstitutionality appeal.

                  Many electoral tribunals in the region are empowered to resolve appeals filed against democratic procedures such as referendum or popular voting. The Chilean case of the regional electoral tribunals is interesting. Such tribunals are empowered to resolve appeals filed against orders affecting individuals entitled to run for a seat in the regional development councils or in the community development councils. It is also worth mentioning that the Superior Tribunal for Electoral Justice of Paraguay and the Electoral Court of Uruguay are empowered to validate different sorts of elections such as university elections. The Federal Electoral Tribunal of the Judicial Branch in Mexico is empowered to resolve labor disputes between electoral authorities and their workers.

                   




                  [ii] OSCE, Resolving Election Disputes in the OSCE area: Towards a Standard Election Dispute Monitoring System, 12.

                  [iii] Robert Dahl and Michael Clegg, 107.

                  Who can file electoral appeals

                    Within the region, citizens are entitled to file appeals against any determination aimed at including or excluding them from the voters’ register and the voters list. Such a right can also be brought against a decision refusing the issuing of electoral identification. Some countries entitle political parties, candidates, district attorneys and electoral prosecutors, to appeal any resolution issued with regard to the inclusion or the exclusion of any individual in or from the voters’ register (Argentina, Bolivia and Costa Rica). Mexico entitles political parties to file appeals against the report made by the electoral authority regarding the final observations made by such political parties on publication of the voters’ register. Usually, electoral authorities’ decisions on the approval or denial of registry to a new political can be appealed by other political parties or by citizens.

                    Appeals against the statuses of political parties can be filed either by their members or by other political parties (when the appeal is filed against a resolution taken by an electoral authority). In Colombia “every citizen will be entitled to file appeals at the National Electoral Council to appeal any statutory provision which is against the Constitution, the law or the National Electoral Council’s resolutions. Such a right will last for twenty days after a decision on the matter has been made.”

                    Many countries authorize political parties to appeal illegal resolutions issued by the electoral authorities related to them (political associations are also entitled to do so in both Argentina and Mexico). Such countries also authorize political parties to appeal electoral resolutions related to the preparation for election day, to electoral results and to inabilities of elected candidates to undertake their duties.

                    In Argentina, representatives and elected representatives can file appeals against a representative’s election at the political institution in charge of resolving them. Senators and elected senators have the same right to appeal senatorial elections. Moreover, the Senate can entitle any individual or any institution to file such appeals.

                    Some countries authorize their qualified institutions to carry out a review on the lawfulness of electoral results. Other countries authorize candidates to do so (Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, Honduras, Nicaragua, Panama, Peru and Venezuela are among them. In Uruguay candidates are authorized to challenge congressional elections while the appeals of presidential elections are reserved for political parties’ authorities that are registered before the Electoral Court). Some countries provide candidates with an accessory role (Mexico, where they can only file appeals related to candidate’s inabilities, and Paraguay), while others do not authorize candidates to file appeals in an explicit way (Argentina, El Salvador, Guatemala and Dominican Republic). In each case, the candidates’ right to file appeals depends on how developed political parties are. It is also related to the evolution and characteristics of the party system and to the possibility of having independent candidates.

                    Some countries allow collective lawsuits to be filed in order to appeal either electoral results or candidates’ inabilities to perform their duties (Colombia, Costa Rica, Chile, Honduras, Nicaragua, Peru and Venezuela. Uruguay allows the existence of such lawsuits to appeal congressional elections). Citizens are also authorized to file appeals against such issues. Such an authorization is fundamental to ensure adequate access to the electoral judicial system for all, even though such openness can result in the filing of too many appeals (even as a political strategy performed either by a small political party or by a political party that is loosing an election). Such openness can also affect not only the preparation stage but also the resolution of electoral appeals, which can then affect the reliability and legitimacy of elections.

                    Judicial review of electoral issues is free in the majority of Latin American countries. In Mexico, for instance, free access for all to the judicial system is a constitutional right, while Peru taxes the access to judicial review (in Peru it is compulsory to make a deposit to support the appeals filed against a political party’s registration, candidate’s abilities or electoral results. The reimbursement of such deposits will be only derived from successful appeals). Access to a judicial system is related to the common need of making the access to courts even wider as well as to the common need of preventing electoral litigation from becoming an abusive device aimed at affecting the elections’ trustfulness. In some countries, political parties that file completely unsound or malicious appeals have to pay a special tax (Paraguay), while in others, futile appeals produce judicial fines.

                    Finally, some countries open the appeal processes to others who can be interested in them, such as the electoral prosecutor or the Attorney General who represents public interests (Argentina, El Salvador, Panama and Paraguay).

                    Terms

                    Deadlines are not always set down in an explicit way. However, there is a general trend towards a reduction in the  periods during which electoral appeals can be filed. Such a trend is derived from a couple of needs. On one hand, it is necessary to renew public offices without any delay whatsoever. On the other hand, it is necessary to spend less and less time campaigning.

                    Two different appeals that can be distinguished from each other produce different filing deadlines. Deadlines are very different for those appeals used to challenge voters’ registers. There are three-day deadlines (Costa Rica, Guatemala, and Panama), four-day deadlines (Mexico), five-day deadlines (Chile, Dominican Republic, and Uruguay), fifteen-day and twenty-day deadlines (Argentina) and even thirty-day deadlines (Colombia). With regard to the preparations for the election day, there are three-day deadlines (Brazil and Guatemala), four-day deadlines (Mexico) and five-day deadlines (Argentina and Uruguay). Some countries’ deadlines are further extended, such as appeals against the registration of political parties (ten days in Peru and thirty days in Paraguay).

                    A second group of  deadlines relates to appeals against electoral results.  Some can be filed within twenty four hours after the counting has been done at the voting sites (Bolivia and Colombia); there are also  “claims” and “complaints” which can be filed before superior electoral authorities (before elections are validated) which have to be filed within two days at the most (Argentina, Ecuador, El Salvador and Dominican Republic);  in some other cases   electoral results must be appealed within three days (Brazil and Costa Rica), within four days (Mexico) and five days (Honduras, Nicaragua, Panama and Uruguay). In Chile, electoral deadlines are set at the fifteenth day, while in Venezuela they are set at the twentieth or even the thirtieth day (with respect to the presidential contest). Peru decided to leave a more open deadline. Appeals can be filed there until a candidate has been declared as the winner.

                    Concerning electoral results, it must be noted that some systems for electoral litigation authorize departments within their electoral authorities to resolve appeals within different deadlines. For example,  three day appeal periods are established in both Brazil (when the Supreme Electoral Tribunal resolves the appeals filed against  rulings issued by regional electoral tribunals) and Mexico (where the Superior Court of the Electoral Tribunal resolves  appeals filed against the rulings issued by regional courts on the inconformity appeals derived from congressional elections); as well as in Bolivia, without a specific deadline (when the National Electoral Court resolves  appeals filed against the department electoral courts); and another option is an appeal filed within the same superior electoral authority (Guatemala and Nicaragua). In addition, some systems include the possibility of appealing before a non electoral judicial authority for constitutional reasons (Bolivia; Brazil, three days; Guatemala, five days to fill a constitutional review in the Supreme Court and two more days for an appeal at the Constitutional Court, like in Honduras or Panama), legality reasons (Colombia, eight days), or even a revision before a political authority (Argentina, with no specific deadline).

                    Deadlines to resolve electoral appeals are not always regulated and those that indeed are, have great variations. Regarding  appeals against the electoral register, the deadlines to resolve them fluctuate between six (Chile and Mexico), eight (Guatemala) and ten days (Uruguay). Appeals against the creation of new parties vary from three (Costa Rica), four (Peru), six (Mexico), ten (Argentina) and fifteen days (Chile). Also the appeals filed against acts to prepare the election must be resolved within three (Guatemala), five (Argentina) or six days (Mexico).

                    There are also some systems that do not specify a deadline, but  establish a point of reference such as before the declaration of the election (Costa Rica), before the elected authority takes the office or before the installment of the state congress (Mexico for state elections), or finally a deadline marked by an specific date (Mexico, which means twenty days for regional electoral tribunals to resolve appeals filed against congressional elections and ten to fifteen days for the superior electoral authority in the Electoral Tribunal for reconsidering an appeal against a congressional election or sixty days for presidential election).

                    Deadlines granted to jurisdictional bodies to resolve appeals filed against autonomous electoral authorities in the matter of electoral results vary from three days (for the Supreme Court of Guatemala to resolve trials related to the violation of fundamental rights), five (for the Constitutional Court of Guatemala to resolve appeals), to fifty days (Colombia). 

                    In Argentina, regarding the appeals against electoral results filed at political agencies, there are no deadlines. As a matter of fact, with regard to the congressional elections, appeals can be filed even after Congress is opened for business (which means that congressional members hold their seats in a provisional way. In other words, they can be removed and replaced by other candidates after an appeal has been resolved).

                    Evidence

                    Broadly speaking, evidence provisions are not very detailed by electoral laws. Many times, no clear rules can be found at all. In some cases, the rules contained in traditional procedural statutes (Civil Code, Administrative Code) are used in electoral litigation, especially to admit and evaluate evidence brought by contesting parties (Bolivia, Guatemala, and Paraguay). Those countries that allow filing electoral appeals at ordinary courts usually allow the use of traditional procedural statutes to manage evidentiary issues. Some conclusions may nevertheless be offered as follows:

                    a.  Evidentiary Mechanisms

                    In many countries, it is compulsory to include all documentary evidence within the appeal (Costa Rica, Chile – in those cases in which the voters’ register is challenged–, Ecuador, Mexico and Peru). While some countries authorize both the plaintiff and the defendant to offer evidence to prove their claims (Argentina, Bolivia, Chile, El Salvador, Honduras, and Panama), only a couple of countries establish limits such as considering just electoral documents as valid evidence. In Colombia any kind of evidence can be used to support any appeal filed at the Fifth Section of the Chamber for Administrative Litigation of the State Council. Mexico authorizes the use of public and private documents, technical evidence, judicial files, the so-called human and legal assumptions, confessions, testimonies and experts’ declarations to support electoral appeals.

                    Most of the cases allow electoral authorities to gather all evidence that can help them in reaching a more satisfying decision (Argentina, Colombia, Chile, El Salvador, Guatemala, Mexico, Panama, Paraguay, Peru, and Uruguay in some cases).

                    Electoral appeals must be resolved within specific deadlines and the representative agencies of a nation must be renewed in time. Therefore, electoral authorities have established rules according to which they will only admit evidence which can be used to support the contenders’ claims and which has been attached to the appeals within the corresponding time limit. Evidence such as  provided by witnesses can hardly provide courts with relevant evidence for resolving electoral issues. The reason is clear: contenders can offer as many witnesses as they can gather, whose testimonies then could result in many contradictions.

                    Bearing all this in mind, it is important to highlight that Latin American systems for the resolution of electoral disputes are similar among themselves. While those countries in which admissible evidence is restricted to few cases allow judges to expand the number of things that can be used as evidence (Colombia and Mexico), those other countries that have wider rules for the admission of evidence allow judges to restrain the number of things that can be used as evidence. From both points of view, evidence is a tool that must be used to reach a more satisfying decision before meeting the established deadline.

                    b.  Evaluating Evidence

                    From a theoretical point of view, there is a very influential procedural trend according to which different systems to evaluate evidence can be listed as follows: i) System of legal evidence: legislative texts establish how effective evidence can be; ii) System of free evaluation: courts are free to evaluate all the evidence attached to the appeal, in order to reach a satisfactory resolution in a free way. In such a system, judges are free to evaluate evidence from their personal, rational, or moral beliefs. No constraints are imposed upon judges in charge of resolving appeals; iii) System of rational evaluation: In such a system courts are empowered to determine how effective a proof can be considered. To do so, judges have to use logic and base their decisions on their experience. The system of rational evaluation is somewhere in between the other two; and iv) Mixed System: Elements of the previous systems are combined.

                    Very few electoral laws define the way in which evidence has to be evaluated to resolve electoral disputes. Three countries establish a system of free evidence (Colombia, where the National Electoral Council and its delegates are free to evaluate factual evidence; Chile, where the Tribunal for the Validation of Elections will work as a jury to evaluate factual evidence; and Peru, where the National Jury for Elections is empowered to resolve appeals evaluating evidence on their own). Two countries demand rationality from their electoral authorities (Costa Rica and Panama), while a single country establishes the system of legal evidence (El Salvador sets down not only that no more than three witnesses can be called to testify, but also that testimonies will never be enough to nullify an electoral order). Mexico follows a mixed system because not only public documents are recognized there as the most valuable evidence. Electoral authorities are also compelled to be rational.  

                     

                    In conclusion, “Election disputes are inherent to elections. Challenging an election, its conduct or its results, should however not be perceived as a reflection of weakness in the system, but as proof of the strength, vitality, and openness of the political system.”[i]



                    [i] OSCE, Resolving Election Disputes in the OSCE area: Towards a Standard Election Dispute Monitoring System, 5.

                    Election Nullification

                    To guarantee the legality of  elections and electoral procedures the law sets different causes for their nullification (this as a sanction for violating the law). In doing so it is extremely important that the legal framework establish the processes clearly.  In its publication, Resolving Election Disputes, the Office for Democratic Institutions and Human Rights, made a number of recommendations regarding the invalidation of election results including:

                    • The decision to partially or fully invalidate election results should be assigned to the highest electoral body. This decision should be reviewable by the highest body of the judiciary or the Constitutional Court.
                    • The electoral law should specify whether the entities vested with the power to invalidate the election results can take action without being presented with a formal complaint.
                    • It should be clear from the law whether a general invalidation mechanism applies or a restricted one.
                    • Both the preliminary and the final results should be subject to challenges. Therefore the electoral law should differentiate between the procedures, deadlines and time-limits applicable to each phase.
                    • In accordance with the procedural time limits prescribed by law for publication of the preliminary and final results and for filing and deciding upon related challenges, all complaints and appeals should be determined once and for all within a maximum of two months.
                    • The electoral law should clearly state the grounds upon which the election results may be partially or fully invalidated and.
                    • The law should specify the amount and type of evidence required for a review of the results.[i]

                     

                    Caution should also be taken regarding the purposes of such an ultimate consideration as the nullification of elections.  Giving voice to the will of the people, election outcomes should be overturned only in extraordinary situations where evidence of illegality, dishonesty or misconduct are clear and where it has distorted the vote outcome.[ii]

                    Using Latin American countries as a case study, this section   will analyze only the nullification of electoral results, including  nullifying a vote, one election or the general elections (in electoral law, as in public law, the violation of a legal regulation does not produce the same effect, it depends on the consequence established for that sort of legal violation that can lead to nullity).

                    According to specific regulations in different Latin American countries, nullity can be pronounced only as a result of the exact causes prescribed by the law (for instance: Bolivia and El Salvador). Some systems grant certain discretion to the revising electoral authority to declare nullity if they allow, for instance “to file an appeal and ask for the nullification of the election in reason of actions that have corrupted it”, provided that “the actions, flaws or irregularities… influence the general results of the election” (Uruguay), or after regulating in a declarative way the grounds for nullifying an election in a given voting station or voting site, among which it includes “any other action that can reasonably alter the outcome of the election” (Guatemala).

                    An election can be declared null when such an action can determine the election’s result or when it causes a clear harm (Chile, Mexico, Panama, Paraguay, Uruguay and Venezuela). The filing of an appeal does not suspend the effects of the challenged resolution or action. If no nullifying appeal is filed within the established deadlines, the corresponding resolution is definitive. It is important to mention that whenever doubt arises in Ecuador, the election’s validity will be taken for granted. All these rules are based on a legal principle according to which public orders and public actions that have been issued in a valid way have to be preserved. The Latin aphorism utile per inutile non vitiatur refers to such principle, which is not only particularly relevant for the Latin American electoral law, but has also been enforced by electoral courts in the region (Costa Rica and Mexico).

                    It is worth mentioning that, according to Latin American electoral laws, an election’s nullity cannot be demanded by whoever has provided the reasons to support it (Mexico and Paraguay). Such a rule is based on a legal principle according to which no one can benefit from their own clumsiness. Such principle is contained in the Latin expression nemo admittitur aut auditur propriam turpitudinem allegans.

                     

                    1.  Nullifying a Single Vote

                      All electoral laws that have been analyzed allow the nullification of single votes.

                      Broadly speaking, any vote that has been unlawfully issued will be nullified (Mexico). Many countries set down all the conditions that can produce the nullification of individual votes. Among such conditions are the following: the use of unofficial or unsigned ballots; the use of ballots that have not been signed by the voting station’s officials (Argentina, Bolivia, Peru, and Venezuela); the partial destruction, mutilation, alteration or amendment of electoral ballots (Argentina, Peru and Venezuela); the inscription of marks by more than one name or one team on the ballot (Bolivia, Chile, Peru, and Venezuela); the existence of more than two ballots containing different parties to elect one post (Argentina); the intention to enclose more than one ballot in a single envelope (Colombia) or to enclose a ballot completely different to those authorized (Bolivia); the inscription or the repetition of names which are different to those authorized to appear on the ballots (Argentina and Peru); the unintelligibility of ballots (Colombia); the inclusion of the word “null” (Bolivia); a candidate’s death, or the substitution of candidates which has not been done in time (Chile); the substitute candidate has not expressed his consent on time (Colombia); the voter fails to keep his vote’s confidentiality (Bolivia); and the voter signs the ballot or leaves any mark on it which can be used to identify him (Peru).

                      All the cases already mentioned are different from the case of unmarked ballots, which is known as the so-called blank vote. Such a difference might be relevant in those systems that oblige political parties to reach certain threshold to keep their registry, to access proportional representation, or to be entitled to receive public funds.

                      Even though in many countries voting sites have the sole power to evaluate and nullify an individual vote, without any restriction whatsoever, in some cases votes can be appealed when there is a serious doubt about the voter’s legitimacy and identity. Such appeals are resolved by superior agencies (Argentina and Uruguay).

                      The nullification of individual votes refers to the votes issued by individual voters, and affects neither the rest of the votes received at the affected voting site, nor the general result obtained at that particular voting point. However, some electoral laws link a significant number of nullified votes to a potential election’s nullification. Such is the case when more nullified votes than valid ones are found at a voting site (El Salvador), when nullified votes represent more than half of a particular election (Brazil and El Salvador), or when two thirds of the votes received are either nullified or blank votes (Peru).

                       

                      2.  Nullifying votes received at a voting site

                      The reasons that votes received at a voting site can be nullified are separated into three different groups: irregularities committed during the establishment  of the voting site; irregularities committed during the voting process; and irregularities committed while counting the votes or drafting the voting site’s certificate.

                      a.  Irregularities Committed during the Establishment of the Voting Site

                      Broadly speaking, any voting site established in an unlawful way can be nullified (Brazil, Panama, and Venezuela). Improper establishment  of voting sites, which are derived from mistaken appointments of voting site members (Costa Rica, Mexico, and Chile) must be distinguished from those cases in which a voting site is established in an unauthorized location and in an unjustified way (Brazil, Costa Rica, Peru, Mexico and Venezuela).

                      b. Irregularities Committed during the Voting Process

                      These kind of irregularities include the  following the electoral registration of a voting site is forged, unauthorized or altered (Colombia and Ecuador); the names of the candidates have been mistakenly written down on the ballots (Colombia); the political parties’ symbols are mistakenly written down on the ballot (El Salvador and Chile, even though in the latter case, the nullification will be valid if such mistakes disoriented the voters or affected the result); the rightful voter was not allowed to vote (Mexico, as long as such a prohibition affects the final result, and Peru); voters not appearing on the voters’ register do vote (Mexico, as long as such a prohibition affects the final result, and Paraguay); unidentified voters do vote (Brazil); multiple votes by a single voter have been authorized (Paraguay); political parties’ representatives are not allowed to observe the election (Brazil, as long as the affected party complains about such a situation, Mexico and Paraguay).

                      In addition,  nullification will also be valid under the following circumstances: When members of a voting site  have exerted any kind of pressure upon voters up to a point which drives voters to abstain, to vote against their will or to vote without legal formalities (Venezuela); when violence has been inflicted upon members of voting sites (Colombia, Guatemala, Panama, Paraguay and Venezuela as long as such violence has altered the election’s result); when violence, pressure or menaces have been inflicted on voters (Bolivia, Brazil, Guatemala, Paraguay, as well as El Salvador and Mexico, as long as such situation modifies the election’s result); when fraud, bribery, intimidation of any kind or violence to benefit some candidate has taken place (Chile and Peru); when violence has prevented free and pacific voting (Paraguay); when voting’s confidentiality has been breached (Brazil and Paraguay); when falsehood, fraud or pressure upon voters have taken place (Brazil and Chile); when electoral campaigning or voting have been undertaken illegally (Brazil); when some authority has used its power or has spent money to curtail voters’ freedom (Brazil); any other action which could have reasonably changed the electoral result  (Guatemala).

                      Other irregularities committed during the voting process include the following: when the election day is actually other than the one fixed by electoral authorities (Brazil, Colombia, Costa Rica, Ecuador, Mexico, Paraguay and Venezuela); when voting sites are installed before seven o’clock in the morning and closed after five o’clock in the afternoon (Ecuador); when voting sites are installed in a schedule different to the one established by electoral authorities in an unjustified way (El Salvador); when a voting site is either installed later or closed before the fixed schedule in order to deprive voters from their legitimate right (Argentina); when voting starts after one o’clock in the afternoon in an unjustified way or when voters are not allowed to vote (Peru); when voting starts after two o’clock in the afternoon and less than fifty percent of voters vote (Panama); when voting is stopped before five o’clock in the afternoon (Brazil); when voting is carried out in a place different to the authorized one (Brazil, Colombia, Costa Rica, Paraguay, and Venezuela); when votes are received by unauthorized persons (Mexico, Paraguay and Peru); and when serious irregularities affect the election’s clarity and have determined the final result (Mexico).

                      c.  Irregularities Committed while Counting the Votes

                      Latin American electoral laws establish different grounds to nullify the counting of votes. Some of those grounds can be described as follows: to undertake the counting in a non-authorized place (Bolivia, Ecuador, Panama and Paraguay). In some countries (Colombia and Mexico) the counting can be carried out elsewhere as long as it is justified to do so. In Chile, such a situation can be considered as  fraud. Counting can also be nullified when violence has been exerted upon members of voting sites as long as such violence has affected the election’s result (Venezuela); when it has been performed in a malicious way to help one or more candidates in order to change the election’s result (Mexico); when there is a difference of five or more between the number of voters and the numbers of envelopes used (Argentina); when the actual number of voters is higher than the number of registered ones (Colombia); when there are more nullified votes than valid ones (El Salvador); when the number of electoral ballots that have been used is higher than the number of registered voters at the electoral board (El Salvador), when the electoral counting has been mistakenly done (Colombia and Peru);  when the wrong counting is derived from wrongdoings (Chile), from arithmetic mistakes or from plain alterations (Colombia, Mexico and Panama).

                      Likewise, electoral counting can be nullified when electoral acts are either filled out or signed by unauthorized individuals, (Bolivia and Panama); when unauthorized formats have been used (Bolivia and Ecuador); when such formats are modified or falsified (Panama and Paraguay); when electoral documents have been destroyed or cannot be found (Brazil, Colombia, and Paraguay); when signatures of the president, the secretary or at least three juries are missing (such are the cases in Bolivia and Ecuador. However, in Bolivia fingerprints are admitted as substitutes); when the president’s signature is missing (Argentina), and when the so-called electoral bag has been violated (Guatemala).  Electoral counting can also be nullified when electoral materials are not delivered in time (Colombia and Mexico) or when the counting memo has not been delivered in time (Chile).

                      In many countries, electoral counting is seen as an activity that is performed once and for all, which means that in many countries it cannot be repeated (Bolivia and Peru). However, in some places a new counting can be legally done. Such is the case of Mexico where a new counting must be performed by district councils when results written down in the scrutiny act of the voting site do not match those written in that same voting site’s file, when the scrutiny act contains clear mistakes or alterations, or when neither a file nor memo can be found regarding one voting site.

                      It is very important to bear in mind the effects that nullifying the electoral counting can bring about. First, the nullification of the electoral results from a single voting site only affects the particular election, i.e., it does not affect other electoral results or the electoral process as a whole. To nullify an election brings about the exclusion of all votes  from the voting site from the global counting of the election as a whole. However, it is possible to imagine that nullifying the counting of several voting sites can affect the election as a whole. According to all analyzed electoral laws, new elections have to be organized if the final result is changed as a consequence of nullifying the counting of different voting sites.

                      Some electoral laws express such a command in negative terms, saying that new elections will not be organized if the final result is not affected in a dramatic way once the nullifications have taken place (Uruguay and Venezuela). Other countries express such a command in positive terms, saying that new elections must be organized when the final result can be modified in a dramatic way (Brazil, Chile, Ecuador, Mexico, Nicaragua and Panama) or when changes can be enough to determine whether a political party’s registry is still valid or not (Panama).

                      Usually, there are certain symptoms suggesting that new elections are necessary once the counting of voting sites has been nullified. If the nullified counting affects more than a half of all voting sites (Argentina and Guatemala), new elections are needed. If the nullified counting affects more than a half of all votes (Brazil) or at least one third of the national valid votes (Peru). In Mexico, nullification thresholds are lower because congressional elections can be nullified when the counting of at least 20% of the voting sites (for deputies) or at least 20% of the corresponding federal entities have been nullified.  Such is also the case in Paraguay (20% of voting sites).

                      While some countries partially authorize new elections to be undertaken just in the voting sites that have been nullified or have not been installed (Chile, Panama, Uruguay and Venezuela), others authorize new elections to take place as well in  the  entire electoral districts or states (Mexico).

                      There is a difference between the nullification of a whole election as a result of nullifying the results of voting sites, and the nullification of the electoral results of voting sites that do not affect the election as a whole. The latter can, however, have some effects such as counting adjustments that can alter the number of congressmen elected by proportional representation. In Mexico the nullification of  voting site results can even cause  the declaration of a winner in a congressional race to be revoked. In such a case, a new declaration will be issued and then delivered to the new winners.

                      In Colombia, the votes obtained by a particular candidate must be nullified when relatives of a candidate up to the second grade have worked in the voting site. In such a case, electoral results are nullified only in respect to the candidate whose relatives committed such a wrongdoing.

                      Finally, it is important to note that some countries empower electoral authorities to order thorough evaluations of the reasons on which a nullification of a particular election can be based (Argentina, Guatemala, Nicaragua, and Dominican Republic). In Mexico, such power is reserved to electoral courts and must be used once many voting sites’ individual cases of nullification have been accumulated and can support the nullification of an entire congressional election. In Mexico, such power can also be used to nullify an entire congressional election when fundamental violations, which can change the final result, have taken place once and again during the election day. Such power is based on public interest considerations (which are  more important than the interest defended by contesting parties). Since electoral issues are basically oriented by public interest considerations, electoral authorities are in charge of its protection. Public interest is also known as law’s interest, which means that every single electoral action, and every single electoral process, has to be both legal and constitutional. As a matter of fact, some Mexican electoral authorities are even empowered to complete insufficient appeals from both a formal and an argumentative point of view.

                      A ground rule in the majority of Latin American countries can be put as follows: judicial resolutions must me derived from the reasons supporting the appeal and the defense. No judicial resolution is authorized to analyze more reasons to nullify an election than those drawn by whoever filed the appeal. A basic principle of the rule of law demands that judges decide legal issues based on the so-called legal principles, and one of such principles prohibits judges to proceed on their own (Ne procedat judex ex officio); another principle prohibits judges to resolve procedures which have not been started off by an agent who is authorized to initiate  the judicial process (Nemo judex sine actore). Other principles prohibit judges and rulings to go beyond the issues contained in the case’s file (Ne eat judex ultra petita partium y Sentencia debet ese conforms libellum).

                       

                      3.  Nullifying an Election  

                        In Latin America, elections can be nullified on three grounds: the election has been modified as a direct consequence of nullifying the electoral results of many voting sites; at least a candidate is not subject to be elected; and the election was not legally undertaken.

                        a.  The Election has been Modified as a Direct Consequence of Nullifying the Electoral Results of many Voting Sites

                        As mentioned above, there is a difference between those cases in which the nullification of an election affects more than a half of all voting sites (Argentina and Guatemala), those cases in which more than a half of all votes are nullified (Brazil), those cases in which a third of the valid national election is nullified (Peru), and those cases in which the votes are nullified in at least 20% of either all voting sites or federal entities (Mexico and Paraguay).

                        b. Candidates are not Subject to be Elected

                        Almost all Latin American electoral laws authorize an election to be nullified when running candidates are not legally qualified to run (Colombia, Costa Rica, Honduras, Mexico, and Venezuela) or when a candidate has faked the fulfillment of the legal conditions required to be elected (Nicaragua and Venezuela).

                        c.  The Election was not Legally Undertaken

                        In Panama, the use of violence against voters or the exertion of pressure upon them is against the law. Such violations, which infringe fundamental rights, can be seen as groundings for the nullification of electoral results. In Mexico, permanent wrongdoings committed in a district or in a state, which can modify the general electoral result, and committed during  election day can be used to ground the nullification of electoral results. In Uruguay, any action which has harmed the election can be grounds for  nullification as long as such harm may change the entire result. In both Paraguay and Honduras, elections can be nullified when votes are counted in a mistakenly, maliciously or violent way. In Venezuela, fraud and bribery are also considered as reasons to nullify an election, while in Peru, serious irregularities which, according to an authorized judicial authority can modify an election’s result,  have a similar effect.

                        Brewer-Carías has warned  that the reasons previously analyzed are based on many legal and undefined concepts (such as “required guarantees”, “substantial violations”, “malicious actions which have harmed the election”, “generalized distortion of electoral counting”, “serious irregularities”) which do not support  judicial discretional activity (seen as a power to resolve in a free and prudential way, whatever is more convenient) but an electoral judicial activity based on good judgment (seen as the way in which judges resolve legal controversies evaluating all the circumstances around the case under the law). Judicial activity based on good judgment requires a technical application of the so-called legal and undefined concepts, which require from judges a precise application of legal conditions, a legal evaluation of the case in face of such a condition, and the use of evidence which has to be in line with the legal condition aims to support the resolution.

                        As mentioned above, the nullification of an election by relative majority brings about the undertaking of a new election. On the contrary, the nullification of an election by proportional representation does not necessarily result in  a new election. In Mexico for instance, if a candidate does not fulfill the legal requirements to be elected, the election’s nullification will only affect him and the next candidate in line will replace him.

                         

                        4.  General Nullification of elections

                          Few countries authorize a general nullification to take place. If that is so, though, a new election will be undertaken. As a matter a fact, some countries explicitly prohibit that scenario (in Bolivia, for instance, neither general nor municipal elections can be nullified on any grounds; such a prohibition is based on principles such as filing appeals within deadlines and validating every single vote).

                          Some countries authorize a general nullification of elections when the electoral summoning was not issued by an authorized agency (Panama and Venezuela), or when the election day is different to the one officially set by the law (El Salvador). In Panama, general nullification is authorized when violent acts or pressure exerted upon voters have changed the final result. In that country a similar effect will be produced by a violation of legal formalities to undertake elections.

                          Finally, for the great majority of Latin American electoral laws, filing a nullification appeal has both a public and a free nature. Peru is the only exception to this rule. There, the plaintiff has to deposit one hundred thousand soles at the Nation’s National Bank in order to file the appeal.  Such a deposit will be reimbursed to the plaintiff if the appeal is successful.



                          [i] Ibid., 12-13.

                          [ii] Robert Dahl and Michael Clegg, 104.

                          Reforming Electoral Processes

                          What Is Electoral Reform?

                          Electoral reform is a broad term that covers, among other things, improving the responsiveness of electoral processes to public desires and expectations. However, not all electoral change can be considered electoral reform. Electoral change can only be referred to as reform if its primary goal is to improve electoral processes, for example, through fostering enhanced impartiality, inclusiveness, transparency, integrity or accuracy. However, this distinction is not always clear in practice: some changes (e.g. US proposals to require voters to produce identity documents at polling stations) may be characterized as desirable or even necessary ‘reforms’ by their proponents, but as improper ‘manipulation’ by their opponents. Random and/or frequent electoral change, while it may be reformist, can also be confusing to voters, and thus defeat its purpose. Frequent change may also negatively affect the sustainability of an EMB’s operations.

                          Purported electoral reforms have also often had unanticipated consequences, either in the short or long terms, which have wholly or partially negated their anticipated benefits. Such a situation may arise due to poor design or implementation, or because the reforms give rise to opportunities for parties or candidates to manipulate the system to their advantage.

                          Electoral reform often only catches the public eye when it involves changes to representational arrangements, such as electoral systems, but it is a much broader concept than this. There are three distinct areas of electoral reform; an EMB and its stakeholders may play different roles in each.

                          1. Legal: involving the amendment of the constitution, electoral law, and/ or related rules and regulations to enhance the integrity, relevance and adequacy of the legal framework within which the EMB delivers its services. This may include institutional reform of the EMB itself.
                          2. Administrative: the introduction within an EMB of new strategies, structures, policies, procedures and technical innovations to enable it to implement its legal responsibilities and deliver its services more efficiently, effectively and sustainably. These could include policies and practices on issues such as procurement, financial integrity or employment (such as gender balance in the recruitment of EMB staff ); making informed voting accessible to groups such as women, those living in remote areas and the physically impaired; or introducing new technology for services such as voting, voter registration or electoral logistics.
                          3. Political: changes that take place in the political environment within which an EMB operates, such as giving it more autonomy or creating a more effective and transparent framework for its funding and accountability.

                          The most dramatic examples of reform involve a previously non-democratic country introducing democratic electoral processes (e.g. Indonesia’s transition to open, multiparty electoral democracy in 1998–99). In such situations, reform in all three areas (legal, administrative and political) tends to take place at the same time, often under tight time constraints, and with no single player driving, and taking a holistic view of, the overall reform process.

                          Since the mid-1980s, there have been substantial structural and procedural changes in the way elections are conducted around the world, such as the growing numbers of independent and permanent EMBs and the increasing use of new technologies to deliver electoral services. Electoral reform has often been part of a package of general democratization initiatives. However, many countries that previously enjoyed general satisfaction with their long-standing framework and style of electoral administration have also undertaken substantial reforms. Examples include the introduction of an independent EMB and significantly wider access to voting in Australia in 1984; the introduction of a new independent body with electoral functions, and a radically different electoral system, in New Zealand in 1993 (followed by a further consolidation and enhancement of the EMB’s functions, completed in 2012); changes in Sweden in 2001 to create a more independent electoral administration; and the establishment of an independent electoral commission in Tonga in 2010.

                          The internationalization of electoral frameworks and administration continues to place countries under pressure to introduce electoral reform measures. The relatively recent development of generally acknowledged principles for free, fair and credible elections, and of global and regional obligations for electoral administration, have created yardsticks by which each country’s electoral processes and administration can be assessed.

                          More problematically, countries are sometimes encouraged or even pressured to introduce processes, such as a civil register, which are not rooted in basic principles of freedom and fairness, but rather in the preferences of external advisers or election observers.

                          Reforms to electoral processes may be triggered by a failure to deliver acceptable elections or by conflict resulting from disputed elections. Where countries are dependent on international donor contributions, funds may be linked to the implementation of electoral reforms, as in Liberia. Even where there is no such explicit linkage, the injection of donor funds may tend to make arguments for electoral reform more compelling. Financial constraints requiring electoral resources to be used more sustainably and effectively have had a significant bearing on administrative electoral reforms.

                          The increasingly widespread and expert independent and political party observation of elections has produced many well-documented assessments of electoral performance and recommended reforms — for example, in connection with Nigeria’s post-2003 elections and with numerous elections observed by ANFREL. Civil society and the media have become more aware of electoral rights and related international obligations. International observation and technical assistance to elections in emerging democracies can also have an effect in the mature democracies.

                          While governments have initiated many electoral reforms, at times in response to societal or external pressures, EMBs themselves have often been powerful motivators of such changes. More widespread public accountability and transparency of EMBs — a significant reform in itself — has had a multiplier effect on further electoral reform. Materials supporting electoral reforms have emerged from EMBs’ increasing use of election audits and the advocacy activities of CSOs and other stakeholders.

                          The EMB’s Role in Electoral Reforms

                          While the EMB has a key role to play in all electoral reform, it may not be in a position to implement reform without the support of its key stakeholders — particularly the government, legislature and political parties. This is a significant reason for EMBs to maintain a strong relationship with their stakeholders (see Chapter 8).

