Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies

Elec tor al Quotas and the Challeng

es of Democr A NORDEM SPECIAL REPORT 2011 a tic T r ansition in C onflic t -Ridden Societies A

N O R

D Nils A. Butenschøn and Kåre Vollan E M

With contributions by Bjørn Erik Rasch and Tonje Merete Viken S P E C I A L

R E P O R T

2 0 1 1

The Norwegian Centre for Human Rights Nils A. Butenschøn and Kåre Vollan: Electoral Quotas and the Challenges of Democratic Transition in Conflict-RiddenSocieties A NORDEM Special Report Editor: Siri Skåre

Copyright: Norwegian Centre for Human Rights, (NCHR) The Norwegian Resource Bank for Democracy and Human Rights (NORDEM) Nils A. Butenschøn and Kåre Vollan

Quotations and extracts from this report may be reprinted by permission and if accompanied by source information. This report is published electronically in a pdf version on the NCHR web pages: http://www.jus.uio.no/smr/english/about/programmes/nordem/

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Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies

Nils A. Butenschøn and Kåre Vollan

With contributions by Bjørn Erik Rasch and Tonje Merete Viken

September 2011

Contents 1: Introduction ...... 6

1.1 The Purpose of the Study ...... 6

1.2 The Case Studies ...... 9

1.3 Scope and Limitations ...... 10

2: Power-Sharing Arrangements: Representation and Decision-Making Rules ...... 14

2.1 Democratic Institutions in Deeply Divided Societies ...... 14

2.2 Power-Sharing through Representation and Decision Rules ...... 17

2.3 The Systems of Representation ...... 19

2.4 Methods for Securing Group Representation ...... 25

2.5 Power-Sharing – Decision-Making Procedures ...... 34

3: Broad Overview of Systems ...... 37

3.1 The Americas ...... 37

3.2 Asia-Pacific ...... 40

3.3 Central Eastern Europe ...... 52

3.4 Middle East and North Africa ...... 59

3.5 Sub-Saharan Africa ...... 63

3.6 Western Europe ...... 79

4: Case Study Lebanon ...... 86

4.1 Introduction ...... 86

4.2 Historical and Political Background ...... 86

4.3 Building Democracy in Lebanon...... 94

4.4 The Quota Arrangements and Other Power-Sharing Elements ...... 99

4.5 The Field Study ...... 106

4.6 Main Conclusions and Thoughts for the Future ...... 108

5: Case Study Nepal ...... 110

5.1 Historical and Political Background ...... 110

5.2 The Quota Arrangements and Other Power-Sharing Elements ...... 133

5.3 The Intended Effects – a Discussion ...... 139

5.4 Some Side Effects of the 2008 System ...... 144

5.5 The Field Study ...... 144

5.6 Conclusions and Thoughts for the Future ...... 148

6. Case Study Bosnia and Herzegovina ...... 152

6.1 Historical and Political Background ...... 152

6.2 The Quota Arrangements and Other Power-sharing Elements ...... 159

6.3 The Field Study ...... 169

6.4 Main Conclusions and Thoughts for the Future ...... 171

7: Conclusions and Recommendations ...... 175

7.1 Conflicts and Tools ...... 175

7.2 Quotas and Veto Powers in Conflict-Ridden Societies. Main Findings ...... 175

7.3 Methods for Group Representation ...... 179

7.4. What May Work in Conflict Situations? ...... 192

7.5 The Quota Tool Box ...... 197

7.6 A Feature of Representative Systems ...... 201

Appendices ...... 202

A: A Method for Quotas on the Total Result in a List PR System ...... 202

B: Abbreviations of Names of Electoral Systems ...... 207

References ...... 208

Preface Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies is a project organised under NORDEM, the Norwegian Resource Bank for Democracy and Human Rights at the Norwegian Centre for Human Rights, University of Oslo. The basic purpose is to contribute to the filling in of what we consider to be a gap in our understanding of the significance of the type and design chosen for electoral laws and systems in critical stages of political transition from open conflict to democratic stability in conflict-ridden societies. We look particularly into cases of conflicts between socio-cultural groups mobilised along ethnic, religious, and linguistic cleavages.

This report addresses an aspect of a classical theme in political analysis: How can designing a political system contribute to overcoming deep-seated conflicts in society? Peace agreements after civil wars should seek to overcome the mistrust and enmity between the groups, possibly overcoming the conflict-producing cleavage structure itself. The assumption is that democracy and stability are strengthened if citizens see their interests in terms of socio- economic factors across cultural divides rather than in terms of socio-cultural identities. The recommendation would therefore be to encourage types of political representation that criss- cross cultural divides in society. On the other hand, a democratic system should also reflect real opinions and interests in society as the voters themselves define them. We observe that in most post-conflict societies, the political system tends to be organised along the ethnic divides that defined the previous conflict. The dilemma then is how a democratic principle of representation that tends to reflect group-based identities can contribute to overcoming group- based conflict dynamics. This is where electoral quotas come into the picture: What are the effects of introducing quotas? Will they contribute to democratic stability or rather preserve and strengthen the cleavages that led to open conflict in the first place?

In addition to the three cases of Lebanon, Bosnia and Herzegovina and Nepal, the report includes a broad overview of all relevant systems in the world where such quotas are applied (Chapter 3). We believe that this has a value in its own right as a catalogue of applied quota systems. It furthermore gives a valuable empirical context for the comparative discussion and the “tool box” developed in the concluding chapter. Researcher Tonje Merete Viken wrote a draft version of Chapter 3 and collected the data for that chapter. She also drafted part of the chapter on Bosnia and Herzegovina. Professor Bjørn Erik Rasch, Department of Political Science, University of Oslo, has commented throughout the process on all parts of the report and contributed particularly to Chapter 2. Siri Skåre, Director of International Programmes at the Norwegian Centre for Human Rights, has had the administrative responsibility.

We would like to thank the Norwegian Ministry of Foreign Affairs for their generous support making this study possible and for their patience regarding the completion of the final product. We are also grateful for the invaluable support we received by Norwegian embassy personnel in conducting our fieldwork for the case studies.

Oslo, September 2011, Nils Butenschøn and Kåre Vollan

1: Introduction 1.1 The Purpose of the Study Within the tradition of democratic theory, models of power-sharing can be considered as modifications of the classical liberal principle of 'one person-one vote'. For a variety of reasons, this principle of organising a political order – when strictly applied in national elections – does not always produce institutional outcomes that give every group of citizens adequate protection of their core rights and interests or a fair say in the running of their country. This is because political institutions composed on the basis of aggregate individual votes do not always meet the requirements for reconciling or managing conflicts in societies that are collective in nature. The democratic dilemma that this situation creates is particularly typical of deeply divided societies. Minorities who are constantly and systematically outvoted or otherwise marginalised in the political process might easily feel trapped in a position of democratic deficiency, lose confidence in the political system, and seek non-democratic ways in the struggle for their interests. This is why models of group-based power-sharing are frequently being discussed as ways in which new democratic institutions can replace or be introduced as complementary to existing ones in conflict-ridden societies.

In this way, electoral laws and decision- making procedures can be critical factors in peace processes and mechanisms of transitional justice from open conflict to democratic stability. This study focuses on the significance and application of such factors and mechanisms as they can be observed both in the form of an overview of global trends and in three countries chosen as cases for more detailed analysis: Nepal, Bosnia and Herzegovina, and Lebanon.

On the global scale, we find that countries apply a whole range of constitutional provisions and other formal or informal arrangements and rules meant to secure or facilitate the politics of compromise between groups. Strengthening political stability within the existing constitutional order is normally the aim of such arrangements. They can be found at different institutional levels in a state, and they vary in nature according to the underlying tensions that they seek to address. States with deep-seated geographical divisions will, for example, tend to be organised as federations where the constitutive parts are equally represented in a national decision-making body (i.e., a senate) with qualified veto powers, irrespective of the relative demographic strength of each part. In other situations, the purpose of power-sharing mechanisms can be to accommodate demands for minority rights or to define modes of power distribution between multiple groups of varying sizes within a unitary state. Arendt Lijphart, in one of his well-known studies of power-sharing, explains:

Especially in plural societies – societies that are sharply divided along religious, ideological, linguistic, cultural, ethnic, or racial lines into virtually separate sub- societies with their own political parties, interest groups, and media or communication – the flexibility necessary for majoritarian democracy is absent. Under these conditions, majority rule is not only undemocratic but also dangerous, because

minorities that are continually denied access to power will feel excluded and discriminated against and will lose their allegiance to the regime.1

The use of quota systems, reserved seats and other deviations from the 'one person-one vote' principle might be to secure a proportional representation of votes that would otherwise not be realised. But it might also be used to create disproportional representation (positive discrimination) if that is considered conducive to stability in the society at large. Such arrangements are typically introduced as negotiated outcomes of protracted conflicts between communal groups where the dominating dividing cleavage is ethnic, religious or linguistic, or a combination of the three. Power-sharing along such lines is often described as ‘consociational’ and the corresponding political system as ‘consociational democracy’, a term coined by Arend Lijphart. Lijpart’s work has had a significant impact on contemporary discussions among academics and electoral experts on the questions of power-sharing as a solution to democratic dilemmas in deeply divided societies.

While there might be many good reasons to consider the use of consociational principles in transitions from civil war or authoritarian rule to more democratic governance, the effectiveness of such an arrangement will be contingent on the specific conditions in each case. The most salient factor is naturally whether or not the dominant parties are ready to accept power-sharing and respect agreements to that regard. This, furthermore, reflects the level of mutual trust and polarisation between the groups. In addition, several structural factors will influence the outcome, such as number and degree of contending parties, the balance of power between them, their geographic distribution, the general level of economic and political development in society and the distribution of such resources.

It is also important to pay critical attention to the risks involved in establishing institutions of power-sharing for the sustainability of democratic politics. The most obvious of these risks is that power-sharing arrangements can be very difficult to undo if introduced in the first place, even if the conditions and political dynamics that underpinned the original agreement have changed. A political system based on consociational power-sharing has built-in mechanisms that normally give the parties formal or de facto veto power over constitutional changes or reforms that would substantially reduce their relative power in the system. What is often introduced as a transitional arrangement to facilitate a political agreement in a situation of serious conflict might consequently become a permanent mode for distributing powerful positions in society. On the one hand, such arrangements give the parties a large margin of flexibility in inter-group negotiations, since the central government can only exist as long as the most powerful groups are able to find common ground. This might be conducive for keeping peace and political stability. However, this modus operandi of the system tends to empty the formal political institutions of decision-making power, leaving it in the hands of informal power structures that are controlled by the most important groups. This arrangement is not only a democratic problem — it makes it almost impossible to reform the political system in directions that are considered unacceptable to at least one influential group commanding a veto power.

1 Lijphart 1984:22-23.

An existing system of power-sharing that allows for flexibility and pragmatism in decision- making processes between the parties in power might be very inflexible in other respects, particularly when it comes to adapting to or addressing new conditions and challenges to the established power-sharing arrangement. The arrangement itself will have the probable effect of “cementing” or “freezing” old cleavages in the society that would otherwise dissolve under the influence of economic or socio-cultural developments. The obvious risk in the long run is that inflexible political institutions will stand in the way of dynamic societal developments, which will create mounting discontent, reproduce old conflicts, and undermine the stability that these institutions were meant to secure.

An important challenge to policymakers and advisors in conflict-ridden societies seeking a peaceful and democratic future would therefore be to strike a balance, on the one hand, between building institutional guarantees within which every group and every individual within the group can feel secure and have their basic rights protected. On the other hand, such policymakers and advisors must remain flexible in the face of the unpredictability of democratic politics based on decision-making procedures that presuppose a certain level of mutual trust among the citizens.

In the following, we will study the mechanisms that are actually being used for representation and decision-making in pre- and post-conflict situations, with a particular focus on arrangements that seem to have favourable effects on democratic stability. First, we will present the discourse among academics and experts on theoretical questions relevant to this study (Chapter 2). This will be followed by an overview of mechanisms in use across the world (Chapter 3). Chapters 4 to 6 contain three case studies with detailed assessments of the electoral arrangements and their effects, and Chapter 7 concludes the study, giving recommendations on the basis of what we consider to be the lessons learned so far.

We enter this study with certain expectations that we want to elaborate further. On both representation and decision-making rules, it is likely that there are methods that vary in their efficiency from greater to lesser, and that they offer various degrees of conflict resolution in the short- and long-term perspectives. Not least, the long-term incentives for reconciliation will be discussed. In particular, the following questions will be studied:

 To what extent is representation by a representative group in parliament able (or sufficient) to reduce conflict?  To what extent are formal power-sharing agreements, including veto powers, necessary to establish peace?  To what extent must the group elect its own representatives (as opposed to be quotas on regular party elections) to be able to reduce conflict?  What are the effects of these arrangements (in particular power-sharing) on efficiency and the ability to govern?  What are the long-term effects of these arrangements? Do they deepen the divide between groups or do they contribute to normalising them?

1.2 The Case Studies

1.2.1 Introduction The three case studies include countries that have recently emerged from armed internal conflicts: Lebanon, Nepal, and Bosnia and Herzegovina. The nature of the conflicts varies, as does the degree of stability established after the conflict. Both Bosnia and Herzegovina and Lebanon have introduced a number of arrangements supporting power-sharing between earlier combatants. In Nepal, the constitution currently being drafted is expected to bring forward quota rules ensuring that the social and ethnic groups previously excluded from political life can be properly represented.

The case studies were designed to allow for a more thorough discussion of the effects of introducing certain electoral mechanisms in countries haunted by ethnic or confessional (i.e. religious) conflicts. The purpose is to assess whether the arrangements work as intended and if there are side effects, expected or unexpected, which could have been avoided if they had been considered at an early stage.

1.2.2 Methodology for the Case Studies Each case study consists of an overview of the recent history of the country and a detailed analysis of the electoral system and other power-sharing elements, and the field study that primarily discusses the current challenges as seen by respondents. The field study is based upon interviews with a selection of stakeholders in the country. The purpose of the interviews is partly to get a first-hand view of the intentions behind the relevant power- sharing arrangements, then to make an assessment of how they have worked out in practice, both in terms of providing a safe and peaceful environment and in providing a functional state, and finally to find out whether stakeholders are looking for changes or how they intend to assess the development ahead.

Respondents were selected according to a number of criteria, the most obvious being prominent representatives of the previous conflicting parties. In addition, we interviewed representatives of groups that were being marginalised by the peace agreement (e.g. Romas in Bosnia and Herzegovina), politicians, NGO representatives, academics, etc. In sum, a selection among the following — partly overlapping — groups were interviewed:

 Leaders of the parties in conflict  Political leaders at large within and outside the parliament  Leaders of religious, ethnic, linguistic, social groups whenever relevant  Representatives of possible marginalised groups  Representatives of the government  Representatives of the international community (and in Bosnia and Herzegovina in particular the office of the High Representative, OSCE and Embassies)  Representatives of local governments  Opinion leaders  Think tanks and institutes

To work as an aide memoire during the interviews, a checklist was prepared. The intention of this was not to list a strict questionnaire but to assist in ensuring that we covered the topics relevant for the person being interviewed. The interviews were recorded according to a thematic structure defined. In addition to these formal interviews, a number of meetings of a more informal nature were conducted.

We recorded fourteen interviews in Bosnia and Herzegovina, ten in Lebanon and twelve in Nepal. It should be noted that the countries were chosen partly based upon two of the researchers’ prior thorough knowledge of the countries. The interviews could not, in themselves, provide for a representative selection of respondents from all relevant parts of society. However, with the researchers' background knowledge, the interviews provided for a very useful update on the current status in the country and were an invaluable addition to the facts that were already available to the team.

It should also be noted that ten years ago one of the interviewers2 played an active role as an advisor in Bosnia and Herzegovina on electoral issues and is currently active in an advisory role on the same issues in Nepal. In Nepal, it was made very clear to the interviewees that the purpose of the interview was for the respondents to come up with their own views and not to discuss various alternatives.

The number of interviewees is too low to be subject to statistical analysis and it is the total amount of information we have about the countries that forms the basis for our conclusions and recommendations. Without the researchers' prior knowledge, much of the information collected might have been misinterpreted and too much emphasis could have been put on statements of individuals which were not really representative of the views of the group.

1.3 Scope and Limitations

1.3.1 General The study includes a review of all countries in the world applying quotas to the election of parliament. When describing a country, other elements of power-sharing, such as devolution of powers and decision rules, are included, but countries are not included if they do not also have electoral quotas. The quota arrangements are described regardless of whether their purpose is to reconcile after a war or if it is merely to include groups that the electoral system would otherwise exclude. Countries that have only gender quotas are not included, however, if the country is included in the study for other qualifying reasons, their gender quotas are also described.

In addition, three countries — Lebanon, Bosnia and Herzegovina and Nepal — have been selected for case studies. In these three case studies, the relationship between representation, decision-making rules and devolution of powers is of central concern.

In the end, the purpose of this study is to present a toolbox of electoral quotas that may be applied in certain situations as well as an analysis of their pros and cons. Quota rules have

2 Kåre Vollan

11 aspects that are technically complicated and the alternatives may be of interest in a post- conflict situation, even if they, up to this point, have been applied in a context that differs from the present examples.

Three kinds of sources have been applied in compiling data for this study: To the extent possible within the resources available, we have used primary sources as bases for empirical presentations, including the overview of global patterns. Interviews with representatives of conflicting parties, as well as country experts, were conducted in order to strengthen the analysis of the three selected cases. A broad range of academic works were also consulted in developing the theoretical and analytical perspectives. In addition, the authors have considerable experiences within this field of study, both as researchers and experts in different countries for governmental and non-governmental organisations.

1.3.2 The Broad Overview The broad overview of systems is aimed at giving a comprehensive overview of ethnic, religious and social quotas in parliaments around the world. The overview will be used as a source of information on what systems of group representation are actually in use for whatever purpose, even if they have not originated from a conflict situation. This will be useful when a toolbox of systems is discussed in the last part of the report. At the end of each regional presentation, those systems that are being used particularly for the reduction of conflict will be discussed.

In Chapter 2, power-sharing arrangements are defined as combinations of the following elements:

1. Grand Coalitions 2. Proportionality or representation of groups 3. Devolution of powers 4. Decision-making rules designed to protect groups.

In the broad overview, those countries that have predefined rules for representation of groups have been selected. For these countries, decision-making rules, grand coalitions and gender quotas are also described. Devolution of powers is described for countries selected due to point 2, above, by classifying them as federal or unitary states. Countries with conflicts that are considered to be reduced only by devolution of powers or decision-making rules (including grand coalitions) are not covered in this part unless they also have particular representation of groups according to point 2, above.

It should be noted that parliamentary quotas are in themselves only one of several possible measures to ensure representation of selected groups in state affairs. Quota mechanisms can also apply to the executive, the courts and bureaucracy and they may apply exclusively to the local level of governments. In several countries, requirements for nominations (such as the list composition) are covered in parties’ by-laws. Such countries have not been included here. Countries where group representation is secured solely by appointments are not included even

12 though appointments are described where they come in addition to elected group representation.

Types of Groups

We have already pointed to the distinction between small and large minorities. The concept of ‘group’ may be further elaborated. Groups protected in constitutions and election laws are broadly defined by ethnic, linguistic or religious features. While a rough categorization is applied here, these distinctions are blurred and overlapping. Are Bosniacs, for instance, a religious or ethnic group? While Bosniacs are Moslem by definition, members of the Bosniac group will not necessarily accept that religion is a constituting element of their group identity.

Other types of groups that enjoy quota protection can be professional groups, like workers and farmers in Egypt. Social factors may also trigger protection. Examples are the quotas for youth and disabled (Uganda and Kenya). Protection of all these groups will be discussed here. Gender quotas will be described when other mechanisms of group protection are also present.

Selection of Countries

Countries with quotas have been identified at the outset by use of the Parline database of the Inter-Parliamentary Union and other secondary sources. The information has been verified by the countries’ legislation. Further reading and research has added additional countries. It should be noted that electoral design is an ongoing process all over the world, and a study such as this will inevitably be outdated. This does not, however, lower the value of such a thorough compilation of available legal tools to ensure group representation at a given time in history.

Countries are grouped and presented alphabetically according to the regional breakdown of Freedom House. Countries that are ranked as ‘not free’ on the 2011 Freedom in the World index are only summarily described in the country tables but not in the narrative following the table. Countries that have devolution of powers and relevant decision-making rules in response to an ethnic, religious or social conflict, in addition to group representation, will be discussed in some detail.

Sources

To the greatest extent possible, the quota mechanisms themselves are described on the basis of primary sources, namely, the constitutions and electoral laws of the selected countries. It should be noted that the quality of legislation and their translation into languages these authors may command may vary, and electoral laws may be incomplete, inconsistent, or may even contradict the constitution. Furthermore, the election laws may consist of several pieces of legislation, and it has not always been possible to obtain all the relevant documents. In such rare cases, we have consulted secondary sources to answer questions concerning voter registries, voting rights, etc.

Country profiles

Each country profile contains a thorough presentation of the quota mechanism. In addition, the countries’ political systems are briefly described, with regard to the federal or unitary nature of the state, form of government, and decision-making procedures whenever these are related to the quota rules. Focus is on the technical aspects of the quota. It does not fall within the scope of this part of the study to measure to what extent the quotas affect informal politics.

Such a broad comparative study does not allow for extensive studies of each country. However, each country profile contains a brief background outlining the main conflicts in the country.3 The purpose is to broaden the understanding of the quota systems and the political context in which they work (or don’t work).

For the sake of readability, selected countries are presented alphabetically and grouped by continent or parts of continents. Some of the quota mechanisms represent differing national solutions to cross-border conflicts, such as Hutus and Tutsis in Rwanda and Burundi, and some of the former Yugoslav republics. This gives some advantage to the subdivision. However, this breakdown is primarily for pedagogical reasons, and we do not attempt to draw a causal line from geographical situation to the quota systems that are applied in each individual country. Some rough patterns may be distinguished, namely, the relatively extensive use of linguistic quotas in Europe, and social quotas in Africa. We aim to describe, not to explain, such patterns wherever they occur in our material.

3 In addition, Chapter 4 contains case studies of three conflict-ridden countries with quota systems.

2: Power-Sharing Arrangements: Representation and Decision- Making Rules 2.1 Democratic Institutions in Deeply Divided Societies Every society has divisions between groups of people, reflecting differences in living conditions, religion, education, culture, and so on. Some divisions are easier to handle than others, for instance, because they do not concern deep-rooted values and identities. Societies are often described as deeply divided when cleavages are particularly intense, and they run along ethnic, religious or nationalistic lines. Ethnicity is a contested concept, but it is usually defined broadly in terms of shared beliefs of common ancestry, shared customs and cultural features, common language, and the like.4 The configuration of conflicting groups – whether divisions rest on ethnicity, culture, religion or other factors – may vary a lot: A majority could dominate minorities, a minority group could dominate other parts of the society (the majority), a balanced configuration with a relatively limited number of groups is a possibility (bipolar or multipolar conflict), as well as a highly fragmented situation with no dominant group at all.5 Lijphart used the term plural society to describe societies with deep and lasting segmental cleavages of a “religious, ideological, linguistic, regional, cultural, racial, or ethnic nature.”6 Rabushka and Shepsle use the term more narrowly: A plural society is culturally diverse, and the feature that distinguishes it from a pluralistic society is that politics almost exclusively follow ethnic cleavages.7

Deeply divided multi-ethnic societies may choose different models for their state structure.8 The classical liberal state puts emphasis on the individual and gives equal rights and opportunities to each individual, regardless of what segment of society the individual belongs to. The problem with this model in deeply divided societies is that there may be a long distance from the theoretical equality to the actual possibility for all to exercise their right in full. A different model is the “consociational state” or a state based on forms of power- sharing between groups. Power-sharing may be by tradition or by design or both. In deeply divided societies, power-sharing may be a necessary condition for a democratic system to work and even for civil peace. Power-sharing may not be written into the constitution but rather be a strong element of the political tradition (like grand coalitions in Switzerland). In

4 After discussing conceptual issues, Fearon 2003 presents data on ethnic structure in 160 countries in the early 1990s. More than 800 ethnic groups are identified. See also Chirot 2009.

5 Rabushka and Shepsle (1972) thus distinguish between four types of deeply divided societies: Fragmented, balanced, dominant minority and dominant majority. Each configuration has its own challenges.

6 Lijphart 1977: 3-4. The term “segmental cleavages” was taken from Eckstein’s 1966 study of division and cohesion in Norway.

7 Rabushka and Shepsle 1972: 20-21

8 For an overview, see Lijphart 1977, 2008, Sisk 2006 and Reynolds 2011.

15 some cases, power-sharing arrangements are vital elements of formal peace agreements and are laid out in detail (for example, the Dayton Agreement in Bosnia and Herzegovina).

Power-sharing may take different forms, and four basic characteristics are often accentuated. Together, they define consociational democracy, and each of them implies some kind of deviation from (pure) majority rule and the principle of ‘one person-one vote’. Grand coalition is the primary feature of consociational government, but broad-based coalitions are complemented by the following three secondary instruments:9

1. Grand Coalition. Power-sharing can take the form of broad-based governmental coalitions. This implies that all the main political forces are invited into central decision-making bodies, thereby ensuring that no significant minority is permanently excluded from exercising political power. In parliamentary systems, grand coalition may mean that the cabinet includes the political leaders of all significant groups or segments of the society. In systems without an executive body accountable to the parliament (e.g. presidential ones), a variety of arrangement are available to serve the same purpose of inclusive decision-making. Grand coalitions may blur the distinctions between government and opposition or leave the country without a formal opposition. In turn, it could also limit political contestation.

2. Decision-making rules: Minority veto or mutual veto. Minority groups may not only be included and given participation rights, they may also be granted veto power (formally or informally), in particular with regard to vital interests. For instance, the veto option guarantees that a group will not be outvoted when its autonomy is at stake. Alternatively, the decision-making rules may be designed to protect a minority from changes by the majority by qualified or double majorities. Super-majority requirements and the like are, of course, a weaker type of minority protection than veto power. In any case, consensus may be the underlying goal.

3. Proportionality. Power-sharing implies that arrangements for representation are utilized at every level of political life – nationally, regionally and locally. The purpose is to give (almost) every group in society access to decision-making bodies according to their overall size, and to allocate scarce financial resources in the form of state subsidies in roughly the same way.10 The electoral system is the instrument by which votes are translated into seats in assemblies, and its design is crucial for how – and to what extent – segments or (minority) groups are represented. Below, we will have a lot more to say about electoral systems and methods of securing minority representation.

4. Segmental group autonomy or federalism. Segments of society (here called groups) may have rights to a well-defined autonomy. Devolution of powers may take care of this aspect. In federal states, this may be a fundamental condition. If the states are

9 See Chapter 2 in Lijphart 1977.

10 Lijphart 1977: 38-41.

drawn up along linguistic or ethnic lines, the power-sharing is protected by the definition of powers of the states versus the centre. Other forms of autonomy for groups may also be envisaged, such as giving ethnic groups the right to their own elected bodies with advisory or even decision-making authority (e.g. Norwegian Sámi parliament).

Some of the principles are interrelated, and in practice, they often occur together. There is no “one size fits all” solution for power-sharing in deeply divided societies. The tradition for consensus policy may be very strong in some countries whereas in other countries the majority will use their powers regardless of strong opposition from minority groups. In this report, we will assess some elements of power-sharing and the effects of formalising the rules. In particular, the representation of groups and the decision-making aspects of such arrangements will be covered (i.e. characteristics 2 and 3, above). Devolution of powers will be discussed only when necessary for the analysis of the primary aspects of the report. As Lijphart emphasises, the grand coalition is a superior principle of consociational democracy, but will only be discussed more indirectly in the sequel.

Several arguments against consociationalism have been voiced over the years. It has been criticized for relying too much on elite accommodation. It has been argued that there is a problem of elite initiated conflict, as political leaders of the various segments may increase their bargaining power vis-à-vis other groups by mobilizing their own group on sectarian grounds.11 A related critique says that consociationalism is problematic in deeply divided societies because it rests on constraints and restrictions against immoderate politics via veto power, instead of incentives for actors to cooperate across segments.12 In short, consociationalism may provide fertile grounds for conflict entrepreneurs, whose powerbase rests on continued conflict, rather than actors of reconciliation. Furthermore, the tendency towards non-democratic decision-making, in the sense of not honouring majority rule and the principle of ‘one person-one vote’, has been emphasized by many.13 Similarly, inefficiency and the risk of deadlock has been an important part of the criticism. If a political system is incapable of producing necessary decisions because of a stalemate, the legitimacy of the system is potentially threatened. Finally, consociationalism has been criticised for facilitating policies of discrimination, for example, related to the tendency of powerful minorities to exploit the system of veto power to protect undemocratic privileges. Such problems are particularly evident in situations of extreme power asymmetry between the groups because the power-sharing institutions, set up on the basis of negotiations between the constituent groups in the society, will tend to reflect the imbalances between them and thus build discriminatory practices into the emerging political system. Injustices will consequently be institutionalised, not abolished.14 Lijphart’s suggestions for a system of power-sharing in

11 See, in particular, Tsebelis 1990.

12 Here, work by Horowitz (e.g. 1985, 1990) is relevant.

13 See, for example, Barry 1975.

14 See Butenschøn, 1985 and 2006.

South Africa in the mid-1980’s (i.e., before the end of Apartheid) that would have preserved the White community as a separate and relatively privileged political community is an example, and was heavily criticised by anti-Apartheid activists and academics at the time.15

Our main reason for focusing on power-sharing arrangements is their prospect for preventing or ending violent conflicts. Power-sharing may also be used to secure civil peace even if there is no immediate danger of conflict. We will concentrate on consociational arrangements (related to representation and decision-making rules) that have a peace-keeping justification. There is a growing body of academic literature that studies the relationship between power- sharing and post-conflict peace, and several have found a positive association.16

Even in a structure based upon power-sharing between groups, the long-term goal may be the development into a liberal state where group identity is less important. In the following discussion, we will therefore also study the long-term effects of formal arrangements for power-sharing and to what extent they are self-magnifying (deepening conflict and the needs for measures) or if they are giving incentives for more equality.

2.2 Power-Sharing through Representation and Decision Rules Special representation for groups may be introduced for different reasons. Our focus is on measures that may reduce conflict at its outset or on arrangements that may reduce the conflict level after an armed conflict. Representation in elected bodies is clearly only one of many such measures and a peace agreement will often have elements of power-sharing as an extension to group representation.

Power-sharing agreements are agreements between groups that regulate the decision-making, independent of the election result. Therefore, it deviates from pure majority rule. The groups of the agreement may be represented according to an election result but the power is shared between the groups according to the agreement, not the balance between parties as a result of an election.

A power-sharing agreement may regulate the composition of the executive or parliament or it may regulate the decision-making process. An example of the first is the presidency of Bosnia and Herzegovina, where each of the three war-faring parties from 1992 to 1995 has one member in the presidency and an equal number of members in the upper house of parliament. In Sudan, until the secession of South Sudan in 2011, the president and the first vice president need to come from different groups (north and south).

The rules for decision-making may vary from a requirement for a qualified majority which guarantees that one group alone cannot pass a decision without at least some support of the other group(s) (Burundi), to firm veto powers of a group over all or some decisions (Bosnia and Herzegovina). In a way, all deviations from a strict majority rule may be seen as a kind of power-sharing agreement. When a qualified majority is needed to change a constitution, it

15 See Lijphart 1985. For a critical discussion of Lijphart, see Jung and Shapiro 1995.

16 See Hartzell and Hoodie 2003, Hartzell et al. 2001 and Binningsbø 2006 for further references.

18 is a measure to ensure that a small simple majority cannot change fundamental rights or the rules of the game.17 The same is the case for requirements for double majorities as required for changes to the US constitution. A much stronger form is where a minority group can veto certain decisions. If a decision concerns fundamental group rights or division of powers between bodies or units, they may not have a very significant effect on the day-to-day government of the country but if they can be applied to large number of decisions such as in Bosnia and Herzegovina, they may represent a hurdle to the functioning of the state as such.18

Group representation in the form of electoral quotas may be introduced alone or together with more extensive power-sharing agreements. They may be introduced only to make a parliament more representative (or to over-represent a group) along an ethnic, linguistic or social dimension in addition to the political one. The purpose can be to broaden the representation and to make sure that the groups have their voices heard before decisions are made. Section 2.4, below, will provide an overview of electoral quotas regardless of whether the purpose is to underpin a peace agreement, prevent an armed conflict or simply to provide broader representation in the elected body.19 Even if an arrangement is used only for representation, the same method may have a conflict-prevention effect in another country.

In the following, we will cover both direct and indirect elections. Systems of representation may be the same in the two cases but, in an indirect election, the inequality is often established in the number of representatives of each group in the upper house of parliament rather by the electoral system.

It is useful to distinguish between small and large minorities, and how dispersed they are geographically, although it is not always possible to draw a sharp line between them.20

A small minority will typically have a strength of a few percent of the population (for example, less than ten), but their characteristics are such that they may need special protection in such areas as the use of language, the promotion of culture, etc. A group which in the country as a whole is a large minority or even a majority, may in some respects constitute a small minority and need corresponding protection. Except when a small minority is geographically concentrated, it will typically not be involved in civil wars and other major conflicts, or it will at least not be among the principal parties to such conflicts.

A large minority runs the risk of losing all influence by systematically being voted down by the majority or a coalition of other large minorities. Protection against this would typically take the form of balancing the group interest within the organization of the state, or by introducing an electoral system that secures a balance between competing groups. To use

17 On constitutional amendment procedures, see Rasch and Congleton 2006.

18 A thorough and sophisticated analysis of the properties of relevant decision-making rules can be found in McGann 2006.

19 A discussion of different types of quotas, see Htun 2004 and Schwindt-Bayer 2009.

20 This and the next paragraph are taken directly from Blanc, Hylland and Vollan, 2006: 3-4.

Bosnia and Herzegovina as an example, the main groups involved in the civil war – Bosniacs, Croats and Serbs – are large minorities in the country as a whole, and each of them may be a majority in certain regions. On the other hand, Romas, Slovenians, Montenegrins, etc. are small minorities.

The purpose of defining small and large groups is to be able to differentiate between groups that could be parties to a peace agreement and those groups that should be guaranteed representation for other reasons. This division is obviously not sharp. Even small groups may use arms in the end to protect their interests if the majority does not respect what they regard as their fundamental rights. In our context, most of the groups in conflict will be ‘large’ but there may be exceptions that, in such cases, will also be covered.

2.3 The Systems of Representation Elections are a central ingredient in the system of representation in modern democracies. They are conducted by a more or less complex set of rules and procedures; electoral systems can be “defined as those rules which govern the processes by which preferences are articulated as votes and by which these votes are translated into the election of decision- makers.”21 Electoral systems are used for many purposes, but what concerns us in this report are primarily legislative elections at the level of nation-states (and not, for instance, presidential elections). There is a broad family of such systems ranging from plurality/majority-based systems, which normally produce an overrepresentation of the largest party to fully proportional systems. It is also possible to design systems that secure overrepresentation of small entities, which is particularly relevant in processes of apportionment (e.g. distribution of seats on constituencies).22 Electoral systems have different qualities regarding group representation and some may be more suited in post-conflict situations than others. In this section, we will first list some criteria for good electoral systems and then give a categorisation of systems that will be used in this report.

2.3.1. Criteria for good systems of representation Blanc, Hylland and Vollan define the following criteria for good systems of representation:23

Even though a large variety of systems are being used in established democracies, some general criteria for good electoral systems can be defined. The weight put on each of them, however, would vary, among experts as well as among political decision makers.

We list some criteria that electoral systems may meet, and discuss briefly some aspects of each. Most of the criteria apply to elections generally, not just to elections in post-conflict situations, but some of them are particularly important in such situations.

21 Blais 1988: 100.

22 Balinski and Young 2001.

23 Blanc, Hylland and Vollan 2006: section 7.4.

Create representative assemblies. In simple terms, this criterion means that a party running in an election shall get a number of seats in the assembly that corresponds approximately to its proportional share of the vote. This is often regarded as the overriding criterion for a fair electoral system, and it is the most important justification for proportional elections. An elected assembly should reflect the political composition of the electorate, as well as other aspects such as geography, gender, etc. The decisions made by the assembly should be representative of the opinions of the electorate.

Support accountability of the elected members. Another important aspect of elections is the relationship between the electorate and the elected member of the assembly. Elections in single-member constituencies are often justified by the need for strong accountability, since a comparatively small electorate will elect its own member of parliament and maintain direct contact with the elected member.

Support stable governments. It has been argued that a fully proportional electoral system may result in an assembly split into a large number of parties, which in turn will lead to unstable coalition governments. The empirical data does not necessarily support this claim, at least not in countries with some kind of threshold for representation.

Give equal weight to each voter. This requirement can be interpreted in various ways when applied to different electoral systems. The most general formulation is that voters shall not be discriminated against on account of ethnicity, geography, gender and so on, except for what may follow from valid affirmative actions.

Resist tactical voting behavior. A system should support an immediate link between the voters' primary preferences and the result. Tactical voting means that the voters do not vote according to their primary preferences. Instead, they vote according to, for example, their secondary preferences, because they believe they can thereby get an advantage.

Be simple for the voters. Systems can be designed to meet many requirements, but could end up being extremely complicated for the voters, both in the sense that it is difficult to cast a valid and effective vote, and in the sense that it is not easy to understand how the system works.

Be simple for the election administration. Systems can be very complicated for those implementing them. However, what may seem difficult to implement, need not be complicated from a voter's point of view. A possible example is the single transferable vote.

Be generally accepted by the parties and the public. Degree of acceptance should be taken into account when choosing a system. This is particularly important in post- conflict elections, because of the level of mistrust, frequently occurring disorder in election administrations, and the immaturity of the party system. One should not, however, refrain from proposing a system one genuinely regards as good, simply because of fear that it will not be accepted.

Promote conciliation among different groups. In post-conflict situations this is an

important criterion, and it is the main focus of this report.

Promote cross-community parties. This is related to the previous item, but is not exactly identical as a criterion for electoral systems. Community may refer to ethnic, linguistic, religious or sectarian groups as well as geographical areas.

Promote dialogue and compromise. The electoral system should in general support dialogue and conciliation in post-conflict situations. Therefore, whenever reasonable, the system should promote compromise candidates instead of extremist ones. However, there are clear limits to what an electoral system can and should do in this respect. If the voters really support extremist candidates, the system should not prevent these candidates from being elected.

Be robust against changes. This may be a fairly technical issue, but a system should be designed in such a way that small changes in some aspect of the system, such as constituency boundaries, will not have a drastic effect on the outcome of the elections. In a system based on single-member constituencies, the drawing of boundaries can significantly affect the outcome, even if it is required that all constituencies be of equal size. If the boundaries are determined through a political process, there is a danger that the present majority will try to perpetuate its power by carefully taking account of how its support is distributed when boundaries are drawn, so-called "gerrymandering".

Respond logically to changing support. Increased support for a party should normally lead to increased representation, with as few unforeseen and illogical side effects as possible.

Be sustainable. This means that even though there may be particular needs in a transitional period, the electoral system should be adapted to a normalized situation and should also support the process of normalization. One should keep in mind that systems which are adopted after a conflict, even if they are tailor-made to the current situation, will create precedent, that is, they will have a tendency to perpetuate themselves. This is particularly true if the international community has been instrumental in establishing the system.

A system should be chosen according to the needs and the historical context of the country. Some choices are nevertheless political and controversial, as many aspects of electoral systems have long-lasting political consequences.24 In most countries, there would be people who strongly believe in proportional systems because of their ability to represent all parties according to their overall votes, whereas for others the accountability offered by first-past- the-post systems in single-member constituencies would be much more important.

In our context, it is the system’s ability to represent groups in conflict and to promote dialogue and reconciliation that would be more important. Again, it is important to stress that there is no 'one-size-fits-all' solution. In some situations, constituencies may be the best solution if a minority is geographically concentrated. In such a case, the regular party

24 See e.g. Lijphart 1994 and Taagepera and Shugart 1989.

22 structure may work across constituencies and promote a long-term goal of 'normalising' political life across group identities. In other situations, a proportional system with the whole country as constituency and a low threshold may offer the best solution because every group with some support in the electorate will have a chance to be represented. That system may, however, give incentives to forming parties with group identities rather than parties formed on a political platform across group identities.

2.3.2 The Classification of Systems of Representation Electoral systems can be classified in various ways, and many classifications are offered in the literature.25 Two dimensions are central to most typologies: Electoral formula (majoritarian or proportional type) and district structure (single-member or multi-member constituencies or some mix thereof). In addition, some also take explicit account of the ballot structure of the electoral system, i.e. what kind of information voters provide through their vote. Several electoral formulas can be used both in single- and multi-member districts. The alternative vote (AV), where voters are allowed to rank candidates, becomes STV when applied in multi-member districts. First-past-the-post or plurality rule has a straightforward application in multi-member districts as the SNTV system.26 It could also be implemented as a block voting system. Proportional electoral formulas are, of course, not designed for single- member constituencies, but if nevertheless applied, they would simply reduce to first-past- the-post.

The classification below is relatively close to the ones in Reynolds et al. 2005 and Blanc et al 2006, but it is not exhaustive with respect to electoral formulas. A further description of the methods can be found in both sources.

Plurality and majority elections in single-member constituencies: – Plurality elections, ‘first-past-the-post’ (FPTP) – Majority elections in two rounds (either top-two run-off or second round plurality) – Majority elections by the alternative vote (AV)

Plurality elections in multi-member constituencies: – Single, non-transferable vote (SNTV, which may result in semi-proportional outcomes) – Elections based on individual candidates, the ‘block vote’27 – Elections based on party lists, the ‘party block vote’

Proportional representation (one nation-wide constituency or several multi-member constituencies):

25 Examples are Blais 1988, Reynolds, Reilly and Ellis 2005, Norris 2004: 41 and Renwick 2010: 4.

26 Cox 1997 has even shown that, under some conditions, SNTV will give the same outcome as the d’Hondt (proportional) divisor rule.

27 In the block vote system, the voter may give as many individual votes as there are seats in the constituency. In SNTV, the voter may only give one vote. The ‘limited vote’ system, where the voter may give more than one vote but fewer than the total number of seats, is not listed here. In parliamentary elections, the only example of a limited vote is to the Senate of Spain (Reynolds et al. 2005)

– List-based proportional systems (List PR) – Formulas based on quotas and largest remainders – Formulas based on divisors and largest averages – The single transferable vote (STV)

Mixed systems (combining single-member and multi-member constituencies): – Dependent (compensatory system): Mixed-member proportional representation (MMP) – Independent (parallel system with separate upper tier, which may result in semi- proportional outcomes)

We will not discuss other methods that are rarely used in parliamentary elections, such as the de Borda count28.

Mixed systems have at least two tiers, and one of the tiers consists of single-member constituencies. Upper tiers also occur in systems with only multi-member districts, but then typically as a set of adjustment seats to improve on the proportionality of election results. The Scandinavian countries and South Africa are examples.

Depending on how one counts it, roughly half of today’s countries and territories conduct legislative elections with systems that belong to the plurality/majority family. Most of the others use (single-tier) proportional representation, but mixed systems have become more and more popular over the last couple of decades.29

2.3.3 The Effect of the System of Representation on Group Representation Each electoral system has its own characteristics when it comes to group or minority representation. Generally speaking, the List PR system will accommodate such representation better than majority/plurality-based systems.

Lijphart states that “[f]or divided societies, ensuring the election of a broadly representative legislature should be the crucial consideration, and PR is undoubtedly the optimal way of doing so”.30

Andrew Reynolds also argues that List PR gives better minority representation than other systems do, without any pre-defined arrangement:

Because List PR systems encourage parties to maximize votes won both in areas where they are strong and areas where they are weak (because every vote is aggregated at a larger level) there exists an incentive to appeal to ‘other’ voters who may not be part of your core ethnic or ideological base. Thus, List PR systems might encourage moderation in ethnic chauvinism and inclusiveness of minorities in campaign appeals. This may be particularly strong if majority parties need minority votes to make it over a given threshold or to have enough seats to form a

28 The election of two minority representatives of the parliament in Slovenia is a rare exception.

29 Reynolds et al. 2005, Golder 2005 and Shugart and Wattenberg 2001.

30 Lijphart 2008: 78.

government. These incentives would dissipate if the party/majority group did not need extra votes and appealing for such votes would lose them members of their core constituency who were opposed to accommodatory overtures to minorities. 31

On the other hand, the majority/plurality systems will normally not accommodate minority representation since the parties will tend to propose candidates belonging to the majority group of the constituency. However, if a minority is geographically concentrated, such systems may still work in a minority’s favour. Reynolds says:

Plurality-majority systems [...] are predisposed to exclude minorities from power, even if the minority’s concentration allows them to win some single-member seats. There are countless cases of minorities clustered in a given geographical area who can win a small number of representatives, but who rarely form part of governing coalitions and cannot mount much of an opposition to majority rule within the legislature. Plurality-majority systems (without extra provisions to ensure multi-ethnic parties) are also likely to accentuate majority–minority polarization and campaigns based on ‘us against them’ and ethnic chauvinism. The most efficient way of winning more votes than the next candidate (if you are the largest group in a district) is to make sure all your group members support you, and the easiest mobilization strategy revolves around appeals to identity and preservation of group interests. If no single group can expect a clear majority in a district, one group may seek alliances with other groups, but such geographic intermingling is rare and alliances, while useful for one district, may alienate core voters in others.32

This means that, everything else remaining the same, a List PR system will be more efficient in providing minority representation than majority/plurality systems, even without any extra measures.

