Exploring Best Electoral Practices

By Carl W. Dundas

The family of best electoral practices is growing in most democracies. It can be found in mature and new, as well as in emerging democracies, perhaps more common in the former than in the latter two categories. The goal of best electoral practices is to improve election administration and services to the electorate.
Best electoral practices are showing steady upward growth in emerging democracies and the potential for continued growth is positive. Widespread international interest in democratic elections and improved international and national election observation harmonization procedures will continue to assist in improving election administration.
The use of electoral technologies and the notional entry into the age of digital democracy will undoubtedly aid and enhance best electoral practices aspirations in many emerging democracies.

• Language: English
• Publisher: AuthorHouse UK
• Release date: Apr 21, 2015
• ISBN: 9781504940399

Carl W. Dundas

Carl W. Dundas, LLB, LLM (Lon.), barrister-at-law (Gray’s Inn), is an election expert. Mr. Dundas has offered technical assistance in electoral matters in many countries, including Aceh (Indonesia), Antigua and Barbuda, Botswana, Cayman Islands, Guyana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Nigeria, South Africa, Tanzania, and Zambia. He has been a part of the commonwealth support team to Commonwealth Observer Groups to Bangladesh, Guyana, Kenya, Malaysia, Malawi, Pakistan, Mozambique, South Africa, Tanzania, and Zambia. Mr. Dundas advised on election organization and management in Jamaica, Kenya, Liberia, Malawi, Mozambique, Nigeria, South Africa, and Sierra Leone. Mr. Dundas led commonwealth secretariat’s electoral technical assistance missions to Guyana, Kenya, Malawi, Mozambique, Namibia, Nigeria, Sierra Leone, South Africa, Tanzania, and Zambia. He carried assignments in areas, such as designing electoral frameworks for a neutral and impartial electoral management body, drafting of instruments for transition from military regimes to multiparty democracy, and he organized capacity-building seminars and workshops. He coordinated a post-election audit exercise in Botswana (2004) and advised on the implementation of post-election review recommendations in Nigeria (2003–04). Mr. Dundas advised on constitutional reform relating to fundamental provisions, dealing with electoral legislative schemes in many countries, including Guyana, Lesotho, Malawi, South Africa, and Tanzania and advised on electoral legislation in Antigua and Barbuda, Cayman Islands, Jamaica, Kenya, Lesotho, Liberia, Malawi, Nigeria, and Sierra Leone. Mr. Dundas led the support team to the commonwealth observer missions to elections in Malaysia (1990), Zambia (1991), Kenya (1992), Guyana (1992 and ’97), Malawi (1994), Mozambique (1994), Tanzania (1995), Zanzibar (Tanzania), and Trinidad and Tobago (2000). He also served as the technical adviser to the commonwealth preelection observation mission to Namibia in 1989 and to the Commonwealth Observer Group to South Africa in 1994. Mr. Dundas was chairman of the Electoral Boundary Delimitation Commission of the Cayman Islands in 2003 and 2010. As an independent electoral consultant from 2001 to 2006, Mr. Dundas advised many election management bodies (EMBs) on reform and modernization, including Aceh (Indonesia), Antigua and Barbuda, Botswana, Cayman Islands, Guyana, Lesotho, Liberia, Nigeria, and Tanzania. In 2006, Mr. Dundas became chief of party of the International Foundation for Electoral Systems (IFES) Africa Union Support Program Union Support Program (funded by USAID) to advise the African Union on the establishment of a Democracy and Electoral Assistance Unit (DEAU). The DEAU was established in May 2008, and he remained as its adviser at the Africa Union in Addis Ababa until 2010.

