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).
