Question posted on behalf of Steven Martin, member of the ACE Practitioners' Network

The Question

Cases where the electoral commission or responsible EMB remains independent in name, but sees its full independent nature actually compromised are apparent across many regions and countries today. I am aware of the more theoretical and conceptual clarifications on this debate, such as structural and fearless independence, but for my work I am interested in empirical practice and concrete cases of interference with EMBs and how such cases have been handled. For example, the Indian Independent Election Commission when facing a situation of interference saw its Supreme Court intervene with a ruling in favour of election commission independence. Other countries where such situations could be relevant include Afghanistan and/or Palestine.

In sum, I am thus interested in specific examples of interference in independent election commission operations (in particular countries in the midst of democratic transition), the subsequent fallout from such interference and any resulting action (i.e. nothing was done and interference continued, perhaps noted, public outcry caused for some sort of action or retraction, judicial intervention or any possible assertion of independence by the election commission itself, etc.)

Thanks,

Steve

Summary of Responses

It was emphasized that in most cases where EMBs are interfered with, it is more by subtle influence rather than by overt direct action. The examples of Kenya, Sierra Leone and Indonesia were raised.

In 1992, the Attorney General of the incumbent regime in Kenya purported to change the period for political parties to nominate candidates for the parliamentary elections after the publication of the relevant election notice. The Electoral Commission of Kenya acted on this and gave the political parties only eight instead of twenty-one days to finalize their list of candidates. One opposition party challenged the action and the High Court found in favor of the opposition party. 

In Sierra Leone, when the party in power had failed to influence the commission in its favor and faced a likely defeat during the 2007 electoral process, the government stopped paying salaries of election officials. There, the UN Peacebuilding Fund bridged the funding gap and election officials went back to work.

In the past two electoral cycles (2004 and 2009) in Indonesia, which is one of the countries that have moved away from an EMB model in which the a ministry has doubled up as the EMB, voter registration has been an issue. Voter registration has fallen variously between the Ministry of Home Affairs (MoHA), the Central Statistics Agency and the General Election Commission (KPU). In 2004, all three were involved while in 2009 the MoHA and the KPU were engaged. The public was noted as seeing and holding the KPU to account for the voter list, which produces a major integrity gap as MoHA carries major authorities for compiling the list but is effectively liberated from any accountability. The KPU, on the other hand, is held fully accountable yet is not really in control of the voter registration process.

Other potential issues include: an EMB that in transit from ministry led to independent body are still made up of the same people who used to be there before under the old model, raising issues that split loyalty and career opportunities may impact the operations of the new model; and independence of budget formulation, structure and that many bureaucratic follow up steps take much longer to implement than adopting a new election law and selecting independent commissioners. Especially in terms of financial matters, EMBs in some countries often come under pressure of the government. 

Examples of Related ACE Articles and Resources

Encyclopaedia:

• Mozambique: A Need for Depoliticization 
• Lesotho: Building a Reputation 

Support and Advice:

• EMB independence and the origin of independent election administrations 

Names of Contributors

1. Carl Dundas

2. Anne Gloor

3. Kevin Evans

4. Khalid Waheed

This is an important question, as in most cases EMBs are interfered with more by subtle influence rather than by overt direct action. However, during the lead up to the transitional election to multiparty elections in Kenya in 1992, I came upon a crude intervention by the Attorney General of the incumbent regime. In that case, the Attorney General puported to change the period during which political parties nominate candidates to contest parliamentary elections by amending the relevant provisions of the election law, which read "not less than" to "not more than" twenty-one days after the publication of the relevant election notice.

The Electoral Commission of Kenya acted on the purportd change in the law by the Attorney General and gave the political parties only eight instead of twenty-one days to finalize their list of candidates. One opposition party challenged the action of the Attorney General as being null and void and of no effect, and also the Commission's action in fixing the election dates pursuant to the changes brought about by the action of the Attorney General.

