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Original question:

Jurado Nacional de Elecciones in Peru is considering developing a policy or a code of conduct for elections and they are now looking for the experiences of other EMBs related to this.

The focus is thus on policies or codes of conduct (as opposed to international treaties, conventions, constitutions or laws) developed by EMBs for other stakeholders (as opposed to policies or codes of conduct developed by e.g. political parties or media or NGOs or others to guide their own actions) to guide the actions of several different stakeholders related to the electoral process (election day and beyond).

Any examples of such policies and any thoughts on what they should and should not cover will be most valuable.

“Codes of Conduct can contribute to fairness and to the appearance of fairness in the administration of an election. Codes supplement rules, but can also provide what has been called in another context, 'light touch regulatory styles that do not stress commands.’ The provisions of any code will necessarily depend upon the particular political and social context, and on the needs that must be met; in general, however, a code's content will be determined by reference to whether it furthers an acceptable result in terms of the criteria for free and fair elections.” (Goodwin-Gill, Guy S., Codes of Conduct for Elections. Geneva: Inter-Parliamentary Union, 1998)

Introduction

The term “code of conduct” refers to a group of rules which aim at establishing neutral practices for persons or organizations in charge of undertaking elections or electoral observation, such as, inter alia, public officials, electoral officers, media, lobby groups or political parties. The purpose of codes of conducts in this context is to simultaneously contribute to a pacific and organized development of the election and to promote ethical behaviour and deter abusive or interfering actions from diverse interests. As such, codes of conduct are crucial documents which can have a big impact on any given election. A rule-of-thumb saying to understand codes of conduct in the electoral field is that while laws and regulations of the electoral processes ensures that elections are free, codes of conducts is what ensures that elections turn out fair.

The classical conception of a code of conduct is that the code is applied to the people belonging to the same organization issuing it, such as an Election Commission issuing a code of conduct for its own electoral officers’ or civil servants’ behaviour before or during a given electoral process. At a first glance, some 42 per cent of 94 surveyed comparative-data countries report positively of having such a code of conduct regulating electoral officers’ behaviour in their own country. For a more in-depth comparative analysis of codes and policies specifically for the behaviour of civil servants and ministers during elections, please click here to access a previously consolidated reply on ACE Practitioners' Network on this topic. To go further and see a comprehensive listing of all kinds of codes of conduct across the world today as they relate to electoral processes at large – not only those for electoral civil servants but also those issued by and for other actors –  click here. The list contains 31 different codes, both those drafted by countries and EMBs themselves, as well as those drafted by service providers and/or other third-party actors such as International IDEA, the United Nations and/or the European Commission for example.

In the specific question posed to the experts at hand here, in line with responding expert Magnus Ohman’s reading, the issue this time concerns understanding and analyzing more broadly the situations where one code is issued by one entity but holds joint application for several other entities outside than the one issuing it. This scenario is not so common and, as Ohman implies, poses an interesting dimension to the understanding and application of codes of conduct: If there are several joint stakeholders that would be covered by one and the same code, how – then – could one make sure that both the various actors’ diverse interests are represented and that the code is also possible to enforce across the whole playing-field?  In the below text, we try to look at experts’ replies and comments in relation to more “in-depth” case studies of Zambia and Cambodia and in order to contextualize and try to establish some basic features of such rare scenarios.

Summary of replies

1) The process of setting up joint codes

There is a clear role for the EMB in helping to create an atmosphere which lends itself to the conduct of free, fair and peaceful elections. In this sense it seems fair to say that if a joint code was to be issued, the EMB(s) would most likely be a key player in this. One approach would thus be for the national election/EMB body to join together with the political parties, media representatives and/or government for example in the writing of an agreed code of conduct for the parties/agents to which they would then all undertake to abide through a process of consenting. The national election body could facilitate the writing of such a code but a key concern, as highlighted by Ohman, would be to ensure that all parties touched by the code would in one way or another have a part in writing, amending and agreeing to it. Otherwise legitimacy and adherence risk being undermined.

What is contained in the code?

As Carl Dundas informs the more technical processes surrounding elections, such as the counting of votes, tallying, treatment of complaints/ disputes, announcement of election results, as well as post-election audit or evaluation are normally covered by election regulations, but in most cases they are already today backed up in various ways by policy directives from the EMB concerned in the relevant jurisdiction.  Such backing up in terms of policy directives or instructions often, Dundas says, “cover issues such as safeguards when ballot boxes are being transported from polling stations to counting centres (where counting is done at centres), the accommodation of party agents and observers (if any) following the ballot box during transportation, and practical measures when the transportation cannot accommodate agents or observers. There may be many issues like these which are not fully covered by regulations and policy guidelines have to ensure that transparency and security are affected”.

