Electoral management is fundamental and must be taken into account in the design
a legal framework. The more successful electoral management can be, the more
successful the election as a whole becomes. To achieve efficient and effective electoral
management requires several conditions as follows: first, electoral legislation
has to detail every single phase, stage, activity, and procedure in order to
prevent any mistake or illegality; second, electoral authorities have to be designed
according to the country’s or the region’s political and social particularities;
third, such authorities must have institutional powers to perform their duties
under the general principles ruling electoral processes: certainty, legality,
independence, impartiality, transparency and objectivity.
International law does not proscribe in detail
the attributes of electoral management bodies but the United Nations Human
Rights Council has stated that, “an independent electoral authority should be established to supervise
the electoral process, and to ensure that it is conducted fairly, impartially and
in accordance with established laws which are compatible with the Covenant.”[i]
The”primary objective of a legal framework is to guide the
EMB and enable it to achieve the delivery of a free and fair election to the
electorate”[ii]
and to do so the efficient
and effective performance of electoral management is fundamental.
Bearing this in mind, the ideal requirements that electoral authorities
have to meet are further discussed in this section but can be summed up as
follows:
- Professional and
independent performance in respect to the political party in power.
They have to treat all the contenders in an impartial way.
- Neutrality has to be recognized
as one of its distinctive features by every single contender.
- Performance has to be
efficacious and authority must be provided with as much material resources
as required to fulfill the duties.
- Performance has to be
closely related to the legal framework ruling the existence of the
electoral authority. Electoral managers have to be scrutinized by
permanent and independent examiners, which can be judicial.
The performance of electoral management bodies
will also face constraints in any environment.
Some of these constraints are limited independence, unclear mandates, inadequate
resources, the appointment procedures and tenure of members of the electoral
management body.[iii] Especially in post-conflict countries, the political
stakes may be extremely high, and the commitment to democracy among former
combatants may be weak.[iv]
The management of democratic elections requires independent and
non-partisan electoral authorities that are free from any kind of political bias.
This a fundamental issue, especially for countries in which a democratic regime
is not yet consolidated and where electoral managers may take and execute
important decisions which can directly affect the electoral results.
Therefore, specific political conditions have to be taken into account to
determine who is going to be in charge of electoral management and what kind of
institution will be empowered to do so.
Such legislative decisions have to determine both the size and the integration
of electoral authorities. Such legislative decisions also have to
determine who will be appointed and how the appointments and the removals from
such appointments will be done. The establishment of electoral authorities has
to take into account considerations as follows:
i. Structures
The managerial structure has to include a higher electoral agency whether
central or national. There can also be some lower agencies at state or
regional level. Depending on the extension of electoral jurisdiction and communications
systems there can even be district electoral agencies. Intermediate electoral
agencies can exist as long as the respective electoral system, the geographical
situation and the demographic density of the country make it reasonable. The
pre-eminence of the central electoral authority and the relationship between levels
of electoral authority should be clearly set out in the legal framework. At the
same time, it is convenient to prevent a widespread creation of trivial
electoral agencies. Trivial and unnecessary electoral agencies have a
straightforward effect: they do increase electoral spending.
The electoral structure is organized around voting places. Voting places
are the core of any electoral structure. A fundamental task for the legal
framework is to define in a precise and clear way how the voting places will be
integrated, and how they relate to headquarters and to other electoral
authorities. The legal framework also has to set down the nature of relations
voting places will have with governmental authorities on election-day. In
addition to the electoral management body, the structure to deliver elections
will likely also count on the assistance of government departments at various
levels. It is preferable that the legal framework
anticipates these relations and establishes the direction of the electoral
authorities as paramount.
ii. Accountability
The accountability of electoral
authorities should be legislated in a clear way given the fundamental importance
of these organizations, the constraints and challenges they may encounter and
the need for overriding public confidence.Accountability may be achieved in a
number of ways. Ultimate accountability
should be directly to the national elected assembly in order to avoid government
interference or control. Often this may take the form of reporting to a
legislative committee. In addition to
legislative oversight, independent audits, public reports and open meetings are
all manners, in which accountability may be pursued,[v]
iii. Composition Requirements
There is no single best way to constitute an electoral management body that
is transferrable to all countries. The
situational context of each country is an important consideration. Perhaps foremost among considerations is the
relationship of public trust and power.
The lower the public confidence in public institutions, the stronger
electoral authorities may become. Such a situation is not the case for
consolidated democratic federations. As a matter of fact, electoral
management can be grouped as follows:
- Countries in which
electoral management is vested in ordinary executives (national or local).
In such cases, regular review systems are not modified for ordinary
executives are usually seen as trustworthy, neutral, and impartial. In
these cases, disputes may also be settled by the ordinary courts. This situation may likely be associated
with established democracies.[vi]
- Countries in which electoral
boards are created to review the electoral management carried out by the
Executive Branch of Government. Such boards are usually not
empowered to manage electoral processes.