Another advantage of List PR is that the groups do not have to be pre-defined.33 Any group may form a party and take advantage of the system and any group may be included on the lists by parties that want to appeal to the group in a particular election.

Majority or plurality-based systems may work well in cases where the minority is concentrated and the constituencies are drawn up in such a way that the minority gets benefit from the concentration. Under suppressive regimes, the opposite is often the case; the constituencies are drawn to dilute the minority’s influence. It is therefore a challenge to implement such systems for the benefit of a minority if there is a conflict; it will need good will. Changes in the population structure will also not be automatically covered and the arrangements will have to be pre-defined.

Further, List PR systems are easier to combine with methods to guarantee minorities a certain representation. Plurality and majority systems may be combined with certain quota rules but such rules, unless the groups are geographically concentrated, will often have negative side

31 Reynolds 2006: 21.

32 Reynolds 2006: 21-22.

33 Lijphart 2008.

25 effects in terms of unreasonable restrictions to the passive voting rights or by changing the political party result of the election (see the discussion of the various systems below).

Some experts advocate the use of the alternative vote (AV) in deeply divided societies (e.g. Horowitz). It is a preferential system that – they argue – tends to reward political moderation and compromise. The idea is that the single-member constituencies are drawn up in such a way that no group has majority (more than fifty percent) and an elected candidate would therefore need additional votes (second preference, third preference, etc.) from voters of communities other than his or her own to be elected. This, in particular, has been tried out in Fiji where one may claim that it has not worked as intended.34 It has been argued that the Fiji experience has shown to be unsuccessful and that elections in single-member constituencies will inevitably make minority representation more difficult.

See Chapter 7 for a more comprehensive discussion of the various systems.

2.4 Methods for Securing Group Representation

2.4.1 On the Purpose of Secured Group Representation There are a large number of methods securing group representation. To a large extent, the way each of them works is dependent on the overall system of representation, with some exceptions. The method is also often chosen to support a specific purpose of the quotas. One example is arrangements defined in power-sharing agreements where groups in conflict have a fixed share of representatives in decision-making bodies regardless of electoral result. Another example of a milder rule is the more general need for including groups that are otherwise underrepresented or not represented at all in political decision-making. The driving force is then a belief that a more inclusive body may be able to take better decisions; they can draw on a broader experience, in addition to simply being fair.

This study is motivated by the search for arrangements which may reduce conflict, but it is not obvious that it is the formal and rigid power-sharing agreements which have the most positive short and long term effects. We therefore need to study all the quota systems available to see how they work from a theoretical as well as empirical point of view.

The group representation arrangements that are independent of the system of representation are those that can be classified as separate elections for a group. Other methods will be described under the relevant systems of representation.

One important question regarding group representation is who is the electorate? Most gender rules are, for example, implemented in such a way that all voters vote for all candidates but the rules secure the gender balance. In other cases, the electorates are singled out, such as the Maoris in New Zealand, who have a separate voters register for voters electing a fixed number of members of parliament.

34 See e.g. Frankel 2001 for a thorough discussion.

If the purpose of the quotas is to accommodate a small ethnic group with very special interests compared to those of the population at large (e.g. in their use of natural resources), it may be important that the representatives are elected by the group itself. However, where fairly large groups have been at war, it may be sufficient to guarantee that a parliament has a certain balance between the groups. This is not a straightforward consideration. Neither in Bosnia and Herzegovina nor in Lebanon are there direct connections between the elected group representatives and the groups they represent. Bosniacs may elect the Croat member of the presidency and the Muslims may decide the Christian representative of a constituency of the parliament of Lebanon. This may still be the best long-term solution if the goal is to reduce segmentation and division.

If the groups in question are concentrated geographically, the most obvious solution to power- sharing arrangement is to draw electoral constituencies in such a way that the groups are guaranteed representation. This may be further underpinned by federal arrangements that guarantee the units a degree of autonomy and rights to language, religion, etc. Devolution of powers and federal systems as a means of power-sharing is, however, outside the scope of this report.

It should also be mentioned that some schools of thought would try to do exactly the opposite: draw constituencies in such a way that no group has a majority and that the elected member (from single-member constituencies) will need support beyond his or her own group. This may be done under AV or two-round systems.

The broad groups of methods for group representation are the following:

- Earmarked Seats - Requirements to candidate nominations - Requirements to the results (outcome) - Appointments (discussed here even if they do not involve elections)

Within each category, there are a number of variants. For some of the mechanisms, effects are closely linked to the system of representation with which they are combined.35

2.4.2 Earmarked Seats Earmarked seats are contested only by candidates of one group, so it is a separate race for that group. The term is used only for elected seats, even if there may be earmarked seats in appointments as well. Earmarked seats may be used in any system of representation.

There are two main types of earmarked seats: (i) Systems with a separate tier defined for the group (e.g. a Serb race for earmarked seats in Croatia) and (ii) systems with earmarked constituencies (e.g. for scheduled castes and tribes in India). In some cases, the voters are the general electorate and sometimes there is a separate electorate for that group only.

35 See also Reynolds 2005 for a brief, general overview of reserved seats in national legislatures.

If only those belonging to the groups may elect the group representatives, one needs to identify those voters, most often by a separate voters register. One fundamental requirement for a separate race is that nobody should be forced to vote according to ethnicity, religion, etc.36 If a voter register is used, it should be up to the individual to register there, and if there is not a register the voter should, if needed, choose in secret which race to participate in.37

Sometimes a separate race is organised within a body for indirect elections. An example is the election of the Croat and Bosniac members of the upper house (House of Peoples) in Bosnia and Herzegovina. These elections are held in separate caucuses of the House of Peoples of the entity known as the Federation Bosnia and Herzegovina.

Earmarked seats may lead to over-representation, both for direct and for indirect elections, since the system may allow a group to be represented both in a general race and in a race for earmarked seats. Such overrepresentation may be intentional or, at least, it must be tolerable.

Earmarked seats (separate race) without separate voters register

This can be done either by letting the voters decide in what race they want to participate, or by adding a race where everybody can vote but where all the candidates need to come from the group in question. The latter arrangement is often referred to as a second (or multi) tier election.

Voters choose the race. In this case, the candidates or candidate lists are marked with group belonging but all voters can choose any candidate or list of candidates in secret. For example, this is the case in Kosovo where there are lists for Serb parties and for other smaller minorities.38

Voters cast votes in multiple races. Here, all voters are invited to give a vote both in the general race and in the race for the seats reserved for the group representation. This is quite common for female representation (Egypt, Sudan, etc) but could also be used to promote other excluded groups.

Earmarked constituencies. Constituencies may be earmarked for particular groups. In India, more than 20 percent of the single-member constituencies (FPTP) are reserved for so-called

36 Some elections are held without voter registers and in such cases the voters would need some kind of identification to show the group belonging in polling station.

37 See The Council of Europe Framework Convention for the Protection of National Minorities, Article 3: «1. Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.

2. Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others.»

38 In Kosovo, such lists participate both in the general race and in the separate race for reserved for the groups.

28 scheduled castes and tribes. Those constituencies to be earmarked have a concentration of the protected groups in their population. That means that all candidates in such constituencies must come from the reserved groups. Other people living in the constituencies can only run in another constituency. In a system with single-member constituencies, it is quite common to run outside where the candidate lives, but the earmarking does limit the right to stand for elections. In India, this limitation has been regarded as acceptable.

In Lebanon, all seats in the multi-member constituencies (in a block vote system) are earmarked by confession. The profile of the constituency is the basis but there will be a number of people who cannot run in their own constituency. With multi-member constituencies and all seats earmarked, a candidate without the right confession may have to run quite far from his or her own constituency. In addition, only Christians and Muslims are able to run and therefore some people (even though they are currently few) cannot run at all. This represents a rather serious limitation to the right to stand for elections. The Lebanese system is a combination of earmarked constituencies and best runner-up, since the constituencies are not earmarked for one single group only.

Another possibility is that the earmarking may rotate from one election to the next. This is done for women in local elections in India. In one election, all candidates of a constituency have to be women and then at the next election, that requirement is shifted to another constituency. In that way, the restriction on running is limited and temporary.

Earmarked Seats (Separate Race) with a Separate Voters Register

Under this arrangement, a separate voters register for the group is established. In some cases, like for the Maoris in New Zealand, those choosing to register in the separate register are removed from the general register. Each voter, therefore, has only one vote, either the general or the separate group one. In Croatia as well, voters from minority groups may choose to register as a minority voter and then participate in the minority race.

One could have arrangements where the group only had two ballots, one general and one for the group. This would affect the equality of the vote and may therefore be problematic.

2.4.3 Requirements to Candidate Nominations In plurality and majority systems, one may require parties to nominate a certain number of group candidates across the country.39 This was done for women in Nepal in 1999, but it did not translate into a corresponding number of women elected to parliament. It is easy for parties to undermine the purpose of such a requirement by putting up the group candidate in constituencies where they are sure not to win. Further, the requirement would only be applied to party candidates and not to independent candidates.

Within List PR systems, the simplest form of group representation is to define requirements to the candidate lists. One may either require a certain percentage of candidates to be of a

39 A special issue of the journal Party Politics (volume 7, issue 3, 2001) gives a general overview of methods for candidate selection and their consequences.

29 certain group or, in addition, they could include requirements for a prominent placement of the group candidates on the list. It has, for example, become common for parties in their by- laws to require women and men to alternate on the lists (the 'zipper rule') and in some countries, similar rules are enforced by law.

If the lists are closed (which means that they are published in advance and that the seats won by a party are filled from the top of the ranked lists), rules of the type described above will, to a large extent, guarantee group representation. With open lists, the voters may give votes to individual candidates on the lists and the voters’ choice determines which candidates will fill the seats. In such cases, the ranking on the list may change and the representation of specific groups is not guaranteed unless there are quota rules even for the results.

2.4.4 Requirements to the Results Obviously, the earmarked seats provide requirements to the results. Under this header, we will, however, consider systems where all or a number of groups may run for the elections, but the outcome of the election is “adjusted” ex post in such a way that it meets certain predefined requirements of group representation.

In block vote, STV or SNTV in multi-member constituencies, one may have a requirement where a certain number of those elected need to come from a particular group. If the requirement is not met automatically, the group candidate(s) with the highest number of votes replace(s) the general candidates elected with the lowest number of votes — this is known as the ’best runner-up system‘. The problem with this rule is that a group candidate of one party may replace the candidate of another party. The political party dimension is therefore affected. In Palestine in 1996 and 2006, Christians had quotas in the multi-member constituencies under a block vote system and, in both elections, Christians from one party replaced Muslims from another party because of the quota system.

In Jordan, there is a women’s quota applied to the whole membership of the parliament, but not to each multi-member constituency.40 If there are not a sufficient number of women elected, the runner-up(s) with the highest number of votes replace the weakest elected candidate of the same constituency. The political distribution is affected in this case as well. In addition, the choice of which constituency is subject to the quota is quite random. The one with the highest number of votes is not necessarily the strongest candidate, since the size of the constituencies varies.

In single-member constituencies, the best runner-up is a less obvious solution, but it could be done in a way similar to the Jordanian example, with the same negative effects in the political composition, which, in this case, would always change.

In List PR systems, requirements for the result may be applied within lists or across lists. Requirements within lists means that a certain share of the candidates elected from a party need to come from a certain group. If the requirements are not met by filling the seats from

40 The system of representation is SNTV, but the quotas may work in the same way under the block vote system.

30 the top of the list (as defined by the party or by the voters if the list is open), one may search down the list for the best runner-up of the needed category.

Requirements across lists are more complicated to implement (for the election management body, not the voters), but they may be used where one needs to guarantee a certain representation. If, for example, there are many small parties winning seats, the quotas may not be filled when adding up the results for all parties.41 The rules are most easily implemented by the use of division methods for distributing seats (such as d’Hondt or Sainte- Laguë) where the seats are issued to parties one by one. If there is a minimum quota for a group of 30 percent, there cannot be more than 70 percent of seats filled by members not belonging to that group. When the number 70 percent is reached during the distribution, all non-group members on all lists are simply deleted and the rest of the seats are given to members of the protected group. Requirements for the composition of the lists would ensure that all party lists include such candidates and the balance between the parties is therefore not affected.

Closed lists

With closed lists, requirements for filling seats applied to the lists only will not add to the representation.42 The exception to that is the system used in Nepal where the lists are not predefined in a ranked order. The parties may fill the seats by anyone on the lists after the elections, as long as they observe the quota rules.43

The requirements across lists may add to the group representation by guaranteeing a minimum representation, regardless of the size of parties winning seats.

Open lists

With open lists, the voters may change the order on the list and thus alter the group representation. This may be “repaired” or “corrected” by applying the quotas to the result. This will limit the voters’ choice in their open list vote, but every quota rule has that effect. The voters will still decide on the candidates to be elected within the boundaries defined by the quotas.

Requirements across lists would serve the same purpose as for closed lists.

2.4.5 Appointments In some countries, group representation is secured by indirect elections or appointments. For the principal chamber of parliament, it is a generally understood principle that all members

41 If one out of four needs to be a minority representative and many parties win from one to three seats, there is a chance that the group never wins a seat.

42 Rules for filling seats could, however, replace the rules for prominent placement of group candidates on the list, but that would be less transparent and less predictable for the voters.

43 This is not a system recommended by international bodies since the transparency and predictability is low.

31 should be directly elected.44 In some countries (for example Pakistan), minority representatives are distributed to parties according to their share in the parliament and are selected from predefined lists. In a way, they are therefore elected but the Hindu or Christian representatives are chosen based upon votes for the majority parties in single-member constituencies and the distance from the voter to those elected is therefore long.

In other countries, the government or the president appoints a number of representatives that may be used to compliment the group representation. In these arrangements, one disadvantage is the distance from those appointed and the people they are supposed to represent and the lack of accountability. We will not discuss such arrangement any further except for listing the countries that apply such arrangements.

2.4.6 A Summary Table We summarise the discussion above with a table. The various types of requirements and the main types of electoral systems (systems of representation) result in forty combinations or cells. We illustrate by mentioning one or two countries that currently use a particular combination. Empty cells mean that a combination as far as we know is not in use today, but there could nevertheless be historical examples.

44 This is explicitly stated in the CSCE Copenhagen document of 1991, but it also follows from a reasonable interpretation of the International Covenant on Civil and Political Rights.

Table 2.1: Electoral systems and types of requirements to secure group representation.

System of Earmarked Seats Nomination requirements Results representation (Separate race) requirements, (electoral best runner-ups systems) Without With In percent Placement separate separate voters voters register register

Single-member India Fiji, New Not efficient, This is handled constituencies Zealand women in under with Nepal before earmarked plurality/majorit 2008 seats y

Block vote Lebanon, in Possible but Possible but The Palestinian combination not efficient not efficient Territory with best runner-up

Party block vote Singapore

List PR closed Kosovo Croatia Does not Bolivia, Municipal guarantee women election in the representatio Palestinian n Territory, Nepal

List PR Open Does not Women in guarantee Bosnia and representatio Herzegovina n

STV

Mixed systems The The Palestinian Nepal (MMP and Palestinian Territory, Parallel) Territory, women women

SNTV Jordan

2.4.7 A theoretical Assessment of the Methods When assessing the methods, one should look into how they actually work, including whether they have unwanted side effects. In this section, we restrict ourselves to a brief overview of possible effects and other evaluative considerations.

The possible side effects could be:

 The quotas may change the composition of the parliament in terms of party representation. If, for example, in the best runner-up system under the block vote, a candidate from a protected group of one party replaces a candidate of another party, the political distribution is affected. In the long-term in particular, the political dimension should be the most important one to consider.  The equality of the vote could be undermined, and weaken the democratic quality of the system.  Limitations to the right to vote.  Unreasonable limitations to the right to stand for elections.  Complexity.  The long term incentives for reconciliation and equality.

The following systems seem to be the most effective:

Earmarked Seats

 Efficiency in representation: The representation will be as intended. Representation may be in addition to representation coming out of the regular race.  The party-wise representation: This may be less affected, at least if the system of representation is the same for all seats.  Equality of the vote: If the group voters have votes in a general race in addition to in the separate one, the inequality may be strong. This may be an intended effect for a vulnerable group.  Limitations to the right to vote: Normally not affected.  Limitation to standing for elections: If there are earmarked constituencies where the candidacy is restricted and the electorate a general one, there will be a limitation to standing for elections. Normally, the restrictions will be applied only locally and candidates will be able to run in another constituency.  Long-term effects: Since the earmarked seats are separated out, inequalities are underlined.

Requirements to nominations in List PR

 Efficiency in representation: If there is a requirement to the placement on the lists, the system is efficient. Even if an open list system may reduce the effect, the system still works quite well.  The party-wise representation: No effects.  Equality of the vote: All voters are treated the same way.  Limitations to the right to vote: Normally not.  Limitation to standing for elections: Some candidates will have a lower chance of being nominated, and that is an intended and legitimate effect of the system.

 Long-term effects: This is a system which is fully integrated into the general system of representation and may affect the segmentation of the electorate less compared to other systems.

Requirements to the results in List PR

 Efficiency in representation: The system is efficient.  The party-wise representation: No effects, unless a party list is exhausted of candidates of the required flavour. The party may prevent this from happening by securing a broad range of candidates.  Equality of the vote: All voters are treated the same way.  Limitations to the right to vote: Normally not.  Limitation to stand for elections: Some candidates will have a lower chance of being nominated, and they may be by-passed when filling seats won. That is an intended and legitimate effect of the system.  Long-term effects: This is a system which is fully integrated into the general system of representation and may affect the segmentation of the electorate less compared to other systems.

Best runner-up systems in a plurality of majority-based systems may change the party political composition of the parliament and should be avoided.

2.5 Power-Sharing – Decision-Making Procedures Elements of power-sharing agreements will limit majority rule and give the parties to the arrangement powers in terms of guaranteed representation and decision-making rules (presumably) favourable to their interests. In the sections above, the main focus has been on representation. We will now look into some of the formal rules for decision-making, which may be elements of a power-sharing arrangement. For example, most countries have conservative rules for changes to the constitution or for the impeachment of a president. These are not covered here. The rules we deal with are those that can be seen as unusual or atypical for the type of decision-making in question, and that are motivated out of power- sharing considerations.

Decision-making rules based on broad consensus have to be balanced against the needs for efficiency. In all the countries of the in-depth studies, this balance is important. In Part IV, we will draw some conclusions based upon the experience of different models.

2.5.1 Qualified Majorities Most decisions in representative bodies are made by a majority of those present and voting; simple majorities decide. Absolute majority is a slightly more demanding requirement, as at least a majority of the members (not just those present) of an assembly need to agree. Qualified majority rule means that more than half of those present or of all members has to agree to make a decision. The most common types of qualified majority rules are three-fifths, two-thirds and four-fifths, but any rule between simple or absolute majority and unanimity

35 belong to this class.45 Unanimity rule grants veto power to each and every participant. It is common to require a qualified majority to change a constitution and in other situations where the status quo is a viable alternative. When voting on regular legislation and budgets, the common practice is to require only a simple majority for a valid decision. A higher threshold may easily lead to stalemates where the body is unable to make a decision, even in such cases where everybody agrees that a decision is necessary.

Requiring a qualified majority even in ordinary decisions typically has the need for consensus as background. In a deeply divided society, the ideal may be that decisions should be compromises where none of the groups feel left out or overrun by the majority. In Bosnia and Herzegovina, Lebanon and Nepal, which are the cases we analyse, there are strong elements of consensus philosophy behind the peace agreements.

In Burundi, all laws need a two-thirds majority to pass in parliament. Each of the groups in conflict has at least forty percent of the representatives of the parliament so that such a requirement would prevent the largest group to force through a decision without at least some support of the other group.

2.5.2 Double Majorities Repeated majority decisions by the same body and various forms of double majority requirements have the same stabilizing effects as qualified majority rule. The decision-making system turns more rigid and deadlocks become more likely.46 In Bosnia and Herzegovina, certain decisions can only be made by a double majority. In addition to the majority of all representatives of a house of parliament, there needs to be a majority within the caucus of each of the two entities as well.

2.5.3 Veto Powers Another way of protecting a minority from arbitrary decisions by the majority is to give the minority veto powers within certain areas. In Bosnia and Herzegovina, one of the three caucuses (Croats, Bosniacs and Serbs) in the parliament may apply a so-called vital national clause if they feel that their fundamental rights are threatened and veto the decision. It is also common that changes to a constitution may require consent by various groups and thus offer a veto against change to defined groups.

2.5.4 The Balancing of State Bodies In many countries, the composition of the two houses of a bicameral parliament may have a composition reflecting different principles. The upper house may represent groups of people (or units of a federation) rather that individual voters and some decisions may have to pass votes in a chamber where a minority is stronger than in the principal chamber.47

45 See Rasch 1995 and McGann 2006. Rasch also deals with quorum requirements and mechanisms to resolve ties.

46 Tsebelis 2002 and McGann 2006.

47 Tsebelis and Money 1997 give an overview of institutional features in bicameral systems.

Other mechanisms, such as the relationship between the executive and the parliament, the powers of the judiciary, etc. also have implications on the power-sharing between groups, but these are elements which will not have the main focus in this study.

3: Broad Overview of Systems 3.1 The Americas

3.1.1 Introduction Bolivia, Columbia and Venezuela all have quotas for small indigenous and some other groups. The indigenous groups live in a traditional manner in the Amazonas region and should not be confused with Mestizo or other mixed or urbanised groups. The countries have a colonial history, have mixed populations (indigenous groups and European and African heritage) and have had conflicts related to the control of land and natural resources like water, forestry, and oil.

Belize is not included here, since their social representation is based on appointments only.48

Table of systems The Americas Country and name of Electoral System Basis of Quota Type of quota Democracy Index assembly Chamber of deputies BOLIVIA (Cámara de Diputados) Ethnicity Earmarked seats

Plurinational Legislative Parallel Partly free Assembly (List PR+FPTP) Gender Quota on lists (Asamblea Legislativa Plurinacional) Senate (Cámara de No quota No quota Senadores)

House of representatives Ethnicity Earmarked constituencies, COLOMBIA (Cámara de and ‘small parties’ earmarked seats Representantes): FPTP Partly free Congress (Congreso) Senate (Senado de la Earmarked constituency, Ethnicity República): List PR earmarked seats

National Assembly VENEZUELA Earmarked constituency, (Asamblea Nacional): Ethnicity Partly free earmarked seats Parallel

48 Half of the senators of Belize are appointed on advice from the prime minister, while three are appointed in accordance with advice of the leader of the opposition, one in accordance with advice from the Council of Churches and Evangelical Association of Churches, one from Commerce and Industry and the Business Bureau, and one in accordance with the National Trade Union Congress (Belize Constitution Act Chapter 4, Revised Edition 2002, Article 61.4).

3.1.2 Bolivia The current government party, MAS (Movimiento al Socialismo) was established in 2001 as an alliance of social movements, representing indigenous groups, small farmers, organized labour and parts of the Bolivian middle class. MAS forms a reaction to social and economic cleavages that date back to the colonization by Spain in the 16th century and the prevailing dominance of the Spanish elite over political powers, land and natural resources. In 1952, a Mestizo-led revolution resulted in general voting rights, land reform and the nationalization of tin mines. The (MNR) Revolutionary Nationalist Movement government was deposed in 1964, and until 1982, Bolivia was under military rule. Comprehensive liberal market reforms in the 1980s and 1990s culminated in strong protests, strikes, marches, demonstrations and the loss of faith in traditional political parties. Against this backdrop, the MAS won elections in 2005 on a platform of socialism, nationalization and land reform. Perhaps the most important electoral promise was that of a new constitution to ‘re-establish’ the Bolivian state on a multicultural and multiethnic basis. The new constitution was passed in 2004 in spite of bitter, and at times violent, protests from the opposition due to disagreements over the distribution of income from the oil and gas sector, as well as the issue of regional autonomy.

Bolivia defines itself as a unitary social state based on ‘Pluri-National Communitarian Law’ (Constitution49, Article 1). Article 3 states that the Bolivian nation is formed by all Bolivians, the native indigenous nations and peoples, and the inter-cultural and Afro-Bolivian communities that, together, constitute the Bolivian people. Nations and indigenous peoples are defined as “every human collective that shares a cultural identity, language, historic tradition, institutions, territory and world view, whose existence predates the Spanish colonial invasion” (Constitution, Article 30).

The parliament has two chambers: The Chamber of Deputies and the Senate. The Chamber of Deputies consists of 130 members elected in a Parallel system. 77 are elected from single- member constituencies and the other 53 are elected in a List PR system in multi-member constituencies, which constitute the nine ‘departments’50. Among the 77 single-member constituencies, there are seven reserved for indigenous peoples and they are apportioned to non-contiguous, rural areas (Constitution, Article 146-147) based upon population data.

Article 147 of the Constitution also has two other requirements:

I. The equal participation of men and women shall be guaranteed in the election of the members of the assembly.

II. Proportional participation of the nations and rural native indigenous peoples shall be guaranteed in the election of members of the assembly.

In order to meet criterion I above, the election law Article 9 prescribes that male and female candidates need to be 'zipped' on the list in the PR race (which means that there will be close to half of each gender on the lists) and the parties need to suggest a man and a woman as candidate and substitute in each of the single-member constituencies. These two rules will

49 As updated per May 2009. 50 The transitional election law of 14 April 2009.

39 not guarantee that half of the members of chamber are women, since parties winning an odd number of seats may return one more men than women and all the candidates elected from the single-members constituencies may be men. However, the requirements for gender balance are quite far reaching.

The second requirements (II) of proportional participation of the nations and rural native indigenous peoples do not seem to be regulated further by law. There is no specific rule for the composition of the candidate lists in the multi-member constituencies. The only guarantee is the one coming from the seven reserved single-member constituencies.

According to Article 148 of the Constitution, the Senate consists of 36 members with four elected from each of the nine departments. The election is direct and by List PR.

3.1.3 Colombia Close to 60 percent of the Colombian population is of mixed European-Native American descent as a result of the Spanish colonization of the country. Colombia is a unitary republic with a presidential system. The legislature is bicameral. The House of Representatives consists of 166 directly elected members, out of which 161 are elected from 33 multi-member constituencies corresponding to the departments and district of Bogotá51 with at least two seats in each. The electoral system is List PR with closed lists.

Article 176 of the constitution provides ethnic minority representation in the House of Representatives. According to the law,52 five special representatives are elected in nationwide constituencies, two for the black community and one for each of the groups: indigenous people, political minorities and Colombians abroad. The term political minorities refers to such parties which have tried to stand for elections nationwide but not won any seats53, and the electoral system is FPTP.

Everybody is entitled to vote for the indigenous and black candidates.54 According to Duarte, only 0.51 percent of those eligible to vote in the black constituency participated in 2006 (51,443 out of 26,593,271 voters).

The Senate consists of 83 directly elected members, also elected by List PR with closed lists. In addition to the 83, two seats are earmarked for indigenous communities from one nationwide constituency (Constitution, Article 171.2), and three in an earmarked constituency for political minorities (Constitution, Article 171.2). Indigenous candidates must have been a traditional leader figure in their communities or have been leaders of an indigenous organization.

51 The Constitution as last updated November 2008. 52 Law 649 of 27 March 2001. 53 Article 40 of the Law 649 requires those competing for these seats to have nominated candidates in at least 30 percent of the constituencies, not won any seats and not have more than 70 percent of their votes cast in one constituency. 54 This is not obvious from the primary sources available but Duarte 2007, for example, gives a good indication.

In addition to the indigenous quota, Article 112 of the Election Law requires that candidate lists to the Lower House (Cámara de Diputados) must include at least one woman out of every three candidates in the PR part of the election.

3.1.4 Venezuela Venezuela’s population is mixed, with Spanish, Italian and Portuguese as the main European groups, and indigenous peoples. The Venezuelan republic is unitary with a presidential political system. The legislature is unicameral and has 165 members. Out of these, 110 are elected by FPTP from 87 constituencies, 52 elected on a party list system (two or three deputies per state of Venezuela, depending on population), and 3 seats were reserved for indigenous peoples, with separate rules (Constitution, Article 186). The system is a Parallel system.

According to the Election Law of 12 August 2009 Chapter XV, the three seats reserved for the indigenous are elected from geographical constituencies, one from the west, one from the east and one from the south of the country. Such a constituency may not constitute a continuous geographical area (Article 179.) The candidate is elected who receives a majority of the valid votes in his region.

All native organizations or communities have the right to nominate native candidates who speak their native language, and who have an established social or political position within the community. The nominating organizations must be legally constituted and must have been in existence for at least three years.

Candidates eligible for election must fulfil one of the following requirements: 1. Been a traditional leader, 2. Had a track record of fighting for cultural indigenous identity, 3. Played an active role in providing benefits for indigenous people, 4. Be a member of a legal indigenous organisation that has been operating for at least three years.

The Article 178 prescribes that those eligible to vote for the ethnic group race have to be registered in a separate voters register.

3.1.5 Main Findings Ethnic quotas are found in Colombia, Bolivia and Venezuela in the form of earmarked seats for indigenous and other small groups. The violent conflicts in the countries have a political and ideological background. The conditions for indigenous groups have not been unrelated to conflicts but the quotas as such cannot be seen as measures to establish power-sharing between conflicting groups.

3.2 Asia-Pacific

3.2.1 Introduction In this area, there are conflicts related to religious identity (Moslem versus Christian, Hindu versus Moslem and Christian), ethnicity and social and economic differences. In some countries, far left parties with a strong ideological conviction often with broad mass bases have emerged. Armed conflicts have prevailed.

Nepal is the only country in our selection without a colonial past.

Our selection only includes countries with electoral quotas. That is why Sri Lanka, which has been through a civil war based on an ethnic conflict, has not been included. Sri Lanka is a country where devolution of powers combined with quotas could be a response to the conflict. Prolonged attempts to find a power-sharing arrangement have, however, failed. Kiribati is not included since their group representation is based upon appointment only.55

Table of systems Asia-Pacific Democracy Electoral System Basis of Quota Type of quota Index House of Representatives Earmarked seats Social Group (Wolesi Jirga) Reserved constituency for AFGHANISTAN SNTV nomads

Not free National Assembly House of Elders (Jirga) (Meshrano Jirga) Indirect TRS + No quota presidential appointment House of Separate race FIJI Representatives and voters registers FPTP Ethnicity Partly free Parliament and multiethnic delimitation

AV and FPTP in AV constituencies

Earmarked constituencies House of the People Social group and for scheduled castes and (Lok Sabha) ethnicity tribes

FPTP + Executive INDIA Earmarked seats, executive Appointment Ethnicity Free appointment Parliament (Sansad) Council of States (Rajya Sabha) Experts and Earmarked seats, executive

particular skills appointment Indirect, STV + Executive Appointment Social group, Constituent Assembly ethnicity and Requirements to lists (Sambidhan Sabha) Nomination percentage NEPAL linguistic groups Selection from party lists Partly free Parliament (Sansad) Parallel (FPTP and List Gender composed after elections to PR) plus appointments fill quotas

55 One seat is reserved from a representative of the Banaban community, who inhabit the Rabi Island which in turn belong to Fiji. This member is appointed by the Rabi Council (Constitution, Article 117), the municipal body that administers the Rabi Island. It may be classified as indirect election but it is not significant in our context.

House of NEW Separate race Representatives Free ZEALAND Ethnicity earmarked constituencies

MMP

List PR in one nationwide constituency from separate, Religion closed party lists, based on National Assembly: the distribution of seats in Direct FPTP election + parliament indirect List PR representation List PR in reserved PAKISTAN constituencies from Parliament (Majlis-E- Gender separate, closed party lists Partly free Shoora) based on the distribution of seats in parliament

Gender Reserved seats Senate: STV Indirect Social Groups Reserved seats

House of Representatives Small parties with (Kapulungan Ng purpose to Reserved constituency with Kinatawan): accommodate social List PR Parallel (Mostly FPTP PHILIPPINES groups Congress but List PR for small Partly free (Kongreso) parties)

Senate No quota (Senado): Block vote

Legislative Assembly SAMOA Earmarked constituency, Free (Fono): Parallel Ethnicity separate race (FPTP+BV)

Parliament Reserved constituencies Parallel (FPTP+PBV) SINGAPORE Ethnicity with list requirements and Partly free + Party block vote appointments

3.2.2 Fiji Fiji is a unitary republic with a parliamentary political system. The parliament has two chambers, the House of Representatives and the Senate, with 71 and 32 members respectively. The Senate consists of 32 members, of whom 14 are appointed by the President on the advice of the Great Council of Chiefs (Bose Levu Vakaturaga)56, nine are to be appointed by the President on the advice of the Prime Minister, eight are appointed by the

56 The Council has, however, been suspended after a conflict with Frank Bainaimarama, leader of the interim government, which came to power after a military coup in December 2006.

President on the advice of the Leader of the Opposition, and one is appointed by the President on the advice of the Council of Rotuma (Constitution, Article 64). The Senate has a delay veto, except for money bills (Constitution, Article 47-48).

From 1874 until 1970, Fiji was a colony under British rule. Under the rule of the British governor, Indian labourers were imported to work on the European sugar estates. Interaction between these and the indigenous Fijian population was limited until independence was achieved. Over time, the Indian population has come to dominate the economic sphere, whereas the indigenous Fijians have maintained political dominance. Elections were fought largely along communal lines until the emergence of the Fiji Labour Party in 1985. The 1987 elections brought a coalition of the Labour party and the Indo-Fijian National Federation Party to power, followed by a military intervention to restore indigenous political hegemony only two years later57. Since then, Fijian politics has been marked by instability caused by friction between the two dominant groups.

An escalating conflict between the groups was tried solved in the 1990s by the adoption of a new constitution in 1997, changing the electoral system of Fiji from FPTP into the Alternative Vote. Several electoral rolls were introduced: one Fijian, one Indian, one for the smaller Rotuman group, one general, and one common for all groups. Electors registered in the two first rolls choose 23 and 19 representatives respectively to a parliament consisting of 71 members. The two following groups elect a total of four, while all electors registered in the common roll elect 25 representatives. The ethnically-based elections are done by FPTP, whereas the common election is held by AV in single-member constituencies.

The system was intended to reduce the polarization between Fijians and Indians by promoting majority victors and encourage interethnic accommodation through the common roll.58 The idea was to draw up constituencies where none of the groups had majority and therefore candidates would have to rely on secondary support from ethnic groups other than their own. This system should therefore encourage moderate candidates within the groups.

Results from elections held in 1999, 2000 and 2006, however, indicated that “the majority of transfers of preference votes in Fiji flowed from the more moderate or centrist parties towards the more extremist organisations”.59 Since then, the country has seen two military coups (2000 and 2006), and there is a widespread concern that the system has not worked as intended. The conflict still runs deep. New elections are scheduled for 2011. Electoral reform has been on the political agenda for years, but the debate has remained inconclusive. One main criticism of the AV constituencies has been that they are artificial. They have been drawn up to produce a particular result and have therefore been seen by many as ‘electoral engineering’.

57 Lal 1997 and Ramesha 2010. 58 Reeves, Vakatora & Lal, 1996 as quoted in Horowitz 2006: 653, and Reilly as quoted in Ramesha 2010: 493 59 Fraenkel, as quoted in Ramesha 2010: 493.

3.2.3 India India is a federal republic consisting of 28 states, the National Capital Territory of Delhi and 6 centrally administered Union Territories. The federal system has defused some of India’s tensions, exempting the thorny issue of Kashmir. In spite of a constitutional ban, there is also widespread discrimination against the Dalits or outcastes by India’s higher castes. A growing Maoist movement appealing to the Dalits and the landless, and communist guerrillas were active, as of 2010, in more than one-third of India’s districts. Christians and Muslims have been subject to attacks by Hindu groups in areas like Gujarat and Orissa. Similarly, Hindus have been attacked in Jammu and Kashmir, where they themselves constitute the minority.

The political system is parliamentary. The President appoints the Prime Minister who needs to enjoy the confidence of the House of People (Constitution, Article 75), Ministers are appointed by the president on advice of the prime minister, and do not require parliamentary approval (Constitution, Article 75). The President is elected by the legislature (Constitution, Article 54).

The legislature consists of a lower chamber, the House of the People (Lok Sabha), and an upper chamber, the Council of States (Rajya Sabha). Laws must be passed in both chambers (Constitution, Article 108). The exception is money bills, which are not presented to the Council of States. When a bill has been passed by both Houses, it is presented to the President, who may either assent or request the Houses to reconsider the bill with proposed amendments. If the bill is passed again, with or without amendments, the president cannot withhold his assent (Constitution, Article 111). Laws can be subject to constitutional review by the Supreme Court (Constitution, Article 132).

The House of the People consists of no more than 530 members elected directly from the constituencies and not more than 20 members elected to represent the Union territories (Constitution, Article 81.1). These are elected by plurality vote in single-member constituencies, FPTP. The Council of States consists of no more than 238 representatives from the states. Representatives are elected “by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote”. (Article 80, 4)

There are 84 reserved seats in the Lok Sabha for so-called Scheduled Castes and 46 seats for Scheduled Tribes.60 Scheduled castes constitute approximately 16 percent of the Indian population, whereas scheduled tribes constitute 8 percent. Relative to the remaining population, these groups remain socially and economically disadvantaged.61 In order to improve the standing of scheduled castes and tribes, the 1950 Constitution sets down a system for ensuring representation for these groups in the national and state assemblies. According to Article 332 of the Constitution, the reserved seats are filled from reserved constituencies where only candidates from these communities can stand for elections. However, the entire electorate may vote for any qualified candidate.

60 Increased from 79 and 41 respectively in March 2009, see Election Commission of India, No. ECI/PN/47/2009, Press Note, 31. August 2009. 61 Pande 2003: 1138.

Caste definitions are based on the 1931 census, whereas tribal identification criteria were decided by Parliament in 1950. The state-wise break-up is given in the 1st schedule to the Representation of the People Act, 1950. The scheduled caste and scheduled tribe lists have been twice revised since then. It falls to the Delimitation Commission to ensure that the selected districts are the ones with a higher population share of the group in whose favour reservation is being practiced, while ensuring a sufficient dispersal of reserved jurisdictions within the state.62

In addition, the president may nominate two members to the House of the People to represent the Anglo-Indian community, “if he is of opinion that the Anglo-Indian community is not adequately represented” (Constitution, Article 331). Furthermore, the president appoints twelve members to the Council of States. These members are “persons having special knowledge or practical experience in [...] Literature, science, art and social service” (Constitution, Article 80 (3)).

As of May 2011, there is no women’s quota for the Parliament. An attempt was made to pass legislation to reserve one third of the seats for female candidates, but the process was interrupted by the dissolution of Lok Sabha before the 1998 elections. However, on March 9th 2010, the Constitution (108th Amendment) Bill that grants 33 percent reservation to women was passed by the Rajya Sabha. At the time of writing, the legislation is to be introduced to the Lok Sabha, where it will need a two-thirds majority to pass.

3.2.4 Nepal Nepal’s current legislature is the Constituent Assembly that was elected in April 2008. Pending a new constitution due in 2011, the Assembly draws its powers from the Interim Constitution of January 2007. The following is based on the Interim Constitution as amended by May 2010.

The Interim Constitution stated that the Constituent Assembly should implement the transition from a monarchy to a republic at its first meeting (art. 159 (2)), which was held in May 2008. Nepal is still a unitary republic with a unicameral parliament, but the transitional article 159 of the interim constitution pre-empts the future constitution by stating that, “Nepal shall be a federal democratic republican state.”

The constituent assembly is tasked with drafting a new constitution. Article Laws are passed by a simple majority of the total number of members of the House (Interim Constitution, Article 85). A bill becomes an Act after being certified by the Speaker (Interim Constitution, Article 87).

The Constituent Assembly consists of 601 members. Of these, 240 members were elected by FPTP from single-member constituencies, and 335 were elected by List PR with closed lists63 from one nationwide constituency. 26 distinguished persons and persons from ethnic groups

62 Ibid, p. 1139. 63 The term 'closed lists’ means that voters could not influence the election, but the lists were not ranked and it was up to the party executives to select which candidates should fill the seats won after the elections.

46 who fail to be represented through the regular election process (Interim Constitution of 28 December 2007, Article 63) were to be appointed by the government. Elections were held in two parallel races that were disconnected in terms of distribution of seats under the List PR race.

The election law required parties to keep ‘in mind’ the principle of inclusiveness in nominating candidates for the FPTP elections. In composing the lists for the List PR race, parties were required to “ensure the proportional representation of women, Dalits, oppressed communities/indigenous groups, backward regions, Madhesis and other groups” (Article 7, 3). Schedule 1 of the Election Law broke this down into specific percentages for Madhesi, Dalit, Janajatis, backward regions and ‘others’. The distribution between the genders was also specified in that a minimum of one-third of each party’s candidates for both races had to be women.

In the List PR race, the party leaders filled the seats won by the party after the elections from lists defined and published before the election. The party leaders did not have to follow a ranked sequence of the lists in doing so, but they had to meet the same quota rules as for the candidate lists. As one of three selected case studies, Nepal is described in more detail in Chapter 5.

3.2.5 New Zealand New Zealand is a constitutional monarchy with a parliamentary political system. The legislative body is unicameral and has 120 members directly elected by the Mixed Member Proportional system. Each voter can vote for two candidates; one from single-member constituency lists, and one from nationwide party lists. The number of constituencies is from time to time adjusted based on census data (Electoral Art, 35). In the 2008 elections, 63 members were elected by FPTP in general electoral districts and 50 members by List PR from nation-wide party lists. List seats are distributed to parties winning more than the five percent threshold. If parties win more electorate seats than their share of seats determined by the party vote, then they can keep the extra seats, called ‘overhang seats’ (Election Law, Article 192).

There are a number of Maori electoral districts to be set from time to time (Electoral Law, Article 45). These are filled by FPTP in a separate race. Maori voters may choose whether they want to be registered either as an elector of a Maori electoral district or as an elector of a General electoral district (Electoral Law, Article 76-79). As of December 2010, there were seven members elected from Maori constituencies. Maoris may also run in general constituencies and on party lists in the List PR race.

3.2.6 Pakistan Pakistan is a federation consisting of four provinces (Baluchistan, Khyber Pakhtunkhwa, Punjab, and Sindh), a federal capital district and two federally administered areas (the Northern Area and Tribal Areas). Formally, the political system of Pakistan has been parliamentary. In 1999, when General Pervez Musharraf took over the country in a bloodless coup, he declared himself president and suspended parliament and the constitution. In 2002, the constitution was restored but at the same time a Legal Framework Order with later

47 amendments was issued by a Chief Executive Order in 2002 and the Constitution was amended so as to provide for a stronger presidential system (Seventeenth Amendment of 2003). Elections held in the same year resulted in a hybrid military-civilian order, in which Musharraf simultaneously served as President and Chief of Army Staff. The Seventeenth Amendment to the Constitution therefore enabled the President to dismiss the National Assembly.

In 2010, the Eighteenth Constitutional Amendment repealed the Seventeenth Amendment and the Legal Framework Order and returned powers to the Prime Minister.

The president appoints the prime minister, but the candidate must have support in parliament (Constitution, Article 91). Individual ministers are not approved by parliament (Constitution, Article 91). The president is elected by an electoral college constituted by the legislature and provincial assemblies (Constitution, Article 41).

The Parliament is bicameral, consisting of the National Assembly and the Senate. Bills may originate in either House and must be passed by both houses without amendment. If a bill is rejected or is not passed within 90 days of receipt, the House of origin requests that the bill be referred to a mediation committee for redrafting (Constitution, Article 71). Money bills shall, however, originate in the National Assembly. The Senate may make recommendations, which the National Assembly may or may not incorporate upon presentation to the president for assent (Constitution, Article 73). The president may request amendments, which the parliament may or may not incorporate. A presidential veto can be overridden by a majority in both houses (Constitution, Article 75).

There are 342 representatives in the National Assembly. Of these, 272 are so-called ‘general seats’ filled with representatives elected by FPTP in single-member constituencies. The 70 remaining seats are reserved for non-Moslems and women (Constitution, Article 51), which are allocated based upon the distribution of seats among the parties after the general FPTP part of the election (see below). Members of the upper house are indirectly elected by federal assemblies and from the federally administered territories “in such a manner as the President may, by Order, prescribe” (Constitution, Article 59).

There are ten seats reserved for non-Muslims and sixty for women in the National Assembly. There is no separate vote to fill these seats but the allocation is to party lists in accordance with their strength in parliament after the FPTP election. The ten non-Muslims are elected from lists regarding the country as one constituency according to List PR (Constitution Article 51.e). Women are elected from lists defined in separate constituencies in each region: “...each Province shall be a single constituency for all seats reserved for women who are allocated to the respective Provinces ...” (Constitution, Article 51.b). Women and non- Muslims may also run for general seats on the basis of party nomination.64 The distribution of reserved seats is based “on the total number of general seats won by each political party in the National Assembly”. Candidates are elected from lists of candidates in prioritized order

64 Mudassir Rivzi, "Women win record seats, but not activists' hearts, "Inter Press Service, http://ipsnews.net/interna.asp?idnews=12918 .

48 presented by the political parties prior to the elections (Conduct of General Elections Order, 2002, Chief Executive's Order No.7 of 2002, 4.e., f.; 8F1). Consequently, the distance between the voters and the elected representative provides for weak accountability.