Seen in this context, a joint code of conduct applicable across the range of issues mentioned would thus have a significant challenge in adequately balancing enough generalization to be applicable across fields and actors but at the same time be technically detailed enough to provide steering and guidance to be useful. As such, a middle ground to consider when talking about joint codes could be areas as for example: control of peaceful supporters, co-operation with the national election body on all electoral matters, peaceful campaigning, agreeing not to disrupt opponents' meetings or rallies and agreeing to accept the outcome of the election and challenging only in a lawful ways.  Furthermore, as expert Alan Wall informs, “existing electoral codes of conduct typically encompass more than the ‘Election Day and beyond’ period. Some, especially for EMB staff, cover the whole electoral cycle – this would be preferable for all electoral codes of conduct”.

Enforcement of codes

Some codes of conduct are entrenched in or refer to binding regulations which obviously gives them a strong standing. South Africa for example has an electoral code of conduct that is often cited as one example which, both for its language and sanction-mechanisms, give it almost a legal status. To enforce its application and hold individuals or organizations legally accountable for their actions, “electoral appeal courts” exist on local level throughout the country. Our expert Alan Wall also cites further examples of countries where codes of conduct have a strong status such as India and Zambia.

More often than not however, codes of conduct are stand alone documents which are not directly included in - but rather refer and act complimentary to - the electoral legislations that exist in the country, usually known as the electoral acts.  In sum thus, codes of conduct can generally be understood as having a voluntary dimension to their nature. But, as Wall points out, despite the fact that a majority of codes of conduct might lack serious legal enforcement possibilities, if they have been broadly consented and agreed this can give them an integration to the normative dimension of an electoral process and as such serve to regulate important issues without disposing of proper sanction-mechanisms. Tools to consider in this respect could be “public demonstrations of acceptance of and commitment to the codes by leaders: at least by having key representatives of the particular target group for a code (such as party leaders, security force commanders, journalist association leaders, media proprietors) formally sign the code, preferably at a public ceremony. Wide distribution of signed copies of the code – such as pamphlets, posters, can assist with compliance”.

2) Cases of Joint Codes

The Zambian code of conduct regulations were developed in 2006 with a background of 40 years of elections held in circumstances where the rule of law and democratic principles were not always respected. The Electoral Commission of Zambia drafted the code in the purpose of restoring the credibility of the commission by minimizing malpractices and punishing the culprits (Allafrica).  In Zambia, the status of the code is legally binding as it is enabled by the Electoral Act from the year 2006.

As a general guideline the code defines the duty of every person during election campaigns and elections as follows:

“(1) every person shall during election campaigns and elections promote conditions conducive to the conduct of free and fair elections and be bound by the code.

(2) The Commission and any member of the Zambia Police Force shall enforce the Code and shall promote conditions conducive to the observance of the code.” (art. 4)

In addition, the code thereafter covers political parties and individual candidates as well as the police force, election commission itself, mass media and election observers. In the section concerning political parties and campaigns the regulation specifies the rights but also prohibitions of individual candidates. An individual candidate is for example entitled to “publish and distribute notices and advertisements” and “seek protection of the law from harm as a result of that person’s political opinion or affiliation” (art. 6). It is, nevertheless, prohibited to carry arms - traditional or otherwise - at a political meeting or public event and use government transport and resources or facility to ferry voters to polling stations. The lists of rights and prohibitions consist of numerous detailed acts. What is expected from the police force is that officers must not abuse their authority. The principles of media should be fairness and neutrality at all times while covering the electoral cycle.

In case of disputes, complaints are addressed to Conflict Management Committees established by the Election Commission and present in the country. Unlawful actions and conduct is also required to be reported to the Zambian Police. The committees consider possible punishments which the commission has to determine on case by case basis. The penalty of violating the code of conduct is a fine of maximum 2,500 penalty units or maximum two years imprisonment, or both.

In the 1993 Cambodian code (since then developed) the originally non-public agreement among stakeholders was incorporated into the electoral law by the parliament. According to ACE Encyclopedia, the Cambodian Code of Conduct constitutes:

“--  an example of legislative crystallization, by which a set of rules initially agreed upon among private subjects (although within the framework of an electoral process of evident public relevance), whose compulsory nature is derived from the commitment by the subjects that entered into the agreement, is converted into legal rules whose compulsory nature is derived from this feature.”