- Countries in which
specific electoral divisions within a traditional branch of government are
empowered to organize elections.
- Countries in which the
level of confidence is so low that autonomous electoral authorities are
set down in the Constitution. Such authorities not only replace the
governmental management of elections, but also prevent any kind of
external influence by any other governmental organization. Actually
they can be seen as a kind of fourth branch of government. The creation of
autonomous electoral authorities can be seen as an important step towards
the construction of an independent and impartial electoral management
trusted by voters and political parties.
In some countries, the composition of electoral
management bodies may include or be comprised of political
representatives. The potential disadvantage
to this approach is the apparent politicization of the management of elections but at
the same time, “it can be useful in building confidence in countries (such as
those emerging from conflict) in which there are doubts about the honesty and
integrity of the election system.”[vii] If this partisan approach to composition is
selected it is,”greatly enhanced where its membership is representative of the
political spectrum.”[viii] Some countries may, of course, define a composition
that includes both partisan and non-partisans but in any event the obligation
once appointed is to act in an independent and impartial manner.
In some cases, electoral management bodies may
incorporate the judiciary directly and in other cases, such as post-conflict
situations, membership might also be extended to the international community.[ix] Other considerations may include composition
that is reflective of the nation as a whole and ensuring participation by women.[x]
As long as it is possible, it is recommended to
appoint professionals who know the legal framework ruling the election’s
management. Usually it is required that at least some of the individuals
comprising electoral authorities are legal professionals. Some problems
affecting lower electoral authorities can be released from such a requirement
if it is reasonable in the circumstances. Both the independence and the
impartiality of electoral authorities that include officials or judges
appointed by the ruling party can be jeopardized. A reasonable solution can be
found in those cases in which political parties are empowered to express their
opinions before the electoral authorities, with no power to play a role in
solving electoral issues whatsoever.
The appointment of honorable political agents such as non-governmental
organizations and members of the Judicial Branch of Government to occupy
electoral Offices, are usually good options.
Of course, to select an agency independent from traditional powers is the
right move for countries going through a political transition. However,
such a selection can raise some questions in the long run. The more
successful the democratic transition can be, the less crucial an independent
electoral authority may become. This is particularly true in the case of
countries in which a real system of checks and balances has been consolidated.
Checks and balances represent the existence of the rule of law and the
strengthening of public confidence towards public agencies. To keep an
independent electoral authority under such circumstances can be very expensive
therefore requiring careful thought.
Whatever the determination of the nature of composition
of the electoral management body, “The overall credibility of an electoral process is
substantially dependent on all relevant groups (including political parties,
government, civil society and the media) being aware of and participating in the
debate surrounding the formation of the electoral structure and processes”[xi]
Therefore electoral management bodies must be sustained by on-going
communication and transparency.
A similar requirement for communication within
electoral management bodies also exists and can be further amplified dependent
upon the composition of the body. Communication and consensus are particular assets
to electoral management bodies, “Since
decisions on election issues are often of extreme political sensitivity, those
taken by vote rather than by consensus can undermine the election management
bodies appearance of neutrality and professionalism.”[xii]
As a 2010 report of the OSCE concludes:
Whichever body is constituted to administer a particular election, its work
should be efficient, collegial, impartial, transparent and independent from the
state authorities and other political influences. It should be guided by the
fair implementation of laws with no regard for political considerations,
especially in cases where election commissions are multipartite, and should
enjoy the confidence of election stakeholders.[xiii]
iv. Terms
Electoral authorities have to be permanent. In some countries they are open
for business only during a period of time. However the permanent work of
electoral authorities is necessary when these bodies are in charge of the voter
registry. In such cases, the permanent activities of electoral
authorities have to be legislated. A voter registry has to be up and running
for every single election. Usually lower electoral authorities, as those
in charge of small electoral territories or those in charge of voting places
are not permanent; they are open at the beginning of electoral periods and are
shut down once the final results have been validated.
Electoral organizations should better be
partially renewed over time. It is not very wise to renew the entire
composition of electoral authorities every single election As a matter of
fact, experience can help to raise the institutions’
productivity. In terms of process, all the procedures and
fundamentals supporting appointments and impeachments have to be legislated in
order to immunize members of electoral authorities against any sort of
political pressure. Furthermore, “If the legal framework adopts a party-oriented
formula, then it should address how and when changes in commission membership
should occur when there are changes in the strength and membership of parties,
especially where there are new parties.”[xiv]
As important as it is to ensure that the
appointment to electoral management bodies is well defined and transparent, so
too should the removal or suspension of members be clearly set out in the legal
framework in a way that is, “designed to foster the independence and impartiality
of members, including provisions protecting members from arbitrary removal.”[xv]
Both the appointment and removal procedures
should be,” undertaken in a manner that is impartial, accountable and
transparent.”[xvi]
The electoral officials’ wages must not be directly controlled by the government. Some
countries also grant immunity to electoral officials in the performance of their duties.
v.
