By Mette Bakken
1. Background
Background
In July 2011, the administration of electoral processes in Seychelles was transferred from the Office of the Electoral Commissioner to a full-fledged Electoral Commission comprising a chairperson and four commissioners. Beyond its first task of organising early Parliamentary elections a couple of months later, it was given the mandate of reviewing existing legislation and make recommendations.
Electoral reform had featured in the political debate for some time but the need for change became critical in 2011. In May, Presidential elections were organised in which the incumbent James Michel of the Parti Lepep (PL) was re-elected having captured 55 percent of the votes. However, the opposition candidates claimed that the electoral process had been marred by widespread irregularities – including vote-buying and illicit use of state resources for campaigning purposes – and chose to jointly reject the election results. The lead opposition party, the Seychelles National Party (SNP), stated that “they would not attend the session of the National Assembly unless a new election law would be proposed” thus giving a strong push for change (EISA 2011: 28).
The dissolution of the Parliament two months later made any significant electoral reforms prior to the next elections – beyond the establishment of the new EC – merely impossible due to time constraints. [1] As a response, the SNP decided to boycott the elections and thereby lost their eleven seats in the Parliament as well as access to state party funding. The newly formed Popular Democratic Movement (PDM), an SNP splinter party, was awarded one seat in Parliament by the court of appeal who decided that its votes qualified for seats under the Proportional Representation part of the mixed electoral system in place. [2]
Two issues suggest that not only politicians but also voters were increasingly frustrated with the political situation. First, the turnout dropped by more than ten percentage points, from 85.3 percent in the presidential elections only months earlier to only 74.3 percent. Secondly, the count showed that a total of 16.447 voters – almost 32 percent – spoilt their ballots in the election (see Table 1). This number is exceptionally large in a country where spoilt ballots traditionally figures 1-3 percent.
Beyond politics, the need for electoral reform was furthermore emphasized by international election observers who, following the 2011 Presidential elections, recommended in general terms that:
“A thorough review of the Elections Act and other relevant legislation and procedures should be undertaken, so as to address key gaps and ambiguities in the legal framework related to elections” (Commonwealth 2011: 31).
Also previous observation mission reports called for legal review, amongst others in relation to campaign financing rules (Commonwealth 2006). Finally, the Constitutional Review Committee back in 2009 had proposed several amendments that would directly affect the electoral framework.
Shortly after the conclusion of the National Assembly elections of September-October 2011, the EC embarked on electoral reform, highlighting that:
“The outcome of the [2011 Presidential] elections, its disputation and condemnation by the opposition parties which had contested the elections and the concerns and recommendations raised by the international observer groups resulted in a commitment to undertake electoral reforms” (EC 2011: 3)
Content
The legal framework reviewed three pieces of legislation, including the Elections Act (1995), the Registration of Political Parties Act (1991) and the Public Order Act (1959 – with particular reference to Section 3 dealing with control of public gatherings and the right to assembly). Key recommendations were made in the areas related to:
- Enable citizens to exercise their right to assemble peacefully in public places without excessive restrictions;
- Organisation of elections within 90 days of a president resigning or dying;
- Institutionalisation of regular voters census to ensure the accuracy of the voter register and the introduction of continuous voter registration;
- Streamlining of candidate nomination procedures;
- Establishment of limits on and control of campaign financing;
- Disclosure of campaign funding sources;
- Streamlining procedures for political party registration;
- The basis for financial support to political parties; and
- Public disclosure of political party financing. [3]
Circumstances
The electoral reform process undertaken by the EC was highly appreciated by all key stakeholders, including the ruling and opposition parties as well as civil society. The critical point, however, is the extent to which political will on part of the Government and the National Assembly where the ruling party has all but one seat to enact reform.
The recommendations put forward for the Public Order Act were seen by parties to the reform process to be largely ignored in the new law that was promulgated by the National Assembly in December 2013. The recommendations for two other pieces of legislation, namely the Elections Act and the Political Party Act were submitted to the Government in July 2013. At time of writing, the EC is expecting to receive a draft Bill in July 2014 which will unveil to which extent the Government is committed to the electoral reform agenda.