The High Court found infavour of the opposition party and ruled that the action of the Attorney General was null and void and of no effect and so was the attempt by the Electoral Commission to change the period within which political parties had for nominating their candidates, (see High Court of Kenya Civil Case No. 5936 of 1992, Odinga et al v. The Electoral Commission (before Judge T. Mbaluto, J )    

Posted on behalf of Anne Gloor

Dear Steve

Hope that’s useful.

Best, Anne

Posted on behalf of Kevin Evans, electoral official in Indonesia

There is what I see to be the way "independence" can be subverted by the bureaucracy not the politicians.

When we look at issues of subverted independence of an EMB, the focus is usually directed towards political actors be they ministers, MPs, powerful party leaders etc.

Another form of subversion can come from within the bureaucracy itself, most notably from a ministry/agency that has traditionally played a key role in electoral affairs and has been essentially side-lined by a move towards an independent EMB model. Bureaucratic habits, rules and procedures die hard, especially when laws and regulations are framed with involvement of the outgoing agency.

One issue that has been problematic in Indonesia in the past two electoral cycles (2004 and 2009) in particular has been the issue of voter registration. The task here has fallen variously between the Ministry of Home Affairs (MoHA), the Central Statistics Agency and the General Election Commission (KPU). In 2004 he three were involved while in 2009 MoHA and the KPU were engaged.

The process in 2009 had MoHA produce the draft roll while the KPU took over the process to conclude the roll. Regardless of the technical complexities of matching data that may not actually match (eg village data not disaggregated to the poll station which makes it all but impossible to verify names), the more important problem in many respects is that the public sees and holds the KPU to account for the roll. This produces a major integrity gap as MoHA carries major authorities for compiling this list but is effectively liberated from any accountability. The KPU, meanwhile, is held fully accountable yet is not really in control of the process.

Another issue that may emerge in an EMB that in transit from ministry led to independent body is that staff of the new body may well be the same people who used to be there before under the old model in which hey were part of a wider ministry, not a stand alone agency. In this regards issues such as split loyalty (to the old home ministry rather than the new look EMB) and career (the new body may be seen as a dead end for long term career advancement) can impact upon the effective application of the authorities that are expected to be performed by the new agency.

There are of course other more classic bureaucratic issues, such as independence of budget formulation and structure, that may remain too closely affected by the preferences of Finance Ministry officials or worse still when the new EMB is still, for budget purposes, allocated on the basis of being part of the wider envelope of funds allocated to its the pre-existing agency.

All of this is to recall that the "declaration of independence" into a new look election law has many bureaucratic follow up steps that take much longer to implement that the selection and inauguration of independent commissioners.

Cheers,

Kevin

In some countries the EMBs usually come under pressure of the government with the result that the elections lose  credibility.This happens where EMB is not independent specially in financial matters and always look forward to seek finances from the Government. In developed democracies the EMBs are quite independent and never bothers or influenced by the Government ,what so ever the strong it is .

The founder of Pakistan Mr Muhammad Ali Jinnah had given a very important message to the beauracracy which is a guiding principal for all of us.I would like to reproduce that message for all the EMBs and if it is followed in true spirit the beauty of democracy can be felt every where.

The first thing that I want to tell you is this, that you should not be influenced by any political pressure, by any political party or individual politician. If you want to raise the prestige and greatness of Pakistan, you must not fall a victim to any pressure, but do your duty as servants to the people and the State, fearlessly and honestly. Service is the backbone of the State. Governments are formed, governments are defeated, Prime Ministers come and go. Ministers come and go, but you stay on, and, therefore, there is a very great responsibility placed on your shoulders.

You should have no hand in supporting this political party or that political party, this political leader or that political leader – this is not your business. Whichever government is formed according to the constitution, and whoever happens to be the prime minister or minister coming into power in the ordinary constructional course, your duty is not only to serve that government loyally and faithfully, but, at the same time, fearlessly, maintaining your high reputation, your prestige, your honour and the integrity of your service. If you will start with that determination, you will make a great contribution to the building up of Pakistan, of your conception and our dream – a glorious State and one of the greatest nations in the world.

Khalid Waheed