Elections in Bosnia and Herzegovina
by Sonja Valtasaari
9 May 2000
Executive Summary
Elections in Bosnia and Herzegovina ('Bosnia') tend to arouse more eager anticipation among international stakeholders, for whom they symbolize a near annual opportunity to quantify Bosnia's post-war progress towards sustainable democracy, than among Bosnia's approximately 2.5 million eligible voters, for whom elections with ever more technical integrity have largely failed to promote effective governance or personal well being.
The international community's extraordinary investment in Bosnia's electoral administration has enhanced the fairness of Bosnian elections. Repeated electoral cycles have served as important developmental tools. They have precipitated the establishment of a national elections infrastructure and the training of a cadre of Bosnian professionals prepared to ensure the integrity of the electoral process. They have created important legal precedents to promote electoral transparency and accountability. Yet, Bosnian elections have not become exercises in freedom. Until resources are concertedly re-directed towards ensuring that rule of law, separation of powers and respect for civil liberties take root379, the politics of power and fear will continue to conspire against democratic consolidation.
This report describes the management, oversight and legal instruments the international community has developed to safeguard electoral integrity in Bosnia as well as the pitfalls of its decision to embrace elections as a measure of peace implementation.
Introduction
The 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (the 'Dayton Peace Agreement' or DPA) brought a welcome but uneasy peace to Bosnia. The complex agreement was a product of political compromise: it created an integral state, but enshrined its decentralization (and de facto division) in a weak central constitution; it sought to promote ethnic reconciliation, but endorsed constitutional arrangements that deprived Bosnia's constituent peoples of equality throughout the country.380 Most importantly, it effectively turned the three national parties that had presided over Bosnia's disintegration into custodians of its peace.
In no time, the international community-- eager to reduce its extensive commitment to Bosnia-- advertised elections as the best hope for knitting the country back together, undermining the power of nationalist regimes, and laying the foundation for representative government. Nearly five years and four nationwide ballots later381, the allure of elections is fading.
Each year, elections have proceeded peacefully. Each year, the technical integrity of elections has improved. Each year, Bosnian professionals have taken on more responsibility for election administration. Yet, the political landscape remains fundamentally unchanged. Bosnia remains effectively divided. The power of wartime politicians remains largely intact. Progress towards democratic institution- building has proven limited. And, an 'indefinite' international presence is widely considered essential to continued stability.
The Players
Bosnia remains mired in a difficult, dual transition towards peace and democratic governance. This transition pits powerful internal actors determined to preserve their control over the state and its assets against the external actors mandated to stabilize the country through reconstruction and reform.
Internal Actors
Many of the factors that contributed to the outbreak of conflict in Bosnia-- including intensive, imperialistic interest on the part of neighbouring states; a lack of consensus on the basic nature of the state or its territorial boundaries; uneven, paternalistic distribution of resources; absence of rule of law; and an easily exploited legacy of inter-ethnic distrust382 -- have thwarted post-war democratic development. International efforts to enforce the DPA compete with the objectives of ruling nationalist parties whose predominance is ensured by the perception that they alone can offer resources, jobs, and protection from 'others' who vote along national lines; whose commitment to the creation of a tolerant, unified state is, at best, ambivalent; and who endorse structural reform only insofar as it does not threaten their continued control over public resources.
Although the terms of political debate have evolved since 1995, with even formerly radical political parties publicly espousing DPA principles, nationalist leaders continue to seek the legitimacy conferred to them by elections to obstruct rather than to enforce the development of transparent and responsive, democratic government.
External Actors
At $5.1 billon, international investment in Bosnia has been extraordinary. Included among the key international actors in Bosnia are the North Atlantic Treaty Organization through the Stabilization Force; the Office of the High Representative, a civilian coordinating institution unique to Bosnia; the Organization for Security and Cooperation in Europe; the United Nations through the UN Mission in Bosnia and Herzegovina and several of its independent agencies; the World Bank; the European Commission and numerous bilateral development agencies. In the absence of more comprehensive indicators of reform, many of these organizations have used elections to gauge their success in promoting Bosnia's progress towards self-sustaining peace. No longer key to the international community's imminent 'exit,' elections nevertheless justify its ongoing, extensive engagement in the country.
