Question:

This question is posted by ACE on behalf of Lina Antara

• In which cases should by-elections be held? Given that by-elections are normally held in order to fill the vacant seats at the Parliament, is there any threshold of maximum vacant seats causing the inability of the Parliament to work? 
• In which countries are the legal framework and procedures applying to by-elections the same as the ones applying to regular elections (in terms of voter registration, timelines, candidate registration, campaigning, voting and publication of the results, etc.)? In which countries are they different? 
• In case the legal framework prevents elected MPs that are appointed as Ministers to keep their seats in Parliament after they take up ministerial duties, is there any mechanism to fill the seats that remain vacant without holding by-elections (i.e. electing a regular MP and a deputy MP who would fill the vacant seat)? 

I would greatly appreciate receiving different country examples. Many thanks in advance and I look forward to hearing from you. 

Summary of Responses:

Practitioners provided examples of legal frameworks governing by-elections in countries around the world. In general, the countries discussed by practitioners regularly hold by-elections in the event of parliamentary vacancies, with some differences in terms of the timeline for holding elections after the vacancy becomes effective. 

Users provided a variety of examples in response to the first part of the original question. The Electoral Code of Benin, for example, provides that when vacancies are the result of an invalidation of a list, by-elections will be held for seats allocated to that list within 60 days. In Afghanistan, by-elections are only held when a member of the Wolesi Jirga, Provincial Council, District Council, Village Council, Municipal Council, or mayor is assassinated. Otherwise, the EMB assigns the vacant seat to the candidate with the next largest number of votes on the list who is also of the same sex as the previous office-holder.

Seats in the National Assembly or a Provincial Assembly of Pakistan that become vacant at least 120 days before the end of the term are filled through by-elections within 60 days of the vacancy. Elections to fill vacant Senate seats are held within 30 days of the occurrence of the vacancy, while seats reserved for women or non-Muslims in the National or a Provincial Assembly that become vacant are filled by the next person on the party list.

Another practitioner provided the example of Tunisia, where vacancies in the Assembly of Representatives of the People are replaced within 15 days by a candidate from the original list, according to the order of the list. Elections are held 90 days from the date of vacancy if the list has been exhausted. Another practitioner noted the procedures in India call for by-elections within six months for vacancies in the National Parliament or State Assembly. All procedures and rules of the general election apply, and by-elections may not be held if general elections are due within the next year. 

In New Zealand, vacancies in constituency, electorate, and district seats are filled through a by-election with essentially the same rules as a general election. Vacancies in list seats, however, are filled by the next available person on the party’s list, as determined at the previous general election. In each case, a 75% super-majority of Parliament may decide not to fill a vacancy arising within six months of a general election.

With respect to the last point of the original question, a practitioner provided the example of Cameroon, where elections are held for both “substantive” and “alternate” candidates for open seats. Alternate members immediately fill the seat for the duration of the term in the National Assembly when a substantive member vacates the seat for any reason, excluding death. This includes cases where the member is appointed to a Minister position. A similar situation exists in Benin, where the Electoral Code stipulates that in cases of isolated vacancies (e.g. due to death or appointment to ministerial post), the President of the National Assembly calls the “staff substitute candidate” to permanently fill the post. Another practitioner noted that Liberia has provisions for deputy Members of Parliament as well.

However, one practitioner noted that in Ghana, MPs who are appointed to ministerial positions serve as Cabinet Ministers while continuing to hold their seats in parliament; there are no provisions for a “deputy MP.” This practitioner also raised concerns with this provision of Ghana’s legal framework on the grounds that it encourages parliamentary absenteeism. 

Q: In case the legal framework prevents elected MPs that are appointed as Ministers to keep their seats in Parliament after they take up ministerial duties, is there any mechanism to fill the seats that remain vacant without holding by-elections (i.e. electing a regular MP and a deputy MP who would fill the vacant seat)? 

A: In Cameroon, the Electoral Code backed by Law No. 2012/017 of 21 December 2012 to Amend and Supplement Some Provisions of Law No. 2012/001 of 19 April 2012 Relating to Electoral Code, makes specific provisions to the election of Members of Parliament their Term of Office and how they can be replaced in case of appointment and death.

