The success of the election process depends heavily on the formulation of appropriate electoral
laws embedded in a legal framework that is suitable for a particular country. There is no one
model that can be used, as all democracies are different, evolving at different speeds, needing
changes at different times, in ways specific to each.
Who should have the power to enact election legislation, and on whose initiative? Prior to the
formulation of election-related laws in new and developing democracies, it is usual for there to
be round table discussions attended by all political parties with an interest in the upcoming
elections. The meetings may also be attended by academics, lawyers, civic organisations, and
foreign experts able to contribute to the debate. These discussions generally result in a
consensus document that is then placed before the parliament.
Parliament generally has the power to draft laws, leaving the national election body to
implement them. In many cases, parliamentarians wishing to modify the electoral law will
consult with election officials informally or even call them to testify at parliamentary hearings
on the subject prior to introducing new legislation.
In some cases, national election bodies have the power, delegated to them by the parliament, to
promulgate regulations or instructions that have the force of law, though the parliament itself
still has the power to make election-related laws. In other cases, the trend has been to include
basic election provisions in the constitutional provisions in order to render it more difficult to
change such provisions. In these latter cases, the changes would be subject to whatever formal
ratification process is in place for any constitutional modification.
A less straightforward question is whether parliamentarians should be the only ones with the
initiative to propose changes to an existing election law, or whether others (generally
government ministries or the national election body) should as well. If the national election
body is not allowed to introduce proposals for change directly into the legislative process, they
must identify a parliamentarian to sponsor the legislation. Alternatively, in cases where the
national election body is allowed to introduce legislation directly into parliament, there is no
such need for a sponsor. The legislation is generally drafted by the election body's legal
department and then passed to the relevant parliamentary committee or to the entire body for
consideration.
One advantage of the national election body being able to introduce legislation directly is its
close familiarity with the administrative complexities of election administration. Legislators
may feel that the election procedures that resulted in their own election do not require
modification and give little thought to potential improvements in the election law. It might also
be argued that the national election body may be less susceptible to political pressures and is,
therefore, better able to discern what measures will ensure that election administration is fair to
all contending parties.
One of the ongoing roles of the national election body should be to evaluate ways of improving
the electoral arrangements, laws and procedures. A permanent body should undertake a review
of electoral arrangements immediately after an election is held, because the problems will be
fresh in their minds. Following the review, a report should be presented to parliament by the
chairman of the national election body making recommendations for necessary changes through
the narrative or, where allowed, through new draft legislation. It will then be for parliament to
consider the report and recommendations and make changes if desired.
In order to ensure peaceful and fair elections, many national election bodies have also developed
codes of conduct in consultation with various recognised political parties and the government.
Such codes, to which all parties, candidates (including independent candidates), agents, and
the government subscribe by formally undertaking to abide by their terms, can cover many
aspects of the preelection period. The national election body can facilitate the writing of the
code, but it is important that those involved in the election have a part in writing, amending and
agreeing to it. The code of conduct may include such things as control of supporters,
cooperation with the national election body on all electoral matters, peaceful campaigning,
agreeing not to disrupt opponents' meetings or rallies, agreeing to accept the outcome of the
election, and challenging the results only in a lawful way.
