This question is posted by ACE.

What are the advantages for an independent EMB to hire and use their own legal advisers (lawyers) as opposed to using government supplied legal counsel? 

Setting aside the actual quality of the legal advice received from a lawyer who depends on Executive Government's favourable views of her/his work in order to succeed in their public service career, there can be serious stakeholder perception problems that arise if an EMB uses legal counsel selected and supplied by the government.  

An opposition party might suggest that an EMB's legal ruling, that is not supportive of their own interpretation, is the result of the particular legal counsel used to define the ruling having a ongoing reporting relationship to the Minister of Justice -- a fierce partisan and would influence any discretionary judgement in his own party's favour.

Media might suggest that the EMB's legal stance on any particular matter is based on carefully developed legal opinion -- but that the particular legal opinion was developed by the government's lawyers. This could result in serious damage to the'independence' reputation of the EMB and reduce the level of public trust in the institution responsible for the administrative conduct of elections for the jurisdiction.

In such matters, perception can quickly define reality.  If key stakeholders don't believe the legal opinions of an EMB are actually independent this can soon become what the public decides is actually true.  The added cost of having independent legal counsel (as opposed to a 'free' government lawyer's opinion) is minuscule compared to the enormous cost, effort and time required to repair a tarnished public reputation for an EMB.

While there might not actually be a conflict of interest when government legal counsel provides advice to an EMB, the appearance that the Executive can influence opinions to be in the governing party's favour is very problematic.  This perception problem makes a very strong case for truly 'independent' legal counsel being the only source of legal advice for the management of any professional Election Management Body.  

Using Executive legal advicer could jeoperdice the independency of EMB. This could create much diversionery perception between stakeholder and EMB. It is much better for EMB's to hire her own independent lawyer to handle and manage their rising election cases rather than using executive counsel which stakeholder does not have confidence in.

Different electoral and political systems have different legal and institutional frameworks. What works well in some may not necessarily sit well with others. However, some approaches may seem to have general appeal to best practices. One such emerging issue is the structure and texture of the legal advisory or service provision mechanism for an EMB.

The question as to whether which option is preferable-independent or government legal service is a legitimate one, and it relates more often than not, to the EMB model. In a purely governmental model, i.e., where the EMB is embedded in the mainstream civil service/government structure, the logic/temptation/practice tends to be for the government to provide such service through its Ministry of Justice/office of the Attorney- General/ law officers department. However, since the government is invariably a contestant and a party to a likely electoral dispute, a government lawyer defending an EMB is like a player refereeing a match that she/he is playing, which is like a poisoned chalice. Given the general misgivings between opposing political parties and the incumbent government in an electoral contest, the perception alone that government lawyers are a party to the conflict is often more costly than the reality. In instances where government lawyers have defended an EMB against opposition litigation, the real loser has been democracy.

In Sierra Leone, the EMB, the National Electoral Commission (NEC) is an independent public organization completely delinked from government and reports directly to Parliament through the office of the president. The NEC extends its legal mandate to hire and fire its own staff, to hire its own legal retainers to represent the organization in all litigations. The advantages are obvious, including the option of selecting lawyers with elections administration bias.  When compared to established fields like medicine, law, engineering, accounting, etcetera, elections administration as a specialized professional field is either non-existent, new or emerging. There are however legal practitioners who are versed in electoral law, and who can be of better advantage as retainers to EMBs. Compared to government paid legal service providers, the recurrent cost of private legal retainers may have a telling effect on the budget of the EMB, but no cost may be too high for electoral integrity and credibility assurance, especially in dispensations where perception of social justice delivery is low. 

Therefore, irrespective of the EMB model, independent legal service providers may be perceived to enhance and promote the integrity of the electoral process more than government/civil service legal service providers to EMBs. This may be more critical in dispensations where there is a chronic culture of distrust for the legal and justice delivery structures and systems.