                          An EMB can only implement legal reform within the established legal framework agreed by the government and legislature. However, an EMB may have a key research, review and advocacy role in promoting electoral legal reform, which can be guided by the criteria detailed in International IDEA’s publication International Obligations for Elections: Guidelines for Legal Frameworks. Electoral legal reform can be assisted by establishing an appropriate permanent body of the legislature to monitor electoral activities and recommend electoral reforms to the government. Effective legal electoral reform depends on a multiparty approach in the legislature that subordinates political advantage to ethical electoral principles and good practice.

                          An EMB has more control over the implementation of administrative reforms, and can implement them more effectively, if it formally adopts a continuous review and reform process within its management policies. However, legal and administrative reforms often need to be synchronized to optimize their effectiveness. In Australia, for example, while the EMB has modernized its election procedures extensively, reform of the election machinery has not kept pace.

                          Unless an EMB maintains a process for reviewing its administrative strategies, policies, procedures and practices, it will become less effective, as it will have no mechanism to deal with change in its legal, stakeholder, technological, financial and social environments.

                          Political and legal reform issues related to electoral processes are often strongly associated. As with legal reform, EMBs do not control political reform, although again they can play a research and advocacy role, and cultivate support among key stakeholders.

                          Key steps for an EMB to consider in proposing and implementing electoral reforms include:

                          • assigning responsibilities to specific members or staff, including at the senior level, for the development, advocacy and implementation of electoral reforms;
                          • implementing effective processes, including post-electoral audits and evaluations, for reviewing the electoral framework and implementing electoral processes;
                          • consulting with stakeholders to ascertain their views on required reforms and to enlist their support for the EMB’s reform programme;
                          • making submissions to the government and legislature on desired electoral reforms;
                          • publicizing desired electoral reforms through the media and use of stakeholder networks;
                          • developing an electoral reform implementation strategy; and
                          • evaluating the effects of electoral reforms.

                          One challenge for EMBs is building up the skill base needed to drive electoral reforms. Well-established bodies typically have staff with a strong understanding of their existing processes. While they may be equipped to propose useful incremental improvements, unless they also have a sound knowledge of electoral fundamentals, they may be less well placed to imagine and elaborate the more radical reforms that are sometimes needed.

                          The Scope of Electoral Reform

                          A significant area of electoral reform is the nature and structure of the institutions engaged in electoral management or delivering electoral services. Reforms in this area may enhance the independence of the EMB — for example, by adopting Independent Model electoral management in countries such as Bhutan and Tonga, or a Mixed Model as in Timor-Leste. Electoral responsibilities may be reassigned among existing and/or new bodies to promote better service delivery — as in New Zealand, Sweden and the UK. In Sweden, the EMB itself initiated the reform of electoral management. In Indonesia in 1998–99 and in the UK, the government initiated the reforms. Pressure from local civil society or international groups may also instigate the reform of electoral management arrangements, as in Georgia and Liberia.

                          Reforms of electoral processes, such as the introduction of a new electoral system, may have a broad effect on an EMB’s strategies, policies and procedures. They may target key electoral issues such as electoral participation and representation, the delimitation of electoral districts, voter registration, the registration and oversight of political parties, and improving electoral integrity. They may also target specific technical or technological aspects of the electoral process, such as introducing new procurement or employment processes, voter registration systems, or voting and vote-counting methods or systems. They may involve social policies, such as reducing a gender imbalance in representation, improving access to electoral processes for marginalized sectors of society or improving the representativeness of the EMB’s staff.

                          Electoral system reform, as in Indonesia, Papua New Guinea and New Zealand, is one of the most far-reaching reforms in election administration. It is often the result of a functional need, for example, of perceptions of ‘unfairness’ in representation or of government ineffectiveness or lack of responsiveness. In 2003 Indonesia changed its electoral system from closed-list proportional representation (PR) in very large electoral districts to open-list PR in small electoral districts in order to address perceived deficiencies in the links between voters and representatives, while maintaining the consensus nature of Indonesian governance. Electoral system reform places a substantial information responsibility on the EMB, and may require it to implement new methods of electoral district boundary delimitation, voting and vote counting.

                          EMBs can play a significant role in reform of electoral district boundary delimitation, for example as advocates of more transparent and equitable boundary delimitation processes; by providing expert opinions on boundary delimitation issues; and by ensuring that they exercise any responsibilities for boundary delimitation impartially, equitably and with integrity. Some electoral reforms have introduced multi-member districts, as this type of system, usually based on PR, can decrease the influence of electoral boundaries on election results. Other reforms have required boundary delimitations based on ‘one person, one vote, one value’. Some reforms have attempted to make boundary delimitation processes more transparent and objective, for example by excluding the legislature from the delimitation process, placing an independent body in charge of delimitation, and requiring open hearings and independent review of proposed boundaries.

                          The process of registering electors has attracted many efforts at modernization in both emerging and established democracies. Voter registration determines the ability of eligible voters to participate in an election, and thus is a key element of the fairness of an election. As it generally occurs well before election day, and often outside the direct scrutiny of observers (especially where electoral registers are derived from civil or population registers), the internal integrity of voter registration systems needs to be very high. Reforms have increasingly targeted the efficiency, as well as the integrity, of voter registration processes. They have often included the introduction of biometric data capture and processing, with the stated aim of decreasing the scope for multiple registrations, voter impersonation and/or multiple voting.

                          Many EMBs have implemented systems to improve the inclusiveness, fairness, accuracy and transparency of  voter  registration,  for  example,  by  providing for continuously updated voter  registration,  special  registration  provisions for transient voters, and safeguards against the wrongful rejection of a registration or removal from the electoral register. EMBs and other agencies responsible for maintaining data from which electoral registers are derived are improving the integrity of electoral registers by using better methods to check the identity of qualified persons and reducing data processing times, often using modern technological solutions. EMBs need to ensure that technological solutions for voter registration enjoy citizens’ trust and are sustainable, especially in emerging democracies where EMBs may have uncertain levels of future financial support.

                          There have been significant reforms in the role played by EMBs in monitoring and regulating the activities of political parties. Some are the consequences of legal reforms targeted at levelling the playing field for political competition — for example, reforms in the administration of state funding of political parties and candidates’ election campaigns, and the qualifications for registering parties and candidates to contest elections. Others have been targeted at improving oversight of campaign contributions and expenditures, and the internal democracy of political parties — such as oversight of candidate selection processes. Reforms to promote a level playing field for elections have also given some EMBs the responsibility of administering or monitoring arrangements that require the media to allocate campaign advertising opportunities equitably.
                          A growing number of EMBs are introducing new voting methods. Brazil, India, Bhutan and Venezuela have replaced manual voting with EVMs, while Estonia has introduced Internet voting. Many of the issues that need to be considered in reforming electoral processes by introducing electronic voting are discussed in Chapter 9.

                          There have been significant efforts to make electoral participation more accessible. Access to voter registration has sometimes been opened to those who are out of the country, of no fixed abode or in prison. Access to polling has been widened for many people through the introduction of in-person absentee, postal or pre-poll (early) voting, including for voters who are out of the country, and by providing special voting and voter information facilities for refugees, internally displaced persons, the disabled, the aged and those in remote areas, in prison or in hospital. EMBs have had to respond to all these reforms by introducing procedures and systems that enable the additional access while maintaining high integrity in the voter registration, voting and counting processes. Internet voting is the subject of much current research, and poses a challenge to EMBs that might be contemplating its adoption, since the skill sets required to manage such a process are radically different from those typically found in EMBs that manage traditional voting methods.

                          It should be noted that reforms that give rise to a proliferation of different voting methods, or more generally to a range of different modalities for performing a particular function, tend to be more challenging for an EMB than ones that simply update a single mechanism to a different single mechanism.

                          Reform of electoral access has attempted in some countries to provide equal access for specific societal groups and for women. Such reforms may well have to be pursued in a complementary way in the legal, administrative and political areas. EMBs can promote equitable access by insisting on it in their own staffing, for example by requiring gender balance in temporary staffing for polling stations, and using internal professional development programmes to ensure that women advance into EMB management positions.

                          Managing Electoral Change

                          Electoral change management requirements will depend on the extent of the reform and the specific electoral processes involved. Changes to the model of the EMB — for example, from a Governmental to an Independent Model — require particularly careful planning to ensure a smooth transition and the retention of skills and institutional memory. It is crucial that changes to electoral structures and frameworks are agreed long enough before electoral events to allow for the preparation of new materials and the effective implementation of training.

                          Especially where the process of change applies to the nature or structure and staff of an EMB, it is essential to appoint a skilled manager and communicator to oversee and implement the changes. Changing organizational structures and individual roles within structures will inevitably create tension. Transparency, honesty, serious consultation, communication and adequate forewarning are essential elements of managing personnel through electoral change. Timing is also critical. EMB staff have skills and knowledge that may be difficult to replace, especially close to an election date. Involving EMB members in change management demonstrates the EMB’s commitment to reforms.

                          Reforming electoral technical processes may require the help of experts who specialize in particular technical areas. In implementing technical reforms, an EMB needs to ensure that the right procedural and system specifications have been chosen and correctly implemented. Thorough development review processes and pre-implementation testing are essential. The change management process also needs to include measurable indicators to evaluate the implementation of the electoral reforms, and clear responsibilities for reporting on indicators and improving performance if any indicator is not achieved.

                          Risks Associated with Electoral Reform

                          Where a country’s electoral processes are proceeding reasonably well, risk generally tends to be minimized by the incremental pursuit of electoral reform, making small changes over a period of several elections. The simultaneous implementation of major reforms in a range of different areas can place a great burden on an EMB, and will increase the risk of suboptimal implementation, especially when deadlines are tight. While sound implementation has the potential to meet intended targets, and hopefully to build confidence and trust in the effectiveness of elections and the EMB, failed implementation can have the opposite effect. This will be especially problematic if reforms are pursued without strong political support across the board; opponents of a particular initiative are likely be looking for opportunities to characterize it as a failure, and to push for its abandonment.

                          There are three main risks inherent in reform processes. The first is that of trying to solve the wrong problem. For example, there will be little benefit for a country to invest heavily in a technologically sophisticated voter registration system if the real problem is that the polling officials are intimidated, suborned, or corrupted by parties or candidates, making the quality of the register itself largely irrelevant. Where a country’s electoral culture is truly dire, there may be little to gain from massive investment in technology, since even if it works it may simply displace fraud from one area of the system to another. Major reforms, especially those involving technological innovation, can be very expensive, particularly when factors such as long-term maintenance costs and depreciation are taken into account. The task of setting up such systems can easily overwhelm even a well-established and resourced organization, placing massive demands on the time of senior management and potentially drawing attention away from other problem areas that, judged objectively, may be more deserving of priority attention

                          A second risk is that of making unrealistic assumptions about non-technical matters on which the success of a system depends. For example, a database intended to be used to maintain a continuously updated register of voters may fail to live up to expectations if there is no way of ensuring the constant flow of data required to keep the database up to date.

                          A third risk is a loss of agility. A decision to adopt a specific technological approach may well lock a country or organization into maintaining a way of dealing with a problem that will be difficult, or increasingly expensive, to sustain in the long run. For example, organizations that invested heavily in Internet- based processes, not just in the electoral field, are now finding that they are having to retool their PC-based systems to make them readily accessible from smartphones and tablets, as consumers’ preferred ways of accessing the Internet change.

                          Chapter Summary

                          • Electoral reforms are changes targeted at improving implementation of the guiding principles of electoral administration described in Chapter 1.
                          • Electoral reforms may be directed at the electoral legal framework — including the EMB — the administrative and technical processes of electoral management, or the political context for electoral activities.
                          • No aspect of electoral frameworks, systems, institutions, planning, management or operations is immune from reform or modernization. EMBs need to have a clear strategy for developing or responding to and implementing electoral reforms.
                          • EMBs have vital roles as advocates of electoral reforms in general, as implementers of institutional reforms, and as initiators and implementers of administrative reforms, including technical reforms.
                          • Electoral reform needs to be carefully managed to ensure that it fulfills its purpose without confusing electors and with minimal disruption to electoral administration.

                          Annexes

                          Bibliography

                          Bibliography for Legal Framework Encyclopaedia Topic

                          Contributors

                          Contributors to the Legal Framework Encyclopaedia Topic

                          The the original Legal Framework topic area was written by Dr. Pablo Santolaya, Doctor at Law and a Full Professor in Constitutional Law at the University of Madrid, specialising in the legal and procedural aspects of Electoral Law and Director-General of Electoral Processes in Spain, a post he held until May 1996. Dr. Pablo Santolaya was assisted by Diego Iñiguez, an official in the service of the Superior Body of Civil State Administrators in Spain.

                          The topic was updated by Jesús Orozco and Yuri Zuckermann in 2005-2006.

                          Significant updates in 2012 were undertaken by Richard D. Balasko who served for 20 years as the independent and non-partisan Chief Electoral Officer in Manitoba, Canada. Mr. Balasko has over 30 years experience in electoral management at the provincial and federal levels in Canada. Mr. Balasko has also contributed to international democratic development as a mission leader, member or trainer in nearly a dozen international assistance and observation missions.

                           

                          End Notes

                          End Notes for the Legal Framework Encyclopaedia Topic

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections: An NDI Guide for Developing Election Laws and Law Commentaries (Washington D.C.: National Democratic Institute for International Afairs (NDI), 2008), 1.

                          [1] European Commission and Network of Europeans for Electoral and Democracy Support (NEEDS), Compendium of International Standards for Elections, Second Edition (Sweden: Elanders Graphic Systems AB, 2008), Preface.

                          [1] Ibid., 38.

                          [1] Ibid., 5.

                          [1] European Commission, Handbook for European Union Election Observation, Second Edition, (Sweden: Elanders Sverige AB, 2008), 16

                          [1] European Commission and NEEDS, Compendium, 6.

                          [1] Ibid., 5.

                          [1] Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR), Election Observation Handbook, 6th Edition. (Poland: Poligrafus Andrzej Adamiak, 2010), 23.

                          [1] Ibid., 23.

                          [1] Democracy Reporting International (DRI) and The Carter Center.  Strengthening International Law to Support Democratic Governance and Genuine Elections (Berlin, Germany/Atlanta Georgia, United States of America.  2012), 26.

                          [1] OSCE,Election Observation Handbook, 7.

                          [1] DRI and The Carter Center, Strengthening International Law, 7.

                          [1] Ibid., 6.

                          [1] European Commission and NEEDS, Compendium, 1.

                          [1] Ibid., 68.

                          [1] European Commission, Handbook for European Union Election Observation, 15.

                          [1] International Institute for Democracy and Electoral Assistance (International IDEA), International Electoral Standards: Guidelines for reviewing the legal framework of elections (Halmstad, Sweden: Bulls Tryckeri, 2002), 11.

                           

                          [1] Ibid.,  8.

                          [1] DRI and The Carter Center, Strengthening International Law, 10.

                          [1] European Commission, Handbook for European Union Election Observation, 181.

                          [1] Information for Development Program and International Telecommunications Union.   “Snapshot of Different Legal Traditions.” ICT Regulation Toolkit Website.

                          [1] United Nations, Department of Political Affairs, Women & Elections: Guide to Promoting the Participation of Women in Elections (United Nations, 2005), 22.

                          [1] European Commission and NEEDS, Compendium, 25.

                          [1] European Commission, Handbook for European Union Election Observation, 17.

                          [1] Ibid.,17.

                          [1] Electoral Commissions Forum of SADC Countries and Electoral Institute of Southern Africa (EISA). Principles for Election Management, Monitoring, and Observation in the SADC Region,(South Africa: Electoral Institute of Southern Africa, 2004), 7.

                          [1] International IDEA, International Electoral Standards, 14.

                          [1] Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR), Guidelines for Reviewing a Legal Framework for Elections, (Warsaw, Poland: OSCE, 2001), 6.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 8.

                          [1] UN, Women & Elections, 22.

                          [1] International IDEA, International Electoral Standards, 16.

                          [1] Ibid., 12.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 5.

                          [1] Ibid., 2.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 8.

                          [1] DRI and The Carter Center, Strengthening International Law, 8.

                          [1] European Commission, Handbook for European Union Election Observation, 31.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 10.

                          [1]  DRI and The Carter Center, Strengthening International Law, 39.

                          [1]  International IDEA, International Electoral Standards, 42.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 11.

                          [1] UN, Women & Elections, 65.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 19.

                          [1] International IDEA, International Electoral Standards, 37.

                          [1] UN, Women & Elections, 67.

                          [1] European Commission, Handbook for European Union Election Observation, 36-37.

                          [1] Ibid., 36.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 12.

                          [1] International IDEA, International Electoral Standards, 43.

                          [1] UN, Women & Elections, 68.

                          [1] OSCE, Election Observation Handbook, 52.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 11.

                          [1] Ibid., 12.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 12.

                          [1] International IDEA, International Electoral Standards, 40.

                          [1] Ibid., 41.

                          [1] European Commission, Handbook for European Union Election Observation,  31.

                          [1] International IDEA, International Electoral Standards, 27.

                          [1] Ibid., 31.

                          [1] Ibid., 29-30.

                          [1] DRI and The Carter Center, Strengthening International Law,  33.

                          [1] European Commission and NEEDS, Compendium, 11.

                          [1] DRI and The Carter Center, Strengthening International Law, 29.

                          [1] Ibid., 30.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 12.

                          [1] OSCE, Election Observation Handbook, 60.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 12.

                          [1] International IDEA, International Electoral Standards, 45.

                          [1] OSCE, Election Observation Handbook, 58.

                          [1] Ibid., 59.

                          [1] UN, Women & Elections, 49.

                          [1] Ibid., 50.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 16.

                          [1] International IDEA, International Electoral Standards, 47.

                          [1] UN, Women & Elections, 54.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 15.

                          [1] DRI and The Carter Center, Strengthening International Law, 22.

                          [1] OSCE, Election Observation Handbook, 56.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 66.

                          [1] European Commission, Handbook for European Union Election Observation, 47.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 16.

                          [1] Ibid., 18.

                          [1] International IDEA, International Electoral Standards, 49.

                          [1] DRI and The Carter Center, Strengthening International Law, 8.

                          [1] International IDEA, International Electoral Standards, 33.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 12.

                          [1] International IDEA, International Electoral Standards, 34.

                          [1] DRI and The Carter Center, Strengthening International Law, 31.

                          [1] Ibid., 32.

                          [1] International IDEA, International Electoral Standards, 51.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 17.

                          [1] UN, Women & Elections, 13.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 17.

                          [1] European Commission, Handbook for European Union Election Observation, 49.

                          [1] Ibid., 48.

                          [1] Election Commission of India, “Key Highlights, General Elections, 2009 (15th LOK SABHA).”, Official Website,

                          [1] DRI and The Carter Center, Strengthening International Law, 42.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 23.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 25.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 25.

                          [1] European Commission, Handbook for European Union Election Observation, 77.

                          [1] Ibid., 77.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 54.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 25.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 55.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 23.

                          [1] UN, Women & Elections, 70.

                          [1] European Commission, Handbook for European Union Election Observation, 75.

                          [1] DRI and The Carter Center, Strengthening International Law, 41.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 24.

                          [1] International IDEA, International Electoral Standards, 83.

                          [1] Ibid. 84.

                          [1] Ibid., 85.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 26.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 20.

                          [1] Ibid., 20.

                          [1] Democracy Reporting International (DRI) and The Carter Center, “Overview of State Obligations relevant to Democratic Governance and Democratic Elections.” (Berlin, Germany/Atlanta Georgia, United States of America: DRI,  2012), 17.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 24.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 25.

                          [1] OSCE, Election Observation Handbook, 23.

                          [1] International IDEA, International Electoral Standards, 72.

                          [1] European Commission, Handbook for European Union Election Observation, 79.

                          [1] International IDEA, International Electoral Standards, 72.

                          [1] Ibid., 72.

                          [1] Ibid., 73.

                          [1] European Commission, Handbook for European Union Election Observation, 77.

                          [1] Ibid., 80.

                          [1] Ibid., 81.

                          [1] International IDEA, International Electoral Standards, 73.

                          [1] Ibid., 73.

                          [1] OSCE, Election Observation Handbook, 76.

                          [1] DRI and The Carter Center, Strengthening International Law, 43.

                          [1] International IDEA, International Electoral Standards, 77.

                          [1] DRI and The Carter Center, Strengthening International Law, 46.

                          [1] European Commission, Handbook for European Union Election Observation, 82.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 26.

                          [1] UN, Women & Elections, 72.

                          [1] European Commission, Handbook for European Union Election Observation, 181.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 30.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 23.

                          [1] DRI and The Carter Center, Strengthening International Law, 8.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 24.

                          [1] International IDEA, International Electoral Standards, 17.

                          [1] Ibid., 91.

                          [1] DRI and The Carter Center, Strengthening International Law, 45.

                          [1] European Commission, Handbook for European Union Election Observation, 73.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 6.

                          [1] UN, Women & Elections, 56.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 15.

                          [1] DRI and The Carter Center, Strengthening International Law, 39.

                          [1] UN, Women & Elections, 60.

                          [1] Elections Canada, “The Impact of Civic Education on Voter Turnout.”  Canada’s Democracy Week 2012 Website.

                          [1] UN, Women & Elections, 59.

                          [1] Elections Canada, “The Impact of Civic Education on Voter Turnout.”

                          [1] DRI and The Carter Center, Strengthening International Law, 37.

                          [1] European Commission, Handbook for European Union Election Observation, 54.

                          [1] DRI and The Carter Center, Strengthening International Law, 38.

                          [1] International IDEA, International Electoral Standards, 61-62.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 19.

                          [1] European Commission, Handbook for European Union Election Observation, 56.

                          [1] Ibid., 56

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 18.

                          [1] Ibid., 38.

                          [1] International IDEA, International Electoral Standards, 63.

                          [1] European Commission, Handbook for European Union Election Observation, 54.

                          [1] OSCE, Election Observation Handbook, 64.

                          [1] Ibid., 67.

                          [1] Ibid., 67.

                          [1] European Commission, Handbook for European Union Election Observation, 85.

                          [1] International IDEA, International Electoral Standards, 72.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 18.

                          [1] DRI and The Carter Center, Strengthening International Law, 36.

                          [1] Ibid., 36.

                          [1] International IDEA, International Electoral Standards, 56.

                          [1] European Commission, Handbook for European Union Election Observation, 52.

                          [1] OSCE, Election Observation Handbook, 62.

                          [1] International Institute for Democracy and Electoral Assistance (International IDEA), Political Finance Regulations Around the World: An Overview of the International IDEA Database, Edited by Magnus Ohman (Sweden: Trydells Forum, 2012), 10.

                          [1] Ibid., 10.

                          [1] DRI and The Carter Center, Strengthening International Law, 54.

                          [1] European Commission, Handbook for European Union Election Observation, 51.

                          [1] International IDEA, International Electoral Standards, 56.

                          [1] Ibid., 56.

                          [1] OSCE, Election Observation Handbook, 61.

                          [1] European Commission, Handbook for European Union Election Observation, 52.

                          [1] OSCE, Election Observation Handbook, 61.

                          [1] International IDEA, International Electoral Standards, 57.

                          [1] International Foundation for Electoral Systems (IFES), Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai  (United States of America: IFES, 2009), 13.

                          [1] International IDEA, International Electoral Standards, 65.

                          [1] European Commission and NEEDS, Compendium, 12.

                          [1] International IDEA, International Electoral Standards, 67.

                          [1] OSCE, Election Observation Handbook, 61.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 32.

                          [1] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

                          [1] Ibid., 10.

                          [1] Ibid., 10.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 22.

                          [1] Magnus Öhman, “Public Funding of Political Parties and Election Campaigns.” In International Foundation for Electoral Systems (IFES), Political Finance Regulation: The Global Experience (United States of America: IFES, 2009), 57.

                          [1] Ibid., 73-74.

                          [1] Ibid., 57.

                          [1] Ibid. 59.

                          [1] International IDEA, International Electoral Standards, 66.

                          [1] Ibid., 66.

                          [1] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

                          [1] Magnus Öhman, “Public Funding of Political Parties and Election Campaigns”, 77.

                          [1] Marcin Walecki, “Practical Solutions for Spending Limits.”  In International Foundation for Electoral Systems (IFES). Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai (United States of America: IFES, 2009), 46.

                          [1] International IDEA, International Electoral Standards, 68.

                          [1] Marcin Walecki, “Practical Solutions for Spending Limits”, 47.

                          [1] DRI and The Carter Center, Strengthening International Law, 37.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 22.

                          [1] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

                          [1] Magnus Öhman & Jack Santucci, “Practical Solutions for the Disclosure of Campaign and Political Party Finance.” In International Foundation for Electoral Systems (IFES). Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai (United States of America: IFES, 2009), 27.

                          [1] IFES, Political Finance Regulation: The Global Experience, 13.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 22.

                          [1] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

                          [1] IFES, Political Finance Regulation: The Global Experience, 13.

                          [1] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 11.

                          [1] Magnus Öhman & Jack Santucci, “Practical Solutions for the Disclosure of Campaign and Political Party Finance.”, 41.

                          [1] Hani Zainulbhai, “Practical Solutions for Political Finance Enforcement and Oversight.”  In International Foundation for Electoral Systems (IFES), Political Finance Regulation: The Global Experience. Edited by Magnus Öhman and Hani Zainulbhai (United States of America: IFES, 2009), 98.

                          [1] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 10.

                          [1] International IDEA, International Electoral Standards, 68.

                          [1] European Commission, Handbook for European Union Election Observation, 60.

                          [1] International IDEA, International Electoral Standards, 67.

                          [1] ACE Electoral Knowledge Network, Encyclopaedia. Parties and Candidates Financial Regulations, Website.

                          [1] International IDEA, Political Finance Regulations Around the World: An Overview of the International IDEA Database, 11.

                          [1] Pippa Norris, “Are There Global Norms and Universal Standards of Electoral Integrity and Malpractice? Comparing Public and Expert Perceptions,” Faculty Research Working Paper Series (Harvard Kennedy School, March 16 2012), 5.

                          [1] IFES, Political Finance Regulation: The Global Experience, 16.

                          [1] Ibid., 13.

                          [1] Pippa Norris, 4.

                          [1] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections, 21.

                          [1] Pippa Norris, 7.

                          [1] Georgetown University, Democracy and Governance Studies, “The Chinese Electoral Framework Project.” Website, Executive Summary.

                          [1] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 29.

                          [1] OSCE, Guidelines for Reviewing a Legal Framework for Elections, 31.

                          [1] Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR), Denis Petit, Resolving Election Disputes in the OSCE area: Towards a Standard Election Dispute Monitoring System (Warsaw: ODIHR, 2000), 10-11.

                          [1] Robert Dahl and Michael Clegg, “Legal Frameworks for Effective Election Complaints Adjudication Systems.” In International Foundation for  Electoral Systems, Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE),Edited by Chad Vickery. (United States of America: IFES, 2011), 102.

                          [1] DRI) and The Carter Center, “Overview of State Obligations relevant to Democratic Governance and Democratic Elections.” 17.

                          [1] International Foundation for Electoral Systems, Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE),Edited by Chad Vickery (United States of America: IFES, 2011), 16.

                          [1] Robert Dahl and Michael Clegg, 100.

                          [1] European Commission, Handbook for European Union Election Observation, 60.

                          [1] OSCE, Election Observation Handbook, 51.

                          [1] Robert Dahl and Michael Clegg, 121.

                          [1] Ibid., 101.

                          [1] Ibid., 113.

                          [1] Avery Davis-Roberts, Senior Program Associate in the Carter Center’s Democracy Program, “International Obligations for Electoral Dispute Resolution.”  Electoral Dispute Resolution Discussion Paper presented at the Electoral Dispute Resolution Experts Meeting, Atlanta, Georgia, February 24-25, 2009. 13.

                          [1] David Kovick and John Hardin Young, “Alternate Dispute Resolution Mechanisms” In International Foundation for Electoral Systems. Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections (GUARDE). Edited by Chad Vickery (United States of America: IFES, 2011), 229.

                          [1] Avery Davis-Roberts, 13.

                          [1] David Kovick and John Hardin Young, 229.

                          [1] Ibid., 232.

                          [1] Ibid., 254.

                          [1] DRI and The Carter Center, Strengthening International Law, 44.

                          [1] OSCE, Resolving Election Disputes in the OSCE area: Towards a Standard Election Dispute Monitoring System, 12.

                          [1] Robert Dahl and Michael Clegg, 107.

                          [1] OSCE, Resolving Election Disputes in the OSCE area: Towards a Standard Election Dispute Monitoring System, 5.

                          [1] Ibid., 12-13.

                          [1] Robert Dahl and Michael Clegg, 104.

                          [1] International Foundation for Electoral Systems (IFES), ”Elections in Egypt: Implications of Recent Court Decisions on the Electoral Framework.” (Washington, D.C.: IFES Briefing Paper, August, 2012), 3.

                          [1] The Carter Center, Carter Center Election Witnessing Mission: Egypt 2011/2012 Parliamentary Elections. Preliminary Report on all Three Phases of The People’s Assembly Elections (Atlanta, GA: News, The Carter Center, January, 2012), 1.

                          [1] IFES, ”Elections in Egypt: Implications of Recent Court Decisions on the Electoral Framework.”, 3.

                          [1] Democracy Reporting International (DRI), “What Electoral System for Egypt?” (Briefing Paper 32, Democracy Reporting International, October 2012), 2.                                                       

                          [1] Egypt Independent Website. “Administrative court upholds ruling to dissolve Parliament.” Edited translation from Al-Masry Al-Youm, September 23, 2012.

                          [1] The Carter Center, Carter Center Election Witnessing Mission: Egypt 2011/2012 Parliamentary Elections. Preliminary Report on all Three Phases of The People’s Assembly Elections, 15.

                          [1] MSN News Website, “Egypt court refuses reinstatement of dissolved lower house of parliament.” September 23, 2012.

                          [1] IFES, ”Elections in Egypt: Implications of Recent Court Decisions on the Electoral Framework.”, 3.

                          [1] DRI, “What Electoral System for Egypt?” 1.

                          [1] The Guardian. “Egypt constitution decision referred to country's highest court.” October 23, 2012.

                          [1] IFES, ”Elections in Egypt: Implications of Recent Court Decisions on the Electoral Framework.”, 10.

                          [1] Supreme Court of Canada.  Opitz v. Wrzesnewskyj. 2012 SCC 55, (71-73).

                          [1]Ibid.,  6.

                          [1] Ibid., (58-59).

                          [1] Ibid., (139).

                          [1] Ibid., (140).

                          [1] Ibid., (27).

                          [1] Ibid., (38).

                          [1] Ibid., (2).

                          [1] Ibid., (34)

                          [1] Ibid. (49).

                          [1] Ibid., (56).

                          [1] Ibid. (145).

                          [1] Ibid., (140).

                          [1] Ibid., (148).

                          [1] Stechyson, Natalie. “Court case casts pall on Canada’s sterling election reputation.” The Gazette, October 21, 2012.

                          [1] Ibid.,

                          [1] European Forum for Democracy and Solidarity Website. “Jordan Update.” July 27, 2012.  1.

                          [1] Kristen Kao,“Jordan’s Ongoing Election Law Battle.” Carnegie Endowment for International Peace, SADA Website, July 5, 2012.

                          [1] European Forum for Democracy and Solidarity Website, 3.

                          [1] Kristen Kao.

                          [1] Ibid.

                          [1] Curtis Ryan, “Jordan's high stakes electoral reform.” Foreign Policy website, June 29, 2012.

                          [1] Kristen Kao.

                          [1] Ibid.

                          [1] Curtis Ryan, “Jordan's high stakes electoral reform.”  

                          [1] BBC News Website, “Jordan teeters on edge of political instability.” October 27, 2012.

                          [1] The Economist Website.  “Our article on Jordan.” October 26, 2012.

                          [1] Jamal Halaby, “Jordan's king pushes elections as reform path.” Yahoo News Website. October 23, 2012.

                          [1] Curtis Ryan, “Jordan's high stakes electoral reform.”  

                          [1] Mohammad Yaghi, “Jordan’s Election Law: Reform or perish?”  Fikra Forum Website, October 4, 2012. 

                          [1] Curtis Ryan, “Jordan's high stakes electoral reform.”  

                          [1] BBC News Website, “Jordan teeters on edge of political instability.”

                          [1] Democracy Digest Website. “Jordan: dialog, not regime change, the route to democratic reform?” October 9, 2012.

                          [1] Hasan Muawad, “Jordan needs electoral law reform, says Brotherhood deputy.” Al Arabiya, November 2, 2012.

                           

                           

                          Canada: Considering the Right to have a Vote Counted and Procedural Non-compliance at Voting Stations.

                          This case study considers the intersection of enfranchisement including the right to have that vote counted, safeguards to the integrity of the electoral process, judicial interpretation of the legal framework for elections and election administration, all in the context of a consolidated democracy.

                          The 41st Canadian General Election took place on May 2, 2011. In that election, the successful candidate in the electoral district of Etobicoke Centre won by a plurality of 26 votes in the “first past the post” election.  The second place candidate applied for an annulment of the election as permitted by s.524(1)(b) of the Canada Elections Act (CEA) citing “irregularities” that “affected the result” of the election.  The matter was heard before the Ontario Superior Court of Justice which granted the application, setting aside 79 votes which was greater than the plurality.  Several actions where then brought before the Supreme Court of Canada (SCC) in Opitz v. Wrzesnewskyj, including an appeal of the Ontario court decision by the initial first place candidate, a cross appeal by the candidate initially in second place, and a motion by the federal Chief Electoral Officer to introduce new evidence. Ultimately, both the cross appeal and motion to introduce fresh evidence were dismissed. The appeal of the Ontario Court decision is examined further in this case study. The SCC delivered its decision on October 25, 2012. To the following: An application was then made to the Supreme Court of Canada (SCC) in Opitz v. Wrzesnewskyj appealing the Ontario court decision by the initial first place candidate. A cross appeal was also brought by the candidate initially in second place. Ultimately, the cross appeal was dismissed. The appeal of the Ontario Court decision is examined further in this case study. The SCC delivered its decision on October 25, 2012. The reason for the changes are: (i) the motion to adduce fresh evidence was not an "application" on the same scale as the appeal and cross-appeal, and in fact, the majority of the court chose not to rule on it (as opposed to dismissing it).

                          In determining whether to annul an election, the SCC accepted the “magic number test” which provides that an election should be annulled if the number of invalid votes is equal to or greater than the successful candidate’s plurality; although the court acknowledged that another more realistic method might arise in the future.[i] At the core of the appeal was an interpretation of what constitutes “irregularities…that affected the result of the election.”  Unfortunately the CEA does not define the term “irregularities” in this context. Nevertheless, the SCC in a 4-3 ruling allowed the appeal and as a result the candidate who initially had the plurality of votes following the election, retained the victory.  What makes this decision so instructive and fascinating is the discussion in the judgement of both the majority and dissenting opinions as they establish very different perspectives on what constitutes an “irregularity…that affects the result” of an election.  This discussion goes to the very heart of democratic practices.

                          Essentially, the appeal was grounded in a number of procedural errors by poll officials at the voting place.  No allegations of fraud or such wrongdoing were made in the case.  Should votes cast be set aside because the process was not followed properly by officials and what is the test?  Referring to earlier decisions of lower courts, in effect the majority decision differentiated that:

                          Under the strict procedural approach, a vote is invalid if an election official fails to follow any one of the procedures aimed at establishing entitlement. Under the substantive approach, an election official’s failure to follow a procedural safeguard is not determinative. Only votes cast by persons not entitled to vote are invalid. The substantive approach should be adopted, as it effectuates the underlying Charter right to vote, not merely the procedures used to facilitate that right.[ii]

                          As might be expected in the case of a SCC decision, both the majority and dissenting arguments are precise and have merit.  It seems that each view, in its own way, seeks to balance enfranchisement with the need to safeguard the process.

                          In the majority, the SCC established a two part test requiring an applicant to demonstrate that a breach of a statutory provision intended to establish the voter’s entitlement to vote had taken place and that a person who voted was in fact not entitled to vote[iii] (i.e. at least 18 years of age, a Canadian citizen and resident in the electoral district). Together, these two aspects if satisfied would establish an “irregularity” that “affected the result” of the election. This reflects the “substantive” approach favoured by the majority.

