Paper to be presented at African Network of Constitutional Law Conference in Dakar 2008

Ilona Tip

DAKAR CONFERENCE ON CONSTITUTIONALISM AND CONFLICT RESOLUTION IN AFRICAAugust 2008

CONCEPT NOTE FOR:Second Session: The electoral process

Topic 4:Electoral commissions (autonomous or independent) and management of election related conflicts – experiences from SADC

Overview

Societies all over the world conflict experience conflict in some form or other with most societies tolerating conflict as inevitable. Indeed one may argue that the basis of democracy is establishing an environment in which rigorous debate and difference of opinion, values and ideas can be expressed. It is conflict that manifests itself in unacceptable ways such as violence to people, to property and the environment that is not tolerated. If we accept that conflict exists in every society, what we need to find are effective mechanisms that constructively manage conflict; ways in which we can bring opposing sides together in a constructive way and where practical and acceptable outcomes can be achieved. Within this context elections are a contestation for power and therefore adversarial.

Within this context this paper examines the role of Electoral Management Bodies in SADCin ensuring that an environment is created conducive for holding free and fair elections. It looks at SADC post 1990 following the move from authoritarian rule to the introduction of multi-partyism and the establishment of EMBs as the custodians of the democratic electoral process. It provides a brief overview of the legal framework in SADC that established EMBs and their specific responsibilities as well as the guidelines and principles that have been formulated by continental, regional and international bodies, including the Electoral Commissions Forum of SADC countries (the ECF) setting out the necessary requirements for EMBs as principal conductors and executors of transparent, accessible, free and fair elections. EMBs are guarantors of democracy within the region. However, because elections are a vehicle for the distribution of political power, Electoral Commissions are subject to close political scrutiny, and any perceptions of bias, impartiality or lack of integrity in the administration of elections and this holds the potential for conflict.

The paper will explore the following themes:

1.Elections and Conflict

This section will provide a brief overview of the definitions of conflict and where elections fit into these definitions.

There have been various definitions of conflict. Mark Anstey[1] in “Managing Change, Negotiating Conflict” 2006, Juta, suggests that “conflict exists in a relationship when parties believe that that their aspirations cannot be achieved simultaneously or perceive a divergence in their values, needs or interests and purposely employ their power in an to eliminate, defeat, neutralize, or change each other to protect or further their interests in the interaction”.

John Paul Lederach in “Preparing for Peace,” 1995 SyracuseUniversity, suggests that “conflict is a socially constructed cultural event”, and that conflicts “do not just happen” to people, rather people are active participants in creating situations and interactions they experience as conflict.

Given the above definitions we can assume that elections are by their very nature conflictual, adversarial and confrontational as elections are a contestation for power. However it does not follow that this conflict should be negative or destructive. Conflict is often a catalyst for change, transformation or progression. Election conflict takes various forms and shapes including.

The general understanding is that democratic government has become to be understood as the most effective way of managing or processing conflict. Elections are seen as the main tool through which conflict can be managed. However there has also been argument that elections contribute to conflict as we have seen in Uganda until recently, a one party state might be more effective in contributing to the building of a nation state while multi-party elections may serve to heighten the cleavages between ethnic groups. Either way modern studies of political transition from conflict or authoritarianism emphasise bridging processes to full democracy that include power sharing, amnesties, loser guarantees etc.[2]

Generally a sign of a healthy democracy is one that is tolerant of opposing points of views or ideas and ensures an environment conducive for the articulation of such views. For example in an election political parties competing with each other will have different manifestos and policies which may not necessarily translate into overt conflict. It becomes problematic when conflict manifests itself in unacceptable ways such as physical violence, destruction of property, or harm to individuals. It is important that appropriate mechanisms are developed to effectively manage conflict so that it does not manifest itself in a destructive or negative way.

However there are situations where continuing conflict may be perceived by one or other of the role-players as positive, in terms of maintaining power, accesses to resources etc. The resolution of conflict must contain sufficient incentives to entice the role-players to seek a solution.

Types of electoral conflict

Election conflicts take on varying forms and shapes. Most commonly issues may generate conflict in the election process such as:

  • allegations of fraud and rigged polls
  • refusals to participate by parties, groupings and formations owing to unhappiness with the shape of earlier negotiation process in transformation periods or the conduct and outcome of previous elections
  • active disruption of the pre, during and/or after process by spoiler groups.
  • Problems with the voters’ roll which may include deliberate exclusion of voters even if they voted in previous elections, or inept staff or registration procedures
  • Logistical problems on voting day which can be perceived as deliberate. For example non delivery of materials.
  • Challenges to the legitimacy or impartiality of the electoral authority
  • Use or misuse of state resources
  • Access to media,

Conflict generated during the course of an election may pertain specifically to the electoral process or may be embedded in the broader historical and political context and manifest in the form of electoral conflict.