Stephen Aiah Mattia

National Electoral Commission

Sierra Leone

 

Dear Lorne, Thank you for this question. I'd largely agree with most opinions aired already. The perception or actual reality of bias that comes when an EMB uses government supplied legal team is not worth it unless the EMB is not constitutionally independent that is an agency within government as in some fee cases today. Government supplied legal counsel blurs the line between the EMB and govt. Even an EMB which is an agency of government must still adhere to principles of neutrality. Take for instance the case of Kenya in a presidential election petition of 2013. Already there are significant levels of discontentment among petition losers, citing interference with the judiciary. This has also largely discredited the EMB. If during the petition the government had supplied the EMB with a legal team, the level of discontentment with the EMB and other institutions involved in electoral peocesss would be worse now, to an extent of stalling them.

The Uganda Electoral Commission was in that position some years back where they used to work with legal counsel supplied by government, but conflict of interest issues forced them to change the system and retain their own counsel. One of the issues that exposed the conflict of interest occurred when the Attorney General advised that a candidate be put off the ballot paper, but the Electoral Commission rejected the advice and retained the candidate, arguing that they are an independent body. A citizen petition the courts of law, arguing that the Electoral body was wrong in rejecting the advice of the Attorney General, but court disagreed and said the EC was independent and could make its own decisions.

 

The other reality is that State counsel have a very high caseload coming from many government departments, and they may be slow or inefficient in handling some cases.

Using government counsel may compromise the independence of the EMB as stakeholders perceptions may be difficulty to be dealt with in order to restore  public confidence on the EMB. Although, professionally, the counsels may execute their duties well as professionals, but the fact that they have been provided by government, may cause discontentment in stakeholders especially the oppositions.

In my own opinion, the independent from government the lawyer becomes, the more the confidence is restored in the public.

An EMB's use of government lawyers cannot be said to belong to the family of best electoral practices, as it has the potential of compromising, or at least being perceived as compromising the independence of the EMB. An independent model EMB may have a choice either having their own legal department or hiring private lawyers, but most government models, including the government component of a mixed model EMB, might not have that opportunity. There may be risks of embarrassment when an independent model EMB relies on the use of government lawyers, particularly the Attorney-General's Department, as occurred in Malaysia some years ago when the Electoral Commission, which then normally used the Attorney-General's Department to represent it in court cases, found that the AG's Department had to represent the Government of Malaysia in a case in which the Electoral Commission of Malaysia was involved!! 

My name is Denise NZISABIRA. I work at the National Independent Electoral Commission of BURUNDI. According to me , there are many advantages for an EMB to use its own lawyers . Apart from the cost of government lawyers, lawyers from an EMB are independent from any external influences because they must save the honnor of the EMB they work for.There are risks of corruption for government lawyers what lawyers  of an EMB cannot accept as they are members of it. Supposing that there is a case in court opposing a Political Party in opposition and the ruling party and the EMB has to clarify the situation, it will be easier for it when using Lawyers counsels from the EMB than when it has to hire private or government lawyers.

la raison fondamentale des OGE ou des commissions électorales indépendantes mises en place dans beaucoup des pays des jeunes démocraties est entre autre limiter l'implication directe du gouvernement dans les affaires électorales c'est-à-dire que cet organe doit fonctionner de manière indépendante, impartiale; en y impliquant un avocat du gouvernement, cela montre l'implication directe du gouvernement dans l'OGE cela pourra conduire à la partialité dans la prise de décision. quelque soit la bonne foie que peut avoir l'avocat, il y aura des suspicions de favoritisme du gouvernement et cela crée une crise de confiance dans la population et des opposant au régime en place. cette crise de confiance peut être à la base des contestations électorales et pour la plupart des cas, qui aboutissent aux guerres et autres conflits violents. 

Dans mon pays la RDC, la Commission Électorale Nationale Indépendante a en son sein une direction juridiques constituer d'une équipe des juristes  et des avocats, justement pour éviter ces genres des crises de confiances afin de ne pas tomber dans  les violences armées. dans les pays de jeunes démocraties et fragiles, cet apport des avocats propres à l'OGE est plus préférable que des avocats du gouvernement. donc, il y a une crise de confiance nette des opposants aux régimes au pouvoir et surtout que ceux-ci cherchent aussi à se maintenir au pouvoir quelque soit la forme d'y parvenir, pour ce, pas bon et pas souhaitable de faire recours aux avocats du gouvernement. 

