By Mohamed N’fah-Alie Conteh,
Macksood G. Sesay,
Edmond Sylvester Alpha
1. Background
Background
The National Electoral Commission (NEC) of
Sierra Leone is a corporate independent Election Management Body (EMB)
responsible for the organization, conduct and supervision of the essential
elements of public elections and referenda.[1]
It is comprised of a board of five (5) Commissioners (i.e. one Chairperson and
four Commissioners) and a secretariat.
For most part of its existence since
independence in 1961, especially during the pre-war one-party era (1978-1991)
and after the country’s civil war, the
NEC was not only dependent on the executive (i.e. the Ministry of
Interior/Internal Affairs) but unable, all by itself and without outside
assistance, to conduct credible democratic elections. It was against this background that the NEC
was restructured into an independent and professional EMB in 2005, with the
help of the Government of Sierra Leone (GoSL) and its development partners.
Legal electoral reform was identified as a
priority project in the NEC’s restructuring or transformation process. Thus it
formed part of its electoral reform matrix (seven steps) in the 2005-2009
electoral cycle, and in the 2010-2014 and 2015-2019 strategic plans.
Prior to the conduct of the 2007
Presidential and Parliamentary elections and the 2008 local government
elections, only limited progress was made in the legal electoral reform process
e.g. some provisions of the Electoral Laws Act, 2002 were amended (i.e. section
66 which required that serial numbers printed on both the counterfoil and
ballot paper was amended). Three regulations/statutory instruments were passed
dealing with boundary delimitation and local government elections.
Given the “unfinished business” in the legal
electoral reform and its protracted nature, it (i.e. legal reform) was again
given a priority in the 2010-2014 electoral cycle and strategic plan. In May
2012, the Public Elections Act (Act No. 4) was passed in parliament.
Key objectives of the electoral reform
process were:
- To
consolidate elections related legislation into a single document to enhance
ease of reference for stakeholders and election administrators. Before the
passing of the Public Elections Act, 2012 elections laws relating to technical
matters were scattered into various legal documents: e.g. the 1991 Constitution
of Sierra Leone, the Local Government Act, 2004, the NEC Act 2002; the
Electoral Laws Act, 2002, among others.
- To address
short comings and gaps in the country’s election laws (e.g. no specific laws on
referendum, boundary delimitation, local government elections, invalidation of
election results).
- To
eliminate ambiguities and inconsistences in the country’s election legislation,
identified through practical electoral experiences and election observation
reports (e.g. the use of the words “or” and “and” in sections 37(1) and 108(4) of the 1991
Constitution regarding referendum).
- To bring
electoral legal framework in line with international and regional instruments
signed and ratified by the Government of Sierra Leone (GoSL).
It should also be mentioned that NEC
considered review necessary also normatively important, recognising that
electoral and political party frameworks consist of dynamic evolving legal
instruments that ought to be revised to account for new developments.
Specific
content of the 2012 legal reform
The legal reform dealt with a variety of
issues, including, amongst others:
- The restructuring
of the electoral legal framework whereby all elections laws were consolidated into
one Act regulating the conduct of all elections and referenda.
- Clarification
on issues relating to electoral acts vs. NEC regulations – in particular aiming
to ensure that electoral laws only deal with fundamental issues and not finer
details and ensuring that detailed procedures are outlined in
regulations/statutory instruments, which are more easily amended than Acts and
are responsive to occurring practical needs.
- Clarification
on provisions dealing with the holding of concurrent elections (i.e.
Presidential and Parliamentary elections to avoid the effects of “honeymoon
elections” i.e. election where the Presidential election results may likely
influence Parliamentary election results).
- The
establishment of detailed legislation on boundary delimitation which was viewed
as necessary given the politically sensitive nature of boundary delimitation
exercises.
- The
establishment of a section in the Public Elections Act of 2012 to govern
election observation process.
- Comprehensive
legislation on election offences and penalties.
- The period
of resignation of “public officers” intending to contest elections.
- Legislation
on procedures for conducting local government elections.
Whilst outlining key elements directly linked
to election above, it must be noted that the contents of the legal reform
process included broad issues of democracy and not specific to the election
process, e.g. broader issues like human rights, freedom of association and
expression, prohibition of the use of state resources for campaign purposes.
