The Question
This question is posted on behalf of George V. Carmona, a user of ACE.

Many EMBs in new democracies tend to be less independent because of their restrictive interpretation of their constitutional mandate. Although they feel the need for implementing bold and proactive measures to show impartiality and independence from the ruling party and notwithstanding the fact that the constitution grant them the mandate albeit in bold stroke, EMBs feel restricted by a lack of explicit provisions in the laws that would define their powers and duties. Has there been any study on this - i.e. arguing for an expansive interpretation of EMBs' mandate based on explicit constitutional provisions and international commitments - to enhance and assert independence and impartiality?

Summary of responses
There is indeed often a lack of explicit and detailed constitutional provisions for EMBs; the current trend instead being to set out a broad electoral mandate in the constitution with accompanying electoral laws then providing more detail.  Kenya and South Sudan are cited as examples where this has recently been the case. Such accompanying legislation is seen by another expert as crucial in clearly detailing an EMB’s role and activities. Bhutan’s EMB, on the other hand, is said to have clear constitutional provisions. 

Another view is that EMBs are themselves often to blame for not being sufficiently proactive or utilising the legislation fully, even if it isn’t always explicit in its provisions. It is noted that this is particularly the case with newly formed autonomous EMBs taking over from a governmental EMB, e.g. Cameroon. Whether in such cases this is due to an EMB’s unwillingness to act, or rather to poor interpretation of their mandate is often hard to say.

Examples of related ACE Articles and Resources
Encyclopaedia:
• The Powers, Functions and Responsibilities of an EMB
• Legal Framework: Electoral Management 

Names of contributors
1. Carl Dundas
2. Menang Thaddeus
3. Kunzang Wangdi
4. Amon Emmanuel Chaligha

Hello George,

I do believe that the trend currently is to set out the basic (fundamental) electoral mandate and status of an EMB in the constitutional instruments  and fleshed them out in accompanying electoral laws. See for example, the recently (2010) crafted Kenyan Constitution followed by the 2011 Kenyan Electoral Law; (Also the draft Electoral Law of South Sudan is along similar lines.) An increasing number of EMBs have expanded their mandate (or perhaps more accurately) had their mandate expanded to include voter education and delimitation of electoral districts'/constituencies' boundaries. 

Hi All!

EMB perception of their role and powers is indeed an important factor when one examines the extent to which these organizations are prepared to assert their independence and autonomy and take initiatives that enhance their credibility among election stakeholders and the public at large. This is particularly the case when an autonomous EMB has just been set up to replace an election administration that has for long been part of a government department. In such a case, EMB officials often fail to take full advantage of existing constitutional and/or legal provisions that empower them to take certain initiatives and they continue to wait for a related government department to take the lead.

Such a situation exists in Cameroon where “Elections Cameroon” took over from the Interior ministry as principal manager of the electoral process in 2009. Existing legal provisions do not empower the new EMB to initiate legislative reforms in election matters. The government retains these powers.

However, the law contains two provisions that allow “Elections Cameroon” to play a certain role in bringing about legislative reform. In fact, section 7 of the law that sets up the new EMB empowers its Electoral Board to “submit reports and/or proposals to the appropriate authorities on issues that fall within their competence”. The same section empowers the Electoral Board to “make recommendations or suggestions on any draft bill relating to elections submitted to it”.

As a supervisory organ that ensures compliance with the electoral law and guarantees, among other things, that polls are impartial, transparent and credible, one would have thought that, on the basis of the above provisions, the Electoral would take the initiative of drawing government’s attention to those areas of the electoral law that require revisiting.

Instead of taking such an initiative, the Electoral Board has quietly waited for more than two years, since 2009, for the government to seek its opinion on draft bills headed for parliament. During this period, laws dealing with electoral matters have been amended several times and on no occasion did government seek the Board’s opinion on any of the amendments.

The Electoral Board does have a lot to say about election legislation reform but has failed to exercise the power of initiative given it by the law. This situation, which has indeed been decried by members of Cameroon’s civil society, may arise more from the Electoral Board’s perception of its role as defined by law than by unwillingness to act. It may take some more time for Board members to fit into their new role.

I believe that constitutional clauses that give EMB mandate to register voters, to carry out voter education, to demarcate boundaries, or to nominate candidates and conduct/manage the election process has to be operationalized by a law enacted by parliament. The constitution is usually general while the law establishing the EMB can be both elaborate and specific. Hence, it is imperative to have a specific law that establishes an EMB while also indicating how it should operate. In that way autonomy can be guaranteed while accountability and transparency can be ensured.