Author: Mohamed Chafik Sarsar
Background
Tunisia has never experienced democratic elections throughout its contemporary history. For 50 years, the Ministry of Interior Affairs was officially in charge of elections, but in practice the ruling party controlled them. The 1969 Electoral Code, despite its amendments, did not establish a framework for honest and free democratic elections.
In 2011, Decree Law Nr. 2011–27 [1] established the Independent High Authority for Elections (known by its French acronym, ISIE) to supervise the election of a National Constituent Assembly. Although its mission ended after the announcement of the final results of the Assembly elections, it changed the history of electoral administration in Tunisia.
The preamble of Decree Law Nr. 2011–35 (dated 10 May 2011, relating to the election of a National Constituent Assembly) emphasized the importance of a public, free, direct and secret ballot in accordance with the principles of democracy, equality, pluralism, fairness and transparency. But given the circumstances, the legal framework for the elections of 2011 was temporary; the effect of the legal texts ended with the election of the Assembly.
And although the ISIE outlasted the October 2011 elections, despite time pressures and the lack of traditions in Tunisia, political actors chose to establish a new permanent body to manage elections. The choice of an independent electoral administration is now shared by most political actors in Tunisia and this is how Organic Law Nr. 2012–23, dated 29 December 2012, rectified by Organic Law Nr. 2013–44 dated 1 November 2013, creates a permanent EMB, also called the Independent High Authority for Elections.
The Legal Framework
After the partial suspension of Tunisia’s constitution in March 2011, the country’s legal framework governing elections was put forth by the High Authority for the Achievement of the Revolution Objectives, [2] created to lay the groundwork for Tunisia’s democratic transition. This framework included:
- Decree Law Nr. 2011–27 dated 18 April 2011, establishing a higher independent electoral commission;
- Decree Law Nr. 2011–35 dated 10 May 2011, relating to the election of a National Constituent Assembly, modified by Decree Law Nr. 2011–72 dated 3 August 2011;
- Decree Law Nr. 2011–91 of 29 September 2011, on the procedures and methods of control of the Court of Auditors over the electoral campaign funding for the National Constituent Assembly (clarifies the nature and extent of the Court of Auditors control, the body responsible for the regularity of electoral campaign funding); and
- Application Decree Nr. 2011–1087 of 3 August 2011.
Tunisia is still in its second stage of democratic transition, which is marked by the absence of a constitution. Constituent Law Nr. 2011–6 of 16 December 2011, relating to the provisional organization of public authorities, provided for the creation of a permanent ISIE.
The choice of the ISIE is consolidated by the provisions of the draft constitution, which provides in its June 2013 version a section 123 entitled ‘Instance Elections’, which states that ‘The electoral body is responsible for the management and the organization of elections and referendums and their supervision in their different phases. The department ensures consistency, integrity and transparency of the electoral process and announces the results. The body has regulatory authority in its field of competence.’ This provision reflects the desire to establish a permanent body with constitutional status.
The Structure of the ISIE
The ISIE is composed of a council, which has decision-making authority, and an executive body. It has nine members: a judicial magistrate; an administrative magistrate; a lawyer, notary or bailiff; a university professor; an engineer specialized in IT systems and security; a communications specialist; a public finance specialist and a member representing Tunisians abroad.
Members of the ISIE Council are elected by an Assembly Plenary of the National Constituent Assembly. The president of ISIE is elected by the Assembly Plenary from among those who apply of the nine elected members.
The elected members meet at a first session to choose the vice president by consensus, and if not, by the absolute majority of members. The term for each member is six years, and is non-renewable. One-third of the ISIE Council shall be renewed every two years.
The ISIE can create, prior to elections or referendums, regional authorities responsible for assisting the ISIE in carrying out its tasks. The ISIE Council shall determine the composition of regional authorities, which shall not be more than four members in each regional authority. The candidates are selected by the ISIE Council by an absolute majority of its members in accordance with the application requirements. The ISIE Council may delegate to the regional authorities some of its prerogatives, which they shall exercise under the supervision of and in accordance with the decisions of the Council.