2. EMB role
Mandate
The NEC does not have a formal mandate to
engage in legal electoral reform, e.g. draft bills and introduce them directly
in parliament. However, section 33 of the Constitution and section 166 of the
Public Election Act 2012 (see below) makes provision for the Commission to
“make regulations by statutory instrument…” for given effect to its core
functions contained both in the Constitution and in the Act. But in order for
any statutory instrument/ regulation made by NEC to have the force of law, it
must be “published in the Gazette”; “laid before parliament” and “shall come
into force at the expiration of a period of twenty-one days of being so laid…”
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Legal provisions for NEC’s engagement in electoral
reform
“Subject
to the provisions of this Constitution, the Electoral Commission shall be
responsible for the conduct and supervision of … all public elections and
referenda; and for that purpose shall have power to make regulations by statutory
instrument for the registration of voters, the conduct of Presidential,
Parliamentary or Local Government elections and referenda, and other matters
connected therewith, including regulations for voting by proxy.”
Section 33 of The Constitution of Sierra Leone, Act
No 6 of 1991
“The Electoral Commission may, by statutory
instrument, make regulations for giving effect to this Act”
Section 166 of The Public Elections,
2012, Act No. 4 of 2012
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It is parliament which has the power to
make all laws, including legal electoral reform. In practice, since it was
restructured in 2005, legal electoral reform process has been initiated by the
NEC through the Office of the Attorney-General and Minister of Justice, the Law
Officers Department and in collaboration with the Law Reform Commission (LRC). Notably,
the LRC has the formal mandate to review all national legislation and make
recommendations for reform.
It must be emphasized that, electoral legal
reform, which culminated to the passing of the Public Elections Act 2012 into
Law, had been initiated by NEC in collaboration with the appropriate
authorities or bodies i.e. Law Reform Commission, Law Officers Department,
Civil Society Organizations with focus on elections, etc.
Structure
The NEC is comprised by five commissioners
and a secretariat. Each commissioner, except for the Chairperson, is assigned
with a delegated area of responsibility. The specific area of “legal issues”
falls within one specific commissioner’s mandate although decisions are made
jointly by the board.
The secretariat currently comprises seven
departments.[2]
Department of Legal Affairs, Research and Documentation, and more specifically
its Legal Affairs Unit, is working on legal-electoral issues such as i)
facilitation of legal reform, ii) representation of the Commission in
litigations, iii) providing legal advice to the Commission and iv) carry out
research pertaining to legal issues. The
Legal Affairs Unit has up to four (4) staff members and the unit has a minimal
budget line set aside for NEC’s engagement in legal reform purposes and funded
by GoSL. Since 2005, NEC’s legal electoral reform project has been supported by
an electoral basket fund, with contributions from the international donor
community, managed by UNDP. Finally, the NEC has contracted a number of legal
retainers (i.e. out-sourced lawyers/attorney services) when additional
capacities have been required. 3. EMB approaches
The NEC undertook a variety of activities
during the legal electoral reform process, such as:
- Research
on legal frameworks
- Post-election
review/audit and EOM reports
- Collaboration
with relevant legal institutions
- Drafting
of electoral legal bills in collaboration with relevant authorities
- Consultations
with targeted stakeholders
- Sensitization
This section provides a detailed overview
over some of the main activities and key stakeholder relationships that
influenced the trajectory of the NEC’s engagement in the reform process and its
outcome.
Activities
Legal
review and contracting of international and national legal experts: As part of the GoSL and international partners’ support to the
electoral process, UNDP, in collaboration with NEC, hired international and
national legal consultants in March 2006 and June 2010 to assist NEC in its
electoral legal reform initiative. The recruitment process, including the
development of the Terms of Reference for a Legal Advisor Consultant, was undertaken
jointly by UNDP and NEC. The positions were advertised internationally. The NEC
finally chose a consultants from a list of CVs submitted by UNDP whereas UNDP
finalized the recruitment process itself. Both consultants worked from offices
given to them at UNDP and NEC headquarters in Freetown.
