<<previous  |  index  |  next>>

Five Cases of Electoral Management Laws in SADC: Botswana, Lesotho, Mozambique, Namibia, and South Africa

SADC countries have increasingly recognized the important contribution of election management to holding free and fair elections.¹²  There is now widespread provision for the establishment of independent electoral commissions in the constitutions of SADC countries, and for supplementing this with electoral legislation.¹³   The functions of electoral commissions in SADC cover the range of election-related activities, such as voter registration, the compilation of a national voters’ roll, training of election officials, polling day activities, the compilation of results, and the resolution of disputes.¹⁴  Electoral commissions may also be tasked with demarcation and providing or applying a code of conduct for political parties.¹⁵  The formal architecture of electoral commissions for Botswana, Mozambique, Namibia, Lesotho, and South Africa is briefly summarized to highlight both their commonalities and differences.  Particular emphasis is given to the appointment procedures of commissioners because these have often been at the heart of controversies over the independence of the commissions and ultimately of the credibility and legitimacy of elections.¹⁶ 

Botswana established an Independent Electoral Commission by a Constitutional amendment in 1997 and through an Act of Parliament.  The Constitution prescribes the composition and functions of the Commission.  The Chairperson of the Commission must be a Judge of the High Court and the Deputy Chairperson a Legal Practitioner.  Both are appointed by the Judicial Service Commission (JSC).  The Commission’s other five members are also appointed by the JSC from a list of persons recommended by the All Party Conference.   The Constitution also provides for the President to appoint the Secretary of the Commission, who is its Chief Executive Officer.  The Commission may appoint staff to assist the Secretary.  The Commissioners serve for two successive terms of Parliament or ten years.¹⁷  In Botswana’s general election on October 30, 2004, the All Party Conference failed to make recommendations to the JSC.  Consequently, the JSC made its own recommendations, as provided for in the Constitution.¹⁸  The SADC Parliamentary Forum Election Observer Mission to Botswana concluded that the Commission had carried out its responsibilities efficiently, impartially, and professionally during the parliamentary election.¹⁹   One woman serves on the current Commission.

The Independent Electoral Commission (IEC) in Lesotho derives its existence and authority from the Second Amendment to the Constitution Act, 1997 (Act No.7, 1997).  Further details of the IEC’s mandate are contained in the National Assembly Elections Act, 1992, the National Assembly Election (No.1) Amendment Act, 2001, and subsequent amendments.²⁰  The Constitutional amendment abolished the Constituency Delimitation Commission and the office of the Chief Electoral Officer.  The Constitution makes provision for the Independent Electoral Commission to perform the functions of the former Constituency Delimitation Commission,²¹ to be independent from the control or direction of any person or authority, and to receive funds from Parliament enabling it to perform its functions in an effective manner.²²  The Constitution guarantees the security of tenure of the Commissioners. The King may remove Commissioners from office only on the recommendation of a judicial tribunal for inability to exercise their office or for misconduct.²³  The procedure for  appointing the Commissioners starts with the request of the Council of State to all registered political parties to jointly propose to the Council a list of not less than five names from which the Council will select three.²⁴   The King, acting in accordance with the advice of the Council of State, appoints all three Commission members for a renewable six-year term.²⁵   The Chairperson of the Commission must hold, or have previously held, high judicial office.  The other two members must have the same qualifications as the Chairperson or have competence in administration or public affairs.²⁶  Members are not allowed to be an office-bearer of a political party, a member of a local authority or hold public office, other than a Judge of the High Court or the Court of Appeal.²⁷  The Commission employs its own staff, except for the Director of Elections, the Commission’s Chief Executive Officer, who is a civil servant seconded from Government to the IEC.²⁸  An amendment to the National Assembly Elections Act, 1992 in 2001 gives to the IEC the power to appoint a three-person tribunal to hear and determine complaints concerning the contravention of the Electoral Code.²⁹ The IEC that organized the general elections in May 2002 was praised for its transparency by the political parties and other stakeholders, as well as by the Commonwealth Observer Group and the SADC Parliamentary Forum Election Observation Group.³⁰  Its members comprised three men: two former senior civil servants and a management consultant.³¹