                          In dissent, as presented by the Chief Justice, the argument was advanced that the “entitlement” to vote was much broader than suggested by the majority and in fact was comprised of three prerequisites: qualification (Canadian citizen and 18 years of age or older), registration (generally either by being on the list of electors or filing a registration certificate) and identification (properly identified at the polling station whether by providing appropriate pieces of identification or by taking an oath and being vouched for by another elector).[iv]  The registration and identification requirements were seen as fundamental safeguards for the integrity of the electoral system.[v] 

                          The majority view begins from the perspective that an election should not be set aside lightly; a view that is echoed in international election standards.  The majority also began their analysis with Section 3 of the Canadian Charter of Rights and Freedoms which states, “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”[vi] A fundamental purpose of the CEA therefore is to give effect to universal suffrage.  However, “While enfranchisement is one of the cornerstones of the Act, it is not free-standing. Protecting the integrity of the democratic process is also a central purpose of the Act.”[vii]

                          Nevertheless, administrative error should not be easily allowed to dismiss or undermine the fundamental right to vote; “If elections can be easily annulled on the basis of administrative errors, public confidence in the finality and legitimacy of election results will be eroded.”[viii] And errors there will be.  The majority recognized that by definition, the workforce at an election is broad and of limited experience simply because of the nature of the event and so mistakes will happen.  This is not to say that procedures should not be followed as they do serve an important purpose safeguarding the integrity of the process and electoral authorities should do all that is possible to see this happens.  While, “The procedural safeguards in the Act are important; however, they should not be treated as ends in themselves.”[ix] The bottom line seems to be that the right to vote established in the Charter of Rights and Freedoms is paramount.  The majority could not countenance the disfranchisement of every voter who voted as a consequence of setting aside a small number of votes where procedural errors took place. In addition, if procedural errors can be the basis of the annulment of an election, then the majority anticipated with concern that lightly overturned elections could increase the “margin of litigation” meaning election outcomes close enough to result in post-election legal action[x] even as losing candidates use the process to find technical administrative error seeking to get a second chance.[xi]  Unless an applicant can establish that a procedural breach occurred and establish a vote was cast by someone not entitled to vote then the vote will be counted.

                          The dissenting opinion identified other core objectives of the CEA and disagreed that voter “entitlement” was so narrowly defined.  In the dissenting view, “The overarching purpose of the Act is to ensure the democratic legitimacy of federal elections in Canada… A second and complementary objective is to ensure that people who are not qualified to vote do not do so… A third objective is to promote efficiency and certainty in the electoral process.”[xii] As a requisite for the “entitlement” to vote, the CEA provides that registration and identification must also be established for a good reason, namely, “They are fundamental safeguards for the integrity of the electoral system.”[xiii]  In dissent it was argued that without such safeguards, public confidence in the electoral system would suffer.  Taken together it was the conclusion of the dissenting view, “that “irregularities” under s. 524(1) (b) should be interpreted to mean failures to comply with the requirements of the Act, unless the deficiency is merely technical or trivial.”[xiv] Not all procedural errors would result in votes being set aside; non-compliance of a “technical or trivial” nature would not be set aside as “irregularities”.  The onus, the minority agreed, rests with the applicant to establish “irregularities” and that the “irregularities” affected the result of the election sufficient to annul the election. 

                          So depending on your point of view, this SCC decision either reaffirms the primacy of the fundamental right to universal suffrage or the decision sets the system on a “slippery slope” where system integrity may be eroded.  In the days after the decision, the press reflected both points of view.  Either way, however, there are a number of instructive aspects to this decision in terms of the legal framework for elections.

                          First off, it should be noted that the system allowed for an expedited consideration of the application for annulment of the election right up to the highest court in the land. Secondly, although there are differing opinions about the substance of the decision, there is broad acceptance of the independence of the SCC dealing with such an essentially partisan matter as the election of a Member to the House of Commons. The well-reasoned, albeit widely diverging, views of the court also may prompt a meaningful discussion about what the law should require and possibly result in legislative amendments. In late September 2012, Chief Electoral Officer Marc Mayrand is reported to have said, “While we can make administrative changes to enhance our processes, these likely won’t be enough. Legislative changes may also be necessary to respond to Canadians’ concerns regarding the electoral process and make the system less prone to errors.”[xv]

                          Particularly in matters as ultimate as the potential annulment of elections, the legal framework should strive to be as clear as possible when defining the grounds. If that is not the case then as this appeal demonstrates, even judges of the highest court may arrive at fundamentally different interpretations. 

                          There are also lessons to be learned regarding the recruitment, training, supervision and audit of election day workers; matters which Elections Canada already appears to have well underway.  It was reported that in May 2012, Chief Electoral Officer, Marc Mayrand, “told the House of Commons Procedure and House Affairs Committee that Elections Canada will have to revisit its processes for recruiting and training workers, and their compliance with procedures at polling stations.”[xvi]

                          Political party and candidate representatives at the voting place will also continue to play an important role. At the end of the day, however, any electoral process will include some mistakes by officials and the key is to ensure that the legal framework is as precise as possible and provides an efficient, and clear means for resolving disputed elections in a way that will maintain public confidence in the legitimacy of the election.



                          [i] Supreme Court of Canada.  Opitz v. Wrzesnewskyj. 2012 SCC 55, (71-73).

                          [ii]Ibid.,  6.

                          [iii] Ibid., (58-59).

                          [iv] Ibid., (139).

                          [v] Ibid., (140).

                          [vi] Ibid., (27).

                          [vii] Ibid., (38).

                          [viii] Ibid., (2).

                          [ix] Ibid., (34)

                          [x] Ibid. (49).

                          [xi] Ibid., (56).

                          [xii] Ibid. (145).

                          [xiii] Ibid., (140).

                          [xiv] Ibid., (148).

                          [xv] Stechyson, Natalie. “Court case casts pall on Canada’s sterling election reputation.” The Gazette, October 21, 2012.

                          [xvi] Ibid.

                          Egypt: Parliamentary Elections and the Judiciary

                          Parliamentary elections in Egypt held between November 2011 and February 2012 demonstrate the critical importance of the legal framework in the conduct of genuine elections and the transition to democracy.  Elections to the lower house, the People’s Assembly (PA), also resulted in judicial review of the electoral laws and ultimately a decision setting aside the election.

                          Following a period of popular demonstrations, and on February 11th, 2011, the resignation of President Hosni Mubarak, Egypt’s military Supreme Council of the Armed Forces (SCAF) established itself as the transitional authority and suspended the constitution. Parliament was dissolved and elections would take place for the PA as well as the upper house, the Shura Council (SC).  Presidential elections would follow. In addition, a Constituent Assembly (CA) would be formed and tasked with drafting a new Constitution.

                          The electoral system established by the Law on the People’s Assembly (LOPA) in October 2011, provides for the PA to be elected in a mixed system where 2/3 of the 498 seats would be elected based on a closed “party list” proportional representation (PR) system and the remaining third of seats elected in a majoritarian system of two members per constituency (Individual Candidate seats or IC). However, under the system party candidates were allowed to run in individual candidacy races and in effect, this resulted in political party candidates being able to challenge all elected seats in parliament, while individual candidates could only challenge one-third of the seats.[i] It would be this provision which would ultimately result in the PA election being set aside. 

                          Observing the PA election, the Carter Center noted that while there were shortcomings in the legal framework, election violations and weaknesses in administration, “the results appear to be a broadly accurate expression of the will of the voters.[ii] However at the same time, the legal restrictions on individual versus party-backed candidates had the effect that only 15 percent of individual candidate seats were won by candidates not affiliated with any party. [iii]

                          The PA election was challenged in court on the basis that it was unconstitutional that party candidates could challenge individual candidate seats but individual candidates could not challenge party-backed PR seats. On June 14th, 2012 the Supreme Constitutional Court (SCC) ruled the PA election to be invalid citing three unconstitutional articles of the LOPA and one of Decree 123/2011. The essential fact found unconstitutional by the SCC was that the LOPA was discriminatory by allowing party-backed candidates to challenge for individual seats but not allowing associations of independent candidates to challenge for the PR seats.[iv] 

                          While the second round of the Presidential vote was only days away, the SCAF issued a decree dissolving the PA. Once elected in June 2012, President Mohamed Morsi, attempted without success on July 8th to reinstate the PA on an interim basis by annulling the initial decree of the SCAF. As a result, new elections for the PA are required.

                          Subsequently, in September 2012, the Supreme Administrative Court (SAC) ruled to uphold the decision of the SCC to dissolve the PA but the political debate continues. A legal adviser to the Freedom and Justice Party, which held a plurality in the dissolved People’s Assembly, describes the ruling as a ‘catastrophe in the history of the Egyptian judiciary’ while others, including former presidential candidate Amr Moussa called for respect for judicial rulings. [v]

                          Significantly, setting aside of the PA election, a resulting dispute with the President and political controversy have been able to be accommodated even though in a transitional environment. In no small part this appears to be due to the role of judges, “and because of the existence of Egypt’s well-established and well respected courts.[vi] The courts also seem determined to face critics as did the SCC responding by denouncing, “’unacceptable interference’ in the court's work, insisting that all the court's verdicts were based on constitutional legitimacy, refuting claims they were politically biased.”[vii]

                          It is noteworthy that the elections to the SC are also being challenged before the courts on basically the same provisions as were found unconstitutional in the case of the PA elections. This leads to speculation, “it can be expected that a similar decision will be reached in that case, as was reached in the case concerning PA elections.”[viii] If the challenges are similarly upheld then new elections would also be required for the SC.  

                          The CA itself is also the subject to numerous court challenges to its validity.  Initially, per the Constitutional Declaration, the CA must finalize its constitutional proposal before December 11, 2012 following which a referendum would be held within 15 days. In October 2012, the legal challenges were referred for decision to the SCC and so the timetable for constitutional reform may be impacted as well as the timing of the parliamentary elections.

                          Taken together the impact of legal challenges on the legal framework is very significant:

                          These factors mean that it remains difficult to predict with confidence how the next phases of Egypt’s transition will unfold. Nevertheless, whatever the future holds for the constitutional drafting process, at some point in the not too distant future, it will be necessary to revise the Law on the People’s Assembly (LOPA). Potentially this will re-open the thorny question of the electoral system.[ix]

                           

                          The role of the judiciary in interpreting the legal framework remains critical and in the case of Egypt in particular, “With the nation increasingly polarised, and mistrust between Islamists and other groups growing, Egypt's judiciary has emerged as a final arbiter for settling most disputes.[x]

                          This case study also reinforces the notion that the legal framework does not exist in a vacuum, as electoral system revisions, “were not made in a static environment, but rather one in which the roles and powers of various political, government and civil actors were constantly being challenged and redefined.[xi]



                          [i] International Foundation for Electoral Systems (IFES), ”Elections in Egypt: Implications of Recent Court Decisions on the Electoral Framework.” (Washington, D.C.: IFES Briefing Paper, August, 2012), 3.

                          [ii] The Carter Center, Carter Center Election Witnessing Mission: Egypt 2011/2012 Parliamentary Elections. Preliminary Report on all Three Phases of The People’s Assembly Elections (Atlanta, GA: News, The Carter Center, January, 2012), 1.

                          [iii] IFES, ”Elections in Egypt: Implications of Recent Court Decisions on the Electoral Framework.”, 3.

                          [iv] Democracy Reporting International (DRI), “What Electoral System for Egypt?” (Briefing Paper 32, Democracy Reporting International, October 2012), 2.                                                       

                          [v] Egypt Independent Website. “Administrative court upholds ruling to dissolve Parliament.” Edited translation from Al-Masry Al-Youm, September 23, 2012.

                          [vi] The Carter Center, Carter Center Election Witnessing Mission: Egypt 2011/2012 Parliamentary Elections. Preliminary Report on all Three Phases of The People’s Assembly Elections, 15.

                          [vii] MSN News Website, “Egypt court refuses reinstatement of dissolved lower house of parliament.” September 23, 2012.

                          [viii] IFES, ”Elections in Egypt: Implications of Recent Court Decisions on the Electoral Framework.”, 3.

                          [ix] DRI, “What Electoral System for Egypt?” 1.

                          [x] The Guardian. “Egypt constitution decision referred to country's highest court.” October 23, 2012.

                          [xi] IFES, ”Elections in Egypt: Implications of Recent Court Decisions on the Electoral Framework.”, 10.

                          Fiji and the Solomon Islands: Political and Electoral Reforms

                          By Kevin Deveaux and Tim Baker

                           

                          Parliamentary elections in the Pacific Island region have been disrupted by a series of political and social challenges in recent years. In 2014, the parliaments of Fiji and the Solomon Islands are experimenting with the implementation of more democratic electoral processes, inclusive of modified and revised electoral laws and enhanced public and civic access to their respective parliaments.

                          2014 elections are an important opportunity for both countries to more fully and equitably choose their elected representatives as part of a more open and democratic process.  This process is not without challenges and this comparative case study addresses some of the challenges and opportunities for both countries during this current election cycle.  There are also a number of common challenges facing these two countries and indeed many of the smaller island nations which collectively comprise the Small Island Developing States (SIDS). [1]

                          In the Solomon Islands a decade after a period of political upheaval and social unrest that resulted in the government’s request for direct Australian intervention to restore political stability and social order, [2] there is evidence of incremental stability on the political landscape.  The electoral system was recently provided additional democratic structure through passage of the Electoral Integrity Act (2014) [3] at the closure of the 9th Parliament since full independence from Britain.

                          Fiji, which has been governed by an unelected government since 2006, recently held parliamentary elections under an electoral system based on an open, national list proportional representation system. This system is dramatically different from previous systems used in the country and is an attempt to address ethic divisions that have been entrenched in the country’s previous political system.  Likewise, a series of political reforms enacted in Parliament may help foster a more democratic system of governance in this Pacific island nation.

                          The Solomon Islands

                          The Solomon Islands is a constitutional monarchy with Queen Elizabeth II as head of state who is represented in the country by the Governor General.  The national parliament is a unicameral legislature with a representative structure according to the Westminster system.  General elections are held every four years utilizing the "first-past-the-post" electoral system.  The country is divided into 50 single member constituencies, and elections are conducted with universal adult suffrage for any citizen over the age of 18 who is not a convicted criminal.  Any citizen over the age of 21 can run either as a member of a registered political party or as an independent candidate. The last parliamentary elections for the 9th Parliament were held in 2010 and the next round of elections to determine representation for the 10th Parliament is scheduled for late in calendar year 2014. [4]

                          Since independence, there has been a demonstrated and incremental series of steps to counter the violence which resulted in political upheaval and ethnically motivated conflict. Beginning in 1997 with the election of Bartholomew Ulufa'alu as Prime Minister, a series of political challenges including a motion of no confidence, is primarily the result of an ongoing social conflict between the indigenous people of the main province of Guadalcanal (the Isatubu Freedom Movement/IFM) and the Malaitans (Malaitan Eagle Force/MEF), the latter group accused by the former of taking jobs and land rights from them.  After at least 20,000 Malaitans were forced off the island, the MEF was formed. Utilizing illegal arms and in some cases arms excavated from WWII-era US Army bunkers on the main island, the MEF and IFM engage in open urban warfare. In June 2000, an attempted coup d’etat resulted in the MEF taking Prime Minister Bartholomew Ulufa'alu hostage. He was subsequently forced to resign and was replaced by Mannasseh Sogavare. A peace treaty in October 2000 was followed by a series of political transitions and continued social unrest with the eventual establishment, by the Government’s request, of an Australian-led peace-keeping mission and the creation of the Regional Assistance Mission to the Solomon Islands (RAMSI) in 2003. [5]

                          During the years of political and social unrest, democratic processes in Solomon Islands suffered. Parliamentary sittings were often brief and irregular. Attendance by Members of Parliament (MPs) was poor, and many of the key activities expected from Parliament including its primary legislative, representative and oversight functions were lacking. Through the ongoing effort of international organizations cooperating with the SI government and other institutions, reform has been incrementally instituted. This includes programs initiated by the UNDP through the cooperative parliamentary strengthening program, [6] public accountability through external watchdog organizations such as Transparency International which seeks to hold candidates and subsequently elected MPs accountable to the public, [7] and the most recent effort to establish a political party institutional structure and Electoral Code of Conduct in 2014.  Likewise, the RAMSI development assistance program included components intended to enhance the democratic transition process while providing parliament and prospective MPs with electoral campaign assistance.  

                          The cooperative RAMSI Parliamentary Strengthening Project was delivered in partnership with the United Nations Development Program (UNDP). During three phases having started in 2010 and ongoing until 2015, the project seeks to enhance the procedures within the Solomon Islands National Parliament Office, improving the performance of Parliamentary Committees, enhancing the way Solomon Islands Parliament communicates and documents the work undertaken, and improving the Parliament’s corporate services. Results to date include:

                          • an increase in the number of Parliamentary Committee hearings from seven in 2004 to well over 100 in recent years;
                          • strengthened procedural support services for the Speaker, Clerk and MPs, setting precedents for parliamentary business and the application of Standing Orders;
                          • establishment of improved library, research and IT facilities for MPs;
                          • the installation of sound system in the parliamentary chambers, which has significantly improved radio and television broadcasts of parliamentary sittings; and
                          • launch of a parliamentary website, which includes daily Hansard documents for download.

                          In addition, international development assistance has focused on improving the capacity and function of the Solomon Islands Electoral Commission while seeking to enhance voter outreach, registration processes, and voter awareness of the issues relevant to their daily lives as part of the electoral campaign. Accomplishments to date include:

                          • In 2010, the Solomon Islands Parliament passed an amendment to the country’s Electoral Act, providing the Electoral Commission with better powers to direct electoral officials.
                          • Improved ballot security procedures were implemented, such as indelible ink and ballot box security seals, which have helped to ensure that voters only vote once, and that ballot papers are kept safe and secure.
                          • Solomon Islands voters are now significantly more aware of their electoral rights and obligations following extensive voter awareness activities by the Solomon Islands Electoral Commission. [8]

                          A nationwide Biometric Voter Registration System is being implemented for the 2014 elections which will ensure a new national electoral roll is in place for the 2014 national elections. [9] Nationwide parliamentary elections are set to take place on November 19, 2014.

                          Conclusion

                          While the process toward a fully-functional and democratic electoral system inclusive of broad representation and equal access to the people’s representative body known as parliament is very much ongoing in the Solomon Islands, there are a number of noteworthy successes evident since the period of post-colonial violence and upheaval. As in Fiji, there is a tendency towards tribal chiefs as traditional political leaders, especially on more isolated islands.  However, the ongoing effort initiated in large part by the successive governments of the island—particularly over the past decade—has resulted in meaningful and potentially sustainable political and electoral reform.

                           

                          Fiji [10]

                          Since its independence in 1970, Fiji has suffered from periodic interruptions in its constitutionally mandated democratically elected Government. Following two military interventions in 1987, democratic government was suspended until after the constitution was amended in 1990 and elections were held in 1992. The constitution was further amended in 1997. In 2000 there was a third military intervention that was overturned by the country’s Supreme Court in 2001, resulting in elections that same year. 

                          In 2006, only a matter of months after national elections were held, a fourth military intervention was carried out that resulted in a suspension of democracy in Fiji until the recent election in September 2014. 

                          Given this fragile nature of governance in Fiji, it is important to understand the drivers of this fragility. Though detailed analysis is limited, those that study Fiji are clear in stating that ethnic and religious divisions are the primary cause of the four military interventions and attempts to address this divide have resulted in the various constitutions that have been ratified since independence. Less defined is the socio-economic divide that underlines the ethnic divisions, for there are clear class tensions between Indo-Fijians (approximately 37% of the population) and Indigenous-Fijians (just over half the population of Fiji).

                          Observers of Fiji have noted these divisions as a cause of the fragility. Dr. Paul Buchanan, in an online assessment posted in January 2012, [11] noted two key reasons for the divide. First, there is a clear socio-economic divisions between rural and urban dwellers in Fiji, with a relatively high level of income and standard of living for those residing in urban centres, while those living in rural areas are bound to more traditional customs and less likely to have access to education and other social services. It is also important to note that most Indo-Fijians live in the urban centres and the vast majority of those living in rural areas are Indigenous-Fijian. 

                          As noted by Buchanan, Indo-Fijians have become a mercantile class, while Indigenous-Fijians tend to work in government and the military. This has led to many disputes over the ownership of land and economic interests amongst the communities.

                          In addition, there is a long history in Fiji of a “warrior culture” in which tribal chiefs dominate. Until recently, the Grand Council of Chiefs was recognized as a constitutionally entrenched political entity, given their appointment to and dominance of the Senate. This dominance by strong, militaristic leaders may explain the willingness of the population to accept military intervention over democratically elected governments.

                          These drivers of fragility are important to understand as one considers the development of a new electoral system in Fiji, for it was past governments, elected along ethnic lines, that has been cited, in part, by military officers as their rationale for intervening in the democratic processes of Fiji. 

                          In the intervening eight-year period between elections (2006-14), the Government of Fiji attempted to restructure the country to eliminate the factors that resulted in previous suspensions of democracy and to avoid the challenges that prevented the country from moving forward with its development. 

                          The key indication of the desire for a new political system took place in August 2013, with the ratification of the Constitution of Fiji (2013). Where previous constitutions attempted to address the obvious fragility within the country by catering to a confessional system of politics – assigning seats in parliament based on ethnicity and proportionality – the 2013 document went in a different direction, resulting in a “one Fiji” approach.

                          In particular, the new Constitution of Fiji created an electoral system based on one national constituency, instead of either single member or multi-member constituencies that were the norm previously. It also required all political parties to submit one national list of candidates. This system of proportional representation is an “open” system, meaning voters vote for candidates and not parties when they cast their vote. This allows candidates who may wish to remain independent or who are further down on a party list to be elected where they have sufficient personal support.

                          The electoral system of Fiji is based on two laws. In 2013 the Government adopted the Political Parties (Registration, Conduct, Funding and Disclosures) Decree. [12] The Electoral Decree [13] followed this in March 2014. These decrees established the legal framework for the elections that took place later in September 2014. It also provided greater detail as to how the Government would redefine politics through the electoral system.

                          Political Parties
                           

                          With the adoption of the Political Parties Decree, the Government of Fiji signaled a desire to have political parties that would meet minimum international standards and promote political harmony (vs. fragility). The decree imposed certain requirements on parties:

                          • Registration: Political parties must be registered, which includes certain minimum requirements, such as:

                          - the need for at least 5,000 registered voters as members. These members must come from all four regions of the country (Central Division; Northern Division; Western Division; Eastern Division); and

                          - maintaining branch offices in each of the four regions in the country.

                          • Asset Declaration: Registered parties must provide annual declarations of their assets and must maintain audited records of their finances that are available for inspection.
                          • Donations: Limits were placed on donations to political parties. No donations can be obtained from corporations or other legally established organizations. In addition, all donations to parties must be made public annually.
                          • Candidate Declarations: Candidates for political parties must make declarations with regard to their assets within 30 days of their nomination being confirmed.
                          • Code of Conduct: The Decree provides a Code of Conduct to which all political parties must adhere. The Code includes provisions such as:

                          - Promote national harmony and democratic values;

                          - Respect and promote human rights

                          - Ensure party elections are free and fair and internal affairs are transparent and accountable; and

                          - Not promoting religious or ethnic hatred

                          Elections
                           

                          The Electoral Decree establishes the framework for the election of the 50 member unicameral parliament. [14] The Decree provides for a system in which there is a Supervisor of Elections who is in charge of the Fijian Elections Office, which is responsible for the registration of political parties and the implementation of elections, both general (once every four years and special (as required). The Supervisor and the Fijian Elections Office report to the Fijian Electoral Commission, which is responsible for the overall management of elections in Fiji.

                          The Fijian Elections Office must conduct its affairs in an open and transparent manner. It has certain guarantees with regard to financial independence, including the approval of one multi-year budget per election cycle.

                          Elections are conducted on one polling day for the entire country. Voters who have been registered are assigned a polling station to which they must attend to vote, unless they are using alternative voting methods, such as mail-in ballots or overseas voting. A Presiding Officer is assigned to each polling station (and an assistant, if necessary) that is responsible for the management of the voting on polling day. Each registered political party has the right to have one polling agent who has certain rights with regard to observing the activities at the station.

                          With regard to establishing an electoral system that prevents fragility, the system has certain aspects that address some of the drivers of fragility:

                          • One National Constituency: Moving away from the traditional Westminster approach to elections (i.e. – first past the post, single member constituencies), Fiji now has one national constituency and all votes are counted in one national tally.
                          • Communication and Campaign Limits: In the 48 hours before polling day no campaigning is allowed, no advertisements are allowed and media have limits on what they print. No polls can be published within seven days of polling day.
                          • Foreign Funding: No foreign funding can be provided to political parties or civil society groups engaged in voter education once the election writ has been issued.
                          • Party Candidate Lists: Each registered political party must submit a list of candidates in order of priority (with the leader of the party being the first ranked candidate).
                          • Open List: Notwithstanding that parties provide a list of candidates based on rank, the system allows for candidates to be voted for directly and a candidate that achieves more votes can be elevated in priority within the party list.
                          • Threshold: Once all the votes have been counted, those parties and independent candidates that have not received 5% of the total vote are discarded, along with any votes for them.
                          • Seat Allocation: Once the votes of those parties that have not met the threshold have been discarded, the remaining parties have their total votes calculated as a percentage of the remaining total and the 50 seats in the parliament are allocated in accordance with that percentage.

                          On September 17 2014 the people of Fiji voted for the first time under this electoral system. Only three political parties (and no independent candidates) received enough votes to surpass the 5% threshold. One political party – Fiji First – received nearly 60% of the total vote (rising to 62% when the non-threshold votes were discarded), allowing it to be allocated 32 seats in the parliament. The second party – the Social Democratic Liberal Party (SODELPA) – received 28% of the total vote (rising to 30% after discarded votes) and received 15 seats in the parliament. The remaining three seats were allocated to the National Federation Party (NFP).

                          Eight women were originally elected to the new parliament (5 – Fiji First; 2 – SODELPA; 1 – NFP). However, in Fiji the Speaker of the parliament is a non-MP and one of the Fiji First women MPs resigned from her seat to be elected Speaker (the first female Speaker in the Pacific Region).
                          The MPs in the parliament broadly reflect the ethnic diversity of the country, with Indigenous Fijians making up more than 60% of the MPs and Indo-Fijians making up 30% of the MPs. MPs come from all geographic regions of the country.

                          Conclusion

                          What conclusions can we draw from this first election under the new electoral system? First, the system resulted in a stable government with one party winning a majority of the votes and the seats in the parliament. [15] But with an opposition with more than one-third of the seats, the system has not allowed the domination of one political party.

                          Second, the election was conducted with almost no electoral violence or major incidents of campaign conflict. The parties generally abode by the Code of Conduct and participated fully in the election, including most parties having polling agents at most polling stations.

                          Third, what is key from the results is that the electoral system has established a parliament in which the diversity of the country is presented through a stable system with three parties being represented in the chamber. Given the ongoing rules for political parties under the Political Party Decree and provisions of the Standing Orders of the Parliament of Fiji, there is hope that the political system will promote a consensus amongst the various political actors and thus reduce the fragility that has to date been inherent in the previous political and electoral systems of Fiji.

                           


                          [1] See SIDS/UN website: http://www.sidsnet.org/.  Accessed on November 5, 2014.

                          [2] The Australian-led Regional Assistance Mission to the Solomon Islands (RAMSI): http://www.ramsi.org/.  Accessed November 5, 2014.

                          [3] Solomon Islands Electoral Integrity Act (2014)/PDF: http://www.parliament.gov.sb/files/legislation/9th%20Parliament/Acts/2014/Political%20Parties%20Integrity%20Act%202014.pdf.  Accessed on November 5, 2014.

                          [4] See the official website for the Parliament of the Solomon Islands: http://www.parliament.gov.sb/index.php?q=node/124.  Accessed November 3, 2014.

                          [5] See BBC SI Timeline: http://www.bbc.com/news/world-asia-15897585 and Government of Australia SI: http://www.dfat.gov.au/geo/solomon_islands/solomon_islands_brief.html.  Accessed on November 5, 2014.

                          [6] See UNDP Solomon Islands PSP: http://www.parliament.gov.sb/index.php?q=node/177.  Accessed on November 5, 2014.  

                          [7] Transparency International/Solomon Islands: http://www.transparency.org/whoweare/contact/org/nc_solomonislands/2/.  Accessed on November 5, 2014.

                          [8] See RAMSI/SI, “Strengthening the Electoral System”:  http://www.ramsi.org/works/machinery-program/.  Accessed on November 5, 2014.

                          [9] Solomon Islands Electoral Commission website: http://www.siec.gov.sb/.  Accessed on November 5, 2014.

                          [10] Some of the content of this part of the paper is drawn from earlier work by the author as part of report for UNDP Pacific Centre.

                          [11] 36th Parallel Assessments: http://36th-parallel.com/2012/01/13/fiji-country-overview/.

                          [12] Political Parties (Registration, Conduct, Funding and Disclosures) Decree No. 4 of 2013: http://www.electionsfiji.gov.fj/wp-content/uploads/2013/04/PoliticalPartiesDecree20131.pdf.

                          [13] Electoral Decree No. 11 of 2014: http://www.electionsfiji.gov.fj/wp-content/uploads/2014/03/Electoral-Decree-2014.pdf.

                          [14] Fiji has maintained a Westminster parliamentary system with a President, having nominal authority, being elected by the parliament.

                          [15] This is somewhat unusual for a national list electoral system. See: http://www.adamsmith.org/research/articles/the-impact-of-proportional-representation-and-coalition-government-on-fiscal.

                           

                          Case Study Authors

                          Kevin Deveaux: A Canadian lawyer (LLB, 1989) and former parliamentarian (having been elected four times), Deveaux provides a practical perspective with regard to national politics and the engagement of citizens. He has worked for the National Democratic Institute for International Affairs (NDI) in the Balkans and the Middle East. More recently Deveaux was UNDPs global Parliamentary Development Policy Adviser as part of the Democratic Governance Group based in New York. His work included the management of a global programme, including direct engagement with parliaments and parties in the Pacific Region and the Caribbean. In particular, Deveaux has spent significant time in Fiji in 2013-14, supporting UNDP in the re-establishment of the national parliament. Deveaux has also been engaged in electoral observation mission in Egypt and Palestine on behalf of NDI.

                           

                          Tim Baker: Mr. Baker (MA, 1996) has been a global adviser on issues related to civil society, elections and political governance and civic engagement for 20 years. He has worked extensively in the Balkans, the Caucuses, Iraq and Afghanistan with the OSCE, NDI and the UNDP. He has worked with numerous NGOs focused on electoral process, election monitoring, and electoral supervisory body capacity-building.  In 2013, he worked with the Liberian Elections Commission and the UNDP Elections Unit to research and draft an options paper for civic and political party engagement during the election cycle.  Prior work includes research, writing, and editing on the ACE web portal.   Baker worked with CDHRF (Kosovo) and ISFED (Georgia) to build internal capacity of these nationwide election and parliamentary monitoring NGO networks on strategic planning, staff capacity building, election monitoring training, and organizational sustainability.  Most recently, he worked as a consultant for the UNDP in the Solomon Islands to conduct a comprehensive evaluation of the parliamentary strengthening project in Honiara, Solomon Islands in preparation for the forthcoming parliamentary election.

                          Ghana: The Role of the EMB in Electoral Reform

                          By Theophilus Dowetin

                          1. Background

                          Electoral reforms in Ghana are undertaken on a continuous basis, especially before or after major activities like voter registration, voting and post-election evaluation where the effectiveness of certain administrative and legal provisions are assessed and reforms are initiated. Different electoral laws have been enacted under different governments over the years, in the form of articles, decrees, constitutional and legislative instruments. The Electoral Commission (EC) is a body, which has the sole mandate of and is legally responsible for managing all of the elements that are essential for the conduct of elections in Ghana. Electoral reforms leading to the 2012 general elections and the post-election judicial review as well as preparations towards the 2014 local government elections present a unique character of the management of electoral legal reforms in the country. 

                          Reforms can be divided into two types: administrative and structural reforms. The former do not require changes in the law, while the latter is undertaken mainly through Constitutional Instruments (CI) by the EC which has adopted a professional approach to this mandate in the midst of political challenges. Electoral reforms in Ghana have generally emerged as a result of requests emanating from political parties, the government, constitutional provisions and exigencies of the times. 

                          Certain administrative reforms observed over the years include a change from the use of translucent ballot boxes to transparent ones and replacement of thumbprint voter identity cards with photo ID cards. Structural electoral reforms include an increase in the number of seats in Parliament as a result of a review in the boundaries of divisions of the country and the introduction of voting from abroad for Ghanaian citizens. There is a growing tendency to institute legal reforms of an administrative nature to manage certain electoral processes. The introduction of biometric technology in voter registration and verification processes serves as a good example of this trend.

                          2. EMB Role

                          Since the establishment of the Electoral Commission of Ghana in 1992, its functions, powers and structure in relation to developing a legal framework for conducting elections have remained unchanged as per Act 51 of the 1992 Constitution which states: 

                          “The Electoral Commission shall, by constitutional instrument (CI), make regulations for the effective performance of its functions under the Constitution or any other law”. 

                          It is pertinent that the mandate of the EC to engage in electoral legal reform processes is subject to Article 11(7) of the 1992 Constitution, which states that:

                           “Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall 

                          a) be laid before Parliament;

                          b) be published in the Gazette on the day it is laid before Parliament; and

                          c) come into force at the expiration of twenty-one  days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Order, Rule or Regulation by the votes of not less than two thirds of all the members of Parliament”.

                          A major electoral reform took place prior to the 2012 elections whereby the EC revoked the Public Elections Regulations of 1996. Facing strong pressure from the political parties and in an effort to reduce multiple registration and voter fraud, the EC decided to introduce biometric technology in voter registration and verification processes. This resulted in the amendment and revision of CI 12 to CI 72 to guide voter registration and the replacement of CI 15 with CI 75 for the conduct of general elections. CI 72 in part, states: 

                          “A registration assistant shall capture the biometric data, made up of the ten fingerprints and the photograph of the head, showing the bare face and two ears without any obstruction, of the applicant. The Electoral Commission shall make alternative arrangements in relation to biometric data for a person who has no fingers”.

                          Section 30 (1) of the CI 75 requires that:

                           “A presiding officer may, before delivering a ballot paper to a person who is to vote at the election, require the person to produce

                          a) a voter identification card or

                          b) any other evidence determined by the Commission"

                          Section 30 (2) goes on to indicate that,

                          “The voter shall go through a biometric verification process”.

                          Taking into account the above-mentioned provisions, a number of voters were not able to cast their vote due to the break-down of a number of verification kits in polling stations during the 2012 elections. Following a protracted legal battle in the Supreme Court in the aftermath of the 2012 elections, the EC resolved to undertake a reform of the “no verification no vote” issue based on public opinion. During the second quarter of 2014, the EC extended an invitation to the political parties to bring forth proposals in connection with this recommendation. Civil society organisations, individuals and groups have presented various suggestions for electoral reforms, which the EC has compiled and would make available to Members of Parliament for consideration.

                          Another instance of electoral legal reforms occurred in 2012 due to an indirect administrative action of the government of the day that triggered the need for the EC to initiate a reform. The issue related to constituency boundaries and the number of parliamentary seats for the general elections. The creation of 45 additional administrative districts by the government required the creation and increase of constituencies by the EC from 230 in 2004, to 275 in 2012 to meet election protocols, such as section 3 of the Representation of the People Law of 1992(PNDC Law 284), which states that:

                          “The boundaries of a constituency shall not fall within more than one region”. 

                          PNDC Law 284, Sections 3 and 4, lay down a comprehensive description of the role of the EC in the demarcation of polling divisions in the country. Section 3(1) states that “The Commission (referring to the EC) shall review the divisions of Ghana into constituencies, at intervals of not less than seven years or within twelve months of the publication of the enumeration figures after holding a census”.  Section 4(1) provides that “The Commission shall divide every constituency into polling divisions, and a polling division may be divided into as many polling stations, as the Commission may prescribe”. More importantly, Section 4(3) further indicates that “Whenever the Commission divides a constituency into polling divisions, or alters the number or area of polling divisions within a constituency, it shall, by legislative instrument, specify the polling divisions into which the constituency has been divided or the alteration which has been made”

                          The electoral boundary alteration has led to the alignment and increase in the number of polling stations from 21,004 in 2004 to 26,002 in 2012. This number is expected to increase to about 35,000 before the conduct of local government elections in the year 2014, in an effort to enhance efficiency of the administration and management of elections. 