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Contents

Preface

Acronyms and Abbreviations

Note about the Author

Other Works by the Author

Introduction

Best electoral practices and electoral justice

Free, fair and credible elections

Legitimate elections

Just elections

General scope of work

Chapter 1:   Best Electoral Practices and the Legal Design of Electoral Framework

Introduction

Nature of best electoral practices and legal design

Electoral management and best practices

Creation of an EMB

Kenyan procedure for appointing Commissioners

Namibian procedure for appointing Commissioners

Size of EMBs

Conduct of EMBs’ members

Removal of chairperson or member

Recruitment of staffs

Delimitation of electoral districts

Voter/election education

Election campaigns

Campaign financing

Principles of operation

Independence

Accountability

Transparency

Level playing field

Upholding the integrity of the electoral process

Recruitment of competent staffs

Acquiring and using new technologies

Functions and powers of EMBs

Voter registration

Political party formation and registration

Delimitation of constituencies

Voter and election education

Nomination (party primaries)

Secrecy of the ballot

Compliance with the legislative scheme

Breaches and punishment

Enforcement of punishment

Disputes resolution

Further discussions on best practices

Chapter 2:   Creating Best Electoral Practices, EMBs’ Role

Introduction

EMB, members, staffs and conduct of business

Management tools

Graphic design facility

Election calendar

Keeping proper records

Status of EMBs

Resources of EMBs

Vetting election laws and regulations

Control, superintendence and directing elections

Cost-effective measures

Relations with stakeholders

EMBs and political party campaign finance

EMBs and codes of conduct for political parties

EMBs’ relationship with CSOs

EMBs’ relations with independent observers

EMBs’ relationship with the media

Donor partners

EMBs’ relations with government

Chapter 3:   Best Electoral Practices and Choice of Electoral Systems

Introduction

Electoral systems and best practices

Fairness

Proportionality

Simplicity

Treatment of minorities and women

Accountability to constituents

Tackling potential racial, ethnic or religious conflicts

Stable government

Electoral systems and effective political parties

Electoral systems and voter participation

Electoral systems and cost-effectiveness

Summary of main features

Plurality system

Majority systems

Proportional systems

Mixed electoral systems

Summary of strengths and weaknesses of selected electoral systems

Chapter 4:   Eligibility to Vote

Introduction

Nature of eligibility to vote

Principles underpinning best registration practices

Fairness

Accuracy

Inclusiveness

Comprehensiveness

Accessibility

Transparency

Need for awareness programmes

Security

Accountability

Interaction with stakeholders

Basic qualification for voter registration

Identification of eligible persons

Staffs recruitment

Training of registration officers

Voter/election education programmes

Acquisition of registration materials

Registration data collection

Data quality

Processing of voter registration data

The voters’ register

Maintenance of register

Voters’ cards

Accessibility of voters’ register

The registration process vulnerabilities

Continuous registration

Voter registration and civil registry

Compulsory registration

Voluntary registration of voters

Chapter 5:   Best Practices in Delimitation of Constituencies’ Boundaries

Introduction

Principles underpinning best practices in constructing boundaries

The choice of electoral system

Application of the delimitation formula

Transparency

Information of stakeholders

Delimitation body

Purpose of delimitation

Procedures

Manipulation of the process

Role of courts

Outcomes – fairness

Chapter 6:   Political Parties and Best Electoral Practices

Introduction

Formation of political parties

Registration of political parties

Determination of registration application

Best electoral practices and regulation of political parties

Regulating political party campaign financing

Political parties, intimidation and violence

Chapter 7:   Election Contestants

Introduction

Entry points

Nationality issues

Gender issues

Disadvantaged individuals and groups

Independent candidates

Procedure for registering election contestants

Party primaries

Conduct of registration of contestants

Effect of contestants’ registration

Failed registration of contestants

Technical defects

Intimidation and violence

Disputes resolution

Chapter 8:   Marginalised Voters and Best Practices

Introduction

Refugees and asylum seekers

Internally displaced persons

Stateless persons’ right to vote

Homeless people and the right to vote