Only parties achieving at least 5 percent of the general seats may benefit from the reserved seats (The Conduct of General Elections Order, 2002, Chief Executive's Order No.7 of 2002, 4.g) and no independents can run for such seats.

The Senate consists of 100 members. Of these, fourteen are directly elected from each provincial assembly. Eight are directly elected from the Federally Administered Tribal areas. In addition, four women and four technocrats and clerics are elected by each of the Provincial assemblies respectively (Conduct of General Elections Order, 2002, Article 8b.1). Seats are allocated by the single transferable vote (Conduct of General Elections Order, 2002, Article 8b.2)

3.2.7 Samoa Samoa is a unitary republic with a parliamentary political system. The legislative assembly is unicameral. On advice from the prime minister, the head of state may refuse to give his ascent to a draft bill, in which it will not become law (Constitution, Article 60). The assembly consists of 49 members.

35 members are elected by FPTP in single-member constituencies, whereas 14 are elected by block vote in two-member constituencies.

47 seats are reserved for ethnic Samoans elected from so-called Territorial Constituencies. Two are elected from the Individual Voter’s Roll, which is open to citizens of foreign and mixed descent. The Individual Voters roll was formerly reserved for Europeans, but now includes all citizens of foreign and mixed descent, as well as their spouses.

The right to stand for election is restricted in both the constituencies and the Individual Voters Roll. Only traditional heads of families (holders of so-called matai titles) can stand for elections in the territorial constituencies65. Only those registered in the Individual Voters roll are eligible as candidates to represent individual voters (Electoral Act, Article 5).

3.2.8 Philippines The Congress (‘Kongreso’) of the Philippines was established in 1946 upon independence from the United States. In 1972, President Ferdinand Marcos suspended parliament and declared martial law. A new constitution in the following year formalized Marcos’s absolute authority. Marcos relinquished power in 1986 amid demonstrations sparked by allegations of massive fraud in a presidential election. He subsequently fled the country, and in 1987, the Philippines adopted its current constitution.

65 A matai title can only be bestowed on someone chosen by the family as their matai. The 2006 official census of Samoa identified a total of 15,783 matai (8.7 percent) living in the country from a total population of 180,741. Of the total number of matai, 12,589 (79.8 percent) were male and 3,194 (20.2 percent) were female.

There are two major conflicts in the Philippines: that of the communist guerrillas against the government, and that of Muslim separatism in Mindanao. From 1993 to 1990, the Philippine government encouraged a large number of Christians to settle in Mindanao. The proportion of Muslims in Mindanao subsequently decreased from 77 percent to 19 percent, numbers which are reflected also in land ownership. Increased political, economic and social polarisation has adversely affected the Muslim population, leading to widespread dissatisfaction and an upsurge of armed separatist groups. In an attempt to defuse tensions in Mindanao, an Autonomous Region in Muslim Mindanao (ARMM) has been established. The establishment of ARMM, however, has been insufficient to solve the grievances of the Muslim minority. A further contribution would be an electoral reform in the Philippines as a whole, which would also address the conflict with the communists.66

The Philippines is a unitary republic with a presidential system. The 1987 Constitution (Article VI) defines a bicameral legislature with an upper house, the Senate (Senado), and a lower house, the House of Representatives (Kapulangan Ng Mga Kinatawan). Laws must be passed by both chambers. However, appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application and private bills, may not originate in the Senate. The president has a delay veto. A bill passed by the houses is presented to the president, who may return it with amendments to the house where it originated. It takes a two- thirds majority in both houses to override the presidential veto. In addition, the president has a line-item veto on appropriations, revenue or tariff bills.

The House of Representatives has up to 250 members unless the number is increased by law67, where up to 200 are elected in a first-past-the-post system in single-member constituencies from the different provinces, cities and the Metropolitan Manila (Constitution Article VI, 5).68 There are seventeen regions. These consist of provinces following administrative units. Each of the units has from one to seven seats. Those with more than one seat are further sub-divided into single-member constituencies. In addition, twenty percent of the total number is supposed to be elected from nation-wide party lists under a proportional system, where only the less prominent parties may participate. Each voter has two ballots: One for the regular constituency election and one for the party list. The top five parties of a previous election cannot propose lists. The idea is to offer seats to minority groups, which have difficulties in winning seats under a first-past-the-post system.69 A particular list needs at least two percent of the votes to get a mandate, and it can only win up to three mandates.

66 For an assessment of ARMM and political participation inside ARMM, see Blanc, Hylland and Vollan 2006: 92-94. 67 The House elected in 2010 has 283 members. 68

69 An Act Providing for the Election of Party-List representatives through the Party-List System, and Appropriating Funds Therefor. Republic Act No.7941. March 3 1995 states: ”Declaration of Policy – The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sector parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members

When the system was first used, it was not possible by this rule to fill all the seats dedicated for the groups, but the rule was later changed so that one allocates one seat to each of the largest party lists with less than two percent until the twenty percent quota is filled.70

In the Senate, there are 24 senators serving in staggered terms, so that twelve are elected at one Election Day, and the other twelve are elected three years later. The electoral system [for the Senate] is first-past-the-post, with the whole country as one constituency. The voters vote for individual candidates and can cast more than one vote (probably up to twelve). The twelve candidates with the highest number of votes are elected. The system is often referred to as the block vote system.

3.2.9 Singapore Singapore is a unitary republic with a semi-presidential system. The president may not veto legislation passed by parliament (Constitution, Article 58). The legislature may, however, not introduce legislation related to taxation, government expenditures, government debt, and other financial issues (Constitution, Article 59). Legislation is subject to judicial review (Constitution, Article 4; 100).

The electoral system combines FPTP in single-member constituencies and party block vote multi-member constituencies with reserved group representation (Constitution, Article 39A.1a). There are not a fixed number of seats in the parliament but there needs to be at least eight single-member constituencies and at least one-quarter are to be elected from multi- member constituencies with a magnitude from three to six. Constituencies are drawn by the president and may be changed from time to time. There are, however, at least eight single- member constituencies at any time. The group representation constituencies are reserved for the Malay, Indian or other minority groups, who are to constitute at least a quarter of the members in the principal chamber (Parliamentary Elections Act, Article 8A.2). In a group representation constituency, elections are “held on a basis of a group of not less than 3 but not more than 6 candidates” (Constitution Article 39A.1a). Article 39A.2a further stipulates that:

[… ] at least one of the candidates in every group shall be a person belonging to the Malay community; or […] at least one of the candidates in every group shall be a person belonging to the Indian or other minority communities; Article 8A.3 states that Group constituencies designated under subsection b (i) are to constitute three-fifths of the total number of group representation constituencies. Article

of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sector or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible.” The ‘sectors’ are defined as: “sectors shall include labour, peasant, fisher folk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.”

70 See results of the 2010 elections at the election commission’s (COMELEC) web site, http://www.comelec.gov.ph.

9A.2c states that each group must consist of members from the same political party or a cluster of independent candidates standing as a group.

In the 2006 election, nine members were elected from single-member constituencies, and seventy were elected from fourteen multi-member constituencies. The ruling party (PAP) won all multi-member constituencies plus seven single-member constituencies and two opposition parties won one of the single-member constituencies each (SDP and WP). In contested multi-member constituencies PAP got from 56 to 77 percent of the votes (and 100 percent of the seats).

In addition to constituency members, as many as six members can be appointed by the legislature in order to “to ensure the representation in Parliament of a minimum number of Members from a political party or parties not forming the Government”. Furthermore, the president may appoint as many as nine members. These appointees are to be

… persons who have rendered distinguished public service, or who have brought honour to the Republic, or who have distinguished themselves in the field of arts and letters, culture, the sciences, business, industry, the professions, social or community service or the labour movement; and in making any nomination, the Special Select Committee shall have regard to the need for nominated Members to reflect as wide a range of independent and non-partisan views as possible (Constitution, Article 39.b; Fourth Schedule). 71

3.2.10 Main Findings Afghanistan, India, Nepal, Philippines and Pakistan have quotas for social groups. Fiji, India, Kiribati, Nepal, New Zealand, Samoa and Singapore have ethnic quotas. Pakistan has a quota reserved for religious minorities. Only in Fiji one may say that the quotas are intending to directly represent groups in conflict. However, in Nepal the quotas are meant to address the underlying social and ethnic problems that caused the armed conflicts of the 1990s and 2000s. In other countries, the quotas have been introduced based upon a view of ‘fairness’ but clearly they may also contribute to lower group-based conflicts.

Some of the quota rules intended to provide minority representation represents arrangements where one has made an effort to repair a FPTP system that does not automatically give the desired diversity. In particular, in Pakistan and in the Philippines, the minority representation comes as add-ons to the general system which introduces side effects that could have been avoided by a more fundamental overhaul of the system.

In Pakistan72, religious minorities are elected on lists of the main-stream parties in accordance with their parliamentary representation. For example, the Hindu candidates are elected from the Muslim League party based upon the general political contest where the voters primarily select the parties’ candidates in single-member constituencies. The accountability is therefore very weak and the distance from the voters to those elected representing minorities is unnecessarily large.

71 Non-Constituency members have restricted voting rights, see Constitution Article 39.2. 72 A similar system is now introduced for group representation in Kenya.

In the Philippines, one needs to define parties representing the selected sectors and which have not done well in previous elections. Exclusion of the biggest parties from contesting in the proportional part of the election is extraordinary and can give very random results. The link to previous elections means that the result does not necessarily reflect the voters' will on Election Day and the system is unnecessarily intricate.

Both in Pakistan and in the Philippines, the purpose seems to have been to compensate for the defects of the plural system, which favour the big parties and groups, by repairing it in such a way that new unreasonable features are introduced. In both countries, a mixed system combining first-past-the-post (FPTP) in single-member constituencies with list proportional (List PR) systems could have been used and the voters would have direct influence on who is elected and even small parties would be represented without introducing a ’small party race’. If there would be an additional need to protect some groups, quota systems for ethnic or religious minorities could be considered.

The system in Singapore is part of a party block vote system, which will inevitably give the biggest party of a multi-member constituency all seats of that constituency and, most likely, all seats contested under that system. In general, party block vote systems should be avoided in multi-party national elections.

3.3 Central Eastern Europe

3.3.1 Introduction Parliamentary quotas based on ethnicity or languages are found in all the former Yugoslav republics, except Macedonia.73

Minority quotas in Poland and Romania are not related to violent conflicts, but to the presence of linguistic minorities within their territorial borders.

73 The 2002 Ohrid Agreement, which contains a broad range of measures to ensure minority rights, but does not include guaranteed minority representation in parliament.

Table of systems Central Eastern Europe Basis of Democracy Country Electoral System Type of quota Quota Index House of Representatives BOSNIA AND Nomination percentage and (Predstavnički Dom ) HERZEGOVINA Gender rank order List PR with

compensation Partly free Parliamentary assembly (Parlamentarna House of Peoples Skupština) (Dom Narodna) Ethnicity Earmarked seats Indirect List PR

Croatian parliament Earmarked seats, separate (Hrvatski Sabor) CROATIA Ethnicity race, separate voters Free

registers List PR Reserved seats Ethnicity Separate race Kosovo Assembly Nomination percentage and KOSOVO (Kuvendi i Kosovës) Partly free rank order List PR Gender Requirements to result BRU to fill quota

MONTENEGRO List PR Ethnicity Reserved constituency Free

Principal chamber Ethnicity and POLAND (Sejm) Threshold exemption language List PR Free Parliament Senate (Parlament) (Senat) No quota No quota Block Vote Chamber of Deputies (Camera Deputatilor) Ethnicity and Earmarked seats, best ROMANIA language runner-up List PR Free Parliament Senate (Parlamentul) (Senat) No quota No quota

List PR Lower threshold for National Assembly Ethnicity SERBIA (Narodna skupshtina) minority parties Requirements to Free List PR Gender nomination percentage and rank order National Assembly (Državni zbor) Separate race Ethnicity SLOVENIA earmarked constituencies List PR Parliament National Council Free (Parlament) (Državni svet) Interest groups Reserved seats Indirect elections by electoral colleges

3.3.2 Bosnia and Herzegovina Bosnia and Herzegovina is a federation consisting of a Croat-Bosniac entity, the Federation of Bosnia and Herzegovina, covering 51 percent of the territory of the federal state, and the Serb-led entity Republika Srpska, covering 49 percent.

The legislative framework for elections in Bosnia and Herzegovina is constituted by the 2001 Election Law, and Annex 4 of the Dayton Agreement, which is Bosnia and Herzegovina’s constitution. The parliament is bicameral and consists of the House of Representatives and the House of Peoples.

The form of government is a hybrid with a presidency of three directly-elected members with rotating chairs and a Council of Ministers led by a prime minister who needs the confidence of the House of Representatives.

There are 42 members of the House of Representatives. Of these, one-third is elected from Republika Srpska, and two-thirds from the Federation of Bosnia and Herzegovina. The electoral system is List PR in multi-member constituencies with entity-wide compensation.

House of Peoples consists of 15 members: five Bosniacs, five Croats and five Serbs. They are elected by List PR. Individuals who do not belong to any of the three groups cannot run for the House of Peoples. In addition, the Bosniacs and Croats are elected by the Federation of Bosnia and Herzegovina and Serbs by the Republika Srpska, so Serbs living in the Federation cannot be elected and similarly for Bosniacs and Croats living in Republika Srpska.

The Presidency consists of one Serb, one Croat and one Bosniac and the restrictions to run as a member is as for the House of Peoples.

Voting in the House of Representatives is based on equal votes of all citizens, whereas the House of Peoples are elected by a house of the entity parliaments. Legislation needs to be approved by a majority of those present and voting in both chambers as the main rule. There is, however, both a rule for double majority (entity voting), a Vital National Interest Clause that can be invoked to block any legislation which is perceived as detrimental to any of the three groups.

The Dayton Agreement also defines the role of the International High Representative with wide authorities that were further expanded during the first years in office (the Bonn Powers). A thorough discussion of the representation and the power-sharing arrangements in Bosnia and Herzegovina is found in the case study in Chapter 6.

3.3.3 Croatia Croatia is a unitary republic with a hybrid system of government with a directly-elected president with limited powers and most of the executive powers vested in the government headed by a prime minister The Croatian Parliament is unicameral and consists of no less than 100, and no more than 160 members (Constitution, Article 71). These are elected through List PR with closed lists. There are 10 constituencies, each electing 14 members. In addition, there are two separate constituencies for recognized minorities and diaspora voters, respectively.

The number of diaspora representatives can be a maximum of twelve, depending on the turnout.

Article 15 of the Constitution and Articles 15-16 of the Election Law provides for the right of national minorities to be represented in parliament by a total of eight members. What constitutes a national minority is defined in the Minorities Act Article 5 as “a group of Croatian citizens whose members traditionally inhabit the territory of the Republic of Croatia, its members having ethnic, linguistic, cultural and/or religious characteristics different from other citizens and are led by the wish to preserve these characteristics”.

Article 19 of the National Minorities Act further states that the members of national minorities may elect no less than five and no more than eight of their representatives in special constituencies. Members of national minorities that “in the total amount of population of the Republic of Croatia participate with more than 1.5 percent, one seat is guaranteed”, with a maximum of three seats for this particular minority.

Article 16 of the Election Law stipulates how these seats are to be distributed among the various minorities.74 The eight minority members are elected through FPTP from eight lists in a “special constituency being the territory of the Republic of Croatia” (Election Law, Article 15). National minority voters can choose to be registered in the separate voters rolls and thus vote in the special constituencies or they may stay in the general register and vote in the general race.75

3.3.4 Kosovo Kosovo is a unitary republic with a hybrid system of government emerging from a civil war and war on secession. The President has limited powers and is indirectly elected, whereas the executive powers rest mainly with the government led by a prime minister who needs to have the confidence of the parliament. The parliament is unicameral. Members of the Assembly are elected through List PR in one constituency covering the entirety of Kosovo (Election Law, Article 110.1). The national threshold is five percent (Election Law, Article 112.2 (a, b)). Political Party, Coalition, Citizens’ Initiative or Independent candidate may submit candidate lists (Election Law, Article 110.2). These appear on an ‘open list’ ballot.

Voters shall vote for one (1) certified Entity and may vote for one (1) candidate from the said Political Entity’s candidate list […] A vote cast for a Political Entity shall be considered as a vote cast for the candidate ranking first on the Political Entity’s candidate list.

Twenty out of the 120 seats in parliament are reserved for minority communities and are distributed to lists that have a minority label. The ten Serb seats are, for example, distributed to the Serb parties only, irrespective of whether the same parties have won some of the 100 seats. Voters cast only one ballot, but the results are calculated for each race: the general one, the Serb one, etc.

74 “Members of national minorities from the Article 16 of this Act shall elect representatives to the Parliament by individual elections, in the manner that the candidate is elected who has won the most votes of the voters who have cast their votes” (Election Law, Article 43). 75 OSCE/ODIHR and the Venice Commission 2007.

There is also a gender quota, (Election Law, Article 27) whereby parties are required to set up lists where:

at least thirty (30 %) percent shall be male and at least thirty (30 %) percent shall be female, with one candidate from each gender included at least once in each group of three candidates, counting from the first candidate in the list..

3.3.5 Montenegro Montenegro is a unitary republic with a directly-elected president with limited powers and otherwise mainly with a parliamentary system of government. Parliament consists of 81 members (Constitution, Article 83). These are elected through List PR with open lists from the whole republic as a single constituency. The electoral threshold is 3 percent (Election Law, Article 12; 93-96).

Five of the 81 deputies are chosen from designated polling stations defined by the special resolution passed by the Assembly (Election Law, Article 12.2). These 70 polling stations are located in areas populated primarily by ethnic Albanians. Election lists can receive seat allocations in both the general race and in the special race, providing that the electoral threshold of 3 percent is passed. If a list does not reach the threshold in either race, the votes from one race are re-allocated to the other.76 It is up to each individual to register in these polling stations, where all parties can compete for elections – not only Albanians. In this special race, Albanian coalitions have been able to win seats that they would otherwise not have won.77

Laws that regulate how acquired minority rights are exercised, require a two-thirds majority (Constitution, Article 91).

3.3.6 Poland Poland is a unitary republic with a directly-elected president with limited powers and otherwise has a parliamentary system. The legislature is bicameral, consisting of the principal chamber (Sejm) and the Senate (Senat). The Sejm consists of 460 members elected by list PR with open lists in 41 constituencies. The 100 senators are elected by block vote in 40 constituencies.78 The national threshold for the Sejm is five percent for parties and eight percent for coalitions. Parties representing national minorities are exempt from this requirement (Election Law, Articles 133-134). Article 2.2 of the Law on National and Ethnic Minorities and Regional Languages of 8 January 2005, identifies nine national minorities in Poland: Armenian, Belarusian, Czech, German, Jewish, Lithuanian, Russian, Slovak and Ukrainian. However, in the 2007 elections, only the German minority in the Opole constituency in Silesia took advantage of this option.79 The German minority party Deutsche Minderheit, established in 1990, gained seven seats in the 1991 elections and four in the 1993 elections. Support for the party has, however, steadily declined, and in 2005, the party managed to secure only one seat.

76 OSCE/ODIHR 2009a: 4. 77 Blanc, Hylland and Vollan 2006: 75-76. 78 For elections to the Senate, Kraków and Chrzanów form a single constituency. 79 OSCE/ODIHR 2008: 18.

3.3.7 Romania Romania is a unitary republic with a hybrid system of government. The President is directly elected and the government needs the confidence of the parliament. The President’s power is limited but there are frequent conflicts about how the division of powers between the President and the Council of Ministers. The legislature is bicameral, consisting of a Chamber of Deputies (Camera Deputatilor) and a Senate (Senat). Both senators and deputies are elected by List PR with nation-wide compensation. The number of members of each chamber varies with the population and the number of representatives granted as per the special arrangements for minority representation. After the 2008 election, the Senate had 137 members, and the Chamber of Deputies had 334 members.

For both chambers, there are 42 multi-member constituencies corresponding to administrative units plus one that is designated for Romanians living abroad, in total, 4380. Each multi- member constituency is further divided into ‘uninominal colleges’, which are kinds of single- member constituencies where candidates are running, but the representation depends on the proportional representation of seats not directly related the results of the election in the uninominal college81. The number of such uninominal colleges corresponds to the number of seats of the multi-member constituency, provided that there is at least four for the Chamber of Deputies and two for the Senate in each multi-member constituency.

In order to win seats, there is a nationwide threshold of five percent for both chambers. For alliances, the threshold is increased with three percent for the second party and one percent for subsequent parties, up to a maximum of ten percent. For the Chamber of Deputies, the threshold may also be met if the list party or alliance’s candidate comes out first in at least six uninominal colleges and for the Senate three.

Candidates are nominated by parties and alliances in the uninominal colleges, restricted to one per electoral competitor. The voters vote for one of these candidates. Candidates who win more than fifty percent of the votes in a uninominal college and belong to a competitor having passed the threshold are elected. After this, the votes per electoral competitor are added up to national level and it is determined how many seats each competitor is entitled to per multi- member constituency. The seats already won in the uninominal colleges are deducted from the result and the rest of the seats are given to unelected candidates in uninominal colleges where the seat is not filled according to the candidates’ relative strength.

The system will produce a close to proportional result nationwide and it will secure geographical representation, but the candidate with the highest number of votes in a uninominal college is not necessarily elected.

There are special arrangements for the representation of national minorities, defined as groups represented in the Council of National Minorities (approximately twenty). The rules are

80 Election law (Law No 35) last changed on 13 March 2008. 81 With the exception mentioned below.

58 aimed at guaranteeing representation to the smaller minorities such as Roma, Bulgarians, Ukrainians, etc., whereas the largest minority, the Hungarians, is represented without any affirmative action.

The Constitution Article 62 paragraph 2 states that “Organizations of citizens belonging to national minorities, which fail to obtain the number of votes for representation in Parliament, have the right to one Deputy seat each, under the terms of the electoral law. Citizens of a national minority are entitled to be represented by one organization only”.

The electoral law specifies (Articles 9 (1) and 47 (4)) that a minority group not winning a seat in Parliament (any house) by the ordinary election will get one deputy, provided that the organisation has won in the whole country, at least ten percent of the average number of validly cast votes for a Deputy. In the last elections, eighteen minority parties have won one seat each under this provision.

3.3.8 Serbia Serbia is a unitary republic with a parliamentary political system. The President is mainly a ceremonial head of state. The Parliament is unicameral and has 250 members. These are elected from the whole territory as one constituency through a closed List PR system (Election Law, Article 4) with an electoral threshold of five percent (Election Law, Article 81).

Parties “whose basic aim is to represent and stand for the interests of an ethnic minority... shall be considered political parties”, according to Article 81 of the Election law. Once an electoral list is proclaimed, the Republic Electoral Commission decides whether the submitter of the electoral list should be considered an ethnic minority party or coalition. These parties are exempt from the electoral threshold.

There is also a gender quota enshrined in Article 40a of the Electoral law, imposing a nomination percentage and rank order to electoral lists:

For every four candidates on the electoral list (first group of four places, second group of four places and so on until the end of the list) there shall be one candidate of the gender less represented on the list, and the number of candidates of the gender less represented on the list shall be at least 30 percent of the total number.

3.3.9 Slovenia Slovenia is a unitary republic with a parliamentary political system. The President is mainly a ceremonial head of state. The Slovenian parliament is bicameral and consists of a National Assembly and a National Council. The National Assembly of Slovenia consists of ninety deputies. Of these, eighty-eight are elected from eight eleven-member constituencies (Election Law, Article 20). These are elected by List PR from open lists with an electoral threshold of four percent (Constitution, Article 80). The 40 members of the National Council are indirectly elected by interest groups.

One deputy of the Italian and one deputy of the Hungarian national communities shall always be elected to the National Assembly (Constitution, Article 80). Only members of the Italian

59 and Hungarian national communities shall have the right to vote for and be elected as deputies of these national communities (Election Law, Article 8). Special constituencies are to be formed “in those areas in which these communities reside”. The two candidates are elected by de Borda Count. Each voter gives a number from one up to the number of candidates to the candidates, in order of their preference. The Election Law Article 94 describes the counting:

Points shall be assigned to candidates according to orders of preference. For each first place the candidate shall receive as many points as there were candidates on the ballot paper, and for each successive place a point less. The points of each candidate shall be totalled. The 40 members of the National Council are indirectly elected and represent “social, economic, professional and local interests”:

It is composed of: four representatives of employers; four representatives of employees; four representatives of farmers, crafts and trades, and independent professions; six representatives of non- commercial fields; twenty-two representatives of local interests (Constitution, Article 96).

3.3.10 Main Findings Only in Bosnia and Herzegovina and in Kosovo are the quotas the main elements of a power- sharing agreement between groups who had been in conflict. In Bosnia and Herzegovina, they are accompanied by a set of decision-making rules that make up the power-sharing and their effects are discussed in detail in the in-depth study.

The other quota arrangements in this area are mainly introduced in order to accommodate small groups that would otherwise not be represented and the technical implementation is well-integrated into the general system.

3.4 Middle East and North Africa

3.4.1 Introduction Lebanon is the only country in the region that has introduced quotas as part of a power- sharing agreement after conflict. The other countries in this region have quotas in order to increase diversity but not necessarily to prevent conflict.

Table of systems Middle East and North Africa Electoral System Democracy Country Basis of Quota Type of quota Index People’s Assembly Requirements to (Majilis al-Sha’ab) Social group result

Direct, two-member Best runner-up majoritarian (TRS) + Earmarked seats presidential Separate race in EGYPT appointment Gender earmarked

constituencies Not free Parliament (Majilis al-Sha’ab) Advisory Council (Majilis al-Shura) Requirements to Direct, single- Social group result member majoritarian Best runner-up (TRS) + presidential appointment Chamber of Earmarked seats Deputies Religion Earmarked sub (Majlis al-Nuwaab) districts SNTV in multi- member JORDAN Not free (partly constituencies Gender Best runner-up National Assembly free in 2009) House of Notables (Majlis al-Aayan) Appointed by the No quota King National Assembly (Majlis al-Nuwaab) All seats are earmarked in multi- LEBANON Religion Partly free Block vote in multi- member member constituencies constituencies Palestinian PALESTINIAN Requirement to the AUTHORITY Legislative Council Parallel (List PR / Religion result, best runner- Not ranked up Block vote) People’s Assembly Social Group SYRIA Not free Block vote (workers and farmers)

3.4.2 Jordan Jordan is a unitary, hereditary monarchy. The King appoints the Prime Minister and cabinet ministers. Parliamentary approval is not required (Constitution, Article 35). The Chamber of Deputies can vote no-confidence in the government (Constitution, Articles 53-54), whereas the King can dissolve both houses of the legislature and remove individual senators (Constitution, Articles 34 and 74).

The National Assembly is bicameral. There are 120 seats (after the 2010 reform) in the Lower House of Parliament or the House of Deputies (Majlis al-Nuwaab), elected by SNTV. The Senate, the House of Notables (Majlis al-Aayan), has 60 seats, all appointed wholly by the King. Laws are drafted upon request from the relevant house committee (Constitution, Article

95). A two-thirds majority in both houses is required to pass laws. If either house rejects the bill, “it shall not be placed again before the House during the same session” (Constitution, Article 92). Once a draft law is passed, it is submitted to the King for ratification. The King may choose to refer it back to the house within six months, in which case, a two-thirds majority in both chambers is required to override a royal veto (Constitution, Article 93).

The Jordanian Parliament was suspended in November 2009, after its members had served only half of their terms. At the same time, the King ordered that a new election law be drafted. This was to be part of a broader reform effort. The new election law that was promulgated in May 2010 retained both a variant of the SNTV system and the quotas for women and religious minorities from the previous laws, but with some important changes. The law responded to some key reformist demands, by adding four seats to cities with large Palestinian populations who have been continuously underrepresented in Parliament. According to the new election law, the country is divided into 45 multi-member constituencies out of which three are reserved for Bedouins, which are further subdivided into so-called virtual 108 single-seat sub-districts. The sub-districts are partly geographical and partly reserved for Christians (nine), Circassians (three) and Bedouins (nine). Candidates run in the 108 sub-districts but voters may cast one vote for any candidate of any virtual sub- district in the constituency. The candidate with the highest number votes per sub-district is elected. The extra female quota was doubled from six to twelve. The female candidates, not already elected, with the highest proportion of the votes in their sub-district nationwide are elected, provided that there is not more than one woman elected of the female quota from any of the twelve governorates or three Bedouin constituencies.

The most important demand was not met, however, and that was to replace SNTV with a more proportional system. However, the King called for political and electoral reform in early 2011 to encourage increased participation in the political process. A National Dialogue Committee was formed by the King in early 2011 to make reform recommendations to the Government. This national debate regarding political and electoral reform is ongoing as of August 2011.

3.4.3 Lebanon Lebanon is a unitary republic with a hybrid form of government. The executive powers are shared between an indirectly-elected president and a prime minister and they form a cabinet together. The legislative is unicameral. Laws are passed by regular (not qualified) majority. A presidential veto may be overridden by a majority vote (Constitution, Article 57).

The legislature is unicameral. 128 representatives are directly elected by the block vote system from 27 constituencies. The total number of seats is equally distributed between Christian and Moslem candidates. The Christian seats are further distributed with a fixed number to Maronite, Greek Catholic, Greek Orthodox, Evangelical, Armenian Catholic, Armenian Orthodox and Christian Minorities; whereas the Muslim seats are distributed to Sunni, Shi’a, Druze and Alawi. Every seat is earmarked for a confessional group in every constituency. The candidates who win the highest number of votes for each religious community running in a constituency are elected. As one of three selected case studies,

Lebanon is only summarily described here. See Chapter 4 for a more thorough presentation of the Lebanese election law and the background to it.

3.4.4 The Palestinian Territory The Palestinian Territory consists of the West Bank and the Gaza Strip. The political system is stipulated in the Palestinian Basic Law. While a new Election Law was issued by presidential decree in 2008, the following is based on the Election Law that was adopted by the Palestinian Legislative Council (PLC) in 2005.

The Palestinian Territory does not constitute a state, but is a partly self-ruled Palestinian Authority under Israeli occupation. The current status of the political institutions and separate geographical entities are defined in the so-called Oslo Agreements of 1993 and 1995 and subsequent agreements. The political system is a hybrid system with a strong president but with a government that needs the confidence of the PLC. The PLC is unicameral. The legislature can override a presidential veto with a two-thirds majority (Basic Law, Article 41). Laws can be subject to constitutional review by the High Court until a Constitutional Court has been established (Basic Law, Article 103).

The PLC has 132 members elected according to a parallel system. Half of the members are elected under the block vote system in sixteen constituencies. The other half is elected by List PR from one territory-wide constituency (Election Law, Article 3). Each constituency gets a number of seats according to the size of its population, but with a minimum of one from each. Voters get two ballots – one for the constituency elections, and one for the territory-wide elections. The two elections are independent of each other in the sense that the distribution of seats in the proportional election is not dependent on the distribution in the constituencies. Parties can nominate as many candidates as there are seats in the constituency. The voter can vote for up to as many candidates on the list as there are seats in the constituency. She or he may choose candidates across affiliations. The candidates with the highest number of votes are elected. 82

In a few constituencies, there is a quota for Christians, six seats in total. These are distributed to the constituencies according to a presidential decree (Article 3.a). In addition, there is a quota for women applied to the List PR race. Every list must fulfil the following criteria to be accepted: Among the first three candidates at least one has to be a woman, among the first seven there must to be two, among the first twelve there must three and then one more for each step of five (Election Law, Article 4).

In 2007, a new Election Law introducing a fully proportional system was introduced by presidential decree.83 Due to the political impasse between Fatah and Hamas, the new Election Law has not been ratified by the Legislative Council.

82 For a thorough introduction of the Palestinian Electoral system, see Butenschøn and Vollan 2006. 83 See information about the presidential decree at the website of the Palestinian General Elections Commission, http://www.elections.ps:90/template.aspx?id=143&sndx=2 .

3.4.5 Main Findings The quota systems applied in this area are mainly designed to favour religious minorities who have existed in the region for centuries, except for the cases of the peasant and worker quotas in Syria and Egypt. Some quotas also favour ethnic minorities.

It is only in Lebanon that the quotas are a direct answer to a communal conflict and where they form an important element in a power-sharing arrangement. The system in Lebanon combines a winner-takes-all system (block vote) with extensive quotas in a way where the voters' choice is becoming unnecessarily limited and where the voters from minority groups feel overruled by the majority. For further discussions on Lebanon see Chapter 4.

3.5 Sub-Saharan Africa

3.5.1 Introduction Here we should first reiterate that the countries included in the study only include those that have some kind of quota or affirmative action for ethnic, linguistic, etc. groups. This means that important conflict countries, such as Sudan, Congo and Zimbabwe are left out even if they have severe ethnic conflicts.

The Burundi and Rwanda conflicts

Only Burundi has quotas that reflect the conflict between Hutus and Tutsis. Rwanda has chosen a different path by rather understating the ethnic conflict and emphasising that every person is equal. The way it is implemented in Rwanda is based upon an autocratic leadership and would fall outside a study of what we consider to be models of democratic reconciliation. We have, however, chosen to include Rwanda in the study for the comparison with Burundi, even though the selection criteria otherwise being employed would not have given the country space.

Table of systems Sub-Saharan Africa Country and Basis of Democracy name of Electoral System Type of quota Quota Index assembly Requirements to candidate nominations of the two major ethnicities Requirements to the result: Supplementing from lists to Ethnicity National Assembly top quota (Inama NshingmateKa) Earmarked seats: Appointment of representatives of the small List proportional + appointments group Twas from predefined lists BURUNDI Requirements to candidate

Gender nominations Requirements to Parliament Partly free result (Parlement) Earmarked seats Indirect elections by electoral Ethnicity colleges Separate race for Hutus and Senate (Sénat) Indirect, double Tutsis Appointment of Twas member majoritarian (three from predefined lists round system) + appointments Requirement to results Supplementation by Gender the election commission from lists to top quota House of People’s Representatives (Yehizbetewekayoch Mekir Bet) Ethnicity Earmarked seats with Indirect elections to ensure quota ETHIOPIA Single-member plurality (FPTP) Not free

Parliament (Mekir + indirect elections (partly free in Bet) House of Federation 2011) Requirements to results (Yefedereshn Mekir Bet) Ethnicity Electoral colleges to ensure Indirect, single-member plurality quota for small ethnic groups (FPTP) + indirect elections List PR from separate, closed House of Representatives Social party lists, based on the FPTP + representation based groups distribution of seats in upon the representation of the parliament directly elected members Gender Reserved seats FPTP KENYA List PR from separate, closed Partly free Parliament Social party lists, based on the Senate groups distribution of seats in FPTP + representation based parliament upon the representation of the List PR from separate, closed directly elected members party lists, based on the Gender distribution of seats in parliament

National Assembly Requirements to results for major MAURITIUS Multimember plurality Ethnicity groups Free

(block vote) Best runner-up Earmarked seats Ethnicity Earmarked constituencies with FPTP NIGER National Assembly for small groups Partly (Assamblée National) free Requirements to candidate Mixed (List PR/FPTP) Gender nominations

Chamber of Deputies Youth and disabled Earmarked seats (Umutwe w’Abadepite) Indirect elections based on FPTP by interest groups Direct election with List PR in one single Earmarked seats constituency Indirect elections based upon FPTP Indirect election Gender by electoral colleges in administrative units and requirements RWANDA to result in the regular race Parliament Not free (Inteko Ishinga Requirements to candidate Social groups Amategeko) The Senate nominations (Historically (Umutwe wa Sena) Requirements to result marginalized groups Appointment by president and and academics) List PR indirect elections by interest groups to fill quota Indirect and Requirements to candidate appointments nominations Gender Requirements to result

Indirect elections based by local councils Earmarked seats Special interest Indirect elections by electoral National Assembly groups UGANDA Direct, single-member colleges Partly plurality (FPTP) + free National Assembly indirect elections + Earmarked seats appointments Gender Separate race

3.5.2 Burundi Long-standing tension between Hutus and Tutsis has led to several periods of serious ethnic violence in Burundi, the last of which was ended by the Arusha Peace and Reconciliation Agreement of 2000. The agreement set 31 October 2004 as the deadline for the end of a transitional period, but it would take one more year before Burundi’s current constitution was approved in a popular referendum in 2005. Parliamentary elections followed under a new election law, introducing ethnic quotas. This was further amended in 2009, without significantly altering the quota mechanism.84 Hutus and Tutsis are the two major ethnic groups in Burundi, constituting 85 and 14 percent of the population respectively. Twas

84 The Election Law was amended in 2009, but alterations to the quota were minor, and the content of this presentation still applies. 66

(Pygmies) are estimated to form one percent of the population.85 The constitutional and electoral framework fixes the relative balance between Hutus and Tutsis in both houses of parliament, while at the same time guaranteeing a minimum representation for Twas (Constitution, Articles 164 and 180).

Burundi is a unitary republic. The political system is presidential, but the overall composition of the cabinet must be proportional to the representation of parties in the National Assembly (Constitution, Article 129), which derives from an underlying consensus model. Parliament consists of a principal chamber, the National Assembly (Inama NshingmateKa) and the Senate (Sénat) (Constitution, Article 147).

Burundi is divided into seventeen provinces, each constituting one constituency. The number of deputies that each constituency sends to the National Assembly is proportional to the population (Election law, Articles 126 and 128), and the total number of deputies is to be no less than 100 (Constitution Article 129). Elections for the National Assembly are list proportional with closed lists (Constitution, Article 129). The electoral threshold for a party to be considered elected to the National Assembly is five percent of the national vote (Constitution, Article 169; Election law, Article 156). Elections for the Senate combine indirect elections through local electoral colleges and appointments by the Electoral Commission. In addition, former heads of state are members ex officio.

The legislative framework contains elements of minority protection as well as power-sharing between the two major groups. Of the 100 deputies in the National Assembly, at least 60 percent must be Hutu, and 40 percent Tutsi.86 Furthermore, at least 30 percent of the deputies are to be women (2009 Election Law, Article 108).

In order to achieve the quotas, every party must include at least one Hutu and one Tutsi for every three candidates on their lists. At least one out of four members of the list must be a woman (Constitution, Article 168 and Election Law, Article 108). If this is not sufficient to ensure a 60-40 Hutu-Tutsi split and 30 percent female representation in the National Assembly, the Electoral Commission will allocate additional seats to rectify the imbalance. These candidates are chosen from lists of political parties or independents who have obtained at least 5 percent of the vote (Election Law, Article 108)87. Three additional seats are allocated to Twas from different regions. These are chosen from lists presented by recognized Twa organizations, taking geography and gender distribution into account (Election Law, Article 108).88

85 CIA World Fact Book, https://www.cia.gov/library/publications/the-world-factbook/geos/by.html, . 86 The constitution (Article 129) applies the same principle to the executive. Article 143 of the constitution also applies the ethnic quota to the Burundian bureaucracy, but not the gender quota. The Twas are only assured places in the Parliament, and not in the executive branch or the bureaucracy. 87 The constitution does not advise on how the Electoral Commission shall ensure the balance between the parties in their appointments. 88 The Burundian Election Law was revised in 2009, removing an earlier provision aimed at ensuring broad political representation: “If, in the first elections, a party gets more than three-fifths of the seats in direct elections, a total of 18-21 additional representatives are to be appointed by the National Independent Election

The Senate consists of two delegates from each province: one Hutu, and one Tutsi. These two delegates are elected by a multi-ethnic electoral college in each district in separate races. The electoral colleges consist of members from the communal councils (Election Law, Article 141). Each member has two votes, one for a Hutu, and one for a Tutsi candidate.89 The two candidates are elected in a three-round system, whereby each party or group of independent individuals presents a candidate and a deputy. The candidate is elected who obtains a two- thirds majority of the votes. If this is not achieved in the first round, a second round is arranged. If the required majority is still not achieved, a third round is organized between the two candidates who obtain the largest number of votes. The candidate who gets the highest number of the votes is elected (Election Law, Article 141).

At least 30 percent of the senators have to be women. If this percentage is not achieved, the Electoral Commission allocates additional seats to parties having reached the 5 percent threshold in order to rectify the imbalance. This is done in consultation with the concerned parties. In addition, three seats are reserved for the Twa (Constitution, Article 161).

A quota is also applied to the Burundian executive. The President of the republic is assisted by two vice presidents who deal with political and administrative issues and economic and social issues respectively (Constitution, Article 122). The two vice presidents may neither be of the same ethnicity, nor from the same party (Constitution, Article 124). Sixty percent of government ministers and deputies must be Hutu, and 40 percent are to be Tutsi. At least one- third of the ministers must be women (Constitution, Article 129).

Bills are presented to the Senate and the National Assembly simultaneously (Constitution, Article 188). Articles 175 and 186 of the Constitution require a two-thirds majority (and at least half the total membership voting in favour) in both houses in order to adopt laws, e.g. Article 175 states:

The National Assembly may not deliberate laws unless two thirds of all members are present. Laws are passed with a two-thirds majority of all members or deputies present. Organic Laws are passed by two thirds of the members present or their deputies, unless this majority is less than the absolute majority of all members in the National Assembly. Resolutions, decisions and important recommendations are passed with a two-thirds majority of members or deputies present. These majority requirements also apply to the Senate. The Senate, however, does not vote on resolutions, decisions and recommendations (Constitution, Article 186). The Senate comments or suggests amendments to the legislation adopted by the National Assembly (Constitution, Article 187.7-8). The Senate also approves amendments to the constitution and organic laws, giving the upper house a stronger role in constitutional matters (Constitution, Article 187.1). While the Senate has the power to review legislation from the National Assembly, it does not have a full veto (Constitution, Article 188-190).

Commission in equal numbers from lists who have achieved at least 2% of the vote or two persons from each list in case more than seven lists have reached the above mentioned threshold.” 89 Reyntjens 2005: 128.

Laws adopted by parliament are promulgated by the president, unless the president decides to request a second reading, in which case the same text will need a three-fourths majority in both houses in order to be promulgated (Constitution, Article 197). Laws are subject to constitutional review by the constitutional court, where the judges must be approved by the Senate (Constitution, Article 187; 228).

In sum, the Burundian electoral system attempts to guarantee an equitable power balance between the two major ethnic groups, while also guaranteeing a minimum representation for one small minority. This is done by imposing requirements on nomination percentage for the National Assembly, appointment by the electoral commission from predefined lists, by ensuring bi-ethnic provisional delegations to the Senate, and by imposing requirements on the final distribution of seats in both houses. Considering the 40 percent quota, the Tutsis are severely over-represented in parliament and the executive, constituting only 14 percent of the population. The two-thirds majority requirement provides even further protection, making it impossible for the Hutu majority to pass laws without some support of the Tutsi minority.

The Arusha Agreement ended a 13 year-long civil war between the Hutu majority and the Tutsi minority, which had been in power since Burundi achieved in dependence in 1962. The agreement aimed to devise a power-sharing formula including a quota that would make the Tutsi minority over-represented in parliament in order to enable them to defend their rights and interests. While the 2005 elections went calmly, the political situation has since deteriorated. The former rebel group, Conseil national pour la défense de la démocratie – Forces de défense de la démocratie (CNDD-FDD), gained complete control of all branches of government, and the security sector was restructured with CNDD-FDD fighters coming to constitute 40 percent of the army.90 The government has arrested critics, stifled the press and tightened control of the economy. It also launched military operations against the last remaining rebel group, the Palipehutu-FNL. CNDD-FDD still displays some of its authoritarian character, which is a legacy from its past as a guerrilla movement. 2008 was marked by political infighting and repeated purges within the party.

The ethnic balance stipulated in the constitution has been maintained, and CNDD-FDD emerged as the most multi-ethnic party after the elections, with 30 percent of its elected deputies being Tutsi. While the first post-election cabinet conformed to the ethnic formula, it did not comply with the requirements of a proportional representation of the political parties.91 Parliamentary work was seriously hampered as a result of friction between CNDD- FDD and the opposition over the composition of the government, as well as within the CNDD-FDD itself over the authoritarian style of the party leadership and lack of transparency within the party. These combined factors sparked a series of defections from the CNDD-FDD in parliament, and a boycott by opposition parties. After protracted negotiations, a new cabinet was appointed that gained the acceptance of the major opposition parties. However, the underlying causes of the 2007 parliamentary crisis have not been resolved.

90 International Crisis Group 2005. 91 For a breakdown of the cabinet and parliament, see Falch 2009: 10-11.

Prior to the July 2010 parliamentary elections, all opposition groups except one (UPRONA), boycotted the polls, citing massive electoral fraud in local elections immediately preceding the parliamentary elections. As a result, the CNDD-FDD party took 81 of the 106 seats in the lower house of parliament. UPRONA, the only opposition group to take part in the polls, won 17 seats and another smaller party won five. At the time of writing, there have been no official talks between the opposition parties and the government. There have, however, been frequent clashes between the security forces and unidentified armed men that are believed to be linked to some opposition leaders. 92

3.5.3 Rwanda

Rwanda is a unitary republic with a presidential system. Hutus constitute the largest ethnic group with 84 percent of the population. 15 percent are Tutsi, and 1 percent belongs to the Twa. The legislature is bicameral and consists of the Chamber of Deputies and the Senate. Deputies serve for five years, and Senators for eight years (Constitution, Article 82). The Chamber of Deputies consists of 80 members. Of these, 53 are directly elected by List PR with a five percent national threshold. The lists must reflect gender equality. In addition, 24 women (two from each Province and the city of Kigali) are indirectly elected by a joint assembly composed of district municipalities, city councils and the executive committees of women’s organizations. Furthermore, two members are indirectly elected by the National Council and one by the Federation of the Associations of the Disabled (Constitution, Article 76-77). The gender quotas on the lists and the separate race for women have led to a clear majority of women in the Chamber of Deputies (56.3 percent in 2008).