                          In a related development, the Minister for Local Government, through Legislative Instrument (LI) 1983 of 2010, created new local government areas in Ghana. The new law triggered citizen discontent. As a result, a citizen-led process challenging the constitutionality of the LI 1983 was initiated under Article 41(b) of the Constitution according to which Ghanaians have a duty to uphold and defend the Constitution and the Law, as the LI 1983 was considered to infringe on the constitutional function of the EC. The Supreme Court in December 2011 unanimously declared the new Local Government LI 1983 null and void. The court in its ruling stated that it was illegal for the Local Government Minister and the Parliament to have created electoral areas. It was said to be in contravention of Article 45 (b) of the Constitution, to the extent that those Legislative Instruments purported to create electoral areas for various districts, municipalities or metropolis in Ghana. Article 45 (b) of the Constitution explicitly mandates the EC to demarcate the electoral boundaries for both national and local government elections. The Supreme Court added that it is only the EC that has a constitutional mandate to create electoral areas and that some of the areas created by the Minister which already existed in a CI 46 by the EC could hold.


                          The relevance of tenure of office

                          The 1992 Constitution as well as the Electoral Commission Act 451 of 1993 spells out the composition and structure of the EC. The Act 451 states that the EC shall consist of a chairman, two deputy chairmen, which are executive positions, as well as four other part-time members. Until members of the EC attain mandatory retiring age they enjoy security of tenure equivalent to that of Ghana’s judiciary. The security of tenure has afforded the EC of Ghana the opportunity to retain institutional memory and develop deep professional and technical knowledge that is necessary for undertaking legal electoral reforms. 

                           

                          The current chairman of the EC has served for a period of over twenty years, thereby gaining experience and building the needed personal relations with several election management bodies around the world, while he has assisted in undertaking major structural reforms. The security of tenure may also be a contributing factor to the high level of independence of the EC in the performance of its functions, which include undertaking legal reforms without fear or favour. A congenial relation and dialogue platform have also been built over the years between the EC and key stakeholders, in particular with political parties and the Parliament, who are key when new electoral laws are drafted by the EC.

                           

                           

                          Another interpretation of the role of the EC as per Article 51 of the Constitution is that the Parliament may make legislative instruments, but that the law from Parliament will not be binding on the EC until the EC has instituted a CI. In 2006, the PNDC Law 28 was amended by Act 699 Representation of the People (Amendment) Law (ROPAL) which confirmed that “A person who is a citizen of Ghana resident outside the Republic is entitled to be registered as a voter, if the person satisfies the requirements for registration prescribed by law”. Regarding the modalities for the implementation of the Act, the law states that “The Electoral Commission shall, by Constitutional Instrument, make regulations to prescribe the modalities for the implementation of this Act.” 

                          It was therefore expected that the EC would initiate steps towards the implementation of external voting for the first time in 2008. However, the Commission is yet to proceed with instituting a CI until it ensures that it has the required administrative and financial resources to do so.

                          3. EMB approaches

                          The Electoral Commission of Ghana has undertaken reforms with great involvement from a broad variety of stakeholders using dialogue and consensus building, consultation and respecting judicial review of its administrative procedures. This section overviews the key relationships and activities undertaken by the EC in collaboration with its partners in electoral reform processes – looking at the work performed by EC internally but also how the EC collaborates with political parties, the Attorney General, the Parliament, civil society and the public at large.

                          First and foremost, the EC internally carries out a number of activities in the area of electoral reform. Activities that are involved in an electoral law process include the assessment of the effectiveness of the EC’s programmes by analysing their strengths and weaknesses and monitoring the implementation of its programmes both during and after the implementation period. After the EC has declared and gazetted final election results, it undertakes a post-election implementation assessment, which is usually carried out in the form of staff retreats. The duration of these retreats vary from a few days to a week. The Research and Monitoring Department of the EC is responsible for these activities based on a checklist it develops for the electoral event. 

                          The Inter-Party Advisory Committee (IPAC), initiated by the Electoral Commission (EC), has served as a platform for intra-party dialogue, consultation and consensus building. Under the chairmanship of the EC, the IPAC has become a platform for the major political parties to build consensus on reforms that are necessary to boost confidence in the electoral process and enhance its integrity. 

                          Leading to the 2012 general elections, CI 12 for voter registration and CI 15 for voting were amended by the EC in consultation with IPAC. Together with political parties, the EC set up two joint committees namely the Technical Committee and the Legal Committee. The committees were chaired by the EC Deputy Chairman of Operations and the EC Deputy Chairman of Finance, respectively. The seven-member Legal Committee tasked to draft CI 72 and CI 75 prior to the 2012 elections was composed of three representatives from the EC, one representative from the governing party, one representative from the major opposition party and two representatives from the remaining fourteen oppositions parties combined. The Legal Committee drafted the constitutional instrument and presented it to the EC. The EC was entitled to add, subtract or totally reject the draft, but in the case of the above the EC made just minor changes before the CI was sent to the Attorney General’s Office and finally tabled in the Parliament. 

                          Meetings of IPAC in an election year are normally held once every month at the offices of the EC. Decisions of IPAC are not binding on the EC but experience show that the Commission has taken IPAC deliberations seriously. Whilst noting that the inter-party dialogue has sub-national structures at regional and national levels, the dialogue leading to electoral law reforms is more focused on the national level. [1]

                          The Attorney General (AG) is a key partner to the EC when engaging on reform issues. Despite having this constitutional responsibility and mandate to make regulations governing elections, which in Ghana are referred to as electoral laws, the EC does not have a Legal Department. When a CI is drafted by the EC, it is submitted to the Office of the AG for refinement. The essence of engaging the AG is to ensure that the draft from the EC complies with existing parent laws e.g. the Constitution and international legal instruments to which the country is a signatory. The AG assists to phrase the draft in legal terms and can advise the EC, but it has no mandate to alter the content of the draft proposed by the EC. It is important to note that there is no law requiring the EC to draft a CI in collaboration or in consultation with the AG. This relationship has been developed over the years as a matter of convenience. This means that, technically the EC can submit a draft law to parliament without going through the AG’s office but the EC considers the support of the AG’s office as essential.

                          In Parliament, the Leader of the House lays the draft law on behalf of the EC in his/her role as the leader of government business. Alternatively, the EC can write to the Clerk of Parliament attaching the draft law and addressing it to the Speaker of Parliament. The Parliament has neither the right nor the power to amend any CI from the EC who drafts both the content and the applicable sanctions of the electoral laws supported by such enabling law like PNDC Law 284 (Representation of the People’s Law). The responsibility of Parliament on such instances is either to accept or to reject the CI, for the latter, if there is a disagreement with any part of the CI. This means that the EC would have to make alterations that it deems fit and at its discretion may return the refined CI to parliament. Before the law is discussed on the floor of Parliament, the Subsidiary Legislative Committee usually discusses the draft with EC and, when both entities are in agreement, the majority leader lays the draft law on behalf of the EC. Finally, unlike laws from the Parliament, which require executive assent from the president of the republic, electoral laws i.e. a CI by the EC is gazetted under the signature of the Chairman of the EC. 

                          Article 55 Section 17 of the Constitution empowers the Parliament with oversight responsibility of activities related to political parties. This section partly states that “Parliament shall by law regulate the establishment and functioning of political parties”. This is a responsibility which is not categorically mentioned in Article 45 that spells out the functions of the EC. However, by coming into force of the Political Parties Law (Act 574) of 2000, the EC has almost complete responsibility for regulating the registration and operations of political parties in the country. A review of Act 574 has been initiated by the EC which is likely to be a reconsideration of Article 45 with a view to granting the EC the power to monitor and enforce compliance with electoral laws by political parties. The role of the Parliament is not very clear at the drafting stage of this review process but its role would certainly become prominent if the EC sends the revised law for legislative approval. 

                          Following this process, it could be established that promulgation of electoral law is a joint responsibility of the EC and the Parliament. The Parliament approves the laws but is not involved in the drafting. The EC drafts the law but requires parliamentary approval. Any addition by Parliament to a law drafted by the EC is null and void. Any Act of Parliament or Executive instrument to govern an election would be valid only when the EC comes up with a CI validating and spelling out the modalities for its implementation.

                          On certain occasions, the Parliament and the EC set up a joint committee or engage in closed door meetings to work on an electoral law. After the Supreme Court petition following the 2012 presidential elections, a number of recommendations were put forward for electoral reforms specifically related to the use of biometric technology in the electoral processes. In 2014, therefore, the EC met with the Parliament, in a closed door meeting to discuss the recommendations of the Supreme Court. This should enable the Commission to agree on the modalities of the review. 

                          Civil society in Ghana has also been a catalyst for electoral reforms. The introduction of the tactile ballot in 2002 was initiated by the International Foundation for Electoral Systems (IFES), the Ghana Association of the Blind (GAB) and Action on Disability and Development Ghana (ADD) working in collaboration with the EC. Civil society has also been invited by the EC to serve on a committee to make recommendations for a draft Political Parties Law. Civil society is believed to conduct more research and have deeper knowledge of issues for reforms. They could also take of the politically neutral interest of voters.

                          An electorate knowledgeable about how their rights and responsibilities as voters are affected by an electoral reform provides for greater citizens engagement in reform efforts. Public education has to be carried out before and after a legal reform process. In Ghana, the practice often is that a conscientious voter information campaign is conducted by the EC only after the promulgation of an electoral law which renders the general public technically ignorant during the drafting of the law.

                          4. Challenges and Risks

                          Despite the emerging culture of political stability, the EC still faces a number of challenges, which include incumbency bias against certain electoral reforms, lack of technical knowledge on the part of certain stakeholders, mainly political parties, and the availability of funds to undertake effective planning of reforms. 

                          It is generally accepted by all political parties and the EC that for political parties to function as viable state-building institutions, there is need for some level of state funding. The two main parties being the National Democratic Congress (NDC) and the National Patriotic Party (NPP), who form the two-party system in Ghana, have each acceded to power and watered down the consensus on state funding of political parties. Each of these parties strongly fought for state support to parties when they were in opposition. However, when each of them gained political power, the issue ceased to be a reform priority.

                          Secondly, political parties vehemently agitated for the introduction of biometric verification as a requirement for voting without much technical knowledge of the system. Prior to the 2012 elections, the electoral atmosphere was heating fast and potentially threatened the stability of the country. The EC accepted the request by adopting a “buy your peace approach” with the introduction of legal provisions which probably could have been managed better at the administrative level. The failure of many of the verification kits resulted in the rejection of the election results by the major opposition party, thus threatening democratic stability.

                          Deepening citizens’ understanding of the electoral system and management and educating them on their civic responsibilities is yet another challenge. Although Ghanaians appear to be generally conversant with their civic responsibilities and are highly committed to democracy, evidence from election observation reports indicates high levels of ignorance on the laws, procedures and processes of elections. This means that electoral reform has not necessarily always led to citizens’ full enjoyment of their electoral and political rights.

                          5. Recommendations

                          A number of measures could be undertaken during an electoral law reform so that the exercise yields a positive outcome:

                          • Electoral law reforms should be undertaken not too close to the election, when political parties and contestants are hypertensive. It does not also allow enough time for stakeholder deliberation and consensus building. EMBs therefore ought to draw up detailed plans for their engagement in electoral reform and implement such plans in a timely manner. The promulgation of CI 75 was in September 2012, three months before the general elections, when the usual political atmosphere of rivalry and suspicion was tense. 
                          • Any innovation, especially relating to the use of technology, should be a matter of serious and in depth discussions, partly because of the huge financial cost and party due to its appropriateness and complexities, but also because electoral rights might be violated in case technology fails.
                          • EMBs play an important role when it comes to stakeholder education on election law reform issues and to elevate debates on the implications before and after laws are enacted, thus facilitating cross-fertilisation of knowledge on key concepts. Although civic education is usually conducted after the promulgation of a law, it should be conducted before the legal reform exercise, in order to allow the general public (including lawmakers) to understand the various dimensions of its application. 
                          • EMBs need to be aware that electoral rights are human rights and therefore any electoral law which might infringe on such rights ought to be strongly discouraged, whether or not it is perceived that the law will enhance the technical administration and management of the voting process. Both the EC and the Parliament would have served the public interest better if they had convinced themselves that requirement of CI 75 was more of an administrative procedure and that a stringent law may not have been necessary.

                          Annex 1: List of References

                          Annex 2: About the Author

                          Theophilus Dowetin has two decades of election experience. He worked at the Electoral Commission of Ghana where he coordinated programs for the Association of African Election Authorities for 6years (2001 – 2006); and served as the Program Manager at International Institute for Democracy and Electoral Assistance - IDEA’s West Africa Office for 8 years (2006 – 2013). He has supported the professional management of elections mainly through capacity building training and interparty dialogue. He is a curriculum-writing specialist has conducted over forty national and international elections training. He has also supported the political participation of women and the youth. He has worked in partnership with or consulting for organization such as ECOWAS, SADC-ECF, EAC-ECF, African Union, Netherlands Institute for Multiparty Democracy, UNDP, GiZ, and IFES. He has an MA in Democracy, Governance & Law from the University of Cape Coast, Ghana. 

                           


                          [1] Inter-party dialogue is structured in such a way that there are also sub national platforms namely Regional Inter-Party Advisory Committee (RIPAC) and District Inter-Party Advisory Committee (DIPAC) which are made up of the registered political parties in the regions and the districts with all their meetings being chaired by the EC officers in the respective regions or districts.

                          Jordan: A Changing Electoral Framework

                          The legal framework for elections may surely be measured against international standards but must always also be referenced by the national context. On the road to democratization, whether reform is substantial or rapid enough will often be assessed differently as influenced by the vantage point of the observer. Reform is often achieved through the interaction of the main stakeholders, each striving for its interests. Electoral reform in Jordan is an interesting case study in this regard.

                          Jordan is a constitutional monarchy, with the government consisting of Chief of State (the King), the executive comprised of the Prime Minister and Council of Ministers, and the legislative National Assembly with two chambers: the House of Deputies and the Senate.[i] 

                          The nature of the electoral law in Jordan has been a major point of contention among political factions and this has only increased and become more public in the time since the emergence of the Arab Spring. Of course, the electoral system is only one of several challenges facing Jordan but it remains a very visible and focused issue. The political upheaval of the past several years may be seen in the fact that the King has appointed five different prime ministers since the beginning of the Arab Spring. 

                          Ultimately, King Abdullah determined to dissolve the House of Deputies elected in 2010 roughly half way through its mandate and announced that early elections would be held in late 2012 or early 2013.  As a sign of reform, new election laws were to be put in place to elect the next parliament.  Subsequently, Jordan’s new Independent Election Commission (IEC 2012) announced that on January 23, 2013 early elections will be held to elect members of the House of Deputies which is the only body directly elected by Jordanian citizens. 

                          Since 1993, Jordan’s electoral system to the House of Deputies has been based upon the “single non-transferable vote system” (SNTV).  Unlike most electoral systems, SNTV, “combines multimember districts with the rule that a single vote is cast for a particular candidate, which often results in candidates winning seats with the support of only a small minority of the voting population.”[ii] Since its introduction, SNTV has been controversial with those in opposition arguing that the law discourages the development of political parties in favour of votes being cast for individual candidates most often representing tribal groups versus a political party platform.[iii] Another criticism put forward is that SNTV is easily “gerrymandered” with districts varying in voters per Member of Parliament (MP) between 8,000 and 46,000.[iv]

                          On June 19, 2012, parliament followed through on King Abdullah’s call for reform and adopted a new electoral law.  The June election law resulted in a mixed system under which voters have two ballots, one under SNTV for a candidate at the district level and one for candidates competing at the national level under proportional representation.[v] The size of the House of Deputies was also increased from 120 to 140 seats of which 17 were to be elected from the national level lists (which include but are not limited to political parties) based on proportional representation.  The number of seats reserved to guarantee women’s representation was increased from 12 to 15.[vi]

                          Characteristic of the strong views held regarding electoral reform in Jordan, “20 MPs threatened to resign—two even came to blows—over the proposed law. Hours after it was approved, leader of the Islamic Action Front (IAF) Hamza Mansour dismissed it as ‘just a cosmetic change meant to buy time and insufficient for real reforms.’” [vii]  There was immediate talk of an election boycott.

                          On June 29th, responding to the threat of a boycott, King Abdullah asked the parliament to convene an extraordinary session and on July 4, 2012 the government proposed increasing the number of national proportional representation seats to 27.[viii] The size of the House of Deputies was also increased to 150.  

                          However, the amended version of the new electoral law similarly, “triggered instant uproar across the kingdom among opposition and pro-reform activists.”[ix] The Muslim Brotherhood stated that its political wing, the IAF will boycott the January 2013 elections.  Other opposition elements have similarly announced an election boycott.[x]

                          On the one hand, King Abdullah and his supporters express that the changes to the electoral laws are meaningful. As the Jordanian Ambassador in London wrote at the end of October 2012, “This is the first time in Jordan's history that a national list is introduced to complement the voting system. This is meant to encourage participation and representation of political parties.”[xi] Beyond the legislative electoral reforms, it has been reported that; “According to the king's roadmap, elections will be held Jan. 23 for a parliament that will then choose the prime minister. Previously, it was the king's prerogative to appoint a premier.”[xii] and “The king also suggested that the next government might come from parliament itself, from whatever key parties and blocs of MPs coalesce after the election.”[xiii]

                          On the other hand, the opposition movement has stated a number of demands including, denying the ability of the King to dissolve parliament, parliamentary control over the formation of the government, direct election of the upper house and a mixed electoral law that allocates 50% of seats for the national list by proportional representation and for the remaining 50% of electoral districts allowing voters in each district to vote for all of the candidates in the district.[xiv]

                          So it can be seen that there are two dramatically different perceptions of what is substantial reform of the legal framework for elections and whether the pace is acceptable.  According to one observer of Jordanian politics, “the polarization has, in fact, reached potentially dangerous levels.”[xv] Another comments, “If various opposition forces do not see the elections as credible, you will see real signs of instability."[xvi]

                          However, there remains the potential for further progress in electoral reform.  The King is reported in October 2012 as acknowledging that, “This elections law is not perfect. We all understand that. But there is no better consensus on an alternative. What is critical is that we keep going forward.”[xvii]  Despite boycotting the upcoming elections, Jordan’s Muslim Brotherhood deputy leader is reported in November 2012 to have, “expressed his belief that there is still plenty of time to reconsider the political Jordanian path. He called for a national dialogue table that will be based on postponing the elections and reconsidering the roadmap for political reform.”[xviii]

                          The process of electoral reform may be extremely complicated and various stakeholders need to be heard and accounted for.  For this to occur in any situation, dialogue remains a crucial component.



                          [i] European Forum for Democracy and Solidarity Website. “Jordan Update.” July 27, 2012.  1.

                          [ii] Kristen Kao,“Jordan’s Ongoing Election Law Battle.” Carnegie Endowment for International Peace, SADA Website, July 5, 2012.

                          [iii] European Forum for Democracy and Solidarity Website, 3.

                          [iv] Kristen Kao.

                          [v] Ibid.

                          [vi] Curtis Ryan, “Jordan's high stakes electoral reform.” Foreign Policy website, June 29, 2012.

                          [vii] Kristen Kao.

                          [viii] Ibid.

                          [ix] Curtis Ryan, “Jordan's high stakes electoral reform.”  

                          [x] BBC News Website, “Jordan teeters on edge of political instability.” October 27, 2012.

                          [xi] The Economist Website.  “Our article on Jordan.” October 26, 2012.

                          [xii] Jamal Halaby, “Jordan's king pushes elections as reform path.” Yahoo News Website. October 23, 2012.

                          [xiii] Curtis Ryan, “Jordan's high stakes electoral reform.”  

                          [xiv] Mohammad Yaghi, “Jordan’s Election Law: Reform or perish?”  Fikra Forum Website, October 4, 2012. 

                          [xv] Curtis Ryan, “Jordan's high stakes electoral reform.”  

                          [xvi] BBC News Website, “Jordan teeters on edge of political instability.”

                          [xvii] Democracy Digest Website. “Jordan: dialog, not regime change, the route to democratic reform?” October 9, 2012.

                          [xviii] Hasan Muawad, “Jordan needs electoral law reform, says Brotherhood deputy.” Al Arabiya, November 2, 2012.

                          Kenya: The Role of the EMB in Electoral Reform

                          By Mathieu Mérino

                          1. Background

                          The 2007 Kenyan elections were marked by violence of such an unexpected intensity that it took national and international observers by surprise. In the aftermath, the violence that swept the country for several weeks had a far-reaching impact on the Kenyan social, economic and political fabric. More than 1,200 people were killed and some 600,000 displaced from their homes and damages of $ 1.5 billion were recorded. [1] The lack of both reliability and impartiality of the modalities of election organisation (electoral boundaries, registration on voter rolls, compilation process, transmission and, notably, verification of results) largely contributed to unleashing the violence. These failures however, do not fully explain the intensity and the ethnic dimension of the clashes. The latter carries causes that are profound and complex, and which has historical, social and economic background in Kenya.

                          The Kofi Annan-led dialogue, conducted at the start of 2008 to stall the violence and tension, resulted in the formation of a coalition government between the main opponents. In February 2008, the main parties in the electoral dispute signed the Agreement on the Principles of Partnership of the Coalition Government. One of the main responsibilities of the coalition government was to spearhead fundamental reforms. Key among these reforms was the enactment of a new Constitution. Kenyans approved this new constitution by a two-to-one margin on the 4 August 2010 referendum organised in a free and fair manner by the Interim Independent Election Commission (IIEC).

                          Following the adoption of the new constitution, the Independent Electoral and Boundaries Commission (IEBC) was created in 2011 and on 4 March 2013, six elections were held simultaneously for the first time in the electoral history of the country: Presidential, parliamentary and local government. On 9 March, following a tense but relatively peaceful election, the IEBC declared Jubilee Coalition’s Uhuru Kenyatta as president elect. The results were generally well accepted by the main opponents.

                          The electoral reform process (2008-2011)

                          The current electoral framework is the product of a long and protracted reform process since the inception of the multiparty system. However, some recent factors have clearly contributed to the emergence the of legal electoral reform process in Kenya: the lack of legitimacy of results in the 2007 General Elections and the results emerging from post-election audits. The post-election violence in 2007 and 2008 made it painfully clear that urgent reform in Kenya’s political architecture was needed. This was recognised within the National Accord Agreement that Kofi Annan helped to facilitate between the rival parties. The Waki Commission (in charge of the investigation on post-electoral violence) and the Independent Review Commissions (IREC), headed by a South African judge (Kriegler), produced reports on the 2007 elections, highlighting the different responsibilities and electoral malpractices as well as recommending institutional reforms. IREC’s report, relying in particular on the work of national and international observers [2] as well as on an intern audit of the Electoral Commission of Kenya (ECK), underlined the limits of the ECK in the management of elections: lack of transparency, bias, disastrous communication strategy, poorly trained staff, etc. [3] Following these reports, and in order to restore public confidence in the Electoral Management Body (EMB), the ECK was dissolved and replaced by an interim structure, the Interim Independent Election Commission (IIEC). The function of the IIEC was to reform the electoral process and management of elections in order to institutionalise free and fair elections. [4] The IIEC’s duties were further complemented by the Interim Independent Boundaries Commission (IIBRC), in charge of the review of the existing constituency boundaries to reflect geographical size and population.

                          The 2008 Constitution of Kenya Review Act identified four main institutions that would be involved in the reform process and their mutual relations, namely: a Committee of Experts (CoE) on the Constitutional Review, the Parliamentary Select Committee, the National Assembly and a popular referendum. It is within this context that the CoE was charged with consolidating and harmonising proposals for a new constitution from the review process. The CoE held a series of consultations with various stakeholders (civil society groups, religious organisations, private sector, registered political parties, parliamentary political parties, the two Principals in the Coalition Government, the Parliamentary Select Committee on the Review of the Constitution and parliamentarians) including the other organs of reform, especially the IIEC and the IIBRC. The CoE organised various thematic consultations that sought expert opinion in particular on the ways in which the principles of inclusivity and affirmative action could be implemented in the Constitution, as there were concerns about the way in which they were implemented in the electoral systems for Parliament and the devolved governments. The opinion consultations included several in-house meetings with the IIEC.

                          The Constitution consolidates incremental reforms initiated by the recommendations of the Independent Review Commission (IREC) and introduces further fundamental reforms, in particular at the initiative of the IIEC. The tenure of IIBRC and the IIEC lapsed on 27th November 2010 and 14th November 2011, respectively. Prior to the lapse of its tenure, the IIBRC had submitted its report to Parliament, which forms part of the reference materials for the Independent Electoral and Boundaries Commission. The Independent Electoral and Boundaries Commission Act of 2011 that facilitates the establishment of the IEBC has been enacted (See annex 3 for more details on the IEBC implementation).

                          The current electoral framework

                          Since the 2007 elections, the Kenyan electoral legal framework has been completely overhauled. The Constitution and all the relevant laws have been replaced, the Judiciary reformed and the dispute resolution mechanisms much expanded. Thus, the 2013 General Elections in Kenya took place under a completely new legal framework. Most of the 2008 Kriegler Commission’s recommendations were adopted in the 2010 Constitution. [5] Otherwise, the 2010 Constitution entrenches an expansive Bill of Rights which strengthens protection for the civil and political rights relevant to elections, access to information and freedom of the media, and gives special attention to the rights of women, persons with disabilities, children, young persons, minorities and marginalised groups.

                          With the enactment of a new Constitution came the enactment of new election laws and regulations, mainly [6]

                          • The Elections Act, 2011 which deals with the organisation and management of elections;
                          • The Political Parties Act, 2011, reforming existing legislation to take into account the consequences of constitutional reforms;
                          • The Campaign Financing Bill, 2011, aiming at governing the sources, expenses and expenditure limits by candidates for primary elections;
                          • The Independent Electoral and Boundaries Commission Bill 2011, focusing on the organization and functioning of the electoral commission.

                          The new transformed framework [7] is in accord with Kenya’s international and regional obligations related to the conduct of democratic elections. Kenya has ratified the major international instruments that cover electoral rights. [8] Under the 2010 Constitution such treaty obligations are incorporated directly into Kenyan law at ratification and can be relied on in court.

                           

                          2. EMB role

                          The crucial role of the IIEC and the IIBRC in the electoral reforms process (2008-2011)

                          After the dissolution of the ECK, one of the main functions of the IIEC was to provide input to the government and the National Assembly in view of the establishment of a new legal electoral process. The post-election audits and evaluation of the ECK provided interim EMB staff with an opportunity to remedy the mistakes that were made during 2007 elections [9] and allowed for to the correction of defects as well feeding the reform process. Likewise, after the publication of the Harmonised Draft Constitution 2009, the CoE held a series of close consultations with the IIEC and the IIBRC, so that these bodies could inform the Draft Constitution where it concerned matters within their mandates. Generally a combination of several methods was used by the IIEC to make the first assessment of Kenya’s preparedness to hold elections. In addition to the internal audit and besides reviewing literature on Kenya, the IIEC team also discussed the electoral expectations with various stakeholders. A national conference on setting Electoral Reform Agenda for Kenya was held in July/August 2009 with both local and international experts. At the end of 2009, the IIEC conducted provincial visits that were meant to sensitise the public on the Commission’s mandate. This was also an opportunity for the IIEC to collect additional opinions from the public about the electoral reforms. The Commission visited all the seven provinces and Nairobi. Finally, the IIEC officials conducted in-depth interviews with key informants from a number of institutions critical to the electoral process and the implementation of governance reforms [10]

                          The Interim Commission led the constitutional referendum of 2010, carried out a revision of electoral lists and supervised 11 by-elections [11] during which it tested new technologies, particularly in performance management. The overhaul of the legal framework to which the IIEC contributed, has led to a consolidated body of four main texts: the Independent Electoral and Boundaries Commission Bill, 2011, the Elections Act, 2011, the Political Parties Act, 2011 and the Campaign Financing Bill, 2011.

                          IEBC and electoral reform (2011-2013)

                          According to the legal framework (Constitution, Election Act and IEBC Act), the IEBC has no formal mandate to engage in electoral reform. The reform is initiated by other actors such as the Parliament, the State Law Office, related Government Ministries and Agencies, etc. Interlocutors at the IEBC have confirmed that the Commission does not have enough financial and logistical resources to effectively engage in this area. 

                          However, the fact that the IIEC and IIBRC played an active and an important role in the electoral reform from 2008 to 2011 makes the IEBC a key player in any future reform today. In practice, the Commission advises the National Authorities on legal (electoral) reforms and a specific Directorate within the Commission is partly responsible for electoral reform issues. The IEBC undertakes general legal research through the Directorate of Research and Development. This Directorate coordinates, amongst others, research on the electoral process, electoral reforms, technology integration and operational support for the Commission.

                           

                          3. EMB approaches

                          2011-2013: IEBC at the crossing of the electoral reform process

                          As stated above the IEBC has grown as a central player in the electoral reform process since 2011, fostering synergistic collaboration with stakeholders. In fact, the 2013 elections were held under a new electoral system and, in order to attain its objectives, the Commission was required to implement part of the electoral reforms. In this regard, the presence of the Commission in the legal reform process was a strategic imperative, especially “to ensure that the legal reform and the numerous rules and regulations provided for under the New Constitution were established within the prescribed deadlines”. [12] For instance, the Commission has finalised, under the supervision of the National Assembly, the process of consolidating and harmonising the various electoral laws into one comprehensive Elections Act. The IEBC has also developed a strong electoral Code of Conduct and established clear dispute and complaint resolution mechanisms. In addition, the Commission has been involved in establishing the requisite administrative frameworks, regulations, policies and mechanisms for putting into force the legal imperatives. Substantial work has been done between 2011 and 2013, especially in:

                          • the implementation of Electoral Acts;
                          • developing regulations to the Campaign Financing Act;
                          • developing regulations to the Elections Act and Political Parties (covering general procedures, voter education and voter registration);
                          • strengthening the Electoral Code of Conduct for Political Parties and Candidates; and
                          • establishing complaints and dispute management committees at all levels.

                          To achieve this goal, the IEBC has strengthened its partnerships with electoral stakeholders and partners on a regular basis, institutionalising mechanisms and forums. The main partners and stakeholders include development partners, Government of Kenya line ministries and departments, the media, Civil Society Organisations (CSO), Faith Based Organisations (FBO), Community-Based Organisations (CBO), election observers and support groups, voter’s, parliament, political parties (including the Political Parties Liaison Committee), candidates, professional bodies, trade unions, business communities, among others. Government line Ministries and Departments in particular have played crucial roles in the electoral process hence the need for the IEBC to establish strong and collaborative partnerships with them.

                          The IEBC has also developed a close collaboration with Parliament, responding to parliamentary questions and where required, submitting proposals on electoral laws. IEBC has already proposed amendments to laws governing the electoral process and drafted electoral bills for presentation to parliament for enactment. Likewise, the IEBC’s Directorate of Legal and Public Affairs provided information on alleged offences to the judicial bodies and the Ministry of Justice, National Cohesion and Constitutional Affairs. Besides, the Attorney also provides legal support and representation to the IEBC.

                          Legal electoral reform: the last developments since 2013 General Elections

                          Following the General Elections, IEBC conducted a post-election assessment, identifying the key challenges (logistical problems, unprepared staff, failure of the centralisation of the results at national level, etc.). In May 2014, the IEBC Chairperson, Isaac Hassan suggested a number of recommendations to be incorporated in future elections which, if implemented, “would ensure errors experienced in the 2013 March 4 would not be replicated”. [13] Whilst the IEBC has no formal mandate to engage in legal electoral reform, the Commission submitted reform proposals to the Government and the Parliament. The main reforms proposed in order to boost electoral efficiency are as follows:

                          • During the last General Election, Kenyans were required to elect six leaders including Members of County Assembly, County Women Representatives, Members of Parliament, Senators, Governors and the President in just a single day, which is in accordance with the Constitution. The IEBC recommends that presidential and other national elections are separated from those of county government positions so that the election will be held in two phases.
                          • The Commission is proposing change in the legal framework to allow presidential elections to be tallied and announced at county level as opposed to transmitting them to a national tallying centre in Nairobi.
                          • The Commission has also proposed the number of regional election coordinators, which currently stands at 17 to be increased to 47 to match with the number of counties.

                          Some of the proposals, like the staggering of the different types of elections, will need to be debated in Parliament and voted by referendum since it would require amending sections of the Constitution.

                          To attain the establishment of the proposed reforms, the IEBC engages in broad consultations with the Government, the National Assembly and political parties. In view of the strong criticism that the commission received from the opposition, especially after the difficulties encountered during the collation of results in March 2013, the IEBC has committed to communicate regularly on these proposals urging the public authorities, particularly the political actors, to face their responsibility for the IEBC's proposals.

                           

                          4. Challenges and risks  

                          The challenges and risks faced by the Commission are both technical and political.

                          Challenges

                          The financial independence of the Commission is a strategic issue, guaranteeing its ability to work and its neutrality. Currently, the Commission enjoys semi-autonomy with regards to its funding. The salaries and allowances of Commissioners are directly charged to the Consolidated Fund under the Constitutional Offices Remuneration Act. This quasi-independence is however, not extended to the funding of the Secretariat, sometimes affecting the work of some of the Directorates. Given this context, IEBC does not always have enough resources to effectively engage in certain areas, in particular the electoral reform process. [14] Nevertheless, financial resources are crucial for legal expertise and it is clear that the in-house capacities of the Commission, particularly in the area of drafting, may require supplementation. The Directorates involved in providing legal expertise are characterised by a lack of human resources with adequate legal background. Finally, there is a lack of institutional memory. Due to public mistrust, following the disputed 2007 general elections, the formation of the IIEC and IIBRC commissions required that the institutions be set up afresh. None of the former ECK officers were retained in the new electoral body. The current Commission, the IEBC, is a young organisation that has experienced only one General Elections process.

                          Another crucial challenge to the work of EMBs in this area is related to political willingness and the commitment to legal reform. Electoral reform is a politically sensitive matter and the speed of accomplishing the work involved will depend on other external actors such as the Parliament, the State Law Office, related Government Ministries and Agencies as well as the political parties. Thus, it was difficult for the commissions, IIEC and then IEBC, to promote its reform agenda electoral reforms due to the existing structure of government. This resulted from the dynamics of a coalition government that existed at the time, the union between the ruling party and the opposition. 

                          Risks 

                          The main risks face by the IEBC today is that the body is perceived as incompetent and biased. While the 2013 elections were conducted in a largely peaceful environment, the implementation of the elections presented certain difficulties leading to legal disputes over the outcome of the presidential results. The elections were marked by delays in the registration of voters, six simultaneous elections in one day, security threats, introduction of major technology and political pressure on the IEBC. [15] Unlike 2007 though, the aggrieved parties sought redress in the Supreme Court. Even if the judgment of the Supreme Court was positive for the IEBC, and the elections were considered “free and fair”, the IEBC lost the confidence of some of the political actors, mainly the first platform of the opposition (Coalition for Reforms and Democracy), and some of the stakeholders. The opposition have called for the departure of the IEBC Chairperson and has threatened to boycott future elections if the IEBC does not affect fundamental reforms. [16] This polemic brings into focus the conduct of IEBC officials and this may weaken the legitimacy and the capacity of the Commission to effectively engage in electoral reform processes in view of the next General Elections. [17]

                           

                          5. Recommendations

                           

                          1. The IEBC was empowered to issue regulations to supplement the Elections Act, subject to approval by external actors (National Assembly, State of Laws, etc.) and it published several sets of regulations in view of the 2013 General Elections. Although issued late in the process, these regulations contributed to transparency of the process. It would be useful for future elections for the general procedure regulations to be expanded to cover all elements of the electoral process. The national authorities should provide IEBC with a legal mandate to engage on recommendations on electoral (legal) reforms.
                          2. After the post-2007 political context, the continuous stakeholder engagement was noted as key in the constitutional and electoral review process. This has largely contributed to the success of the 2013 elections, in particular in the acceptation of the results. Whenever possible, IEBC needs to continually engage in consultative forums with all stakeholders – such as political parties, civil society organisations, media and the public – throughout the project life and/or a project document outlining the background, objectives, process and timelines for the coming reforms, especially in circumstances where the IEBC’s neutrality is contested.
                          3. Due to the lack of institutional memory, IEBC should rely more on the regional and International expertise. This can be a valuable contribution to electoral reform process. IEBC needs to engage in consultative meetings with other EMBs to build and inform its expertise in the currently young organisation. It would also be helpful for the IEBC to be involved in an electoral process in another country as an observer organisation. Due to the lack of expertise in the organisation, training workshops with international and regional organisations would be helpful.
                           