Defining Electoral Integrity
The DPA, signed in December 1995 by the then Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Federal Republic of Yugoslavia, called on its signatory Parties to ensure that conditions existed for the conduct of 'free, fair and democratic' elections in Bosnia no later than 14 September 1996. It requested the OSCE to 'certify whether elections could be effective under [existing] social conditions and, if necessary, to provide assistance to the Parties in creating these.' It also called on the OSCE to 'supervise the preparation and conduct of elections' for the Presidency and House of Representatives of Bosnia and Herzegovina, the House of Representatives and cantonal assemblies of the Federation of Bosnia and Herzegovina, the Presidency and National Assembly of the Republika Srpska, and municipal assemblies throughout Bosnia and Herzegovina, and, to that end, to establish a Provisional Election Commission.383
In March 1996, the OSCE Bosnia and Herzegovina Head of Mission (HoM) drafted an action plan for stimulating progress towards meaningful elections. Drawing on the DPA and its attached annexes384, the OSCE extrapolated 12 discrete preconditions for elections. These included the following four substantive conditions:
- establishment of a politically neutral environment;
- respect for freedom of expression and access to the media for all wishing to participate in the electoral process;
- freedom of association; and
- freedom of movement.
Eight additional administrative conditions included enforcement of:
- universal and equal suffrage for all citizens;
- the right to vote in secret;
- the will of the people as the basis of governmental authority;
- freely and popularly contested seats in at least one chamber of government;
- the right of citizens to seek office without discrimination;
- the right of individuals and groups to establish in full freedom their own political parties, with necessary legal guarantees;
- the due installation in office of all candidates with the number of votes required by law until their terms are legally terminated; and
- the presence of observers at elections.385
Scant progress towards the four substantive pre-conditions over the next months called into question the wisdom and feasibility of adhering to the DPA timetable. Nevertheless, under strong political pressure from interested governments, the OSCE HoM elected to employ 'a rule of reason' to what he later dubbed 'unprecedentedly complex elections.' He emphasized that 'standards of free and fair elections as generally understood in long-standing democratic societies simply [could] not be reasonably applied to Bosnia and Herzegovina,'386 underlined that international military and civilian commitments to Bosnia had peaked, and urged that elections proceed on schedule. The OSCE Chairman-in-Office accepted the recommendation and determined that elections 'a first, small step in the long process of [Bosnia's] reconciliation and democratization' would take place in accordance with the Dayton timetable.
387
From the outset, elections in Bosnia were about more than creating a functioning, pluralist and participatory democracy. Bosnia became, in the words of a senior U.S. Government official, 'a litmus test for both American leadership and the effectiveness of the NATO alliance in the post-Cold War world.'388 Elections, in turn, became a litmus test for implementation of the peace agreement. Electoral integrity was therefore narrowly defined to administrative criteria that could be established through hastily drafted elections rules and regulations. The overall political environment, although key to ensuring that elections would launch a self-sustaining process of democratic consolidation, became a secondary concern.
Technical Preparations
Technical preparations for the 1996 elections were extensive. Equally importantly, subsequent elections in 1997, 1998 and 2000 benefited from hindsight. International controls over the 1997 elections were intensified in response to incidents of fraud in 1996; since 1998, international officials have concentrated on moving electoral administration into Bosnian hands.
Election management
The OSCE has established numerous bodies to prepare and oversee the conduct of elections.