2. EMB role
Mandate
The Electoral Commission has a strong formal mandate to engage in electoral reform. According to the Constitution of the Republic of Seychelles, the EC shall:
… review the existing legislation governing Electoral matters and make recommendations to the Government (Art. 116(1));
In addition to this, the EC shall:
… submit to the National Assembly and the President a report on the conduct of (a) the political campaign leading up to the election or referendum; and (b) the election or referendum, together with such recommendations as the Commission may consider necessary for the purpose of ensuring true, fair and effective elections and referenda (Art. 116(2)).
The overall scope of the EC’s engagement in legal reform is considerable. The EC is tasked to review the legal framework after each election and referenda organised as well as when it is deemed necessary. In practical terms this means that the EC:
- Carry out post-election and post-referenda assessments;
- Initiates reform process; and
- Provides recommendations on electoral reform issues
Whilst the EC does not have an explicit mandate to draft bills, a proposed legal instrument was annexed to the final recommendations relating to the Public Order Act. However, in its recommendations for changes to the Elections Act and the Registration of Political Parties Act, as well as the proposed Act on Campaign Financing, proposed bills were not included.
It should be noted that the role of the EC in contributing to the reform process is a novelty related to the Constitutional Art. 116. Prior to 2011, during which the electoral commission’s office comprised a one-person commissioner, recommendations for legal review occurred on a more irregular and ad hoc basis without a specific legal mandate for doing so.
Structure
The five-membered EC undertook the reform process in a collaborative fashion. This means that there was no single Commissioner that was assigned the task of following up on this specific issue. The reform process was one of the main issues that the EC as a whole allocated most time over the period from October 2011 to June 2013. When the commission was tasked with organising by-elections in August 2012, their engagement in the reform process slowed down only to reconvene a short couple of months later after the conclusion of these elections.
A technical working team of two legal professionals, one coming from the Attorney General’s (AGs) office seconded by the Commonwealth and the other a lawyer recruited on behalf of the EC was established to ensure that recommendations would be constitutionally and legally consistent.
The total costs of the 2011-2013 reform process was estimated to 1.545.000 SRC (approx. 85.000 euro). [4] The reform process budget was submitted to the Ministry of Finance and approved. Hence, the reform process undertaken by the EC was financed through extra-budgetary provisions further to the regular annual EC allocations.
3. EMB approaches
Activities
Figure 1 overviews the different phases of the 2011-2013 electoral reform process undertaken in the Seychelles, starting out from the initial step of establishing the so-called Roadmap on Electoral Reform, its implementation in three phases – i) national consultations, ii) national consensus, and iii) the way forward. The EC submitted its recommendations to the Government in July 2012 (concerning the Public Order Act) and July 2013 (the Elections Act and the Political Parties Act). Changes to the Public Order Act were passed through the Parliament in December 2013 but is at time being challenged in court. The National Assembly has yet to adopt any changes to the Elections and Political Parties Act.
Figure 1: Activities undertaken under the different phases of the electoral reform process in the Seychelles, 2011-2013.
Development of the Roadmap for Electoral Reform 2011-2013
After the conclusion of the September-October National Assembly elections, the EC developed the Roadmap for Electoral Reform 2011-2013 outlining the background to, main objectives of and strategy for the overall reform process. The reform process, comprising three distinct phases, was foreseen to be completed within a 14 months period.
Towards the end of October 2011, the EC presented the Roadmap to the Government and thereafter invited all political parties to a meeting in which the document would be discussed. However, the opposition alliance led by the SNP refused to take part in the meeting, arguing that the stakeholders should have been invited to the process by which the Roadmap document had been developed in the first place. This situation created a first hurdle for the reform process and required the EC to open up the Roadmap document for deliberation in order to bring the opposition back to the table. It demonstrated the need for ensuring inclusiveness throughout all steps of the process to build trust among the different stakeholders.