                          [1] Mwai Kibaki officially won the presidential elections with 46.4 % against Raila Odinga, leader of the Orange Democratic Movement (ODM), with 44.1 %. ODM refused to accept the results of the presidential elections, as did many people in different regions of the country.

                          [2] For more details see Kenya Elections Domestic Observation Forum (KEDOF) 2007 Final Report or European Union Electoral Observation Mission (EUEOM) in Kenya 2007 Final Report.

                          [3] The Kriegler Commission or IREC, set up in March 2008 and comprising eight members, held an inquiry into the facts and incidents of the elections held in December 2007. The Commission then presented its conclusions in a report that was made public in September 2008; The Kriegler Report on the December 2007 Elections, Nairobi, 2008.

                          [4] Articles 41, 41(A), 41(B) and 41(C) [amended by Act 17 of 1990, s. 2, Act 9 of 1997, s. 6], Constitution of Kenya, 1963 (amended in 2008). In the context of 2008 post crisis, the role of the Commission was, more precisely, to provide input to the establishment of the new electoral legal framework to the coalition government.

                          [5] For full details see: Constitution of Kenya, 28 August 2010.

                          [6] Other laws and regulations complete the election’s legal framework: Appellate Jurisdiction Act (Cap. 9), and Court of Appeal Rules, 2010; Civil Procedure Act (Cap. 21), and Civil Procedure Rules, 2010; County Governments Act; Criminal Procedure Code (Cap. 75); Evidence Act (Cap. 80); Judicature Act (Cap. 8); Magistrates’ Courts Act (Cap.10); Penal Code (Cap. 63); Supreme Court Act (No. 7 of 2011) and Supreme Court Rules, 2011; Transitional to Devolved Government Act; Urban Areas and Cities Act (No. 13 of 2011).

                          [7] For more details about the Electoral Legal Framework in Kenya, see: European Union Election Observation Mission to Kenya, General Elections 2013. Final Report, March 2013, pp. 6 to 10.

                          [8] The International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and People’s Rights (ACHPR), the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of Persons with Disabilities.

                          [9] Kriegler Commission Report, 2008: “Audits are an effective tool for building public confidence in election outcomes because they can detect human errors and help correct them”.

                          [10] Interviews with ex IIEC staff members and IEBC Commissioners, in Nairobi on September 2012 and March 2013.

                          [11] These by-elections that took place from August 2009 to August 2011 are the result of judicial decisions from the disputed 2007 elections. Added to these 11 legislative elections, there have been 49 local elections.

                          [12] IEBC, The new Strategic Plan 2011-2014, Nairobi, 2011.

                          [13] “IEBC proposes radical reforms to boost electoral efficiency”, The People, 18 May 2014.

                          [14] Interview with IEBC staff member, in Nairobi on April 2013.

                          [15] The Electoral management body and the international community identified some keys points to improve upon: i) IEBC institutional capacity to be strengthened; ii) legal framework to be strengthened; iii) new electoral unit boundaries to be established as per the Constitution; iv) a credible voter register to be established; v) an effective and efficient elections/polling operation plan to be implemented; vi) an dispute resolution and conflict prevention strategy to be implemented; vii) an inclusive national civic and voter education programme to be  implemented; viii) effective monitoring and observation mechanisms to be implemented.

                          [16] “Cord to boycott elections if IEBC reforms fail”, The Sunday Nation, 14 July 2013.

                          [17] “IEBC chiefs fault petition on their ouster”, The Daily Nation, 8 July 2014.

                           

                          Annex 1: List of references

                           

                          • Committee of Experts on constitutional Review, Final Report of the Committee of Experts on Constitutional Review, Nairobi, 11 October 2010.
                          • Constitution of Kenya, 28 August 2010.
                          • Elections Observation Group, ELOG Final Report 2013 Elections, Nairobi, 29 July 2013.
                          • Elisha O.Z., Otieno W.E., Hanbook on Kenya’s Electoral Laws and System, EISA, Nairobi, 2012.
                          • European Union, Compendium of International Standards for Elections, NEEDS/EC, Brussels, 2008.
                          • European Union Electoral Observation Mission to Kenya, 2007 Final Report, Nairobi, 2008.
                          • European Union Election Observation Mission to Kenya, General Elections 2013. Final Report, Nairobi, March 2013.
                          • International Center for Policy and Conflict, Kenya National Dialogue and Reconciliation (KNDR) –Agreed Reforms -Taking Stock, Nairobi, 2009.
                          • IEBC, The new Strategic Plan 2011-2014, Nairobi, 2011.
                          • International Foundation for Electoral System, Lessons Learned from Kenya's 2013 Poll: A Conversation with IEBC Chairman Hassan, 12 June 2013: http://www.ifes.org/Content/Multimedia/Webcasts/2012/2013-Lessons-Learned-from-Kenyas-2013-Poll-A-Conversation-with-IEBC-Chairman-Hassan.aspx
                          • Independent Review Committee, Kriegler and Waki reports summarised version, Nairobi, 2009.
                          • Kenya Elections Domestic Observation Forum, 2007 Final Report, Nairobi, 2008.
                          • Kenya for Peace with Thrust and Justice, Ready or not. An assessment of Kenya’s preparedness for the General Election, South consulting, Nairobi, April 2012.
                          • Newspapers: The Daily Nation, The East African Standard, The People.
                          • The Campaign Financing Bill, 2011.
                          • The Elections Act, 2011.
                          • The Independent Electoral and Boundaries Commission Bill, 2011.
                          • The Judiciary, Judiciary Transformation Framework, 2012 – 2016, Nairobi, 2012.
                          • The Kenya National Dialogue and Reconciliation, Building a progressive Kenya. Our Common Vision, views of stakeholders, Nairobi, 2008.
                          • The Political Parties Act, 2011.
                          • Sihanya B., “Constitutional Implementation in Kenya, 2010- 2015: Challenges and Prospects", Occasional Paper, No 5, University of Nairobi, 2011.
                          • South Consulting, The Kenya National Dialogue and Reconciliation (KNDR) monitoring project. Reforms and Preparedness for Elections, Nairobi, May 2012.

                          Annex 2: About the author

                           

                          Mathieu Mérino has been involved in election observation and technical assistance for the past 13 years as electoral and political expert. He has participated in 14 election observation assignments from 2001-2014, especially with the European Union and the SADC. In addition, Mathieu has overseen planning and operational activities within the context of election assistance, from design through to implementation, related to the role of domestic observation by civil society groups in the 2011 general elections in Tunisia and in DRC (2013). Mathieu is a Research Fellow at the Fondation pour la Recherche Stratégique (FRS) in Paris and at the Institut Français de Recherche en Afrique (IFRA) in Nairobi. He has been extensively involved in teaching and researching as a University Fellow (France, Guinea, Nairobi). Most recently, he was the coordinator of the program on post-conflict management in the African Great Lakes for the Delegation for Strategic Affairs (France). Mathieu holds PhD in Political Science at the University of Pau (France). His research has focused mainly on Africa, with special interest on Elections Related-Violence in Eastern and Southern Africa.

                            Malawi: The Role of the EMB in Electoral Reform

                            By Dr. Nandini Patel

                            1. Background

                            The conduct of elections in Malawi is governed by four major legal instruments which constitute the Electoral Law of Malawi. These are: The Constitution of 1995, the Parliamentary & Presidential Elections Act (PPEA) of 1993, the Local Government Elections Act (LGEA) of 1998 and the Electoral Commission Act (ECA) of 1998. Malawi is signatory to most of the international and regional instruments pertaining to democracy, human rights and elections.

                            Summary of electoral reform initiatives over the past decade:  

                            The 2003 PPEA Bill

                            In 2003 MEC submitted the Parliamentary & Presidential Elections (Amendment) Bill to Parliament. This bill was introduced in the run up to 2004 elections and sought to effect several amendments to the PPEA. Some of the critical proposals were:   

                            1. To organise parliamentary, presidential and local government elections simultaneously in May 2004.
                            2. To lift the restrictions related to the number of political parties agents at voters’ registration centers.
                            3. To limit the period of voters’ registration to seven days.
                            4. To enable MEC to procure and use electronic voting machines in elections.
                            5. To repeal the Act dealing with null and void votes and replace the section with a provision empowering the Minister to make regulations at least 60 days before the polling date, with respect to the determination of null and void votes.
                            6. To extend to thirty days within which the national results of the parliamentary and presidential must be published.  

                            The above set of recommendations by MEC did not pass through the National Assembly due to the political situation at the time, with a formidable opposition and a fragmented party, the United Democracy Front (UDF), in power. Most of the items listed in the bill were in direct infringement of the principle of free and fair elections and were perceived to serve vested interests. 

                            The bills rejection in the parliament contributed to a serious setback for local democracy in the country. This came as a result of the way in which the bill was constructed whereby provisions that would allow the MEC to organise local elections alongside the presidential and parliamentary elections were combined with other controversial amendments. Only in 2014 were provisions in place for the MEC finally to organise tripartite elections. 

                            The 2004 electoral system debate

                            The results of the 2004 elections – in which the winning candidate obtained only about 36 percent of the national vote – sparked the debate for electoral system reforms. The discussions centred around the possibility of introducing a majoritarian electoral system that would require the presidential candidate to gain an absolute majority of 50 percent plus one vote to be declared the winner. The electoral system reform issue received much attention at the 2006-7 constitutional review process. However, the recommendations of the constitutional review along with other recommendations were shelved pending tabling before parliament. 

                            The 2010 Electoral Commission (Amendment) Bill

                            After the 2009 general elections, Constitutional amendments were adopted that had implications on the electoral framework. For example, the 2010 Constitutional Amendment Act required the MEC to revise the electoral boundaries at the ward level. According to the new Act, the number of wards per parliamentary constituency was, with some exceptions, reduced to two wards. [1] This had implications for small constituencies where the number of Councillors will be very low. Moreover, determining wards on the basis of parliamentary constituencies aimed to hierarchically place Councillors under MPs, thereby curbing their independence and role and also undermining local democracy.

                            The 2012 Amendment of Electoral Laws

                            A Taskforce on the Amendments of Electoral Laws was instituted in November 2012 comprising members from the Electoral Commission, Law Commission, Ministry of Justice, Public Affairs Committee, Media Organizations, Centre for Multiparty Democracy, Members of Parliament and Civil Society Organizations. The overall mandate of the Taskforce was to review the Electoral Laws to allow for the organisation of tripartite elections in 2014. Amendments to the legal framework was necessary because constitutionally the local government elections were to be held a year after the Parliamentary and Presidential elections.

                             

                            2. EMB role

                            There is no clear formal mandate for the MEC to engage in legal electoral reforms. However, utilising Section 8 (m) of the Electoral Commission Act  which says ‘ to take measures and to do such other things as are necessary for conducting free and fair elections’, MEC plays a role in legal reforms in ways, such as:

                            • Provide recommendations to parliament after consultations with the Cabinet Committee through the Ministry of Justice;
                            • Initiate reforms upon request from government as well as from local stakeholders through the National Elections Consultative Forum (NECOF); and
                            • Engage with international observer missions like the European Union Observer Mission which sent a follow up mission in 2012 to support the harmonization of laws in preparation for the 2014 tripartite elections.

                            In terms of the MEC’s internal structure for engagement, issues pertaining to legal electoral reforms fall under the Directorate for Electoral Services. In this directorate, one official is assigned to deal with legal electoral issues. It should be noted, however, that on occasions specific task forces have been used to explore legal electoral reform in which the MEC has been represented. 

                             

                            3. EMB approaches

                            Activities

                            MEC resorts to a variety of approaches when engaging in electoral reform processes. This section provides an overview over their engagement in activities related to research, stakeholder consultations and the establishment and work of the Task Force initiated and chaired by the MEC.

                            In the area of research, the Electoral Commission Act in Section 8 (k) vests the electoral commission with the mandate to:

                            ‘…promote and conduct research into electoral matters and into any matter pertaining to its functions and to publish the results of such research.’ 

                            In the aftermath of 2004 elections MEC in collaboration with the Konrad Adenaur Foundation (KAF) engaged two consultants, one local and other external to propose an electoral system reform agenda for Malawi. The research report was intended to kick start a debate on electoral system reform and this was, to a certain extent, achieved. The researchers pulled in lessons from other counties in the region that had undergone electoral system reforms or were in the process of doing so, and also conducted a number of interviews with political party officials and civil society representatives who had a position on this issue. This was a one off research project undertaken by the MEC.  

                            In collaboration with the EU Follow-Up Mission that was deployed in December 2012, the MEC organised a joint roundtable with an overall objective of discussing “upcoming milestones along the path towards Malawi’s landmark tripartite elections in 2014” with a particular emphasis on exchanging views and identifying priorities for the pre-electoral phase (EU EFM Report 2013: 42). The roundtable brought together approximately 100 representatives from the Government, the Law Commission, civil society organisations, faith-based organisations, media, police services, political parties and the international community. The Roundtable adopted the “points of consensus” document of which one section was dedicated to legal electoral reform.

                             


                            Points of Consensus adopted by the December Stakeholder Roundtable on the issue of legal reform:

                            • Involve Parliament in law reform process.
                            • Address ballot proofing/nomination timeline.
                            • Establish and define offence of unduly influencing voters.
                            • Consult civil society in Law Review process.
                            • Revisit delimitation criteria for wards.
                            • Separation of powers between Local Councils and Parliament.
                            • Allow parallel vote count.
                            • Consider revising polling hours.
                            • Establish Task Force to consolidate review process as soon as possible: MoLGRD; Malawi Police; MESN; MoJ; MHRC; Law Commission; Parliament; MEC; CMD; MoF; Political Parties; MISA Malawi; Media Council; MACRA; PAC.
                            • Establish eligibility by age of 18 at or before polling day.
                            • Harmonise PPEA and LGEA with Constitution on seven-year resident eligibility.
                            • Eliminate multiple candidacies between MP and Local Councillors.
                            • Bear in mind to give Parliament 28-day notice on Electoral Law Reform bill tabling.
                            • Provide the right to national election observation in PPEA in harmonisation with LGEA.
                            • MEC should not be required to report to executive, but to Parliament.

                             

                            Source: EU EFM Report 2013, p. 53. 

                             

                            Following up on the Parliamentary resolution that tasked the MEC with harmonising the legal framework governing elections in advance of the 2014 tripartite exercise, the MEC established a Task Force in November 2012. The overall aim of the Task Force was “to scrutinize and harmonize the current Electoral Laws and identify the gaps in the legal time lines for elections that need to be filled to pave way for a better environment in the holding of tripartite elections” (EU FUM 2013: p. 56). More specifically, the objectives were to i) review stakeholder recommendations and identify critical issues requiring legal amendments; ii) propose amendments to enhance compliance with Malawi’s international and regional obligations; iii) propose amendments to be tabled in parliament in February 2013; and iv) to synchronise the legal framework governing the elections.

                            The Task Force comprised representatives from the following institutions: Parliament, Ministry of Local Government, Ministry of Finance, Ministry of Justice, Law Commission, Public Affairs Committee, Human Rights Commission, Media Council of Malawi, Malawi Communications Regulatory Authority (MACRA), police services, Centre for Multiparty Democracy (CDM), Malawi Electoral Support Network (MESN), Malawi’s chapter of the Media Institute of Southern Africa (MISA),  and CPECP, The Task Force was chaired by the MEC and reported directly to the MEC Chairperson (see Annex 3: Terms of Reference for the Task Force on the Harmonization of Electoral Laws)

                            Relationships 

                            The MEC engages with multiple stakeholders when working in the specific area of legal electoral reform. Amongst them, the Law Commission of Malawi is an important institution that has been playing a key role in reviewing specific laws including electoral laws and with the review of the entire Constitution of Malawi in the years 2006/07. During the Constitutional Review Conference a number of legal electoral issues came up for review and recommendations such as the independence of the Commission, appointment of the Commissioners, electoral system reforms from simple majority to two round system for the Presidency. However, due to a rather rough political environment that persisted during those years these recommendations did not take effect.

                            The European Union (EU) has served as a crucial partner to the MEC. The EU deployed election observation missions to the last three elections organised in 2004, 2009 and 20014. Moreover, in 2012, it deployed its first so-called EU Follow-Up Mission (EU FUM) tasked with “assessing the status, usefulness, and viability of EU EOM recommendations, as well as with programming a roundtable to reanimate debate on idle recommendations” (EU Follow-Up Mission Report 2012). At the time when the EU FUM was deployed, the decision had been made that local elections would be organised simultaneously with the next presidential and parliamentary elections scheduled for May 2014. This situation prompted the follow-up mission to review the recommendations, assist the MEC to set priorities as well as to help in identifying risks and mitigation strategies related to the holding of the tripartite elections. The EU was also instrumental to the establishment of the Task Force on the Harmonization of Electoral Laws (see above). In addition to technical support, the EU has also extended financial support for the legal reform process. 

                            On legal reforms issues, the MEC has interacted extensively with the Parliament - both collectively as well as with the Committee on legal affairs more specifically. On occasions, the Parliamentarians propose issues that MEC should explore certain issues. For example, Parliamentarians have encouraged the MEC to undertake research and come up with recommendations related to outlawing of campaign hand outs. MEC, on the other side, engages with the parliament to seek acceptance for its proposals and recommendations and hence build political will required for legal amendments to be adopted. The relationship between Parliament and MEC is not always smooth and productive. The relations get particularly tense when the National Assembly acts on the behest of the executive for narrow political gains. Legislation on local government elections is one such example which remains one of the most frequently amended sections of the Constitution. Demarcation of constituencies is another issue where the MEC finds in Parliament a non-cooperative partner.

                            Collaboration between the Government of Malawi, MEC and development partners is extensive in legal reforms and is generally complimented with wider consultations with key stakeholders.

                             

                            4. Challenges and risks

                            Lack of continuity

                            Though MEC ought to function continually as the electoral process should be on going, the history of MEC since the 1999 elections has been one of a disrupted institution in between elections for long periods of time stretching over a year or so. In the run up to 2009 elections, MEC’s work was nearly paralysed for 14 months waiting for new Commissioners to be appointed. As of January 2012, only the Chairperson remained on board whilst the term of office had expired for four Commissioners, and yet there was no effort made to appoint them in right time. 

                            The current practice of appointment of Commissioners is that they are appointed by the President in consultations with the political parties present in parliament. Since 2004, the number of parties in parliament has increased considerably and therefore this principle has not been working well. Notably, the Commissioners appointed by the President are seen with suspicion by the opposition parties. The opposition parties have resorted to stop the appointment through court injunctions which has rendered the Commission dysfunctional for long periods of time. 

                            In 2010 the President unilaterally and abruptly closed down MEC in direct violation of its Constitutional independence, had the offices sealed and deployed armed policemen to guard the premises (Malawi National Integrity System Analysis: 2013, p.115). The act aborted the conduct of 2010 local government elections.

                            The above-mentioned situation has implications for the MEC’s capability to engage effectively in legal electoral reform. As commissioner posts remain vacant for long periods of time, the MEC does not have the leadership needed to promote the institutions work in this area. Moreover, the process by which commissioners are appointed makes it difficult for the MEC to be perceived as an impartial player when putting forward recommendations. This complicates its relationship with political parties when working on specific legal electoral reform issues.

                            Vetting of bills by the Cabinet Committee 

                            Electoral reforms are generally brought before the legislature and are treated as regular legal amendments, vetted by the Cabinet prior to the submission to the National Assembly. This procedure restricts the scope of political discussion and consensus required for electoral reforms. There is a need for electoral reforms to be treated uniquely submitted directly to the National Assembly. (Mbendera: 2014)

                            Funding for MEC’s activities

                            Independence of an institution is also tied to its resource base. In principle MEC has a wide source of revenue as stipulated in Section 15 of the Electoral Commission Act (ECA). However, MEC has relied mainly on apportions by parliament and aid by the development partners. The funds appropriated by parliament are channelled through the Ministry of Finance. This is contrary to the ECA’s stipulation that MEC shall control its own funds. This situation may affect the MEC’s ability to engage in the area of legal reform in an impartial manner.

                            Capacity 

                            The staffing in MEC to deal with legal issues is extremely inadequate. There is no legal department in MEC secretariat. Lack of personnel and legal expertise make it difficult for the MEC to engage effectively in the area of legal electoral reform. 

                             


                            Some critical legal electoral reform issues surfacing in the post 2014 Tripartite elections context

                            • Transparency in political party campaign spending: The law is silent on this. The PPEA Section 66 establishes that ”Every political party may, for the purpose of financing its campaign appeal for and receive voluntary contributions from any individual, or NGO or private organisation in or outside Malawi.’’ In the run up to 2014 tripartite elections, Members of Parliament asked MEC to outlaw campaign hand out. The Chairperson of the concerned Parliament Committee, requested, if MEC could move towards coming up with electoral laws that would criminalise hand outs during campaign. MEC responded positively by assuring that MEC shall take this up and shall spearhead legislation on this issue (The Daily Times: 6thAugust, 2013). Such an initiative may also present an opportunity for the MEC to explore areas linked to limits on campaign expenditure and accountability of overall financing of political parties more generally.
                            • Electoral system reforms: With the low percentage, yet again at 36 percent for the winning candidate, in the 2014 presidential elections, there seems a general consensus for reform ensure a minimum requirement of 50 percent plus one vote for the President. However, there is no clear and common understanding of how electoral systems work to produce such outcomes. Moreover, there are fears that such systems may cause voter confusion and would be too costly. Dissemination of case studies from the continent shall help to promote a better understanding of the alternatives available and their implications.
                            • Appointment of Commissioners: The recommendations emanating from the Constitutional review ably addresses the issues of competence, continuity, and independence of the MEC. More explicitly, it recommends that the selection of Commissioners is done through a selection panel of competent and credible individuals from various sectors. The Chairperson need not necessarily be a sitting judge but can be from any walk of life but beholding extensive leadership qualities. It further recommends amendments to secure the continuity of the Commission and to ensure that the Commission is not only accountable to the President but also to the Parliament.
                            • Appeals and complaints: There is silence in the electoral law pertaining to the time frame for dealing with electoral petitions. This is an area where the MEC is likely to engage.

                             
                             

                            5. Recommendations

                            1. EMBs must be “up to the game” from an institutional viewpoint to engage effectively in legal electoral reform processes. In Malawi, legislation need to be put in place to alleviate institutional challenges linked to for example the securing of public funding. Moreover, MEC need to establish a directorate on legal affairs
                            2. EMBs need to institutionalise a thorough review processes. In Malawi, a Task Force was set up to harmonise the electoral laws and may be an example to follow. The Terms of Reference of the Task Force established clearly who would participate and what outputs were expected.
                            3. EMBs need to draw up clear plans and timelines for engaging in reform processes that also takes into consideration plans and timelines for implementation of legal amendments. These plans and timelines need to be discussed with relevant authorities well in advance of the next elections. The electoral cycle approach may be a good tool to use for planning purposes. 
                            4. EMBs ought to work hard to sustain relationships with key stakeholders. In the case of Malawi, two key institutions that have engaged in extensive legal reform support are the Law Commission and the European Union. 
                            5. EMB engagement with stakeholders in legal electoral reform matters need to be based on the key principles of transparency and inclusiveness to foster credibility and trust in the reform process
                            6. EMBs should work closely with the relevant Parliamentary committees to promote political commitment to reform processes and also tactfully engage with the relevant cabinet committees to win the much needed political will.  
                             

                            Annex 1: List of references

                            • Afrimap/Osisa, 2014, Malawi – Democracy and Political Participation, Open Society Foundations, Johannesburg.
                            • Chingaipe Henry, 2014, Legal Policy Analysis of electoral environment for 2014 tripartite elections, prepared for the Country Representative for Norwegian Church Aid, Lilongwe.
                            • European Union Election Follow- up Mission to Malawi, Final report, 2013. Available at http://aceproject.org/ero-en/regions/africa/MW/malawi-final-report-election-follow-up-mission-eu/at_download/file (downloaded 10 July 2014).
                            • Kayuni Happy, 2014, Local Government Elections in 2014: The legal – political context and their implications on the future of Malawi local governance, in Malawi before the 2014 tripartite elections, published by Fredrich Ebert Stiftung and the Institute for Policy Interaction, Blantyre, Malawi.
                            • Matlosa Khabele & Patel Nandini, 2003, Towards Electoral System Reform in Malawi, Occasional Papers, NO.10, October 2006.
                            • Malawi Electoral Commission, Strategic Plan 2013 – 2017.
                            • Malawi Electoral Commission – Report on Amendments of Electoral Laws, 2013.
                            • The Malawi Gazette Supplement, dated 3rd November, 2003, containing Bills.
                            • The Malawi Gazette Supplement, dated 13th May 2013, containing Bills.
                            • Transparency International – Malawi National Integrity System- Assessment report, 2013. 

                             

                            Annex 2: About the author

                            Dr. Nandini Patel is a Political Scientist by training and has taught Political Science for over twenty years in India, and at the University of Malawi and at Catholic University of Malawi. She is a founder member and Chairperson of the think tank called the Institute for Policy Interaction. She is also a Board member of Electoral Institute for Sustainable Democracy in Africa (EISA). She has published a number of articles, book chapters, and co-edited books, on politics in Malawi. 

                             

                            Annex 3: Terms of Reference for the Task Force on the Harmonization of Electoral Law [2]

                            1.0 BACKGROUND

                            The Electoral Commission is a Constitutional body created under Section 75 of the Constitution of the Republic of Malawi with a specific mandate to conduct and manage all elections in Malawi i.e. Parliamentary, Presidential, By-Elections, Local Government and Referenda.

                            For it to conduct its business, Parliament enacted enabling Acts; the Parliamentary and Presidential Elections Act and the Local Government Elections Act.

                            Section 76 of the Malawi Constitution specifically empowers the Commission to conduct free, fair and credible elections and to promote public awareness of the electoral matters through the Media and other effective means and to conduct civic and voter education.

                            Recently, the Parliament amended the Constitution to allow for the tripartite elections. Thus, Parliamentary, Presidential and Local Government Elections will be conducted at the same time unlike in the past.

                            Other institutions have made efforts to scrutinize the electoral laws; such institutions as Parliament, MESN and the MEC and also on issues as raised at the Roundtable discussions Process with stakeholders which was held at Crossroads Hotel from 13 to 14 December, 2012 where some actionable issues were identified.

                            In an effort to effectively conduct the tripartite elections, the Electoral Commission has undertaken responsibility to review the laws that deal with elections so that there should be no contradictions amongst these pieces of Elections Legislation.

                            In the recent past, Parliament passed a resolution tasking the Electoral Commission to spearhead the harmonization of the Electoral Laws to allow for the effective and efficient conduct and holding of Tripartite Elections. MEC will discharge this duty in direct liaison with the Law Commission, Ministry of Local Government and Ministry of Justice.

                            Owing to the above, the Taskforce was formed to ensure that it comes up with the proposed amendments to harmonize the legal framework for tripartite elections. The membership of the Taskforce is as follows: Robert Phiri from Public Affairs Committee, Hastings Bota from the Ministry of Local Government, Vales Machila from Media Council of Malawi, Aubrey Chikungwa from MISA Malawi, Peter Chasweka from Police, KizitoTenthani from CMD, Dr.DalitsoKabambe from Ministry of Finance, Alison Mbango’ombe from Law Commission, Steve Duwa from MESN, Amassodor Roosevelt Gondwe from CPECP, ReyneckMatemba from Ministry of Justice, FegusLipenga from MACRA, Grace Jere from Human Rights Commission, Hon. KezzieMsukwa from Parliament and representation of Malawi Electoral Commission which Chairs and holds the Secretariat of the Taskforce.

                            2.0 AIMS

                            The main aim of the Taskforce is to scrutinize and harmonize the current Electoral Laws and identify the gaps in the legal time lines for elections that need to be filled to pave way for a better environment in the holding of tripartite elections.

                            3.0 OBJECTIVE

                            • To review various recommendations made by stakeholders on elections and isolate critical issues that require amendment of the law.
                            • To propose amendments that will align the electoral laws with Malawi’s international and regional obligations and commitments on elections.
                            • To propose amendments for a bill which would be considered for tabling in the February 2013 sitting of Parliament.
                            • To synchronize electoral laws.

                            4.0 SCOPE OF WORK

                            The Taskforce Force shall undertake responsibility to reviewing the work done by several stakeholders on elections (see annex) and also Malawi’s international and regional obligations and commitments to creating a coherent framework to holding Tripartite Elections.

                            5.0 REPORTING ARRANGEMENTS

                            The Taskforce shall report directly to the Chairperson of the Electoral Commission.

                            6.0 RESOURCES FOR THE TASKFORCE

                            The MEC shall be responsible for all the material and financial support in relation to all Taskforce sanctioned activities in liaison with development partners.

                            7.0 EXPECTED OUTPUT

                            The Task Force shall, at the conclusion of its work, produce a set of draft amendments of the Electoral framework for a draft bill to Parliament.

                            8.0 TIME FRAME

                            The Task Force is expected to work and produce its proposed amendments by 4th January, 2013 and present it to the Chairperson of MEC on 8th January, 2013.

                            1st meeting of the whole Taskforce:

                            Dates: 26 to 29 December, 2012

                            Venue: ZombaKuchawe/Liwonde

                            Duration: Two and Half days

                             


                            [1] The Act established that, for the cities of Blantyre and Lilongwe, the number of wards would be 30  whereas in the case of the cities of Mzuzu and Zomba, the number of wards would be 15 and 10, respectively. 

                            [2] Source: EU FUM 2013: pp. 55-56.

                            Namibia: The Role of the EMB in Electoral Reform

                            By Rumbidzai Kandawasvika-Nhundu

                            1. Background

                            This case study outlines the Electoral Commission of Namibia’s (ECN) efforts to take gender in electoral processes into account in its electoral legal reform consultations that took place between 2011 and 2014. The ECN completed its nation-wide consultations on the electoral legal reforms in March 2013 and since then has focused on engaging the Law Reform and Development Commission (LRDC) to ensure that the ECN’s proposals are included in the legislative bill(s). The LRDC has the mandate to undertake the consolidation or the codification of any branch of the law or the introduction of any other measures aimed at making the law more readily accessible as well as to undertake research in connection with all branches of the law of Namibia and to make recommendations for the reform and development thereof. [1]

                            Background

                            Namibia’s Electoral Act 24 was enacted by the National Assembly in 1992 and published in terms of Article 56 of the Namibian Constitution. The Electoral Act established the Electoral Commission of Namibia (ECN) as an exclusive authority tasked to “direct, supervise and control in a fair and impartial manner elections under this Act” (Electoral Act 1992, Section II(4)). Since then, a number of amendments to the legal framework governing elections have been enacted with the aim to strengthen and improve the quality and acceptance of the outcomes of electoral processes in the country, including;

                            • Electoral Amendment Act 23 of 1994; 
                            • Local Authorities Amendment Act 3 of 1997;
                            • Electoral Amendment Act 30 of 1998 (as amended by the Electoral Amendment Act 11 of 1999);
                            • Electoral Amendment Act 19 of 1999;
                            • Electoral Amendment Act 20 of 2002; 
                            • Electoral Amendment Act 7 of 2003 
                            • Electoral Amendment Act 4 of 2006;
                            • Electoral Amendment Act 7 of 2009.

                            After the 2009 elections, there was a generally held view among ECN officials, different political actors and stakeholders, as well as the electorate in the broader Namibian population that the Electoral Act as a whole had to be reviewed and that its provisions needed to be harmonized in an effort to produce an enabling legislation that would introduce new operational aspects/strategies that could strengthen and reinforce mechanisms on the management and administration of future electoral processes.

                            One of the critical factors behind the reform process was that the implementation of the Electoral Act since its promulgation had led to several legal challenges in the court system by different political parties - e.g. by the Democratic Turnhalle Alliance (DTA) party in 1994 and 1999, the Republican Party (RP) in 2004, the Congress of Democrats (COD) in 2004, and the Rally for Democracy and Progress (RDP) in 2010. The outcomes in the 2011 High Court ruling for the 2009 elections petition by opposition political parties was a key driver for the government to formally commit to the electoral legal reform to be led by the LRDC.

                            On its part, the ECN regarded the electoral law reform process as essential, in light of the voter registration that was planned for 2012 and the preparation for the 2014 presidential, national council and assembly elections. Notably, though the ECN had been proactive in undertaking initiatives on electoral legal reforms since 2007, these efforts had not led to the intended influence and impact. The call for electoral legal reform proposals by the LRDC in 2012 therefore presented the ECN with an opportunity to channel its experience based and lessons learnt for electoral legal reform proposals to a “statutory” and formalised mechanism-the LRDC.

                            Gender mainstreaming in the legal electoral reform process

                            While the ECN acknowledged the persistent gender gaps and inequalities in the outcome of electoral processes, it is worthy to note that the commitment to mainstream gender in the electoral legal reform process was highlighted when Advocate Notemba Tjipueja became the Chairperson of the Commission in 2011. As one of the ECN’s strategic objectives is “to mainstream gender, disability and ensure compliance with the relevant policies at national level”, the support and commitment of the Chairperson and Commissioners provided the institutional recognition that gender equality is relevant to the work of the ECN. It is the first time in the history and “herstory” of the ECN that a woman was elected to serve as the Chairperson and she has maximised this opportunity to be a gender equality champion. The ECN has five Commissioners, two women and three men.

                            The leadership of the Chairperson and the Commissioners provided some impetus for the commitment to take into account gender issues in electoral processes and how these issues are to be addressed in the electoral legal reform proposals that the ECN would define. It is essential to state that though the Chairperson provided the leadership on the need to mainstream gender in the ECN’s processes, it was necessary to be aware of the need to ensure that gender equality remains an objective itself by raising gender issues in the discussions/consultations with stakeholders.


                            Content
                             

                            The specific electoral reforms content that came out of the 2011-2014 process focused on areas that were political, legal and administrative in nature. Therefore the electoral reform proposals are at different levels, namely constitutional, legislative, regulatory, institutional and operational. Emerging issues or electoral areas which the ECN reform proposals also identified and addressed were political financing, equal access to the media, gender equality, inclusive participation and the use of technology.

                            The main constitutional and legislative proposals were made on the following key issues:

                            • Establishment and autonomy/independence of the ECN to be stipulated in the Constitution, the composition of the ECN and gender parity in its composition, and the ECN “exclusive authority” in the management of elections.
                            • Enacting a comprehensive Electoral Act that ensures integrity, coherence and harmonisation of all amendments and other relevant legislations.
                            • Electoral legislation to have gender responsive provisions in relation to the electoral system framework, equal access and representation of women and men in all political and electoral processes as well as expanding gender awareness and inclusiveness strategies.
                            • Political party funding legislation that provides a fair formula for distribution and usage of funding, specifies the accounting of funds, addresses incumbency and guards against the abuse of state resources.
                            • Code of Conduct for political parties to be integrated into the electoral legislation, including provisions of enforceability and sanctions for non-compliance.
                            • Establishing an electoral dispute resolution framework and system.

                            Current status of the reform process and ECN input – July 2014 

                            At the time of writing the national consultations on the electoral legal reform had been concluded and a draft bill was before the National Parliament. However, the ECN could not ascertain if all of its reform proposals where retained in the version of the bill that was before the Parliament because the ECN does not have the mandate to determine the final content of the bill, as this was the responsibility of the LRDC. It is envisaged that the bill will be enacted in time for the national elections scheduled for November 2014.

                            2. EMB Role


                            Formal mandate

                            The ECN is mandated to direct, supervise and control in a fair and impartial manner all elections conducted in terms of the Electoral Act of 1992 (Art. 4). In the Electoral Act there is no explicit formal mandate for the EMB engagement in legal electoral reform processes. However, the Electoral Act states that the Commission shall "perform any other functions conferred upon it by or under the provisions of this Act or any other law or are necessary or expedient for purposes of achieving the objects of this Act" (Art. 4(2e)). Moreover, it can be asserted that in view of the ECN’s mandate, it was prudent for the ECN to spearhead its own initiatives to consult its stakeholders on legal electoral reforms that are gender sensitive. 

