The Legal Framework: The Context for the EMB’s Role and Powers

Because most EMBs make and implement important decisions that can influence the outcome of an election, the primary objective of a legal framework is to guide the EMB and to facilitate its delivery of a free and fair election to the electorate. The success of the election process depends heavily on the formulation of appropriate electoral laws embedded in a legal framework. The incorporation of election regulations into parliamentary legislation is an important step when building a tradition of independence and impartiality, and when trying to inspire the electorates’ confidence in the electoral process.

International Treaties and Agreements

Many United Nations (UN) member countries incorporate into their domestic law (using a variety of constitutional means) key UN decisions and treaties, such as the 1948 Universal Declaration of Human Rights and the 1952 Convention on the Political Rights of Women. In such cases,, domestic electoral laws, and the EMB’s policies and actions, need to consider the treaties’ provisions relating to issues such as:

• universal and non-discriminatory suffrage,
• secret and free voting,
• the rights of women to be elected and hold public office,
• and the rights of minority language groups.
  
  

Bilateral agreements between countries and regional bodies on supranational bodies (such as for the European Union) may also contain electoral requirements. While complementary laws are usually required to give effect to such treaties, EMB actions in contradiction to rights stipulated in ratified treaties may still be legally challengeable.

It is also common in the Organisation for Security and Co-operation in Europe (OSCE), Organisation of American States (OAS), Southern African Development Community (SADC), and Economic Community of West African States (ECOWAS) regions for member countries to implement treaties and decisions adopted by such regional bodies, either through legislative or executive ratifications. One example of such regional and enforceable treaties that affect the legal frameworks for EMBs is the ECOWAS Protocol on Democracy and Good Governance of 2001, which provides for member countries to commit themselves to independent or impartial election administration and timely election dispute resolution.

In addition to the ratified, binding treaties and decisions, there are non-binding decisions by international and regional bodies. In October 2005, the Global Declaration of Principles and Code of Conduct for International Electoral Observation was adopted by the United Nations and by a wide range of global and regional organisations. In the SADC region, for example, the Electoral Institute of Southern Africa (EISA) and the Electoral Commissions’ Forum of SADC countries (ECF) have developed and adopted jointly the “Principles for Election Management, Monitoring and Observation” (PEMMO), while the SADC Parliamentary Forum has established its own election norms and standards. These sets of principles, guidelines, and standards serve as benchmarks against which observer missions in the region assess whether an election is free and fair.

The Constitution

A growing number of countries are incorporating fundamental electoral provisions in their constitutions, often including the specification of the EMB. Countries like Bangladesh, Costa Rica, Fiji, Ghana, India, Indonesia, and Uruguay set up their respective EMBs as constitutional bodies. This makes the altering of the EMB’s status and other constitutionally defined elements more difficult. Constitutional provisions are almost always more entrenched than mere laws, requiring for example an extraordinary majority in the legislature or a referendum to change them. The barrier that constitutional entrenchment imposes on ruling parties which wish to change electoral provisions to their advantage gives opposition parties a feeling of greater protection than if those provisions were contained in statutory law, which can be altered by a majority in the legislature, or in government regulations.

The range and nature of electoral-related provisions which are considered appropriate to be set out in a country’s constitution varies widely according to local considerations. Some examples follow.

• Austria’s Constitution sets out EMB membership, the franchise, the Constitutional Court’s role in election disputes, and the election system;

• the Constitution of Bangladesh defines the powers, independence, and functions of the EMB, the franchise, candidate qualifications, and election date deadline;

• Cameroon’s Constitution deals with political party rights, candidate qualifications, election date deadlines, and the powers of the Supreme Court and Constitutional Council relating to electoral disputes;

• in Costa Rica, the Constitution establishes the independence, membership, and functions of the EMB, and deals with the franchise, political party rights (including government funding), election systems, and qualifications for candidacy;

• for elections in the Czech Republic, the Constitution defines the franchise, the election system, and election date deadline;

• Ghana’s Constitution deals with the franchise, establishment of the EMB, the right to form or to join a political party, and the delimitation of electoral districts;

• in India, the Constitution has provisions establishing an EMB, dealing with the franchise, the electoral register, barring the interference of the courts in electoral matters, and reserving seats for legally defined “Castes” and “Tribes” in the House of the People;