Funding
Electoral authorities have to be comprised before the election takes place
under the law. It is also crucial that electoral authorities are provided with adequate
funding to perform their duties. Legal frameworks have to include clear
and objective rules on how permanent activities of electoral authorities will
be funded, in order to prevent budgets from becoming a political tool which can
be employed by a Parliament, political parties or the Government against
electoral authorities.
Among the major methods by which electoral
management bodies may be funded are:
- allocation through a
department of government,
- a direct vote of
parliament (sometimes enabled through an all-party committee),
- an advance lump sum and
audited allocation or
- direct and
uncontrolled access to the State treasury for funding elections and
reports to parliament only after an election.[xvii]
In some cases, international aid may also assist the financing of elections.
The effectiveness and trustworthiness of an autonomous electoral authority
is based not only on the existence of sound finances, but on the existence of
impartial and independent employees working for it. Both material and
personnel resources are required to be clearly identified and provided on a
timely and transparent basis.
Overall, electoral management bodies in general tend to be expensive
institutions. Actually they can be seen as representing a
disproportionate expense within the general framework of public services
offered to taxpayers. In some countries at critical points, however, democracy
is considered to be so valuable that whatever public funds used to pay for
electoral institutions seem to be justified. Usually successful elections are
not reviewed from financial points of view. This is particularly true for those
cases in which electoral expenses have been funded through international
cooperation. However, as soon as electoral processes become more and more
successful, democratic regimes become more and more consolidated and international
funds become more and more scarce, financial considerations can become a
central consideration. Under such conditions democratizing countries should do
well to ensure that electoral expenses are appropriate and not
exaggerated.
vi. Powers and Duties
Electoral management bodies’ (EMB) power and duties have to be legislated
in a clear way. Clear electoral legislation will also contribute to more
efficacious supervision of electoral authorities
The legal framework should clearly define the
duties and functions of the EMB. These must particularly include the
following:
• Ensuring that election officials and staff
responsible for the administration of the election are well trained and act
impartially and independently of any political interest
• Ensuring that clear voting procedures are
established and made known to the voting public
• Ensuring that voters are informed and
educated concerning the election processes, contesting political parties and
candidates
• Ensuring the registration of voters and
updating voter registers
• Ensuring the secrecy of the vote
• Ensuring the integrity of the ballot through
appropriate measures to prevent unlawful and fraudulent voting
• Ensuring the integrity of the process for
the transparent counting, tabulating and aggregating of votes.
In some cases the duties and functions of an
EMB may also include the following:
• Certification of the final election results
• Delimitation of electoral boundaries
• Monitoring and overseeing electoral campaign
finance and expenditure
• Research, advice to government and/or
parliament, and international liaison.[xviii]
In still other cases, electoral management bodies are empowered to resolve
election related disputes.Electoral authorities have to be independent,
transparent, and impartial. Once an electoral authority has been comprised,
it must perform its duties and execute its powers in an impartial way.
Every legal framework aims at guiding electoral authorities on how they have to
organize a free and fair election. In doing so, electoral authorities
have to perform their duties in an efficient as well as impartial way.
Some of the fundamental features of electoral
authorities some can be listed as follows: a) Independence and
Impartiality; b) Efficiency and Effectiveness; c) Professionalism,
Legality, and Objectivity; and d) Clarity.
Bearing this in mind, it is important to notice
that when an electoral system finds itself in a consolidated stage, it is
possible to identify additional considerations which can be addressed because
of the existence of an autonomous body and assuming the available funds.
[i] and The Carter Center, Strengthening International Law, 39.
[ii] International IDEA, International Electoral Standards,
[iii] SADC and EISA, Principles for Election Management, Monitoring,
and Observation, 11.
[iv] UN, Women & Elections, 65.
[v] Patrick Merloe, Promoting Legal Frameworks for Democratic
Elections, 19.
[vi] International IDEA, International Electoral Standards, 37.
[vii] UN, Women & Elections, 67.
[viii] European Commission, Handbook for European Union Election Observation, 36-37.
[x] SADC and EISA, Principles for Election Management, Monitoring,
and Observation, 12.
[xi] International IDEA, International Electoral Standards, 43.
[xii] UN, Women & Elections, 68.
[xiii] OSCE, Election
Observation Handbook, 52.
[xiv] OSCE,Guidelines for Reviewing a Legal
Framework for Elections, 11.
[xvi] SADC and EISA, Principles for Election Management, Monitoring,
and Observation, 12.
[xvii] International IDEA, International Electoral Standards, 40.
