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From Nominal to Substantive Democracy: The Role and Design of Election Management Bodies

Author: Michael Trebilcock, Poorvi Chitalkar
Date: 2009
Size: 34 pages (318 KB)

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Summary

Can effective election administration though Election Management Bodies (EMBs) contribute to the development of substantive democracy? This article from the Law and Development Review examines evidence from elections in Asia, Latin America, Africa, Central and Eastern Europe, and the Middle East. Independent and impartial EMBs vested with broad mandates have succeeded not only in conducting free and fair elections but also in enhancing respect for the electoral process.

In contrast with the 39 democracies existing in 1974, more than 121 countries today declare themselves as democratic. However, achieving substantive democracy is difficult in low-income and transitional countries where the election process may be neither free nor fair. Many transitional elections are characterised by issues such as vote rigging, irregular observance of election law, and repression or violence toward minorities and opposition parties. Indeed, studies indicate that democracy in low-income countries is connected to greater political violence.

But what makes elections truly free and fair? To be considered free and fair by international standards, election procedures must meet the criteria laid out in national law, international law (including international humanitarian law documents) and international norms. This includes election procedures that are not hampered by military, police or court discrimination against candidates, independent monitoring and vote counting and transparent procedures for resolving complaints and disputes.

Most importantly, an independent body or EMB must carry out electoral administration. Currently, 53 percent of countries conduct elections through independent commissions. Successful EMBs adhere to four benchmarks concerning independence, composition, broad mandate and funding independence. EMBs have two major tasks: organising and managing elections and promoting the confidence of political parties and voters in the electoral process.

Across the five regions studied, several trends supported the claim that EMBs are vital to ensuring full democratisation. Most notably: 

• EMBs are crucial to electoral processes in that they ensure legitimacy and transparency of procedures.
• Effectiveness of EMBs depends on structure, separation from government, and a broad mandate. The most important of these criteria is separation from government, which ensures that elections do not mask a leadership change thorough government appointment.
• Effective electoral institutions can catalyse democratisation by increasing the faith of citizens in democratic processes. 

Policymakers striving towards a substantive democracy must provide support to the efforts of EMBs. These should allow EMBs:

• A legal mandate for independence. Codification of EMB independence and election procedure in the constitution and legislation helps to prevent action by would-be manipulators.
• The ability to consolidate financial resources for electoral administration. Successful examples of this include a fund managed by the legislature and audited by an independent body in order to insure funding independence.
• A broad mandate that allows EMBs to oversee all aspects of election administration with minimal government participation.

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Source: Trebilcock, M. and Chitalkar, P., 2009, 'From Nominal to Substantive Democracy: The Role and Design of Election Management Bodies', The Law and Development Review, vol. 2, no. 1, pp 191-224
Author: Michael Trebilcock , michael.trebilcock[at]utoronto.ca