In the case of appointment which is our main focus for this discussion, Sections 153 and 154 of the Electoral Code, binding Members of Parliament in Cameroon stipulates that:

S. 153 – For every seat to be filled, there shall be a substantive candidate and an alternate candidate, both of whom shall go before the electorate at the same time.

S. 154 – After their election, and in all cases of vacancy other than the death of the Substantive Member, the Alternate shall take the seat of the Member of Parliament at the National Assembly until the expiry of the latter’s term.

This provision of the law has been strictly respected since its implementation, at the National Assembly.

Some Examples:

Late Parliamentarian of the Cameroon Peoples Union (CPU), Mr. Augustin Frederic Mpeck Kodock, upon his appointment as Minister of Agriculture, was replaced by his Alternate;

The Parliamentarian of Cameroon Peoples Democratic Movement (CPDM) for the North, Mrs. Youssouf Adidja Alim, who was appointed Minister of Basic Education, was immediately replaced at the Parliament by her Alternate;

Dr. Calistus Gentry Fuh, Parliamentarian of Mesaje, a Member of the CPDM party, was also appointed, Secretary of State (with rank of a Minister) at the Ministry of Mines, was replaced by the Alternate candidate with whom both of them were elected during the same elections.

Just to name a few, but replacement cannot be possible upon death, due to obvious reasons. We have had a number of death cases, but no by-elections have been held as yet.

                                                                  Yaounde, 29/04/2016

                                               By Susana Dione Ngole Epie

                                               Research Assistant for Unit of

         Legal Affairs and Litigation

         Elections Cameroon (ELECAM)

LLM International Law

([email protected])

In case the legal framework prevents elected MPs that are appointed as Ministers to keep their seats in Parliament after they take up ministerial duties, is there any mechanism to fill the seats that remain vacant without holding by-elections (i.e. electing a regular MP and a deputy MP who would fill the vacant seat)?

En République du Bénin, en cas de vacances de postes au parlement , des dispositions ont été prises  par la loi N° 2013 - 06  portant code électorale en République du Bénin pour pourvoir aux sièges. Selon le code électoral " tout député nommé ou promu à une fonction publique ou une fonction quelconque salariée de l’État , d'un État étranger ou d'une organisation internationale cesse d'appartenir à l'assemblée Nationale par le fait de son acceptation" ( article 364 ).    L' article 355 nous renvoie aux dispositions prévues par cette même loi pour pourvoir aux postes vacants, cet article stipule : " lorsqu'une vacance isolée se produit par décès , démission, nomination à une fonction ministérielle ou tout autre cause d'invalidation, le candidat suppléant personnel est appelé par le président de l'Assemblée Nationale à exercer le mandat du candidat titulaire. Ce remplacement est définitif". 

In which cases should by-elections be held? Given that by-elections are normally held in order to fill the vacant seats at the Parliament, is there any threshold of maximum vacant seats causing the inability of the Parliament to work?

Lorsque des vacances se produisent par invalidation d'une liste, des élections complémentaires sont organisées, pour les sièges attribués à cette liste dans un délai de soixante jours et dans des conditions définies par la loi. C'est une disposition prévue par la loi N° 2013 - 06 portant code  électoral en République du Bénin aux articles 356  et 357.

Il y a quatre vingt trois( 83) sièges à pourvoir , au cas où un siège  manquait, comment peuvent- ils  se départager lorsqu'il s'agit de passer au vote  où il y a égalité de voix?  donc l'absence d' une seule voix  provoquera l'incapacité du Parlement Béninois à travailler ? .

In case the legal framework prevents elected MPs that are appointed as Ministers to keep their seats in Parliament after they take up ministerial duties, is there any mechanism to fill the seats that remain vacant without holding by-elections (i.e. electing a regular MP and a deputy MP who would fill the vacant seat)?

Well, that depends on a country's legal framework in respect to the above question. In Ghana, Members of Parliament who are appointed by the ruling government to hold Ministerial Positions continue to be Cabinet Ministers at the same time hold their seats in Parliament.