Nomadic people’s right to vote

Disabled people

Idiots

Deaf people

Blind and partially sighted people

Chapter 9:   Stakeholders’ Contribution to Best Electoral Practices

Introduction

Governments, executives, departments and agencies

The judicial system

Alternative electoral disputes resolution mechanism

Facilitation

Memorandum of understanding

Brokered agreement

Conciliation

Mediation

Negotiation

Arbitration

Commission of enquiry

Electoral audit

Provision of election security

Civil society organisations and best electoral practices

Civic, election and voter education programmes

The media and best electoral practices

Media and codes of conduct

Media, voter and election education

Media, participation and transparency

Media and level playing field

Election observers and best electoral practices

Donor partners and best electoral practices

Chapter 10:   Best Electoral Practices in Election Preparations

Introduction

Electoral offices’ premises

Staffs’ recruitment

Screening applicants

Appointment of electoral staffs and best practices

Training of electoral officers and best practices

Deployment of electoral staffs

Election materials and equipment

Ballot boxes and voting machines

Acquisition and use of election supplies

Polling station, location and identification

Identification of polling station sites

Chapter 11:   Election Campaigns and Best Electoral Practices

Introduction

Campaign period and best electoral practices

Political parties as election contestants

Code of conduct for contestants

EMBs’ role in election campaign

Chapter 12:   Electoral Cycle and Best Electoral Practices

Introduction

General election aftermath and best electoral practices

Strengthening an EMB’s management tools

EMB’s role in an electoral cycle

Ensuring transparency throughout an electoral cycle

EMBs, efficiency and accuracy in the electoral cycle

Integrity of the electoral process

Timely recruitment, training and development of staffs

Management of logistics throughout an electoral cycle

Security of polling stations and materials

Measures to prevent multiple voting

Chapter 13:   Election Day and Best Electoral Practices

Introduction

Early voting

Absentee voting

Postal voting

Proxy voting

Military posted abroad

Diplomats posted abroad

Police and military deployed away from home in country

Refugees and asylum seekers

Internally displaced persons

Homeless persons

Nationals residing abroad

On-line voting

Opening of polls

Length of voting queues

Election materials at polling station

Polling station staffs

Contestants’ agents

Observers

Voting procedures

Polling station security

Environs of a polling station

Management of a polling station

Quality of election services

Procedure at closing of poll

Counting at polling station

Counting at centres

Tallying and collation centres

Secrecy of the vote

Measures to protect secrecy

Easing of secrecy procedures

Procedures that potentially compromise secrecy

Isolated groups of voters

Recounts

Announcement of results

Chapter 14:   Best Electoral Practices and Disputes Resolution Mechanisms

Introduction

Nature of election disputes

Miscellaneous types of election disputes

Mechanisms to deal with complaints and disputes

Classification of electoral disputes

Electoral disputes that may arise at any time

Pre-polling disputes

Election Day disputes

Post-Election Day disputes

Traditional dispute resolution mechanisms

Additional mechanisms available to resolve electoral disputes

Facilitation

Brokered agreement

Memorandum of understanding

Conciliation

Mediation

Negotiation

Arbitration

Commission of enquiry

Election audit

EMBs’ administrative procedures

Election tribunals

Election court

Constitutional court

High Court

Combination of methods

AEDR mechanisms

Chapter 15:   Best Electoral Practices and Technology

Introduction

Transparency

Electronic voting

Integrity of process

Competence

Accuracy

Completeness

Building trust/confidence in electoral processes

Introducing technology in elections –feasibility studies

Training

Chapter 16:   Tangential Matters to Best Practices

Introduction

Conceptualisation of best electoral practices

Limits of best electoral practices

One size does not fit

Referendums, initiatives and plebiscites

Initiatives

Plebiscites

Parallel vote tabulation

Needs assessment missions

Multiple tiers of EMBs and multiple elections at the same time

Doctrine of necessity and best practices

Indian national awards for best electoral practices

Electoral justice; legitimate election and just election

Recall

Chapter 17:   Post-Election Audits and Best Electoral Practices

Introduction

Categories of election audits

Election performance audits

Composition of performance audit team

