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.
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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.
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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.
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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.
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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.
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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.
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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