There are no mechanisms to fill vacant seats because in the real sense there are no vacant seats except the death of a Member of Parliament. It is a situation that causes absentism in the National Assembly/Parliament because Members of Parliament who are at the same time appointed as Government Ministers continue to be legislators and equally attend cabinet meetings, by so doing not punctual in the Parliament House.

There are no legal frameworks to prevent elected MPs from occupying their seats as Parliamentarians in Ghana which is a bit worrysome because many of them absent themselves from contributing to the formulation of legislations. There is nothing like deputy MP in my country unlike countries like Liberia. It depends on the type of government system practiced by the country, Parliamentary Government System or Presidential or a combination of both systems.

Hi every one,

As I come from Afghanistan, i would like to write about by election in Afghanistan.

According to article 77th of Afghanistan electoral law:

(1) In case a member of the Wolesi Jirga, Provincial Council, District Council, Village Council and Municipal Council is assassinated, an election shall be conducted at the relevant constituency level for the remaining term; provided that at least one year of the term is left.

(2) In case a mayor is assassinated, an election shall be conducted at the relevant electoral constituency level.

in other cases, we do not conduct by elections, instead, the election commission introduces a new member from the list of candidates (that are not elected) of the relevant constituency for the remaining term. in this case, his/her seat shall be assigned according to the prepared list of the Commission to the next candidate of the same sex (male or female) with the highest votes.

Here is what happens in the Pakistan, the bye-election are set in the Constitution and are to be done for different seats of lower and upper house as well as reserved seats:

Full provisions available here: http://www.pakistani.org/pakistan/constitution/part8.ch2.html

Salut à toutes et à tous 

En Tunisie, selon la loi organique n°2014-16 du 26 mai 2014 relative aux élections et au référendum 

et dans l'article 34 : lors d'une vacance définitive d'un siège à l'Assemblée des Représentants du peuple, le député concerné est remplacé par un candidat de la liste principale tout en tenant du classement ( le suivant dans la liste  à laquelle appartient le député concerné) dans un délai n'excédant pas 15 jours.

Dans le cas où la liste principale est épuisée, il est procédé à l'organisation d'élections partielles n'excédant pas 90 jours à compter de la date de la vacance

remarques: 

1. la demande de candidature inclut obligatoirement une liste complémentaire mais celle-ci n'est considérée que pour le remplacement des candidats qui se retirent avant les élections 

2. pour les circonscriptions à un seul siège et en cas de vacance, on passe directement à l'organisation des élections partielles 

3. la loi interdit de cumuler la qualité du membre d'assemblée et les fonctions suivantes: membre du gouvernement - fonctionnaire de l'état- fonctionnaire d'un état étranger- dirigeant  d'un établissement public- élu local. Ce sont des cas de vacance 

4. le délai de 90 jours impose des restrictions qui font que les élections partielles prématurées soient différentes des élections régulières 

Hi from India!

1. Bye Elections are held in India consequent to casual vacancy in the National Parliament/State Assembly.

2. It is mandatory to have the bye election within six months from the date of occurrence of the vacancy. However, if the scheduled general elections are due within next one year, then it may not be held. (Ref. sections 147-151 of the Representation of People Act, 1951, India).

3. The vacancy may occur due to death of the member/resignation from the seat/automatic dismissal from the seat due to certain convictions in the court/removal from the seat by law.

4. For the conduct of the Bye Elections, all the procedures and rules of the general election apply.

Best

Dr. Chandra Bhushan Kumar

Chief Electoral Officer, Delhi, India.

In New Zealand vacancies in constituency/electorate/district seats are filled by by-election under essentially the same rules as a general election.  Vacancies in list seats are filled by the next available person on the party's list at the previous general election.  In both cases there is a provision that allows a 75% supermajority in parliament to resolve not to fill a vacancy that arises within 6 months of a general election.  Ministers are drawn from sitting parliamentarians, and do not give up their seats.

The provisions are in s129-138 of the Electoral Act 1993.