The Senate consists of 26 members who are either indirectly elected or appointed. In addition, former Heads of State become members of the Senate upon their own request. Organs responsible for nominating Senators are required to consider national unity and gender representation. The constitution (Article 82) requires at least 30 percent of Senators to be women, but does not specify what will happen if the quota is not met. Twelve of the Senators are indirectly elected by members of the Executive Committees of Sectors and District, Municipality, Town or City Councils of each Province and the city of Kigali. Four members are designated by the Forum of Political organizations. Two academics are indirectly elected by academic and research staff from academic institutions. In addition, the President may appoint eight members in order to ensure representation of historically marginalized communities (Constitution, Article 82).

The genocide in Rwanda occurred when the Rwandan Patriotic Front (RPF), which had been embroiled in a civil war against the government since 1990, seized most of Rwandan territory and drove the regime into exile in 1994. Until 2003, RPF ruled the country under a consensual dictatorship in which it shared power with a limited number of political parties.93

A new constitution adopted in 2003 provided for multi-party elections, followed by presidential and parliamentary elections in the same year. New parliamentary elections were

92 International Crisis Group 2011: i. 93 Freedom House, Countries at the Crossroad 2007, Country Report – Rwanda, http://www.freedomhouse.org/uploads/ccr/country-7259-8.pdf .

70 held for the Chamber of Deputies in 2008 and presidential elections were held in August 2010. The 2003 constitution strongly emphasises national unity and pledges to “fight the ideology of genocide and all its manifestations and to eradicate ethnic, regional and any other form of division”.

Parties based on ethnicity and religion are not allowed (Constitution, Article 54). While the constitution provides for strong anti-discrimination measures, democratic structures have not evolved in post-genocide Rwanda. The 2003 elections were marred by bias and intimidation, and while elections in 2008 took place in a peaceful environment, the EU observer missions cite a number of fundamental shortcomings regarding international and regional standards for democratic elections 94. There was no real political competition between the parties, and subsequently, no real opportunity for rotation of power. The strong anti-discriminatory provisions in the constitution had in fact become a useful tool for silencing critics, citing divisionism or ’genocidal ideology’.

3.5.4 Ethiopia Ethiopia is a federal republic, consisting of nine regional states (Constitution, Article 45-47). “Six of these are dominated by one particular group". Christophe Van der Beken describes these as “ethnic states, which provide a forum for the nominal ethnic groups to different aspects of their rights to self-determination” as provided in the constitution. The Tigray ethnic group is dominant in the Tigray state, the Afar in Afar, the Amhara in Amhara, the Oromo in Oromia, the Somali in Somalia, and the Harari in Harar. Subsequently, “the large majority of Ethiopia’s more than 80 ethnic groups does not dominate a particular state, but rather constitutes a minority in one of the six ethnic states or in the three remaining multi-ethnic states. 95

The Ethiopian constitution distinguishes between ‘nations, nationalities, and peoples’, who have the right to form their own states within the federation, and ‘minority nations’ (Constitution, Article 9). The constitution defines a ‘nation, nationality or people’ as “a group of people who have, or share large measure, of a common culture or similar customs, mutual intelligibility of language, belief in a common or related identities, a common psychological make-up, and who inhabit an identifiable, predominantly contiguous territory” (Article 39.5) Minority nations are defined as “a community determined, by the House of People’s Representatives or its successor, to be of a comparatively smaller size of population than that of other nations/nationalities” (Election law, Article 2.5).

The legislature is bicameral and consists of the House of People’s Representatives (Yehizbetwekayoch Mekir Bet), which is the lower house, and the House of Federation (Yefedereshm Mekir Bet), which is the upper house (Constitution, Article 53). The House of Federation does not enact legislation, but interprets the constitution and considers the constitutionality of legislation (Constitution, Article 62). In addition, it has roles regarding the rights of nations, nationalities, and peoples.

94 European Union Election Observation Mission, 2008. 95 Van der Beken 2009: 17.

The Ethiopian parliament (Mekir Bet) was established in the 1994 constitution. The electoral system for both chambers of parliament is based on plurality elections in single-member constituencies, FPTP (Constitution, Article 54.2; Election law, Article 13, 15).96 The House of Peoples' Representatives consists of no more than 555 directly-elected members. Of these, minority nationalities and peoples shall have at least 20 seats (Constitution, Article 54.1-3). These are elected from earmarked constituencies. In the 2005 elections, there were 22 such “special constituencies”.97 The electoral law does not specify how the minority representatives are to be elected. Convention, however, is that they are elected through the regional councils.

The composition of the House of Federation is designed to provide a balance of power between the major national groups, as they are defined in the constitution and election law. The House of Federation is tasked with constitutional interpretation and deciding issues related to national self-determination. It has no legislative role. Article 61 in the constitution stipulates that:

1. The House of the Federation is composed of representatives of Nations, Nationalities and Peoples. 2. Each Nation, Nationality and People shall be represented in the House of the Federation by at least one member. Each Nation or Nationality shall be represented by one additional representative for each one million of its population. These delegates are indirectly elected by electoral colleges within the State Councils. The State Councils may, however, decide to hold elections for their representatives (Constitution Article 54, 61). For the purpose of electing the delegates, the House of Federation may draw their own constituencies based on a pre-determined procedure (Election Law, Article 15).

Constitutionally, residual powers lie with the regional states (Article 52). The right to self- determination for ethnic groups has been a double-edged sword in that culturally repressed groups have been able to use their own language in education and administration. On the other hand, the system has sparked new ethnic frictions inspiring groups to separate from other already-established groups.98 It is also not clear whether the regional states have sufficient competences.99 In particular, the fiscal powers assigned to the regions, do not generate sufficient revenue to cover regional expenditure. This undermines a truly autonomous exercise of the regional powers.

The most important impediment for meaningful power-sharing in Ethiopia, however, does not lie in the relationship between the state and the regions, but in the dominant role of Ethiopia’s leading political organization coalition, the Ethiopian People’s Revolutionary Front (EPRDF).100

96 A 2007 draft for a new election law indicates that the election law may be amended. We have not found any sources that indicate that this draft has been ratified. In the draft, the definitions of minority nation are abolished. It does, however, include reference to the constitutional guarantee of at least 20 minority seats in the principal chamber. http://ethiopolitics.com/pdfiles/ELECTIONLAW_UNVEILED.pdf . 97 European Union Election Observation Mission, 2005: 9. 98 Siegfried Pausewang, “Landprofil 2006-2007: Etiopia”, Fellesrådet for Afrika, http://www.afrika.no/Detailed/14445.html . 99 Van der Beken 2010: 91-92. 100 Van der Beken 2010: 14-16.

The EPRDF was established in 1989 by the Tigray People’s Leadership Front (TPLF) as an umbrella of ethno-national fronts, including the Amhara National Democratic Movement (ANDM), the Oromo People’s Democratic Organisation (OPDO), and the South Ethiopian People’s Democratic Movement (SEPDM). TPLF, ANDM and OPDO were established to represent the Tigrayans, Amhara and Oromo respectively; whereas the SEPDM represents the diverse ethnic groups of the multi-ethnic Southern region. That makes EPRDF effectively into a party specifically for Tigray, Oromia and the Southern regional states.

In addition, the EPRPDF has formed satellite parties in all ethnic groups in order to maintain control of the remaining regions.101 Competing parties have systematically been obstructed. One example is how obstruction of the Oromo People’s Democratic Organisation (OPDO)'s attempts to run candidates for elections and compete with EPRDF’s own Oromo party. The federal power-sharing arrangement is in many instances not reflective of realities. EPRDF's highly centralized party structure and strong control of public administration, courts and police counteract the federal structure of the state. Furthermore, the central party apparatus regularly interferes in decisions made on the regional party level.

Since adopting the 1994 constitution, Ethiopia has held general elections in 1995, 2000, 2005 and 2010. EPRDF has been able to consolidate its power since the country’s first elections were held in 1995. In the 2010 elections, the party captured 534 out of 536 declared seats.102 In 2005, the party gained 327 seats after initial reports that the CUD had won overwhelmingly in the capital Addis Ababa and major cities. Both CUD and the government declared themselves as winners of the elections. More than 40 people were killed in demonstrations, and the security forces clamped down hard on the opposition, arresting its leaders and thousands of supporters. This repression has caused widespread resentment. Support for the federation is also being challenged by a growing pan-Ethiopian nationalism, fuelled by the1998-2000 war against Eritrea. The tense relationship with Eritrea has in turn reinforced the government’s brutality towards the opposition in Ethiopia.

While the 2010 elections were relatively calm, observers from both the US and the EU state that the polls did not meet international standards. This is mainly related to the EPRDF’s use of state resources for campaigning. A new electoral code adopted in 2009 caused widespread protests among opposition parties, who claimed that the electoral code is designed to maintain the leading position of the EPRDF. A new press law and law on the registration of political parties were also criticized.103 At the time of writing, no observer reports were finalized on the 2010 elections. The EU election-monitoring report on the 2005 elections, however, cites abuse of human rights such as freedoms of expression, association and assembly.104

101 Pausewang, ‚”Etiopia”, see note above. 102 Tronvoll 2011. 103 European Parliament resolution of 15 January 2009 on the situation in the Horn of Africa, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2009- 0026+0+DOC+XML+V0//EN . 104 European Union Election Observation Mission, 2005: 19.

3.5.5 Kenya Kenya is a unitary state with a hybrid form of government. The parliament is bicameral and the powers of the two chambers are rather similar except for money bills, which are to be passed by the principle chamber (National Assembly) only.

According to the 2010 constitution, the National Assembly has 290 members elected by FPTP in single-member constituencies. In addition, 47 women are elected from each county constituting a single-member constituency. Lastly, twelve members are elected from pre- prepared party lists according to their proportion of members of the National Assembly. These twelve represent special interests including the youth, persons with disabilities and workers. The speaker is an ex officio member (Constitution, Article 97).

For the Senate, 47 members are elected from single-member constituencies corresponding to Kenya’s counties (Constitution, Article 98). Sixteen female members are elected from pre- prepared party lists according to their proportion of members of the Senate. Two youth and two disabled members are elected in the same manner, two men and two women respectively.

The new constitution is part of a compromise reached after riots following a highly controversial presidential election in December 2007. Incumbent President Mwai Kibaki was declared winner in spite of opposition leader Raila Odinga’s claims of victory and exit polls indicating a clear victory for Odinga. Hundreds of people were killed in riots by the opposition, which claimed that Kibaki had manipulated the elections .

An ongoing debate over the need for constitutional reform gained momentum after the riots, and the new constitution was adopted in August 2010. The Constitution reaffirmed the hybrid executive model that had been part of the political deal following the riots and it introduced a number of improvements in basic rights. Elections according to the new constitution are expected in 2012.

3.5.6 Mauritius The Dutch occupied Mauritius in 1598 and the island’s current multi-ethnic population are mainly descendants of people who were brought in from different parts of the world to work: Africans came as slaves, Indians as indentured labourers, and in the early 1900s, a small community of Chinese came as traders. The island became home to a number of ethno- religious groups, divided at present as follows: Hindus (52 percent); Muslims (16 percent); Creoles of African ancestry (27 percent); Chinese (3 percent); and Franco Mauritians of European ancestry (2 percent).105 In 1968, the island gained independence from Great Britain and became part of the Commonwealth.

Mauritius is a unitary republic with a semi-presidential form of government, with a prime minister as head of government and an indirectly-elected president as head of state. The parliament is unicameral (the National Assembly) and has 70 members (Constitution, Article 31.2). The Prime Minister and Deputy Prime Minister are appointed by the President on the basis of who enjoys the support of the legislature (Constitution, Article 59). Ministers are

105 Bunwaree and Kasenally 2006: 6.

74 appointed by the President on the recommendation of the Prime Minister. Parliamentary approval is not required (Constitution, Article 59). The President is elected by the National Assembly, on a motion by the Prime Minister (Constitution, Article 28).

Elections in Mauritius are governed by the Representation of the People Act of 1968 (amended 1976, 1982, 2005) and the Constitution, First Schedule.106 The electoral system of Mauritius is a multi-member constituency plurality (block vote) system. The country is divided into 21 constituencies (Constitution, Article 39). According to the First Schedule, Section 31 (2), Article 1,

There shall be 62 seats in the Assembly for members representing constituencies and accordingly each constituency shall return 3 members to the Assembly in such manner as may be prescribed, except Rodrigues, which shall so return 2 members. Each voter gets to vote for the number of representatives corresponding to the number of seats allocated to his or her constituency (Constitution, Schedule 1, Article 1).

The Mauritian population is divided into four constitutionally-recognized communities: a Hindu community, a Muslim community, a Sino-Mauritian community and the General population (Constitution, 1 Schedule, Article 3). In order to ensure an adequate representation of each community, eight seats are allocated to the best runners-up from the communities:

In order to ensure a fair and adequate representation of each community, there shall be 8 seats in the Assembly, additional to the 62 seats for members representing constituencies, which shall so far as is possible be allocated to persons belonging to parties who have stood as candidates for election as members at the general election but have not been returned as members to represent constituencies (Constitution, Schedule 1, Article 5.1). The additional seats are allocated by the Electoral Supervisory Commission to the best runners-up from the appropriate parties and communities. The allocation is based on the provisions prescribed in sub clauses 3-10 of Article 5, Schedule 1:

(3) The first 4 of the 8 seats shall so far as is possible each be allocated to the most successful unreturned candidate, if any, who is a member of a party and who belongs to the appropriate community, regardless of which party he belongs to. (4) When the first 4 seats (or as many as possible of those seats) have been allocated, the number of such seats that have been allocated to persons who belong to parties, other than the most successful party, shall be ascertained and so far as is possible that number of seats out of the second 4 seats shall one by one be allocated to the most successful unreturned candidates (if any) belonging both to the most successful party and to the appropriate community or where there is no unreturned candidate of the appropriate community, to the most successful unreturned candidates belonging to the most successful party, irrespective of community. Underrepresentation is determined on the basis of the 1972 population figure.107

The constitution of Mauritius states that the National Assembly may make laws for the “peace, order and good government of Mauritius”. This phrase is a legacy from Mauritius's

106 The Electoral Commissioner's Office, http://www.gov.mu/portal/site/eco/menuitem.3c8fbbc803ea270b9459d9a365d521ca/ . 107 Bunwaree and Kasenally 2006: 3.

75 colonial past108, and even now, the legislature may not initiate legislation related to taxation, public expenditures or government debt.109 Legislation adopted by the National Assembly shall be signed by the president or returned to the National Assembly within 21 days, requesting a reconsideration of the bill and any possible amendments. If the legislation is passed again, with or without amendment, “the president shall signify his assent” (Constitution, Article 46.2-3).

In spite of sporadic tensions, Mauritius has a reputation for stability and racial harmony. Post- independence in Mauritius has been dominated by three political parties: the Labour Party (LP), Mauritian Militant Movement (MMM) and Mouvement Socialiste Mauricien (MSM). While the support bases of the main political parties are to a large extent ethnically homogenous, "explicit appeals by politicians to ethnic interests and ethnic fears have become uncommon, and are viewed as illegitimate and dangerous. Each of the main political parties includes at least a few prominent politicians from communities other than those from which they draw their main support."110

The majoritarian nature of the block vote system has, however, been blamed for “the proliferation, creation and ultimately the disbanding of political party alliances”. It has also been criticized for triggering “the crude ethnicisation of political parties”.111 There is a broad agreement on the need for electoral reform to correct the lacking proportionality of the electoral system, and Mauritius’ main parties have had electoral reform as part of their political pledges.

Furthermore, the best runner-up system has required party candidates to disclose their ethnic affiliation. In 2005, this clause was challenged by the Rezistans Ek Alternative party on the grounds that it is discriminatory. Candidates from this party refused to specify their ethnic affiliation and took the Electoral Commissioner, Electoral Supervisory Commission and electoral staff in their respective constituencies to court. The Supreme Court ruled in favour of the party, and their candidates were incorporated as qualified candidates for the 2005 elections.112

As early as 2001, a commission on constitutional and electoral reform, the so-called Sachs Commission, was established to review the electoral system.113 The commission produced two reports ahead of the 2005 National Assembly elections. Among their proposals was an enlarged National Assembly (from 70-80) elected by a semi-proportional system. The constitution was amended in 2005 to provide for international election observers, but due to recurrent disagreements among the stakeholders, no steps were taken towards a more proportional system. The parliamentary elections of 2010 were held under an un-amended electoral framework.

108 Bridge 1997: 789. 109 Fish and Kroenig 2009: 441-447. 110 Carroll and Carroll 1997: 482. 111 Bunwaree and Kasenally 2006: 16. 112 Judgement Supreme Court of Mauritius, Record No 89540 as explained in Bunwaree and Kasenally 2006: 16- 113 Bunwaree and Kasenally 2006: 6.

3.5.7 Niger By March 2010, Niger has had five constitutions since independence was achieved in 1960. The following is based on the 1999 constitution and election law. Niger is a unitary republic with a semi-presidential political system. The National Assembly is unicameral. The number of deputies is determined by law (Constitution, Article 66), as is the number and size of constituencies (Constitution, Article 127)114: In the 2011 elections, 105 deputies were elected from eight multi-member constituencies and eight from special constituencies, see below.115 Laws passed by the National Assembly are transmitted to the president for promulgation within fifteen days. The president may request a second hearing, which cannot be denied. If the bill is passed a second time with an absolute majority, the president shall sign the law (Constitution, Article 47). The Constitutional Court is formally authorised to review the constitutionality of Laws (Constitution, Articles 84, 92, 103 and 115), but is in reality unable to exercise this power116.

Niger is constituted of the former peripheries of larger states. The population is ethnically diverse, consisting of the following groups according to the 2001 census: Haoussa 55.4 percent, Djerma Sonrai 21 percent, Tuareg 9.3 percent, Peuhl 8.5 percent, Kanouri Manga 4.7 percent, and other 1.2 percent. About 20 percent of the population are semi-nomadic livestock-raising peoples, whereas 80 percent of the population are farmers. Niger is one of the world’s poorest countries, and competition for natural resources has led to an increasing conflict between the agricultural and nomadic ways of life.

The electoral system for the eight multi-member constituencies is List PR with closed lists (Election Law, Article 113). In order to ensure minority representation, eight special constituencies were established in a separate law. The Election Law refers to these constituencies, but does not specify further details: “For the legislative elections, a law determines the number of seats to be allotted to each region and the special constituencies”, the so-called circonscriptions spéciales (Election Law, Article 41). Each of the special constituencies elects one deputy to parliament, based on the FTPT system of representation. The law specifies that these seats should go to the smallest minorities, primarily the Arab, Tobou and Gourmantche communities, who combined constitute 1.2 percent of the population.117

There is also a gender quota, enshrined in a separate Quota Act signed by the president in 2001:

(a) A minimum of 10 percent of candidates of one and the other sex in all electoral positions; and (b) A minimum of 25 percent of appointees of one and the other sex in executive government and state positions and promotions.

114 The Nigerian parliament, http://www.assemblee.ne/texteslegaux/codelec.htm . 115. African Elections Database http://africanelections.tripod.com/ne.html 116 Fish and Kroenig 2009: 493. 117 According to the CIA Fact book, the ethnic breakdown is as follows: Haoussa 55.4%, Djerma Sonrai 21%, Tuareg 9.3%, Peuhl 8.5%, Kanouri Manga 4.7%, other 1.2% (2001 census), https://www.cia.gov/library/publications/the-world-factbook/geos/ug.html .

The purpose of the quota in Niger was to ensure representation of the smallest minorities and has not been relevant to the actual lines of conflict in Niger. A Tuareg insurgence between 1990 and 1995 ended with a peace agreement, which has been only partially implemented. In 2007, a previously unknown rebel group, the Movement of Nigeriens for Justice (MNJ), instigated a major uprising. The group is primarily, but not exclusively, Tuareg, and has issued a number of demands related to development in the north, which holds significant uranium resources. Several rounds of peace talks have resulted in a de facto ceasefire.118

Niger introduced a multi-party system in 1991. In 2009, Niger was embroiled in a constitutional crisis due to President Mamadou Tandja’s decision to put changes to the constitution out for a referendum to allow him to serve for a third term and to change the form of government from a semi-presidential to a presidential system. A referendum was held on 4 August 2009 despite an earlier ruling by the Constitution Court that the changes were unconstitutional. The opposition boycotted the referendum, which, with low participation, did win a majority. Legislative elections held on 20 October 2009 were boycotted by the main opposition parties. However, the amended constitution was subsequently suspended after a military coup on 18 February 2010. The coup leaders immediately created the Supreme Council for the Restoration of Democracy to be in charge of the country, and in March 2010 they put in place a transitional government with three major objectives on its agenda: 1) Restoring democracy in Niger; 2) Improving the economic and political situation of the country; 3) Proceeding with the national reconciliation of Nigeriens,119 and the overarching goal of equipping the country with legal texts and institutions which will ensure political stability while honouring major international engagements taken by Niger.

A referendum on constitutional reform was held on 31 October 2010 and it gave a 90.2 percent majority for a semi-presidential system and for limiting the number of presidential terms to two. Parliamentary elections and the first round of presidential elections were held on 31 January 2011 with a presidential runoff on 12 March 2011.120

3.5.8 Uganda The following is based on the Constitution of 2000 and subsequent 2005 amendments. Uganda is a unitary republic with a presidential system and a unicameral National Assembly.

The electoral framework is extremely fragmented, and the electoral commission of Uganda cites 35 laws and regulations governing the Ugandan electoral process. Article 78 of the constitution states that:

(1) Parliament shall consist of – (a) Members directly elected to represent constituencies; (b) One woman representative for each district

118 US Department of State, “Background Note: Niger”, Bureau of African Affairs, 12 October 2010, http://www.state.gov/r/pa/ei/bgn/5474.htm . 119 IFES 2010.

120 African Elections database, http://africanelections.tripod.com/ne.html#2011_Presidential_Election

(c) Such members of representatives of the army, youth, workers, persons with disabilities and other groups as Parliament may determine; and (d) The Vice President and Ministers, who, if not already elected members of Parliament, shall be ex officio members of Parliament without the right to vote on any issue requiring a vote in parliament. Whereas the constituency members are directly elected, members under clauses (b) and (c) are elected on procedures prescribed “by law” (Constitution, Article 78.4). In addition, the ministers who are not members of parliament are ex officio members without voting rights. The constitution does not specify the number of deputies, but the number of constituencies are prescribed by parliament and demarked by the Electoral Commission (Constitution, Article 63).

While the Ugandan Constitution Third Schedule, Article 10 (a) lists about 60 indigenous communities in Uganda, there are no ethnic quotas for the Ugandan legislature. Ethnic parties are not allowed (Constitution, Article 71 clauses a) and b); rather, parties are to be “national” in character. There is, however, a quota system to provide representation for district women and so-called ‘Special Interest Groups’ representatives (SIGs) (Constitution, Article 78, 1).

Since 2006, district women representatives have been elected by all voters on a special ballot in each district for women candidates only. These elections may be held on a different day from the general elections (Election Law, Article 8.4.iii). The modalities for female representation are further elaborated in The Parliamentary Elections (District Women Representatives) Regulations, 2001 and the National Women’s Council Act and Regulations.

The election of youth, workers and army representatives is covered in Parliamentary Elections (Special Interest Groups) Regulation 2001 (SIG).121 Representation of Youth is also regulated by the National Youth Council Act and Regulations.

In the parliamentary elections in 2011, 238 MPs were directly elected to represent each electoral constituency; 112 women MPs were directly elected to represent each administrative district; and 25 MPs were elected by four different kinds of electoral colleges (SIGs), namely youth, workers and persons with disabilities, each of whom elected five MPs, and the Ugandan People’s Defence Force elected 10 MPs. The parliament thus composed of 375 MPs.122

Both in the constituencies and within the colleges, elections are conducted by FTPT. Whereas district women representatives are directly elected, SIG representatives are elected by electoral colleges comprising leaders in those groups «from grass root level».123 One example of how the system works is the election of youth to parliament. For the purpose of youth elections, Uganda is divided into four regions. Of the five youth representatives, at least one has to be a woman. The female representative is elected by a national youth conference, consisting of the National Youth Executive Committee, the Chairperson of every District Youths Council, the Secretary for Female Youths at the District Level, a representative of

121 The Electoral Commission, “Politics and Elections in Uganda” May 2006. 122 European Union Election Observation Mission 2011.

123 Ibid, p. 4.

Youth Persons with Disabilities, and four student representatives elected by the Uganda National Students’ Association – two of whom shall be female and one from a secondary school. The remaining four candidates are elected by district youth councils in the four districts.124

Parliament has the “power to make laws on any matter for the peace, order, development and good governance of Uganda” (Article 79.1). It may not, however, introduce legislation related to taxation, public expenditure or government debt (Constitution, Article 93). The president may return a bill to parliament. If the law is passed again, the president may return it a second time, in which case it takes a two-thirds majority to override the veto (Constitution, Article 91). The Constitutional Court may review the constitutionality of laws (Constitution, Article 137).

Uganda’s elaborate quota system has no relevance to the main violent conflict in the country, which is the rebellion by the Lord’s Resistance Army in the north of the country.

During the 2006 elections, Uganda experienced relatively little political violence. This has been primarily ascribed to improved management of the elections, compared to the 2001 elections.125 After the 2011 election, the EU Election Observation Mission concluded that “Notwithstanding a number of incidents of violence and intimidation, especially on Election Day, the electoral campaign and polling day were generally conducted in a peaceful manner”.

3.5.9 Main findings In Africa south of the Sahara, most quotas are for small minorities or for social groups not related to power-sharing after conflict. The exception is Burundi, which has both quotas for the earlier combating groups and decision-making rules in parliament giving a group veto powers. Rwanda has chosen the opposite approach in understating the ethnic conflict in their representative systems.

Ethiopia has power-sharing arrangements involving groups large enough to form states of the federation with ethnic identity. However, the quotas relate to the small groups which has more to do with inclusion of otherwise excluded groups than with power-sharing

3.6 Western Europe

3.6.1 Introduction With the exception of Turkey, Western European quotas are intended to ensure representation for linguistic minorities. Four Western European countries have these kinds of quota: Italy, Belgium, Germany and Cyprus. Belgium and Germany are federations, while Italy and Cyprus are unitary states. The two countries of interest in a power-sharing perspective are Belgium and Cyprus. While there is no armed conflict in Belgium, intra-linguistic tensions have caused repeated political stalemates. The unresolved conflict between Greeks and Turks in Cyprus has at times been violent and culminated with the Turkish invasion in 1974.

124 Uganda Electoral Commission, “Guidelines Covering Elections of Youth Representatives to Parliament,” 18 April, 2006. 125 Stremlau and Price 2009: 9.

Switzerland clearly has a structure with power-sharing between the three linguistic groups of the country. The constitutional arrangements are based upon the twenty-six cantons rather than the linguistic groups but unwritten rules secure the even balance between the four groups. One of the unwritten rules, the requirement to rotate the membership in the seven- person cabinet (Bundesrat) among districts and language areas was written into the Constitution after a referendum in February 1999, thus formalising that part of the power- sharing. However, the lack of more explicit quotas excludes Switzerland from this broad overview.

In Norway, the Sámi people enjoy rights as an indigenous people and elect their own council, the Sámi Parliament with advisory and decision-making powers within certain subject areas. This is an element in the devolution of powers and does not affect representation in central political bodies. Norway is therefore not part of the overview.

Finland has not been included even if the island of Åland has a special status. The island, which is inhabited by a Swedish-speaking minority, has an exemption to the multi-member constituencies formed on the basis of population as it is elsewhere in Finland by electing one member of parliament. Even if this is guaranteed regardless of the population, it corresponds quite closely to their share of the population.

Table of systems Western Europe Basis of Democracy Country Electoral System Type of quota Quota Index BELGIUM House of Representatives: List PR Federal (Kamer van parliament Volksvertegenwoordigers / Chambre No quota (Parlement des Représentants) fédéral Free Federaal Parlement Senate: List PR Earmarked seats, Language Föderales (Sénat / Senaat) separate races Parlament)

House of representatives: List PR Separate race with CYPRUS Ethnicity Free (Vouli Antiprosopon) separate voters registers

Parliamentary Assembly: MMP (Bundestag) Ethnicity and Threshold and support GERMANY language signature exemptions Parliament Free (Bundestag) Federal Council: Indirect (Bundesrat) No quota

Chamber of Deputies (Camara dei deputati) Language Threshold exemptions List PR + FPTP in Valle d’Aousta ITALY Parliament Senate Free (Parlamento) Constituencies drawn in (Senato) support of minorities Language List PR + FPTP in 7 constituencies Best runner-up for in autonomous regions earmarked seats

3.6.2 Belgium Belgium is a federal monarchy with a parliamentarian system. According to the Constitution Article 2-4, the federation consists of three communities, three geographical regions and four linguistic regions. The three communities are the Dutch-, the French-, and the German- speaking communities. The regions are the Flanders, the Wallonia and the Brussels regions. The communities and the regions have their own representative bodies. The linguistic regions are the Dutch-, the French- and the German-speaking regions in addition to the bilingual region of Brussels, but they do not have representative bodies. Each municipality is part of one of these linguistic regions (Constitution Article 1-4). The federation may be called ‘double-layered’ since it has two types of entities below the national level, the communities, and the regions (Constitution Article 7). Residual power lies with the regions and the communities (Constitution, Article 35).

The legislature is bicameral and consists of the House of Representatives (Kamer van Volksvertegenwoordigers / Chambre des Représentants) and the Senate (Sénat / Senaat). Members of the House of Representatives are elected by List PR from ten constituencies. The national threshold is five percent. Five constituencies in the Walloon region, five in the

Flemish region, and the constituency of Brussels send a total of 150 representatives to the House of Representatives.

There are 71 Senators, of which 40 are directly elected by List PR with a national threshold of 5 percent. Of these, 25 are elected from the Dutch-speaking lists and 14 from French lists. In addition, 21 Senators are elected by the Community Parliaments, and 10 senators are appointed by other senators. The King’s children are also Senators, but do not play a political role. Voters in the Walloon Region belong to the French-speaking Electoral College and can only vote for the French-speaking lists.

Voters in Brussels have the choice to vote either for the Flemish-speaking or for the French- speaking lists, whereas voters in the Flemish Region (with the exception of Halle/Hal and Volvorde/Vilvoorde areas) belong to the Dutch-speaking Electoral College and can only vote for the Flemish-speaking lists. According to Blanc, Hylland and Vollan, the linguistic groups as such play an important role in decision-making:126

Each chamber is divided into a French linguistic group and a Dutch linguistic group. This division is important, since certain so-called special majority laws require a majority within each linguistic group, in addition to two-thirds overall majority.

There exists an "alarm procedure", which does not give anybody veto power, but provides for particularly thorough consideration and debate when there is a danger that a measure might "gravely damage the relations between the communities". If at least three-quarters of the members of one of the linguistic groups sign a motivated statement declaring that a proposal is of such a nature, parliamentary procedure is suspended and the matter is referred to the Council of Ministers. Within thirty days, the Council of Ministers gives its recommendations and invites the chamber involved to express its opinion on these recommendations or on the original proposal, possibly in revised form. This procedure can only be applied once by the members of a linguistic group to the same issue. It does not apply at all to the budget or to laws requiring a special majority.

For regular legislation the Senate has reviewing powers only and the Chamber of Representatives has the decisive powers. For a number of specified types of legislation, including the Constitution, election laws and laws involving vital interests of the communities or regions, approval by both chambers is required. …

In some cases, there is even a requirement of two-thirds majority in each chamber and majority within each linguistic group of each chamber.

Some parties advocate a split of the country and there have been long-lasting stalemates in forming the government. Despite the strong elements of power-sharing, these have not been sufficient to reduce the discontent within some groups with the current state of Belgium.

3.6.3 Cyprus According to the 1960 Constitution, Cyprus is a unitary republic. In reality, the island is split between the Greek Cypriot part and a Turkish Cypriot part, which is only recognized by Turkey. A UN power-sharing plan was rejected by the Greek part in a referendum in 2004.

The political system is presidential. The legislature is unicameral and consists of 80 members. According to the 1960 Constitution, 70 percent (56 seats) of these are to be elected by the

126 Blanc, Hylland and Vollan 2006: 23-24.

Greek community, and 30 percent (24 seats) by the Turkish community, “separately from amongst their members respectively”. The members of the Greek community shall only be registered in the Greek electoral list, and the members of the Turkish community shall only be registered in the Turkish electoral list (Constitution, Article 62-63). Candidates are elected by List PR with open lists.

After the conflict between Greek and Turkish Cypriots broke out in 1963, the Turkish Cypriots withdrew from parliament. In 1974, Turkey invaded part of Cyprus, and the conflict between the two groups remains unsolved. The 24 Turkish Cypriot seats have remained vacant.

After a decision by the European Court of Human Rights in 2004, a new law was passed providing Turkish Cypriots living in the Greek Cypriot controlled south the right to vote and be elected in parliamentary and municipal elections. They also have the right to vote in presidential elections, but may not stand for elections. As this law only applies to Turkish Cypriots living in the south, the vast majority of Turkish Cypriots still lack the right to vote and to be elected.

The religious groups of the Maronites, the Armenians and members of the Latin community are also represented as observers in the House by one Representative for each group, elected by their respective group for a five-year term. As observers, they have only limited speaking rights and no voting rights.

3.6.4 Italy Italy is a parliamentary republic with a figure-head indirectly-elected president and a government which requires the confidence of the principal chamber of parliament. The Italian parliament is a bicameral body comprising the Chamber of Deputies (principal house) with 630 members and the Senate (upper house) with 315 senators. For the elections to the Chamber of Deputies, the country is divided into 27 constituencies, roughly corresponding to the administrative districts. All constituencies, except Valle d’Aosta are multi-member constituencies using closed lists. Twelve seats represent Italians abroad.

Italy is home to fourteen defined linguistic minorities who constitute a total of seven percent of the population. While Italy is a unitary state, Article 116 of the constitution grants special autonomy to five regions which host ethno-linguistic minorities The five autonomous regions are: Friuli-Venezia Giulia, Trentino-Alto Adige (Südtirol) and Valle d’Aosta in the north, and Sardinia and Sicily in the south.

The electoral system is closed list proportional at the national level, except that the largest party or coalition is guaranteed at least 340 seats. In order to ensure representation for linguistic nationalities in the Chamber of Deputies, a variety of thresholds are applied. The national electoral threshold for seats in the chamber is ten percent for coalitions, four percent for single parties, and two percent for any party in a coalition. Parties representing linguistic minorities in regions with special status win seats if they achieve at least 20 percent of the

84 votes in their constituency. After having assigned the seats at the national level, the seats won by each party or coalition are distributed to the constituencies according the votes.127

315 of the senators are directly elected. Four members are appointed by the President. In addition, former presidents of the Republic may serve ex officio. Elections for senate are conducted by List PR, except for the autonomous regions that send one senator each from single-member constituencies. Six seats represent citizens abroad.

The legislative procedure gives the Senate the same powers as the Chamber of Deputies except for money bills.

3.6.5 Germany Germany is a federal republic, consisting of 16 states (Länder). The political system is parliamentary, and the legislature is bicameral. Parliament consists of the principal chamber, the Parliamentary Assembly (Bundestag) and the Federal Council (Bundesrat), which represents the sixteen states.

The Bundestag has at least 598 members elected by a Mixed Member Proportional (MMP) system. 299 of the members are elected by FPTP from as many constituencies, while the rest are distributed based upon the nationwide result by a proportional distribution of all the 656 members. These ‘top-up’ or compensatory seats are filled from closed lists registered at state level. The electoral threshold for parties winning compensatory seats is five percent, or a minimum of one seat in at least three constituencies. This requirement does not apply to lists submitted by parties representing national minorities (Article 6). National minority parties are also exempt from the collection of support signatures (Federal Election Law, Articles 6, 20, 27). The seats won at national level are then distributed to party lists suggested at state level according to the votes.

Germany’s recognized national minorities are Danish, Sorbian, Frisian and Roma/Sinti. The first three groups have traditionally been concentrated to Schleswig-Holstein, Brandenburg and Saxony. The Roma/Sinti population is spread all across Germany, many living in larger cities.128 The waving of threshold for minority lists has no practical implication at the federal level but it has given representation to parties representing the minorities in state legislatures.

The Bundesrat consists of members from the states and its representatives vote en bloc on a mandate given by the state governments. The number of votes per state varies between three and six, depending on the size of the state.

The Bundesrat is subordinate to the Bundestag but legislation that is of special interest to the federal structure or the states, as defined in the constitution, must be passed there as well. Such laws are called ‘agreement laws’ (Zustimmungsgesetze)129, and they include changes to

127 Article 83 of Presidential Decree No. 361 of 1957 as modified by Law of 21 December 2005 No. 270. 128 OSCE/ODIHR 2009b. 129 Laws where the Bundestag may override the Bundesrat are called ’Einspruchsgesetze‘.

85 the constitution (which require a two-thirds majority in both houses), laws with effect on the state’s finances, and laws that would affect the organisation or authorities of the states.

3.6.6 Main Findings There are few quota arrangements in Western Europe. One reason may be that List PR systems are widespread and such systems tend to represent minorities more efficiently than first-past-the post systems. Wavering threshold values are used in some countries to make it easier for parties representing minorities to be represented.

Only Belgium and Cyprus have quota systems that are clearly elements of larger power- sharing agreements. In Cyprus, the rules are not in force because of the split of the country, and in Belgium, they have not proven to defer the tension between the French and Dutch speaking parts of the population, in particular.

4: Case Study Lebanon 4.1 Introduction Lebanon is a small country, the smallest in the Levant, covering an area of 10 500 sq km and with a population of about 4.2 million (UN, 2009). Lebanon harbours many characteristics that are often attributed to Middle Eastern societies in terms of social, cultural and political patterns. But the ways in which it deviates from these patterns are just as obvious. It is the most fragmented country in the region with seventeen officially recognised sects sharing political power in a carefully designed political system on the local, regional and national levels, but living to a large extent in parallel communities. Throughout its short history as a sovereign state since World War II, the Republic of Lebanon has experienced periods of political stability and economic prosperity, but also bitter internal conflicts (including a civil war) and external interventions and occupation.

The civil war of 1975-1990 was the most devastating, challenging the integrity of the state as such. It was ended by the National Reconciliation Accord (the Taif Agreement) in October 1989. The question is if this new national agreement sufficiently addresses the critical issues dividing the Lebanese communities and parties and if the Agreement and the political reform process as foreseen have been followed up as intended.

A proper analysis of the dynamics of contemporary Lebanese politics and the challenges that the country faces in building a stable and democratic future requires a deeper look into some of the contextual aspects defining the Lebanese political discourse, particularly the forces of regional Middle Eastern politics as well as the unique characteristics of Lebanese inter- confessional relations. The roots of Lebanon’s predicament are not only to be found in the conflictual relations within its borders, but as much in the dynamic and often confusing interplay and changing alliances between local, regional and international actors. If anything is constant in Lebanese politics, it must be the complexities of its explanatory variables.

4.2 Historical and Political Background

4.2.1 Origins of the Republic of Lebanon Historically, the overriding challenge of the Lebanese society as a polity in its own right has been to arrive at a common purpose for the State of Lebanon, a state idea that binds the communities together and that can serve as the basis on which a national solidarity and thus stable political institutions can be built. More specifically, in terms of conflict regulation, it is a question of finding a balance between respecting the quest for group autonomy on the one hand and national integration on the other, arrangements that can support a sustainable system of trustful coexistence and power-sharing. Had it been up to the Lebanese themselves, lasting solutions might have been found long ago. But the challenges are made all the more difficult and unpredictable because of direct or indirect external intervention – made possible by a weak central government and weak national defence – that seems to be an inseparable aspect

87 of Lebanese history. As Malcolm Kerr has noted, “confessional democracy will collapse if outside pressures make it impossible for politicians to compromise”.130

The balance of centripetal and centrifugal forces is, among other things, linked to the country’s geographic location and topographic nature as summarised by Pierre Rondot in the late 1940’s:

A rugged country difficult to access, Lebanon has given refuge to dissidents of all sorts. The isolation of its peaks and valleys has enabled tribes and religious groups to survive with their character intact. But the small size of the territory and the need to defend it has compelled these varied groups to practise solidarity and cooperation […] The opening of the sea has invited frequent foreign intervention, both for better and worse. On account of its proximity, the Occident has had a strong influence, […] encourag[ing] the development of education and [the] emergence of new ideas. Notwithstanding this, tradition has a strong hold on this country. It remains essentially an alliance of families.131

In his well-known book, Lebanon’s Predicament, on the origins of Lebanon’s civil war, Samir Khalaf adds to this profile of the country with reference to peasant uprisings in the nineteenth century and the devastating conflict between Maronites and Druzes in 1860:

This persisting feature of Lebanon’s pluralism reflects, among other things, the deficiency of secular loyalties, class ties and other civic attachments and the survival of sectarian, communal and primordial sentiments. One might perhaps argue that had the earlier class conflicts succeeded in eroding or containing these feudal and communal loyalties, Lebanon might have been spared much of its subsequent turmoil. It would at least have become more of a nation-state and less of a precarious mosaic of pluralistic and fragmented communities.132

Until the end of World War I, Lebanon of today was part of the greater Syria region of the Ottoman Empire (as was Israel, Palestine and Jordan). With the disintegration of the Ottoman Empire, the Levant became subject to intense rivalries between Great Britain, France, and the Arabs. The European powers wanted control of these Arab territories of the former Ottoman Empire for obvious geopolitical reasons, whereas the Arabs demanded independence. In addition, the Europe-based World Zionist Organisation presented their claim to Palestine where they wanted to build a state for the Jews through settler colonisation. Great Britain, as the dominant victor by the end of the war, negotiated separate and inconsistent agreements with the French, the Arabs and the Zionists, drawing borders, defining spheres of influence and installing ruling elites. The partition of the region into British- and French-controlled zones concluded in a secret agreement (the Sykes-Picot Agreement, 1916), and the declared support of Zionist aspiration in Palestine by the British government in 1917 (the Balfour Declaration) were not consistent with promises made to the Arabs (Husayn-McMahon Correspondence 1915-1916) with regards to Arab independence in these territories after the

130 Kerr 1966 in Binder1966, cited in El Khazen 2000:14.

131 Quoted in Hanf 1993:47.

132 Khalaf 1987:23.

88 war in return for Arab support in the war efforts against the Ottomans in the Arab Middle East.

Already in the negotiations with the Arabs in 1915-1916, Britain (not wanting to provoke its French ally) made it clear that territories that more or less comprise today’s Lebanon should not be included in the future independent Arab territory since France had a special historic relationship to and interests in this particular area. This provision refers to France’s longstanding connections with and protection of the Maronites (Christians affiliated with, but not part of the Roman Catholic Church), which also gave the French a secure bridge-head in the region. After the war, France accepted Maronite demands for a Maronite-dominated state and got recognition for a separate mandate for "Greater Lebanon” at San Remo: In order to have a sufficient territorial basis for an independent and viable state, the borders of the new state were extended from the original Maronite area in Mount Lebanon – which had enjoyed a semi-autonomous status within the Ottoman Empire since 1861 – to include new regions in the south, east and north, thereby including groups with other religious and cultural identities. Most of these groups did not want to be ruled by a Maronite-dominated state and did not accept a separate non-Arab Lebanese identity for their country separated from Syria. In this way, the foundations of some of the most intractable problems of contemporary Lebanese politics were laid.

The complex issues that surrounded these contentious wartime agreements were dealt with by the victorious powers first at the Paris Peace Conference in 1919 (which established the League of Nations) and then at the San Remo Conference in 1920. At San Remo, the League of Nations established the principle of mandatory government for territories previously under the rule of the losing powers (the Habsburg and Ottoman Empires), allowing Britain and France to take over these territories within the framework of international legitimacy. Taking new colonies by conquest was no longer tenable, as ideas of national self-determination were gaining international legitimacy after the war. The Arab territories were categorised as ”A” mandates with reference to article 22 of the Covenant of the League of Nations that provided the legal source for the mandate system. Under this system, A mandates could provisionally be recognised as independent nations. But since they, in the language of Article 22, were not yet able to “stand alone”... “under the strenuous conditions of the modern world”, they needed the “tutelage” from a Mandatory power in order to achieve independence.133 Mandatory power was obliged to facilitate transition to independence as soon as circumstances would allow. Syria (including today’s Lebanon) was allocated to France, whereas Palestine (including today’s Israel, Palestine and Jordan) and Mesopotamia (Iraq) were allocated to

133 The relevant section of article 22 reads: “Certain communities formerly belonging to the Turkish empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.” (Covenant of the League of Nations, 28 June 1919).

Britain. The mandate went into force as a valid arrangement under international law in September 1923.134

In effect, the mandatory powers Britain and France that, in the inter-war period, ruled these Middle Eastern countries (today’s Israel/Palestine, Jordan Syria and Iraq, in addition to Lebanon) had wide powers to establish not only the borders of the new states but also to pick their leaders and form their systems of government.135 This period thus constitutes the formative years of these contemporary Middle Eastern states and laid the foundations of many of the intractable problems and conflicts they still have to cope with.