The NEC also hired the services of a Legal
Firm (Mornoma and Fynn) as national consultants to draft proposed amendments to
the relevant provisions of the 1991Constitution of Sierra Leone (Act 6 of
1991), dealing with the conduct of elections, the Electoral Laws Act, 2002 and
the electoral regulations.
The international and national consultants
undertook a comprehensive review of Sierra Leone’s electoral legislation
(including international legal instruments) and also took into account election
observation reports. The review revealed several shortcomings to the electoral
and political party frameworks and thus informed the draft recommendations
produced by the consultants as well as the reform debate more generally.
Development
of a compendium on SL electoral laws: In March
2011, the NEC produced a compendium of electoral laws in Sierra Leone with the
aim of compiling nearly all existing electoral laws, including regulations, for
the period 1991 to 2010 into a single document.
The relevant legislation incorporated into this compendium were:
- The
Constitution of Sierra Leone, 1991 (Act No. 6 of 1991, including amendments)
- The
National Electoral Commission Act, 2002 (Act No. 1 of 2002)
- The
Electoral Laws Act, 2002, (Act No. 2 of 2002, including amendments)
- The
Political Parties Act, 2002 (Act No.3 of 2002, including amendments)
- The Local
Government Act, 2004 (Act No.1 of 2004)
- The
Chieftaincy Act, 2009, (Act No.10 of 2009)
- The 2007
Election Petition Rules and a number of other laws affecting public elections
- Regulations
adopted by the NEC
Organisation
of consultative workshops: With a view to get
further input and validate the recommendations, NEC organized national
workshops from 15-17th June 2010 and 29-31 March 2011. Participants included
representatives from political parties, the press, civil society, the Human Rights
Commission, the Law Reform Commission, the Law Officers’ Department, UNDP,
UNIPSIL, USAID, the police, members of the Sierra Leone Bar Association and the
NEC. The working documents used were the recommendations contained in the
reports of the international and national legal experts. The aims of the
workshop were:
- To make
resolutions for the proposed amendment to the 1991 Constitution and other
relevant legislation and regulations and also for the structure of the
consolidated Sierra Leone electoral laws;
- To discuss
and validate the proposed recommendations for legal reform with a view to
improving what had already been done;
- To learn
from participants’ experiences, observations and concerns regarding the
proposed amendments; and
- To discuss
future steps and strategies for engaging government and Parliament in the legal
reform process to ensure a sound legal framework for the 2012 elections.
The workshops proceeded with topical
presentations followed by discussions in smaller working groups, the adoption
and presentation of resolutions on the proposed amendments and plenary
discussions.
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Results of the workshop:
- NEC was able to engage targeted stakeholders and
relevant Ministries, Departments and Agencies (MDAs) (including political
party representatives, civil society, MPs, the Attorney – General and
Minister of Justice (AG/MoJ) and Law Officers Department, the Legislature)
and focused their minds on the electoral legal reform process.
- Commitments to supporting the process were made by
representatives from the Offices of the AG/MoJ, LRC, and Chairperson of the
Legislative Committee.
- Draft proposals were considered and reviewed by
participants and final recommendations made on issues by consensus.
- For the first time since 2005, wider consultations
with targeted stakeholders were made on the legal electoral reform process.
- Next steps in the legal reform process were
developed in consultation with the participants.
- Workshop report, including recommendations and next
steps written.
- Electoral legal provisions consolidated into a
single document, for the first time in the country’s electoral history.
- Participants gained knowledge and understanding on
Sierra Leone’s electoral legal framework.
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The creation
of a Technical Committee for Legal Electoral Reform: In the aftermath of the 2011 workshop and based on its
recommendations, a Technical Committee was established comprising the National
Electoral Commission, the Law Reform Commission, the Law Officers’ Department, civil
society and UNIPSIL to “move the electoral reform process forward”. The Terms
of Reference of the Technical Committee included:
- To collate
and review the views and comments in the workshop;
- To prepare
draft electoral laws by incorporating the proposed amendments agreed upon by
the stakeholders at the workshop and prepare them for the next stage of the
reform process;
- To submit
a technical report to the NEC; and
- To perform
any relevant task assigned by the NEC.