• Madagascar’s Constitution sets out candidacy rights, the election systems for the senate and the presidency, and the Constitutional Court’s role in elections and election disputes;

• the Namibian Constitution enunciates the qualifications and procedures for presidential elections;

• Peru’s Constitution deals with the autonomy, membership, and functions of the National Elections Board, which supervises election processes, and is responsible for party registration, the announcement of the results, and electoral dispute resolution. The Constitution also empowers the National Office of Electoral Processes to organize materials and logistics, funding, and vote count information for all electoral events, and sets out the qualifications for its chief executive; and empowers the National Registry of Identification and Civil Status to create the voters register from its civil registry database.

Similarly-targeted electoral provisions in constitutions may also be drafted in very different ways. Consider the following two examples of constitutionally defined ‘independence’ of an EMB:

"Except as provided for in this Constitution or any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission shall not be subject to the direction or control of any authority or person" – article 46 of the Constitution of Ghana.

"General elections shall be organized by a general election commission of a national, permanent, and independent character" – article 22E(5) of the Indonesian Constitution.

While enshrining major electoral provisions in the constitution generates confidence in the electoral system, there may be disadvantages if these provisions are too detailed. The legal framework may then be difficult to change in the light of experience because of the difficulty in meeting constitutional change barriers or the length of time it takes to effect constitutional change.

The extent to which electoral provisions are incorporated in the constitution is significantly affected by the level of public trust in the election administration of the country. In many established democracies where a high level public trust exists in law-making and public administration in general, and the organisation of elections in particular, constitutions do not make reference to EMB design issues. Yet it is common – and not only among fledgling democracies – to have independent and robust EMBs which are supported by sophisticated and detailed legal frameworks which incorporate key electoral provisions in the constitution. This practice fosters stakeholder confidence in the electoral process.

Electoral Laws: Acts and Ordinances

An EMB may be established by statute, through an act of the legislature. Countries like the UK, which has no written constitution, Australia, Burkina Faso, and Canada, established their respective EMBs entirely by statute law. It is generally good practice to lay down transparently the legislative framework for electoral processes, and clearly allocate the responsibility for filling in the gaps and/or detail through subsidiary legislation or regulation, or the EMB’s administrative procedures.

It is good practice for such legislation to define the status of the national EMB and any subsidiary EMBs, including accountabilities, powers, responsibilities, and functions. It is also good practice for it to provide a clear and sufficiently detailed framework to ensure effectiveness and integrity in all matters relating to electoral administration, such as:

• EMB member and staff appointments and tenure;
• operational management issues relating to voter registration, political party and candidate registration, political campaigns, voter education, EMB transparency, voting, vote counting, and announcement of results;
• financial and asset management issues; and
• electoral offences and manners of election dispute resolution.
  
  

Other issues which may be covered in electoral legislation include boundary delimitation principles and processes, and codes of conduct for EMB members and staff, political parties, the publicly-owned media, and election observers.

Parts of the legal framework may also be enacted as subsidiary legislation, for example:

• by the EMB itself under a power to make regulations;
• by some form of executive decree;
• by a state or provincial legislature in the form of subsidiary legislation;
• or by municipal authorities in the form of ordinances.
  
  

Provisions for the conduct of provincial and local elections are often contained in separate legislation. In federal countries, separately defined national and provincial electoral legal frameworks may be necessary, depending on the constitutional split of powers between the national and provincial levels. Inconsistencies or overlapping provisions between national and provincial electoral legislation, for example for voter registration or voting procedures, may confuse electors. Regular consultations between federal and provincial lawmakers and electoral administrators can assist in minimising confusion and duplication.

In addition, where elections to a supranational body are contemplated, national legislation is likely to be necessary to define the electoral management structure within the overall supranational agreement. Looking at the example of the European Parliament, the provisions contained in the European-level legal instruments are for the most part very general in nature, and the definition of the electoral management structure for European Parliament elections is left to each member state.