Important elements of a performance audit

Performance audit report

An election audit of voting and counting

Preface

Best electoral practices are attributes that electoral management bodies (EMBs) should aspire to achieve in a manner that is obvious to all stakeholders. These practices are open to every EMB to attain, given reasonable electoral and political environment in a particular country. The path to achieving best electoral practices in as many processes during preparation for and conduct of democratic elections is not easy, but the goal to cover all processes may take periods of many electoral cycles. Free, fair and credible democratic elections can be organised without an EMB achieving best electoral practices in each activity of every election process.

This work sets out to explore the current reach of best electoral practices and the extent to which they promote the organisation of credible democratic elections. There may be relevant dimensions of best electoral practices that cannot be explored in this work at this time, for example, can a credible election be organised and conducted without any trace of best electoral practices, or in the alternative is there minimum levels of best practices below which an election becomes of questionable validity? It is hoped that continued research in the application of best electoral practices will throw light on some of these untouched issues.

The awareness of the application of best electoral practices in the preparatory processes for an election, as well as those regarding the conduct of an election, can impact positively on election observers and stakeholders. It is not difficult to identify where best practices are being applied; transparency and adherence to the procedures laid down are two of the pillars of best electoral practices.

In exploring best electoral practices, the journey leads to looking at practices that do not at present crystallise into best practices, but may rise to that level in future. The dimension of best electoral practices encompasses a brief opportunity to examine the concept of the phrase itself and discuss whether or not it is suitable for universal application to EMBs and democratic elections. In a similar vein, the relationship (if any) between best electoral practices and other election-related concepts, such as legitimate election, just election, and electoral justice has been considered. The work also examines the limits of the application of best electoral practices.

The best electoral practices awards scheme set up by the Indian Election Commission under which individual electoral officers and or particular States may be nominated for best practices award points in a concrete manner how best practices can be promoted.

Best electoral practices have attracted my attention and exposure over the past thirty-five years in working on electoral issues and, supported by extensive research, this work is intended to commence a conversation which other electoral commentators might wish to join.

Carl W. Dundas

Milton Keynes

Dedicated to my granddaughter Leni

Acronyms and Abbreviations

Note about the Author

Carl W. Dundas, LL.B, LL.M (Lon.), Barrister-at-law (Gray’s Inn) is an Election Expert. Mr. Dundas has offered technical assistance in electoral matters in many countries, including Aceh (Indonesia), Antigua & Barbuda, Botswana, Cayman Islands, Guyana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Nigeria, South Africa, Tanzania and Zambia. He has been a part of the Commonwealth support team to Commonwealth Observer Groups to Bangladesh, Guyana, Kenya, Malaysia, Malawi, Pakistan, Mozambique, South Africa, Tanzania and Zambia.

Mr. Dundas advised on election organisation and management system in Jamaica, Kenya, Liberia, Malawi, Mozambique, Nigeria, South Africa and Sierra Leone.

Mr. Dundas led Commonwealth Secretariat’s electoral technical assistance missions to Guyana, Kenya, Malawi, Mozambique, Namibia, Nigeria, Sierra Leone, South Africa, Tanzania and Zambia. He carried assignments in areas such as designing electoral frameworks for a neutral and impartial electoral management body, drafting of instruments for transition from military regimes to multiparty democracy, and he organised capacity-building seminars and workshops. He co-ordinated a post-election audit exercise in Botswana (2004) and advised on the implementation of post-election review recommendations in Nigeria (2003-04).

Mr. Dundas advised on constitutional reform relating to fundamental provisions dealing with electoral legislative schemes in many countries, including Guyana, Lesotho, Malawi, South Africa and Tanzania; and advised on electoral legislation in Antigua and Barbuda, Cayman Islands, Jamaica, Kenya, Lesotho, Liberia, Malawi, Nigeria and Sierra Leone.