The Provisional Election Commission
The OSCE launched a Provisional Election Commission (PEC) in January 1996. Pending ratification of an Election Law and establishment of a Permanent Election Commission, the PEC has remained responsible for regulating the electoral process in Bosnia. To this end, it has published binding electoral Rules and Regulations, supervised all aspects of the electoral process, ensured compliance with its Rules and Regulations, and taken action to remedy violations of these rules.389
Presided over by the OSCE HoM, the Commission was originally comprised of a Bosnian Government representative, a Federation representative, and an RS representative, each appointed by the leading national parties; a designee of the High Representative; and 2 OSCE election experts. The OSCE established a separate public forum, the Political Parties Consultative Council, to allow opposition parties to comment on PEC activities. This compromise, however, failed to offer alternative voices adequate influence in the often-controversial electoral policy formulation process. In 1998, the PEC was therefore expanded to include a Bosniak390, a Serb, a Croat, as well as a representative of 'Others.' 391
Municipal Election Commissions
Municipal Election Commissions -- comprised of individuals with judicial, legal, administrative or electoral experience, and appointed by competent municipal authorities together with the PEC -- have been created to ensure the efficiency and legitimacy of election administration within their jurisdiction. Municipal Election Commissions' specific responsibilities include updating and verifying the Voters' Register; assisting voters in obtaining documents; monitoring and reporting violations of PEC Rules and Regulations; informing candidates of their rights and obligations within the electoral process and the status of election preparation; designating polling stations; appointing and training members of polling station committees; ensuring proper conduct of the count; providing secure warehousing for election materials; and compiling election results from all polling stations. They also assist in the development and distribution of election information and voter education materials.392
Polling Station Committees
Finally, polling station committees are held responsible for safeguarding the integrity, security and tranquillity of the voting process itself.393 Voting procedures have been designed to avert fraud and include detailed controls concerning the presentation of acceptable identification; the use of invisible ink (waived only if the voter has no fingers); signing of the Voters' register; ballot issuance and marking; and voter assistance.394
Oversight
Election Appeals Sub-Commission
The Provisional Election Commission established an Election Appeals Sub-Commission (EASC) in May 1996 to investigate and adjudicate complaints involving violations of the DPA's elections provisions; PEC Rules and Regulations; amendments to the preliminary Voters' Register; polling and counting procedures; and issues referred to it by the Independent Media Commission (see below). The EASC has since presided over five post-Dayton elections.395 Considered a juridical body, the EASC is chaired by an international judge and includes 3 Bosnian jurists served by 4 legal advisors. The PEC has devolved to it the authority to receive complaints, plenary power to gather evidence and a wide range of sanctioning powers.
The EASC's freedom to investigate and willingness to penalize violations of PEC Rules and Regulations have created a climate more conducive to electoral integrity. The EASC has exerted its authority in each post-war election to, inter alia, levy fines, remove candidates from the ballot, prohibit political parties, coalitions, or candidates from contesting elections, and decertify and remove elected officials from office. EASC deliberations are confidential and its decisions are final, binding, and not subject to appeal.396
The Media Experts Commission and Independent Media Commission
In 1996, the PEC created a Media Experts Commission (MEC), chaired by the OSCE's Senior Advisor for Media Development, to organize systematic media monitoring throughout Bosnia and to enforce compliance with PEC standards of professional and ethical conduct for journalists, as well as Rules and Regulations concerning freedom of movement for journalists in pursuit of professional obligations, and full and equitable access for political parties and candidates during the campaign period.
The MEC consisted of government representatives, independent and government media specialists, a designee of the High Representative, and OSCE Media and Human Rights Officers. Like the EASC, the MEC was empowered to investigate and sanction violations of media rules and regulations. The MEC's punitive powers were, however, limited to issuance of warnings, the power to compel media to publish or broadcast materials redressing substantiated violations free of charge, and referral of cases to the EASC or PEC for further action.397 Its influence on the media environment was negligible.
In 1998, the High Representative replaced the MEC with a more powerful Independent Media Commission (IMC) mandated to establish a regulatory regime for broadcasting and other media in Bosnia. The High Representative charged the IMC with licensing all broadcasters, setting license fees and drawing up and ensuring adherence to Codes of Practice.