As with the balance between electoral provisions in the constitution and legislation, the balance between electoral provisions in legislation and subsidiary regulation or procedures needs to be finely judged. Electoral legislation needs to be sufficiently detailed to ensure integrity and effectiveness, but not so detailed that legislative amendment would be required to permit EMBs to deal with minor changes in their operations. Too much detail in the legislation can result in, for example, an EMB being unable to change the staffing structure in its divisions, or the design of an administrative form, or introduce office automation systems, without legislative change. Particularly in environments where election processes take place after legislatures’ terms of office have ended, electoral legislation needs to allow EMBs the flexibility to respond to changing electoral circumstances.

A modern electoral legislative scheme may entail one or several different laws. Traditional legal drafting for electoral legislation has often been precise but in a structure and language that is not very accessible. The legislation may become particularly difficult to understand if it is subject to successive amendments over time, without a fully revised and consolidated law being produced.

A single omnibus law covering all electoral activity can be cumbersome but may facilitate reference and review. Separate laws on individual issues – such as the EMB, political parties, electoral registers, legislative elections, presidential elections, and local government elections provide clear and easy reference to specific electoral activities, but it may be too time-consuming or difficult to ensure there is no conflict in their content. Another possible solution is that the substantive norms (such as suffrage rights, eligibility, number of rounds, majority or proportional system) are in separate laws (legislative elections, local elections, referendum) and the electoral process is regulated in a common law that consists of a general part (binding on all types of elections) and special norms for each type of election.

International IDEA’s publication International Electoral Standards: IDEA’s Guidelines for Reviewing the Legal Framework of Elections discusses a number of issues to consider when designing or reviewing a legal framework for electoral management. Key considerations are summarized in the following file.

Checklist for Electoral Management Legal Framework

1) Does the legal framework provide for the EMB to be constituted as an independent and impartial institution?

2) Does the legal framework require and enable the EMB to operate in an impartial and transparent manner?

3) Does the legal framework protect EMB members and staff from arbitrary dismissal?

4) Does the legal framework define the accountability, powers, functions, and responsibilities of the EMB at each level and relationships between the levels?

5) Does the legal framework adequately define the EMB’s relationships with external stakeholders?

6) Does the legal framework provide clear guidance for all EMB activities yet allow the EMB practical flexibility in its implementation?

7) Does the legal framework allow timely and enforceable review of an EMB decision?

8) Does the legal framework allow the EMB sufficient time to organize electoral events effectively?

9) Does the legal framework ensure that the EMB has sufficient and timely funding to manage its functions and responsibilities effectively?

EMB Rules, Regulations and Proclamations

In some countries, the EMB has legal powers to regulate the electoral framework either by enacting new laws or making rules and regulations which complement existing principal legislation. Such an arrangement is time effective and allows for speedy amendment of the legal framework. For example, the EMB of Uruguay can make decisions and dictate actions which cannot be reviewed by any other branch of the government. This means that the EMB has legislative powers (making laws which govern elections), judicial powers (reviewing and interpreting laws with binding effect), and implementation powers for the laws and norms it has enacted.

A more usual practice is for the EMB, particularly Independent Model EMBs, to be empowered to make reviewable regulations filling in the detail of concepts contained in the law, or filling existing gaps in the law. For Governmental Model EMBs, this power may be held by the Ministry within which the EMB is located. Such regulations in most countries are subject to review, generally by a court or constitutional court, to test whether they are within the powers of the EMB (or Ministry) to make, and whether they are otherwise consistent with the law.

In countries such as Fiji and Yemen, the EMBs have powers to make regulations to facilitate their mandate, including the conduct of elections. In Namibia, the EMB has the power to issue proclamations which by law must be gazetted and which cover issues such as political parties’ code of conduct, some procedural issues on voter registration, and parties’ disclosure of foreign donations. The Indonesian EMB has specific regulatory powers in some critical areas, including boundary delimitation, voter registration, candidate registration, conduct of election campaigns, campaign funding reporting, and voting processes.

Many EMBs have powers to formulate administrative policies and directions on operational issues such as their relationships with their own staff (on issues such as gender equality, affirmative action, performance management, and staff development) and external stakeholders. These external stakeholders include government ministries – including the Finance Ministry –, the legislature, political parties, civil society organisations, and the media.