Document review and research
The EC carried out an internal review of the legal framework governing elections in the country. Other documents pertaining to the elections organised in the country were also examined – in particular the reports and recommendations of international observation missions – to tease out key elements of the reform.
The EC also scrutinized international and regional treaties ratified by Seychelles with an overall objective of ensuring that the legal framework – and hence recommendations as put forward in the reform process – would become better aligned with the regional and international commitments and obligations that Seychelles have assigned to.
The EC undertook comparative research to flesh out and benefit from insights from electoral laws in other countries on the specific issue of nomination processes, whereby electoral legislations from a total of 20 Commonwealth countries were scrutinised. Based on the results, the EC recommended a reduction in the number of voter endorsements required to stand for the presidential and national assembly elections.
Engagement of an international expert
An international expert in electoral laws and processes was brought on board to give the process an “international dimension” (Roadmap: 4) as well as to enhance trust in the process by including an “outsider” (hence independent) actor. Both the Commonwealth and the European Union had signaled interest in providing technical support to the process and the EC submitted a request and the terms of reference for the assignment to the Commonwealth. The recruitment process was carried out rather quickly whereby the EC submitted a TOR to the Commonwealth after which the latter sent a number of CVs for the EC’s consideration and the expert was selected accordingly. In the recruitment process, the EC had emphasized the need for a person who understood the small country concept and the implications of this situation, hence an expert from Jamaica that was eventually selected. The expert worked with the team over a six months period from June to November 2012.
The international expert was assigned the role as a “facilitator” of the process. He carried out a wide variety of activities, including desk research and providing input from the global comparative experiences. The international expert also took a part in the Forum meetings. As an outsider to the process, he was useful to bring a neutral voice into the discussions when political mocking took over the agenda. Notably, all Forum participants appreciated the international expert input to the process.
Organisation of public meetings
The Roadmap set out an ambitious plan for meeting and hearing out a variety of stakeholders – including the organisation of public deliberations in all of Seychelles’ 25 electoral districts. Departing somewhat from this plan, the EC organised a total of seven public events of which five were held on the main island of Mahe and two on the islands of Parslin and La Digue. Discussions evolved around a wide number of issues, from voter registration to voter education to the role of the EC itself and determination of elections dates etc.
The public meetings gathered only a total number of 350 persons, i.e. 50 participants per meeting on average. Whilst having advertised widely, the participation was lower than expected – potentially due to loss of interest on part of the public that, after the contested elections and political squabbles simply wanted to “get on with their lives”.
The “Summary Report of the Outcomes of Public Consultation done through Regional Meetings by the Electoral Commission – February 2012” overviews the comments made in context of these discussions. The report was distributed amongst the members of the Electoral Reform Forum and also made publicly available on the EC’s website.
Establishment of the Electoral Reform Forum
In January 2012, the EC established the Electoral Reform Forum comprising representatives from the EC and its secretariat, political parties, civil society, Attorney General Office as well as a representative from the international community. The overall objective of the Forum was “to enable consensus on the most appropriate changes necessary to enhance the principles and practice of democracy in the country’s electoral system” (Electoral Reform Recommendations Report 2013: 1). The Forum met on a weekly basis to ensure continuity of the working relationship – starting up in the morning hours and lasting till after lunch time as necessary – for almost a whole year. The meeting agenda was established by the EC and representatives in the Forum could at any point in time include specific issues in beforehand by submitting proposals to the EC. As a general rule, decisions of the Forum were made by consensus.
Providing a space for political parties to express their grievances in context of the outcomes of the two elections organised in 2011, the Forum went beyond its formal mandate of contributing to the legal reform process. Discussions within the Forum were, from time to time, harsh. As pointed out several stakeholders, there were occasions of walk-outs but at the same times it seemed like wounds were healing during tea and lunch breaks where participants were capable of getting off the “party stage” and discuss on rather on a person-to-person basis. As such, breaking off from the formal agenda was used as a tool to calm down situations where politics took over from considerations regards the best electoral framework for the country.