Mozambique’s National Electoral Commission (CNE) is created by Electoral Law No.20, 2002.³²  This law also stipulates the functions, powers, duties, and organization of the CNE.³³ The CNE is independent from public and political powers and in the exercise of its functions defers only to constitutional law.³⁴  The CNE has nineteen members.³⁵  Eighteen members of the CNE are chosen by political parties or coalition parties in proportion to their representation in parliament.³⁶ The President of the CNE is elected by the members of the Commission from among candidates presented by registered and legally recognized civil society organizations.  The eighteen members agree on three candidates, from among whom the President of the Republic designates the President of the Commission.³⁷  Complaints arising from decisions by the CNE must be addressed to the Constitutional Court.³⁸   Members of the CNE hold office for five years.³⁹  During their term in office, members enjoy legal immunity except where their activities might have an improper effect on the final result of elections or referenda.⁴⁰  Members of the CNE must not be senior office-holders of any political party, provincial governors, members of the military or security forces, deputies of the parliament, and so forth.⁴¹  The CNE is assisted by a secretariat, the composition, organization, and functioning of which are provided for in regulations that must be approved by the CNE.⁴² The CNE selects the Director General of the secretariat “on the basis of public advertisement and consideration of his record.”⁴³  Mozambique’s third multiparty general and presidential elections to be held in the first two days of December 2004 will be the first test of the 2002 Electoral Law.

The election commission in Namibia is established in principle in the Constitution that came into effect in March 1990.⁴⁴  The 1992 Electoral Act created the Electoral Commission of Namibia (ECN) as the sole and exclusive authority mandated to administer all electoral processes and activities in the country.⁴⁵ The ECN is composed of five members, whose term of office should not exceed five years, though they may be re-appointed.   The method of appointing the five Commissioners was amended by the Electoral Amendment Act, 1998. Prospective and aspiring commissioners apply through a Selection Committee, which recommends eight candidates to the President of Namibia who then appoints five members. The Commission relies on administrative support from the Directorate of Elections, the establishment of which is provided for in the Electoral Act, 1992.  The 1998 amendment provides for a Director of Elections to act as Secretary of the Commission and head of the Directorate.  The Directorate relies on a permanent staff of some twenty people and the secondment of civil servants during elections.   Namibia held its third presidential and general elections on November 15 and 16, 2004.⁴⁶  The current ECN is composed of four men and one woman.⁴⁷

South Africa’s Independent Electoral Commission is established in chapter 9 of the 1996 Constitution as one of six state institutions supporting constitutional democracy.⁴⁸  The core of the Commission’s mandate, to protect political rights, is provided for in section 19 of the Constitution.⁴⁹  The Electoral Commission Act No.51 of 1996 provides for the establishment, composition, and powers, duties and functions of the Electoral Commission and of the Electoral Court.⁵⁰  The Commission is independent and subject only to the Constitution and the law and must be impartial.⁵¹  A four-member panel, chaired by the President of the Constitutional Court and also comprising a representative of the Human Rights Commission, a representative of the Commission on Gender Equality, and the Public Protector, selects a list of at least eight suitable candidates.  The panel must act in a transparent and open manner.⁵²  A committee of the National Assembly, proportionally composed of members of all parties represented in that body, nominates commissioners from the panel’s recommendations.  A majority in the National Assembly must approve the committee’s nominations.  The President then appoints the five members of the Commission, one of whom must be a judge.  No commissioner who holds a high party-political profile may be considered for the position.⁵³  Commissioners hold office for seven years.⁵⁴  Commissioners must serve impartially and independently and may not hold any political office or serve as a member of Parliament, a provincial legislature, or a local government body during their tenure.⁵⁵ The Commission appoints a Chief Electoral Officer to head the administration of the Commission.⁵⁶  Of the five current Commissioners, two are women.

These summaries of the legal and constitutional provisions for independent electoral commissions reveal significant diversity and some convergence.  Mozambique’s electoral commission is governed entirely by an Act of Parliament.  The electoral commissions in Namibia, South Africa, and Lesotho rely on a combination of constitutional and parliamentary law, which as noted above, is the trend in SADC countries.  In South Africa, Mozambique, Lesotho, and Botswana, there is a role for political parties in the process of choosing commissioners.  The Presidents of South Africa and Namibia, and the King of Lesotho, are involved in the appointment process of all the Commissioners, though only the Presidents of South Africa and Namibia exercise choice among candidates.  The President of Mozambique participates only in the appointment of the President of the Commission.  Some countries, such as South Africa and Mozambique, restrict the participation of political party office- holders and others from serving as commissioners.  The degree of the commissions’ control over the appointment of administrative staff also varies.  The commissions of Namibia, Lesotho, and Botswana, for instance, do not appoint the chief executive officer whereas the South African commission does.