PAUL GODDEY GABLAH, GHANA

The Ghana Electoral Commission was in a position several years back where they used to work with legal counsel supplied by government, but conflict of interest issues forced them to change the system and retain their own counsel. One of the issues where Attorney General was exposed when the conflict of interest occurred, but the Electoral Commission candidate, is always ways independent body. A citizen petition the courts of law, arguing that the Electoral Commission not to use National Issuance card for registration was wrong and the court should reject the advice of the Election Commission and Attorney General, but court agreed and said the EC can not do that work. It is much better for EMB's to hire their own independent lawyer to handle and manage their rising election cases rather than using executive counsel which the people in the country have no confidence in.

However reality shows, especially in developing countries that the quality of performance

The question I would like to ask the practitioners is: 

§  What methods and systems are used by Election Commission to assess the performance of their own members and other temporary electoral works?

§  What cost effective methods of recruitment of legal counsel. 

 

 

Using government lawyer will certainly jeopardise the independence of the EMB. In our case (ELECAM), we have a unit in charge of legal affairs, headed with a head of unit. They are the ones that represent ELECAM in all its legal affair and they are on ELECAM payroll.

I think that all depends upon political system. For example, when those lawyers (justice in general) are independant there can't be any souspicions. In contrast, this can't be use in political systems when lawyers are influenced by the Executive.

For, me the best use is to hire and use their own legal advisers just to avoid any source  electoral disputes.

I believe an independent EMB should have its own legal adviser(s). They should be recruited by the EMB without any interference from the government to deal the legal matters independently and neutrally.

 

In Bangladesh, the EMB has a legal affairs wing lead by a Joint Secretary deputed from the judicial service. There are some other officials deputed from judicial service. In addition to this, the EMB recruits independent lawyers as advisers

Independientemente de como sea la conformación del organismo electoral, resulta indispensable para el desarrollo de sus actividades y la toma de decisiones, que se tenga al interior del organismo una unidad o departamento de asesoría jurídica, experto en el área electoral. Ello garantizará las buenas prácticas y la conservación de la autonomía e independencia con que deben contar este tipo de entidades.

No se trata de rechazar a priori la asistencia de estudios jurídicos, pero las exigencias de transparencia y neutralidad que se requieren, hace necesario que el órgano electoral tenga en su organigrama abogados y asesores legales.

Hi all, I have read and agreed with pretty much everything that has been written so far. I certainly agree with the majority that EMBs should have their own legal department for all the reasons stated but would like to add some caution in that the lawyers employed MUST have some specialised knowledge of electoral laws. Or at least they need to be exposed to the principals of electoral law interpretation which I am sure most will agree is somewhat different to other laws.

Ghana ' s Electoral Commission has a private legal retainer and does not depend on the use of government legal services - Attorney Generals department(government supplied legal services) for its legal work!The Constitution provides for the independence of the Electoral Commission, and that it should not be subjected to the direction or control of any person or authority.What I know is that most suits or writs against the Electoral Commission tend to add the Attorney Generals department as second defendant.Hiring a private legal services goes to reinforce the independence of the commission as against using government legal services,which may tend to make the Electoral Commission look like being subjected to the government !

The independence of the Electoral Commission must be protected at all times - be it legal  so as to continue to win the confidence of stakeholders-, political parties,civil society,media etc.

Hello there, some EMBs have considered establishing their own legal chambers as well. To free legal teams of EMBs from the routines of engaging in Court processes, it would be reasonable to engage external legal experts or private entities in handling especially none core election cases. 

Es importante garantizar la independencia de los EMBs, para ello es preciso que cuenten con su propio staf de abogados, un equipo sólido de profesionales con conocimientos de derecho electoral y de procesos electorales en general.

Las ventajas de contar con asesoría propia pueden ser muchas:

- Fortalece el organismo electoral

- Generación de criterios propios y calificados

- Fomenta la credibilidad del organismo.

- El criterio puede tener el carácter de vinculante y obligatorio

 

Las desventajas de usar la asesoría del gobierno de turno sería que esto afecta a la imparcialidad del organismo electoral, y que serían solamente recomendaciones.

Por otra parte, se debe diferenciar con la contratación de abogados externos para un caso concreto, que si es posible, porque el contratante tiene el poder de decisión.