Its contents are typical of a code elaborated in the framework of an electoral process with international assistance, in Cambodia provided by the United Nations. The code lists both the obligations and rights of parties and all subjects and stresses free and fair elections as overriding ethical concerns to adopt. In addition to these general guidelines, a set of elaborated rules is also included in the code concerning intimidating behavior, use of weapons, importance of avoiding conflicts and restrictions of liberty. The code of conduct is backed by penal consequences envisaged in the Cambodian legal system.

Next to Zambia and Cambodia, the case of Nepal can also be of interest. The code from 2005 however, is only available in Nepalese. For the interested, click here to access that code.

Conclusion

The question of a joint code of conduct is interesting since it poses a challenge to the whole conception of a code of conduct; how can such an initiative be detailed, useful and applicable at the same time? And is it in that sense even useful to talk about such initiatives? From the study on this topic and the informative replies from the network experts, the text has found that – quite expectedly – the most normal locus to drive such a task would be for the EMB in the specific country. Content wise, processes such as for example control of peaceful supporters, co-operation with the national election body on all electoral matters, peaceful campaigning (for parties and independent candidates alike), agreeing not to disrupt opponents' meetings or rallies and agreeing to accept the outcome of the election and challenging only in a lawful ways could be areas to explore when venturing into areas of joint codes. In addition, to the extent possible, a joint code should strive to cover the whole electoral cycle period.

On the issue of enforcement, it seems fair to say that most codes of conduct are in general complimentary, rather than entrenched in existing laws and regulations. Despite this however, if well consented, the normative integration of the code into the electoral process’ actors can prove very useful and as such highly regarded documents.

The case of Zambia is an interesting example which features both a broad scope of coverage, coupled with very strong legal enforcement mechanisms, including fines and possibilities of police enforcement and even penalty sentences. From the case of Cambodia, we also see an example of where international assistance has been provided to establish an elaborate code of conduct in which principles from the international community such as prevention of intimidation are resurfaced. To advance this topic, more study on the idea of a joint code of conduct would definitely be needed.

Related sources:

Goodwin-Gill, Guy S., Codes of Conduct for Elections. Geneva: Inter-Parliamentary Union, 1998. Available online here.

Input received, with thanks from:

Magnus Ohman

Alan Wall

Carl Dundas

Two things seem distinct from the question; that we are talking about a Code of Conduct by an EMB, not by those who are to be bound by the Code, and that one code should be binding for different stakeholders.

Regarding the first point, I would stress that it is highly desirable to (whenever possible) get the input and preferably commitment from those supposed to be bound by the Code. Normally, we think of Codes of Conduct as something distinct from laws and regulations. If an EMB creates a Code for stakeholders, it first needs to ensure that it has a legal mandate to do so, as stakeholder who did not agree to the Code may well consider taking the EMB to court. In line with this, the content of the Code should not go against relevant legislation.

Also, when creating a Code without the commitment of stakeholders, you will need to pay extra attention to how sanctions can be applied against violators. With voluntary Codes of Conducts you get a certain level of a gentlemens' agreement, and naming and shaming violators can have some effect (although this is often limited).

Regarding the second issue, I have not come across codes for different types of stakeholders. The most common types are for competitors (political parties, candidates and party members/supporters), media, election observers and sometimes security forces. What is the main benefit of having a joint Code, given that the issues will be different for different stakeholders?

As to what this type of Code should cover, well I suppose it should cover issues considered important that are not dealt with satisfactorily in existing legislation or other EMB regulations. For some inspiration, I have attached the 2008/2009 observer Code of Conduct from Afghanistan, and the stakeholder Code for the ongoing Indian elections, both created by the EMB. You find a draft media Code of Conduct developed by IDEA here on this site; http://aceproject.org/ero-en/topics/media-and-elections/IDEA%20draft%20code%20of%20conduct%20on%20media%20and%20elections.pdf/view 

The processes, commencing with polling, would including counting, tallying, treament of complaints/disputes, announcement of election results, as well as post-election audit or evaluation. These processes are usually covered by election regulations, but in most jurisdictions the electoral rules/regulations wolud be backed up by policy directives from the EMB concerned. In many cases, there are codes of conduct which extend to EMBs' staff in some of the processes list herein.

Policy directives or instructions often cover issues such as safeguards when ballot boxes are being transported from polling stations to counting centres (where counting is done at centres), the accommodation of party agents and observers (if any) following the ballot box during transportation, and practical measures when the transportation cannot accommodate agents or observers. There may be many issues like these which are not fully covered by regulations and policy guidelines have to ensure that transparency and security are effected.

The disposal of election complaints or disputes often require complementary policy guidelines on procedures allowing for transparency and expeditious disposal of complaints. Post-election audit in most cases would depend solely on the policy of the EMB concerned.