All meetings in the Forum were open to the public. The EC issues press communiques after Forum meeting to inform the public about key decisions and achievements.
Developing EC recommendations report
The EC finally put together two recommendations reports, one concerning the Public Order Act and one concerning the Elections Act and the Political Party Act. In terms of content, the reports provides i) the background of the reform process; ii) an overview over the different activities undertaken in context of the process; and iii) a section on recommendations. The latter section is further subdivided into subsection according to the different parts of the Act in question. Each subsection outlines opinions and reflections as put forward by the different parties to the Electoral Reform Forum and as expressed in the public meetings. Also research results, observation report recommendations and relevant regional and international obligations are referred to. Thereafter, the final recommendation of the EC is inserted.
Notably, there was a clear strategy behind the two-stage process whereby recommendations on the POA would be submitted before recommendations on the Elections and the Registration of Political Party Acts. First, EC and the key stakeholders identified the POA as an issue that required priority. Second, and more important in this context, the two-stage process would “allow all stakeholders to gauge the commitment of the Executive and the Legislative bodies to the work of the Commission and the Forum” (EC 2012: p. 0). It should be noted that the POA amendments that were rushed through Parliament in December 2013 finally overlooked many of the important recommendations made by the EC and the Forum and represented a serious blow to the reform process.
Stakeholder relationships
With the overall objective of ensuring trust and mutual respect as well as ownership in the reform process, the EC decided that...
a consultative and participative approach to involve all stakeholders, including individual citizens of Seychelles… is important for the success of the reform (Roadmap: 3).
In addition to the public at large, which was involved primarily through the organisation of consultative meetings as mentioned above, the success of the EC’s work built on the relationship it established with the Electoral Reform Forum.
4. Challenges and risks
Challenges
A key challenge to the electoral reform process in Seychelles is the political will or commitment to the electoral reform agenda. In Seychelles, the ruling party has been in power since 1977 and it has benefited by the existing rules of the game. Any changes to the electoral framework are likely to eventually reduce its power. At time being, it has all but one seat in the National Assembly where the electoral reform bills will need to be voted into law. On the eve of the 2011 National Assembly elections, as it became clear that Parti Lepep would win all but one seat thus giving a blow to the perception of Seychelles as a true democratic state, the President committed to electoral reform.
The commitment to reform was, however, put to the test as the EC forwarded the recommendations for changes to the Public Order Act. Without having discussed the final Bill with the EC and the Forum, the ruling party gazetted the Bill that was adopted (or, according to some interlocutors, “rubber-stamped”) by the National Assembly in December 2013. The members of the Forum have expressed considerable discontent with the process by which the new law came into being as well as its content. Notably, members of the Forum were of the opinion that the recommendations made were not reflected in the new law and that, in some respects, the new law had in fact put further restrictions on political parties’ possibility to organise public gatherings and meetings. At time of writing, the POA is contested in the court system by the SUP, SNP and the CDWS as well as by private citizens for challenging specific paragraphs in the Constitution. Moreover, concerns have been raised from the stakeholders that took part in the reform process through the Forum that the Elections and Political Party Act recommendations may turn to a similar fate.
Finally, it should be noted that the results of the 2011 elections as well as the promulgation of the Public Order Act has raised the eyebrows of the international community who has asserted pressure on the President to commit to the reform agenda in order to ensure that a viable opposition can take part in the country’s politics.
The political situation also made it difficult for the EC to reach out to the public through the state-owned media. The Seychelles broadcast cooperation was invited for several events, including meeting in the Forum, but the EC did not succeed in promoting the reform discussions through TV which is the most consumed media of the citizens. Print media – non-state owned – was more receptive and published several articles on the process and the various issues.
Another contextual factor posing challenges to the process is demographics. Being a small country island with a population of only about 90.000 people and 60.000 voters, everybody knows everybody and what people say will easily get around – for good and for bad. This has made advocacy for the legal reform problematic as people tend to avoid challenging views due to the simple fact that the words may get around and may lead to repercussions.