The ISIE shall have an executive body under the supervision of the ISIE Council that is in charge of administrative, financial and technical affairs, and it shall be headed by an executive director.
Powers and Functions
The ISIE shall be in charge of all processes related to organizing, administrating and supervising elections and referendums. It shall ensure the following functions:
- hold the voter register and continuously update it; prepare voters’ lists for each election or referendum, review them when needed, and publish them on the official ISIE website in accordance with the deadline set by the electoral law;
- guarantee voters’ right to vote, and ensure equal treatment of all voters, candidates and stakeholders during electoral or referendum processes;
- set, publish and implement electoral calendars for elections and referenda, as stipulated by the constitution and electoral law;
- receive and approve the nomination applications for election according to the provisions of the electoral law;
- establish mechanisms of organization, administration and control, ensuring the integrity and transparency of elections and referenda;
- count the ballots and announce the preliminary and final results of elections and referenda;
- prepare the election codes of conduct, guaranteeing the principles of integrity, transparency, impartiality, proper management of public funds and no conflict of interest;
- accredit the representatives of the candidates in the polling stations, and accredit national and international observers, guests and journalists to follow the stages of the electoral process;
- train supervisors of the various components of the electoral process;
- establish voter education and awareness programmes, and cooperate within this framework with all components of civil society that are active nationally and internationally in the field of elections;
- control the commitment to the regulations and means of election campaigns as established by the Electoral Law, and require respect for the law in collaboration with public bodies;
- control the financing of election campaigns and enforce the necessary related decisions, while ensuring equality among all candidates in public funding;
- propose suggestions for the development of the electoral system and give opinions on all draft texts related to elections and referenda; and
- prepare a special report on the outcome of each election or referendum process, and present it to the president of the republic, the president of the Legislative Assembly and the president of government. The report will be published in the Official Gazette and on the ISIE website.
The ISIE Council shall establish the necessary regulations for the implementation of electoral legislation and the tasks conferred on the ISIE.
Accountability
The ISIE shall submit its detailed report on the progress of the elections, which it shall publish with the announcement of the final results in the Official Gazette of the Republic of Tunisia and on the commission’s website.
The president of ISIE or a member of its council may be revoked in cases of serious misconduct in the performance of his or her obligations, or if convicted by an absolute judgement for an intentional offence or a crime, or if this member no longer meets one of the requirements for membership in the ISIE Council. The revocation request shall be submitted by at least half of the members of the ISIE Council and presented to the Legislative Assembly at a plenary session for approval by an absolute majority of the members of the Legislative Assembly.
If a member has a conflict of interest, he or she must declare it to the ISIE Council and then refrain from participating in related meetings, discussions or decisions until the ISIE Council decides on the matter. If it has knowledge of a conflict of interest, the ISIE Council, after hearing the concerned member, shall investigate it. If it is proven that the member deliberately concealed a conflict of interest, he or she shall be dismissed.
The president and council members of the ISIE cannot be prosecuted or arrested for deeds related to their work or the performance of their duties within the ISIE until after their immunity is lifted by the Legislative Assembly at a plenary session by an absolute majority of its members, at the request of the concerned member, or two-thirds of the members of the ISIE Council or judicial authority. The request to lift immunity presented by the judicial authority is subject to examination, along with the file’s case.
The president and members of ISIE may not be sued or arrested for deeds related to their activities or the exercise of their duties within the commission without having the authorization of a two-thirds majority of its members.
The Professionalism of Electoral Officers
The president of the ISIE and members of its council are particularly bound by the following obligations:
- at least ten years’ experience;
- the obligation of neutrality;
- the obligation of reserve;
- the obligation to attend meetings of the ISIE Council; and
- to serve as a full-time ISIE Council member.