The High Representative granted the IMC wide punitive powers, including the right to require media outlets to publish apologies, impose financial penalties, seize equipment and suspend or terminate licenses.398 Stringent political control of Bosnia's three segmented media markets has begun to give way to a more open media environment in which international standards of media conduct play a more meaningful role.
The IMC's Code on Media Rules for Elections takes precedence over any contradictory existing legislation, is binding for all media in Bosnia, and will remain in effect until a Permanent Election Law is implemented. The code demands that media report 'factually accurate, complete, fair, equitable and unbiased' information; prohibits paid political advertisements on broadcast media; calls for all sponsors of printed political advertisements to be clearly identified; and creates a 24-hour silence period prior to polling.
Further, the IMC's Guidelines for Equitable Access to Media in Election Periods require all broadcasters to provide free access for political announcements during the election period 'at times when the broadcasters are likely to reach the largest audiences.'399 Political spots may not be broadcast immediately before, during or after news broadcasts and shall have a maximum duration of 60 seconds. The total time for any political unit shall not exceed 4 minutes per hour or 15 hours per election period.400
Supplementary Supervisory Bodies for the 1997 Elections
In addition to these bodies, two supervisory commissions were established to avert fraud during the 1997 municipal elections. A Citizenship Verification Sub-Commission determined whether individuals whose names did not appear on the 1991 census as adjusted for 1996 presented sufficient documentation to warrant their registration. Finally, a Future Municipality Sub-Commission assessed whether individuals who sought to exercise the option to vote in a place of future residence (rather than their pre-war or 1997 residence) demonstrated a compelling link to that location.
Supervision and Observation
OSCE election 'supervisors' have proved crucial to safeguarding Bosnian electoral integrity since 1996. Unlike traditionally neutral 'observers,' election supervisors have been tasked with intervening in the electoral process to monitor and assist in polling and counting. In 1996, the OSCE fielded 1200 supervisors in 600 mobile teams; each team oversaw balloting at seven of 4400 polling stations. In 1997, the OSCE increased the number of supervisors to ensure full supervision of registration, polling and counting at all locations. In 2000, the OSCE saw fit to reduce supervision to one supervisor for every 3 polling stations.
The postwar years have also seen extensive election 'observation.' From 1996 to 1998, the OSCE Office of Democratic Institutions and Human Rights (ODIHR) produced independent evaluations of electoral cycles from registration through preliminary release of results. PEC Rules and Regulations also authorized accredited domestic representatives of political parties, coalitions, independent candidates, the media and citizen organizations to observe the entire electoral process.
In 1996 and 1997, few Bosnians other than interested political parties and media took advantage of this right. In later years, however, elections have galvanized an otherwise politically tentative non-governmental community. In 1998, with assistance from international partners, local non-governmental organizations (NGOs) and membership associations in 4 Bosnian cities401 launched an unprecedented nationwide non-partisan monitoring effort in which nearly 2,500 volunteers assessed electoral operations in 57 municipalities. In 2000, the initiative to seize ownership of the electoral process gained momentum with 239 NGOs fielding over 5500 domestic observers to monitor and evaluate the elections.
International and domestic 'observation' have played a central role in promoting confidence in the electoral process. Equally importantly, information culled from observer reports has hastened improvements to PEC rules and regulations as well as technical preparations for elections.
Legal Framework
Provisional Rules and Regulations
As noted above, the PEC has regulated the electoral process pending successful implementation of an Election Law, and creation of an Election Commission, for Bosnia and Herzegovina. In fulfillment of its mandate, the PEC has annually published comprehensive electoral Rules and Regulations concerning the registration of political parties, coalitions and independent candidates; candidate and voter eligibility; voter registration; establishment of election management and oversight bodies; the role of domestic and international observers; and codes of electoral conduct for political parties, coalitions, candidates, and election workers402. Existing laws have applied to matters not covered by the PEC.