Mr. Dundas led the Support Team to the Commonwealth Observer Missions to elections in Malaysia (1990), Zambia (1991), Kenya (1992), Guyana (1992 & 97), Malawi (1994), Mozambique (1994), Tanzania (1995), Zanzibar (Tanzania) and Trinidad and Tobago (2000). He also served as the technical adviser to the Commonwealth pre-election Observation Mission to Namibia in 1989 and to the Commonwealth Observer Group to South Africa in 1994.

Mr. Dundas was Chairman of the Electoral Boundary Delimitation Commission of the Cayman Islands in 2003 and 2010. As an independent electoral consultant from 2001 to 2006, Mr. Dundas advised many election management bodies (EMBs) on reform and modernisation, including Aceh (Indonesia), Antigua and Barbuda, Botswana, Cayman Islands, Guyana, Lesotho, Liberia, Nigeria and Tanzania.

In 2006, Mr. Dundas became Chief of Party of the International Foundation for Electoral Systems (IFES) Africa Union Support Program Union Support Program (funded by USAID) to advise the African Union on the establishment of a Democracy and Electoral Assistance Unit (DEAU). The DEAU was established in May 2008 and I remained as its adviser at the Africa Union in Addis Ababa until 2010.

Other Works by the Author

Organising Free and Fair Elections at Cost-Effective Levels, Commonwealth Secretariat (1993)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 1, Part 1, Commonwealth Secretariat (1996)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 1, Part 2, Commonwealth Secretariat, (1998)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 2, Part 1 Commonwealth Secretariat (1999)

Compendium of Election Laws, Practices and Cases of Selected Commonwealth Countries, Volume 2, Part 2, Commonwealth Secretariat (1999)

Election Management Bodies: Constitutive Instruments, Commonwealth Secretariat, (1999)

Improving the Organization of Elections: A 2006 Perspective, Ian Randle Publishers, 2006

Observing Elections the Commonwealth’s Way: The Early Years, Ian Randle Publishers (2007)

The Lag of 21th Century Democratic Elections: In the African Union Member States, AuthorHouse, USA, 2011

My Favourite Election Anecdotes and Snippets, AuthorHouse, USA, 2012

My Wonderful World of Elections, AuthorHouse, USA, 2011

Close Elections and Succession in the African Union, AuthorHouse, USA, 2012

Electoral Essays and Discourses, AuthorHouse, USA, 2014

Introduction

The family of best electoral practices is expanding and shows much potential for future growth. Although its primary place is within the sphere of the electoral process, this work will be looking at the relationship of best electoral practices with related concepts such as electoral justice, just elections, legitimate elections and free, fair and credible elections. Some electoral commentators are of the view that best electoral practices ought to vary as a consequence of the impact of local customs and traditions on the evolution of democratic practices. Notwithstanding this approach, the principles underpinning best electoral practices cannot be diminished to such an extent that they are no longer discernible as best practices.

Best electoral practices and electoral justice

The Commonwealth association underpinned the quest of its member states to deliver best electoral practices to their respect electorates on the consolidation of fundamental political values formulated in the Harare Commonwealth Declaration of 1991. In that Declaration, the Heads of Government undertook to work for the protection and promotion of the association’s fundamental political values: democracy, democratic practices and institutions which reflect national circumstances, the rule of law and independence of the judiciary, just and honest government and fundamental human rights, including equal rights and opportunities for all citizens regardless of race, creed or political belief.¹

In a similar vein, best electoral practices in the Member States of the African Union are inspired and underpinned by the principles of good governance, popular participation, the rule of law and human rights that are contained in the Constitutive Act of the African Union. These principles were consolidated by the African Charter on Democracy, Elections and Governance (the Charter) which came into force in February 2012.²

This work will examine the relationship of the current best electoral practices and various elements of election organisation and conduct, including electoral justice, free, fair and credible elections, legitimate elections and just elections. The purpose of this approach is to explore the strength of the underlying principles of best electoral practices and the potential for expanding the size and scope of the family of best electoral practices.

