In some countries, an EMB has legal powers to regulate the electoral framework either by enacting new laws or by making rules and regulations that complement existing primary legislation. Such an arrangement is efficient and allows for the speedy amendment of the legal framework. For example, Uruguay’s EMB can make decisions and dictate actions that cannot be reviewed by any other branch of government. Thus it has legislative powers (making laws that 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 an EMB, particularly an independent EMB, to be empowered to make reviewable regulations by filling in the detail of concepts contained in the law, or filling existing gaps in the law. For governmental 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 the Gambia, Thailand and Yemen, the EMBs have the power to make regulations to facilitate their mandate, including the conduct of elections. In Namibia, the EMB has the power to issue proclamations that by law must be gazetted, and that 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 voter registration, candidate registration, the conduct of election campaigns and voting processes.
EMB powers to make regulations should always be exercised in such a way as to ensure consistency with both the constitution and the electoral law.
Many EMBs have the power to formulate administrative policies and directions on operational issues such as their relationships with their own staff (on matters such as gender equality, affirmative action, performance management and staff development) and with external stakeholders. External stakeholders include government ministries, in particular finance ministries, the legislature, political parties, CSOs and the media.
Unlike regulations, which by law must be issued publicly, an EMB may have no legal obligation to publish its administrative directives and policies, although it is always good practice for it to do so. Where EMB policies have to be formally approved by the EMB, they can be made publicly available through the minutes of EMB meetings. It is important that an EMB consult its stakeholders when formulating new policies or reviewing old ones in order to foster stakeholder awareness and buy-in.