                            Role in practice 

                            In practice, the ECN’s engagement in the 2011-2014 legal electoral reform processes was premised on and motivated by three factors. Firstly, in the context of the ECN’s legal mandate as the exclusive authority tasked to direct, supervise and control electoral processes in a fair and impartial manner and in conformity with internationally accepted norms and standards, including the ones on gender equality, the ECN had an interest in putting into place an effective and gender-responsive legal framework to govern electoral processes. Secondly, the ECN’s mission, strategic themes, objectives and values that are outlined in the ECN Strategic Plan informed the engagement in the legal electoral reform process. For instance the ECN’s mission is “to deliver free, fair and credible elections, managed in a transparent, innovative and participatory manner to strengthen democracy in Namibia” (www.ecn.na). This mission is operationalised by focusing on five strategic themes related to i) democracy building, ii) capacity building, iii) legal framework, iv) infrastructure development and v) operational excellence. In addition, one of the ECN’s strategic objectives is “to mainstream gender, disability and ensure compliance with the relevant policies at national level”. Thirdly, the ECN responded to the calls by the LRDC for submissions on electoral law reform proposals. 

                            The scope of ECNs work in the area of legal electoral reform is somewhat confined due to the lack of clear legal mandate of engagement and with this mandate situated with the LRDC in the context of the 2011-2014 reform process. The ECN conducts post-election reviews to improve its conduct of subsequent elections and, based on the lessons learned extracted in such exercises the ECN provides recommendations on legal electoral reform. It also engages in consultative and participatory processes internally within the ECN and with different stakeholders, with an aim to collate inputs that inform the development of a responsive electoral legal framework, mainstream gender in the legal reforms and implement new legislation and policies that will be put in place. However, the ECN does not draft bills nor can it initiative reform processes – although it aims and has the comparative advantage to influence such processes through the provision of recommendations in the area of electoral reform based on its experiences from the management and administration of electoral processes since its establishment.

                            3. EMB approaches


                            Activities

                            The ECN’s strategy to the 2011-2014 legal reform process was based on the electoral cycle approach developed by International IDEA, the European Union (EC) and the United Nations Development Programme (UNDP) in 2007. The electoral cycle approach singles out three key phases in the organisation and conduct of elections: the pre-electoral, election, and post-electoral phases. It argues that electoral management, and even assessments such as audits and election observation, should be viewed not as an event, but as a process which starts months before and continues long after polling day. In addition, the reform processes were guided by the fact that elections are a constituent part of democracy to which the ECN is committed to promote in Namibia. 

                            The ECN made electoral reform its priority and embarked on a process of producing a White Paper on Electoral Reform that was presented to the Ministry of Regional, Local Government and Rural Development in 2011. In 2012, the ECN intensified and pursued its priority for electoral reform in response to the calls by the LRDC for submissions on electoral law reform proposals. In 2013 the ECN’s consultative processes led to the production of the Electoral Review Concept Paper which outlines the ECN proposals to the LRDC. The proposal included a number of suggestions on how to make the legal framework governing electoral processes and elections gender responsive, unlike the White Paper on Electoral Law Review (2011) which was silent on the gender dimensions in electoral processes and elections per se. 

                            The ECN legal electoral reform initiative took into consideration the challenges of the local context within a broader framework of international comparative practices, continental and regional electoral instruments including those established to ensure the equal right of women and men to exercise and fully enjoy their civil, political, economic, social and cultural rights at all levels, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Beijing Declaration and Platform for Action African Protocol to the African Charter on Human and People’s Rights on the Rights of African Women (2003), the African Charter on Democracy, Elections, and Governance (2007) and the SADC Protocol on Gender and Development(2008). 

                            The ECN electoral reform efforts sought to broaden inputs by widening the scope of consultations to a larger spectrum of stakeholders. Conferences, workshops and the media were used as strategies for advocacy, voter information and soliciting views on the challenges encountered in the implementation of the Electoral Act and the relevant legal reform proposals to address the identified challenges. These activities provided information that was compiled into the above-mentioned White Paper on Electoral Reform and the Electoral Review Concept Paper. 

                            For example, with support from International IDEA, the ECN held a Consultative Workshop with Stakeholders on Electoral Law Reform in March 2013 that brought together a diverse group of stakeholders and representatives from community based organisations/civil society organisations, all registered political parties in Namibia, members of Parliament, government ministries, academic and policy institutions, media, churches, traditional leaders, international and regional organisations. The ECN held the consultative workshop with the aim to engage different national stakeholders and raise their awareness on the ECN electoral reform proposals as well as build consensus on the key reform proposals from the ECN. The consultative workshop which was successfully undertaken had the following objectives to:

                            • Engage stakeholders and validate the ECN’s electoral law reforms proposals; 
                            • Enhance awareness and confidence of the stakeholders in the capacity of the ECN to manage electoral processes credibly; and
                            • Identify and share national, regional and international lessons learned and good practices.

                            The outline and approach of the consultative workshop was as follows:

                            • Overview of the ECN Concept Paper on legal electoral reform proposals;
                            • Lessons and good practices from regional and international law reform processes;
                            • Constitutional protection and executive authority of the ECN;
                            • Voter registration, political liaison, tendered ballots, political party agents, political party funding, voter assistance in polling station, voting from abroad, by-election notices and other administrative issues;
                            • Gender in elections, code of conduct for political parties and the media;
                            • Electoral dispute and conflict resolution for Namibia.

                            Stakeholders

                            For this process to be inclusive and gain the “ownership” by different stakeholders, the ECN had to establish and maintain multi-dimensional relationships in order to manage the diversity of issues, interests and priorities of the national stakeholders. Therefore, the important relationships in the legal reform process were with stakeholders such as political parties, members of Parliaments, government ministries, the LRDC and the media, for the purpose of informing the general public/electorate and encouraging the electorate to make inputs to the ECN through political parties and civil society organisations/community based organisations. 

                            It is worthy to note that in this process political parties were naturally the most important stakeholders for the ECN as these are the main players in electoral processes to access public positions of power and decision making. In addition, political parties are considered as the institutions that can provide the mechanism for organising and expressing the opinions of the electorate.  

                            Though addressing gender equality in electoral legal reforms is a sensitive issue and often meets with resistance from among the different stakeholders, the ECN’s approach was a key first step in institutionalising gender in electoral legal reform processes. The fact that, in the content of the ECN proposed reforms, gender was specified and agreed upon by the stakeholders is a positive outcome.

                            4. Challenges and risks


                            The key challenges to the ECN’s engagement in the legal electoral reform processes were both political and technical. The political challenges emanated from the perceptions of the stakeholders especially political parties’ views on the impartiality of the ECN and its ability to advocate for reforms that “serve” the interests of all political parties in Namibia. The technical challenges were due to the institutional capacity of the ECN on in house expertise and support, for example on gender mainstreaming and legal reforms as well as its institutional presence/spread in the different regions of the country. 

                             

                            The risk of “gender evaporation”

                            Though the ECN had expressed the commitment to take into account gender equality issues in its electoral legal reforms, the risk of “gender evaporation” was apparent. This was due to the fact that while gender inequalities and gaps in electoral processes and the outcome of these processes would be acknowledged, gender equality tended to “yield” and give way to other competing priorities such as political party funding/finances, leveling of the playing field between political parties, authority and independence/autonomy of the ECN, even though gender is a cross cutting dimension in these issues. On the other hand the risk of “evaporation” provided the openings for constant reiteration of the need to address the areas of concern from a gender perspective and this required a high level of commitment from the ECN leadership.

                             

                             

                            Another risk to the ECN’s engagement pertained to the competence to keep abreast and well informed about the LRDC’s processes and stages or timeframes of the electoral law development. Though the ECN is a key stakeholder in the legal electoral reform, the expected intersection with the LRDC was not easily attainable because that is not stipulated. The ECN leadership sought formalised consultations with the LRDC through its Chairperson to assert its relevance and strategic importance for the Commission to remain informed of the LRDC’s processes on the electoral reforms, though this was not as effective as envisaged.  

                            While the ECN was engaged in the legal electoral reform process, the risk of getting engrossed in that process at the expense of its ultimate mandate to manage elections was also observable. Therefore the ECN made a strategic decision to invest its efforts in collating its stakeholders’ views and its own experiences and give practical recommendations for legislative measures to address the identified issues instead of attempting to prepare/draft the legislative outlines/provisions. In so doing the ECN recognised its comparative advantage to interact with political stakeholders and submit the essential components for the legal electoral reform to the LRDC.

                            The ECN responded to the political challenges by maintaining constant interactions and consultations with all political parties who had the ambition to participate in electoral processes even if the political parties were represented or not represented in the national assembly, national council or local government councils. The ECN also built a strong relationship with the media in its initiatives and issue statements that assured the national stakeholders of the commitment to facilitate an inclusive process of collating the stakeholders’ views on the legal framework for the management of electoral processes. 

                            In addition, the ECN facilitated various activities that targeted stakeholders especially those living outside the capital city of Namibia. Finally, the ECN collaborated with regional and international partners such as the International Institute for Democracy and Electoral Assistance (International IDEA) for knowledge resources and support on lessons/experiences from legal electoral reform processes in other countries. 

                            5. Recommendations


                            In general EMBs are cautious of the potential contestation that can arise if they are perceived to be “advocating” for one group in society. Such constraints can be minimised by raising awareness and increasing understanding on the gender differences and inequalities in electoral processes as it stems from a lack of knowledge on how gender influences all spheres of life including electoral processes and democracy in general. The experiences of the ECN provide some insights on approaches and mechanisms for an EMB to become gender responsive.   

                            • Leadership and commitment to gender equality: A significant step in becoming a gender responsive EMB requires both the commitment and leadership at the level of the Chairperson, Commissioners and senior management in order to create an enabling corporate environment to promote gender equality.
                            • Gender equality objectives: Stipulated objective(s) on gender equality in the strategic documents of a Commission provides an EMB with the direction on the institutional commitments to be pursued as well as ensuring that roles and responsibilities are clearly spelt out.
                            • Designated Commissioner responsible for gender equality:  Achieving gender equality is not a one-off goal but it is a process that needs to be sustained. It is necessary to hold the EMB accountable for actions on gender equality in all aspects of its work, including when it engages in electoral reform processes.
                            • Review of elections: EMBs ought to undertake comprehensive post-election reviews within which national and international commitments on promoting gender equality need to be given specific and adequate attention. By instituting gender-responsive post-election reviews, EMBs ensure that gender issues in electoral processes are collated in a structured approach that can ultimately inform electoral legal reform.
                            • Institutional strengthening of EMBs: For the EMBs to leverage their influence and provide substantive inputs in legal electoral reforms, expertise in areas such as legal analysis, gender, media/communication and gender training is essential. Where internal capacities are not adequate, EMBs may consider to bring in national/regional/international experts into reform processes and consultations.
                            • Develop and implement internal gender policies and institutionalise a gender perspective in the Electoral Cycle Approach on managing electoral processes.

                             


                            [1] Presentation by Mr. S.E.T Shanghala Chairperson  of the LRDC, “The Role of the Law Reform and Development Commission (LRDC) in Making the Law Readily Accessible in an independent Namibia” World Legal Information Institute 2013.

                            Annex 1: List of references


                            Documents 

                            ECN, 2011: White Paper on Electoral Reform.

                            ECN, 2013: Electoral Review Concept Paper, March 2013.

                            ECN, 2012: Draft Strategic Plan 2012/13 – 2016/2017

                            ECN, 2012: 2011/2012 Annual Report

                            National Gender Policy 2010-2020, 2010 

                            Presentation by Mr. S.E.T Shanghala Chairperson  of the LRDC, “The Role of the Law Reform and Development Commission (LRDC) in Making the Law Readily Accessible in an independent Namibia” World Legal Information Institute,  2013

                            The Revision And Reform Of The Namibian Electoral Act (Act No. 24 of 1991): A Background and Consultative Discussion Paper by Gerhard K.H. Tötemeyer in 2012.

                            Laws

                            Electoral Act No 24 of 1992. Available at http://aceproject.org/ero-en/regions/africa/NA/namibia-electoral-act-1992/at_download/file (downloaded 12 August 2014).

                             

                            Annex 2: About the author


                            Rumbidzai Kandawasvika-Nhundu is a gender equality advocate and practitioner with twenty three years of progressively responsible engagement on gender equality and women’s empowerment advocacy and policies development at national, regional and international levels gained through programmes implementation in Africa, South Asia, Latin America and the Caribbean (LAC). She is the Senior Programme Manager (Democracy and Gender Global Programme) at the International Institute for Democracy and Electoral Assistance (International IDEA). Before joining International IDEA she worked for the Southern African Development Community (SADC) as the Senior Programme Officer (Gender Mainstreaming and Projects Management)(2001-2008). She was responsible for the capacity building and development support programme on gender mainstreaming by Members of Parliaments, gender training of SADC Parliamentarians’ Elections observer missions and the SADC Regional Women’s Parliamentary Caucus project on women’s political participation and representation. Since 2011 she has provided support to the Electoral Commission of Namibia on gender mainstreaming. She has recently completed working on the publication "Political Parties in Africa through a Gender Lens" which was launched at the 2014 Commission on the Status of Women: http://www.idea.int/gender/launch-of-idea-publication-at-the-un-csw-2014-political-parties-in-africa-through-a-gender-lens.cfm

                             

                            Nigeria: The Role of the EMB in Electoral Reform

                            By Olufunto Akinduro

                            1. Background

                            Nigeria has a long history of electoral reforms dating back to the different political transition processes since independence. With each transition programme a new Electoral Commission was established. This case study will focus on the engagement of the Independent National Electoral Commission (INEC) in electoral reform processes. INEC was established in 1998 as part of the transition process that ushered in the 4th Republic. Since 1999, three electoral reform processes have taken place. 

                            The transition elections that began with the conduct of local elections in 1998 and ended with the 1999 state and national elections took place within the framework of the transitional decrees issued by the military regime. The National Assembly elected was therefore tasked with drafting electoral laws to guide the conduct of future elections. The 2001 Electoral Act was the outcome of this process. The bill was largely driven by the National Assembly and the process became subject of political and legal controversies. The Act was contested in court by Abia State Attorney General on the basis that it had bearing on local government elections which were within the powers of the State Independent Electoral Commissions. This court’s ruling led to a repeal of the Act, leading to the drafting of another bill that had inputs from INEC, as opposed to the first process that was driven by the National Assembly. The bill was passed into Law as the 2002 Electoral Act. Once more the new law became subject of legal challenges as INEC contested the powers of the National Assembly to determine the order of elections. Political parties also challenged the Act on the basis that the criteria for registration of political parties as provided in the Act violated the rights and freedoms enshrined in the Constitution. [1] These court cases led to an amendment of the 2002 Electoral Act that was thereafter passed as the 2003 Electoral Act. 

                            After the 2003 elections, INEC undertook  a post-election review exercise [2] that culminated in the drafting and submission of the 2005 Electoral Reform Bill to address the gaps in the previous legislation and the challenges experienced during the 2003 elections. INEC played a key role in the processes that led to the passage of the 2006 Electoral Act. 

                            In the aftermath of the 2007 elections which were regarded as non-compliant with international standards by international observers [3] and admitted by President Yar Adua in his inaugural speech, [4] an Electoral Reform Committee (ERC) was established by the President to make proposals for electoral reforms. The Committee was headed by Justice Uwais, a former Chief Justice of the Federation and comprised of 22 members including amongst others retired electoral commissioners, civil society actors, retired senior police officers. INEC made a submission to the ERC and contributed to its work by providing relevant documentation and clarifications as required. The report of the ERC was submitted to the Executive in December 2008. Drawing on some of the ERC’s recommendations, the Executive prepared a white paper that formed the basis for drafting the Constitutional Amendment Bill. The constitutional amendment process had significant bearing on the electoral process and INEC participated in the public hearings on the bill. Furthermore, INEC submitted proposals for amendment of the electoral legislation ahead of the 2011 elections to the National Assembly to harmonise the electoral legislation with the amended constitution and provide more time for voter registration. 

                            After the 2011 elections, INEC conducted post-election review activities including an independent post-election audit that culminated in its submission of proposals for amending the electoral legislation to the National Assembly which is currently undergoing legislative processes. 

                             

                            Overview of electoral reforms in Nigeria 2005-2010

                            Period Circumstances or rationale for reforms Legal instruments Content of proposed reforms Outcome of reform
                            Post 1999 elections There was no electoral
                            legislation in
                            place at the time.
                            It was therefore necessary for electoral laws
                            to be passed. 
                            The 2001 Electoral Bill  - The Act was the first legal framework governing the conduct of national, state level and local elections.  The 2001 Electoral Act was passed by the National Assembly.
                            Post 1999 elections A court case
                            brought
                            by Abia State Attorney General questioning the constitutionality
                            of the 2001 Act because it had bearing on the conduct of local elections.
                            The 2002 Electoral Bill - To repeal the 2001 Act.

                            - Delete sections that referred to the conduct of local elections by INEC as this was constitutionally the mandate of the State Independent Electoral Commissions (SIECs).
                            The 2002 Electoral Act was passed by the National Assembly.
                            Post 1999 elections A court case brought by INEC challenging the powers of the National
                            Assembly to determine the order of elections.
                            A Bill to amend the 2002 Electoral Act - To reduce number of days required for publication of notice of elections.

                            - Guarantee INEC’s powers to determine the date and order of elections.

                            - Reduce number of days required for parties to submit list of nominated candidates
                            Electoral Act Amendment Act 2003 was passed. [5] 
                            Post 2003 elections   The 2005 Electoral Reform Bill - Grant INEC powers to appoint the Secretary to the Commission.

                            -  Establishment of an INEC fund to contribute to the Commission’s fiscal independence.

                            -  Provide higher ceilings on campaign expenses.

                            -  Provide stiffer penalties for electoral offences.

                            -  Provide for continuous voter registration.

                            -  Restrained serving government officials from voting as delegates in party primaries.

                            -  Provide time limits to make changes to party nominees.

                            -  Changes to election petition processes.
                            2006 Electoral Act was passed with some provisions of the Bill not taken into account.
                            Post 2007 elections
                            The Electoral Reform Committee Report (2008) [6] - Establishment of four different institutions to share the responsibilities of managing elections.

                            - Abolish State Independent Electoral Commissions.

                            - Judicial Council should be responsible for the appointment of the INEC Chairperson.

                            - Appointment of an INEC Deputy Chairperson who should be of a different gender from the Chairperson.

                            - Independent candidates should be allowed to run in elections.

                            - Prohibit carpet crossing in the National Assembly.

                            - New ceilings on individual donations to candidates.
                            The Committee’s report was submitted and this formed the basis for the white paper that included proposals for constitutional reforms. 
                            Post 2007 elections   Constitution Amendment Bills (2009 & 2010) - Financial independence of INEC through the national consolidated fund.

                            - Members of INEC not to be partisan.

                            - INEC not subject to control in its administration and operations.

                            - Change in timelines for elections.

                            - Powers of National Assembly to make laws that enforce intra-party democracy and INEC to oversee party primaries.

                            - New quorum for election tribunals.

                            - Avoidance of tenure elongation as a result of re-run elections.
                            The 1999 constitution was amended twice before the 2011 elections.
                            Post 2007 elections   Electoral Act Amendment Bill 2010 - Provisions to speed up appeal processes by providing time limits for determination of appeals.

                            - INEC empowered to de-register dormant political parties.

                            - INEC empowered to monitor party primaries which are mandatory.

                            - Outcome of party primaries can be appealed before the courts.

                            - Proposal to bar political appointees from voting as delegates in party conventions.
                            The 2010 Electoral Act was passed and amended once before the 2011 elections.

                             

                            Compiled from the following sources: 
                            LeVan, C. and Amarachi U, 2010, Nigeria’s Electoral Law as Harmonised by the National Assembly 2006 and 2010. http://carllevan.com/wp-content/uploads/2010/09/Electoral-Law-Comparison-2010-final.pdf 

                            EUEOM, Nigerian Final Report General Elections April 2012. http://eeas.europa.eu/eueom/pdf/missions/final-report-nigeria2011_en.pdf

                             

                            2. EMB role

                            INEC is established by section 153 of the 1999 constitution (as amended) and its mandate and responsibilities are further elaborated in the first part of the Electoral Act. The Commission does not have a formal mandate provided in the law giving it a role in legal or electoral reform processes. Regardless of the absence of a formal mandate stated in law, INEC has played a pivotal role in legal and electoral reforms in Nigeria as will be shown in the following sections.

                            Structures for engagement in legal reforms

                            The Commission currently has 19 departments/directorates as well as the Electoral Institute which functions as its research and training hub. With regard to its involvement in legal reforms, all departments contribute to the Commission’s development of proposals for reforms relevant to their different thematic areas of work. However, the legal department and the Electoral Institute are more prominent because of their role in legal drafting and research. Through these two structures, the Commission has been involved in research, consultations and drafting of bills and memos for the attention of the National Assembly. Beyond these internal processes, the Commission has also been involved in public outreach initiatives such as making presentations on the content of electoral reform bills at public hearings organised by the parliamentary committees across the country. 

                            The legal department of the Commission is responsible for providing legal advice; legal representation of the Commission; [7] verification of party and candidate registration documents; contributing to relevant research on electoral justice and legal issues related to the Commission’s mandate. It is staffed by competent legal practitioners who are permanent employees of the Commission. At the national headquarters of the Commission, the legal department has about 30 legal officers and in each state office of the Commission, there is at least one legal officer employed (with the exception of some states that have up to 4 legal officers). [8] The department in some cases also hires the services of legal practitioners on contractual basis as required.

                            The Electoral Institute organises conferences and symposia through which election professionals share best practises. The outcomes of such initiatives contribute to lesson learning and development of reform proposals. The Institute also offers courses and trains personnel on thematic issues and hence contributes to the implementation of reforms. 

                            Scope of engagement in legal and electoral reforms

                            INEC’s involvement in legal and electoral reform processes has been structured across the electoral cycle. In the immediate post-election phase, the Commission undertakes post-election review consultations and it commissions independent post-election audits [9] through which it draws lessons for reforms. It also draws lessons from the different complaints and appeals brought by stakeholders in the electoral process over the years. Complaints and appeals have informed some proposals for reform. For instance, the appeal brought by unregistered political parties in relation to the passing of the 2002 Act necessitated a revision of the relevant provisions in the Act.  

                            In the later post-election phase leading up to the pre-election phase for the next general elections, the Commission has been involved in drafting bills and proposals for reform for the attention of the National Assembly. This was the case in 2005, 2010 and 2012 when the Commission made submissions to the National Assembly after national and zonal consultations with stakeholders. 

                            The Commission is also central to the implementation of reform measures. This entails the development of guidelines and procedures taking into account the legal reforms in the lead up to the next elections. (For instance, after its consultation with stakeholders in 2010, the Commission adapted a modified voting system for the 2011 general elections.) It also undertakes outreach activities to raise public awareness on reforms. 

                             

                            3. EMB approaches

                            I. Activities 

                            INEC’s key approaches to legal and electoral reforms can be categorised under these broad terms: i) post-election reviews and lesson learning initiatives, ii) public outreach and advocacy initiatives, iii) research and iv) legal drafting processes. Its public outreach initiatives are aimed at receiving public input on the electoral issues. 

                            Post-election review and lesson learning 

                            After elections, the Commission has undertaken a variety of lessons-learned review initiatives. While methodology for post-election review has not been standardised over the years, certain approaches are commonplace. 

                            The first step is the conduct of an internal self-evaluation process in which the different aspects of the electoral process are evaluated and the challenges encountered in the previous elections are noted. The outcome of this internal process feeds into the Commission’s strategic planning process and also informs its proposals for legal reforms. This process entails consultations with departments at the headquarters and staff at the state offices of the Commission. For instance, after the 2011 elections, the Commission organised a four-day post-election retreat that was attended by electoral officers from the all 36 states as well as by national commissioners. 

                            The second component of the review process is stakeholder consultations. This exercise is more focused on receiving inputs from targeted electoral stakeholders such as civil society groups, research think-tanks, technical partners of the commission, political parties, the Inter-Agency Consultative Committee on Election Security (ICCES) [10] and the media. After the 2003 elections, the approach was to conduct these consultations at regional and national levels. Drawing on lessons from these consultations and the challenges experienced in the 1999 and 2003 elections, INEC drafted the 2005 Electoral Reform Bill that was submitted to the National Assembly. A similar process was undertaken after the 2011 elections which informed the content of the Commission’s proposal for reforms that was submitted to the National Assembly. 

                            The third aspect of the review process is the independent post-election audit. Introduced after the 2011 elections, the post-election audit aims to open the process to an independent process conducted by election experts. Thus, the Registration and Elections Review Committee (RERC) was established. The RERC comprised of eight members drawn from academia, civil society groups and independent election experts. The RERC conducted its review through field visits to INEC facilities at state level, interviews, focus group discussions and call for papers. The RERC received inputs from staff of the Commission, from stakeholders across the country and from INEC’s technical partners. The RERC audit report was made publicly available in 2012. [11] The timeliness of the release of the report, (less than a year after the elections) ensured that the report contributed to the Commission’s planning for the 2015 elections and its drafting of proposals for reforms. 

                            Beyond election review processes initiated by INEC, it is also important to mention review initiatives conducted by civil society organisations and international groups that were involved in election observation and technical support to INEC. Examples are the regional election review workshops organised by ECOWAS and a joint review carried out by the Commonwealth, IFES and UNEAD in 2003. [12] The reviews also contribute to the proposals for reforms drafted by INEC. 

                            Public outreach and advocacy 

                            INEC undertakes public outreaches to popularise the content of its proposals for reform. In the absence of a formal mandate on legal reforms, INEC engages in the process alongside other electoral stakeholders. Its main approach over the years has been to make presentations on its proposals for reforms at public hearing organised the parliamentary committees on elections. These presentations increase public understanding of the rationale for the proposed changes to the electoral law. For example, in context of the 2005 Electoral Reform Bill, the Commission took steps to publicise the content of the bill through presentations in public hearings and through partnership with civil society groups as well. 

                            Beyond the public hearings, the Commission also engages with the relevant committees of the National Assembly to further advocate for its proposals and clarify its position on issues. INEC’s engagement at this level is quite important to ensure that laws are changed in a practical manner. For instance, after the passage of the 2002 Electoral Act, INEC highlighted its lack of capacity to hold all elections simultaneously that eventually gave way to further amendments. 

                            Research

                            The Commission’s internal research initiatives are coordinated by the Electoral Institute. The Institute is staffed by researchers with research interest on different thematic areas of the electoral process. With regard to legal reforms, the Institute provides requisite research materials and documentation to support the legal department’s drafting processes. The Institute also organises international conferences and symposia that provide comparative knowledge on thematic issues. 

                            Beyond its internal research initiatives, INEC also commissions expert papers on specific issues. External expertise was for example used during the post-2011 review processes. 

                            Drafting Bills and Memos

                            The key output of INEC’s consultations with stakeholders and its internal review processes is a draft proposal for reforms. These proposals are presented to the National Assembly and relevant stakeholders in different forms. In 2005, the proposals were submitted in form of a bill – the 2005 Electoral Reform Bill. In 2007, INEC’s proposal was submitted to the ERC in form of memos and position papers which informed the four bills that were drafted by the ERC as part of its report. In 2012, the Commission submitted its proposals for amendment of the 2010 Electoral Act in form of a draft amendment bill. 

                            II. Stakeholder relations

                            In its engagement with reform processes, INEC maintains close relationships with the National Assembly, civil society, political parties and international partners.

                            The National Assembly 

                            In the absence of a legal mandate for reforms, the Commission’s engagement in legal and electoral reforms is largely dependent on its capacity to manage a constructive relationship with the relevant committees of the National Assembly. The Commission advocates for its reform proposals at the committee level but also with individual members of the relevant committees in question. 

                            Civil society and political parties 

                            Through its consultative forums, the INEC has strengthened its relationship with CSOs and political parties. The consultative forums are platforms for deliberation on electoral issues that were initiated prior to the 2003 elections as an ad hoc initiative and that over time has become more systematised. In the run up to the 2011 elections, the Commission established separate consultative forums with civil society and political parties. These consultative forums operated at the national and regional levels. The forum met on a needs basis but meetings became more regular closer to Election Day and continued to be organised on a quarterly basis. The above-mentioned post-election review consultations are structured around these stakeholder consultative fora. Through its relationship with civil society and political parties, the work of the Commission has been complemented and strengthened. 

                            The Inter-Party Advisory Council (IPAC) has also served as a platform through which the Commission maintains contact with political parties. The IPAC serves as an advisory body on political party issues to INEC. The IPAC contributed to INEC’s post-election review initiatives after the 2011 elections and has particularly been consulted on proposals for reforms that have bearing on political parties. 

                            International partners 

                            INEC maintains a relationship with international partners that provide technical support to its work. These partners include the International Foundation for Electoral Systems (IFES) and the UNDP through its Democratic Governance for Development Project which is funded by the Joint Donor Basket Fund (JDBF). These partners have provided technical support to INEC through experts hired to make inputs into specific aspects of the Commission’s work. For instance, IFES made significant inputs into the development of the Commission’s approach to the legal framework for party and campaign financing in the 2005 Electoral Reform Bill. IFES organised conferences at which international experts provided comparative perspectives on international best practises. The JDBF supported the work of the RERC in the post-2011 election audit process by providing technical support to the committee.

                             

                            4. Challenges and risks

                             

                            The central challenge experienced by INEC in its engagement in reform processes has been the lack of political will by the political class (including members of parliament) to see proposed reforms through and sometimes the lack of political will crosses over into the realm of political interference. A case in point is the proposal made by INEC to restrict political office holders from voting as delegates in party conventions. This proposal was made by the Commission to improve the fairness of the electoral process, improve internal party democracy and limit the influence of incumbents in internal party processes. This proposal was dropped by the parliamentary committees as it was deemed not to favour the political class. [13] 

                            This challenge also impacted on the final outcome of the ERC led reform process because the Executive dropped a number of the Committee’s recommendations in its white paper.  For instance, the proposals that the Chair of the Commission should be appointed by the National Judicial Council (NJC) and for the electoral process to be open to independent candidates were rejected. [14] 

                            To address this challenge of lack of political will and sometimes political interference, the Commission has sort judicial interpretation of the Constitution on a number of occasions to ensure that the political class does not interfere in its powers by manipulating legislations. For instance in 2002, INEC sought judicial interpretation of its powers to ensure that the National Assembly does not set the date of elections in legislation and foreclose the registration of new political parties. [15] The judiciary continues to provide the requisite guarantee of the Commission’s powers. 

                            Another challenge associated with INEC’s work on reform issues is related to the nature of its submission of draft bills to the National Assembly. By the procedural rules of the National Assembly, bills are to be presented in the National Assembly either as private member bills presented by members of the National Assembly or as executive bills presented by the Executive. When INEC submitted its 2005 draft bill, its status was questioned by members of the National Assembly. Eventually, the bill had to be adopted and presented as a bill originating from the committees on electoral matters. This situation enabled the committee to adapt the content of the bill before presentation. 

                            The main risk associated with INEC’s engagement in electoral reform processes is the fact the Commission is appointed by the President and its members can be removed through an impeachment process requiring the support of two-thirds majority of the Senate. While it has never been the case that a member of the Commission was removed from office for his/her strong views, this could happen within the current framework if at any point in time a ruling party decides to exert its powers.

                             

                            5. Recommendations

                             
                            1. To enable a comprehensive engagement in legal and electoral reforms, EMBs may consider developing a system for continuous evaluation of the electoral process and documentation of lessons learnt throughout the electoral cycle, through for instance a mid-term review of the electoral process. This will ensure that reform and review initiatives will not be concentrated in the post-election phase and enable the commission to further target its reform initiatives to the appropriate stakeholders even before the elections. 
                            2. EMBs may consider establishing a research and training department or unit to support and coordinate the activities of other departments in the documentation and drafting of reform proposals. 
                            3. A formal mandate in legal and electoral reforms will contribute to the legitimacy of EMB engagement in reform processes. 
                            4. EMBs may consider establishing formal consultation and dialogue mechanisms to provide an avenue for public inputs in reform processes. This will contribute to citizen participation and provide a sense of ownership. 
                            5. When engaging in legal reforms, EMBs may seek to play a role in the drafting of bills because EMB inputs will ensure that the provisions of the bills are practical.
                             

                            [1] For further information on this court case, see: http://www.chr.up.ac.za/index.php/browse-by-subject/413-nigeria-independent-national-electoral-commission-and-another-v-musa-and-others-2003-ahrlr-192-ngsc-2003.html 

                            [2] INEC conducted stakeholder consultations at the regional and national levels. International organisations were also part of the process.  For instance: Commonwealth, IFES & UNEAD 2003, Nigeria Electoral Review Report. http://aceproject.org/ero-en/regions/africa/NG/ertreport/

                            [3] EUEOM, Nigerian Final Report General Elections April 2012. http://eeas.europa.eu/eueom/pdf/missions/final-report-nigeria2011_en.pdf 

                            [4] Oyekami, B. (2013) ‘The Politics of Electoral Reform in Nigeria’ Covenant University Journal of Politics and International Affairs (CUJPIA) vol. 1. No.2. pp 258- 259. http://journals.covenantuniversity.edu.ng/cjpia/published/Babatunde.pdf 

                            [5] See: http://resourcedat.com/wp-content/uploads/2013/03/Electoral-Act-Ammendement-Act-2003.pdf 

                            [6] See: https://groups.google.com/forum/#!topic/usaafricadialogue/X8bnWjpNShg 

                            [7]  This includes representation in court cases where the Commission is joined as party; representation in contractual agreements. Furthermore, the Commission also has a mandate to prosecute electoral offenses which also falls within the ambits of the department’s work.  

                            [8] In the Lagos, Enugu and Kaduna state offices of the commission, there are up to 4 legal officers employed. 

                            [9] After the 2011 elections, a committee of election experts drawn from civil society and academia were commissioned by INEC to conduct an independent audit of the 2011 voter registration and election processes. 

                            [10] A platform established before elections to provide a coordinated approach to security issues during the elections. It includes representatives of security agencies.  

                            [11] Available at: http://www.inecnigeria.org/wp-content/uploads/2013/07/RERC-REPORT.pdf 

                            [12] See: http://aceproject.org/ero-en/regions/africa/NG/ertreport/ 

                            [13] INEC had proposed in the Bill that political appointees should be barred from voting as delegates in party primaries to ensure that incumbents don’t have undue advantage in such processes. This proposal was dropped by the National Assembly. Udo Jude Ilo, 21 Oct 2010, ‘Reform Without Change, an Appraisal of the Electoral Reforms in Nigeria’, Vanguard Newspapers 21 Oct 2010. http://www.vanguardngr.com/2010/10/reform-without-change-an-appraisal-of-the-electoral-reforms-in-nigeria/#sthash.uG4Sfv7J.dpuf 

                            [14] See: http://www.nas-int.org/nas-seminars-and-lectures/547-ten-years-of-nigerian-democracy-a-review-of-the-electoral-process.html?showall=&start=3 

                            [15] Guobadia, Abel, I. (2009) Reflections of a Nigerian Electoral Umpire, Benin City, Mindex Publishing Co.

                             

                            Annex 1: List of references

                             

                             

                            Annex 2: About the author

                             

                            Ms. Olufunto Akinduro is the Head of the Elections and Political Processes Department at the Electoral Institute for Sustainable Democracy in Africa (EISA), Johannesburg South Africa. She oversees the Institute’s election-related programmes which include election observation and technical assistance to key stakeholders like Electoral Commissions, national civil society groups, relevant departments of continental institutions such as the African Union and Regional Economic Communities. Prior to her work at EISA, she worked in the field of elections and democracy in Nigeria for five years. During this period she managed the secretariat of the Electoral Reform Network (ERN). She has observed elections in Nigeria and in many African countries under the auspices of the African Union, ECOWAS and EISA. She holds a Masters degree in Peace and Conflict Studies from the University of Ibadan, Nigeria; and a Masters degree in Development Studies specialising in governance and democracy from the Institute of Social Studies, Netherlands. Her research interests include election administration, electoral integrity and electoral violence prevention.