The Technical Committee held its inaugural
meeting on 5th May 2011 at the conference room of the Law Reform Commission and
submitted final report in August, 2011. After weeks of deliberations, the Technical
Committee agreed to embark on the production of a draft consolidated Electoral
Laws Act.
Stakeholder
Relationships
Through the legal review process, the
consultative workshops and work in the Technical Committee, the NEC worked with
a wide range of stakeholder during the entire legal electoral reform process ,
including:
- The
offices of the Attorney-General and Minister of Justice and the Law Officers
Department
- The Law
Reform Commission, which has mandate to review all national legislation and
send recommendations to the AG/MoJ and
Law Officers Department for action
- Civil
Society Organizations (CSOs) with an elections and legal focus i.e. Sierra
Leone Bar Association; Campaign for Good Governance (CGG); National Elections
Watch (NEW)
- United
Nations Development Programme (UNDP)
- United
Nations Integrated Peace Building Mission in Sierra Leone (UNIPSIL)
- Political
parties represented at the NEC/Political Parties Liaison Committee (PPLC). The
PPLC meets once a month, but twice a month during elections period
- Other
democratic commissions i.e. the Political Parties Registration Commission
(PPRC), the National Commission for Democracy (NCD) and the Human Rights
Commission of Sierra Leone (HRC/SL)
- Members of
Parliament, especially members of the Legislative Committee. NEC engaged MPs in
pre-legislative meetings to discuss the draft bill before it was finally debated
and passed in the parliament
- The judiciary
- The media
- EMB
Network relationships i.e. the ECOWAS Network of Electoral Commissions (ECONEC),
the Association of African Electoral Authorities (AAEA) and the Association of
World Election bodies (A-WEB)
4. Challenges and risks
Key challenges and risks to the NEC’s
engagement included:
- Legal
electoral reform is a protracted process. The process which began in 2005 was
only finalized in 2012 with the passing of the Public Election Act 2012 into
law. Prior to this, NEC had to pass regulations to fill gaps in the legal
framework.
- Legal
electoral reform, if not handled skilfully, will be a politically sensitive
venture, especially when done in an election year.
- Funding
the legal electoral reform process in a non-election year was a challenge to
the NECs engagement in the legal electoral reform process. As in most other
aspects of elections in emerging democracies, the NEC had to depend on donor
funds to cost the legal reform process. Such funds were for example used for
the recruitment of foreign experts, etc.
- Expectations
of, and pressure from, donor agencies to adhere to timelines and achieve goals
in record time was also a challenge to the work carried out by the NEC and its
partners. This was partly because of the bureaucracy in receiving the necessary
funds from both government and donor sources; the waiting for the arrival of
international reform experts from abroad and the apparent slow nature and
bureaucratic civil service structure on which path the legal electoral reform
process must pass.
- Some
members of the opposition created unnecessary stumble blocks in parliament. The
risk in all this was the possibility of political fallout or bickering between
the ruling and opposition parties and the subsequent agitation between their
respective supporters. In Parliament, the passing of the nomination fees
instrument of 2012 was an uphill task.
5. Recommendations
- A well
thought and planned legal reform timeframe should be established well ahead of
time. EMBs should try their best to conclude major legal electoral reforms at
least one year before its implementation in elections.
- All
stakeholders should be involved in the reform process and be allowed to air out
their views and recommendations in the reform process. Without the involvement
and good will of key stakeholders such as political parties, the reform would
be slow, tedious and divisive. Involvement and participation of stakeholders
would not only allay the ever present suspicions and fears of political
parties; but also, it will be a platform from which mass sensitization of the
electorate on the proposed electoral laws would begin.
- Adequate
funding should be made readily available to the legal reform project in order
to enable the EMB employ reform experts in time and make follow-ups with the relevant
government agencies that need to be supported with logistics and sitting fees
during legal electoral reform meetings.
- Parliament,
as an arm of government, must be sensitized in pre-legislative meetings on the
need for legal reform. Through informing parliamentarians in general and
relevant committees more specifically on the reasoning behind the law
proposals, EMBs can “build their case” and foster political commitment among
the law-makers.