Risks
Based on the experiences of the EC in Seychelles, one of the main risks was related to EC independence and the potential to be seen as biased towards the one or the other side. As expressed by one Commissioner, whilst the Commission itself made recommendations based on the deliberations and what they believed was best for the country (and not what was best for certain party interests), they would nevertheless stand under attack for being taking sides. As a matter of fact, although praising the EC for a job well done on leading the reform process, both the ruling and the opposition parties expressed that the EC had been biased (although both actually believed the EC had been biased towards their own sides).
5. Recommendations
- Electoral commissions embarking on legal reform processes ought to establish a planning document – a roadmap – outlining the background, objectives and process for the initiative. The roadmap ought to be developed in collaboration with key stakeholders to the process – including both the civil society and the political parties. Notably, the roadmap need to be a living document and adapted according to the emergence of new circumstances and issues. Together with the roadmap, EMBs ought to agree early in the reform process how the EC recommendations would be presented and communicated to government and the voters.
- A close relationship with key stakeholders – such as political parties, civil society organisations, media and the public – is essential to build trust and confidence in the process. Whenever possible, bringing in different stakeholders (e.g. representatives from political parties as well as civil society organisations) to the same table has certain advantages as it provides an opportunity for all to get insights from other set of lenses. It may be advisable to establish a set of “housekeeping rules” for stakeholder meetings.
- International expertise can be a valuable contribution to electoral reform processes. First, international experts can provide insights from global comparative experiences. Second, such experts can serve as facilitators and build further confidence among all stakeholders in the process – especially in circumstances where the electoral commission’s neutrality has previously been contested.
- It is important that recommendations for legal reform are based on the true convictions of an EMB’s perception of what is best for the country. Whist listening to the opinions of key stakeholders, the EMB – at the end of the day – need to make up their own judgement as concerning the content of electoral reforms.
- It is preferable to establish a constructive working relationship and regular lines of communication between the EMB and relevant Government departments and Parliamentary Committee that will take over the work of the reform process for bill drafting/tabling and final decision.
[1] On 12 July, the National Assembly adopted a motion to dissolve itself with the support of the PL and one SNP member. SNP claimed that the dissolution was unconstitutional based on procedural errors and put the case in front of the Constitutional Court who, on the 19 July, ruled in favour of the SNP and suggested that the Assembly hold a new vote respecting the rules and regulations. The Assembly did so on the same day, thereby dissolving itself on the 19 July and setting the stage for fresh elections within 90 days. (http://www.ipu.org/parline-e/reports/2279_E.htm)
[2] The Seychelles electoral system is a mixed member proportional system whereby 25 seats are distributed on the basis of first-past-the-post in single member constituencies with an addition of nine top up seats distributed proportionally among the political parties contesting the elections.
[3] ACE 2014: Seychelles – a new electoral commission. Available at: http://aceproject.org/ace-en/topics/em/electoral-management-case-studies/seychelles-a-new-electoral-commission (downloaded 19 June 2014).
[4] ECS, 2011. Roadmap for Electoral Reform.
Annex 1: List of references
References:
Informants:
- Attorney Generals’ Office
- Citizen Democracy Watch Seychelles (CDWS)
- Electoral Commission of Seychelles
- Liaison-Unit of Non-Governmental Organisations of Seychelles (LUNGOS)
- Parti Lepep
- Popular Democratic Movement (PDM)
- Seychelles National Party (SNP)
- Seychelles United Party (SUP)
Annex 2: About the author
Mette Bakken is a Programme Officer at IDEA’s Africa Programme (based in Pretoria) where she is primarily covering the electoral processes portfolio. In this context, she is engaged in the implementation of a wide range of projects on, amongst others, legal electoral reform processes, EMB audit methodologies and capacity building among electoral stakeholders. She has previously worked on elections-specific matters at the United Nations Development Programme (UNDP) and the European Center for Electoral Support (ECES). She holds a MA in Comparative Politics from the University of Bergen (Norway) and in Research Methods from the European University Institute in Florence (Italy).