                            Seychelles: The Role of the EMB in Electoral Reform

                            By Mette Bakken

                            1. Background

                            Background

                            In July 2011, the administration of electoral processes in Seychelles was transferred from the Office of the Electoral Commissioner to a full-fledged Electoral Commission comprising a chairperson and four commissioners. Beyond its first task of organising early Parliamentary elections a couple of months later, it was given the mandate of reviewing existing legislation and make recommendations. 

                            Electoral reform had featured in the political debate for some time but the need for change became critical in 2011. In May, Presidential elections were organised in which the incumbent James Michel of the Parti Lepep (PL) was re-elected having captured 55 percent of the votes. However, the opposition candidates claimed that the electoral process had been marred by widespread irregularities – including vote-buying and illicit use of state resources for campaigning purposes – and chose to jointly reject the election results. The lead opposition party, the Seychelles National Party (SNP), stated that “they would not attend the session of the National Assembly unless a new election law would be proposed” thus giving a strong push for change (EISA 2011: 28). 

                            The dissolution of the Parliament two months later made any significant electoral reforms prior to the next elections – beyond the establishment of the new EC – merely impossible due to time constraints. [1] As a response, the SNP decided to boycott the elections and thereby lost their eleven seats in the Parliament as well as access to state party funding. The newly formed Popular Democratic Movement (PDM), an SNP splinter party, was awarded one seat in Parliament by the court of appeal who decided that its votes qualified for seats under the Proportional Representation part of the mixed electoral system in place. [2]

                            Two issues suggest that not only politicians but also voters were increasingly frustrated with the political situation. First, the turnout dropped by more than ten percentage points, from 85.3 percent in the presidential elections only months earlier to only 74.3 percent. Secondly, the count showed that a total of 16.447 voters – almost 32 percent – spoilt their ballots in the election (see Table 1). This number is exceptionally large in a country where spoilt ballots traditionally figures 1-3 percent. 

                             

                            Table 1

                            Beyond politics, the need for electoral reform was furthermore emphasized by international election observers who, following the 2011 Presidential elections, recommended in general terms that: 

                            “A thorough review of the Elections Act and other relevant legislation and procedures should be undertaken, so as to address key gaps and ambiguities in the legal framework related to elections” (Commonwealth 2011: 31). 

                            Also previous observation mission reports called for legal review, amongst others in relation to campaign financing rules (Commonwealth 2006). Finally, the Constitutional Review Committee back in 2009 had proposed several amendments that would directly affect the electoral framework. 

                            Shortly after the conclusion of the National Assembly elections of September-October 2011, the EC embarked on electoral reform, highlighting that: 

                            “The outcome of the [2011 Presidential] elections, its disputation and condemnation by the opposition parties which had contested the elections and the concerns and recommendations raised by the international observer groups resulted in a commitment to undertake electoral reforms” (EC 2011: 3)

                            Content

                            The legal framework reviewed three pieces of legislation, including the Elections Act (1995), the Registration of Political Parties Act (1991) and the Public Order Act (1959 – with particular reference to Section 3 dealing with control of public gatherings and the right to assembly). Key recommendations were made in the areas related to:

                            • Enable citizens to exercise their right to assemble peacefully in public places without excessive restrictions; 
                            • Organisation of elections within 90 days of a president resigning or dying; 
                            • Institutionalisation of regular voters census to ensure the accuracy of the voter register and the introduction of continuous voter registration;
                            • Streamlining of candidate nomination procedures;
                            • Establishment of limits on and control of campaign financing;
                            • Disclosure of campaign funding sources;
                            • Streamlining procedures for political party registration; 
                            • The basis for financial support to political parties; and 
                            • Public disclosure of political party financing. [3]

                            Circumstances

                            The electoral reform process undertaken by the EC was highly appreciated by all key stakeholders, including the ruling and opposition parties as well as civil society. The critical point, however, is the extent to which political will on part of the Government and the National Assembly where the ruling party has all but one seat to enact reform. 

                            The recommendations put forward for the Public Order Act were seen by parties to the reform process to be largely ignored in the new law that was promulgated by the National Assembly in December 2013. The recommendations for two other pieces of legislation, namely the Elections Act and the Political Party Act were submitted to the Government in July 2013. At time of writing, the EC is expecting to receive a draft Bill in July 2014 which will unveil to which extent the Government is committed to the electoral reform agenda. 

                             

                            2. EMB role

                            Mandate

                            The Electoral Commission has a strong formal mandate to engage in electoral reform. According to the Constitution of the Republic of Seychelles, the EC shall: 

                            … review the existing legislation governing Electoral matters and make recommendations to the Government (Art. 116(1)); 

                            In addition to this, the EC shall: 

                            … submit to the National Assembly and the President a report on the conduct of (a) the political campaign leading up to the election or referendum; and (b) the election or referendum, together with such recommendations as the Commission may consider necessary for the purpose of ensuring true, fair and effective elections and referenda (Art. 116(2)). 

                            The overall scope of the EC’s engagement in legal reform is considerable. The EC is tasked to review the legal framework after each election and referenda organised as well as when it is deemed necessary. In practical terms this means that the EC: 

                            • Carry out post-election and post-referenda assessments; 
                            • Initiates reform process; and
                            • Provides recommendations on electoral reform issues

                            Whilst the EC does not have an explicit mandate to draft bills, a proposed legal instrument was annexed to the final recommendations relating to the Public Order Act. However, in its recommendations for changes to the Elections Act and the Registration of Political Parties Act, as well as the proposed Act on Campaign Financing, proposed bills were not included.

                            It should be noted that the role of the EC in contributing to the reform process is a novelty related to the Constitutional Art. 116. Prior to 2011, during which the electoral commission’s office comprised a one-person commissioner, recommendations for legal review occurred on a more irregular and ad hoc basis without a specific legal mandate for doing so. 

                            Structure

                            The five-membered EC undertook the reform process in a collaborative fashion. This means that there was no single Commissioner that was assigned the task of following up on this specific issue. The reform process was one of the main issues that the EC as a whole allocated most time over the period from October 2011 to June 2013. When the commission was tasked with organising by-elections in August 2012, their engagement in the reform process slowed down only to reconvene a short couple of months later after the conclusion of these elections. 

                            A technical working team of two legal professionals, one coming from the Attorney General’s (AGs) office seconded by the Commonwealth and the other a lawyer recruited on behalf of the EC was established to ensure that recommendations would be constitutionally and legally consistent. 

                            The total costs of the 2011-2013 reform process was estimated to 1.545.000 SRC (approx. 85.000 euro). [4] The reform process budget was submitted to the Ministry of Finance and approved. Hence, the reform process undertaken by the EC was financed through extra-budgetary provisions further to the regular annual EC allocations. 

                             

                            3. EMB approaches

                            Activities

                            Figure 1 overviews the different phases of the 2011-2013 electoral reform process undertaken in the Seychelles, starting out from the initial step of establishing the so-called Roadmap on Electoral Reform, its implementation in three phases – i) national consultations, ii) national consensus, and iii) the way forward. The EC submitted its recommendations to the Government in July 2012 (concerning the Public Order Act) and July 2013 (the Elections Act and the Political Parties Act). Changes to the Public Order Act were passed through the Parliament in December 2013 but is at time being challenged in court. The National Assembly has yet to adopt any changes to the Elections and Political Parties Act.

                             

                            Figure 1: Activities undertaken under the different phases of the electoral reform process in the Seychelles, 2011-2013.

                            null

                            Development of the Roadmap for Electoral Reform 2011-2013

                            After the conclusion of the September-October National Assembly elections, the EC developed the Roadmap for Electoral Reform 2011-2013 outlining the background to, main objectives of and strategy for the overall reform process. The reform process, comprising three distinct phases, was foreseen to be completed within a 14 months period. 

                            Towards the end of October 2011, the EC presented the Roadmap to the Government and thereafter invited all political parties to a meeting in which the document would be discussed. However, the opposition alliance led by the SNP refused to take part in the meeting, arguing that the stakeholders should have been invited to the process by which the Roadmap document had been developed in the first place. This situation created a first hurdle for the reform process and required the EC to open up the Roadmap document for deliberation in order to bring the opposition back to the table. It demonstrated the need for ensuring inclusiveness throughout all steps of the process to build trust among the different stakeholders.

                             

                            Document review and research 

                            The EC carried out an internal review of the legal framework governing elections in the country. Other documents pertaining to the elections organised in the country were also examined – in particular the reports and recommendations of international observation missions – to tease out key elements of the reform.

                            The EC also scrutinized international and regional treaties ratified by Seychelles with an overall objective of ensuring that the legal framework – and hence recommendations as put forward in the reform process – would become better aligned with the regional and international commitments and obligations that Seychelles have assigned to. 

                            The EC undertook comparative research to flesh out and benefit from insights from electoral laws in other countries on the specific issue of nomination processes, whereby electoral legislations from a total of 20 Commonwealth countries were scrutinised. Based on the results, the EC recommended a reduction in the number of voter endorsements required to stand for the presidential and national assembly elections.

                             

                            Engagement of an international expert

                            An international expert in electoral laws and processes was brought on board to give the process an “international dimension” (Roadmap: 4) as well as to enhance trust in the process by including an “outsider” (hence independent) actor. Both the Commonwealth and the European Union had signaled interest in providing technical support to the process and the EC submitted a request and the terms of reference for the assignment to the Commonwealth. The recruitment process was carried out rather quickly whereby the EC submitted a TOR to the Commonwealth after which the latter sent a number of CVs for the EC’s consideration and the expert was selected accordingly. In the recruitment process, the EC had emphasized the need for a person who understood the small country concept and the implications of this situation, hence an expert from Jamaica that was eventually selected. The expert worked with the team over a six months period from June to November 2012. 

                            The international expert was assigned the role as a “facilitator” of the process. He carried out a wide variety of activities, including desk research and providing input from the global comparative experiences. The international expert also took a part in the Forum meetings. As an outsider to the process, he was useful to bring a neutral voice into the discussions when political mocking took over the agenda. Notably, all Forum participants appreciated the international expert input to the process. 


                            Organisation of public meetings

                            The Roadmap set out an ambitious plan for meeting and hearing out a variety of stakeholders – including the organisation of public deliberations in all of Seychelles’ 25 electoral districts. Departing somewhat from this plan, the EC organised a total of seven public events of which five were held on the main island of Mahe and two on the islands of Parslin and La Digue. Discussions evolved around a wide number of issues, from voter registration to voter education to the role of the EC itself and determination of elections dates etc. 

                            The public meetings gathered only a total number of 350 persons, i.e. 50 participants per meeting on average. Whilst having advertised widely, the participation was lower than expected – potentially due to loss of interest on part of the public that, after the contested elections and political squabbles simply wanted to “get on with their lives”. 

                            The “Summary Report of the Outcomes of Public Consultation done through Regional Meetings by the Electoral Commission – February 2012” overviews the comments made in context of these discussions. The report was distributed amongst the members of the Electoral Reform Forum and also made publicly available on the EC’s website. 

                             

                            Establishment of the Electoral Reform Forum

                            In January 2012, the EC established the Electoral Reform Forum comprising representatives from the EC and its secretariat, political parties, civil society, Attorney General Office as well as a representative from the international community. The overall objective of the Forum was “to enable consensus on the most appropriate changes necessary to enhance the principles and practice of democracy in the country’s electoral system” (Electoral Reform Recommendations Report 2013: 1). The Forum met on a weekly basis to ensure continuity of the working relationship – starting up in the morning hours and lasting till after lunch time as necessary – for almost a whole year. The meeting agenda was established by the EC and representatives in the Forum could at any point in time include specific issues in beforehand by submitting proposals to the EC. As a general rule, decisions of the Forum were made by consensus. 

                            Providing a space for political parties to express their grievances in context of the outcomes of the two elections organised in 2011, the Forum went beyond its formal mandate of contributing to the legal reform process. Discussions within the Forum were, from time to time, harsh. As pointed out several stakeholders, there were occasions of walk-outs but at the same times it seemed like wounds were healing during tea and lunch breaks where participants were capable of getting off the “party stage” and discuss on rather on a person-to-person basis. As such, breaking off from the formal agenda was used as a tool to calm down situations where politics took over from considerations regards the best electoral framework for the country.

                            All meetings in the Forum were open to the public. The EC issues press communiques after Forum meeting to inform the public about key decisions and achievements.   

                             

                            Developing EC recommendations report

                            The EC finally put together two recommendations reports, one concerning the Public Order Act and one concerning the Elections Act and the Political Party Act. In terms of content, the reports provides i) the background of the reform process; ii) an overview over the different activities undertaken in context of the process; and iii) a section on recommendations. The latter section is further subdivided into subsection according to the different parts of the Act in question. Each subsection outlines opinions and reflections as put forward by the different parties to the Electoral Reform Forum and as expressed in the public meetings. Also research results, observation report recommendations and relevant regional and international obligations are referred to. Thereafter, the final recommendation of the EC is inserted. 

                            Notably, there was a clear strategy behind the two-stage process whereby recommendations on the POA would be submitted before recommendations on the Elections and the Registration of Political Party Acts. First, EC and the key stakeholders identified the POA as an issue that required priority. Second, and more important in this context, the two-stage process would “allow all stakeholders to gauge the commitment of the Executive and the Legislative bodies to the work of the Commission and the Forum” (EC 2012: p. 0). It should be noted that the POA amendments that were rushed through Parliament in December 2013 finally overlooked many of the important recommendations made by the EC and the Forum and represented a serious blow to the reform process. 

                            Stakeholder relationships

                            With the overall objective of ensuring trust and mutual respect as well as ownership in the reform process, the EC decided that... 

                            Table 3

                            a consultative and participative approach to involve all stakeholders, including individual citizens of Seychelles… is important for the success of the reform (Roadmap: 3).

                            In addition to the public at large, which was involved primarily through the organisation of consultative meetings as mentioned above, the success of the EC’s work built on the relationship it established with the Electoral Reform Forum. 

                             

                            4. Challenges and risks

                            Challenges

                            A key challenge to the electoral reform process in Seychelles is the political will or commitment to the electoral reform agenda. In Seychelles, the ruling party has been in power since 1977 and it has benefited by the existing rules of the game. Any changes to the electoral framework are likely to eventually reduce its power. At time being, it has all but one seat in the National Assembly where the electoral reform bills will need to be voted into law. On the eve of the 2011 National Assembly elections, as it became clear that Parti Lepep would win all but one seat thus giving a blow to the perception of Seychelles as a true democratic state, the President committed to electoral reform. 

                            The commitment to reform was, however, put to the test as the EC forwarded the recommendations for changes to the Public Order Act. Without having discussed the final Bill with the EC and the Forum, the ruling party gazetted the Bill that was adopted (or, according to some interlocutors, “rubber-stamped”) by the National Assembly in December 2013. The members of the Forum have expressed considerable discontent with the process by which the new law came into being as well as its content. Notably, members of the Forum were of the opinion that the recommendations made were not reflected in the new law and that, in some respects, the new law had in fact put further restrictions on political parties’ possibility to organise public gatherings and meetings. At time of writing, the POA is contested in the court system by the SUP, SNP and the CDWS as well as by private citizens for challenging specific paragraphs in the Constitution. Moreover, concerns have been raised from the stakeholders that took part in the reform process through the Forum that the Elections and Political Party Act recommendations may turn to a similar fate. 

                            Finally, it should be noted that the results of the 2011 elections as well as the promulgation of the Public Order Act has raised the eyebrows of the international community who has asserted pressure on the President to commit to the reform agenda in order to ensure that a viable opposition can take part in the country’s politics. 

                            The political situation also made it difficult for the EC to reach out to the public through the state-owned media. The Seychelles broadcast cooperation was invited for several events, including meeting in the Forum, but the EC did not succeed in promoting the reform discussions through TV which is the most consumed media of the citizens. Print media – non-state owned – was more receptive and published several articles on the process and the various issues. 

                            Another contextual factor posing challenges to the process is demographics. Being a small country island with a population of only about 90.000 people and 60.000 voters, everybody knows everybody and what people say will easily get around – for good and for bad. This has made advocacy for the legal reform problematic as people tend to avoid challenging views due to the simple fact that the words may get around and may lead to repercussions. 

                            Risks

                            Based on the experiences of the EC in Seychelles, one of the main risks was related to EC independence and the potential to be seen as biased towards the one or the other side. As expressed by one Commissioner, whilst the Commission itself made recommendations based on the deliberations and what they believed was best for the country (and not what was best for certain party interests), they would nevertheless stand under attack for being taking sides. As a matter of fact, although praising the EC for a job well done on leading the reform process, both the ruling and the opposition parties expressed that the EC had been biased (although both actually believed the EC had been biased towards their own sides). 

                             

                            5. Recommendations

                            1. Electoral commissions embarking on legal reform processes ought to establish a planning document – a roadmap – outlining the background, objectives and process for the initiative. The roadmap ought to be developed in collaboration with key stakeholders to the process – including both the civil society and the political parties. Notably, the roadmap need to be a living document and adapted according to the emergence of new circumstances and issues. Together with the roadmap, EMBs ought to agree early in the reform process how the EC recommendations would be presented and communicated to government and the voters.  
                            2. A close relationship with key stakeholders – such as political parties, civil society organisations, media and the public – is essential to build trust and confidence in the process. Whenever possible, bringing in different stakeholders (e.g. representatives from political parties as well as civil society organisations) to the same table has certain advantages as it provides an opportunity for all to get insights from other set of lenses. It may be advisable to establish a set of “housekeeping rules” for stakeholder meetings.
                            3. International expertise can be a valuable contribution to electoral reform processes. First, international experts can provide insights from global comparative experiences. Second, such experts can serve as facilitators and build further confidence among all stakeholders in the process – especially in circumstances where the electoral commission’s neutrality has previously been contested. 
                            4. It is important that recommendations for legal reform are based on the true convictions of an EMB’s perception of what is best for the country. Whist listening to the opinions of key stakeholders, the EMB – at the end of the day – need to make up their own judgement as concerning the content of electoral reforms. 
                            5. It is preferable to establish a constructive working relationship and regular lines of communication between the EMB and relevant Government departments and Parliamentary Committee that will take over the work of the reform process for bill drafting/tabling and final decision. 

                             


                             

                            [1] On 12 July, the National Assembly adopted a motion to dissolve itself with the support of the PL and one SNP member. SNP claimed that the dissolution was unconstitutional based on procedural errors and put the case in front of the Constitutional Court who, on the 19 July, ruled in favour of the SNP and suggested that the Assembly hold a new vote respecting the rules and regulations. The Assembly did so on the same day, thereby dissolving itself on the 19 July and setting the stage for fresh elections within 90 days. (http://www.ipu.org/parline-e/reports/2279_E.htm

                            [2] The Seychelles electoral system is a mixed member proportional system whereby 25 seats are distributed on the basis of first-past-the-post in single member constituencies with an addition of nine top up seats distributed proportionally among the political parties contesting the elections. 

                            [3] ACE 2014: Seychelles – a new electoral commission. Available at: http://aceproject.org/ace-en/topics/em/electoral-management-case-studies/seychelles-a-new-electoral-commission (downloaded 19 June 2014).

                            [4] ECS, 2011. Roadmap for Electoral Reform.

                             

                            Annex 1: List of references

                            References:


                            Informants: 

                            • Attorney Generals’ Office
                            • Citizen Democracy Watch Seychelles (CDWS)
                            • Electoral Commission of Seychelles
                            • Liaison-Unit of Non-Governmental Organisations of Seychelles (LUNGOS)
                            • Parti Lepep
                            • Popular Democratic Movement (PDM)
                            • Seychelles National Party (SNP)
                            • Seychelles United Party (SUP)
                             

                            Annex 2: About the author

                            Mette Bakken is a Programme Officer at IDEA’s Africa Programme (based in Pretoria) where she is primarily covering the electoral processes portfolio. In this context, she is engaged in the implementation of a wide range of projects on, amongst others, legal electoral reform processes, EMB audit methodologies and capacity building among electoral stakeholders. She has previously worked on elections-specific matters at the United Nations Development Programme (UNDP) and the European Center for Electoral Support (ECES). She holds a MA in Comparative Politics from the University of Bergen (Norway) and in Research Methods from the European University Institute in Florence (Italy). 

                             

                            Sierra Leone: The Role of the EMB in Electoral Reform

                            By Mohamed N’fah-Alie Conteh,

                            Macksood G. Sesay,

                            Edmond Sylvester Alpha

                            1. Background

                            Background

                            The National Electoral Commission (NEC) of Sierra Leone is a corporate independent Election Management Body (EMB) responsible for the organization, conduct and supervision of the essential elements of public elections and referenda.[1] It is comprised of a board of five (5) Commissioners (i.e. one Chairperson and four Commissioners) and a secretariat.

                            For most part of its existence since independence in 1961, especially during the pre-war one-party era (1978-1991) and after the country’s civil war,  the NEC was not only dependent on the executive (i.e. the Ministry of Interior/Internal Affairs) but unable, all by itself and without outside assistance, to conduct credible democratic elections.  It was against this background that the NEC was restructured into an independent and professional EMB in 2005, with the help of the Government of Sierra Leone (GoSL) and its development partners.

                            Legal electoral reform was identified as a priority project in the NEC’s restructuring or transformation process. Thus it formed part of its electoral reform matrix (seven steps) in the 2005-2009 electoral cycle, and in the 2010-2014 and 2015-2019 strategic plans.

                            Prior to the conduct of the 2007 Presidential and Parliamentary elections and the 2008 local government elections, only limited progress was made in the legal electoral reform process e.g. some provisions of the Electoral Laws Act, 2002 were amended (i.e. section 66 which required that serial numbers printed on both the counterfoil and ballot paper was amended). Three regulations/statutory instruments were passed dealing with boundary delimitation and local government elections. 

                            Given the “unfinished business” in the legal electoral reform and its protracted nature, it (i.e. legal reform) was again given a priority in the 2010-2014 electoral cycle and strategic plan. In May 2012, the Public Elections Act (Act No. 4) was passed in parliament.

                            Key objectives of the electoral reform process were:

                            • To consolidate elections related legislation into a single document to enhance ease of reference for stakeholders and election administrators. Before the passing of the Public Elections Act, 2012 elections laws relating to technical matters were scattered into various legal documents: e.g. the 1991 Constitution of Sierra Leone, the Local Government Act, 2004, the NEC Act 2002; the Electoral Laws Act, 2002, among others.
                            • To address short comings and gaps in the country’s election laws (e.g. no specific laws on referendum, boundary delimitation, local government elections, invalidation of election results).
                            • To eliminate ambiguities and inconsistences in the country’s election legislation, identified through practical electoral experiences and election observation reports (e.g. the use of the words “or” and “and” in   sections 37(1) and 108(4) of the 1991 Constitution regarding referendum).
                            • To bring electoral legal framework in line with international and regional instruments signed and ratified by the Government of Sierra Leone (GoSL).

                            It should also be mentioned that NEC considered review necessary also normatively important, recognising that electoral and political party frameworks consist of dynamic evolving legal instruments that ought to be revised to account for new developments.

                            Specific content of the 2012 legal reform

                            The legal reform dealt with a variety of issues, including, amongst others:

                            • The restructuring of the electoral legal framework whereby all elections laws were consolidated into one Act regulating the conduct of all elections and referenda.
                            • Clarification on issues relating to electoral acts vs. NEC regulations – in particular aiming to ensure that electoral laws only deal with fundamental issues and not finer details and ensuring that detailed procedures are outlined in regulations/statutory instruments, which are more easily amended than Acts and are responsive to occurring practical needs.
                            • Clarification on provisions dealing with the holding of concurrent elections (i.e. Presidential and Parliamentary elections to avoid the effects of “honeymoon elections” i.e. election where the Presidential election results may likely influence Parliamentary election results).
                            • The establishment of detailed legislation on boundary delimitation which was viewed as necessary given the politically sensitive nature of boundary delimitation exercises.
                            • The establishment of a section in the Public Elections Act of 2012 to govern election observation process.
                            • Comprehensive legislation on election offences and penalties.
                            • The period of resignation of “public officers” intending to contest elections.
                            • Legislation on procedures for conducting local government elections.

                            Whilst outlining key elements directly linked to election above, it must be noted that the contents of the legal reform process included broad issues of democracy and not specific to the election process, e.g. broader issues like human rights, freedom of association and expression, prohibition of the use of state resources for campaign purposes.

                            2. EMB role

                            Mandate

                            The NEC does not have a formal mandate to engage in legal electoral reform, e.g. draft bills and introduce them directly in parliament. However, section 33 of the Constitution and section 166 of the Public Election Act 2012 (see below) makes provision for the Commission to “make regulations by statutory instrument…” for given effect to its core functions contained both in the Constitution and in the Act. But in order for any statutory instrument/ regulation made by NEC to have the force of law, it must be “published in the Gazette”; “laid before parliament” and “shall come into force at the expiration of a period of twenty-one days of being so laid…”

                            Legal provisions for NEC’s engagement in electoral reform 

                            “Subject to the provisions of this Constitution, the Electoral Commission shall be responsible for the conduct and supervision of … all public elections and referenda; and for that purpose shall have power to make regulations by statutory instrument for the registration of voters, the conduct of Presidential, Parliamentary or Local Government elections and referenda, and other matters connected therewith, including regulations for voting by proxy.”

                            Section 33 of The Constitution of Sierra Leone, Act No 6 of 1991

                             

                             “The Electoral Commission may, by statutory instrument, make regulations for giving effect to this Act”

                            Section 166 of The Public Elections, 2012, Act No. 4 of 2012

                             

                            It is parliament which has the power to make all laws, including legal electoral reform. In practice, since it was restructured in 2005, legal electoral reform process has been initiated by the NEC through the Office of the Attorney-General and Minister of Justice, the Law Officers Department and in collaboration with the Law Reform Commission (LRC). Notably, the LRC has the formal mandate to review all national legislation and make recommendations for reform.

                            It must be emphasized that, electoral legal reform, which culminated to the passing of the Public Elections Act 2012 into Law, had been initiated by NEC in collaboration with the appropriate authorities or bodies i.e. Law Reform Commission, Law Officers Department, Civil Society Organizations with focus on elections, etc.

                            Structure

                            The NEC is comprised by five commissioners and a secretariat. Each commissioner, except for the Chairperson, is assigned with a delegated area of responsibility. The specific area of “legal issues” falls within one specific commissioner’s mandate although decisions are made jointly by the board.

                            The secretariat currently comprises seven departments.[2] Department of Legal Affairs, Research and Documentation, and more specifically its Legal Affairs Unit, is working on legal-electoral issues such as i) facilitation of legal reform, ii) representation of the Commission in litigations, iii) providing legal advice to the Commission and iv) carry out research pertaining to legal issues.  The Legal Affairs Unit has up to four (4) staff members and the unit has a minimal budget line set aside for NEC’s engagement in legal reform purposes and funded by GoSL. Since 2005, NEC’s legal electoral reform project has been supported by an electoral basket fund, with contributions from the international donor community, managed by UNDP. Finally, the NEC has contracted a number of legal retainers (i.e. out-sourced lawyers/attorney services) when additional capacities have been required. 3. EMB approaches

                            The NEC undertook a variety of activities during the legal electoral reform process, such as:

                            • Research on legal frameworks
                            • Post-election review/audit and EOM reports
                            • Collaboration with relevant legal institutions
                            • Drafting of electoral legal bills in collaboration with relevant authorities
                            • Consultations with targeted stakeholders
                            • Sensitization

                            This section provides a detailed overview over some of the main activities and key stakeholder relationships that influenced the trajectory of the NEC’s engagement in the reform process and its outcome.

                            Activities

                            Legal review and contracting of international and national legal experts: As part of the GoSL and international partners’ support to the electoral process, UNDP, in collaboration with NEC, hired international and national legal consultants in March 2006 and June 2010 to assist NEC in its electoral legal reform initiative. The recruitment process, including the development of the Terms of Reference for a Legal Advisor Consultant, was undertaken jointly by UNDP and NEC. The positions were advertised internationally. The NEC finally chose a consultants from a list of CVs submitted by UNDP whereas UNDP finalized the recruitment process itself. Both consultants worked from offices given to them at UNDP and NEC headquarters in Freetown.

                            The NEC also hired the services of a Legal Firm (Mornoma and Fynn) as national consultants to draft proposed amendments to the relevant provisions of the 1991Constitution of Sierra Leone (Act 6 of 1991), dealing with the conduct of elections, the Electoral Laws Act, 2002 and the electoral regulations.

                            The international and national consultants undertook a comprehensive review of Sierra Leone’s electoral legislation (including international legal instruments) and also took into account election observation reports. The review revealed several shortcomings to the electoral and political party frameworks and thus informed the draft recommendations produced by the consultants as well as the reform debate more generally.

                            Development of a compendium on SL electoral laws: In March 2011, the NEC produced a compendium of electoral laws in Sierra Leone with the aim of compiling nearly all existing electoral laws, including regulations, for the period 1991 to 2010 into a single document.  The relevant legislation incorporated into this compendium were:

                            • The Constitution of Sierra Leone, 1991 (Act No. 6 of 1991, including amendments)
                            • The National Electoral Commission Act, 2002 (Act No. 1 of 2002)
                            • The Electoral Laws Act, 2002, (Act No. 2 of 2002, including amendments)
                            • The Political Parties Act, 2002 (Act No.3 of 2002, including amendments)
                            • The Local Government Act, 2004 (Act No.1 of 2004)
                            • The Chieftaincy Act, 2009, (Act No.10 of 2009)
                            • The 2007 Election Petition Rules and a number of other laws affecting public elections
                            • Regulations adopted by the NEC

                            Organisation of consultative workshops: With a view to get further input and validate the recommendations, NEC organized national workshops from 15-17th June 2010 and 29-31 March 2011. Participants included representatives from political parties, the press, civil society, the Human Rights Commission, the Law Reform Commission, the Law Officers’ Department, UNDP, UNIPSIL, USAID, the police, members of the Sierra Leone Bar Association and the NEC. The working documents used were the recommendations contained in the reports of the international and national legal experts. The aims of the workshop were:

                            • To make resolutions for the proposed amendment to the 1991 Constitution and other relevant legislation and regulations and also for the structure of the consolidated Sierra Leone electoral laws;
                            • To discuss and validate the proposed recommendations for legal reform with a view to improving what had already been done;
                            • To learn from participants’ experiences, observations and concerns regarding the proposed amendments; and
                            • To discuss future steps and strategies for engaging government and Parliament in the legal reform process to ensure a sound legal framework for the 2012 elections.

                            The workshops proceeded with topical presentations followed by discussions in smaller working groups, the adoption and presentation of resolutions on the proposed amendments and plenary discussions.

                            Results of the workshop: 

                            •  NEC was able to engage targeted stakeholders and relevant Ministries, Departments and Agencies (MDAs) (including political party representatives, civil society, MPs, the Attorney – General and Minister of Justice (AG/MoJ) and Law Officers Department, the Legislature) and focused their minds on the electoral legal reform process.
                            • Commitments to supporting the process were made by representatives from the Offices of the AG/MoJ, LRC, and Chairperson of the Legislative Committee.
                            • Draft proposals were considered and reviewed by participants and final recommendations made on issues by consensus.
                            • For the first time since 2005, wider consultations with targeted stakeholders were made on the legal electoral reform process.
                            • Next steps in the legal reform process were developed in consultation with the participants.
                            • Workshop report, including recommendations and next steps written.
                            • Electoral legal provisions consolidated into a single document, for the first time in the country’s electoral history.
                            • Participants gained knowledge and understanding on Sierra Leone’s electoral legal framework.

                             

                            The creation of a Technical Committee for Legal Electoral Reform: In the aftermath of the 2011 workshop and based on its recommendations, a Technical Committee was established comprising the National Electoral Commission, the Law Reform Commission, the Law Officers’ Department, civil society and UNIPSIL to “move the electoral reform process forward”. The Terms of Reference of the Technical Committee included:

                            • To collate and review the views and comments in the workshop;
                            • To prepare draft electoral laws by incorporating the proposed amendments agreed upon by the stakeholders at the workshop and prepare them for the next stage of the reform process;
                            • To submit a technical report to the NEC; and
                            • To perform any relevant task assigned by the NEC.

                            The Technical Committee held its inaugural meeting on 5th May 2011 at the conference room of the Law Reform Commission and submitted final report in August, 2011. After weeks of deliberations, the Technical Committee agreed to embark on the production of a draft consolidated Electoral Laws Act.

                            Stakeholder Relationships

                            Through the legal review process, the consultative workshops and work in the Technical Committee, the NEC worked with a wide range of stakeholder during the entire legal electoral reform process , including:

                            • The offices of the Attorney-General and Minister of Justice and the Law Officers Department
                            • The Law Reform Commission, which has mandate to review all national legislation and send recommendations to the  AG/MoJ and Law Officers Department for action
                            • Civil Society Organizations (CSOs) with an elections and legal focus i.e. Sierra Leone Bar Association; Campaign for Good Governance (CGG); National Elections Watch (NEW)
                            • United Nations Development Programme (UNDP)
                            • United Nations Integrated Peace Building Mission in Sierra Leone (UNIPSIL)
                            • Political parties represented at the NEC/Political Parties Liaison Committee (PPLC). The PPLC meets once a month, but twice a month during elections period
                            • Other democratic commissions i.e. the Political Parties Registration Commission (PPRC), the National Commission for Democracy (NCD) and the Human Rights Commission of Sierra Leone (HRC/SL)
                            • Members of Parliament, especially members of the Legislative Committee. NEC engaged MPs in pre-legislative meetings to discuss the draft bill before it was finally debated and passed in the parliament
                            • The judiciary
                            • The media
                            • EMB Network relationships i.e. the ECOWAS Network of Electoral Commissions (ECONEC), the Association of African Electoral Authorities (AAEA) and the Association of World Election bodies (A-WEB)

                            4. Challenges and risks

                            Key challenges and risks to the NEC’s engagement included:

                            • Legal electoral reform is a protracted process. The process which began in 2005 was only finalized in 2012 with the passing of the Public Election Act 2012 into law. Prior to this, NEC had to pass regulations to fill gaps in the legal framework.
                            • Legal electoral reform, if not handled skilfully, will be a politically sensitive venture, especially when done in an election year.
                            • Funding the legal electoral reform process in a non-election year was a challenge to the NECs engagement in the legal electoral reform process. As in most other aspects of elections in emerging democracies, the NEC had to depend on donor funds to cost the legal reform process. Such funds were for example used for the recruitment of foreign experts, etc.
                            • Expectations of, and pressure from, donor agencies to adhere to timelines and achieve goals in record time was also a challenge to the work carried out by the NEC and its partners. This was partly because of the bureaucracy in receiving the necessary funds from both government and donor sources; the waiting for the arrival of international reform experts from abroad and the apparent slow nature and bureaucratic civil service structure on which path the legal electoral reform process must pass.
                            • Some members of the opposition created unnecessary stumble blocks in parliament. The risk in all this was the possibility of political fallout or bickering between the ruling and opposition parties and the subsequent agitation between their respective supporters. In Parliament, the passing of the nomination fees instrument of 2012 was an uphill task.

                            5. Recommendations

                            1. A well thought and planned legal reform timeframe should be established well ahead of time. EMBs should try their best to conclude major legal electoral reforms at least one year before its implementation in elections.
                            2. All stakeholders should be involved in the reform process and be allowed to air out their views and recommendations in the reform process. Without the involvement and good will of key stakeholders such as political parties, the reform would be slow, tedious and divisive. Involvement and participation of stakeholders would not only allay the ever present suspicions and fears of political parties; but also, it will be a platform from which mass sensitization of the electorate on the proposed electoral laws would begin.
                            3. Adequate funding should be made readily available to the legal reform project in order to enable the EMB employ reform experts in time and make follow-ups with the relevant government agencies that need to be supported with logistics and sitting fees during legal electoral reform meetings.
                            4. Parliament, as an arm of government, must be sensitized in pre-legislative meetings on the need for legal reform. Through informing parliamentarians in general and relevant committees more specifically on the reasoning behind the law proposals, EMBs can “build their case” and foster political commitment among the law-makers.
                            5. A mechanism for the reviewing how reformed laws played out in practice should be established, through for example post legal reform assessment workshops, where-in a forum can be called upon to assess the applicability of the reformed electoral laws after their first implementation. This should be done through several workshops involving not only the political parties but also stakeholders such as the judiciary, police, field operators, civil society and ordinary voters who may have observations to make on the new law.
                            6. The process of legal reform must be impartial and inclusive of all key stakeholders.
                            7. There is need to follow international best practice in reforming election related legislation. When engaging in legal reform, EMBs also ought to gather and systematise information about the obligations and treaties which the country has signed up to and use these actively when advocating for change. 