PEC Rules and Regulations have also addressed issues specific to Bosnia's post-war situation and evolved into an instrument for encouraging accountability and moderation among candidates for office. As a condition of registration, parties, coalitions and candidates must not only affirm in writing their commitment to the DPA, the Electoral Code of Conduct, and PEC Rules and Regulations, but must also submit platforms that clearly elaborate their positions on return of refugees and displaced persons, the economy, minority rights, reconstruction and development, education and social services.
A committee comprised of members of the PEC Secretariat, the OSCE, the High Representative's Office and other international non-governmental organizations reviews these platforms and may deem them unacceptable if they contain inflammatory language, violate principles set forth in the European Convention on Human Rights, or do not cover the requisite issues (and are not completed within a 48-hour time period.)403
Further, the PEC prohibits any person who has been sentenced, or who has failed to comply with an indictment, by the International Criminal Tribunal for the Former Yugoslavia from holding appointive, elective or other public office on Bosnian territory. Equally, persons removed from office or disqualified from the electoral contest for obstruction of peace implementation or violations of PEC Rules and Regulations are barred from office. Finally, no person who has failed to vacate real estate property to which a refugee or displaced person holds title or occupancy rights may stand as candidate for, or hold, municipal office.404
Election Law of Bosnia and Herzegovina
The OSCE and Office of the High Representative initiated a process aimed at developing a permanent, progressive election law for Bosnia in 1998. The first draft, authored by a group of national and international experts and formally presented to the Bosnian Parliament in October 1999, introduced innovative electoral reforms designed to promote both reconciliation and accountability of publicly elected officials.
Specifically, the draft preserved the voting rights of refugees and displaced persons; introduced an open list proportional representation system and multi-member constituencies for certain elected bodies, both to render candidates more accountable to specific constituencies; contained a preferential voting system for the Bosnian and RS presidencies to encourage candidates to seek votes outside their natural ethnically-determined constituencies; obliged candidates for the Bosnian presidency to obtain cross-entity support; contained safeguards for minority gender representation; permanently banned paid political advertising on broadcast media; and introduced a campaign spending ceiling.405
Although ratification of the election law is a prerequisite to Bosnia's admission to the Council of Europe, the Parliament has twice rejected the law.406 Objections to the law include criticism of constitutional constraints institutionalized in the DPA, more general concerns as to whether the law (and therefore the Bosnian Constitution) contravenes the European Convention on Human Rights or protects multi-ethnicity, as well as specific, politically driven, objections to several technical provisions including candidate eligibility and voter residency requirements.
Precisely because implementation of a permanent election law will contribute to re-shaping Bosnia's political order, it remains mired in controversy resulting from the same divergent visions of the country's future that frustrate effective peace implementation. Pending resolution of the parliamentary impasse, PEC Rules and Regulations amended to reflect the more progressive provisions of the draft law will continue to govern the electoral process.
Election Implementation
The ruling parties' fundamental ambivalence towards democratic reform has drawn the international community deeply into election implementation. Procedural and political challenges have delayed the formation and obstructed the functioning of common central institutions as well as multi-ethnic local councils.
As a result, the Office of the High Representative involves itself heavily in the central institutions' administrative and legislative agendas; the international community as represented by the Peace Implementation Council has empowered the High Representative to impose domestic legislation and to dismiss officials judged to have failed the public by pursuing anti-Dayton or extra-legal activities. 407
The OSCE, in turn, has developed a two-step certification process for municipal-level elections. Preliminary 'technical certification' involves the PEC's certification of the accuracy of results for each electoral unit. In his capacity as PEC Chairman, the OSCE HoM grants 'final certification' to each of Bosnia's 146 municipalities upon implementation of election results.
Implementation monitored by a series of bodies established for that purpose is understood to include the convening of a first session within 30 days after technical certification. At least one representative of each elected political party must attend this session, which must conclude in the election or appointment of all council officers, executives and committees as provided for in municipal statutes.
