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.

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…”

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.

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)

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. The process of legal reform must be impartial and inclusive of all key stakeholders.
7. 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. 

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).

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).