Electoral justice permeates and impacts positively on best electoral practices, but the two concepts are not circular. Electoral justice may exist in the absence of best electoral practices with respect to given electoral processes or tasks, and it is possible that best electoral practices may not dispense electoral justice.

There are several definitions of electoral justice which may be used to reflect the true breadth and scope of the concept. A simple definition of electoral justice may be put in terms of the process by which the organisers of democratic elections offer electoral services satisfactory to each stakeholder. This definition may not take sufficient notice of the extent to which minor electoral irregularities may impinge on electoral justice and the failure of the electoral management to apply best practices.

Another definition of electoral justice sometimes encountered is that electoral justice is the process by which electoral complaints and disputes are resolved in a timely, transparent and impartial manner by the normal court system, or dedicated tribunals established for the purpose. This approach would focus largely on the dispute resolution role of electoral justice and, important as that role is, places too great an emphasis on this role in the concept of electoral justice.

Yet another approach places electoral justice firmly within the sphere of the local electoral legislative scheme thus: electoral justice ensures that the organisation of democratic elections is conducted in a fair and transparent manner in accordance with the particular national electoral law, rules and procedures. The potential deficit with this definition lies in the fact that national electoral laws may be inconsistent with international or best practices requirements and increases the risk of the resultant elections being less credible than they could have been.

Sometimes the focus on electoral justice is placed on a particular process, for example, the need for the registrars of political parties to act fairly within a particular jurisdiction with respect to party registration.

There is a large measure of convergence between the underpinning values of the principles of both best electoral practices and electoral justice. With respect to electoral justice, emphasis is placed on the participation of individuals reflecting the voice of the people in representative democracy and the vehicle to channel this participation is election. Best electoral practices, like electoral justice, demand a sound up-to-date electoral legislative environment in which to operate.

Safeguarding and upholding the integrity of the electoral process is important to best electoral practices and electoral justice and both concepts rely on the integrity of the electoral process and its legitimisation effect on the results produced by an electoral process. Honesty in the form of non-partisanship on the part of electoral administrators and their staffs is required and valued by best electoral practices and by electoral justice.

Fairness and impartiality to election contestants and other stakeholders are vital attributes of electoral democracy and are held in high esteem for the purposes of best electoral practices and electoral justice. Other values which are underpinned by principles which support attributes such as professionalism of electoral officers, independence of EMBs, transparency of election organisation, timeliness in meeting Electoral Calendar schedules and participation of stakeholders in the electoral process do impact positively on best electoral practices and electoral justice alike.

Free, fair and credible elections

For the purposes of this work an election is free, fair and credible where each of the preparatory processes, namely, delimitation of electoral boundaries are fairly constructed; the voters’ register is complete, accurate and current; contestants, political parties and candidates (including independents), have a campaigning level playing field; the logistics management is efficient; the counting of votes is done competently and timely; and the electoral management and officers are non-partisan and competent, is executed professionally. Furthermore, in order to make the grade of free, fair and credible election, there must be complete transparency in the preparatory and voting processes to the satisfaction of all stakeholders; and electoral complaints and disputes should be resolved in good time and in accordance with the established procedures. Consistent with the principle of transparency, access should be granted to accredited parties’ and candidates’ representatives and to independent domestic and international observers at the polling stations by the electoral officers.

An election is considered free if the primary stakeholders are able to participate in each of the preparatory processes and polling and counting exercises without fear of intimidation and violence before, during or after polling activities. An election will be adjudged to be fair if the preparatory processes are conducted in a competent and transparent manner and the polling and counting exercises are carried out in a transparent and efficient way. The freeness and fairness of an election bring the issues of access to the publicly owned media by opposition parties and candidates into focus and the nature of the level playing field that existed during the campaign. An election is considered credible where the essential electoral procedures were substantially followed and the preparatory and polling and counting operations were transparent and accepted to be so by the primary stakeholders and independent domestic and international observers.