The OSCE HoM retains the discretion to revoke certification should elected councilors be denied access to municipal buildings or fair representation among appointed bodies, face threats, harassment or financial discrimination; be prevented from establishing municipal residency or deprived of office space; or should the council fail to convene regular, secular, and effective sessions.
Municipal election implementation proved a long and arduous process in 1997, with several councils falling subject to final and binding arbitration by the OSCE HoM and High Representative in response to their repeated failure to meet Final Certification requirements. Implementation of the 2000 municipal elections remains underway.
The Path Towards Electoral Integrity
The international community's extensive involvement in Bosnia's electoral administration has immeasurably enhanced the technical integrity of Bosnian elections. The Provisional Election Commission and its subordinate bodies have managed increasingly more orderly elections each year.
Preparations for the 1996 elections were fraught with political and operational difficulties exacerbated by the rigours of the DPA timetable. The discovery of 'electoral engineering' (massive fraud perpetrated by the authorities to consolidate territorial gains through manipulation of voter registration) led to postponement of the municipal ballot until late 1997. General balloting, however, took place calmly and peacefully. Polling was conducted professionally at 97% of polling stations. Observers did not consider technical difficulties with the Final Voters Lists, absentee and out-of-country voting, or the counting process substantial enough to have jeopardized election outcomes. The ODIHR Co-coordinator of International Monitoring concluded that although 'problems associated with registration, the media, the campaign, and freedom of movement were assessed as serious shortcomings to the overall process there was no pattern of recurring infractions or organizational incompetence that seriously compromised election day.' 408
Since 1996, the OSCE and PEC have annually reviewed and refined election rules and regulations to provide increased safeguards for electoral integrity. Procedural as well as political concerns including the appropriate makeup of election commissions and polling station committees have been reviewed each year to generate confidence in the fairness and transparency of the electoral process. In 1997, the OSCE introduced a complete voter registration, 100% supervision of registration and polling, improved voter education, and the above-described 2-phase municipal certification process. The OSCE and EASC also took early action against authorities found responsible for systemic voter registration fraud. In 1998, the PEC introduced financial disclosure requirements and enhanced the presence of women in politics through rules protecting minority gender representation, while the OSCE initiated a transition of electoral administration into Bosnian hands. In 1999, the OSCE shifted its attention to transferring 'ownership' of the electoral process to an emerging indigenous elections infrastructure. The OSCE focussed on the professional development of its national staff, transferred Out of Country Voting administration to Sarajevo, and orchestrated the launch of an Association of Election Officials. Open-ended registration was introduced, and a nation-wide voters register developed to underpin an enduring voter registration system.
Conclusion
Repeated electoral cycles have served as important developmental tools. They have allowed for the training of a cadre of Bosnian professionals prepared to take responsibility for the integrity of the electoral process. They have provided campaign planning and management experience to a wide range of political actors who have benefited from targeted instruction in message development, media relations, voter contact, strategic planning, and volunteer recruitment. Finally, they have created important legal precedents to promote electoral transparency and accountability.
Elections have grown more competitive as moderate opposition parties have begun to make significant regional inroads, and fissures within the ruling parties have widened political space for new leadership. Yet, in the current political and institutional environment, even fair elections promote little freedom. Political parties retain control over security organs, the economy and the courts. Lingering ethno-nationalism, stoked by the ruling parties to consolidate their strength, continues to encourage collective identification, insecurity, and distrust.
The absence of rule of law undermines effective governance and curtails individual liberty. In the interest of accelerating crucial reforms, the international community has inserted itself into domestic political processes in a manner that builds dependency. Highly visible international interventionism allows elected authorities to evade political responsibility for difficult decisions and discourages voters from turning to their elected leadership for genuine solutions.
Despite their increasing technical integrity, elections have therefore failed in their fundamental task of promoting self-sustaining democratic consolidation and increasing meaningful Bosnian ownership of the broader political process. They will continue to do so as long as orderly elections, rather than focussed strategies of structural liberalization, remain central to the reform effort.