2.The Role of EMBs

The trend in Southern Africa has been to establish independent electoral Commissions, which of course have varying degrees of autonomy in terms of relationship with the government of the day. Establishment of independent electoral Commissions is to ensure that people who are not influenced by any political party including the incumbent administer elections. The primary objective of Electoral Commissions is to deliver free and fair election services to the electorate. In doing this they must undertake their functions in an impartial and efficient manner. They must ensure that the integrity of each electoral process is adequately safeguarded from incompetent electoral officials and fraudulent manipulators. Failure to fulfill even a single election task or activity may not adversely affect the quality of the services delivered, but may jeopardise public perception of the competence and impartiality of the Commissions. This is why Electoral Commissions must set the tone and direction of the electoral process.

A comparison of the legal framework that provides for the establishment of an EMBS in the SADC region indicates that most EMBS are appointed by the president of the country, through an advisory body such as a Judicial Services Commission or as in Botswana, by an All Party Conference. Structures such as the Electoral Commissions Forum of SADC countries (the ECF) has gone as far as producing principles for the establishment of EMBS setting out the ideal conditions within which EMBS should be established to guarantee their independence.

Electoral Management Bodies play a vital role in managing electoral related conflict as they are tasked with the responsibility of coordinating, supervising and managing the

electoral process.

EMBs are bodies established by the laws of the country and play an important role in sustaining and deepening democracy in Southern Africa. Electoral Management Bodies are the conductors and executors of transparent, accessible, free and fair elections. Because elections are a vehicle for the distribution of political power, EMB’s are subject to close scrutiny. Any perceptions of bias, partisanship or lack of integrity in the administration of the elections impacts on the outcome of the elections and holds potential for conflict.

Generally complaints and appeals are mostly directed to the EMB. This in turn has its own challenges such as accusations that the EMB:

  • lacks partiality – the EMB is perceived to “favour” one party over another
  • is not independent (based on how the EMB is appointed or selected)
  • being toothless and unable to implement or implement legislation that may be in place in regard to prohibited conduct
  • in cases where an EMB or electoral authority is responsible for ward or boundary demarcation perceived to be biased
  • is inefficient
  • incorrect and/or shambolic voters’ roll

Where an EMB is trusted and respected, its ability to rule on electoral disputes timeously and efficiently is extremely effective in reducing and minimising potential electoral conflict.

3. Formal and informal approaches to conflict

Commonly long established democracies use the judicial and administrative (formal) approach to resolving electoral conflict, involving the courts and EMBs

Over the past ten to fifteen years, we have seen an increase in the more informal approach to conflict resolution in conflict prone societies, alongside the formal approaches.

3.1The formal approach

Electoral regulations are also legislated for and provide the framework within which an electoral authority conducts and executes its mandate. Historically electoral laws have cast the courts as the appropriate instrument to deal with aberrant conduct. Several electoral authorities in SADC have provisions in their electoral law for misconduct of the regulations by contesting parties and citizens through the establishment of an Electoral Court or Tribunal which deals solely with electoral related issues. In South Africa for example the Electoral Commission Act (no 51 of 1996) provides that amongst its powers the Commission has the power to adjudicate disputes that may arise from the organisation, administration and conduct of elections, which primarily are of an administrative nature. Where these disputes arise the Commission can act as a tribunal and its decisions are subject to review by the Electoral Court. Chapter 5 of the Act provides for the establishment of such a Court with the status of the High Court. However the establishment of the Election Court does not preclude parties from following due process of law and bringing criminal charges in terms of relevant legislation (eg undue influence, impersonation, obstruction of the work of the Commission).

While the courts most certainly have an important role to play they are often unable to respond quickly and decisively to imminent or actual transgressions. They are also costly and time consuming and tend to be urban-based. In some situations they may not be seen as independent from the executive or the ruling party.

3.2Alternative mechanisms for the resolution of election conflict

In recent years countries have looked to other mechanisms and processes to supplement the role of the courts.