Legitimate elections

An election may be considered legitimate if it is conducted in accordance with the rules promulgated through the proper legal and political process of a given State. The process by which the rules were promulgated should also be legitimate. The conduct of a legitimate election must follow the rules substantially, but not necessarily perfectly. Electoral legitimacy is flexible and may not be extinguished by irregularities. However, where there are widespread deliberate violations with significant consequential impact, the legitimacy of an election may be undermined.

A particular feature of legitimacy in elections is that the closer an election appears to be, the greater the difference a single irregularity can make theoretically, notwithstanding that in practice it may be difficult to show that a particular irregularity was capable of making the difference. Howsoever achieved, once an election is clothed with legitimacy it enhances the viability of the incoming government, even if the losers did not accept the results. It is one of the pillars of democratic elections that electoral legitimacy does facilitate political cooperation which contributes to the stability of democratic States. Electoral legitimacy serves as the glue that holds parties and candidates in the electoral process and the result of which may enable a new government to settle into office and get on with the business of the State.

Just elections

An election is just if it espouses the general principles that underpin electoral justice, that is to say, values of equal respect, free choice and popular participation by the people. Just elections may not necessarily produce just results. The candidate that is best qualified in an election contest and who would be best placed to promote just polices may not win in a just election. It is quite possible for an election to be consistent with electoral justice, but does not rise to the level of a just election. Similarly, the results of an election may be accepted by stakeholders as legitimate, because the EMB followed the electoral procedures substantially, but those procedures may not be just.³ In the context of legitimate and just elections, the presidential election of 2000 in the USA is often cited as an example that illustrates the difference. It has been pointed out that an overwhelming majority of Americans, including the majority of those who voted for Al Gore, accepted George Bush as the legitimate president, even though a majority of the electorate preferred Gore.⁴

General scope of work

This work will examine the application of best electoral practices in the design of electoral legislative schemes and in each significant electoral preparatory process, as well as the conduct of polling and resolution of disputes. It will also look at the trend in, and evolution of best practices in new and emerging democracies. The potential and sustainability of best electoral practices will be discussed.

Chapter 1

Best Electoral Practices and the Legal Design of Electoral Framework

Introduction

The design of an electoral legislative scheme may encompass constitutional provisions relating to the fundamental clauses of the electoral administration within the given jurisdiction. However, some important democratic countries, including the United Kingdom, Canada and Australia, do not follow this model, and instead create their electoral administrative framework by means of statute law. In the new and emerging democracies of the Commonwealth, African Union, Central and Eastern Europe, and elsewhere, the constitutional frameworks invariably contain provisions relating to important electoral issues.

In the light of the foregoing, with respect to the electoral legal framework, it cannot be stated that the inclusion of important electoral provisions in the constitution of a particular jurisdiction is a part of the family of best electoral practices generally. However, for draughtspersons of constitutional instruments in new and emerging democracies, the inclusion of important clauses, for example, the right to vote, to form political parties, freedom to hold rallies, the nature of the choice of electoral system and the electoral management structure, is an important attribute of best electoral practices.

The foremost reason for including the vital provisions of an electoral administration in the constitution in a new or emerging democracy is to prevent a political party with the required majority of seats in the national assembly or parliament repealing or amending such provisions without the contribution of the opposition parties. The concept, or perhaps theory, is that constitutions can be constructed with requirement of high level of qualified majority to get amending constitutional clauses pass in the national assembly or parliament, and a further requirement of a referendum, again passed with a high bar of qualified majority of the votes in order to make it difficult to change the constitution without any input from opposition parties. This at least is the theory behind placing the inclusion of vital electoral provisions in constitutional instruments in new and emerging democracies; and elevating this procedure to the level of best electoral practices, but confined mainly to new and emerging democracies. It should be noted, however, that a careful balance has to be maintained between including the fundamental electoral clauses in the constitution and separating them from the more detailed provisions, which should properly be placed in the electoral law, since detailed provisions may need adjustment (amendment) from time to time and if placed in the constitution it may make it more difficult to amend them.