4.2.2 Constitutional Developments 1926 to Present In 1926, the French High Commissioner promulgated a constitution for Greater Lebanon (now renamed “The Republic of Lebanon”) which to a large extent reflected the French republican and secular state model: A presidential system empowered by a parliament (House of Deputies) and with an independent judiciary based on the rule of law. This constitution is still in force today, however with changes and amendments, with the latest enacted in 1990 after the 1975-1989 civil war.

Whereas the constitution since its original adoption has prescribed a clear distinction between religion and state as its constitutional norm, the mandatory power also had to take the reality of the Lebanese political landscape into consideration, which for centuries had been deeply divided along sectarian lines. The constitution consequently also included provisions that in effect opened for what has become known as the Lebanese confessional system whereby political rights and duties are ascribed according to religious affiliation. The autonomous nature of Lebanon’s religious communities – also strongly rooted in the territory’s history – were recognised in the original constitution, and over the years provisions have been included whereby leading offices of state and parliamentary seats are distributed according to religious quotas. The most important amendments were adopted in 1943 when Maronite Christians and Muslims joined efforts to liberate Lebanon from French mandatory rule, and in 1990, that ended the devastating civil war which erupted in 1975.

The 1943 amendments came as part of dramatic political events in the autumn leading to the abolishment of the French mandate, including an unwritten agreement (later known as the

134 Three steps were required to establish a Mandate under international law: (1) The Principal Allied and Associated Powers confer a mandate on one of their number or on a third power; (2) the principal powers officially notify the council of the League of Nations that a certain power has been appointed mandatory for such a certain defined territory; and (3) the council of the League of Nations takes official cognisance of the appointment of the mandatory power and informs the latter that it [the council] considers it as invested with the mandate, and at the same time notifies it of the terms of the mandate, after ascertaining whether they are in conformance with the provisions of the covenant. See http://en.wikipedia.org/wiki/League_of_Nations_mandate.

135 Article 90 of the Lebanese constitution stipulated that the mandatory power must preserve its rights and duties under article 22 of the Charter of the League of Nations and the terms of the mandate. France interpreted such rights to include the power to suspend the constitution, shut down the House of Deputies, and to dismiss the Cabinet and the duly elected President. See US Library of Congress, http://www.loc.gov/law/help/lebanon- constitutional-law.php#f3 accessed 04.03 2011.

‘National Pact’) between the leaders of the two dominant streams of Lebanese politics that had emerged from the parliamentary elections in August. Beshara al-Khouri represented the Maronite-dominated Constitutionalists, Riad El-Sohl the Arab nationalists. According to Raghid El-Sohl’s important study of these events,

...the primary significance of the National Pact was its contribution to the emergence of a ‘democracy by conciliation’ in Lebanon. This system provided both the Muslims and the Maronite communities, irrespective of their numbers, with a veto power against any major decisions that either party deemed threatening to its existence or to its basic interests [...] The al-Khouri-Sohl agreement thus set a precedent and lead to an ad hoc mechanism that was adopted in order to smooth out the differences among the Lebanese.136

The agreement found overwhelming support in the newly elected parliament, which elected al-Khoury as President on 21 September. He consequently asked al-Sohl to form a government. This was followed by a parliamentary decision to amend the constitution, most significantly by removing all references to the French mandate and the rights and obligations of the mandatory government. This move was considered by the Free French government to be illegal and tantamount to a revolution. The French authorities decided to dissolve the Parliament and ordered the arrest of the President, Prime Minister and other leaders. An acute constitutional crisis was a fact. Weeks of wide-spread protests in Lebanon, regionally and internationally (including finally a British ultimatum on 17 November) forced de Gaulle and his commander-in-chief in the Levant Georges Catroux to reinstate the Lebanese leaders on 22 November, the date consequently to be celebrated as Lebanon’s Independence Day.

This moment of relative national solidarity forged political alliances and set ground rules for political bargaining, power-sharing and decision-making both within and outside the formal constitution which has lasted, however modified, to this day. The principles agreed upon, according to Righis El-Sohl, “...were Lebanon’s independence from France, a close albeit independent relationship with Syria, and cooperation with the Arab world.”137

Furthermore, the agreement also included a key for distributing senior political and executive positions in the state was to be based on the 1932 census indicating a Christian majority. Consequently, the general rule was a 6:5 ratio in the favour of Christians (i.e., in Parliament). The President of the Republic should be a Maronite Christian, the Prime Minister a Sunni Muslim and the Speaker of Parliament a Shiite Muslim.

Taken together, these principles and rules define the political framework of modern Lebanon. But Righid El-Sohl adds an important modification: “... outside the framework provided by these principles, each side continued to adhere to its own convictions and objections.”138 We can clearly say, not least with the hindsight of today, that the Republic of Lebanon emerged more as a de facto federation of religious sects, with separate and deeply divided communities

136 El-Sohl 2004: 208-209.

137 Ibid., p. 208.

138 Ibid.

91 finding themselves together in a union of convenience and historical necessity, far from the ideal prescribed by the French republican model.

The principles of the unwritten National Pact of 1943 were in force until the civil war that broke out in 1975. The civil war had many reasons, one of which was the impact on the Lebanese society of regional conflicts, first and foremost the Palestine conflict. But it also brought up to the surface the old identity conflicts among the religious communities in this fragmented country. The mutual trust symbolised by the National Pact had lost much of its cohesive power, and all major communities organised their own militias. One underlying structural problem was the inability of the political system, due to the veto-power of the most powerful groups, to adjust to changes in the society, including demographic changes. Since the census in 1932, the Muslims had strengthened their position in the society, both in numbers and in the economy. But the Christians were blocking all attempts to organise a new census that could document the relative demographic strength between the communities. And a change in the 6:5 ratio could not be implemented without the Christians agreeing to it.

Muslims demanded a redistribution of power in the society. The civil war did not in itself change the political system or the composition of the political elite, but prepared the ground for modifications of the system in favour of the Muslims.

This change is reflected in the Taif Agreement (the Document of National Accord, 1989) that ended the civil war, and then in the constitutional law of 1990 that implemented the constitutional aspects of the Agreement. The 6:5 ratio was changed to 50:50 and the constitutional prerogatives of the (Christian) President were reduced, strengthening the (Sunni Muslim) Prime Minister. The total number of seats in Parliament was increased from 99 to 128, 64 seats allocated to Christians (up from 54) and Muslims (up from 45) alike. The most important constitutional changes can be summarised as follows:

 The vesting of the executive power of the State in the Council of Ministers rather than in the President (Article 17);  The necessity of a two-thirds vote by the Cabinet on all major decisions (Article 65);  The creation of a Constitutional Court (Article 19);  The distribution of the seats of the Parliament (House of Deputies) equally between Christians and Muslims and proportionally among each of them until such time as the House of Deputies has enacted an electoral law not on the basis of religious representation (Article 24);  A provision for the creation of a Senate where all religious communities are to be represented when the members of House of Deputies are no longer elected on a confessional basis (not implemented).139 A few other elements of power-sharing were also written into the constitution and will be discussed later in this chapter.

139 Based on El-Sohl, op.cit., 208-209.

It is noteworthy that the constitution in its present form retains the aim of abolishing the confession-based system on the one hand, whereas on the other hand, it strengthens and further institutionalises the autonomy of the religious communities as stakeholders in the political system. What is presented in the Lebanese constitution as transitional provisions, seem in effect to have become its core characteristics. More than anything, this reflects the necessity felt by the Lebanese parties – if the state of Lebanon is not to collapse – of finding a way of co-existing until the underlying conditions preventing the formation of a unified nation-state have been solved. The problem of escaping this omnipresent dilemma in a practical sense is reflected in the fact that the Taif Agreement included a decision to set up a high-level commission to work out a roadmap for abolishing the confessional system, but that twenty years have since elapsed without any significant effects of that decision.140

4.2.3 Changing Political Alliances in Contemporary Lebanon The Lebanese society today is as fragmented as ever, and tensions over the relationship with Syria continues to be a major dimension in this larger picture. However, since Taif, there has been an important shift in the internal balance of power with the Shi’a community, traditionally the underdog in Lebanese politics, ascending as more and more influential. This is arguably not only because of its relative demographic growth, but more importantly because of the organisational and military strength of the Hizbollah and (to lesser extent) Amal movements. Hizbollah has taken over the ‘state-in-the-state’ position that the PLO had established in the 1970’s until the Israeli invasion in 1982. Whereas the PLO was basically an alien element operating on behalf of refugees struggling for the return to their neighbouring native Palestine, Hizbollah is a militant Lebanese movement not only struggling against the Israelis (which has won them enormous popularity both in Lebanon and in the wider Arab and Muslim world), but also for what they consider to be a fair share of influence for the Shi’as in Lebanese politics. In both these endeavours, Hizbollah has been greatly helped by a close alliance with and material support from Syria and Iran. Hizbollah is today considered to be the single most powerful force in Lebanon, stronger even than the Lebanese army.

The rise of Hizbollah over the last twenty years has changed the dynamics of Lebanese politics, particularly since 1990 when Sayyad Hassan Nasrallah became the leader and the

140 The relevant Section G under Political Reforms reads: “Abolishing political sectarianism is a fundamental national objective. To achieve it, it is required that efforts be made in accordance with a phased plan. The Chamber [House] of Deputies elected on the basis of equal sharing by Christians and Muslims shall adopt the proper measures to achieve this objective and to form a national council which is headed by the president of the republic and which includes, in addition to the prime minister and the Chamber [House] of Deputies speaker, political, intellectual, and social notables. The council's task will be to examine and propose the means capable of abolishing sectarianism, to present them to the Chamber of Deputies and the cabinet, and to observe implementation of the phased plan. The following shall be done in the interim period: a. Abolish the sectarian representation base and rely on capability and specialization in public jobs, the judiciary, the military, security, public, and joint institutions, and in the independent agencies in accordance with the dictates of national accord, excluding the top-level jobs and equivalent jobs which shall be shared equally by Christians and Muslims without allocating any particular job to any sect. b. Abolish the mention of sect and denomination on the identity card.” English translation from Council of Lebanese-American Organizations, Policy Statement and Analysis of the Lebanese Situation, July 1991

93 movement decided to participate in Lebanese politics as a regular political party. Until then, Amal had been the most influential political movement representing the Shi’as. The focus has gradually changed from the Christian/Muslim divide to the Sunni/Shi’a divide, also reflecting developments in the wider region after the Shi’a revolution in Iran in 1979 and the Gulf wars, which started with the Iraq-Iran War in 1980. A defining moment in this development was the assassination of Rafik al-Hariri, Lebanon’s Sunni Muslim Prime Minister 14 February 2005 in a spectacular bomb attack in the city centre of Beirut, an attack that also killed twenty others. Syria, possibly with the help of Hizbollah (or the other way around) was widely believed to be responsible for the attack, also among the Sunnis.141 The assassination unleashed a massive mobilisation of Lebanese for and against Hariri’s anti-Syrian/pro- Western agenda (focusing on the demand for Syrian withdrawal from Lebanon), culminating with two huge demonstrations in Beirut; a pro-Syrian demonstration lead by Hizbollah on 8th March and an anti-Syrian demonstration with Saad Hariri (the son of Rafik) in the front on 14th March (often referred to as the ‘Cedar Revolution’), exactly one month to the day after the assassination.

The parties and groups that participated in the two sides have consequently formed the two main contemporary party blocks in Lebanese politics, known as the March 8 Alliance and the March 14 Alliance. Interestingly, this divide does not seem to follow basically sectarian lines, but rather, it resembles the old cleavage between the 'Western-oriented’ and ‘Eastern- oriented’ Lebanese. Historically, this cleavage roughly overlapped with the Muslim/Christian divide; today this is mostly a Muslim/Muslim divide that follows a regional geopolitical pattern (Egypt-Saudi-Arabia vs. Iran-Syria as the two poles). The geo-political divide seems to dominate the sectarian divide. At the same time, there are overlaps that complicate the picture: The general pattern in Lebanon is that almost all Shi’as support the March 8 Alliance, most Sunnis support the March 14 Alliance, whereas Maronites and other Christians are distributed on both sides of the divide.142

The tensions between the two main blocks escalated in the following years with a peak between December 2006 and May 2008. The immediate background was the 34-day war between Israel and Hizbollah paramilitary forces in June-July 2006 after Hizbollah had killed three and captured two Israeli soldiers. More than 1100 Lebanese, the majority of whom were civilians, were killed in the Israeli war of retaliation, which also caused massive destructions

141 A UN Tribunal was set up to investigate the assassination, but at the time of writing its final conclusion has not yet been revealed. This is an extremely contentious issue in contemporary Lebanese politics. Many fear that it might trigger renewed violence.

142 The three most important parties of the March 8 Alliance (57 seats in the 2009 elections) is the Hizbollah (12 seats), Amal (also a Shi’a Muslim party lead by Nabih Berri, Speaker of Parliament, 13 seats), and the Free Patriotic Movement lead by Michel Aoun, a former general who presently leads the largest faction of Christian deputies (18 seats) in the Parliament. Aoun joined the Alliance in 2006. The main parties of the 14 March Alliance is the Future Movement (Sunni-dominated, 26 seats) and 14th March Independents (Christians, 13 seats). The Druz-dominated Progressive Socialist Party lead by Walid Jumblat (11 seats) was originally part of this Alliance, but change side in January 2011, tipping the parliamentary majority in favour of the March 8 Alliance.

94 of Lebanese infrastructure. Israel did not, however, reach its major war aims and was heavily criticised internationally for disproportional use of force. Hizbollah claimed victory, increased its popularity immensely and emerged as a more dominant political force in Lebanon. Its principle demand was that the 8 March Alliance should have at least one third of the members in a national unity government, securing an effective veto power for the opposition. In November, all Shi’a and one Orthodox Christian member of the government resigned in support of this demand, followed by huge demonstrations and large sit-ins in downtown Beirut that lasted for weeks.

This standoff lasted for about 17 months until the government on 7 May 2008 decided to shut down Hizbollah’s internal communication network. Hizbollah’s answer was to occupy large parts of Beirut, including areas controlled by pro-government groups. They met little resistance and handed the area over to the Lebanese Army on 14 May when the government had revoked its decision. The crisis was brought to an end on 21 May with the Doha Agreement, a document that concluded the Lebanese National Dialogue Conference arranged by the Emir of Qatar. The Doha Agreement gave the opposition one-third plus one minister (11 of 30) in the government of national unity and the parties pledged to elect Michel Suleiman, the respected head of the armed forces, to the vacant post as President – a pledge that was confirmed by the Parliament shortly afterwards.143 The opposition ended its months of sit-in; Lebanon returned to relative normalcy, which allowed them to start preparing for the 2009 elections.

4.3 Building Democracy in Lebanon.

4.3.1 Introduction The building of trust and national solidarity in Lebanon is immensely complicated by underlying suspicions of foreign agency that are always present, particularly in times of political tension. A certain pattern of political dynamics seems to result from this basic condition: If actor A has reason to believe that actor B to some degree is influenced or even controlled by external power X, actor A will be motivated to seek guarantees from external power Y or any other available external power in order to counter the advantages acquired by actor B – a move that will further motivate actor B to strengthen its relation with X in order not to lose relative power or to be dominated by actor A. And so on.

In this way, parties easily get trapped in what is known as the 'Prisoner’s Dilemma’, preventing rational parties that follow their preferences to choose a cooperative strategy. The mistrust prevents the parties from coordinating their positions in a way that could produce a win-win outcome. This pattern of self-sustained or reinforced suspicion and fragmentation has the potential to tear the country apart politically, but is at the same time counterbalanced by such factors as shared economic interests, changing bases of tactical or strategic alliances, and the sheer necessity of finding practical solutions to common challenges (i.e., building the

143 General Suleiman was the only candidate acceptable to all factions. However, the election of Suleiman was, strictly speaking, unconstitutional. According to Article 49, a high-ranking person must be out of office for two years before he or she can be elected president.

95 physical infrastructure in the country). The question is whether the political institutions, notably the electoral system, can contribute to making it easier for the parties to overcome mutual suspicion and mistrust.

4.3.2 The Challenge of Confessionalism The general question that will be discussed in this section relates to basic challenges of building a stable and democratic future in Lebanon. We can distinguish between two approaches: Should the socio-cultural fragmentation of the country’s political institutions (organised along sectarian cleavages and known as ‘confessionalism’) be considered as a given – and consequently an organising principle for any future political system in Lebanon, or should it be considered as an transitional stage on the road to a more integrated system whereby the sects no longer constitute a dominating cornerstone of the system, in line with the visions of the Lebanese constitution with the aim of overcoming confessionalism?

The choice between these two approaches reflects alternative normative conceptions of democratic development in divided societies; one which holds that a democratic approach requires a system that respects established socio-cultural identities and that provides institutional mechanisms for preserving these identities as building blocks of the political system, as opposed to the ‘nation-building’ (or ‘modernisation’) approach, seeking mechanisms that facilitate the gradual assimilation of fragmented socio-cultural identities in the formation of a new, overriding national political culture. More specifically, in the context of the present study, we can ask: How should the electoral system be designed on the basis of such different conceptions of Lebanon as a polity in order to meet universal requirements of a democratic political process?

These questions are not new, but have been central to the political and academic discourses on the future of Lebanon at least since the outbreak of the civil war in 1975. Recent developments in the period 2005-2011 have also been dramatic, including the assassination of Prime Minister Rafiq Hariri and the Syrian withdrawal of troops (2005), the war with Israel (2006), the United Nations Security Council Resolution 1757 (2007) establishing the Special Tribunal investigating the Hariri assassination, the high tensions and clashes between opposing internal political coalitions (particularly in 2007-2008), elections in 2009, and the collapse of the Saad Hariri government in January 2011. To what extent have these events influenced the underlying political discourse on the Lebanon of tomorrow?

According to the first approach mentioned above, the political system and the elected bodies should reflect as accurately as possible existing political loyalties and interests, often deeply rooted in local history – not a utopian vision of a society that does not reflect the real nature of inter-group relations in contemporary Lebanon – and thus contribute to making identifiable and distinct political entities and parliamentary groups as a sound basis for negotiations on power-sharing arrangements between the country’s constituent groups. This will be the best guarantee for strengthening the democratic powers of the Parliament and thus for building a system of democratic co-existence in Lebanon. The other view would be that elections should contribute to create cross-sectarian alliances that could contribute to undermining sectarian political identities and building a unified democratic citizenship. This would provide

96 the foundations for political loyalties based more on political-ideological cleavages (i.e., left/right) and thus, create a political culture suited for a real competition between alternative policies.

Both of these views on Lebanon’s way forward find support in well-established trends in academic and ideological (or a combination of both) schools. The most common approach (in line with the second view above) is a variation of the ‘modernisation theories’ that analyse the path of societies from a ‘traditional’ to a ‘modern’ level of political development. ‘Modernisation’ involves a dynamic process of social, cultural and political integration, creating a modern nation-state of the Western European type. It finds its most articulated and ideological expression in the Jacobinism or republican patriotism of the French model. Cultural distinctions and cleavages should not be of any significance in political mobilisation and organisation of the state. The republic should stay ’une et indivisible’.144

Michael Hudson has contributed some of the most influential analyses of political development in Lebanon from the theoretical perspective of modernisation and social mobilisation, particularly in his early book The Precarious Republic.145 Hudson is fascinated by the observation that Lebanon seems to present a ‘deviant’ case defying categorisation within the modernisation paradigm: On the one hand, it displays some characteristics of modernisation, particularly in the economic sphere and in its exposure to cultural modernity, whereas progressive changes in the spheres of socio-cultural (family-based communities) and political (confessionalism) relations, as would be expected, lag behind: “The Lebanese experience illustrates both the surprising possibilities for modernisation in a deeply divided political culture and the strains that such a process imposes on the political system.”146 In Hudson’s view, this creates a political dilemma and a dysfunctional political system accentuated by the lack of adequate institutions able to deal effectively with internal and external problems.

Farid El Khazen, Theodor Hanf and others represent an alternative approach to Lebanese politics. El Khazen accepts that the modernisation approach of Hudson and others helps to detect the flaws in the Lebanese system, but not to explain the causes:

Missing in Hudson’s assessment of the performance of Lebanon’s political system is the historical dimension that has shaped the particular socio-political features of Lebanese society. In fact, of all modern states in the Middle East, Lebanon is the most rooted in history both in its communal and regional dimensions. The historical nucleus of the modern Lebanese state, namely, the Imarah of Mount Lebanon and, after 1861, the mutasarrifiyya arrangement, emerged as a result of a complex

144 Hanf 1993:28.

145 Hudson 1968. The modernisation approach to Lebanese politics was introduced by Daniel Lerner in his The Passing of Traditional Society. Modernizing in the Middle East (1958), another important work was Politics in Lebanon, edited by Leonard Binder (1966). In his …Arab Politics. The Search for Legitimacy ….. Hudson presents a systematic analysis of political development in the Arab world, which has survived as a much-used textbook in spite its many critics.

146 Hudson 1968:4, quoted in El Khazen 2000:16.

interplay between internal and external change. In this way, confessionalism could not be regarded simply as an irresponsible act on the part of the Lebanese elite. Nor was parochialism something that could be reversed by state decrees or by the forces of modernisation.147

In line with authors like Arend Lijphart and David and Audrey Smock, El Khazen argues that one should consider the positive and constructive potentialities of the confessional nature of Lebanese politics as a point of departure for democratic developments: “A closer look at Lebanon’s history and political system reveals that the abolition of the confessional system would have undermined the very basis of democracy in the country. For confessionalism is in effect a de facto recognition of diversity and dissent, the two conditions necessary for the establishment of democratic order, particularly in a divided society.”148 Antoine Messara – another Lebanese academic and presently member of Lebanon’s newly appointed Constitutional Council – supports this point in an earlier article by observing that the unicameral Lebanese Parliament does not seem to be the appropriate place for negotiating policies of accommodation between Lebanon’s communities. “The power of compromise”, as he calls it, is held by elites that are the leading representatives of these communities and that meet in arenas outside the parliament where the real bargaining takes place: “Hence, they leave it to Parliament to ratify what they decide.”149

The point here with relevance to the electoral system is that the Parliament is not regarded as truly representing the immediate and conflicting political cleavages in the society because the candidates are voted in on lists composed of persons from different confessional groups. Voters will therefore have to give their votes not only to members of their own confessional group, but also to representatives of other groups from the electoral district. For example, a Christian member of Parliament who was voted in with Moslem votes will in certain situations not be considered by the Christian electorate as genuinely representing them and could therefore not be trusted with “the power of compromise”. Another intended effect of the system is that it strengthens the chances of moderate candidates because they will be more likely to get votes from the other communities. However, this is only in such cases where a confessional group represents a minority. If one group is dominant, extremist candidates may fare well. The fact that the system promotes multi confessional alliances may, in itself, promote moderation. Messara comments:

147 El Kazen 2000:21. Faris 1982:7-8 explains that the Lebanese political system originates in the Imarah of Mount Lebanon, an arrangement whereby the conquering Ottomans in the early sixteenth century conferred the title of ”Sultan of the Mountain” on the Ma’ni Amir, Fakhr al-Din I, and allowed him to become the first among equals in relation to other feudal Maronite and Druze feudal lords in the southern region of Mount Lebanon. This system, which was basically secular in nature, survived for more than three centuries, was replaced in 1861 by the Mutasarriffiyya following violent conflicts between Maronites and Druzes. This system, agreed upon between five European powers and the Ottomans, introduced confessionalism as a system of political representation, later inherited by the Republic of Lebanon.

148 El Khazen 2000:24. Cfr. Lijphart 1977; Smock and Smopck 1975.

149 Messara 1988:625-626.

However, this moderation, within the framework of the single electoral college, is purely tactical and is often exploited by candidates to get the votes of other communities. The fact that the representatives of communities, and even the most extremist ones, are excluded from representation may impede conflict regulation.150

Messara’s solution to this dilemma is that the unicameral parliamentary system should be reformed with the introduction of “a communal senate or a communal council where communities are represented as such. Hence, in crisis periods or when dealing with basic issues, the debate would not be transferred from the Parliament to the ‘street’”.151

Many Lebanese who share this basic approach of ‘unity in diversity’ to the country’s need for conflict regulation and stability point to Switzerland and its ’Konkordanzdemokratie’ as a model for Lebanon: A federation of communities that constitute a transcending, multifarious nation.152 The core idea of this approach is that existing communities are legitimate building bricks of a transcending nation.153 Existing communities will not disappear; making them disappear is morally unacceptable and will create resistance that undermines peace and stability. The Lebanese nation, which is not pre-determined, but is organically transcendent as the different groups, parties and actors that comprise the Lebanese society interact in the day- to-day life.

It is worth pointing out, however, that the Lebanese Constitution, first issued in 1926, as well as the National Reconciliation Accord of 1989 (the Taif Agreement) state that the goal and vision for Lebanon is a political system not based on confessionalism. Consequently, there is an ongoing discourse in Lebanon on the relationship between the vision of Lebanon as a secular nation-state and the reality of contemporary Lebanon as a fragmented republic.

Two related aspects that contribute to keep a country like Lebanon fragmented and undermining efforts of national integration should be kept in mind. One is a weak central government, a direct effect of a fragmented political system where important decisions have to be made on the basis of consensus. The state as such is (in principle) neutral in relation to inter-group rivalries and does not interfere much in the daily life of the semi-autonomous communities of Lebanon. Indeed, "the secret of the [Lebanese political] system’s precarious survival is its very institutional weakness".154 But, at the same time, the state does not have sufficient monopoly of power to impose incorporation of different groups under a common institutional framework or to set up powerful mechanisms for inter-group arbitration. This weakness is difficult to get around as long as the President, the Prime Minister and the Speaker of Parliament are carefully chosen from and thus considered as representatives of particular groups, not primarily as authoritative representatives of the Lebanese state.

150 Messara 1988:629.

151 Ibid.

152 See Hanf 1993:29.

153 However, since the communities in Lebanon are so geographically mixed, this cannot be applied in the simple geographical manner as in Switzerland. 154 El Khazen 2000:16 with reference to Hudson 1968:211.

The other aspect is ‘the politics of fear’, characteristic of ‘anarchical’ societies lacking or saddled with a weak central government or regime (i.e., the international society and failed states). According to Hanf, the behaviour of most groups and states in the Levant is basically motivated by fear: “For, in reality, the loss of [one’s position] means subjugation, expulsion, life in refugee camps or emigration – if not physical annihilation. The fear of being the ultimate loser is the supreme force in politics in the countries along the road to Jerusalem.”155 In Lebanon, nobody in a situation of violent conflict can trust the state to come to the rescue or guarantee basic rights. The individual citizen depends totally on the family, the clan, the sect, whereas the larger groups depend on relations and alliances with other groups or external powers. Hanf also points to the fact that existence in such an environment might not only breed extremism, hate and irrationality, but might as easily induce parties to behave extremely rationally and responsible, considering all available alternatives, including compromise with arch-enemies, in order to secure their own interests of a more or less existential nature. This might be the logic behind the drastic changes in political orientation or alliances that can be observed from time to time in Lebanese politics. As Hanf puts it: ”…fear can indeed produce a vicious circle of hate and violence, but also reason and compromise – that conflict can bring forth coexistence.”156

4.4 The Quota Arrangements and Other Power-Sharing Elements

4.4.1 Introduction As already discussed, the current Constitution of Lebanon adopted in 1926 has undergone important amendments. Up till 1947, the Parliament had two chambers, the Chamber of Deputies and the Senate. Since then the parliament has been unicameral. The Taif Agreement of 1989, which ended the civil war, represents a starting point for the current discourse on constitutional reforms and changes in the electoral system.

The Taif Agreement stated that “Parliamentary elections shall be conducted in accordance with a new election law based on the Governorate (Mohafazah) and which considers the principles that guarantee cohabitation among Lebanese and which insures the accuracy of political representation of the various categories of people and their generations and the effectiveness of such representation, after the reconsideration of administrative divisions within the framework of the unity of land, people and institutions”.

The new formula for representing confessions in the transition period was implemented, but the main intentions of the Taif Agreement were never pursued.

A National Committee for Drafting the Electoral Law, headed by former Minister Fouad Boutros, proposed a draft election law in 2006 which took some steps in the direction of promoting multi-confessional parties and normalising political institutions, even though it kept a detailed confessional formula in its proposals. The committee introduced an element of proportional elections in parallel with a plurality-based system in multi-member

155 Hanf 1993:2.

156 Hanf 1993:5.

100 constituencies (block vote) with constituencies based on the Qadas. The draft was never put on the Parliamentary table before the Israeli attack in 2006 and the following crisis in Lebanon in 2008.

After the events of the spring of 2008, the Lebanese National Dialogue Conference was held in Doha from 16 to 21 May 2008 with strong coordination by the Arab League and with participation of Lebanese political leaders. The Conference resulted in an agreement (the Doha Agreement) where all parties voiced their commitment to the principles of the Lebanese Constitution and the Taif Accord.

The Doha Agreement did not shift to a system based on governorates, but made some adjustments to the Qada based-constituencies of the Boutros Commission proposal, which would give more confessional homogeneous constituencies. It was implied that the block vote system would remain the only system, even though the agreement stated that “The parties also agree on forwarding to the Lebanese Parliament the electoral reforms that were proposed by the National Committee for Drafting the Electoral Law, headed by former Minister Fouad Boutros.”

The Administration and Justice Committee of the Parliament (AJC) drafted a new election law based upon the Boutros draft but without the proportional element and without an independent election commission (except for a Supervisory Commission on campaign and finance issues). The law was adopted in Parliament on 29 September 2008, and the Parliament had then also removed some of the other reform elements of the AJC draft such as pre-printed ballot papers.

In 2011, the Ministry of Internal Affairs has taken an initiative for election reform. The most likely change is that the block vote is replaced by a List PR system in multimember constituencies.

4.4.2 The Administrative and Confessional Division of Lebanon Lebanon is divided in 6 governorates (Mohafazah) and 26 Qadas (counting Beirut as one). In addition there are more than 900 municipalities.

The six Muhafazah are: 1. Beirut, 2. Mount Lebanon (Jabal Lubnan), 3. North Lebanon (El Shmal), 4. Bekaa, 5. South Lebanon (El Jnoub), and 6. Nabatiyyeh.

The Qadas are:

Beirut: No subdivision.

The North (7): Batroun , Minnieh-Dinneih, Koura , Bcharreh, Zgharta, Tripoli, and Akkar.

Mount Lebanon (6): Maten, Jbeil, Kesrwan, Aley, Baabda, and Chouf.

The Bekaa (5): Baalbeck, Hermel, Zahle, West Bekaa, Rachaya.

The South (3): Tyre , Saida, and Jezzine.

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Nabatiyyeh (4): Nabtieh, Bint Jbeil, Hasbaya, and Marjeyoun.

In electoral terms the following groups are currently given specific seats in the parliament:

Muslims: Sunni, Shi’a, Druze and Alawi.

Christians: Maronite, Greek Catholic, Greek Orthodox, Evangelical, Armenian Catholic, Armenian Orthodox and Christian Minorities.

4.4.3 Summary of the Systems From 2000 to 2008 The following presents a comparison between the systems from 2000 onwards, including the proposal of the 2006 Boutros Commission. Before 2000, the block vote system was used but the constituencies were changed for almost every election. The 2000 and the 2008 laws are also based upon the block vote combined with an extensive use of confessional quotas. It is predefined exactly how many members of the Parliament should belong to which confession for each district, leaving no room for deviation. That means that a person may only run in constituencies with seats marked for his or her confession.

The Boutros Commission proposed a parallel system where two races were to be conducted simultaneously. Still, the confessions were given detailed quotas, and for the PR system, the six constituencies were broken further down into Qadas, where the confessional quotas were applied.

Such extensive and detailed applications of quotas may satisfy the parties in their negotiation over powers, but they do reduce the influence of the voters considerably. We will discuss that later.

Even though the Christians are guaranteed 50 percent in the Parliament, the system where everybody votes for all groups makes it possible for a Muslim majority to decide who is going to represent the Christians from a constituency. This was the background for the redrafting of constituencies for the 2009 elections.

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The table shows the main features of the three systems discussed.

The law 2000 The 2006 Boutros 2008 Commission

Block vote element

Number of elected 128 77 128 members

Number of 14 27 27 constituencies

Magnitude of 6 - 17 1 - 6 1 - 10 constituencies

PR element

Number of elected - 51 - members

Number of - 6 - constituencies

Magnitude of - 6 - 11 - constituencies

4.4.4 The System of 2000 In the 2000 law, as in previous election laws, the block vote system was applied. In general terms, this is to a large extent a winner-takes-all system. The number of constituencies was fourteen and each constituency had from six to seventeen seats.

The quotas for the sects were broken down by Qadas in such a way that for each Qada there was a predefined number of seats to be filled and they were allocated to sects. This system had the effect that alliances across confessional lines were established, at least for tactical purposes.

The alliances printed their lists and handed them out to voters who were allowed to use them as ballots. There were no pre-printed ballots. One of the general justifications of the block vote system is that it provides a lot of choice for the voters. The voters elect the candidates across party lines directly, as opposed to leaving it to the parties to select the candidates. With the lists printed by the coalitions, the largest coalition has an even bigger advantage than normally with the system. A side effect is that the largest group in a fairly big constituency would also decide who should represent a minority confessional group in the Qada (which is a smaller unit), regardless of the votes in that particular Qada. If, for example, there was a

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Muslim majority in a constituency, they would link up with Christian groups to be able to fill all the seats of the constituency. However, those candidates might not be persons whom the groups themselves would feel best represented by, but the coalition of the largest group would still be likely to fill also such minority seats.

4.4.5 The Boutros Proposal The draft law of the Boutros Commission tried to meet requirements for creating a representative composition of the Parliament along three dimensions: the political, the confessional and the geographical. In the proposal, the political dimension was the weakest of the three.

Out of the two common types of ‘mixed systems’ commonly used, the commission proposed a parallel system. The two elements were a List PR system and a plurality system in multi- member consistencies (block vote). The parallel system 157 is well accepted to be within international standards. However, the plurality segment of the parallel system would normally be in single-member constituency, not the block vote system.

In the draft, 77 seats were to be filled from 27 districts by the block vote system and 51 seats were elected from six districts within a List PR system.

The List PR element would not make the Parliament proportional, but it would help organise groups of a moderate size to win seats in the Parliament. In the six districts, the magnitude varied from six to eleven seats with an average of 8.5, which would allow lists with down to 8 to 15 percent support to win seats. Most countries with a parallel system would run the List PR part in the whole country as one district and applied to Lebanese parties with down to 2 percent support would win seats.

The proposal included confessional quotas applied to each district, and the quotas were broken down by the smaller Qadas.

The way the proportional part was described there would have been a bias in favour of the biggest parties when it comes to which parties will have the best chance to get their most important candidates elected. This could easily have been corrected by the method described in Appendix A.

4.4.6 The Adopted 2008 system The system adopted on 29 September 2008 for the 2009 parliamentary elections is closer to the 2000 law than to the Boutros suggestion. The Doha Agreement gave a direction and also specified that the constituencies should build on (but not be exactly the same as) the Qadas. That means that there are 27 constituencies and each seat is again allocated to a confessional group. By reducing the size of the constituencies, the winner-takes-all effect of the block vote system is reduced. It is also not the majority of a large constituency who decides the result in

157 The parallel system is often a compromise between those favouring a plurality system and those favouring a proportional system whereas the other mixed system, the multi-member proportional system, combines the qualities of single-member constituencies and proportional representation.

104 a Qada, but the majority of that Qada. However, within the Qada, the majority will decide over the minority, but the scale of the problem is reduced.

The coalitions are still allowed to print their own ballot papers and this limits the influence of the voters and strengthens the winner-takes-all of the system.

4.4.7 An Attempt for Reform of the Municipal Electoral System in 2010 When the reform of the system of representation for parliamentary elections fell in 2007, some groups of the civil society (LADE) took the initiative to reform the system for the municipal council. The next elections were scheduled for May 2010 and the main idea was to introduce some elements of proportional elections in addition to other reforms, such as an independent electoral commission, quotas for women, pre-printed ballot papers, etc. One purpose was to make the parties and voters familiar with a List PR system and to bring the administrative parts of the municipal elections in line with the new parliamentary election law.

A draft law was proposed by the Minister of Interior that included a system based upon List PR but with a provision that municipal councils would always have a one-party majority. The mayor and deputy mayor would be the first two candidate names of the list with the highest number of votes.

The Cabinet approved the proposal but it never came to a vote in Parliament. The elections in May 2010 were therefore held according to the old election law under a block vote system.

4.4.8 The Executive and the Decision-Making Procedures In addition to constitutional changes already mentioned, the Taif Agreement introduced a number of other elements of power-sharing in the agreement. These are in turn written into the Constitution. The following is a summary of those agreements.

The President of the Republic, the Prime Minister and the Speaker of the Parliament are the three key positions in the country’s political system (the three presidents). There are unwritten rules on their election and appointment, but there are also formal rules underlining the need for consensus in their appointments.

The President is to nominate the Prime Minister in consultation with the speaker “based on binding parliamentary consultations which he officially communicates to the Speaker”. The Council of Ministers (government) “takes its decisions by consensus, and in the absence of consensus, they are taken by voting”. Decisions are taken by simple majority of the attendants, except Major Issues that require the consent of two-thirds of the Council's members. The following subjects are considered Major Issues: The state of emergency and lifting it; war and peace; general mobilisation; international treaties and agreements; the national budget of the State; comprehensive development and long range plans; appointment of the employees of the first category and its equivalent; reconsideration of administrative divisions; the dissolution of Parliament; elections law; naturalization law; personal statute laws; the dismissal of ministers. The type of issues needing a two-thirds majority in the government is, in other words, fairly wide.

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The President is elected by a two-thirds majority in the Parliament but, should the first attempt fail, the next only requires an absolute majority.

In Parliament, most decisions may be taken by regular (not qualified) majority and the government needs only a regular majority for the confidence vote.

Despite these formal rules, electing the President and forming the government have proven problematic. The unwritten rules have been to require broad consensus on the election of President and the government has been a national unity government where both the majority block as well as the opposition are represented.

After the events of 2008 the Doha Agreement of 21 May 2008 stated:

First: The parties have agreed on having the Lebanese parliament speaker, based on the rules in effect, invite the parliament to convene within 24 hours to elect consensus candidate General Michel Suleiman, knowing that this is the best constitutional method to elect the president under these exceptional circumstances.

Second: forming a national unity government composed of 30 ministers distributed among the majority (16 ministers), the opposition (11 ministers) and the president (3 ministers), and by virtue of this agreement, all parties commit not to resign or obstruct the government’s actions.

The appointments were part of a broad agreement and this was also carried forward to the time after the 2009 election.

In addition to these rules, it is also understood that the three ‘presidents’ should come from different confessional groups. The President is a Christian, the Prime Minister is a Sunni and the Speaker is a Shi’a.

4.4.9 The Intentions and Possible Effects The Taif Agreement has a short-term and a long-term perspective. The short-term need was to stop the civil war. Even though there have been armed conflicts in Lebanon after the civil war, they have been of a different nature and they were contained after a short time. One of the element of the short-term arrangement was the 50 – 50 percent balance between Muslims and Christians in the Parliament and there are unwritten rules which prescribe a broad national government based upon consensus or near-consensus decisions. All these arrangements are intended to ensure that no group is left out of the decision-making and that the balance between the Christians, the Sunnis and the Shi’as is maintained.

The system has two types of side effects. Firstly, the system restricts the right to stand for elections to Muslims and Christians. Traditionally, all people of Lebanon belong to a sect by birth and it is not a belonging which can be changed. However, naturalised citizens may belong to other groups and one may also see a future development where the sects would play a less prominent role. The numbers of people disenfranchised by the rule is low at the moment but nevertheless, the rule is in violation of the International Covenant on Civil and Political Rights Article 25 b (the right to vote and be elected), which was ratified by Lebanon

106 in 1972. It should be noted that the limitation is extended to the government members as well.

The other types of side effects are the ones concerning the efficiency and the functioning of the state. The requirements for national unity governments have made the forming of government very complicated. After the June 2009 elections, it took five months. Appointments to key civil servant positions (of the first category) have proven to be very difficult because the sectarian formula has been seen as an overriding principle. In regular policy matters, it is also difficult to reach consensus or a sufficient majority to pass decisions in government.

4.5 The Field Study

4.5.1 The Conflict There was a general agreement among the respondents that the conflict in Lebanon can only be understood if seen in a larger regional context. But there were different and partly opposing views on how regional powers interacted with and influenced Lebanese politics. One of the respondents gave this answer: “There are two basic dimensions to the Lebanese conflict: Internal confessionalism and external interference. The two dimensions are closely interlinked because the confessional groups are dependent on external supporters and sponsors and external players struggle for regional dominance through internal confessional groups.”

As expected, the view on Syria’s role in Lebanon is highly contentious, dividing the two main electoral alliances, 8 March and 14 March, as well as our respondents. In one answer, Syria’s role was described as overriding any internal Lebanese agreement: “In Taif the power sharing was important, but that was not what ended the war. Many Lebanese opposed the Taif Agreement because of the reduced sovereignty under Syrian pressure. The Syrian army controlled the whole territory. That is what ended the civil war, and Syrians ruled til 2005.”

Some respondents emphasised the significance of the Palestine conflict, both historically (Palestinian refugees since 1948 and the “watershed events” of the 1967 war), and more recently with Hizbollah as a major opponent of Israel in the regional power struggle that also brings in Iran. One respondent gave this explanation: “As a consequence of the 1967 war, Lebanon became weakened, the weakest of the states in the region. With the emergence of PLO came an armed non-state actor which was in war with Israel. There was no empty space left for the Palestinians. PLO was bound to clash with the Lebanese state as it had done in Jordan in the 1970s. The Lebanese army was paralysed and the PLO created an autonomous space for itself. PLO got into fights with the Christians, then the Shi’as and in 1982 the Israelis.”

An important change over time was emphasised as the traditional Christian-Muslim cleavage that used to be the dominant dimension of the conflict is, to a large extent, replaced by the Sunni-Shi’a dimension – partly because of the gradual demographic strengthening of the Shi’a population and partly because of regional dynamics since the 1979 revolution in Iran.

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4.5.2 The Purpose of the Power-Sharing Arrangements and their Effects The purpose was clearly to stop the war. Everybody seems to agree that the rigid quotas and the extensive requirements for consensus (written and unwritten) have been necessary to reduce conflict. The opinions on to what extent the arrangements are still necessary and whether they lead to an unnecessarily inefficient government are more diverse. Some interlocutors, from the Sunni community in particular, thought that the intentions of the Taif agreement could be implemented now, at least in parts. Others thought that the time was not ready and that external pressure and aggression had to be reduced first.

4.5.3 Participation in Decision-Making Representatives of the Christian communities raised the issue of how the Christian representatives to the Parliament are elected. In constituencies with a Muslim majority, the Christian representatives would be chosen by the Muslim majority. Many interlocutors acknowledged this fact and it was one of the reasons why electoral reform towards more proportionality had widespread support.

The Christians are now split in several groups. They are not all represented by a single leader and they participate in both the major alliances (8 March and 14 March). Some would see this as a sign of normalisation of politics rather than a weakness of the Christian community.

Both Sunni and Shi’a representatives felt quite content in their representation. Shi’as are less willing to make changes to the consensus rules than the Sunnis.

4.5.4 Development over Time All groups would like see the development of the state structure in relation to the general development of the region. As long as the Palestinian problem remains unsolved, the regional conflicts will play a central role in Lebanon. Hizbollah see themselves as a resistance movement which will be important as long as Israeli aggression is a threat. All seemed to share the long-term vision articulated by Taif of reducing the confessional element and moving towards a civil society based upon citizenship and equal rights. The differences are in the view of how fast steps could be taken in such a direction. Some, in particular from the Sunni community, thought that a Senate could be established with confessional representation and then offload the House of Representatives for the same.

It was also seen to be important that efficiency in certain issues, like taxation, electricity supply, etc. should improve, even though the slow pace in decision-making for many was considered the price to pay for peace.

An introduction of a proportional element in the electoral system for the Parliament seemed to have general support. One of the problems earlier might have been that all initiatives of reform have come from the civil society outside of the Parliament and when presented to the politicians, the proposals have not been sufficiently founded.

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A list proportional system may easily be combined with quotas, either with requirements to each list or to the total result (or both). Groups feeling they are not represented by the ‘right’ representatives would always have the possibility of proposing their own lists and, at the same time, big parties would have strong incentives for proposing candidates that would gain genuine support in each confession.

4.5.5 Development of Political Parties Most interviewees seemed to see the development of multi-confessional political parties with political programmes as an ideal. Within the alliances, there are efforts to politicise them and move from person-oriented to a more political platform. The Christian caucus within the 14 March alliance put emphasis on that. It is generally not obvious that the current alliances are starting points for regular political parties.

4.5.6 Other Possible Side Effects The limitation to the right to stand for election seems to worry very few. As long as there are very few citizens of Lebanon who are excluded by the arrangements, it was not seen to be a problem compared to much more urgent needs.

