3.4.2 Electoral management bodies

Elections are managed by different bodies, sometimes by a government department and, increasingly, by separate bodies. There are basically two models of electoral commission: those that are designed to be independent of government and parties (a bit like courts), and what might be described as “balanced” commissions, in which each major party nominates members.

Usually the same body will have responsibility for any referendum; indeed, some bodies are officially named “commissions for elections and referendums.” In Ireland there is no electoral commission, and a separate commission is appointed every time a referendum has to be held. In some countries—usually in the civil law tradition—the courts also have some responsibility in connection with elections, including certifying the results.

An electoral management body may find itself involved in a constitution-making process:

  • when an election is needed for a legislature that will have the task of making a new constitution or for a constitutional assembly with the sole task of making a constitution; or
  • to conduct a referendum on either the adoption of a whole constitution or one or more specific issues.

If the electoral management body is a “balanced” body, designed to be fair to all parties, it may not be the most appropriate body to carry out these functions, especially if elections for the constitutional assembly are not to be conducted on ordinary party lines.

Election issues

The first resembles the ordinary work of an electoral management body. However:

  • the timetable may be different from that applying to normal elections;
  • the electoral system may be different;
  • those entitled to vote may be different for a specifically constitutional assembly (for example, even if nationals overseas are not usually able to vote, the diaspora may be entitled to vote; in Kenya [2010] prisoners could vote); and
  • civic education on voting for a body to make a constitution may present different challenges.

Because of the historic importance of a constitution-making process, an electoral management body might be able to get more assistance (indeed, might find more assistance thrust upon it) than is available for a regular election.

Box 41. An election for a constituent assembly

In 2008 Nepal elected its constituent assembly—to make a new constitution, and also to be the national legislature. The challenges that faced the electoral commission included:

  • the commission itself being totally new, the old one having been viewed as consisting of supporters of the old and discredited regime, and disbanded;
  • the need to register new voters;
  • the need to operate a new electoral system (with not only 240 single-member constituencies, as in the past, but 335 members to be elected through party lists);
  • political maneuvering, which meant that the details of the system (including numbers of seats) changed perhaps three times; and
  • the need to carry out voter education that recognized that this was about a constitution (but would also lead to the formation of a government).

The elections were postponed twice, once because the commission felt it was not ready. When the election was held, a huge number of ballot papers had to be printed in a short time. (About forty million were printed.) And this election having been part of an internationally monitored peace process meant that there was great international interest, and all sorts of foreign advisers.

Referendum issues

Some countries have had referendums only on new constitutions. In some ways organizing a referendum may be simpler than running an election: the whole country may operate as one constituency, and the ballot paper may be simple. On the other hand, the range of actors in the campaign may be quite different from that involved during an election campaign. Parties may not be organized for a referendum campaign. Even if they are, there may be many other groups that wish, or are permitted to campaign that would not do so in an election situation. The Kenya [2005] referendum campaign demonstrates some of these issues.

There will likely be a separate law that deals with administration of referendums. Conducting a referendum may be quite different from conducting an election. Instead of being asked to choose between individuals and parties, the electorate is asked to choose among two or more ideas—unfamiliar ideas for many.

Issues of framing the question are addressed elsewhere. (See part 3.5.) We should note here that sometimes this is the responsibility of the electoral management body itself, and sometimes of other bodies.