                            Annex 1: List of references

                            Documents

                            • Conteh, M.N. “A Short History of the Electoral Commission of Sierra Leone: 1961-2010” Published in the NEC website: www.necsierraleone.org.
                            • Conteh, M.N. “Stages in the Electoral Legal Reform initiative of the National Electoral Commission: 2006-2011” – paper presented at the Political Parties Registration Commission (PPRC) workshop to review the Political Parties Act, 2002: 5th July, 2011.
                            • International Institute for Democracy and Electoral Assistance (International IDEA):
                              • “Electoral Management Design: the International IDEA Handbook.” (2006).
                              • “International IDEA: “International Electoral Standards: Guidelines for reviewing the Legal Framework of elections “(2002).

                            Reports

                            • Marla Morry, UNDP Legal advisor: “Reform of the Legal Framework for elections in Sierra Leone: Discussion and Recommendations” (June, 2010).
                            • National Electoral Commission of Sierra Leone: 
                              • Annual Reports 2005 to 2012 and Strategic Plans 2005-2009, 2010-2014.
                              • “Preliminary Report of the Technical Committee established for the review of the Electoral Laws of Sierra Leone” (August 2011) :- submitted to NEC by the Technical Committee .
                              • “Report on: The joint workshop on Legal Reform (Elections and Political Parties)” (15th to 17th June, 2010).
                              • “Workshop report on proposed Legal reform and compilation of electoral laws of Sierra Leone” (29th to 31st March, 2011).
                            • Pilgrim, Jessie .V, and Fynn, Reginald Jr “Comments and Recommendations on Electoral Legislation of Sierra Leone” (March, 2006).
                            • Victoria Stewart-Jolley (UNDP Legal Advisor): “Report on the NEC Legal Term 2007 and 2008 Sierra Leone elections”; and “Analysis of the Preliminary Report of the Constitutional Review Commission in relation to the amendments proposed in relation to electoral Matters”.

                            Legislation

                            • The Constitution of Sierra Leone, 1991 (Act No. 6 of 1991).
                            • The Public Elections Act, 2012 (Act No. 4 of 2012).

                              

                            Annex 2: About the author(s)

                            Lead author

                            Mohamed N’fah-Alie Conteh is serving, since May 2009, as one of five electoral commissioners of the National Electoral Commission of Sierra Leone. Prior to this, he worked as an election administrator for 20 years in the NEC secretariat.  In his work with the NEC, he has been instrumental in transforming both the body responsible for conducting national elections and the system of administering them, from one of the worst structures and managed systems during 1970’s and 1980’s to a model system in Africa by 2012. Commissioner Conteh holds a Bachelor of Arts degree in History and Political Science and a post-graduate Diploma in Education from Fourah Bay College, University of Sierra Leone. He also holds a post-graduate diploma in International and Electoral Law from the Institute of Advanced Management and Technology (IAMTECH), Freetown Sierra Leone and various certificates in Electoral Management.

                            Assisting authors

                            Macksood G. Sesay is the Director of Legal Affairs, Research and Documentation National Electoral Commission Sierra Leone. He is a graduate from Njala University, Sierra Leone.

                            Edmond Sylvester Alpha is the Director of Training and Outreach, National Electoral Commission Sierra Leone. He is a graduate from Njala University, Sierra Leone (B.A.Ed. M.A. Ed Literature/Linguistics) former Senior Lecturer, Njala University and Researcher (1996-2006).

                             


                            [1] Notably, functions connected with the registration and regulation of the conduct of political parties are carried out by the Political Parties Registration Commission (PPRC).

                            [2] In 2005, only three departments were existing thus signifying the broader scope of the work that the NEC is engaged in more generally.

                            South Africa: The Role of the EMB in Electoral Reform

                            By Mette Bakken

                            1. Background

                            Background

                            In November 2013, South Africa’s national assembly pushed through a number of amendments to the legal framework that governed the electoral process. Whilst most changes were mainly of a technical nature, two changes had direct implications for enhancing enfranchisement (with particular reference to voters abroad and voters serving a prison sentences).

                            Two Constitutional Court cases provide the back drop for the changes concerning enfranchisement. First, a number of cases consolidated into the so-called “Richter case” were brought before the Constitutional Court challenging Section 33(1) of the Electoral Act and related to voting rights for persons being out of the country during Election Day. The case challenged an article specifying that only members of the diplomatic corps and their families as well as persons temporarily abroad due to holidays or business trips, visits to tertiary or educational institutions, or participation in international sport events were allowed to vote outside the country. In March 2009, the Constitutional Court ruled that “all South African citizens who are registered voters and who will be abroad on polling day will be entitled to vote” (Constitutional Court Case CCT 03/09 and CCT 09/09: 2). Whilst the court ruling ensured that all persons registered to vote were enabled to do so in the 2009 elections, accessibility to the ballot box remained limited for persons residing abroad that were not on the voters roll. In an effort to broaden voting rights, the Independent Electoral Commission proposed to offer citizens abroad with an opportunity to also register outside the country. 

                            Second, amendments to the Electoral Act promulgated in 2003 which affected the rights of prisoners to take part in the elections were put to the test at the Constitutional Court in the “Minister of Home Affairs v NICRO and Others” case. The 2003 amendments established the right for prisoners to register and to vote but excluded a specific group of prisoners, namely those “serving a sentence of imprisonment without the option of a fine” (Electoral Amendment Act 18-2013, Sections 8 and 24B). The Ministry of Home Affairs argued to keep the amendment unchanged due to costs and logistical constraints and also claimed that “making special provisions for convicted prisoners to vote... would send an incorrect message to the public that the government is “soft” on crime” (Constitutional Court Case CCT 03/04: 1). The Constitutional Court ruled in favour of the defendant highlighted that…

                            … given the history of disenfranchisement in our country, the right to vote occupies a special place in our democracy. Any limitation of this right must be supported by clear and convincing reasons (Constitutional Court Case CCT 03/04: 3).

                            In this context, the electoral reform process initiated in 2013 primarily aimed to bring the legal framework governing the electoral process in line with Constitutional provisions as clarified in the rulings of the Constitutional Court.

                            Additional amendments were made responding to operational challenges as identified in the 2009 post-election review process and hence built on the input from IEC internal review sessions, election observation recommendations, opinions as expressed in the National Party Liaison Committee (NPLC) and the Portfolio Committee on Home Affairs. 

                            Content

                            The legal framework governing national elections in South Africa is composed of the Constitution, the Electoral Act 73 of 1996, the Electoral Commission Act 51 of 1996 and the Public Funding of Represented Political Parties Act 103 of 1997. The 2013 review carried out in 2013 only sought to revise sections in the Electoral Act 73.

                            Substantive revisions were proposed for, and later approved by parliament, in the areas of:

                            i)  The right to register and vote for South Africans living abroad; and

                            ii) The right to register and vote for citizens serving prison sentences.

                            In addition, the Bill included amendments related to certain uncontentious definitions and technical aspects. For example, due to the introduction of voting centres and substations at voting centres the legal framework governing the number of polling agents was amended. A total number of 11 clauses in the Act were changed (Electoral Amendment Act 18-2013).

                            It is worthwhile noting that some potential issues were finally not included in the reform process. For example, two submissions that were submitted to the Portfolio Committee on Home Affairs  drew attention to issues concerning the rules regulating nomination of candidates and e-voting, respectively. On candidate nomination, the Commission on Gender Equality (CGE) proposed to revise section 27 of the Election Act in order to ensure that party lists constitute names of women and men who alternate and thereby ensuring that the number of women and man on the lists would not deviate by more than one. In its response, the Independent Electoral Commission supported that the rights of women need to be advanced but argued that there was a need for further interaction with and input from the political parties before enforcing such a quota system. On e-voting, a personal submission was raised asking why the Bill did not include provisions for e-voting referring to Namibia where such legislation had been recently promulgated. The IEC response argued that further investigations had to be carried out as per the indications of a seminar organised on the issue the same year.   

                            Electoral system reform – whereby the current system proportional representation system would be replaced by another proportional representation system with smaller constituencies to ensure greater accountability of MPs – was tabled by MP James Selfe (representing the Democratic Alliance, DA). The private member bill was debated by Portfolio Committee on Home Affairs which decided on adopting a motion of undesirability.

                            Finally, the rules governing party access to public funding remained off the table notwithstanding the observation made by the EISA election observation mission who noted that:

                            “… the ANC enjoys most of the seats in parliament and hence receives a large part of the public funding. The mission is of the view that the law should be reviewed to provide an equal minimum amount to all political parties represented and share another portion of the funds in respect of the number of seats won in parliament” (p. 13)

                            IEC undertook an internal research process in regards to party financing regulations, but the report has not yet been disclosed and the debate is pending.

                            Circumstances

                            Vibrant discussions took place between the IEC and the political parties – both in individual meetings as well as through the NPLC. Upon presenting the IEC proposal, the political parties forwarded numerous submissions suggesting either slight revision of the IEC proposed texts and/or raised additional issues that they believed ought to be on the reform agenda. Continuous deliberations between the IEC and the political parties took place over a 6-month period.

                            2. EMB role

                            Mandate

                            The Electoral Commission Act 51 of 1996, para. 5, outlines the powers, duties and functions of the IEC. In the field of electoral reform, it establishes that the IEC shall:

                            “(j) continuously review electoral legislation and proposed electoral legislation, and… make recommendations in connection therewith”

                            In the IEC Vision 2018 (IEC 2011), the IEC outlines five strategic priorities of the organisation. Under priority number 1 concerning the achievement of “pre-eminence in the area of managing elections and referenda”, it is established that the IEC will contribute to “Continuously improving the legislative framework” (IEC 2011: 9).

                            Scope

                            The IEC plays an important role in the reform processes related to the legal framework governing the elections. In practical terms, the IEC:

                            • Carry out post-election and post-referenda assessments
                            • Initiates reform process
                            • Provides recommendations on electoral reform issues
                            • Drafts bills

                            Structure

                            Two key units within the IEC are crucial to electoral reform processes. First, under the leadership of the Chief Electoral Officer, the Electoral Operations Division conducts internal post-election evaluation sessions. The outcomes of this process are fed into policy development phase, which also includes research into international practices. Following the debate and adoption of policy positions, the Legal Services Unit drafts legislative amendments in support of approved policy positions.

                            3. EMB approaches

                            Activities

                            Research and policy development

                            The IEC occasionally carries out research and develop policy positions on key topics related to electoral reform issues. In context of the 2013 reform process, research was done in areas of international trends and best practices in topic areas such as administration of voter registration and out-of-country voting (OCV). Based on this research, the IEC developed policy papers that provided an overview over the different options at hand and their implications from a technical point of view. Internal workshops were organised in which the options were further deliberated on and, finally, the a policy approach was adopted at the Commissioner’ level.[1]

                            Seminars

                            Following the 2009 elections and upon the request of the President, the IEC also undertook investigations on the concept of and international experiences related to electronic voting technologies. In March 2013, the IEC organised a seminar entitled “E-voting: An enabler or disabler to strengthen electoral democracy?”. The two-fold objectives of the seminar were i) to acquire a deep understanding of e-voting based on international and local expertise and ii) to test the views on e-voting  among local stakeholders (IEC 2013a: 35). The seminar gathered international expertise from countries like Brazil, India, Ireland and the Philippines as well as a variety of stakeholders from within the country, including IEC staff at national and provincial levels, political party representatives, ICT experts, academics, media etc. (IEC 2013b). Prior to the seminar, the IEC had commissioned a research project that was presented alongside the case study experiences from the above-mentioned countries and comparative experiences from across the globe by amongst others International IDEA. More than 200 participants took part in the two-day event. Notably, the research and seminar was used as the basis for responding to the personal submission that dealt specifically with the issue of e-voting during the public hearing on the Electoral Bill that took place in August-September 2013.

                            Developing a draft Bill

                            IEC is engaged in the drafting of bills that they present to the Portfolio Committee on Home Affairs. Looking more in detail at the 2013 reform process, legislative amendments were drafted based on the adopted policy position as mentioned above. The draft bill was presented to the NPLC for their input and feedback and, consequently, new rounds of re-drafting and “text tweaking”. Finally, the draft was put forward to the Portfolio Committee on Home Affairs and, once again, refinements were carried out to the specific text in question.

                            Implementation

                            Being responsible for organising elections, the IEC of course plays a key role in operationalising plan, inform and implement legal reforms. During the autumn of 2013, the IEC started preparing for the implementation of the new laws concerning OCV. Whilst the parliamentary process was not finalized and hence the new law had not come into being, the IEC initiated a parallel process due to the strict timeline under which it was working. Under this process, it prepared for out of country voter registration and voting under both the existing legal framework as well as under the potential new law vis-à-vis the Ministry of Foreign Affairs and the foreign missions. The most crucial issue in this regard was to ensure that staff dedicated to registering voters and to receiving ballots in foreign missions would be up to speed with the new legal framework to avoid misunderstandings and confusion.

                            Stakeholders

                            The most important external relationships for IEC to nurture and consult during the electoral reform process were the representatives to the NPLC, the Portfolio Committee on Home Affairs and the Ministry of Home Affairs.

                            National Party Liaison Committee and political parties

                            Discussions vis-à-vis political parties took place under a two-fold arrangement. First, legal reform issues, including draft bill proposals, were deliberated on in context of the Party Liaison Committee meetings on provincial and national levels. The PLC and NPLC constitute the platform established by regulation under the Electoral Commission Act. The overall objective of the PLC is to:

                            “… serve as vehicles for consultation and co-operation between the Commission and the registered parties concerned on all electoral matters, aimed at the delivery of free and fair elections” (Electoral Commission Act, Regulations on Party Liaison Committee, schedule 6)

                            In addition, the IEC engaged in continuous discussions with political parties on an individual basis. On some occasions, IEC picked up issues also from media debates often initiated by political party representatives on particular legal issues of concern. As a result, the political parties had multiple entry points for providing input (directly and indirectly) to the process.

                            Portfolio Committee on Home Affairs

                            IEC reports to the Parliament with which it relates first and foremost interacts with the Portfolio Committee on Home Affairs. When electoral reform is debated in Portfolio Committee, the IEC takes part in meetings to provide information and briefings (e.g. providing response to submissions to the Portfolio Committee’s call for comments on the Electoral Amendment Bill), to observe deliberations (e.g. during the presentation of a Private Member Bill in the electoral field) and to play an advisory role on implications of the policy options discussed.

                            IEC – internal relationships

                            The legal framework governing the work that is carried out by the IEC stipulates different roles and responsibilities also internally. This means that, for example, the Commissioners (lead by the Chairperson) and the administration (lead by the Chief Electoral Officer), respectively, have specific mandates to fulfill. In 2009, the courts were asked to interpret the role of the commissioners versus the administrative arm of the IEC in relation to an issue related to candidate list submissions. It should be noted that the process was amicably implemented and aimed to ensure clarifications on the roles and responsibilities of the different branches of the IEC as per the legal framework in place.

                            4. Challenges and risks

                            Looking specifically at the 2013 reform process, the following risks can be identified:

                            • Time management: The issue of having adequate time to carry out fruitful consultations is a sin qua non for the process itself and for ensuring buy-in from key stakeholders in the end result. At the end of the day, the actual adoption of a new law lies with the Parliament and the IEC obviously has no influence of their schedule.
                            • Building consensus among key stakeholders: The consensus-building stage is crucial. Provided that consensus is not developed, there is a risk that key stakeholders may bring their case into the court system (i.e. political parties as was the case in the reform process of 2013). Awaiting the results of court rulings, the IEC would need to take into account possibly further delays which at the end of the day may impact on their capacity to implement reforms.
                            • Effectuating change: Provided strict timelines, there may be lack of time to implement administrative adjustments to give effect to legislative amendments
                            • Knowledge management and staff turnover: Another big risk factor that emerged in the 2013 reform process related to the fact that key staff involved in the process retired and/or left their jobs. As individuals with particular experience in legal drafting left their jobs, a vacuum developed that had to be tackled for the process to continue with the speed that was required.

                            5. Recommendations

                            1. Plan and commence legislative reform well in advance in order to allow for adequate time for consultations with key stakeholders and for reaching sufficient consensus. Take into consideration the time allocations required for the Parliamentary process to take place – which is beyond the control of the EMB.
                            2. Plan and organise in advance for anticipated legislative amendments and their impact on the administration of delivering electoral processes. This work relates particularly to the training of voting staff, party agents, election observers as well as the updating of related manuals for training and operational processes. Partners – such as the Ministry of Foreign Affairs in the case of changes to the legal framework governing out of country voting and voter registration – need to be appropriately briefed on the implications of the new laws on their work.
                            3. Plan and implement effective knowledge management systems to off-set loss of institutional memory and ensure the existence of contingency planning in terms of key personnel engaged in the legal reform process.

                            Annex 1: List of references

                            References:

                            Laws:

                            Constitutional Court Case Documents:

                             

                            Informants:

                            • Independent Electoral Commission – South Africa (IEC)
                            • Electoral Institute for Sustainable Democracy in Africa (EISA)

                            Annex 2: About the author

                            Mette Bakken is a Programme Officer at IDEA’s Africa Programme (based in Pretoria) where she is primarily covering the electoral processes portfolio. In this context, she is engaged in the implementation of a wide range of projects on, amongst others, legal electoral reform processes, EMB audit methodologies and capacity building among electoral stakeholders. She has previously worked on elections-specific matters at the United Nations Development Programme (UNDP) and the European Center for Electoral Support (ECES). She holds a MA in Comparative Politics from the University of Bergen (Norway) and in Research Methods from the European University Institute in Florence (Italy).

                             


                            [1] In between the 2009 and 2014 elections, the IEC also undertook studies in the area of political financing. The internal report looks into comparative experiences from other countries and implications of various policy options at hand. It is likely that the issue may feature in future reform processes. Taking into account that the issue – similar to the issue of electoral reform – is likely to be a “hot potato” due to its political implications, it is an area where IEC treats with care and ought to defend its neutrality confronted with strong political opinions from the political parties’ side.

                            Zambia: Insights into EMB role and approaches of engagement

                            by Dimpho Motsamai *

                            1. Background

                            Zambia’s legal and electoral reform process and record is exceedingly complex and mixed. Successive governments have taken up reform initiatives since the return of multiparty politics in 1991, with limited success. The country heads to the polls in 2016 amid an ongoing constitution-making process. A draft constitution was recently made public in August of this year following several months of impasse. An amendment bill has since been tabled in parliament.[1] The amendment bill only pertains to sections in the document regarded as “non-contentious.” The remainder of the document will be put before a national referendum for approval.  

                            The last major legal and electoral reforms in Zambia were conducted in 2006. They were triggered by various concerns from political parties, civil society organisations (CSOs), and donors regarding shortfalls in the prevailing framework.  Complaints were lodged after a contested landslide victory of the winning candidate with 29 percent of the overall vote compared to the 27 percent received by his rival in the 2001 election. At the backdrop of these complaints, President Mwanawasa from the ruling Movement for Multi-party Democracy (MMD), appointed the Electoral Reform Technical Committee (ERTC) and the Mung’omba Constitution Review Commission (CRC) to review the electoral and constitutional frameworks, respectively.[2]

                            The ERTC was constituted in 2003. According to its terms of reference, it had to: analyse and make recommendations regarding the legal electoral framework; examine legislation that impacts the electoral system; and make recommendations on amendments in line with Zambia’s legal requirements for the conduct of democratic elections.[3] The ERTC was comprised of 25 representatives from various organisations involved in the conduct of elections, including four representatives from the Law Association of Zambia; three from the Electoral Commission of Zambia (ECZ) and the Local Government Association; two from the Zambian Police Service, the University of Zambia, CSOs and the media; and one representative each from the Office of the President, the Vice-President, the National Economic Advisory Council, the Cabinet Office, the Ministry of Finance and the Ministry of Justice.  The ERTC released its final report in July 2005.

                            The report’s recommendations were categorized into two sections. The first concerned proposals or issues that had a constitutional bearing. The second category regarded issues that did not border on amending the constitution. The Ministry of Justice compiled non-constitutional recommendations that were translated into the Electoral Act of 2006. The Justice ministry decided that the remaining recommendations that required constitutional amendment would be deferred to the committee presiding over constitutional revision. These included proposals to change the electoral model and institutionalizing the independence of the ECZ.  Moreover, the report highlighted what it referred to as ‘contentious issues’ in Zambia’s electoral framework. They included the “50 plus one” clause, which requires the winner of presidential elections not to just win the most votes, but to secure a simple majority.  The transitional period for an incoming president, repealing the Public Order Act, revising the parental clause, and the legal requirements for election petitions were also among the issues listed.[4]

                            It is important to highlight that the processes of the ERTC and the Mung’omba Constitution Review Commission ran concurrently.  The latter’s report was released in December 2005 along with a draft constitution. A National Constitutional Conference (NCC) was subsequently appointed in 2007 by then-President Levy Mwanawasa to review the CRC draft. But, the process was hamstrung from the beginning. CSOs and the opposition challenged its composition alleging that it was ‘MMD heavy’ and unrepresentative. The NCC was then boycotted by the Patriotic Front (PF), one of the major opposition parties.

                            These groups also raised reservations concerning the substance of the CRC’s draft. It was critiqued for omitting important clauses, such as the inclusion of social and economic rights in the Bill of Rights and the requirement that the president be elected by 50 percent plus one of votes cast. Nonetheless, the NCC submitted its draft constitution in August 2010. It was presented to parliament the following year. But the entire process collapsed when the Constitution Bill was tabled for legislation. The majority of opposition MPs abstained from the vote and it became impossible for the ruling MMD to get the two-thirds majority required to move ahead with the new constitution. The entire exercise had taken eight years and failed to reach a conclusion.

                            A newly installed PF government resuscitated the constitutional review process in 2011.  But it has also stalled and was yet to be concluded at the time of writing.[5] In essence, there has been no major progress on legal and electoral reform between 2006 and 2015, mainly because of the inability to complete the constitutional review process.[6]  Additionally, the drafting of a constitution in Zambia has been a political rather than a legal process.

                            2. EMB role

                            The ECZ was founded in 1996 as an independent and autonomous body responsible for managing the country’s electoral processes. It is established under Article 76 of the Zambian Constitution, which outlines its mandate.[7] Accordingly, it is to conduct and supervise the country’s presidential and parliamentary elections, the registration of voters, and review Zambia’s electoral boundaries. The ECZ is also guided by the Electoral Commission Act No. 24 of 1996. The Act provides for its composition, the appointment and tenure of its commissioners, financial regulation, and matters connected to its administration. An additional piece of legislation, the Local Government Elections Act of 1997, gave it powers to conduct local government elections.[8] In addition to its constitutional functions, the Commission has several statutory tasks to perform. They include:  voter education, conducting referenda, formulating and reviewing electoral regulations, resolving election disputes, and performing other statutory functions that may be required by parliament.

                            However, the Commission’s role in conducting legal and electoral reforms is not elaborated in the constitution or in existing electoral legislation. This means it has no formal mandate to fulfill this task. It does have administrative and regulatory powers to initiate legislation pertaining to the conduct of elections.  But this is only in the form of statutory instruments like the electoral code of conduct and conflict management regulations. The ECZ can perform this task any time during the electoral cycle. 

                            The ECZ’s legal department supports it by carrying out legal and other related research. But the department is small – it is currently comprised of three lawyers. In practice, the engagement of the ECZ in electoral law reform is consultative and ad hoc in nature.  This is best illustrated by the degree of participation of its commissioners in past review committees. They mostly provided input only at the invitation of the committees, and the number of  ECZ officials that participated was very low. 

                            Another restriction on the ECZ is that it cannot initiate and draft electoral bills independently and take them to parliament. It relies on the executive through the Ministry of Justice to do this.  The Commission can make legal and policy recommendations to the ministry, but the ministry exercises discretion over what it chooses to take on board. [9]> Lastly, the ECZ does not have autonomous funding and depends heavily on the executive for its operational budget. Because it has no formal mandate to review electoral legislation, most activities in this area are simply not budgeted for.  The Ministry of Finance has control over the release of its financial appropriations, possibly creating policy and administrative uncertainty.

                            3. EMB approaches

                            Activities          

                            Although the ECZ does not have a formal mandate to conduct electoral reform, it has actively spearheaded the revision of various rules and regulations aimed at increasing stakeholder confidence in the country’s electoral process. Typically, its approach involves conducting internal research and analysis from relevant departments on a specific area. It then collaborates with relevant CSOs, political parties, and government departments to solicit inputs and buy-in. Multi-stakeholder workshops have frequently been convened to produce policy documents on proposed regulations and raise awareness of new ones. Three such efforts to revise the electoral process are noteworthy.

                            The first is the introduction of biometric technology to improve voter and civic registration. The integrity of the voter register was always questioned in Zambia because of duplication and weak verification controls.  Voter registration is continuous and the commission has the mandate to carry it out.  From 2008/9, the ECZ, together with the Department of National Registration, Passports, and Citizenship, pioneered efforts to develop the use of biometric technology to conduct voter registration. This technology was aimed at improving civil registration as well as introducing the biometric national identity card for Zambian citizens. The process was reported to be inclusive and transparent, with regular consultation between the ECZ and stakeholders.[10] For example, political parties were consulted through regular liaison meetings. CSOs were also consulted through a National Voter Education Committee (NVEC), enabling the ECZ to support CSO capacity for voter education.  The UNDP, a key development partner of the Commission, provided technical assistance to the process as well as funding for voter registration.[11] The biometric voter registration exercise contributed to the credibility of  the 2011 polls and subsequent electoral processes.

                            A second example is the revision and updating of the Electoral Code of Conduct.  The ECZ convened a workshop in 2010, with representatives from registered political parties, CSOs working on governance and election-related issues, and church bodies. The workshop featured academics as resources and consultants from the UNDP, who shared their policy experiences. Various media houses were invited to support its communications strategy.[12]   This process resulted in a new Electoral Code of Conduct, legislated in 2011 through a statutory instrument.[13]  A final example is an initiative the ECZ led in 2011 to develop two handbooks on conflict resolution and voter education. The documents have provided guidelines to the commission’s work in this area.

                            Stakeholders

                            Keeping in mind that ECZ engagement in electoral law reform work is limited, the following represents the main stakeholders the body works with:

                            • The Ministry of Justice: According to the ECZ, while all relationships are important, its relationship with the Ministry of Justice is the most significant. The Ministry of Justice is the only body that drafts bills and submits them to the executive for cabinet approval. The ECZ can only make submissions on draft legislation through it.[14]
                            • National Assembly of Zambia: The ECZ can make inputs into submissions made to parliament concerning its operations and the country’s electoral process. The National Assembly also approves the ECZ’s budget.
                            • Review Commissions: In the 2003-2006 electoral reform process, three ECZ commissioners were part of the ERCT. They presented proposals on behalf of the ECZ.[15]  
                            • Donors: Development partners have provided long-term support for the Commission’s systems and processes. Similarly, they have provided specific support aimed at strengthening the ECZ’s capacity for harmonising and revising aspects of legislation.
                            • Political parties: The ECZ interfaces with political parties through party liaison committees. These are an important mechanism for consultation and co-operation between the ECZ and registered parties on all electoral matters.[16]
                            • CSOs: The ECZ invites various organisations to work with it from time to time – supporting its capacities for research and policy development throughout the electoral cycle.
                            • Other institutions: These include the media and governmental departments that play a role in the enforcement of electoral codes. For example, the ECZ can invite the media to help raise awareness of its activities. Government departments like the Anti-Corruption Commission and the Zambia Police have participated in processes revising electoral regulations.

                            4. Challenges and risks

                            The main hurdles impacting the ECZ’s role in legal and electoral reform processes in Zambia concern its mandate, administration, and financial capacity. Firstly, it has no legal mandate to initiate such reforms, nor the power to draft legislation. In its history, the Commission has never been mandated to run a reform process. Its role is limited to policy input as required by electoral reform committees. Therefore, it cannot initiate the process without being authorized by government. The Commission is essentially part of government and cannot be seen to act against it.[17]

                            On the administration side, some challenges that may hamper the ECZ’s work in legal and electoral reform concern its decision-making and institutional structure. Decision-making has been highly centralised in the past, meaning the lower levels of the ECZ hierarchy have not had a well-defined mandate. The division of responsibilities between the Commissioners and the ECZ management has, in the past, not been well articulated. Inter-departmental coordination and collaboration has generally been weak as well, potentially weakening the ECZ’s capacity to make policy inputs.[18] 

                            The ECZ  has no independent source of funding too. It is currently funded in a similar manner as line ministries and gets allocations from the Ministry of Finance and the National Planning ministry. Both ministries exercise tight regulation over financial disbursements. ECZ budgets are often subjected to amendments from the Treasury to meet predetermined ceilings, which are determined by the Treasury without consultation with the ECZ. 

                            Another challenge that affects the ECZ’s ability to engage more robustly in reform is the fact that electoral reform has been intertwined with the drafting of the constitution. In essence, electoral reform has hinged on successful constitution making. This is problematic because historically, constitutional reform processes have been long, contentious, and unyielding.[19] If it collapses, electoral reforms initiatives fail. [20] 

                            Lastly, Constitutional reviews in Zambia have been guided by a piece of legislation called the Inquiries Act.[21] It gives the President a monopoly over the overall process, including powers to determine its scope and the institutions that manage it. Ultimately, the Act makes it the exclusive prerogative of the President and his cabinet to accept or reject proposed recommendations.

                            5. Recommendations

                            Building on the lessons learned from the ECZ’s rather limited engagement in electoral law reform processes, the following is recommended:

                            • Advocate for a clearer legal mandate: The ECZ ought to advocate for clarity regarding its role in electoral law reform processes. Surely, an EMB is both an implementing agent and stakeholder in the process. The Commission sits on substantial experience and information regarding electoral management and regulation and has first-hand insights into the technical and operational implications of new laws. It could thus play a more substantive role if given legal teeth.
                            • Lobby for financial independence: When an EMB’s financial independence is in question, it ought to lobby the government and parliament to ensure an adequate funding framework.[22] Without such independence, EMBs engagement in reform processes is severely constrained. In Zambia, different models could be considered. One could be for the ECZ to develop its own independent budget and timeline. It then receives funding directly from Parliament, which would exercise oversight and scrutiny. Another option is for the ECZ to ascertain specific funding from the government for supporting electoral reforms in periods where the exercise is ongoing.
                            • Strengthen capacity to revise election regulations: The ECZ has been strong in initiating and developing various election regulations. This is an area within its mandate in which it has a rich competency. The capacity to develop such regulations should be continually strengthened by increasing the budget to these activities.
                            • Internal research capacity development: Capacity building is required for EMBs to engage effectively in electoral reform processes. The institutional capacities of the ECZ in legal research need strengthening. It would be useful for the ECZ to provide a needs assessment on building its internal research capacity.

                             

                            Annex 1: References

                            Civil society resolutions on basic minimum principles on the Constitution, May 2013, Protea Chisamba Hotel, Lusaka, Zambia, (unpublished)

                            D Motsamai, Zambia’s constitution making process: addressing the impasse and future challenges, Institute for Security Studies, Situation Report, January 2014

                            Erdmann, G and Simutanyi, N. (2003) Transition in Zambia: Hybridization of the Third Republic, Lilongwe: Konrad Adenauer Foundation

                            Electoral Commission of Zambia, Strategic Plan, February 2010, (As Revised in July 2012) Interim Report of the Electoral Reform Technical Committee, 2004

                            Electoral Reform Technical Committee (2005), Final Report, at http://www.ertc.gov.zm/sites/eisa.org.za/files/imports/importdata/images/documents/Final%20ERTC%20Recommendations% 20and%20Report.pdf  (accessed 9 Mar 2012).

                            Government of the Republic of Zambia,  (1996) Constitution of Zambia

                            Government of the Republic of Zambia (GRZ)-United Nations Development Programme (UNDP) Governance Programme (2011-2015) at http://www.zm.undp.org/content/dam/zambia/docs/legalframework/Zambia_2012-2015%20Governance%20Programme%20Document.pdf

                            L M Mbao, The politics of constitution making in Zambia: where does the constituent power lie? Draft paper presented at the African Network of Constitutional Law Conference on Fostering Constitutionalism in Africa, Nairobi April 2007

                            Norwegian Agency for Development Cooperation, (2008) Evaluation of Norwegian Development Support to Zambia (1991 - 2005) Oxford Policy Management,

                            The Constitution Review Commission, The 2005 report of the Constitution Review Commission, Zambia

                            The National Constitution Convention of Zambia, at http://www.ncczambia.org/draftconstitution.php 

                             The consolidated Inquiries Act at http://www.zamlii.org/zm/legislation/consolidated-act/41

                            TCDZC Press Release, Technical Committee resolution on the handover of the final draft Constitution, Lusaka, Zambia, 8 November 2013

                             

                            * Dimpho Motsamai is policy analyst with the Conflict Prevention and Risk Analysis division of the Institute for Security Studies. She is currently pursuing her Doctorate at the University of the Witwatersrand, Johannesburg South Africa and publishes extensively on governance and conflict dynamics in the Southern African Development Community (SADC) region.

                             


                            [1] The Constitution of Zambia Amendment Bill and the Constitution of Zambia Bill can be accessed at http://www.parliament.gov.zm/node/4402 (accessed 5 October 2015)

                            [2] See, the Electoral Reform Technical Committee (2005), Final Report, at http://www.ertc.gov.zm/sites/eisa.org.za/files/imports/importdata/images/documents/Final%20ERTC%20Recommendations% 20and%20Report.pdf  (accessed 9 Mar 2013).

                            [3] As above

                            [4] The  parentage clause refers to the parentage qualification for election to the presidency as stipulated in the Zambian Constitution. According to Article 34 of the Zambian Constitution, a presidential candidate’s parents must be Zambians by birth or descent. 

                            [5] See D Motsamai, Zambia’s constitution making process: addressing the impasse and future challenges, Institute for Security Studies, Situation Report, January 2014

                            [6] The 2006 Electoral Act is lauded for establishing national and district level conflict management capacities for the ECZ.  For the first time, an Electoral Code of Conduct that outlines the rights and duties of candidates, parties, the ECZ, the police, the media and observers during the electoral process was developed. The 2006 Electoral Act also introduced voter education as part of the ECZ’s mandate.

                            [7]  The ECZ’s profile can be accessed on its home page, at http://www.elections.org.zm/establishment.php (accessed June1, 2015)

                            [8] Electoral  Commission of Zambia, Strategic Plan, February 2010, (As Revised in July 2012), p.4

                            [9] Before a bill is presented to parliament, cabinet sits to approve it. The only other way a Bill is presented in parliament is through a private members motion

                            [10] Author telephone interview with an official from the ECZ, 12 October 2015

                            [11] For more information on this see UNDP Zambia, Independent External Evaluation of the  Electoral Cycle Management Project – Zambia (2009 – 2012)

                            [12] Author telephone interview with Mr McDonald Chipenzi, Director at the Foundation for Democratic Progress (FODEP), Zambia, 12 October 2015

                            [13] This is not electoral law reform in the strict sense as it deals with regulations, but it certainly forms a part of the broader legal framework governing elections.

                            [14] Author interviews with ECZ officials, 2 June 2015

                            [15] Interim Report of the Electoral Reform Technical Committee, 2004

                            [17] While the ECZ is established to operate as an independent body, its autonomy can be affected by political interference to varying degrees.

                            [18] As elaborated in the ECZ Strategic Plan 2010-2015

                            [19] The record of Zambia’s constitutions and constitution review commissions from 1964 to 2011 can be accessed at the website of the National Constitution Convention of Zambia, at http://www.ncczambia.org/draftconstitution.php  (accessed 25 May 2015)

                            [20] This has been covered extensively by various authors including: G. Edman and N. Simutanyi (2003, 2013); M. L. Mbao B. (2007); T. Israel (2012); D. Motsamai (2014); E. Hayward, (2010) among others.

                            [21] See the consolidated Inquiries Act at http://www.zamlii.org/zm/legislation/consolidated-act/41 (accessed 5 June 2015)

                            [22] Author interviews with ECZ officials, 10 June 2015

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                            Legal Framework