4.6 Main Conclusions and Thoughts for the Future The Taif Agreement points in the direction of moving away from a confessional representation. However, a number of conditions need to be in place before that can happen. The discussion here is therefore still based upon the following conditions of the Taif Agreement:

4. The electoral unit is the Mohafazah [governorates].

5. Until Parliament enacts an election law which is not based on religious affiliation records; seats in Parliament shall be allocated according to the following rules:

a) Equally between Christians and Moslems.

b) Proportionally among the sects of each of the two categories.

c) Proportionally among the region.

The Boutros Commission declared as a goal that the system should strengthen the parties. This was one of the reasons for introducing an element of proportional representation (PR). With PR, every vote counts and it would be worthwhile fighting for votes based upon clearer alternatives than just tactical coalitions. There are many other reasons for such a proposal and one is that quotas for confessions and genders can easily be combined with a list PR system without changing the political distribution between the party lists.

One of the most obvious suggestions for a system which would meet the Taif requirements would be to introduce List PR as the only system in the six governorates. The quotas for each of the eleven confessions will be distributed to the governorates, but not further down to Qadas. People would have to accept that a Qada is not always represented by parliamentarians of a certain faith. On the other hand, the system would ensure:

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 More choice and influence by the voters since every vote counts in the distribution between lists. There will be fewer wasted votes.  The parties or coalitions will have to include prominent candidates of all Qadas and of minority confessions on their list in order to appeal to such voters. Since every vote can contribute to more seats, it is not recommendable to parties to include token representatives of groups on their lists. In a majority system, it is not important how many votes a coalition gets as long as it is biggest. They may therefore ignore the support of their minority candidates, which they cannot afford to do in a PR system.  The quotas can be applied in such a way that even smaller parties have a fair chance to get their main candidates elected.  The quotas would not alter the distribution between parties and the parties would have incentives to run under programmes with appeal across confessions.  The system may be combined with open lists, which would give the voters direct influence on the candidates filling the seats won by a party.  The system is easy to combine with gender quotas.  The system is easy for voters and for the public at large to understand.

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5: Case Study Nepal 5.1 Historical and Political Background

5.1.1 The Diversity of Nepal Nepal is a landlocked country situated between the Asian giants, India and China. A common perception in Nepal is that it is a small country. However, by any other standard than Nepal’s own, Nepal is a middle-sized country. With its 147,181 square kilometres and a population of 26.6 million158, it is slightly larger in area than Bangladesh and Greece, and slightly smaller than Tunisia, and in population smaller than Canada but larger than Romania.

The country is diverse in terms of people, geography, social status, wealth, etc. This is an important element for the understanding of the country’s history, not least the dramatic recent history. Sharing borders with the regional superpowers India and China has made it necessary to balance the internal politics against the neighbours’ interests in the region. Nepal has been able to keep its independence partly by giving concessions to China and in particular to British India and to India after independence.

The country consists of the lowlands of the Terai along the Indian border, the Hills which include areas with deep valleys and high mountains (despite the word ‘hill’), and the Mountains which are the Nepali part of the Himalayas. People define their identity along ethnic, linguistic, caste and religious dimensions. Even though there is no universally agreed classification system of the people, the following is broadly accepted:

Over the past two hundred and fifty years, the elite stratum of society has been made up of the Nepali speaking Hindu castes of the hills. They belong to the Khas people, believed to be part of the Arians who migrated to India more than three thousand years ago and who also entered the hills of Nepal. Nepali is a Sanskrit-based language but is distinct from Indian languages. Within the Khas people, the elite are the upper castes, mainly Bahuns (Brahmins) and Chhetris, and the ‘untouchables’, or Dalits, consist of a number of sub-castes and have been discriminated against as part of Hindu tradition for centuries.

The indigenous people, collectively referred to as the Janajatis, are groups that settled early in Nepal migrating from Tibet or North Burma and who speak a large variety of Tibetan/Burmese languages. They may be Buddhists or Hindus with elements of animism among some groups. Each Janajati group is associated with a district where they traditionally settled, but they live side-by-side with other groups and the population now is rather mixed. There are currently fifty-nine such Janajati groups, but the groups are being revised and the number is likely to pass eighty. Among the Janajati groups, there are significant variations. The Newars, who live mainly in the Kathmandu valley, are both urban dwellers and villagers and they have traditionally participated in the economic and political development. Other

158 According to a preliminary report on the 2011 census published by the Central Bureau of Statistics on 27 September 2011.

111 groups are nomads living as they have done over centuries and they may comprise no more than a few hundred people. The degree of political participation varies from overrepresentation to hardly participating. The Janajatis are found in the mountains, the hills and in the Terai.

In the Terai, there is a relatively dominant community referred to as the Madhesi. The most common definition of this group is linguistic159. They speak Indian languages like Hindi, Bengali, Punjabi, etc. 160 Most of them are Hindus, and adhere to the Indian Hindu caste systems, except for a group of Muslims and small groups of Jains and Sikhs. Unlike the caste system of the hills, there are a large number of oppressed castes among the Madhesis. Along with the Madhesi Dalits, they constitute a large group of people that have been discriminated against.

The Janajati groups in the Terai are sometimes classified as Madhesi even if they do not speak an Indian language (like during the 2008 elections) but most members of such groups (the Tharus being the biggest) seem to oppose this classification.

5.1.2 Unification of the Kingdoms Until the end of the eighteenth century, present day Nepal consisted of a number of kingdoms. In the Kathmandu valley, the Newar Malla dynasty ruled and further west there was a powerful Gorkha kingdom ruled by the Shahs. From his accession in 1743, Prithvi Narayan Shah of Gorkha fought continuously for control of the Kathmandu Valley and in 1768, he succeeded. By his death in 1775 he had captured all of Eastern Nepal and most of present day Sikkim. He is the founder of the Shah dynasty, whose descendants ruled until 2006, when he transferred all powers to the parliament and the government.161

5.1.3 The Rana Rule In 1846, Jang Bahadur Kunwar Rana became head of the King’s cabinet.162 From then on, the prime minister position became a hereditary post within the Rana family under the title Maharaja. Real power rested with the Maharajas and the kings were reduced to ceremonial puppets, even though court intrigues were numerous and some kings and queens managed to manoeuvre with success in the intricate power structures. Both the Ranas and the Shahs were Chhetris according to the caste system, but Bahuns filled important roles in society and were included in the ruling elite.

In the 1930s and 1940s, there were attempts to organise opposition against the dynastic and feudal rules of the Maharajas, but it was only in 1947, when the Nepali Congress party was

159 “The Madhes” is sometimes also used as a geographic term interchangeable with the word “Terai”. This study will use Madhesi to refer to the linguistically-defined community.

160 Madhesis falling under this definition would also have cultural features similar close to their Indian neighbours.

161 The monarchy was formally abolished in 2008.

162 The history from here to 2003 is mainly based upon Whelpton 2005, 2010.

112 formed in Indian exile, that the first strong democratic force surfaced, inspired by the success of the National Congress of India.163 The first Communist party of Nepal (CPN164) was formed in India in 1949. Both NC and CPN were initially forbidden by law.

At the end of the forties, resistance against Rana rule grew stronger. The Maharaja was now Mohan Shamsher Rana who tried to gain the support of India in curbing the opposition, but his actions had the opposite effect. The Nepali Congress leader B.P Koirala, his half-brother Matrika Prasad Koirala and other personalities formed a strong force and they took the lead in the revolt of 1950 and 1951. King Tribhuvan decided to escape from Mohan’s custody and on 6 November 1950, the King left the palace with most of his family and arrived safely in India. With silent support of India, the Nepali Congress increased their attacks on the Rana regime. On 8 January 1951, Mohan Shamsher Rana finally agreed to Tribhuvan’s return to the throne and a new government made up of Ranas and ‘representatives of the people’ was formed. Even if Mohan Shamsher Rana still headed the government, this now included B.P. Koirala, and it was the King who had the formal and real powers. The special arrangements for the Maharajas were removed.

5.1.4 The King’s Rule with Parties Contribution The Rana – Congress coalitions faced many problems and new opposition parties emerged. The CPN joined with other groups to form the United Front to fight Indian influence. The thirty-five member strong advisory board appointed by the King also created controversy by not including Ranas or opposition representatives, only members of Congress and independents. In the following years, the relationship between the government and the Congress was marred by rivalries. M.P. Koirala became prime minister and B.P. Koirala had control of the party.

As regent for his ailing father King Tribhuvan, Crown Prince Mahendra started out being sympathetic to the Nepali Congress’ demand for an election of a constituent assembly, which his father had promised in 1951, but he soon proved eager to keep control in his own hands. In January 1956, he appointed Tanka Prasad Acharya of the Praja Parishad party as Prime Minister, along with other members from his party and favourites of the king as ministers. The other parties had refused to participate in the government when he wanted to handpick the members from their ranks. After succeeding to the throne in 1955, King Mahendra (king from 1955) agreed to hold an election in 1957 for parliament but not for a constituent assembly. In his view, the constitution should be gifted to the people by the King rather than be created by the people, in which case, the King’s ultimate powers would be undermined. In December 1957, the newly-formed alliance United Democratic Front (consisting of the Nepali Congress, Praja Parishad and Nepali National Congress, a splinter group from the Nepali Congress) started a satyagraha, a civil disobedience campaign, to force the holding of

163 Hachhethu 2006

164 Until today, the communist parties have split and merged frequently, often on disagreements between revolutionary wings and factions who were in favour of (at least tactically) accepting a multi-party democracy based on free elections.

113 elections within six months. In a compromise, the King suggested 18 February 1959 as the election date, which all groups accepted. With the exception of the communists, the parties also accepted that the election was for parliament only and that election of a constituent assembly was put on hold for a generation. A Council of Ministers with representatives of the main parties and the King was established in May 1958 and remained in place until after the elections.

5.1.5 The First Elections and Democratic Experience A new constitution was drafted nominally by a Drafting Committee consisting of party representatives but in reality it was drafted by a British advisor, Sir Ivor Jennings, on the King’s instructions. The draft was promulgated on 12 February 1959, only six days before the first parliamentary elections.

The constitution provided for a bicameral parliament with a directly elected Lower House (House of Representatives) of one hundred and nine members and an Upper House (Senate) of thirty-six members, half elected by the House of Representatives and half appointed by the King. The King remained head of the executive branch. There were provisions giving the King strong powers over other state bodies and control of the army.

The results of the elections declared in May 1959 gave Nepali Congress thirty-seven percent of the votes and seventy-five out of the one hundred and eight seats in the House of Representatives. B.P. Koirala was asked to form government on 27 May. At the beginning, his relationship with King Mahendra seemed to be good. The government was able to initiate three major reforms. They abolished the birta system of tax-free long-holdings of which the Ranas and their closest allies had been the main beneficiaries.165 They also abolished the rajyauta system under which some of the former independent rajas had kept control of their territories in return for a fixed annual tribute to the central government. Finally, the Nepali Congress extended measures that had already begun for nationalisation of the country’s forests which had so far been the personal property of the King’s brothers.

King Mahendra had probably agreed to hold elections in the belief that it would lead to a hung parliament he could easily control, but instead he got a Nepali Congress-controlled parliament with the strong-willed leader and Prime Minister B.P. Koirala. After a period of protests and unrest in parts of the country, the King used the concern for public order as a pretext for using his emergency powers to dismiss the government and arrest B.P. Koirala and his colleagues on 15 December 1960.

5.1.6 The King’s Rule and the Panchayat System Initially there were few protests against the King’s takeover. Even fifty-five out of the Nepali Congress’ seventy-four MPs swung in favour of Mahendra. But the resistance gradually rose and the Congress party organised serious military efforts from the autumn of 1961 into a 3000-strong guerrilla force operating from India. However, they called off the campaign when

165 This did not have a lot of effect on who actually cultivated the land because an intermediate class of landlords had already developed, but it showed the Nepali Congress’ willingness toward land reform.

114 war broke out between India and China in October 1962. After this, Mahendra was free to build his party-less ‘Panchayat democracy’ as enshrined in his new 1962 constitution. It provided for directly-elected village and town councils (panchayats). These formed electoral colleges that elected district councils which again in turn elected the majority of the national legislature, the Rastria Panchayat, the remaining either being representatives of government sponsored ‘class organisations’ (peasants, youth, workers) or royal appointees. Parties were banned from 1961166 and could not nominate candidates. The Rastria Panchayat had limited powers and the system allowed the King to rule unhindered. Following unrest after King Birendra’s accession to the throne in 1972, a constitutional change in 1975 increased the number of district council members who could vote for the Rastria Panchayat and lifted the ban on reporting from its procedures. However, perhaps inspired by Indira Gandhi’s suspension of democratic liberties in India, Birendra gave a government-appointed committee powers to vet candidates to councils and gave it powers to appoint members. He also cancelled the class organisations’ right to elect members of the Rastria Panchayat and thus removed the embarrassment of having some critical voices in the legislature.

There were small scale resistance efforts to the regime before 1979. Mahendra implemented some of B.P. Koirala’s reforms, and the 1964 land reform act was similar to his proposals. There was, however, growing opposition to the system and prominent figures were arrested for voicing criticism. B.P. Koirala had been released in 1968 but in 1969 he moved into exile in India upon information that he would be re-arrested. When he returned in 1976, he actually was re-arrested. He was acquitted of all charges in the autumn of 1978. That could have been a sign of Birendra actually wanted to reconcile with B. P. Koirala, but it could also have been a realisation that the new Janata Party government in India would be less tolerant of repression in Nepal.

By the end of 1970s, the Congress party had become two parties, while the communists had split in at least seven factions, divided on tactics towards the palace and the Nepali Congress and their stance on the Sino-Russian split. In retrospect, the most important group was the CPN (Marxist-Leninist)167 formed by former members of the extremist Jhapeli group and the Fourth Convention. Both were Maoists in ideology inspired by the Cultural Revolution in China. The latter put particular emphasis on the demand for a constituent assembly. The Marxist-Leninists had taken inspiration from the Naxalites of India and led a campaign of assassinations of class enemies in villages of the Jhapa districts. After a prompt reaction of the security forces, they turned to clandestine but non-violent agitation.

Even with the underground communist activities, the regime saw the Nepali Congress as the main threat and at times the regime tried to use communists as foils against B.P. Koirala and his supporters. Party politics were banned but in a few areas like the student union it still

166 The ban was brought into the constitution in 1967.

167 In the fragmentation of Nepali political parties, factions have often retained the name of the original party, along with a distinguishing identifier. It has become common usage to refer to such parties with the name of the party followed immediately by the identifier in parentheses.

115 thrived. How hard the palace cracked down on protests and political activities varied from time to time, but despite the suppression, there does not seem to have been a general fear of expressing political opinions among citizens at large.

The protests against the regime in 1979 were sparked by the hanging of two Nepali Congress activists sentenced for an attempt on Birendra’s life in 1974. The security situation never went out of control but the palace took the student revolts and demonstrations by parties seriously. Birendra announced a referendum presenting voters with the choice of either a reformed Panchayat system or a multi-party democracy. The proposed reforms of the Panchayat system would include direct election of the Rastria Panchayat.

Apart from the Marxists-Leninists and the Forth Convention who boycotted the referendum, the opposition parties campaigned for the multi-party alternative. The Panchayat alternative won with 2.4 against 2 million votes after a campaign in which the opposition was free to organise meetings but in which the radio was totally on the side of the Panchayats and the government used all their resources in support of that alternative. The multi-party alternative won more support in the big cities and the overall result did indicate a growing opposition against the Panchayat system.

In the 1980 amendment to the constitution, the Rastriya Panchayat was expanded to 140 members, of whom 112 were elected and the rest appointed by the King. Candidates had to take an oath of loyalty to the Panchayat system and had to be members of one of the ‘class organisations’. The government was responsible to the Rastria Panchayat, which henceforth elected the prime minister with a 60 percent majority. If such a majority could not be reached, they would suggest three candidates out of which the King could choose one. The whole system was supervised by a Panchayat Policy and Evaluation Committee which seemed similar to the previous committee for vetting and appointing candidates.

The large leftist groups and the Nepali Congress stayed out of the first elections after the constitutional amendments, but two candidates backed by the moderate Congress faction and three by leftist parties were elected, nominally as independent candidates. In later elections, a few more party representatives were elected and the critics of the Panchayat system grew stronger.

At the same time, the relationship with India was difficult. At the end of 1989, the government failed to reach an agreement with the otherwise sympathetic new Indian Prime Minister V. P. Singh on a trade and transit agreement and India curbed the delivery of kerosene and other vital goods which resulted in hardship for the people at large. The events in Eastern Europe also encouraged hopes of the opposition and the Marxists-Leninists left the Maoist line and started to cooperate with the Nepali Congress in favour of a parliamentary democracy as a short-term goal. Against that background, the Movement for Restoration of Democracy was launched on 18 February 1990 by the Nepali Congress joined by United Left Front (ULF), an alliance of seven communist parties including both the Marxist-Leninists and the Fourth Convention. The Marxist-Leninists had replaced the Fourth Convention as the strongest party of the left after the latter had split several times. Two of the splinter groups, the Masal and the Mashal (Mashal included Pushpa Kumar Dahal [alias Prachanda], the later

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Maoist leader), refused to join the ULF, but together with other groups, they formed the United National People’s Movement (UNPM) and announced they would carry out protests of their own.

5.1.7 The First Jana Andolan (People's Movement) in 1990 The Movement began demonstrations and their well-known leaders were arrested. The middle-level leaders managed to continue a coordinated effort of protests and on 6 April 1990, King Birendra announced in a radio speech that he had appointed a new prime minister and would start talks with the parties. This was not enough for the political leaders and the protests intensified. Only after direct negotiations and another round of protests, the King agreed to full abolishment of the Panchayat system and the parties were allowed to operate again. On 19 April, K.P. Bhattarai of the Nepali Congress was appointed prime minister in an NC - ULF government which also included two independents and two royalists. After a commission appointed by the King had failed to draft a new constitution, a commission with the Nepali Congress and ULF representatives and representatives of the King drafted a new constitution, which was promulgated in November 1990. The constitution prescribed a bicameral parliament with a 205 member House of Representatives directly-elected through a first-past-the-post system. The King was obliged to appoint a prime minister who controlled the majority of the House. In addition, an indirectly elected Senate with few powers was created.

The leftist parties, in particular the Masal and Mashal, argued for an elected constituent assembly which the Nepali Congress had demanded in the 1950s and the Fourth Convention had agitated for in the 1970s, but moderate Nepali Congress leaders felt it was important to get a constitution in place fast.

The constitution prescribed a constitutional monarchy where the King had to act on the advice of the government but he was left with some discretion168 on the declaration of state emergencies. The left wanted to have the possibility to abolish monarchy later and also to replace the bourgeois multi-party democracy. They lost on those issues and, in addition, Nepal was declared a Hindu state and not a secular one. However, the constitution went some way in recognising the diversity of the country by declaring it to be multi-ethnic and multi- lingual but with Nepali being the language of the nation.

Prior to the 1991 election, the NC and ULF discussed cooperation, but it was rejected by the NC’s national congress. The Marxist-Leninists and the Marxists managed to unite under the name CPN (UML) – Unified Marxist Leninist, but cooperation with other groups turned difficult.

The UML was still ambivalent about multi-party democracy and the monarchy, whereas the United People’s Front (UPF) participated to ‘expose the system’. The UPF was a front organisation of the underground party Unity Centre, a merger between Mashal (Prachanda) and the Fourth Convention (Nirmal Lama). Masal called for a boycott of the elections.

168 Which the King used quite vigorously when he resumed powers in 2002.

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The Nepali Congress won 110 out of the 205 seats with UML establishing themselves as the main opposition party with 69 seats. The two National Democratic Parties (Rastriya Prajatantra Party, RPP) combined, winning 12 percent of the votes but only four seats. UPF won nine seats and Nepal Sadbhavana party (Terai regionalist party) won six.

5.1.8 The Second Period of Democracy The Nepali Congress leader K.P. Bhattarai was defeated in his constituency by the UML leader Madan Bhandari, so it was Girija Prasad (G.P.) Koirala, youngest brother of B.P. Koirala, who became prime minister following the election victory. The first period was characterised by street protests organised partly by UML and partly by UPF, to which the government responded firmly. The death of two senior leaders of the UML (Bhandari and Jivraj Ashrit) in May 1993 in a car accident gave rise to suspicions of foul play and demands for investigations. Within the Nepali Congress, there was a growing opposition against Koirala’s leadership and when thirty-six Nepali Congress MPs stayed away from the vote on the King’s speech in May 1994, Koirala asked the King to dissolve parliament and call for new elections.

Street protests continued, organised both by UML and followers of the two Nepali Congress leaders in opposition to Koirala: Bhattarai and Ganesh Man Singh. In the early election of November 1994, UML won most seats, 88 out of 205, even if they had a lower share of the vote than the Nepali Congress, which won 83. The now-merged RPP (National Democratic Party) won twenty seats with almost twenty percent of the votes, and were therefore the ‘king- makers’ of a hung parliament. UPF won no seats after the more radical wing had broken away and abandoned parliamentary politics (and would declare the ‘People’s War’ two years later). Coalition negotiations were inconclusive and UML’s Man Mohan Adhikari formed a minority government. The government fell in a non-confidence vote in Parliament in September 1995 when the Nepali Congress got support from RPP and Sadbhavana and the NC formed a coalition government. Sher Bahadur Deuba, who had replaced Koirala as head of the parliamentary group after the election, was elected prime minister.

From February 1996, the government faced increased challenges with the People’s War declared by the CPN (Maoists), the splinter group from the UPF. Initially this seemed to be a minor problem, and the government concentrated on finalising a controversial treaty with India on hydroelectric power and water from the Mahakali River, in which it managed to get more benefits in return than earlier governments. The RPP was split in their commitment to the coalition and the Chand faction was tempted by UML’s offer for a coalition government under Chand’s leadership. The government survived a non-confidence vote in March 1996 and again in December when the vote against the government was higher than the one in favour, but higher than the required majority of the 205 members of parliament. However, Deuba resigned after he did not get sufficient support in a confidence vote in March 1997 and Koirala again became head of the Nepali Congress parliamentary group.

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The new government was a coalition between UML169, RPP and Sadbhavana with Chand as prime minister but with UML’s deputy prime minister Bamdev Gautam as a strongman of the government. The RPP was split on the government issue and in September 1997 the government lost a non-confidence vote and RPP’s Surya Bahadur Thapa became prime minister in an RPP, NC, and Sadbhavana coalition. In April 1998, Thapa handed over the leadership to the Nepali Congress according to an earlier agreement, but Koirala now formed a Nepali Congress minority government without Thapa. He managed to secure a confidence vote in parliament by the help of UML and the rivalling Chand RPP.

At the end of May 1998, Koirala launched a large-scale police operation against the Maoists insurgency in the mid-western hills. Although the offensive brought casualties on the Maoists, the government was criticised for the loss of civilian lives.

The NC and UML now agreed to new elections and formed a coalition that also included the Sadbhavana to oversee elections, and they won a confidence vote in January 1999. The elections were set for 3 and 17 May 1999, and the NC won an outright victory with 36.7 percent of the votes and 111 seats against UML’s 30.7 percent and 71 seats. The UML had split in March 1998 and the splinter group CPN (ML) secured 6.4 percent but no seats. Had they not split, UML would probably have won a comfortable majority. K. P. Bhattarai then formed an NC government. Koirala had agreed to have him become prime minister in an attempt to keep the party together for the elections, but the rivalry within the party sparked off almost immediately after the elections

5.1.9 The Peoples War – the Maoist Insurgency At the beginning of February 1992, Dr. Baburam Bhattarai issued a manifesto with 40 demands to the government. Among those were a halt to the police excesses against them, retraction of major agreements with India, election of a constituent assembly and declaration of a secular state. The manifesto was an ultimatum and unless the government responded positively by 17 February, they would start the People’s War. The first attacks on police stations and government offices were already launched on 13 February. The Maoists were driven by their ideology and they managed to get support from poor farmers, excluded ethnic groups and castes and Dalits who had been discriminated against for centuries. Even though leaders like Prachanda and Dr. Bhattarai were from the Hill elite castes, they were able to win support of cadres from underprivileged groups. Among the nine seats the UPF won in 1991, winning candidates included Magars, Tamangs and Thakalis, making them more inclusive than other parties’ groups. There had also been a history of communist parties being active in the districts from the fifties and the Maoists were seen to continue their work.

From the beginning of the war, the Maoists were successful in the western areas of Rolpa and Rukum, Jajarkot and Salyan. These had little economic interest and the communication lines were very poor. The Maoists managed to take over land from the landowners and the workers would then work for the party instead. They also got support from radical groups in India and in the UK where the leaders had good contacts. Weapons were obtained through raids at

169 UML had in its conference in 1993, officially adopted the policy of multi-party democracy.

119 police stations. They played the ethnic card skilfully and they worked at the village level to get rid of caste discrimination and to raise the position of women.

To what extent their support was genuine or out of fear is a matter for discussion, although it was probably both. There is no doubt that the insurgency eventually gained broad support in many districts.

The government’s response was not strong: the police force was not well trained, and low salaries made it vulnerable to corruption. The King, to whom the army was loyal, did not want to use the army against the people. The leftist parties had sympathy for the Maoists’ cause, and recognised that Maoists cadres were a protection against police brutality at a local level, even though UML workers were often targets for Maoists tactics. They still called for negotiations rather than the heavy-handed use of security forces. Early in 1998, the Maoists set up their own People’s Committees as alternatives to the VDCs (Village Development Committee, the lowest level of local administration). These included Maoists members as well as parties acceptable to them.

Following G.P. Koirala’s crackdown on the Maoist army in May 1998, it was generally accepted that the insurgency had cost around eight hundred lives on both sides by the end of the year. It was estimated that the Maoists had 5,000 – 6,000 full-time cadres. Three-quarters of the seventy-five districts were ultimately affected by the insurgency.

In 1999, there were some attacks on police stations, leaving a number of casualties which made Prime Minister Bhattarai consider using the army. The King and Koirala, however, were sceptical and the army itself said a political consensus would be needed for such an action. Instead, the government announced the establishment of a special Armed Police Force to combat the Maoists. Negotiations were discussed but they did not happen.

Koirala worked for taking over the government again and, in March 2000, he became prime minister using the security situation as the main reason for his election.

In December 1999, the Maoists established District People’s Governments in Rukum and Rolpa. In September 2000, they attacked the Dunai headquarters of the Himalayan district of Dolpa, killing fourteen police officers and seizing fifty million rupees from a bank. The attacks continued and, in April 2001, the government initiated the Integrated Security and Development Programme with the army in control. The King was reluctant and the opposition against the move of the government, while the army chief was demanding political consensus for it to work. Koirala was under pressure from the Deuba faction and was weakened by being investigated over a claim of corruption.

5.1.10 The Massacre at the Palace That was when a bizarre tragedy happened on 1 June 2001. Crown Prince Dipendra, after having drunk a lot and possibly taken drugs, drew a number of weapons during a family gathering and killed his father King Birendra, his mother, his sister and brother, uncle, two aunts and one aunt’s husband and a cousin, and injuring a number more. At the end of his attack, he pointed the gun on himself and was fatally injured. While in a coma, Dipendra was

120 declared King, but he died on 4 June. After that, King Birendra’s brother Gyanendra was pronounced King. He had not been in the palace at the day of the shooting.

There have been a number of conspiracy theories about the events and some claimed that Gyanendra was behind the shooting. Even though the official inquiry left questions unanswered and it is natural for suspicions to flourish in situations like this, there is little evidence in support of any other theory than Dipendra killed his family as a reaction to their refusal to grant him permission to marry his girlfriend Devyani Rana.

5.1.11 King Gyanendra and the Intensified War Gyanendra was a far less popular person than King Birendra. Part of the reason may have been that he had been crowned king as a boy by the Ranas in 1950 at Tribhuvan’s absence in India, but more importantly he did not have a fortunate hand in politics.

After the Maoists killed forty policemen on the King’s birthday in July 2001 and abducted another sixty-nine five days later in Rolpa, prime minister Koirala wanted the army to intervene and thought he had Gyanendra’s and the army commander in chief’s agreement. The army was deployed but decided the risk of casualties was too high. The Maoists released the captured policemen in batches. However, Koirala at this time resigned and left the leadership to his NC rival Deuba.

A ceasefire was now agreed upon and there were three rounds of talks from August to November 2001. The government did not agree to a constituent assembly and Prachanda backed out of the talks. On 23 November, the Maoists launched a successful attack on army units and seized large quantities of weapons. The Maoists formed a United Revolutionary People’s Council of Nepal under Dr. Bhattarai’s leadership. The government declared a state of emergency which was ratified by parliament in February 2002 with the support of all major parties. Now the army was fully deployed in conflicted areas. During the next fourteen months, the military situation was indecisive, even though 100,000 security personnel were facing approximately 5,000 – 10,000 trained guerrillas.

When the state of emergency came up for renewal in May 2002, UML and a faction of the NC were against it. They felt the army had taken over control, and the army felt there was little political control. Deuba insisted and asked for dissolution of parliament and new elections. The parliament was dissolved on 22 May and new elections were set for November 2002. Thereafter, the state of emergency was confirmed by executive ordinance. As a result of the split, the Deuba faction broke out and formed a new party, the Nepali Democratic Congress. Because of the security situation, Deuba asked the King for an ordinance to postpone the election a year until November 2003 and for him to lead a caretaker government in the meanwhile. The King instead dismissed him in October 2002 and announced he would take over full executive power himself. The main parties did not want to nominate members of his caretaker government and the King turned to Chand of the RPP instead. Even if the King maintained that he had acted according to the power given to him by the emergency

121 rules of the Constitution170 he had, in fact, taken over the powers the King had had before 1990.

The government entered into a ceasefire with the Maoists in January 2003. It was broken by some incidents and in August the Maoist renounced it, insisting on a constituent assembly which the government did not agree to, arguing it was outside their mandate. By the end of 2003, 10,000 people had died and 100,000 had been displaced because of the insurgency.

During 2002, there were some political developments. The Gautam faction returned to UML and the UPF merged with the National People’s Front to form the People’s Front. These and the Nepali Workers and Peasants Party joined the NC and UML in May 2003 in a campaign against the royal takeover, and a demand for multi-party government and the restoration of the 1999 parliament. Chand tried to get the parties involved in his government but they rejected his proposal and suggested Madhav Kumar Nepal of UML as leader of a new government. Chand resigned and the King appointed the other RPP leader Thapa in June 2003, thus rejecting Madhav Nepal.

The idea of a constitutional assembly won more support after the royal takeover, but the main parties still thought the 1990 constitution could be the basis for reform. The King would not accept a constituent assembly without his role being guaranteed in advance and the Maoists had a republic as their one goal for a constituent assembly.

In June 2004, the King restored Deuba as prime minister and he stayed until the King’s takeover on 1 February 2005.

5.1.12 King’s Takeover on 1 Feb 2005 The famous 1 February proclamation started with King Gyanendra's characteristically pompous glorification of the Shah Dynasty's proud tradition of respecting and going by the people's desires. 171 Then he came down heavily upon the Nepali political parties for ignoring the people, bickering for power, misusing the state apparatus, and competing for individual or partisan interests at the cost of the nation and the people. Then he proclaimed his actual intentions: 'Due to the responsibility vested in me to save nationalism, national unity, sovereignty, and to establish peace and security, and to save the country from any kind of further deterioration, according to the spirit of The Constitution of the Kingdom of Nepal 1990, using clause 27, sub-clause (3)172, I hereby dismiss the Council of Ministers. The new Council of Ministers will be formed under my Chairmanship. This Council of Minister's

170 Article 127. Power to Remove Difficulties: If any difficulty arises in connection with the implementation of this Constitution, His Majesty may issue necessary Orders to remove such difficulty and such Orders shall be laid before Parliament. 171 Pokharel and Rana 2012.

172 “His Majesty is to preserve and protect this Constitution by keeping in view the best interests and welfare of the people of Nepal.”

122 priority will be directed towards managing peace, better governance, and reactivating democracy in the coming three years.'173

An aid to the King later revealed that the reason the King had given for the takeover was to weaken the Maoists’ military strength and then enter negotiations, taking advantage of a weakened counterpart.174

The soldiers of the Royal Nepal Army marched into leading media houses to stop all operations and to control independent radio and FM stations. Security forces also moved into the houses of senior leaders to put them under house arrest. Around a thousand political activists, journalists, and human rights workers were rounded up and jailed, refreshing memories in many people of his authoritarian father King Mahendra's action in 1960.

5.1.13 Informal Talks with the Maoists175 In May 2002, G.P. Koirala went to Delhi to meet with the Maoists’ leaders. This was after the central committee meeting of the Nepali Congress mandated him to initiate a dialogue for peace with the Maoists. NC leaders were concerned about the indiscriminate murder of their party workers. The widows of the murdered were pressuring these leaders to do something decisive about it as soon as possible. A huge number of displaced NC workers in the villages equally pressured them. In this context, Koirala went to Delhi with his family members (Nona and Sujata) and another central committee member Chakra Prasad Bastola to meet with Prachanda.

This was the first time Koirala ever met Prachanda. Baburam Bhattarai was also there. The meeting lasted for 45 minutes, in which they discussed how to move forward. Following the meeting, Prachanda agreed to hold talks through the then-existing parliament. The bottom line for the talks from Koirala's side was that five principles of the 1990 Constitution ─ multi- party democracy, the parliamentary system, an independent judiciary, human and civil rights, and a constitutional monarchy ─ were not negotiable and that the Maoists needed to clarify the objectives of the constituent assembly.

After reaching this understanding, G.P. Koirala informed King Gyanendra about the meeting. King Gyanendra agreed that the parliament should hold talks with Maoists, but he asked what the King's role would be. Koirala explained to him that the parliament was none other than the King-in-Parliament. But the old politician immediately sensed a dangerous personal ambition shaping up in the King's mind.

With the King's green signal to go ahead with the talks with the Maoists, Koirala organised a mass rally with the political parties represented in the parliament on May 10, 2002. In the public rally, he appealed to the Maoists to correspond to the parties in the parliament within a week if they were really serious about peace-related talks. The Maoists responded within

173 Pokharel and Rana 2012.

174 Ibid

175 This section is built on Pokharel and Rana 2012.

123 three days. Serious planning was done to move the dialogue forward and to hold formal talks thereafter. The central committee meeting of the NC directed its party's Prime Minister Sher Bahadur Deuba not to extend the ongoing emergency. Curiously, going against the party's decision, the prime minister instead tabled a bill in parliament to extend the emergency.

After Deuba was threatened with a non-confidence vote from his own party, the King dissolved the Parliament on 22 May 2002. Some would speculate that if the parliament had not been dissolved at that time then peace may have prevailed after proper negotiations and a peace accord, and Nepal's history would have been different.

Up towards the King’s takeover on 1 February 2005, Prachanda led a faction who felt that the Maoists should deal with the King, not with democratic parties in that particular political context. This was opposed by the faction led by Baburam Bhattarai and Prachanda had taken action against Bhattarai so that there was no obstruction to talk with King Gyanendra directly. The King’s takeover spoiled any such chance.

After the royal takeover, many political leaders were detained and others fled to India. An alliance covering more than ninety percent of the seats in the old parliament was organised, called the Seven Party Alliance (SPA)176. In a private flat in Delhi, representatives of the Seven Party Alliance (SPA) met Maoist leaders to finalise what was to become the 12-point agreement. Despite discouragement from the international community including the Americans, G.P. Koirala agreed on the document on 22 November 2005, arguing that they had the responsibility to bring the undemocratic forces into the democratic, constitutional fold. The agreement included a common front against the King’s rule, the holding of election of a constituent assembly, the Maoists to return land to their owners and a common commitment to multi-party democracy. They also agreed to put both the Peoples Liberation Army (PLA) and the Royal Nepal Army under UN supervision.

Five months after the signing of the 12-Point Understanding, the SPA and the Maoists decided to launch an agitation against the royal government. The second point in the 12-Point Understanding called for ending the autocratic King’s rule through the force of the people’s movement. Accordingly, in the first week of April 2006, the SPA called a three-day general strike demanding restoration of peace and full democracy. The beginning of this general strike, on 6 April 2006, saw huge demonstrations in the capital defying the Government’s ban on public gatherings.

Many western donors had cut down foreign aid prior to this second Jana Andolan177 (People's Movement II) to pressure the King to respect human rights and democratic freedom. At the end of the third day of the general strike, the SPA announced the continuation of the agitation until their demand for the restoration of Parliament was met. The demonstrations gained

176The parties were Nepali Congress, Nepali Congress (Democratic) CPN (UML), Nepal Workers and Peasants Party, Nepal Sadbhavana Party (Anandi Devi), United Left Front (an alliance of three parties), People’s Front and they made up 194 of the 205 seats of the parliament elected in 1999. 177 Or ’Loktantra Andolan’ (Democracy movement)

124 general support from all groups of the population, where the Maoists also played a crucial role in mobilising people in favour of democracy and peace. A senior Maoist leader Khim Lal Devkota has said: “The Maoist leaders could not come out openly so we asked the ordinary people in the villages to join the agitation assuring them we would look after their work.”178 On 14 April 2006 (Nepali New Year’s Day), King Gyanendra invited the agitating political parties for a dialogue, but the offer was rejected by the SPA stating that it did not address the burning problems of the country. The agitation continued with aggressive demonstrations throughout the country. People were killed and thousands of others were injured across the country.

The mounting international and national pressure forced King Gyanendra on 21 April 2006 to finally give up his power and called for the SPA to form a government. Even if many international governments recommended that the SPA to take up this offer, they rejected it thinking they knew the King’s logic too well. Then after direct talks between the SPA and the palace on 24 April, the King made a new speech where he reinstated the dissolved parliament which were to be summoned on 28 April and a new government was to be formed by the SPA. The Maoists did not accept the deal at first because it did not explicitly state that a constituent assembly would be formed as agreed in the 12-point Agreement, but Prachanda became convinced by G.P. Koirala that it would happen anyway, but on a path of continuity. The SPA appointed Koirala as prime minister on 27 April and two days later the parliament unanimously agreed to Koirala’s proposal for elections of a constituent assembly. On 18 May, the parliament passed a proclamation reducing the monarchy to a ceremonial position, declared the centuries-old Hindu kingdom a secular state, guaranteed women a full third of government positions and placed the armed forces under the control of parliament.

5.1.14 Formation of a Democratic Government and the Constituent Assembly Elections On 19 May 2006, the parliament assumed total legislative power and gave executive power to the Government of Nepal (previously known as His Majesty's Government).179 Names of many institutions (including the army) were stripped of the ‘royal’ adjective and the Raj Parishad (a council of the King's advisers) was abolished.

The negotiations between the SPA, now in government, and the Maoists continued. A twenty- five-point ceasefire code of conduct was signed on 26 May 2006. It included the ceasefire, commitment not to use force, not to show combat dress or weapons in public, to release prisoners of war and to allow for international monitoring of the truce.

On 16 June, the parties entered the eight-point agreement committing to free and fair Constituent Assembly elections and to send a request to the UN to monitor arms and the elections. It reiterated the commitment to multi-party democracy and to negotiate on disagreements. It also stated that they should ‘bring about a forward-looking restructuring of

178 Pokharel and Rana.

179 Pant 2011: 18

125 the state so as to resolve the class-based, racial, regional and gender-based problems through Constituent Assembly elections’. The ceasefire was to be transferred into peace.

In August, the government sent a letter to the UN requesting monitoring of the arms and the elections.180

On 8 November 2006, a comprehensive six-point agreement with a number of sub-paragraphs was signed. This introduced the mixed electoral system and the specific formula of inclusiveness for elections was defined. The Constituent Assembly should have 409 elected members: 205 elected from single-member constituencies by FPTP181 and 204 by List PR with the whole country as one constituency. In addition, there was to be sixteen members appointed by the interim Council of Ministers from “among distinguished persons” so the total came to 425 members. The formula of inclusiveness in the List PR part of the election which later was included in the Interim Constitution stated: “While appointing the candidates, the political parties should ensure proportional representation of oppressed Janajati groups, backward regions, Madhesi, women, Dalit and other groups.”

It also regulated the interim period up to when the Constituent Assembly would take over as parliament in addition to its duties as constituent assembly. The interim legislature should be unicameral with 330 members and be given the following composition:

i. 209 members of the seven parties and others who were members of the lower and upper house (excluding those who opposed the people’s movement). Since the Left Front did not have its representation in the parliament, its representation in the interim parliament was be determined based on an agreement ii. 73 members from the Maoists iii. 48 members from sister organisations and professional bodies, oppressed ethnic communities and regions and political personalities appointed based on understanding.

The elections were set to mid-June 2007. The United Nations should be asked to monitor the elections.

On 21 November 2006, the Comprehensive Peace Agreement (CPA) was signed by the Government of Nepal and Communist Party of Nepal (Maoist). The CPA called up the six- point agreement regarding elections after stating that an interim legislature parliament should be appointed on the basis of an interim constitution and including a commitment to hold free and fair elections to a constituent assembly by June 2007. The agreement also reiterated two pillars of the agreements between the Maoists and the SPA: The commitment to a drastic restructuring of the state and the commitment to multi-party democracy. Main elements were:

180 From July 2006 to present the author has been travelling frequently to Nepal and been able to monitor the political development first hand. The narrative from here onwards is based on his observations and on primary document sources.

181 The number was kept as for the parliaments of the 1990s and the constituencies were planned to be kept as per the existing law as used in 1999.

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 Expressing determination to carry out a progressive restructuring of the state to resolve existing class-based, ethnic, regional and gender problems.  To adopt an interim constitution  To decide whether or not to retain the monarchy by a simple majority in the first meeting of the constituent assembly.  To adopt a political system that fully abides by the universally accepted principles of fundamental human rights, multiparty competitive democratic system, sovereignty of the people and supremacy of the people, constitutional balance and control, rule of law, social justice, equality, independent judiciary, periodic elections, monitoring by civil society, complete press freedom, people's right to information, transparency and accountability in the activities of political parties, people's participation, impartial, competent, and clean bureaucracy.  To hold the constituent assembly elections in a peaceful, fair and fear-less environment and to carry out democratisation and restructuring of the army.

The agreement also defined the system of UN-monitored cantonments of the Maoist army as well as the UN-monitoring of the Nepal Army and it mandated the “Interim Council of Ministers to work by forming a special committee to supervise, integrate and rehabilitate the Maoist combatants”.

On 8 December 2006, an Agreement on the monitoring of the management of arms and armies (AMMAA) was signed detailing the immediate steps in monitoring the cantonments and, in addition, contained the following sentence, which later caused a lot of conflict: “Only those Maoist army combatants who have been properly registered at cantonment sites will be eligible for possible integration into the security forces fulfilling the standard norms.” In particular, the NC interpreted the standard norms to be taken literally, so that those being integrated had to meet all current recruitment criteria of the Nepal Army and, at the same time, the number of combatants to be integrated was negotiated.

On 14 January 2007, the new 330-seat interim parliament was sworn in, including 83 Maoists182. They immediately approved the Interim Constitution which came into force on 15 January 2007. The Interim Constitution had been prepared by a drafting committee formed in June 2006 headed by retired Supreme Court Justice Laxman Aryal and with six other prominent lawyers as members. Later, the committee was expanded to include a few women, and members put forward by the various parties including the Maoists. 183

The Interim Constitution reflected the CPA, which was also included as a Schedule. It was frequently amended partly to reflect new political agreements and partly to make it more practical. It was drafted using the 1990 constitution as a basis and included fundamental rights, the structure of government, the rules for drafting a new constitution and political statements on the restructuring of the state.

182 The party quota plus part of the civil society quota.

183 UNDP: A bilingual commentary issue of the Interim Constitution of Nepal, January 2008.

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The interim period defined in the constitution was the time from the promulgation of the Interim Constitution until a new constitution had been passed and a parliament had been elected. In this period, there would be a unicameral interim legislature parliament. The government should, as the main rule, be established by consensus, which meant in agreement among the parties to the SPA. In case such consensus could not be reached, a majority government should be established.184 The expanded parliament as prescribed in the SPA would be the legislature parliament up to the time when the elected Constituent Assembly had been inaugurated and, after that, the Constituent Assembly would take the dual role of a constituent assembly and a legislature-parliament.

The constitution included provisions for proportional participation in the restructuring of the state 185, pursuing the policy of adopting scientific land reform programs by gradually ending capitalistic land ownership practices186, abolishing the monarchy in the first meeting of the Constituent Assembly, etc.

The new constitution was to be drafted and promulgated within two years of the Constituent Assembly’s first meeting.187 The constitution should ideally be passed by a two-thirds majority of the full membership of the Constituent Assembly with a fall back possibility of a two-thirds majority of those voting when at least two-thirds of the members are present.

On 22 October 2006, Bhojraj Pokharel was appointed Chief Election Commissioner and four new commissioners were appointed in the following two months. They started immediately drafting a new election law based upon the mixed system. To start with, it was unclear if a mixed system meant a parallel system or a so-called mixed-member proportional system (MMP)188 but a compromise was struck among the parties in February 2007, specifying a parallel system. A draft law was sent by the Election Commission to the Cabinet on 7 March 2007 and the Cabinet sent it to the parliament on 20 March. The expectation had been high

184 At the outset, the requirement for electing a prime minister if consensus was not reached was a two-thirds majority of the members of the Legislature-Parliament but a constitutional amendment changed that in July 2008 to the majority of the members. The rule was tested in the period from July to November 2010 when sixteen unsuccessful votes were held in the parliament to elect a prime minister after negotiations on a consensus candidate had failed. The vote succeeded on 3 February 2011 after having modified the procedure by an agreement between UML and the Maoists not to allow blank votes or votes against a candidate. After that, the members of parliament had to make a choice among the candidates running.