 

Bonjour,  il est de mémoire que l'organisation des élections dans les pays où la démocratie est installée relève de la compétence de l'administration donc du gouvernement. Mais dans certains pays, ceux qui aspirent à la démocratie, l'organisation des élections est sujet de plusieurs controverse, l'état etait accusé de favoritisme.  C'est pour cette raison que les OGEs indépendants ont été mis en place dans certains pays. Ces OGEs devaient avoir une indépendance totale au plan  administratif et financière et  surtout vis à vis de  toutes autre administrations.

Il est évident que ces OGEs doivent avoir une totale indépendance administrative, financière et en son sein des cadre juridiques compétents. les juristes et les avocats de l'OGE ont pour mission d'aider celui-ci à agir dans le strict respect des lois et procédures électoraux. Ici, il est question de repartir et/ou distribuer le pouvoir aux individus ou groupes d'individus.  Les enjeux sont majeurs et il est bien que l'OGE puisse disposer des ses propres cadres. 

Cependant, il serait aussi bien que l'état puisse avoir un regard sur ce qui se fait au sein de l'OGE. L'état dispose de la force publique et des ressources financières comme vous l'aviez dit.  Et nous savons que la force publique se met en mouvement que sur instructions des gouvernements. La présence de l'avocat de l'état peut aider à apaiser certaines tensions. Le rôle de celui-ci est de voir et défendre les intérêts des gouvernants au sein des OGEs, donc de dialoguer au sein de l'OGE et donné par conséquent les avis du gouvernement. 

I am strongly of the opinion that EMBs should have their own legal advisers as this will help in enhancing their credibility in the eyes of the stakeholders. This is especially if the EMB has the independent status.Even in the governmental and mixed model of EMBs,hiring their own legal advisers remains ideal ELECAM has a Division that deals with legal matters and the staff under here are on the pay roll of ELECAM.

In Spain there is what is called the Central Electoral Board, the Electoral Administration aims to ensure the transparency and objectivity of the electoral process and the principle of equality, and is made by the Central Electoral Board, the Provincial Electoral Commissions, Electoral Area Boards and, where appropriate, the Electoral Autonomous Community, as well as the Electoral. 

 

The Central Electoral Board is the governing body of the Electoral Administration and is the only permanent body of it. 

composition 

• Eight Members of the Supreme Court justices appointed by ballot by the General Council of the Judiciary. 

• Five Vowels or Law Professors of Political Science and Sociology, active, appointed a joint proposal by the parties, federations, coalitions or groups of voters represented in the Congress of Deputies. 

• Act as Secretary of the Central Electoral Board Secretary General of the Congress of Deputies. 

• is also part of the Central Electoral Board, with voice but without vote, the Director of the Electoral Census Office. 

The appointment of members must be made within ninety days following the inaugural meeting of the Congress of Deputies. 

Designated Members are appointed by Royal Decree and continue in office until the inauguration of the new Central Electoral Board, the start of the next Legislature. They choose from among the Members of the judicial origin, the Chairman and Vice Chairman at the inaugural meeting to be held at the call of Secretario.a exite an organization called Central Electoral Board.

Hi guys, I agree with the contributions made. An EMB is expected to implement the legal provisions governing the conduct of elections in a Country. The daily activities of all EMBs are centered on legality and compliance. This in essence means having a Department for Legal Affairs attached to an EMB ensures it does not go out of track. As far as election administration is concern, EMBs have many watchdogs that observe and monitor its compliance with legal provisions.

The Legal Department or Counsel who must be well vested with electoral laws and interpretation guides the EMB's operations ensuring they are within the law. It is assumed that the legal counsel will be impartial but hiring or soliciting from government may attract wrong perception about the EMB's choice.

An EMB must have its own, professional and specialized legal advisory in opted to achieve a proper, stable and independent assessment to the head of the EMB. 

Christine Ndayishimiye du Burundi Il est impensable d avoir un EMB qui n aurait pas de juristes engagés par lui et qui devraient résoudre tous les conflits en se référant seulement a la loi et rien qu a la loi.

Posted to ACE on behalf of Davie Mpakani

My understanding is that, its good to have a private lawyers since AG is seemed to be an interested party.  This system of involving AG is also currently pracatising in Malawi and it is not good for a Democrating state.  I would love if Malawi parliament could change the system to allow MEC oparate freely when it comes to other electoral dispute.