Unlike regulations, which by law must be issued publicly, the EMB may have no legal obligation to publicize administrative directives and policies, though it is always good practice for it to do so. It is important that the EMB consult its stakeholders when formulating new policies or reviewing old ones, in order to foster stakeholder awareness and buy-in.

Summary: The Legal Framework

• Electoral processes are complex, standardised activities requiring clear, simple, and relatively comprehensive legal definition to promote consistency, equity, and a common understanding of electoral frameworks by all electoral stakeholders.
• The electoral legal framework within which the EMB operates may be defined in many different types of instruments – including international treaties, the constitution, national and sub-national statute law, and EMB and other regulations
• International treaties and agreements provide a framework of norms within which a country’s electoral legal arrangements can be defined and assessed against.
• There is a trend towards defining key electoral issues in the constitution, as this may provide a workable means of entrenching electoral norms against ruling party manipulations. Electoral arrangements may be further defined in statute law and subsidiary law and regulations.
• Electoral statute law may be a single law, or multiple laws which need to be kept in harmony. EMBs or the executive branch of government may be able to make regulations filling in gaps in the law: usually these would be subject to some form of judicial or other review. EMBs may also be able to set their own administrative policies. For confidence in election processes, it is important that all parts of the electoral framework – treaties, constitution, statute laws, EMB and other regulations, and administrative polices – are freely and publicly available and that changes are discussed and shared with key stakeholders.
• A balance needs to be struck between providing for certainty and consistency in the legal framework, whilst allowing the EMB the flexibility to respond effectively to changing electoral circumstances. The amount of electoral detail in higher level instruments – constitutions and statute laws - will often depend on the level of trust in political participants and in the performance of the EMB.
• International IDEA’s publication International Electoral Standards: IDEA’s Guidelines for Reviewing the Legal Framework of Elections provides guidelines for assessment of electoral legal frameworks.
• EMB powers to make regulations should always be exercised in consistency with both the constitution and the electoral law.

How Legal Instruments Define Electoral Processes

The structure, powers, functions, and responsibilities of the EMB are defined in those parts of a country’s legal framework dealing with electoral processes. Especially in emerging democracies, the current trend is to develop a comprehensive legal framework that guarantees the independence and integrity of the electoral process, promotes consistency and equality in electoral management, and promotes full and informed participation in electoral events by political parties, civil society organisations, and electors. The full legal framework for elections can be based on a variety of sources. These include:

• International documents, for example Article 21 of the Universal Declaration of Human Rights, which states in clauses (1) and (3) that ‘Everyone has the right to take part in the government of his country, directly or through freely chosen representatives’ and ‘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’;
• the constitution;
• national laws, the relevant portion of which may take the form of one comprehensive electoral code. Alternatively, there may be a set of laws covering different aspects of the electoral process. Some countries define the structure, composition, and powers of their EMB in a separate law;
• provincial or state laws, which, particularly in federal countries, may govern processes for provincial or state and local electoral events (as in Australia) or for national electoral events (as in the United States);
• ordinances and regulations made by national or lower level authorities;
• regulations, proclamations, and directives issued by an EMB, if it has powers to do so;
• customary laws and conventions which may be integrated into electoral law, or EMB regulations or policies, dealing with issues such as separate voter registration and voting arrangements for women and men;
• administrative policies made by an EMB or other bodies; and
• codes of conduct (voluntary or otherwise) which may have a direct or indirect impact on the electoral process, such as for EMBs, election participants, observers, and election reporting by the media.
  
  

The organisation and administration of electoral processes always involves a substantial mass of detail, and is, particularly to those unfamiliar with it, surprisingly complex. It is therefore usual for it to be specified in written laws and regulations, rather than determined through unwritten tradition or administrative policy making. Written law and regulations provide the benefits of certainty, visibility, and transparency, are easier to subject to judicial review, and are accessible to interested parties, including electors. The legal certainty provided by a detailed exposition of electoral processes embedded in law, backed by constitutional authority, will tend to promote confidence in the consistency, fairness, and even-handedness of electoral administration, and provide clear opportunities for legal redress. The level of detail specified at different levels of the legal framework will vary from country to country, depending on factors such as systems of law and the levels of trust in EMBs to make fair and consistent decisions and policies.

Further detailed discussion of the legal framework for elections can be found in the topic area Legal Framwork.