185 Article 21. Right to Social Justice: (1) Economically, socially or educationally backward women, Dalit, Ethnic Tribes, Madhesi community, oppressed class, poor farmers and labourers shall have the right to participate in the state restructuring on the basis of proportional inclusive principles. 186 Article 33 (f)

187 However, there was a provision that if the constitution formulation could not be completed due to the declaration of an emergency situation in the country, the Constituent Assembly could be extended by another six months.

188 The Parallel system is a half-proportional system where the two races are run independently of each other, whereas in the MMP, the List PR race provides a compensatory system which provides for a fully proportional result (New Zealand and Germany offering prominent examples).

128 that the political parties would remain loyal to the deadline of the Interim Constitution189, but on 13 April, the Election Commission proclaimed that it was now impossible to hold elections in June and that they would need at least 110 days from the day the law was passed until Election Day to prepare for the election. The election was then eventually postponed to November 2007.

In 2007, the Madhesi parties became more active in their demands, and the first election issue they raised was a demand for more seats in the Terai in the FPTP race. The Constitutional Amendment No. 1, passed on 13 April, changed the number of constituencies from 205 to 240 in order to accommodate that around 48 percent of the constituencies should be located in Terai. The same number, 240, were to be elected by List PR. A federal system of governance was also added.190

On 1 April, a new government was sworn in with five Maoist ministers and one State secretary. In September, the Maoists resigned on the issue of a fully proportional system and the demand for the declaration of the republic before the election. The Maoists had accepted the parallel system earlier, but in their plenary meeting in August, they decided to go for a fully proportional system. On 23 December 2007, a compromise was reached in a twenty- three point agreement which moved the system further towards more proportional representation (335 elected by List PR against 240 in FPTP) and the parties committed to abolish the monarchy in the first meeting of the Constituent Assembly. In a transitional article, it was stated that Nepal shall be a federal republic and the King should have no state functions. After this, the Maoists entered the government again.

The Madhesis again started agitation, including violent actions. The demands included that a promise by the government that the future federal republic should include one single Madhes state (one Madhes Pradesh). In addition, they wanted more possibilities for Madhes parties to have an exception from the quota rules: They did not want to be forced to have Hill candidates on their lists. The uprising ended in an eight-point agreement on 28 February 2008 between the government and the Sadbhavana Party, the Madhesi People’s Rights Forum, Nepal and the Tarai Madhes Democratic Party. The agreement included the following:

“By accepting the Madhesi people’s call for an autonomous Madhes and other people’s desire for a federal structure with autonomous regions, Nepal shall become a federal democratic republic.”

“The existing legal provision for 20 percent, in Sub-section 14 of Section 7 of the Election of Members to the Constituent Assembly Act 2064, shall be changed to 30 percent.”

“We appeal to everyone to help conduct the Constituent Assembly election on 10 April in a peaceful, violence-free, impartial, fair and fear-free environment.”

189 In hindsight, the process of passing the law was quite fast and the deadline was rather unrealistic.

190 Article 138.

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The government did not promise one Madhes state even if the language went far in that direction. The increase from 20 to 30 percent was about candidate lists. Short lists had exceptions from the quota rules for groups (but had to meet the gender rules) and the definition of ‘short’ was raised to 30 percent or a list with up to hundred candidates. In that way, the Madhesi parties could avoid Hill people and, at the same time, propose quite substantial lists.

On 1 March 2008, an agreement was also entered between the government and the Federal Republican National Front regarding the rights of some indigenous groups, Dalits and women. The agreement included point 3 which stated i. a: “By keeping Nepal's sovereignty, national unity and integrity intact, provision of scientific autonomous federal republican provinces such as Limbuwan, Khurnbuwan, Tamangsaling, Tharuhat, etc. based on historical background, language, geographical region, economic source and possibility will be made through Constituent Assembly by ending 239 year-old centralized governance system. To ensure this, it will be approved by the cabinet. [...] This agreement will be sent to the Restructuring Commission, which is going to be formed for the new structure of the nation, for its implementation.”

The agreement committed the Front to withdraw all Bandhas and fully cooperate with the elections. The document, together with later concept papers of the Constituent Assembly (2009), also contributed to raising high expectations of a future federation with states drawn up based on ethnic identity.

The Constituent Assembly elections were held on 10 April 2008. There were incidents prior to the elections which included both threats and intimidation, but the vote itself received good international reviews. The Carter Center stated in their final report: ”In contrast to expectations, the election itself was remarkably peaceful. In addition, the election process for the most part was orderly and in accordance with the established procedures”191. There is no reason to believe that the results did not reflect the will of the voters on Election Day. The results broke with a tradition of elitism and produced an assembly with a variation of backgrounds never seen before. This was partly due to the Maoists’ willingness to nominate candidates for FPTP from Dalit and Janajati communities but, first of all, it was due to the extensive quota rules enforced for the List PR part of the elections (see next section).

Politically, the Maoists came out as the clear winner and the biggest party. With 30.0 percent192 of the votes, they won 220 seats in the Constituent Assembly. The NC won 21.7 percent and 110 seats and UML 20.9 percent and 103 seats. The largest Madhesi parties also fared well. Since the List PR election was conducted without a threshold193, many small

191 The Carter Center May 2009: ’Observing the 2008 Nepal Constituent Assembly Election April 2008’. 192 In the List PR race.

193 The Sainte-Laguë formula was modified by changing the first divisor from 1 to 1.4. Otherwise another five parties would have won seats. With the Modified Sainte-Laguë, the lowest vote share to win a seat was 0.22 %.

130 parties won seats; fifteen parties won from one to four seats, and there were twenty-six parties winning seats all together194.

After negotiations over almost three months from the Constituent Assembly inauguration on 28 May 2008, the Maoist chairman Prachanda formed a government without NC participation. Prior to his appointment, the parties had signed an “Agreement between the Political Parties to Amend the Constitution and to Further the Peace Process” on 25 June, which made the election of the Prime Minister simpler in the case consensus was not reached195. In addition, it stipulated a six-month deadline for the army’s integration and a request to UNMIN to extend its mandate by half a year.

In a dispute over his authority to dismiss the army chief which had been rejected by the President of the Republic, Prachanda resigned on 4 May 2009. A new government under the UML leader Madhav Nepal was formed on 25 May 2009 with NC but without Maoist participation.

The progress on the peace process was meagre. The Maoist combatants had successfully been placed in cantonments at the end of 2006, but after that, the army integration had stopped. The parties were not able to agree on the modalities. The drafting of the constitution had a slow start but concept papers were produced by the various committees in 2009 and early 2010. At that time, it became clear that the two-year deadline for the Constituent Assembly could not be met. The Maoists agitated for a consensus government and all issues seemed to be made dependent on each other.

One and a half hours past midnight on 28 May 2010, the parties finally agreed to change the Interim Constitution and extend the term for the Constituent Assembly by an extra year. They also agreed in principle on a consensus government. Madhav Nepal resigned on 30 June 2010 and negotiations started on a new consensus government. When the negotiations had been unsuccessful and a number of deadlines set by the president had passed, the parliament started the fallback process: The voting started on 21 July for a majority government. The rules were interpreted in a strict manner. A candidate would need not only a majority of those present and voting but a majority of the total membership of the Legislature-Parliament to be elected.

The candidates in the first vote on 21 July were Prachanda from the Maoists, Ram Chandra Poudel from the NC and party chairman Jhalanath Khanal of the UML. UML withdrew their candidate at the last minute in a move which caused a lot of internal agony within the party. The vote was organised separately for each candidate where members of parliament could vote in favour, against or abstain. Both candidates fell short of reaching the necessary majority; Prachanda drew at the maximum 259 votes and Poudel 124 against the requirement of 299. UML’s Khanal maintained that they should still seek a consensus government rather than carrying out majority votes and abstained. The voting pattern was repeated for another six votes until Prachanda withdrew his candidacy. Poudel stayed as the only candidate, but

194 Plus two independents.

195 The change was from a two-thirds to a simple majority of the members of the Legislature-Parliament.

131 his support dropped over time and in the 16th vote on 4 November, only 101 MPs participated in the vote and 82 voted in his favour.

In the new session of parliament, the parties agreed to change the parliamentary regulations so that it would not be possible to be neutral in the vote any more. They further agreed that new candidates could be put forward. On 3 February 2011, the 17th attempt to elect a prime minister was held. Prior to the vote, intense discussions were held between parties and, at last minute, the UML chairman Khanal entered an agreement with Prachanda, which meant that the Maoists would not run but vote for Khanal against benefits in ministerial posts and an agreement on some principles of the army integration. In the vote, Khanal secured 368 out of the 557 votes cast, Poudel won 122 and the Madhesi Janadhikar Forum Loktantrik candidate Bijaya Kumar Gachhadar won 67.

Khanal had entered a seven-point agreement with Prachanda before the elections without informing prominent UML or NC leaders. The NC in particular criticised that the agreement opened for a separate army division for the PLA combatants. Key ministries would be given to the Maoists who claimed the Home Ministry. Khanal was not allowed by his own party to give them any security-related ministry.

Filling the minister posts caused controversies internally, both with the Maoists and UML. The Madhesi Janadhikar Forum-Nepal decided in March to join the government, but it did not happen due to endless negotiations within both the UML and the Maoist party. Only on 5 May did Khanal manage to expand the Cabinet to its full membership. The Home Ministry was given to the Maoists and three other parties joined: Madhesi Janadhikar Forum-Nepal (MJF-N), CPN (ML) and CPN (Samyukta). At the same time, Khanal became weaker, particularly with the lack of support from his own party and approaching the of 28 May deadline for the Constituent Assembly term, the NC became firmer in their demand for Khanal to resign and make room for a consensus government.

Some progress had been made by a high-level panel chaired by Prachanda from October 2010 to reduce the list of 250 disputed issues with regard to the constitution. By 28 May 2011, the list was down to 22, but the three main issues — the federal structure, form of government and the electoral systems — were still unresolved. Prior to the 28 May deadline, the integration modality, numbers and standards came to the forefront, in addition to the government issue. The NC put forward ten demands, and the two most prominent were for Khanal to resign and the handover of the weapons from the Maoists. The Maoists were firm that they did not want a process which could look like their surrender. The modality had been close to being agreed upon, with a new Directorate to be formed within the Nepal Army with duties within rescue operations, engineering, forestry, etc., consisting of a mix of Maoists combatants and army personnel. Early in the morning on the 29th of May, the Parliament- Legislature decided: The fundamentals of the peace process (e.g. integration) to be completed within three months; preparation of the first draft of the constitution within three months; implementation of past agreements with Madhesis to making the Nepal Army an inclusive organisation; extension of the Constituent Assembly by three months and Khanal’s resignation to pave way for a consensus government.

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On 14 August, Khanal resigned. Negotiations on a consensus government failed and on 28 August, Dr. Bhattarai was elected prime minister with support of mainly the Madhesi parties in addition to his own Maoist party, and on 29 August, the Constituent Assembly was extended by another three months.

5.1.15 Conflicts and Power-Sharing The armed conflict was clearly ideological, but it was rooted in centuries of injustice and discrimination based upon caste, language and ethnicity. The Maoists gained support from the groups that had been excluded from economic development and social and political influence. The peace deals were struck between the combating parties, which in the end were the mainstream democratic parties representing the elite and the Maoists whose leadership also, to a large extent, came from the elite. In the agreements to end the discrimination, inclusion and representation were necessary elements. However, organisations representing Janajati groups, Madhesis, Dalits and women became more vocal as the peace process progressed. The Madhesi uprising in 2008 was one indication and Tharus, Limbus, etc., also became violent in their struggle for their rights.

The power-sharing agreement entered as part of the peace agreements mainly covered the political dimension. These agreements regulated integration of the armies and they put a lot of emphasis on negotiating consensus with regard to the future state structure and on forming consensus governments across the parties signing the agreements.

Along the ethnic, caste and linguistic dimensions, the main instrument was to secure representation in the Constituent Assembly and in the government structure. In the Constituent Assembly elections, extensive use of quotas had given the Janajati group and Madhesis fair representation196. Women and Dalits had improved their representation from almost nothing to around two-thirds of their share of the population. Madhesis had formed strong Madhesi parties which could speak on behalf of the group, but women, Dalits and Janajatis worked within the parties.

In the Constituent Assembly, the Janajatis formed their own caucus (the Indigenous Peoples’ caucus or the IP caucus) across party lines, as did the women. Within the Janajati groups, there was a frustration that the parties did not represent their interests. Some had hoped that they could work independently of the party whips when drafting the constitution and they were afraid that the main issues would be taken by party leaders ignoring the common Constituent Assembly members as well as the drafting committees and the IP caucus. In the issues related to the federal structure, this view, in particular, was prominent. The drafting committee responsible for restructuring of the state suggested fourteen provinces based, to a large extent, on ethnic identity. The demand was also that identifying ethnic groups should enjoy some political privileges within their province197, demands which were unrealistic but

196 As a whole, but not necessarily within the groups. In particular, within the Janajati groups and Madhesi castes, the differences were huge.

197 Like being guaranteed the position as head of the province.

133 widespread. In particular, the Limbus in the far east fought hard for a Limbuwan state with exclusive rights for Limbus as indigenous to the province. This would be at the cost of Hill caste groups in particular, which would still be the largest group in the province, since the Limbus only represented 27 percent of the population. The reasons given for such privileges varied from ‘after more than two hundred years of discrimination it is now our turn to dominate’ and ‘the hill caste people are indigenous to western hills and they can go back there to enjoy indigenous rights’, to more sophisticated arguments deriving from the commitments to the ILO 169 Convention (ratified by Nepal). The discussion at large would include supporters of extreme group rights and supporters of individual rights only.

The mainstream parties eventually came to the decision that the ethnically-based model for the federation would not create economically viable federal units. They also dismissed the most extreme suggestions for group representation. In this process, the dialogue between parties worked well, but the dialogue with organisations representing Janajati groups did not. The parties felt that they, as parties to the peace agreements, were entitled to enter agreements on the future structure and they had the mandate directly from the voters to do so. They also thought that the Janajati groups often held unrealistic views and the dialogue was never efficient, and they were of the opinion that they would be able to convince the Janajati groups once the parties had agreed.

How the state structure will be crafted is still not clear, but the parties would gain from putting more effort into a close dialogue — even with those representing extreme views on group representation — to strike an acceptable balance between individual and group rights. That would be the only hope for putting deep conflicts at rest with the adoption of a new constitution.

5.2 The Quota Arrangements and Other Power-Sharing Elements

5.2.1 The electoral history Nepal had elections to parliament in 1991, 1994 and 1999. In all these elections, 205 members of parliament were elected from single-member constituencies according to a plurality system (first-past-the-post, FPTP). The parliaments elected reflected the traditional division between privileged castes and ethnic groups and groups that had been excluded from political influence for centuries (see Section 3.1.3). During the 1990s and early 2000s, two conflicts developed in parallel: the conflict with Maoist insurgents and the conflict between the King and a group of political parties. Both conflicts made it clear that Nepal needed fundamental reforms of her political structure.

The discussion of a new Nepal intensified and the conflict between the main parties and the King reached its peak in 2002. The first agreement between the Seven Party Alliance (SPA) and the Maoists on 22 November 2005 created a broad foundation for the discussions, and after the King resigned and the House of Assembly was reinstated on 24 April 2006, there was a clear direction towards a multi-party election of a Constituent Assembly (CA). The framework for the elections was defined in the six-point agreement between the government (now consisting of the SPA) and the Maoists on 8 November 2006. This agreement stated:

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“The election of the constituent assembly will be based on a mixed electoral system. 205 members will be elected through a first-past-the-post system. 204 members will be elected as per the proportional representation system on the basis of votes won by the political parties.” In addition “16 members will be nominated by the interim Council of Ministers from among distinguished persons”.

As for inclusiveness, the agreement said that “[w]hile appointing the candidates, the political parties should ensure proportional representation of oppressed groups, regions, Madhesi, women, Dalit and other groups.”

The Interim Constitution of 15 January 2007 added a few features to the system, but the principles were kept.

The term ‘mixed system’ was not defined, and it could therefore mean either a parallel system which is a semi-proportional system or a mixed member proportional system (MMP), which is a fully proportional system. In a compromise deal between the government and the Maoists on 21 February 2007, it was concluded that the term was to mean a parallel system conducted with two ballots198.

Before 8 November 2006 when the mixed system was defined in the six-point agreement, a number of systems were discussed among parties and in the civil society. It was clear that an element of proportionality would be built into the system of representation, moving Nepal away from the Westminster model with single-member constituencies which had been used during the 1991, 1994 and 1999 elections. There was, however, widespread confusion about the term ‘proportional system’. Some understood it in the regular way as a list-based system where parties would win seats according to their number of votes, but many, in particular among the NGOs, took it to mean a system where all groups of the society should be represented in proportion to their demographic strength. The strong call for proportional representation often referred to the latter interpretation rather than the former.

In the public discussions in 2006, a number of systems were discussed where representation of groups could be combined with various forms of systems of political representation. Some interest groups went far in demanding very detailed representation from each of the 100 groups represented in the 2001 census as well as parity between men and women within each group, whereas others were satisfied with quotas for previously politically marginalised groups within a broader definition of groups.

When the six-point agreement defined a mixed system of representation, the discussion concentrated on the choice between a parallel system and the MMP system. The Communist Party of Nepal–Unified Marxist-Leninist (UML) was particularly in favour of MMP, and the Nepali Congress (NC) was in favour of the parallel system, whereas the Communist Party of Nepal–Maoist (CPN-M) were rather ambivalent but very clear on the demand for two ballots with the possibility for voters to cast a split vote. A compromise was struck on 21 February 2007, after an intensive public debate, whereby an agreement was reached on the parallel

198 Having only one ballot counting for the two races and thus not allowing for a split vote had been discussed.

135 system with two ballots. When the elections were postponed from June to December 2007, the Maoists strengthened their support for a proportional system and made a fully proportional system a condition for moving on with the election. This was also supported by Madhesi199 groups, which became increasingly visible and militant in 2007 and 2008. The compromise made in December 2007 raised the number of seats elected by a proportional system from 240 to 335, and the elections were set to April 2008.

The six-point agreement of November 2006 also stated that “while appointing the candidates, the political parties should ensure proportional representation of oppressed groups, regions, Madhesi, women, Dalit200 and other groups”. The term ‘proportional’ here meant in accordance with their share of the population, which, for example, would mean that there should be 50 percent female candidates. At this point in time, it was unclear if the term ‘other groups’ meant all others or only other marginalised groups201. When the interim constitution also defined that the List PR part should maintain proportional representation among the candidates from women, Madhesis, Dalits, Oppressed communities/indigenous groups (Janajatis), Backward regions and other groups, it was still not clear if the requirements were on a minimum representation of marginalised groups or if it meant a segmentation of all people into groups with proportional representation. The latter would imply that even privileged groups had a quota and that, in turn, would mean that the quotas for the marginalised groups would not only be minimum quotas, but also maximum quotas.

In the early discussions, many politicians were of the opinion that the FPTP race would be won primarily by the traditionally privileged groups (such as Bahun and Chhetri202 and privileged ethnic groups) and therefore the list PR race could be used to offer affirmative action to marginalised groups. Within that logic, one would believe that the proportional representation of marginalised groups on the list race would translate into minimum requirements for such groups only, and not to exact quotas for all groups, including the Bahuns and Chhetris.

However, after the draft law was submitted to the Cabinet by the Election Commission, and from the Cabinet to the Parliament, the parties changed it203 from a minimum protection of marginalised groups to a system of exact quotas for all groups, and with a 50 percent requirement for both men and women on the lists. One effect of this system was that even

199 A term for groups in the lower planes of Terai with linguistic connections to India (see below).

200 Dalits is the term for the lowest group of the caste system, the ‘untouchables’, see below.

201 In a meeting with the author in 2010, one of the senior political leaders participating in the negotiations of the six-point agreement and the interim constitution said that it had been clear to them that ’other groups’ meant all others. Nevertheless, the draft election laws used the term ’at least’ up to June 2007 when the election law was passed with a quota even for the high castes.

202 The two highest castes in Hindu tradition, these terms correspond to Brahmin and Ksatriya in India.

203 The drafts had been somewhat ambiguous but they had language like ’at least’ connected to the placement of groups on the candidate lists.

136 women’s parties would be obliged to have men on the list. Parties representing marginalised groups such as Dalits or Janajatis could, according to an exception rule, have candidates of their groups only, provided their lists did not have more than 100 candidates204.

5.2.2 The system applied in the 2008 Constituent Assembly Elections The system described here is the one used for the 10 April 2008 elections. Had the elections happened as planned in 2007, some details would have been different.

The system of representation was defined at three levels.

I. The Interim Constitution The According to the Interim Constitution (as amended on 28 December 2007) Article 63, the Constituent Assembly shall have the following composition:

a) 240 members elected on the basis of First Past the Post( FPTP) from single- member constituencies; b) 335 members elected on the basis of a party list based proportional electoral system (List PR) considering the whole country as one single constituency. c) 26 members nominated by the Interim Council of Ministers on the basis of consensus from among the distinguished persons and persons from ethnic and indigenous groups who fail to be represented under a) and b) and who have made significant contribution to national life. The mixed system composed of the two races a) and b) above is a parallel system, which means that there is no connection between the two races in terms of distribution of seats under the List PR race.

For the FPTP election, the principle of inclusiveness should be ‘kept in mind’. For the List PR race the requirement is more specific: “[T]he political parties shall ensure the proportional representation of women, Dalits, oppressed communities/indigenous groups, backward regions, Madhesis and other groups”. In addition a minimum of one-third of each party’s candidates for both races has to be women.

II. The Election Law The law defined the List Proportional system to be a closed list system. This meant that the voters would only cast a vote for the party, and would not be able to influence the choice of candidates within the list. The law also translated the term “proportional representation of women, Dalits”, etc. into numbers. Each list had to have the following representation according to Schedule 1 of the law (in the following we will use the term Janajatis for “oppressed communities/indigenous groups”, which in the law includes all Janajatis, not only the marginalised ones):

204 This rule was designed to accommodate Madhesi parties.

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Group to be represented Share of candidates

Women 50 percent

Madhesi Women 15.6 percent

Men 15.6 percent

Dalit Women 6.5 percent

Men 6.5 percent

Janajatis Women 18.9 percent

Men 18.9 percent

Backward region Women 2 percent

Men 2 percent

Others Women 15.1 percent

Men 15.1 percent

The law further stated (Article 7, 3) that “[w]hile nominating candidates from Madhesi, the closed list of candidates must be prepared in such a way that it ensures proportional representation of Dalits, Janajatis and other groups on the basis of the percent of population.” No percentages were given, and the interpretation by key parliamentarians was that the Election Commission should not enforce this rule. The same paragraph also said: “While enlisting the candidates pursuant to this Section, the Political Parties must pay proper attention to the representation of the oppressed groups, poor farmers, and labourers including disabled.” This paragraph was also not enforced.

The quota rules – except for the one on women - were waived (Article 7 (14)) for lists shorter than thirty percent of the total number to be elected by the List PR system, which meant that lists with up to and including one hundred candidates, did not have to comply with the quotas.

The law introduced a so-called ‘selection’ process regulating the way the seats won in the List PR system should be filled. Instead of filling the seats from the top of the candidate list which is the common procedure in closed list systems, the parties were allowed to fill the seats after the election from anywhere on the list. However, when doing so they had to comply with the same quota rules as when setting up the list, with ten percent flexibility in both directions205. The earlier drafts of the law had defined ranked lists with conditions for prominent placement on the lists to the groups to ensure that they were also elected. The

205 This meant for example that a party winning 100 seats could select between 45 and 55 women to fill the seats.

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Interim Constitution had not explicitly given requirements to the results, only to the composition of the lists, but it was clearly in its spirit and its general intention of inclusiveness that the regulation should also ensure representation of excluded groups. When the parliament decided to remove the ranked lists, they still kept the very important requirement of proportional representation of groups, and they included actual figures, which had not been included in the draft which had been sent from the Cabinet.206

The exception for short lists was also applied for the selection process.

III. The Procedures for the Nomination and Selection of Candidates in Proportional Election Procedures for the, 2064 (2008) Schedule 2 of the procedures repeats the law’s figures with a slightly more precise definition of ‘Others’:

Group to be represented Share of candidates

Madhesi 31.2 percent

Dalit 13.0 percent

Janajatis 37.8 percent

Backward regions 4.0 percent

Others 30.2 percent

Note:

1. ‘Backward Regions’ means Achaham, Kalikot, Jajarkot, Jumla, Dolpa, Bajhang, Bajura, Mugu and Humla districts. 2. ‘Others’ means communities or groups which are not included in this Schedule as Madhesi, Dalit and Janajatis. 3. Percentage of women candidates should be fifty.

The procedures also stated that for the short lists (up to one hundred candidates), the selection of winning candidates should as much as possible follow the profile of the candidate list, that is, the relative proportion of winning candidates from each group should mirror that in the nomination list. The intention was to make the inclusiveness predictable for the voters. Since this rule was not included in the law, it could not be strictly enforced.

206 The drafts of the Election Commission had included an empty table for the quotas but without actual figures filled in. Such figures had been presented informally to parliamentarians and, in the end, the member of parliament, Dr. Minendra Rijal, made his own calculation of quotas based on the 2001 census which was close to the figures of the Election Commission and his figures were included in the schedule.

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The requirement of the Interim Constitution and the law that at least one-third of a party’s candidates had to be female was implemented by the procedures which allowed parties to add women to their PR lists in order to fulfil this requirement.

5.3 The Intended Effects – a Discussion

5.3.1 The Intentions The intention of the extensive quota system was to include otherwise excluded groups in the political decision-making. The words ‘inclusion’ and ‘proportional representation’ were used extensively in the discussions leading up to defining the rules, and ‘proportional representation’ meant representation of groups according to the strength in the population, not the distribution of seats in accordance with an election result.

Inclusion and proportional representation (in the meaning used here) do not necessarily point in the same direction. The strict quota rules were only applied to the List PR race which in the end accounted for 335 out of 575 elected members of parliament. Therefore ‘inclusion’ could mean that there would be a minimum representation of excluded groups in the List PR election, keeping in mind that the FPTP race would have a bias in favour of privileged groups. ‘Proportion representation’ meant that all groups should be reflected proportionally in the List PR race. Excluded groups would not only have a minimum, but even a maximum representation in that race, which would have as a consequence that they would still be underrepresented in the full membership of the CA. Representatives of the ethnic groups had used the term ‘proportional’ and they did not protest when it, in practice, also put a cap on their representation. When all groups got a quota, the effect was that that the groups in power protected their representation as well.

Despite this difference in terms, the overall intention of quotas was to include otherwise excluded groups. The system should be assessed against its ability to achieve this goal.

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5.3.2 How the Group Representation Worked The following shows the composition of the elected part of the CA:

FPTP List PR Total PR Quota

Identities Percent Identities Percent Identities Percent Percent

Women 30 12.5 161 48.1 191 33.2 50.0

Madhesi 74 30.8 121 36.1 195 33.9 31.2

Dalit 7 2.9 44 13.1 51 8.9 13.0

Janajatis 77 32.1 118 35.2 195 33.9 37.8

Backward regions 12 5.0 10 3.0 22 3.8 4.0

Others 100 41.7 94 28.1 194 33.4 30.2

The identities add up to more than the number of seats since a person may have more than one identity, just as the quotas add up to more than 100 percent.

Madhesis and Janajatis got a fairly good representation in the FPTP race. The Madhesis were over-represented in the List PR race, mainly due to the waiver of quotas for short lists. Women and Dalits came out with a low representation (even if it was better than in any previous elections) in FPTP, but their shares were considerably improved by the quotas in the List PR race.

The Nepal Federation of Indigenous Nationalities (NEFIN) claimed that there were 29 out of the 59 Janajati groups that did not receive a seat in the election, and they referred to the agreement with the governing parties to request that the 26 members that were appointed by the government should be used to compensate for this. This happened to a small degree. Only four of the appointees, one from each of the groups Meche, Tajpururiya, Bramu/Baramu and Pahari represented groups without representation among the elected CA members.

It has often been said that within the broad groups defined in the quota rules, some castes or ethnic groups represented a ‘creamy layer’, picking up the seats on behalf of the whole group. This is particularly the case within the Madhesi castes and Hill and Mountain Janajatis. Many groups within these broader categories were already adequately represented or even over- represented earlier and the wide definition of groups did not help the genuinely underprivileged to win seats. The two groups which have traditionally been excluded are women and Dalits. The excluded castes within the Madhesi group and the marginalised

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Janajatis were helped only to a limited degree. This is discussed in detail by Vollan207. By checking which groups got adequately represented in the 1991, 1994, 1999 and the FPTP part of the 2008 elections, he suggests which of the one hundred groups of the 2001 census could be defined as excluded and which could be defined as included. His definition of excluded is that the group in the elections studied won less than ninety percent of their share of the population. This threshold is fairly high and led to groups representing 49.6 percent of the population being excluded. By decreasing the threshold to sixty percent, Magars, Tamangs, Tharus and Marwadis could be classified as ‘included’ and the total excluded comes down to 29.8 percent208. Thus the excluded Janajati Hill and Mountain groups become: Chepang(Praja), Bramu/Baramu, Pahari, Thami, Sunuwar, Dura, Lepcha, Jirel, Raji, Hayu, Bote, Raute, Walung, Yakkha, Darai, Chhantel, Hyalmo (Yehylmo), Byangsi, Kusunda, Bhote, Gharti /Bhujel, Sherpa, Majhi, Danuwar and Kumal.

The groups which were adequately represented (or over-represented) were: Newar, Gurung, Limbu, Tamang, Magar, Rai and Thakali.

For the Madhesi castes the excluded groups are: Hajam/Thakur, Kurmi, Sonar, Lodha, Kahar, Rajbhar, Lohar, Kamar, Bing/Binda, Mallah, Nuniya, Dhunia, Kewat, Mali, Bhediyar/Gaderi, Badhae, Nurang, Haluwai, Kalwar, Bangali, Kumhar, Barae, Teli, Kanu and Sudhi.

The over-represented or adequately represented Madhesi caste groups are: Brahman-Tarai, Yadav, Kayastha, Baniya, Rajput, Marwadi and Koiri.

The largest Madhesi/Terai Janajati group is the Tharu, which are 6.8 percent of the population. There are another twelve groups, which are very small (0.0 to 0.8 percent). Tharus are classified as ‘included’, whereas the following groups are ‘excluded’: Patharkata/Kuswadiya, Munda, Kisan, Jhangad, (Dhagar/Jhagar), Santhal/Satar, Dhanuk, Koche, Meche, Rajbansi, Gangai, Tajpuriya and Dhimal.

Muslims won 2.5 percent of the seats in the 2008 FPTP race and had 4.3 percent of the population. One may either define them as a separate group or include them in the Madhesi caste (or Madhesi ‘other’) group, together with the Jains and Punjabis/Sikhs.

5.3.3 Summary The following table shows a summary of the included and excluded groups based upon the sixty percent threshold.

207 Vollan 2011.

208 Magars and Tamangs are border-line cases if the threshold is set to sixty percent.

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The excluded groups’ share of the population209 could form a basis for future minimum

Group 1991 1994 1999 2008 FPTP Share of the population according to the census 2001 in percent

Excluded groups:

Madhesi Dalits 0.0 0.0 0.0 0.4 3.9

Madhesi/Terai Janajatis, 0.5 0.0 0.5 1.7 2.0 excluded only

Madhesi castes, excluded 3.4 2.4 5.4 6.7 12.4 only

Hill Dalits 0.5 0.0 0.0 2.5 8.0

Hill and Mountain 1.0 1.0 1.0 0.4 3.5 Janajatis, excluded only

Total excluded groups 5.4 3.4 6.8 11.7 29.8

Included groups:

Madhesi/Terai Janajatis, 8.3 6.8 3.9 5.4 6.8 included only

Madhesi castes, included 8.3 10.2 10.7 16.4 6.9 only

Hill caste 53.7 62.4 58.0 41.7 31.2

Hill and Mountain 24.4 17.1 20.5 24.6 25.3 Janajatis, included only

Total included groups 94.6 96.6 93.2 88.3 70.2 quotas if one should decide to move towards a system of inclusiveness rather than proportional representation of groups.

5.3.4 The Gender Rule The one-third requirement for women running in the two races combined was implemented by allowing parties to add women to the lists beyond the 50 percent required. This was a

209 These criteria are based upon parliamentary election results only and other socio-economic indicators may also be added in the future. Broadly, the groups seem to be intuitively accepted by stakeholders but with some comments to the details. The groups defined in the 2001 census are not generally accepted in all details and new classifications may affect the numbers but not the general principles.

143 practical solution that did not really add to the women’s possibility of being elected. If, in the future, one would retain FPTP elections, requirements for that part of the elections could be implemented in the constituency race only (rather than by allowing women candidates to be added in the other race). This would mean that the returning officers would not be able to approve candidates before the Election Commission has made an overall review of the parties’ nation-wide compliance with quota requirements.

5.3.5 Some Practical Issues The system described above was successfully implemented for the 2008 election. The biggest challenge to the voters compared to previous elections was to understand the significance of two ballots and two races. The number of invalid votes reached 5.2 percent in the FPTP race. One reason for invalid votes was that voters put more than one mark on the same ballot, which in turn might have been because they knew they were to give two votes and were unaware that they would be given a second ballot for the other race. The FPTP ballot was given before the List PR ballot, and the rate of invalid votes dropped to 3.7 percent for the List PR ballot.

The challenge for the parties was clearly to understand and to adhere to the complex quota rules for the candidate lists. In particular, the nomination was demanding for the parties that decided to file long lists. However, with assistance from the Election Commission administration and software made for helping the parties, those wanting to file lists managed to meet the quotas in the end.

The most complicated part of the rules came from the fact that the quotas did not add up to one hundred percent, but to 116.2 percent. Four percent of the difference was due to the overlap between the backward regions and the rest; 12.2 percent was because of an overlap between the Madhesi group and the two groups known as the Dalits and Janajatis. The latter overlap came directly from the regulations in the law, but it represented a challenge for the parties to understand the rule. However, the parties did their utmost to implement the rules in good faith and they were able to meet the criteria both for the candidate lists and for the results.

In the end, eleven parties filed long lists (101 candidates or more) and therefore had to meet all quota requirements. These parties won 277 seats out of the total of 335.

One complication with any ethnically- or caste-based quota system is to get an accurate identification of the candidates. A person’s own feeling of identity need not coincide with the anthropological classification and, because of intermarriages, the identity may not be unique. In such cases, it is generally accepted that the person’s subjective identity (within reason) counts. Another problem is that some subgroups do not have a unique classification within the broader groups used in the law. For example, the Tharus were classified as Madhesi Janajatis when the quotas were made, but it is far from agreed whether this Janajati group should belong to the Madhesis or not. The last problem is that mistakes can easily be made. It is practically impossible to review in detail the classification made by the parties of the 6,000 candidates on the lists.

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5.4 Some Side Effects of the 2008 System

5.4.1 The complexity and the good will The complex quota system did clearly produce a more inclusive Constituent Assembly than what would have been the case without it. On the other hand, the system made the nomination and selection process very complicated for the parties, and by allocating quotas to all groups, it produced restrictions not really needed to create inclusiveness.

5.4.2 The lack of transparency – the ‘selection’ process In most countries with closed lists in a proportional system, the parties will have to nominate a ranked candidate list. When a list wins a number of seats, the seats are filled from the top of the list. The voters will therefore know in advance who will fill the seats a party may win. In Nepal, this was rejected. The parties could nominate a list of up to 340 candidates, unranked and they could fill the seats won from any position on the list. Two reasons were used for this: Firstly, the complexity of the quota system made the ranking complicated. Secondly, parties would have a problem filling the lower parts of the lists if the candidates knew in advance that they would not be elected regardless of the result. The first argument is valid but it could have been overcome. The second is more a principal one. In many countries, the lower positions are either filled by persons who have a long-term goal of become national politicians but accept that they will not yet become MPs, or by prominent supporters who have a good name in the general public but have no ambitions of being MPs (such as prominent local politicians, people from academia, business, culture, etc.).

The main issue is the transparency of the elections. The elections are held for the voters to decide on the representation and the international observers criticised the arrangement for being less transparent and predictable and for giving too much power to parties at the cost of voters.

5.4.3 The Exceptions for Short Lists There were also rules which worked against inclusiveness. The short lists (which did not have to meet quota rules) winning 58 of the 335 List PR seats contributed to a less diverse overall result than the long lists. Many of the short lists represented Madhesis and therefore out of the 58 seats won by short lists, the Madhesis won as much as 72.4 percent, while the Dalits got only 8.6 percent, the Janajatis 22.4 percent and ‘Others’ had 12.1 percent. Smaller parties with roots in the Hill caste population did not take advantage of the possibility to the same extent but if the rule prevails there is no guarantee that this will not happen in the future and the concept of inclusiveness may be undermined.

5.5 The Field Study

5.5.1 The Conflict There seems to be a common view that even though the conflict was ideological, the Maoist movement was supported by a number of underlying social conflicts. The Maoists could not

145 use the traditional Marxist-Leninist strategy relying on an industrial proletariat which hardly existed210.

The social conflicts had at least two dimensions: The exclusion based upon caste and on ethnicity. The Dalits had been untouchables and had met discrimination based upon caste regardless of their individual wealth and position otherwise. For Janajatis, the exclusion meant that a number of groups were kept out of economic, social and political development and influence without facing the kind of discrimination that Dalits and excluded castes would experience.

Even if the leaders at large came from privileged castes, the Maoists were able to gain the support of excluded groups. The Dalits were promised freedom from discrimination and Janajati groups were promised inclusion and possibilities of self-rule within a federal system.

5.5.2 The Purpose of the Quotas The inclusiveness statements of the Comprehensive Peace Agreement (CPA) and the interim constitution are seen as vital parts of the peace agreement. A democratic Nepal could not continue without giving excluded and discriminated groups representation in the Constituent Assembly. In general, informants thought that the quotas worked as intended.

However, many interviewees pointed out that the quotas often were filled by representatives of the ‘creamy layer’ within the group. Newaris, for example, would pick up representation on behalf of the Janajatis, even if Newaris have not traditionally been excluded from political life. The same is the case within the Madhesi caste group. In addition, there are poor Brahmins and Chhetris, in particular in the far west, which are excluded, and Muslims are often left out. These segments, excluded Madhesi castes, Muslims, excluded Janajatis, poor Brahmins and Chhetris do not represent strong organised groups that would instigate conflict in the short run, but their interests need to be covered to avoid conflict in the future.

Another point which was mentioned by many interlocutors was the difference between the status of those elected in FPTP and those elected by List PR in the CA. The FPTP had met the electorate and had their mandate directly from the voters. Those elected from lists had, on the other hand, been selected by the party leaders after the election211 and their accountability towards the electorate was weak. Examples were made where an active candidate managed to campaign effectively and possibly managed to bring in few thousand voters for the party but, despite that, he was not elected and it was claimed that the voters were disappointed. The selection process had led to separate status of the CA members. Many advocated ranked lists and the Maoists in particular drew the consequence that they did not want two systems for elections to the same body any more.

210 As opposed to the 1970 Jhapa movement, which one interlocutor said failed because of a more traditional approach.

211 The candidate lists were not ranked and the party leadership could fill the seats the party had won from anywhere on the list as long as they met the quota requirements.

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The interim constitution has a consensus government as its ideal212, but at the time of the interviews (early 2010), there was a majority coalition government without Maoist participation. In particular, the Maoists stressed the need for a new consensus government in order to complete the peace process. Main decisions are made by the top leaders of the main parties even if they do not form the government together.

5.5.3 The Ability to Reduce Conflict The CPA has worked in the sense that there has not been an armed conflict between the Maoists and the rest recently. Youth groups still create unrest locally and there was intimidation and threats in some areas at the time leading up to the elections. YCL (the Maoist youth groups) members are still in their barracks and UML is organising militant youth groups. Others may feel forced to do the same.

In 2007, there was a Madhesi revolt which led in the end to an agreement with the government after having given more FPTP seats to the Terai and having raised the threshold for the short list which were allowed not to adhere to the quota rules.213 The government also agreed to a language on Madhesi province in the future federation which was open to interpretation.

This does not mean that all groups are satisfied with what has been agreed so far. The organised Janajati groups within the umbrella organisation NEFIN are frustrated partly because they feel that the rights of the indigenous people are not sufficiently covered and partly because the dialogue with the parties has not worked well. Some interviewees from Janajati groups suggested representation in parliament based upon elections within the different groups and, in their federal models, some suggest giving one indigenous group a special status within a province. Since such arrangements would create new minorities of other indigenous groups, a system of autonomous areas within the provinces has been proposed.

Many of the proposals from the Janajati groups would lead to a very complex state and others would go at the cost of equal individual rights of the population at large. On the other hand, for a country having ratified the ILO convention 169 on Indigenous and Tribal Peoples, it is important that the process of defining their constitutional rights is inclusive and an efficient dialogue is crucial to a peaceful transition to a stable democracy.

5.5.4 The Effects of Participation The elections in 2008 produced a constituent assembly far more inclusive than any parliament before. The Madhesis are generally very pleased with their representation and so are Dalits and women. Within the Dalit community there are discussions on forming a Dalit party. (Such a party exists, but does not have a lot of support). Some of their representatives expressed a fear that such parties would be marginalised by the main-stream parties and they

212 The interim constitution anticipates that the parties to the peace agreement should form a government but it has a parliamentary system as a fall-back arrangement.

213 A rule which was specially designed for Madhesi parties.

147 would therefore prefer to work within the main parties. This would, however, only be possible if the parties were fundamentally reformed and would genuinely include Dalits and excluded castes in their management, policy making, etc.

Excluded castes and Janajati groups are more silent but there are voices speaking on their behalf and they are not content with their representation. However, these groups are not well organised and those speaking on their behalf often belong to other groups.

The most frustrated group is possibly the Janajatis. They are well represented in the CA but the fact that they are all elected on party tickets makes their loyalty split. They have been permitted by the parties to form an informal caucus in the CA but they are still bound by the party programme and views. Many feel that they are not able to influence their parties to the extent they want.

After the CA elections, there are some visible changes: There is a Madhesi President and a Dalit minister. However, the same change needs to penetrate the civil administration in general. People of Terai are also disillusioned on the ground since they do not see changes even with strong Madhesi representation.

There is also a fear that many decisions in the CA will be made by the leadership of the three main parties (NC, UML and Maoists) and that the elected representatives of the CA with its broad representation will not be heard. The representation is necessary but not sufficient. The political influence must be real.

5.5.5 Development over Time The quotas will be needed in the future. One may look into possibilities for including groups that are still excluded and the lack of accountability within the List PR system should be removed. Since quotas may divide the society, they should be used properly.

The Maoists want to bring the concept of a consensus government into the new constitution214. They suggest a strong, directly-elected president and a government that proportionally reflects the composition of the parliament. At the same time, they suggest a block vote system of election to the parliament (FPTP in multi-member constituencies), which would give a huge benefit to the largest party and reduce the number of parties in the parliament to a handful. However, they have as an alternative proposal List PR in multi- member constituencies.

Most other parties support a mixed electoral system, the main ones with a change to mixed member proportional (a fully proportional system) as opposed to the parallel system (semi- proportional) being used in 2008. Most parties seem to be willing to discuss a more targeted and simplified quota system but the proposal currently defined is similar to the 2008 system.

214 Their suggestion is that the parties should be represented in government in proportion to their representation in the parliament.

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5.5.6 Side Effects The main side effect of the system used in 2008 is that marginalised groups had their representation capped. It was not permitted to have more than 13 percent Dalits or fifty percent women on the lists, even if it was clear that those groups would still be underrepresented. The complexity of the system was also recognised.

5.6 Conclusions and Thoughts for the Future

5.6.1 The System of Representation It has not been decided at the time of this writing which system of representation will be chosen for the future principal chamber of parliament. The most likely outcome seems to be to carry forward a mixed system in some shape or form. Other systems are also being discussed, but it is most likely that the system will have a strong element of List PR. The following is built on that assumption.

5.6.2 Representation of Groups After centuries of suppression, the Constituent Assembly election in 2008 provided an assembly with a much more diverse composition than the previous parliaments. Out of the groups that had earlier been excluded, Dalits and women in particular improved their representation considerably. Within the broader groups of Madhesi castes and the Janajatis, the picture is more complex. These groups received good representation but often the seats were filled by representatives of castes or Janajati groups who would be well represented anyway. However, the system worked as designed and intended with the complex quota system applied to the List PR election.

The quotas were introduced in response to deep social divides and discrimination, which was the underlying reason for the success of the Maoist uprising.

The quotas system had disadvantages in two areas: With the broad categories defined, the quotas were filled by subgroups that would be represented anyway. Within the broad groups, there were still groups not represented. In addition, the system where all groups had a quota made, the quotas not only guaranteed excluded groups a minimum representation from the List PR system but it also provided a maximum for their representation. The exact quotas with overlapping groups also became extremely complex both for parties and the Election Commission to administer.

One may consider three alternatives for minimum quotas for excluded groups in the List PR race to replace the system used in the CA elections.

By combining Madhesi and Hill Dalits into one group and putting all excluded Janajatis into one group, the quotas could be the following:

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Group Quota

Dalits 11.9

Janajatis, excluded only 5.5

Madhesi castes, excluded only 12.4

Total 29.8

In addition, there would need to be at least 50 percent women.