Historically electoral laws have cast the courts as the appropriate instruments to deal with aberrant conduct. Commissions have used Codes of conduct as instruments which not only prohibit offensive conduct but which impose positive obligations on parties, candidates and supporters to protect the integrity of the electoral process. Although the courts play an important role, they are often unable to respond quickly and decisively to actual or imminent transgressions. Codes of conduct although prohibitive, work only to a certain degree, and more so in countries where they are part of legislation. In most SADC countries, Codes of Conduct for political parties are merely psychological instruments, which political parties can afford not to consent to by signing to the conditions. Worse still, in these countries, most political parties in this age of recognition of human rights have deployed lawyers to administer and advise them on legal issues, so they understand that the Code of conduct is not a legal binding instrument.
In order to create peaceful environment, in recent years countries have looked to other mechanisms and processes to augment the role of the courts. Among the many ways that have been explored are the Alternative Dispute Resolution mechanisms, commonly called ADR. ADR refers to a broad range of mechanisms and processes designed to assist parties in resolving differences. ADR holds great promise in assisting the Electoral Commissions with the management of electoral related conflicts. These Alternative Dispute Resolution mechanisms are not intended to supplant Court adjudication, but rather to supplement it. Thus in order to fill the lacunae in the legislation and regulations the Electoral Commission Forum came up with the recommendation that each country in the region should develop a capacity in ADR mechanism for it to deal with electoral conflicts and disputes. The aim behind this arrangement is to manage as well as prevent electoral conflicts with a view to achieving peaceful and mutual resolutions.

Alternative Dispute Resolution mechanisms can be an advantage to the electoral authority as they:

  • are an informal process and can be conducted anywhere and immediately
  • Intervenors are regarded as non partisan and trusted by all concerned. In this way they are able to mediate disputes between all parties including parties and the Commission if needs be.
  • Facilitating processes may satisfy parties in a way that other approaches may not. Mediation operates on the win/win approach leaving all parties satisfied with the outcome. In this way it preserves relationships and avoids the acrimony and hostility that can arise from a court action.
  • Unlike a court procedure mediation offers the parties an opportunity to resolve their dispute in privacy.
  • They are less costly and less time consuming. Judicial rules and processes are seldom understood by most parties and they therefore have very little control of the process.
  • ADR allows parties to determine their outcome and therefore ensures a greater commitment to the resolution.

3.3The Conflict Management Panel Model

This section will examine the Conflict Management Panels, citing South Africa and the Democratic Republic of Congo where the Electoral Commissions have used this model extensively. Elections involve a range of stakeholders including political parties, civil society organisations and the relevant electoral authorities. The South African IEC introduced conflict management panels in 1999 and thereafter used them for local government and national and provincial elections. EISA partnered the IEC in the design, training and co-ordination of the conflict panels. Conflict panels have the advantage that members of the panel are drawn from communities and agreed upon by the contesting political parties. They therefore have the trust and confidence of the electorate and available as a resource to the electoral authority. The model has been used and adapted subsequently by the Zambian Electoral Commission in 2001 and 2006, Lesotho in 2002 and 2005 for local government elections and extensively by the DRC in the 2005 referendum and 2006 elections where under the co ordination of the IEC and in partnership with EISA 3000 mediators were trained and deployed countrywide.

Through the ECF, Commissions in the region have participated in the development of an electoral conflict management programme and adapted and used it to suit their needs. Some EMBs have included different levels of staff whilst others only Commissioners. Providing the skills to respond to conflict is useful for different levels of staff in EMBs as well as Presiding Officers who are confronted with election conflict on election day and during the count.

Other alternative mechanisms

Conflict Panels are not the only mechanism available to EMBS. Over the past ten years a range of mechanisms have been introduced such as:

  • the establishment of Codes of Conduct agreed to and formulated by all contesting parties and the electoral authority have been put in place. Codes of Conduct are instruments which not only prohibit offensive conduct but also impose positive obligations on parties, candidates and supporters to uphold the integrity of the process. In Zambia, for example, in preparation for the 2006 elections, the Electoral Commission undertook an extensive consultative process with all stakeholders to formulate and include in the law a Code of Conduct that pertained to all stakeholders. However the challenge in this regard is that in many countries is the problem of enforcement as Codes of Conduct tend to be voluntary.
  • the establishment of Party Liaison Committees (an instrument put in place in South Africa and contained in the legislation). In South Africa, Section 5 of the Electoral Act states that the IEC must establish and maintain liaison and co-operation with political parties. It has done so by the establishment of Party Liaison Committees. This proved an extremely effective mechanism to ensure that parties are part of the process and that any potential areas of dispute can be tabled and discussed at PLC meetings. Registered parties are entitled to representation on an IEC PLC and for example have free access to voters’ rolls, frequently a source of election conflict. PLCs are established at national, provincial and municipal level.

5.Conclusion