The emergence of the dominant political party scenario in many of the new and emerging democracies, where the ruling party remains in power for long periods of time and often with more than two-thirds of the seats in the national assembly or parliament, in diverse countries as Botswana, Malaysia, Namibia, Nigeria, Singapore, South Africa and Uganda, has tended to impinge on the environment of best electoral practices.

Nature of best electoral practices and legal design

The design of an electoral legislative scheme impacts on the entire electoral process, including the electoral system in place, the delimitation of constituencies (if any), voter registration, political party formation and registration, registration of parties and candidates to contest elections, and the polling and counting processes. It is the legal design that sets the tone and facilitates the application of best electoral practices by EMBs. In a given electoral legal framework there may be constitutional provisions relating to elections, the electoral law, and electoral regulations and rules complemented by manuals and instructions. It is at the stage of implementation of the provisions of these instruments and the procedures therein that best electoral practices should be invoked to aid the process. Electoral legal instruments, particularly the regulations and rules, supported by manuals, often contain considerable details, which frequently articulate best practices.

The rest of this chapter will seek to identify briefly potential issues for best electoral practices treatment in the legal design followed by more detailed treatment of best practices in particular processes in subsequent chapters.

Electoral management and best practices

The legal design of an electoral management structure and powers will largely determine the operational autonomy and integrity of an EMB’s ability to acquire and sustain best electoral practices, particularly during a general or other national election. An EMB itself should be the subject of rigorous best practices scrutiny in its creation, appointment of its members and employees, their removal, and with respect to its operating principles.

Creation of an EMB

The issue of best electoral practices with respect to the creation of an EMB differs according to whether or not the particular State involved accept the approach of inclusion in the constitution or in the electoral laws. Thus, the United Kingdom created an independent electoral commission by statute in 2001by Act of Parliament independent of Government and responsible to Parliament with limited competence confined to regulate political parties and election finance. In contrast, in the emerging democracy of Kenya, a new EMB, the Independent Electoral and Boundaries Commission (IEBC), was created in 2010 by the Constitution with full competence to conduct elections or referenda in that country.⁵

The establishment of an EMB should be transparent and independent of government. It does not matter if it was done under a constitution, or through legislative enactment. Two examples are chosen to illustrate EMBs creation with a considerable measure of transparency, one established under a constitution and the other by statute law, both drawn from emerging democracies, the Kenyan and the Namibian EMBs, respectively.

Kenyan procedure for appointing Commissioners

In the Kenyan case, the Constitution sets out the provisions which established the EMB, the (IEBC), and the criteria governing the appointment of Commissioners thereto, as well as the disqualification for appointment. The Constitution also sets out the powers and functions of the Commission.⁶ However, the procedure for the appointment of the chairman and members of the Commission is set out in the Independent Electoral and Boundaries Commission Act.⁷

The procedure for appointment of commissioners, including the chairman, of the IEBC is set forth in the First Schedule is as follows:

The President appoints a Selection Panel within fourteen days after the commencement of the IEBC Act, or within twenty-one days of a vacancy arising in the Commission. The Selection Panel comprises of a chairperson and eight members drawn from distinguished professionals in private sector or the public service with relevant expertise. The Selection Panel elects a vice-chairperson from amongst its members and determines its own procedures, subject to the provisions of the Schedule. The Selection Panel is mandated to invite applications from qualified persons within seven days of its convening and publish the names of all the applicants and their qualifications in the Gazette, two newspapers of national circulation and on the Public Service Commission’s website. The Selection Panel considers the applications, shortlists and interviews the applicants. The Selection Panel selects three persons qualified to be appointed as chairperson