Generally, there would be little by way of examples of codes of conduct devoted to just these proceses, aspects of other codes of conduct, for example, those dealing with EMBs and staff; those dealing with Media, or election observers, would extend to these processes.

The IDEA model codes have been a good starting point for content. A little reinforcement of a couple of points already made....

It’s useful to get a balance of rights and responsibilities in a code of conduct – carrots as well as sticks. Consultation with relevant groups is important when developing an/the electoral code(s) of conduct. Equally important are public demonstrations of acceptance of and commitment to the codes by leaders: at least by having key representatives of the particular target group for a code (such as party leaders, security force commanders, journalist association leaders, media proprietors) formally sign the code, preferably at a public ceremony. Wide distribution of signed copies of the code – such as pamphlets, posters, can assist with compliance.

Whether codes are voluntary statements of ethical norms or legally enforceable behavioural requirements, what sanctions (if any) are available for breaches, and who determines allegations of breaches, are critical issues. A code without any available sanctions can be little more than a PR symbol. But if a code is largely statements of broad principles it can be difficult to find an objective basis for sanctions.  

Existing electoral codes of conduct typically encompass more than the ‘election day and beyond’ period. Some, especially for EMB staff, cover the whole electoral cycle – this would be preferable for all electoral codes of conduct. It is not always usual, as codes, especially those that are more policy than law, care often developed anew for each election, and promulgated relatively late in the electoral cycle.

A (very) few examples  to illustrate the diversity of current approaches:

1.      It is not uncommon for codes of conduct for specific actors in the electoral process to be legal rather than policy documents. This could be as an element of the electoral law itself (as in  South Africa for political parties and candidates – See Schedule 2 to the Electoral Act at  http://www.elections.org.za/Documents/Act73of98andRegs.pdf ). The code could be as a regulation issued under the law by the EMB, as in Zambia (Electoral Code of Conduct Regulations 2006). 

2.      In cases where the codes are more a policy rather than a legal document, the EMB  may be able to  conduct investigations or hearings on alleged breaches of the code and publicise its findings, and refer breaches of the code to authorities for criminal investigation where  the EMB finds breaches of articles of the code that are also breaches of the law – for example in the Model Code of Conduct issued by the Election Commission of India (http://eci.nic.in/ElectoralLaws/modelcodeofconduct_noticies.asp)

3.      Where codes are more policy than regulation, they can include administrative sanctions or refer to relevant sanctions based on law and regulations, such as the  separate codes governing the conduct of election officials, observers and armed forces/police issued by the NEC in Cambodia (at http://www.necelect.org.kh/English/codeConduct.htm).

4.      There are countries that take a mixed approach: for example Indonesia, where the law empowers the EMB to issue legally binding codes of conduct for election officials (2004 election version attached) and also for election observers (see attached appendix to 2009 election regulation on election observation), whereas the code of conduct for election contestants is a voluntary document facilitated by the EMB and agreed by political parties (2004 version attached), which can have a formal public signing ceremony denoting agreement from political parties.  

5.      It is not so common for a single code to attempt to cover the conduct of all who may be involved in the electoral process. The Code of Conduct Regulation in Zambia separately covers parties, the EMB, the police, media and observers (see attached). Nepal has also had a legally binding single document in which there are sections covering parties/candidates, mass media, government. But, as these have different interests and activities, there is no attempt to define a single set of rules  to cover all of them – they are dealt with separately. A download of the code for the 2005 local government elections  is attached. The Current code is available on the EMB’s website but only in Nepali.

6.      For electoral actors other than those for whom elections is their major purpose – e.g. mass media, state instrumentalities in general -   election related  conduct may be covered by a voluntary or statutory general code of behaviour rather than one specifically issued by an EMB for elections, though a general code may include a reference to elections. There have been some election specific codes of conduct for mass media issued by EMBs – (eg Afghanistan 2005 - see attached,). There are also examples of statutory bodies other than EMBs - such as Media Commissions - issuing specific election rules for media, including elements of a code of conduct: for example the Bosnian IMC’s 1999 rules (attached) - later subsumed in general rules and guidelines of the Communications Regulatory Authority.  

Regards

Alan

As it seems I can only post 2 attachments with a comment, the other attachments referred to in the post above  are attached to this and following posts.

Alan

last 2 attachments form nepal and bosnia.

the documetns from Afghanistan referred to are still available at 

http://www.jemb.org/eng/Legal%20Framework/regulation/Mass_Media_code_of_cond._eng.pdf  and

http://www.jemb.org/eng/Legal%20Framework/regulation/reg_on_Establishment_Media_Com_Mass_Media.pdf

alan