- A
mechanism for the reviewing how reformed laws played out in practice should be
established, through for example post legal reform assessment workshops, where-in
a forum can be called upon to assess the applicability of the reformed
electoral laws after their first implementation. This should be done through several
workshops involving not only the political parties but also stakeholders such
as the judiciary, police, field operators, civil society and ordinary voters
who may have observations to make on the new law.
- The
process of legal reform must be impartial and inclusive of all key
stakeholders.
- There is
need to follow international best practice in reforming election related
legislation. When engaging in legal reform, EMBs also ought to gather and
systematise information about the obligations and treaties which the country
has signed up to and use these actively when advocating for change.
Annex 1: List of references
Documents
- Conteh,
M.N. “A Short History of the Electoral Commission of Sierra Leone: 1961-2010”
Published in the NEC website: www.necsierraleone.org.
- Conteh,
M.N. “Stages in the Electoral Legal Reform initiative of the National Electoral
Commission: 2006-2011” – paper presented at the Political Parties Registration
Commission (PPRC) workshop to review the Political Parties Act, 2002: 5th July,
2011.
- International
Institute for Democracy and Electoral Assistance (International IDEA):
- “Electoral
Management Design: the International IDEA Handbook.” (2006).
- “International
IDEA: “International Electoral Standards: Guidelines for reviewing the Legal
Framework of elections “(2002).
Reports
- Marla
Morry, UNDP Legal advisor: “Reform of the Legal Framework for elections in
Sierra Leone: Discussion and Recommendations” (June, 2010).
- National
Electoral Commission of Sierra Leone:
- Annual
Reports 2005 to 2012 and Strategic Plans 2005-2009, 2010-2014.
- “Preliminary
Report of the Technical Committee established for the review of the Electoral
Laws of Sierra Leone” (August 2011) :- submitted to NEC by the Technical
Committee .
- “Report
on: The joint workshop on Legal Reform (Elections and Political Parties)” (15th
to 17th June, 2010).
- “Workshop
report on proposed Legal reform and compilation of electoral laws of Sierra
Leone” (29th to 31st March, 2011).
- Pilgrim,
Jessie .V, and Fynn, Reginald Jr “Comments and Recommendations on Electoral
Legislation of Sierra Leone” (March, 2006).
- Victoria
Stewart-Jolley (UNDP Legal Advisor): “Report on the NEC Legal Term 2007 and
2008 Sierra Leone elections”; and “Analysis of the Preliminary Report of the
Constitutional Review Commission in relation to the amendments proposed in
relation to electoral Matters”.
Legislation
- The
Constitution of Sierra Leone, 1991 (Act No. 6 of 1991).
- The Public
Elections Act, 2012 (Act No. 4 of 2012).
Annex 2: About the author(s)
Lead
author
Mohamed
N’fah-Alie Conteh is serving, since May 2009, as
one of five electoral commissioners of the National Electoral Commission of
Sierra Leone. Prior to this, he worked as an election administrator for 20
years in the NEC secretariat. In his
work with the NEC, he has been instrumental in transforming both the body
responsible for conducting national elections and the system of administering
them, from one of the worst structures and managed systems during 1970’s and
1980’s to a model system in Africa by 2012. Commissioner Conteh holds a
Bachelor of Arts degree in History and Political Science and a post-graduate
Diploma in Education from Fourah Bay College, University of Sierra Leone. He
also holds a post-graduate diploma in International and Electoral Law from the
Institute of Advanced Management and Technology (IAMTECH), Freetown Sierra
Leone and various certificates in Electoral Management.
Assisting
authors
Macksood
G. Sesay is the Director of Legal Affairs, Research
and Documentation National Electoral Commission Sierra Leone. He is a graduate
from Njala University, Sierra Leone.
Edmond
Sylvester Alpha is the Director of Training and
Outreach, National Electoral Commission Sierra Leone. He is a graduate from
Njala University, Sierra Leone (B.A.Ed. M.A. Ed Literature/Linguistics) former
Senior Lecturer, Njala University and Researcher (1996-2006).
[1] Notably, functions connected with the registration and regulation
of the conduct of political parties are carried out by the Political Parties
Registration Commission (PPRC).
[2] In 2005, only three departments were existing thus signifying the
broader scope of the work that the NEC is engaged in more generally.