In addition, the president of the ISIE and its council members are prohibited from standing in any election during their membership in the ISIE and during the five years that follow the end of their mandate. They are expected to behave in accordance with the procedures prescribed by law on the declaration of honour on property of members of the government and certain categories of public officials.
The ISIE president and council members shall report any conflicts of interest during their mandate in the ISIE.
Relations with Political Parties, Other Institutions and the Media
The ISIE tried in 2011 to establish rules of cooperation with international organizations that offered their electoral assistance. Further, it created spaces for dialogue and consultation with political parties, the media and civil society associations. These actions led to the adoption of a code of conduct and improvements to the training programme. The ISIE also organizes voter awareness campaigns.
However, the new ISIE should conduct targeted outreach efforts to political parties and candidates to facilitate a better understanding of the complaints and appeals procedures, and legal actions against violations of the law.
Financing
ISIE’s resources shall consist of annual funds from the state budget. The budgetary expenditures of the ISIE shall include:
- operating expenditures of the ISIE;
- capital expenditures; and
- elections and referenda expenditures.
The ISIE budget shall be based on a proposal from its council. It shall be submitted to the government for an opinion before its transmission to the Legislative Assembly for approval in accordance with the specific procedures for the state budget.
All public administrations are called on, to the extent possible, to provide the ISIE with all material and human resources, databases and information, including statistics and data related to the electoral process, to assist the ISIE in carrying out its missions. In case of an unjustified refusal on the part of the concerned administration, an order can be obtained for this purpose from the Administrative Court. Prior to elections or referenda, the Office of the President of the Government shall endeavour to facilitate cooperation between all public administrations and the ISIE.
ISIE procurement shall be conducted in accordance with the procedures related to the procurement of public companies, as long as they do not contradict the provisions of this law. ISIE expenditures shall be exempt from prior control of public expenditure.
The ISIE shall oversee the implementation of an internal control system of administrative, financial and accounting procedures that guarantees the safety, integrity and transparency of financial statements and their conformity with the applicable laws. An audit and internal control unit shall be created for this purpose, which shall be chaired by a chartered accountant. This unit shall exercise its functions in accordance with international professional standards of internal auditing and through monitoring of an annual plan approved by the ISIE Council in order to improve performance, risk management and control all actions of the ISIE. The unit of audit and internal control shall report directly and regularly to the ISIE Council.
ISIE financial statements shall be under the control of two auditors and appointed by the ISIE Council, in accordance with the applicable legislation related to public institutions and companies, for a term of three years, which is renewable once. Annual financial statements of the ISIE shall be approved by the ISIE Council in light of the report of the two auditors. The report shall be subject to the approval of the Legislative Assembly and shall be published in the Official Gazette and on the ISIE website by 30 June of the following year. If the financial report is not approved by the Legislative Assembly, a commission of investigation shall be created that is composed of three chartered accountants and appointed by the Legislative Assembly. The financial statements of the ISIE shall be subject to the a posteriori control of the Court of Auditors. A special report shall be issued by the Court of Auditors on the financial management of each election or referendum process. This report shall also be published in the Official Gazette.
The new ISIE must make a special effort to consider criticism from the Court of Auditors in the elections of October 2011 and best practices in financing the electoral process.
The Future of the ISIE
The decisions of the Administrative Court (4 and 7 November 2013), which declared the results of the ISIE candidature selection committee null and void, has delayed the formation of the ISIE.
The responsibility for the future election administration is great. It must build an executive body headed by an executive director, avoid gaps in the experience of 2011, and regain the confidence of politicians and voters in quite difficult conditions.
Notes
[1] Decree Law Nr. 2011–14 of 23 March 2011, on the provisional organization of the public authorities, gave the interim president of the republic the authority to legislate by decree law in some fields, including the electoral system and the funding and organization of political parties.
[2] Decree Law Nr. 2011–6, dated 18 February 2011, created the High Authority for the Achievement of the Revolution Objectives, Political Reform and Democratic Transition.