One advantage of not differentiating between Madhesi groups and the corresponding Hill and Mountain groups is that regional parties would be free to choose regional members only on their lists. More specifically, Madhesi parties would not be required to nominate Hill and Mountain candidates. Including the excluded Madhesi castes as a group would still retain an element of asymmetry since the Hill and Mountain based parties would need to include such candidates on the lists. However, this asymmetry was there in 2008 as well by exempting lists of not more than one hundred candidates from the quota requirements, a rule designed in particular for Madhesi parties.

One could also name the third group Caste Excluded and then include the Churaute, which is a very small, excluded Hill Muslim group. It would not change the figures above. The reality would still be that the caste quota would remain asymmetric between Tarai and the hills and mountains, but that would be due to the actual structure of the society, not the rule formally speaking.

In order to make the quotas fully neutral and very simple, one could combine all groups and simply state that at least 29.8 percent need to come from excluded groups and such groups must include Dalits, excluded castes and excluded Janajatis. The parties could choose the balance within the excluded groups as long as they would have at least 29.8 from any of the groups. This would allow parties representing an excluded group to have candidates from their own group(s) only.

To what extent the quotas should apply to the List PR part of a mixed system or to the whole result is a political issue that is being discussed as the time of this writing. Some parties want to apply the quotas on the List PR election but still guarantee women 33 percent, possibly by a compensation mechanism. Similar arrangements may be applied for the other excluded groups that would offer an incentive for parties to nominate candidates from excluded groups also at electable places in the single-member constituencies.

5.6.3 Accountability The System of Representation is likely even in the future to include a strong element of List PR.215 The selection arrangement where the party leadership could choose which candidate on

215 The concept papers presented by the committees of CA by mid 2010 include two main alternatives: NC and UML with support of a number of other parties propose MMP and the Maoists block vote in multi-member

150 the list was to fill a seat regardless of the placement on list weakened the accountability of the members elected from the List PR considerably. In the CA, it developed two kinds of candidates: those accountable to the voters (elected by FPTP) and those accountable to the party leaders (elected from List PR). The Maoists went as far as stating that a primary requirement to a new electoral system is that there is only one system to the same body. They wanted to avoid the division of status of the future MPs.

The obvious way to improve the accountability of those elected from the List PR race would be to introduce ranked lists. The complexity in designing the lists with requirements to both quotas in percent and to the position on the list would increase but not beyond what would be manageable. Under a mixed system, the List PR seats could be filled from province lists instead of national lists. That would improve the accountability even more since the voters would have a better chance to know the candidates and their performance as MPs. Similarly, if the future system would be a province based List PR system only the affect on accountability would be similar.

5.6.4 Decision-Making Nepal has not introduced particular rules for decision-making which should provide particular veto powers or advantages above their regular voting force. The new constitution should, as a main rule, be passed by consensus but after having followed a defined procedure a two-thirds majority suffices.216

The Council of Ministers is currently supposed to be formed on the basis of consensus which is defined upon agreement of the parties to the peace agreement.217 If that cannot be achieved, the prime minister is elected by the CA with a qualified majority of two-thirds according to the original provisions of the Interim Constitution. The fallback was changed by Amendment No 5 on 12 July 2008 to a majority vote only, not a qualified majority.

The main issue in Nepal is representation. However, the Maoists have proposed a consensus principle for forming government written into the new constitution.218 The other main parties favour variants of a parliamentary system. Nobody has proposed particular voting rules to protect defined groups. However, a second chamber of parliament with representation from the provinces making up the future federation has been proposed by NC and UML with support of some other parties. This would possibly be used as a mechanism to protect the rights of the provinces, but these issues have not been worked out in detail.

With the complex situation of Nepal, it is likely that representation will be the main issue even in the future. Special rights of indigenous people and protection of minority groups constituencies. The Maoists do, however, consider List PR in multi-member constituencies as an alternative which they think is more likely to be adopted and with would be much simpler for the voters.

216 Article 70 of the Interim Constitution.

217 Articles 38 and 44 of the Interim Constitution.

218 Members appointed in proportion to their parties strength in the parliament.

151 could in addition to guaranteed representation at various level of government be implemented by councils or bodies which will have to be consulted on certain issues of particular interest to the groups.

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6. Case Study Bosnia and Herzegovina 6.1 Historical and Political Background

6.1.1 Constitutional Development under Tito In 1945, the Yugoslav communists came to power. A new constitution of 1946 established a federation consisting of six republics: Serbia, Croatia, Slovenia, Bosnia and Herzegovina, Macedonia and Montenegro219 (1946 Constitution, Art 2). The federation was based on “a community of peoples equal in rights” and the “principle of self-determination, including the right to separation” (1946 Constitution, Art 1). All citizens were given equal rights, “regardless of nationality, race and creed” (1946 Constitution, Art 21). In addition, “national minorities” were given cultural rights, such as the free use of their own language (Art 13).

In Yugoslav constitutional terminology, there was a distinction between narod (nation) and narodnosti (nationality). The terms first appeared in the Yugoslav constitution in 1974.220 While nations were considered to be the so-called ‘constituent nations’ of Yugoslavia, nationalities were groups that did not have their national origin in any of the six republics, such as Hungarians, Albanians, Slovak, Ruthenians, Vlachs, Turks and others.221 The Muslims had been introduced as a nation in 1971 in order to defuse increasing nationalist tensions between Serbs and Croats in Bosnia and Herzegovina. The republics were drawn up according to the nationalities but they were not given any additional rights as ‘constituent people’. Article 245 of the Constitution guaranteed equal rights for the nations and the nationalities.

In the late 1960s and early 1970s, the Yugoslav constitution was subject to consecutive amendments where the Chamber of Nationalities with representation was from the republics became more powerful and therefore strengthened the emphasis on ‘nations’ and subsequently also the ‘nationalities’.222

The constitution of 1974 aimed to consolidate the role of the League of Communists of Yugoslavia as “an essential factor of stability and cohesion”.223 With this move, Tito aimed to

219 Vojvodina was granted status as an autonomous province, whereas Kosovo and Metohija were labelled as Autonomous Districts within Serbia.

220 Nystuen 2005: 138-139.

221 Nystuen 2005: 139.

222 Article 57 of the 1946 constitution had granted both chambers “equal rights”, the 1967 amendments 1-6 broadened the Chamber of Nationalities and made it the most powerful component in the Federal Chambers. Ref: Haug 2007: 186.

223 Haug 2007: 267.

153 run the federation through a centralised communist party, in the face of mounting nationalistic aspirations from the republican governments.224

6.1.2 The War 1991 to 1995 While Tito passed away in 1980, his legacy lasted until a series of events towards the end of the decade offset the gradual break-up of the federation. Against the backdrop of the fall of the Soviet Union and the demise of the Yugoslav Communist Party, a plethora of independent parties emerged. In 1990, multi party elections were held in Croatia and Slovenia, bringing a liberal-nationalist coalition to power in Slovenia, and the nationalist Croatian Democratic Union (HDZ) to power in Croatia under the leadership of Franjo Tudjman. In Serbia, President Slobodan Milosevic abandoned his strategy to gain control over Yugoslavia through the existing structures of the Communist party in favour of carving out an extended Serbian territory and proceeded to encourage pan-Serb initiatives and radicalisation of the Serb population in Croatia and Bosnia and Herzegovina. Croatia and Slovenia, meanwhile advocated a looser federal arrangement with the existing republics.

A full account of the various events that led to the breakout of a full scale war in 1991 is not possible within the scope of this presentation.225 Suffice it to say, that the declarations of independence by Slovenia and Croatia on 25 June 1991 were countered by an invasion of Slovenia by the Serb-dominated federal army. Surprisingly, the Slovene army defended their republic successfully, and Milosevic had to abandon his plan to make an example of Slovenia. By late August, the war scene had moved to Croatia. Bosnia and Herzegovina initially declared itself neutral. In January 1992, a peace settlement was negotiated for Croatia by the UN representative Cyrus Vance, and on the 15th that month, international recognition of Croatian and Slovenian independence came into effect.

The leaders of Bosnia and Herzegovina felt they now were left with no choice but to declare independence, as the alternative would have been to remain in a much reduced Yugoslavia under Serbian control. A referendum was held on 29 February and 1 March 1992 over independence for Bosnia and Herzegovina. About 64 percent of the electorate voted, including thousands of Serbs in major cities, even though Serb leaders had called for a boycott. Of these, 99.7 percent voted for independence. The following month, Bosnia and Herzegovina was recognised as an independent state by the European Community. War ensued as Serbian Republic of Bosnia and Herzegovina and the Croatian Community of Herzeg-Bosnia were proclaimed and the fight for territorial control started226. In 1994, an agreement was negotiated between Bosniacs and Croats, creating the Federation of Bosnia and Herzegovina, consisting of a cantonal system covering the areas controlled by the two parties. This put an end to the war in Central Bosnia and brought Muslims and Croats together

224 Burg 1982: 131.

225 The presentation of the historical context is mostly based on Malcolm 1996 and Nystuen 2005.

226 Meetings had been held already in March 1991 between Tudjman and Milosevic known as the Karadjordjevo meetings on dividing Bosnia and Herzegovina between their two republics but the existence of an agreement were later denied by the two.

154 in a united front against the Serbs. Various territorial options were discussed among the groups respectively, as among the international community. A year later, the Dayton Agreement put a final end to the hostilities.

6.1.3 Dayton: Institutions Based on Ethnicity The Vance-Owen plan 227 had outlined a constitutional framework for Bosnia and Herzegovina based on a decentralised state with three recognised ‘constituent peoples’ (Paragraph 1). There was a clear understanding that only Bosniacs, Croats and Serbs fell under this category. The drafters in the Dayton Contact Group tried to keep this term out of the text, but this was not politically possible, and it was agreed to place the reference to constituent peoples in the preamble.

The Dayton Agreement, concluded in November 1995, represented a compromise between the three main groups’ institutional options.228 Annex 4 of Dayton serves as Bosnia and Herzegovina’s constitution. Bosnia and Herzegovina was set up as a weak federation consisting of a Croat-Bosniac entity, the Federation of Bosnia and Herzegovina covering 51 percent of the territory of the state, and the Serb-dominated entity Republika Srpska covering 49 percent. The Federation Bosnia and Herzegovina was divided into ten cantons, each with a separate constitution, a directly elected assembly, prime minister and ministries. The entities with their own parliaments and governments were allowed to establish special relations with “neighbouring states” (the Republic of Croatia and the Federal Republic of Yugoslavia229).

The Dayton Agreement was designed to maintain a balance of powers between the three constituent peoples, Croats, Serbs and Bosniacs. Core elements in the power-sharing formula were a tripartite presidency with rotating chair, equal representation of the constituent people in the upper chamber of the state parliament, entity voting in the parliament (a double majority requirement) and the so-called vital national interest clause which may be invoked to stop certain types of legislation. These institutions and mechanisms will be discussed in detail later in this chapter.

The Dayton Agreement sets up an institutional system based on ethnicity, recognising the three main ethnic groups as ‘constituent peoples’, along with ‘others’ (including e.g. Romas and Jews). In making political representation based on ethnicity, the agreement discriminates against groups who either do not belong to or do not identify themselves as belonging to one of the three main groups. Furthermore, individuals “might not be able to exercise a variety of rights because they reside in an area where they constitute a minority.”230 An international High Representative was established to monitor the implementation of the civilian aspects of

227 The Vance-Owen plan was one of several proposals put forward by the European Community and UN to solve the conflict. Negotiations over the proposal were initiated by UN Special Envoy Cyrus Vance and EC representative Lord Owen in January 1993. In May, the plan was rejected by the Bosnian-Serb assembly. 228 Belloni 2009: 350-360

229 Which at the time consisted of Serbia including Kosovo, and Montenegro.

230 Belloni, 2009: 360

155 the Agreement. Over time, the High Representative acquired increasing legislative and political powers, including the authority to remove local elected officials.

6.1.4 Political Deadlock The institutions of the Dayton Agreement are set up as to allow each of the constituent peoples to veto legislation that is perceived to go against their ‘vital interests’. There is, however, no exact definition of what these ‘vital interests’ consist of but the Constitutional Court has made interpretations based on a number of cases. In addition, the three constituent peoples have divergent attitudes towards the Dayton Agreement. While the Bosnian Serbs tend to be in favour of maintaining the status quo, which grants them the right to govern their entity without external interference on a number of issues, Bosniacs favour a stronger unified government in Sarajevo. The Croats, on the other hand, are outnumbered within the Bosniac- Croat entity and are often outvoted by the majority. The nationalistic parties favour more independence of the Croats, some even a separate entity. Fourteen years after Dayton, Bosnia and Herzegovina is ridden by political deadlock. Political debates mainly centre on the intertwined issues the phasing out of the High Representative, the possibility of EU membership and constitutional reform.231 The debate over constitutional reform will be thoroughly discussed later in this study.

6.1.5 Role of the International High Representative The mandate of the High Representative is laid out in the Dayton Agreement’s Annex 10, Article 2. Its function was to monitor the implementation of the peace settlement and to coordinate the activities of civilian organisations and agencies in Bosnia and Herzegovina. The role of the High Representative has developed over time; a key task for the High Representative has become to ensure that the state and entity institutions of Bosnia and Herzegovina are operating efficiently. In 1997, the requirements of Annex 10 was elaborated to include the removal of elected officials who are seen to violate legal commitments and the Dayton Peace Agreement, and impose laws on own discretion, if the legislative bodies of Bosnia and Herzegovina fail to do so, the so-called Bonn powers. As of mid 2010, the High Representative has issued close to 900 decisions in constitutional, economic and judicial matters.232 These decisions have provided controversies and are particularly detested by representatives of Republika Srpska, who see decisions by the High Representative as untimely interventions in Republika Srpska internal affairs. There are also questions raised by the public at large as to the long term affect of the Bonn powers decisions on empowerment and responsibility of elected authorities. The High Representative has been dealt several blows to his credibility, as is well illustrated by the flawed police reform process and his attempt to force the reform by resorting to using the Bonn powers.

231 See International Crisis Group 2009a: 4-5 for further details on the main points of contention. Other vital issues are a dispute over the ownership of state property, the status over the Brčko District, whether or not the 2011 census should include national or confessional identity, but these issues are not touched upon in this study.

232 All High Representative’s Decisions, http://www.ohr.int/decisions/archive.asp?so=d&sa=on.

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6.1.6 Police Reform In 2005, the European Commission required Bosnia and Herzegovina to reform its police force in order to conclude a Stabilization and Association Agreement (SAA) with the EU.233 The reforms were an attempt to consolidate the entities’ police forces into one national force and were blocked by Republika Srpska prime minister. Key demands were related budgetary and legislative decisions, distribution of competencies between state and entity level on police related legislation and drawing of police districts. The demands seemed unreasonable to many Bosnians because they went beyond the practice of many EU member states, whereas the reforms would also erode the autonomy of Republika Srpska. After two years of unsuccessful attempts to coax Republika Srpska into compliance, the High Representative, Miroslav Lajčák, went for a full confrontation.

On 19 October 2007, Lajčák issued a decision instructing the legislative chambers to amend their rules of procedure by 1 December or face further Bonn powers impositions. The intent was to make it more difficult for one party or entity to block the operation of the Council of Minister and the Parliamentary Assembly. The decision was intended to be the first in a series of edicts to soften Republika Srpska. Instead, a crisis erupted when the Republika Srpska’s Prime Minister, Milorad Dodik, withdrew his ministers from the Council of Ministers and threatened to resign. As international efforts were directed at settling the final status of Kosovo, Lajčák backed down and settled for a compromise whereby no cross-entity police regions were established. In June 2008, the SAA was concluded, even though reforms had in fact not been implemented.

It is a stated goal that the Office of the High Representative (OHR) should eventually close down, but there are disagreements as to when. The High Representative is subsequently to be replaced by a “reinforced” EU Special Representative (EUSR), without the legal powers of the High Representative.234 Constitutional reform is one of the prerequisites for closing down the OHR and in particular a reform which would make the constitution comply with the ECHR decision of December 2009 (see below). There was a hope that this could happen before the 2010 elections but it showed impossible.

6.1.7 The April Package In 2005-2006, the first comprehensive attempts at reforming The Dayton Agreement came about in response to a report by the Venice Commission, recommending that the government pursue a process of constitutional reforms in order to enable Bosnia and Herzegovina to make substantial progress towards European integration. As part of a private initiative by Bruce Hitchner, Chairman of the Dayton Peace Accords Project at Tufts University, Executive Director Paul Williams of the Public International Law and Policy Group and former Principal Deputy High Representative Donald Hays, Bosnian officials were presented with a series of proposals aimed at helping Bosnia and Herzegovina improve its EU candidacy and

233 Belloni, 2009: 364-365. See also International Crisis Group 2005a for a more thorough presentation of the police reform efforts.

234 International Crisis Group 2009a: 14.

157 enhance governmental efficiency on the state level.235 The leaders of all major political parties agreed to form a constitutional working group, with Hitchner, Hays and Williams as a secretariat to serve as an “honest broker”.

Negotiations took place in three phases, and among the vital issues were:

 A new format for the election of the presidency along with a reduction of its powers;  Powers required for European integration to be provided to the state the creation of two new ministries (agriculture and technology);  Guaranteed representation of national minorities in the House of Representatives;  A definition, and a mechanism to review of the use, of a vital national interests veto by parliamentary representatives;  The strengthening of the Council of Ministers by transfer of key powers from the presidency;  An increase in the number of members in both parliamentary chambers.

While the international community played an active part in facilitating the talks, the April process was chaired for and led by domestic actors.236 All major Serb parties, the Bosniac Parties SDA, the Croat HDZ BH as well as and SDP agreed on the reforms. However, it fell two votes short of the two-thirds majority needed for it to be passed in the House of Representatives. SBiH237 and the Croat HDZ 1990 (splinter party from HDZ BH) and independent MPs voted against the package in the House of Representative.238

6.1.8 The Butmir Process Antagonism peaked in June 2009, when the High Representative forced the Republika Srpska to retract a set of largely symbolic declarations critical of allegedly improper transfers of competencies from the entities to the state. Dodik complied, but later threatened a long-term withdrawal from state institutions.239 A similar stand-off took place in September 2009, when High Representative Valentin Inzko used the Bonn powers to impose eight laws, followed by a further law the next day by the Principal Deputy High Representative. It was a matter of days before Dodik rejected all nine laws and threatened to pull all Serb representatives from the national government if Inzko tried to impose any further measures. In response to the looming crisis, the US and EU attempted to broker a package deal including constitutional

235 Hitchner 2006: 127.

236 Sebastián 2007: 5.

237 SBiH was the only Bosniac party who withdrew from the latter stage of the talks. They rejected the package on formalistic grounds, arguing that the reforms would be “cosmetic” only, in that it did not aim to eliminate the Republika Srpska and entity voting. Secondly, they argued that the adoption of the April Package would implicitly amount to a ratification of the Dayton Constitution, which was never voted on by the Bosnian parliament. Sebastian, Leaving Dayton behind, p. 6.

238 Sebastián 2007: 6.

239 International Crisis Group 2009b: 3

158 reforms that would allow the OHR to close and push Bosnia and Herzegovina towards membership in the EU and NATO.

Negotiations were held at Camp Butmir on 8 and 9 October 2009, with a follow-up session on 20 and 21 the same month.240 The conference was hosted by Deputy Secretary of State James Steinberg and Swedish Foreign Minister Carl Bildt, (representing the Presidency of the EU), later joined by the European Commission commissioner for enlargement, Olli Rehn. The proposed amendment explicitly assigned defence and intelligence to the state level. While The Dayton Agreement had defined the responsibilities of the entities (Clause 2), the Butmir proposals defined an additional set of “Shared Responsibilities”, including internal security, taxation, the judiciary and local self-governance. The proposals would also explicitly empower the state level “to undertake legal and political commitments required for the process of accession to the European Union including on matters that in accordance with other provisions of this Constitution are the responsibility of the entities”.

The proposed amendments241 would strengthen the Parliamentary Assembly and modify its structure: the House of Representatives would have 87 members (instead of the current 42) and be responsible for legislative activity. The House of Peoples would have 21 (instead of the current 15) members appointed from among the members of the House of Representatives and would see its role limited exclusively to deciding on issues of ‘vital national interests’. Out of 87 seats in the House of Representatives, three seats would be reserved for representatives who do not define themselves as members of the Constituent peoples (i.e. those belonging to the group of ‘Others’)242. In the House of Peoples six seats would be earmarked for each of the three constituent peoples respectively, leaving three seats open for members who did not necessarily belong to a constituent people. Candidates were to be able to run for all seats of the House of Peoples and the presidency from anywhere in the country. The proposed amendments would also change the structure of the Presidency, which would be composed of one President and two Vice-Presidents and be elected by the House of Representatives. The President and the Vice-Presidents may not be members of the same Constituent peoples. The candidates for the Presidency would be nominated by the House of Peoples. The President’s and the Presidency’s powers would be decreased in favour of the Council of Ministers, which, according to the proposed amendments, would be presided over by a real Prime Minister.

240 International Crisis Group 2009b: 4

241 See for example the Report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) of 17 December 2009 “The functioning of democratic institutions in Bosnia and Herzegovina”

242 It is not easy to see the justification for this particular element since there is no discrimination built into the election of the House of Representatives.

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While so-called ‘entity voting’243 would continue, the overall effect of the amendments would be to concentrate state power within the House of Representatives. Furthermore, the state would be given authority to assume responsibilities and make commitments in the EU accession process.

The package was eventually rejected by all parties except the Bosniac Party of Democratic Action (SDA).

6.1.9 The European Court of Human Rights decision A salient issue is the status of ‘others’ (non-constituent peoples), which are constitutionally barred from running for the presidency. The debate has gained momentum after a court case in June 2009. Jakob Finci, head of the Jewish community and Bosnia and Herzegovina’s ambassador to Switzerland, and Dervo Sejdić, a member of the Roma Council, appealed to the European Court of Human Rights to overturn laws that prevent them from running for president. They argued that Bosnia and Herzegovina’s constitution violates the European Convention on Human Rights and United Nations conventions and international treaties. In December, the Court ruled in favour of the plaintiffs. This has caused a debate on whether Bosnia and Herzegovina should one, three, or even four presidents on state level. At the time of writing, the court decision has not been implemented.

6.2 The Quota Arrangements and Other Power-sharing Elements

6.2.1 The Dayton Agreement and the Role of the International Community The General Framework Agreement for Peace in Bosnia and Herzegovina (the Dayton Agreement) was signed in Paris on 14 December 1995 by the presidents of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia. The agreement was witnessed and co-signed by representatives of EU, France, Germany, Russia, UK and US, and in particular the US played a vital role during the negotiations at Dayton leading up to the signing.

The agreement contains eleven articles and 11 Annexes, whereas Annex 4 is the Constitution of Bosnia and Herzegovina. The constitution is in other words a negotiated document and part of an international agreement. It does, however, contain articles allowing it to be amended by a procedure of parliament.

The agreement defined a special role for the international community. An international High Representative was to be appointed in accordance with Annex 10 to the agreement. Article I of the annex states in its second paragraph:

In view of the complexities facing them, the Parties request the designation of a High Representative, to be appointed consistent with relevant United Nations Security Council resolutions, to facilitate the Parties' own efforts and to mobilize and, as appropriate, coordinate the activities of the organizations and agencies involved in the civilian aspects of the peace settlement by carrying out, as entrusted by a U.N. Security Council resolution, the tasks set out below.

243 A provision which requires a certain number of votes from each entity to be cast to approve for all legislative acts.

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The list of authorities includes (Article II):

1. The High Representative shall: Monitor the implementation of the peace settlement; Maintain close contact with the Parties to promote their full compliance with all civilian aspects of the peace settlement and a high level of cooperation between them and the organizations and agencies participating in those aspects. Coordinate the activities of the civilian organizations and agencies in Bosnia and Herzegovina to ensure the efficient implementation of the civilian aspects of the peace settlement. The High Representative shall respect their autonomy within their spheres of operation while as necessary giving general guidance to them about the impact of their activities on the implementation of the peace settlement. The civilian organizations and agencies are requested to assist the High Representative in the execution of his or her responsibilities by providing all information relevant to their operations in Bosnia- Herzegovina. Facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation. Participate in meetings of donor organizations, particularly on issues of rehabilitation and reconstruction. Report periodically on progress in implementation of the peace agreement concerning the tasks set forth in this Agreement to the United Nations, European Union, United States, Russian Federation, and other interested governments, parties, and organizations. Provide guidance to, and receive reports from, the Commissioner of the International Police Task Force established in Annex 11 to the General Framework Agreement. The High Representative’s authority got expanded by the so-called Bonn powers. The High Representative describes it as follows: “Among the most important milestones in the peace implementation process was the PIC Conference in Bonn in December 1997. Elaborating on Annex 10 of the Dayton Peace Agreement, the PIC requested the High Representative to remove from office public officials who violate legal commitments and the Dayton Peace Agreement, and to impose laws as he sees fit if Bosnia and Herzegovina’s legislative bodies fail to do so.” 244

The actual decision by the PIC states:

2.The Council welcomes the High Representative's intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary, on the following issues: timing, location and chairmanship of meetings of the common institutions; interim measures to take effect when parties are unable to reach agreement, which will remain in force until the Presidency or Council of Ministers has adopted a decision consistent with the Peace Agreement on the issue concerned;

244 From OHR home page: “Following the successful negotiation of the Dayton Peace Agreement in November 1995, a Peace Implementation Conference was held in London on December 8-9, 1995, to mobilise international support for the Agreement. The meeting resulted in the establishment of the Peace Implementation Council (PIC). The PIC comprises 55 countries and agencies that support the peace process in many different ways - by assisting it financially, providing troops for SFOR, or directly running operations in Bosnia and Herzegovina. There is also a fluctuating number of observers.”

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other measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities, as well as the smooth running of the common institutions. Such measures may include actions against persons holding public office or officials who are absent from meetings without good cause or who are found by the High Representative to be in violation of legal commitments made under the Peace Agreement or the terms for its implementation. Annex 3 contained a separate agreement on elections. It stipulated that elections to national and entity bodies were to be held within six to nine months following the entry into force of the agreement245. The OSCE was tasked with supervising the elections (Article II) and to establish a Provisional Election Commission which in turn should pass rules and regulations for the elections, since an election law would not be in place. The commission was headed by the OSCE Head of Mission whose vote in case of disagreement would be decisive. That meant that the OSCE had all powers regarding elections. In addition it was stated (Article V) that the parties agreed to create a permanent election commission to ‘conduct future elections’. This happened only after passing an election law in 2001.

In addition, other international agencies, in particular within the UN, were given specified roles in the agreement.

The refugees and displaced persons right to return and reclaim property was also defined (Annex 7) and a special Annex 6 defined provisions regarding Human Rights.

6.2.2 The Priority Tasks after the War After the devastating war there were a number of tasks which had to be dealt with, including:

- Cease fire; - Disarmament; - Establishing a legal, democratic and functional government; - Establish a functioning judiciary; - Return of displaced persons and refugees and return of property.

Elections to state level, entity level governments and municipal councils were held as specified in the Dayton Agreement and the arms fell silent as committed but almost every other task got postponed and some are still not completed after fifteen years.

6.2.3 The Power-Sharing Elements The power-sharing agreement between the three groups, Bosniacs, Serbs and Croats is defined in the Dayton Constitution. It contains the following elements:

- Definition of Serbs, Bosniacs and Croats (and ‘others’ mentioned in brackets) as constituent people of Bosnia and Herzegovina. - The division of the country into two entities with their own parliaments and governments; - Two chambers of the state parliament with a House of Peoples having equal representation of the three constituent people only. - A presidency consisting of three members reserved for the constituent people only, and with restricted election rules.

245 They were held on 13 and 14 September 1996 exactly on the deadline.

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- Decision-making rules with important restrictions allowing an entity to apply a veto; - Allowing each of the three caucuses to apply a vital national interest clause to stop legislation in the House of People.

The rules for representation in the House of People and in the Presidency limit the citizens’ right to stand for elections and for the House of People even to vote. These rules are found by the European Court of Human Rights to violate the European Convention for Human Rights (ECHR). According to Nystuen246 it was recognised at Dayton that the discriminatory election rules would violate international convention and she states that the expectation was that the Constitution would undergo a ‘dynamic interpretation’ over time. This will be discussed later.

6.2.3 Constituent Peoples The concept of nationalities was also imbedded in the Yugoslav constitution, but without giving such people any particular rights regarding decision-making. The reason for identifying the Bosniacs, Croats and Serbs247 as constituent people of Bosnia and Herzegovina was to give the groups of the conflict equal rights in the state and to balance the powers between them. At the same time other citizens were identified as ‘others’. The dilemma for the constitutional drafters was on one hand to provide sufficient protection for each of the combating groups and on the other hand not to deprive other citizens with fundamental human rights.

In the specific rules of the constitution the constituent people are given certain rights of representation (as discussed in detail below) and those rules limited the fundamental rights of other groups to stand for elections to parliament and the presidency. It is not obvious how this limitation of human rights could most easily be lifted. One way could be to reduce the emphasis of the term constituent people. The Constitutional Court decided to in a judgement of 2000 to move in the opposite direction and require the entity constitutions to reflect the same list of constituent people. A practical consequence was that even Republika Srpska had to establish a second house of parliament, the Council of People. It also led to more representation of the different groups at all level of government and legislation (if not its implementation) secured more representation in civil service, public companies, etc. There was a shift away from emphasis on individual rights to securing more group rights in Republika Srpska.

6.2.4 The Entities The Dayton Constitution gives substantial powers to the entities. Article III, 1 of the constitution states defines the powers at national level:

The following matters are the responsibility of the institutions of Bosnia and Herzegovina: (a) Foreign policy.

246 Nystuen 2005.

247 In the preamble to the constitution it is stated: “Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows: “

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(b) Foreign trade policy. (c) Customs policy. (d) Monetary policy as provided in Article VII. (e) Finances of the institutions and for the international obligations of Bosnia and Herzegovina. (f) Immigration, refugee, and asylum policy and regulation. (g) International and inter-Entity criminal law enforcement, including relations with Interpol. (h) Establishment and operation of common and international communications facilities. (i) Regulation of inter-Entity transportation. (j) Air traffic control. Paragraph 2 defines the powers of the entities:

2. Responsibilities of the Entities. (a) The Entities shall have the right to establish special parallel relationships with neighbouring states consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina. (b) Each Entity shall provide all necessary assistance to the government of Bosnia and Herzegovina in order to enable it to honour the international obligations of Bosnia and Herzegovina, provided that financial obligations incurred by one Entity without the consent of the other prior to the election of the Parliamentary Assembly and Presidency of Bosnia and Herzegovina shall be the responsibility of that Entity, except insofar as the obligation is necessary for continuing the membership of Bosnia and Herzegovina in an international organization. (c) The Entities shall provide a safe and secure environment for all persons in their respective jurisdictions, by maintaining civilian law enforcement agencies operating in accordance with internationally recognized standards and with respect for the internationally recognized human rights and fundamental freedoms referred to in Article II above, and by taking such other measures as appropriate. (d) Each Entity may also enter into agreements with states and international organizations with the consent of the Parliamentary Assembly. The Parliamentary Assembly may provide by law that certain types of agreements do not require such consent. Paragraph 3 defines the residual powers and the precedence of laws:

3. Law and Responsibilities of the Entities and the Institutions. (a) All governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities. (b) The Entities and any subdivisions thereof shall comply fully with this Constitution, which supersedes inconsistent provisions of the law of Bosnia and Herzegovina and of the constitutions and law of the Entities, and with the decisions of the institutions of Bosnia and Herzegovina. The general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities. This means that except for the rather lean list of responsibilities given to the state level in paragraph 1, the residual power is left with the entities. This is one of the issues which is most controversial today and which have represented hurdles for a well functional state. Some adjustments strengthening the central powers have been made but such efforts have failed from 2006 onwards.

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6.2.5 The Two Chambers of Parliament The Parliamentary Assembly consists of two chambers. The House of Representatives with forty-two members is the principal chamber based upon equal votes of all citizens and the fifteen members House of Peoples which is a house with equal representation of the three constituent people. Legislation needs to be approved by a majority of those present and voting in both chambers as the main rule, with the exceptions described under entity voting and vital national interest clauses below.

Out of the forty-two members of the House of Representatives, two-thirds (twenty-eight members) are elected from the Federation and one-third (fourteen members) from Republika Srpska. The electoral system is List PR in multi-member constituencies with entity-wide compensation.

Out of the fifteen members of the House of Peoples five Bosniacs and five Croats are elected by the Federation House of Peoples and the five Serbs are elected by the Republika Srpska National Assembly. The electoral system is List PR. In the Federation there are two separate elections, the one electing the Bosniac members where only the Bosniac members of the Federation House of Peoples can vote and similarly one electing the Croat members where only the Croats can vote. This has two effects: The Serb or other members of the Federation House of Peoples do no neither vote for nor stand for election to members of the House of Peoples at all and multi-ethnic parties will have to split their vote force in the election and may risk not winning seats even if their total strength in Federation House of Peoples would suffice for a seat.

The Federation House of Peoples is elected under a similar system by the Canton Assemblies. This election is not ruled by the Dayton Constitution and the national election law could define rules more freely. In 1999 there was a proposal to change the rules for electing the Federation House of Peoples to a single List PR election in each cantonal assembly with ethnic quotas instead of separate elections in each ethnic caucus. This would have removed the disadvantage for multi-ethnic parties in those elections, but the election law adopted in 2001 did not include this reform. The List PR system was, however, introduced for the House of Peoples elections replacing the previously used block vote system.

6.2.6 The Presidency and the Council of Ministers Bosnia and Herzegovina has a hybrid executive system consisting of a three member presidency with limited powers and a Council of Ministers led by a Chair. The Council of Ministers need to have the confidence of the House of Representatives.

According to the constitution the three-member presidency of Bosnia and Herzegovina has the following competencies, according to article V, 3:

(a) Conducting the foreign policy of Bosnia and Herzegovina. (b) Appointing ambassadors and other international representatives of Bosnia and Herzegovina, no more than two-thirds of whom may be selected from the territory of the Federation.

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(c) Representing Bosnia and Herzegovina in international and European organizations and institutions and seeking membership in such organizations and institutions of which Bosnia and Herzegovina is not a member. (d) Negotiating, denouncing, and, with the consent of the Parliamentary Assembly, ratifying treaties of Bosnia and Herzegovina. (e) Executing decisions of the Parliamentary Assembly. (f) Proposing, upon the recommendation of the Council of Ministers, an annual budget to the Parliamentary Assembly. (g) Reporting as requested, but not less than annually, to the Parliamentary Assembly on expenditures by the Presidency. (h) Coordinating as necessary with international and nongovernmental organizations in Bosnia and Herzegovina. (i) Performing such other functions as may be necessary to carry out its duties, as may be assigned to it by the Parliamentary Assembly, or as may be agreed by the Entities. In addition each member of the presidency had civilian command over armed forces, until the armies were merged. Now that is a joint responsibility.

The Council of Ministers conduct the other executive functions within the authorities of the state level.

Similar to the composition of the House of Peoples the presidency has one Croat, one Bosniac and one Serb member. They are elected by a direct vote where the Croat and the Bosniac members are elected from (by and amongst voters of) the Federation and the Serb is elected from Republika Srpska. This means that all other than Croats and Bosniacs of the federation and Serbs of Republika Srpska are deprived of the right to stand for the presidential elections.

The elections are held under a first pass the post system where the voters can cast one vote each. In the Federation all voters may choose which race they want to participate in. The Croats have been complaining that Bosniacs vote in ‘their’ race and thus decides who is representing them in the presidency. Even if this may not be confirmed Serbs and other smaller groups of the Federation clearly vote in the Croat or the Bosniac race since they do not have a race there.

In the Council of Ministers no more than two-thirds of all Ministers may be appointed from the territory of the Federation. A minister and his or her deputy ministers may not be of the same constituent people.

6.2.7 Entity voting In each house, two-thirds of the representatives from an entity may veto a decision. The rule is being used quite frequently and not only on decisions on legislation. There are no qualifications to the rule in the constitution (Article IV, 3 d)) so even if the intention probably was that the decision had to be prominent for the rule to be used this is not how it has worked out.

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6.2.8 The Vital National Interest Clause Article IV, 3 e) and f) of the constitution define another rule which is intended to promote consensus decisions and to protect the groups from being overruled by the other two. It applies to the House of Peoples only and for decisions which may be ‘destructive of vital interests of’ each of the constituent peoples. In such case a majority within the caucus in the House of Peoples may stop a law which may otherwise have an overall majority. It means in practise that three members of a caucus may veto such legislation. Paragraph e) states:

A proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of the Bosniac, Croat, or Serb people by a majority of, as appropriate, the Bosniac, Croat, or Serb Delegates selected in accordance with paragraph l(a) above. Such a proposed decision shall require for approval in the House of Peoples a majority of the Bosniac, of the Croat, and of the Serb Delegates present and voting. There is no further advice on what constitutes a decision which may be ‘destructive of vital interests’ but there is a procedure in place for the Constitutional Court to make a final decision to whether the clause may be invoked or not. Paragraph (f) states:

When a majority of the Bosniac, of the Croat, or of the Serb Delegates objects to the invocation of paragraph (e), the Chair of the House of Peoples shall immediately convene a Joint Commission comprising three Delegates, one each selected by the Bosniac, by the Croat, and by the Serb Delegates, to resolve the issue. If the Commission fails to do so within five days, the matter will be referred to the Constitutional Court, which shall in an expedited process review it for procedural regularity. The Constitutional Court (with three international members) has ruled in a number of such cases and has often decided that the rule cannot be used in cases when a caucus has invoked it.

6.2.9 Later developments The weak powers at the state level, the entity voting rule and to some extent the vital national interest clause (even though the overruling of the Constitutional Court) have made the decision-making at state level inefficient. A large number of important issues have simply not been dealt with by the state bodies. In its Bonn meeting in December 1997 PIC concluded that there was little progress on a number of vital issues and their response was to give the High Representative legislative powers and the powers to remove elected and appointed officials at all levels. This did not lead to a more responsible parliament and government and the number of decrees issued by the High Representative came to twenty per year at its peak (only counting issuing or changing laws at national level, not other decisions or laws at entity level)248.

The number of laws passed by the parliament at national level was very low from 1997 to 2000 when ten laws or changes to laws were passed per year249. This later increased to 87 in 2004 and it has later dropped again to 30 to 60 per year. The number of laws rejected because

248 Office of High Representative

249 The parliament publication on http://www.parlament.ba/uzakoni/. Retrieved on 7 August 2010

167 of entity voting was seven in 2007 (when the parliament passed 30 laws), eleven in 2008 (when 40 were passed) and 34 in 2009 (when 60 were passed).

The 2000 Constitutional Court decision mentioned earlier led to the introduction of a Council of People in Republika Srpska with rights of each of the three peoples to challenge decisions made in the National Assembly of Republika Srpska.

In April 2006, the leaders of the major parties agreed to a reform package which would have strengthened the state level of the country and removed the discrimination in the electoral system to the presidency. The role of the presidency was reduced and the importance of the Council of Ministers strengthened and the number of seats in both chambers was to be increased. The initiative failed as it had not been sufficiently based within the parties.

In June 2009, the Butmir process also offered a proposal for a number of reform elements. The discrimination in the electoral systems to the House of People and the Presidency was removed, the number of members of both houses increased and in the responsibility for decisions regarding EU membership and changes needed to meet EU requirements were placed at state level. Both the entity voting and the vital national interest clause were kept. This initiative also failed in the end.

By entering the Council of Europe in 2002 Bosnia and Herzegovina came under the regime of the European Court of Human Rights. The decision following the complaint by Jakob Finci, and Dervo Sejdić has obliged the country to change the constitution to allow all people the right to vote and be elected in both these bodies.

6.2.10 The Intentions and Possible Effects The main intention of the Dayton Agreement was to end the war. The state emerging from the Dayton Constitution had clear flaws in terms of power distribution, representation and efficiency. With a very limited list of functions given to state level and with the residual powers given to the entities Bosnia and Herzegovina became a weak state.

The representation was clearly discriminatory: Large groups were prevented from standing for elections to the presidency and even more important to the House of Peoples. The constitution stated that (Article II, 2) ‘[t]he rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.’ Nystuen has argued that ‘all other law’ includes the Constitution itself and that the Constitutional Court could have addressed the issue of the inconsistency between the ECHR and the discriminatory election rules250. However, the view in Bosnia and Herzegovina including the High Representative251 was that the specific rules of the constitution cannot in themselves be unconstitutional. There was also a common understanding (including Nystuen)

250 Nystuen 2005: 99 and 243

251 This was for example the view of the international expert engaged by the High Representative to head the group drafting the election law in 1999. (The author of this section participated in the drafting.)

168 that the Bonn powers of the High Representative did not extend to constitutional changes. The changes would ideally have to come by decision in the parliament applying the change rules of the constitution itself, even if a Dayton II conference with the same parties as that of the Dayton Agreement was discussed at times.

Nystuen, who was at Dayton as legal expert in the Contact Group, writes that it was a common understanding that the constitution would undergo a dynamic interpretation over time. The experts were fully aware that the ethnic formulas violated international human rights conventions and the first drafts of the constitution had not included such provisions. According to Nystuen, even if permissible in an emergency situation in order to stop the war such rules should not be part of a permanent constitution. One may counter-argue that if such rules had not been entered into the constitution the parties would not have accepted the peace agreement. It might therefore only have been possible to solve the emergency situation by committing to such discriminatory rules on a permanent basis.

With the decision of the European Court of Human Rights Bosnia and Herzegovina is obliged to change the rules of representation. This will not be sufficient to create a well functioning state. The double majorities and to some extent the vital national interest clause have led to a number of stalemates and laws have only been passed with great difficulties.

From the Serb point of view, the Dayton Constitution works as intended. The powers were supposed to rest with the entities and there is no need for a stronger state level. The Bosniacs are of the opposite view and the Croats do feel that their interests are still threatened since they constitute a minority within one entity. The requirement for the double majority (entity voting) in the houses of the Parliamentary Assembly was important to the Serbs at Dayton. The international negotiators had probably envisaged the rule to be used much more restrictively than what has been the case.

The result is that there is peace in the country but reform and progress have been less than hoped and expected. Even if some of the difficult arrangements were inevitable at the time, the following could possibly have been included at Dayton252:

- A limited period with a three member presidency; - A specified list of decisions where the entity vote might be invoked; - Clearer rules for the use of the vital national interest clause; - A voting arrangement for the Federation representatives of the House of Peoples where everybody votes for everybody but with ethnic quotas; - Introduction of an ‘other’ group wherever representation is defined so that nobody is deprived their fundamental right to stand for election. The list above does not necessarily include changes that would have been possible to get agreement on at Dayton, but they would have had an enormous effect on the functioning of the state if they had been adopted and may be seen as an advice for the future.

252 To what extent the list is realistic remains speculative.

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The other highly controversial element of the peace agreement and its implementation is the willingness of the international community, in particular the High Representative but also the OSCE, to take up the responsibility for change and progress when the elected bodies failed. Some decisions regarding return of displaced persons, return of property and strengthening of the judiciary system represent areas which probably could not have been implemented without the international community overruling the representative bodies. On the other hand there can hardly be any doubt that when the High Representative took so much responsibility the authorities were allowed to act with less responsibility and the long term effect was not only positive. In addition, the process of dismissing a large number of elected representatives because of their alleged acts against Dayton did not always represent an example of due legal process.

6.3 The Field Study

6.3.1 The Conflict Bosniacs tend to see the war as an act of aggression from the Federal Republic of Yugoslavia and the Republic of Croatia, rather than a civil war. The war is interpreted as a battle for territory, which would not have taken place without aggression from Belgrade. Among Serbs, on the other hand, the conflict is seen as an inter-ethnic or religiously motivated civil war where all parties participated equally. The Croats express somewhat more ambivalent attitudes, but tend towards seeing the war as a ‘conflict which turned territorial’. In the words of a Croat politician,

Views on the war are as numerous as there are people [...] Was it a turning point or a trigger for already prepared fireworks? [...] Some will tell you it was an act of aggression towards BiH, others that it was not. I am prone to support the former.

The purpose of the power-sharing arrangements and their effects The rights of minorities are clearly seen as having been “sacrificed” in order to end the war. On the other hand, Dayton is perceived as absolutely necessary to stop the war. The ethnic solution is perceived as a “logical conclusion” and “the right choice at the time”. In the words of a Bosniac politician: “It created peace, even if it was not just. It stopped the war”.

To some degree, however, Dayton is also seen as an imposed solution, over which the local population had little influence. This criticism also applies to the discriminatory nature of the agreement. In the words of a Serb politician,

Many would hold it against Bosnia and Herzegovina that the constitution is not in line with European Human Rights conventions. Many forget that Annex 4 was not a domestic product, but drafted by internationals and required to be accepted as such. Citizens of BiH did not influence it. Many others did, however, see that the local negotiators did not only accept but certainly contributed to the solution, which is also confirmed by representatives of the international community and as stated earlier the ethnic formulas came from the local negotiators.

6.3.2 Participation in Decision-Making On this point, opinions diverge strongly among the groups. Bosniacs seek reforms that will strengthen the state level at the cost of the entity level. This has implications for how they

170 view the elements of power-sharing in the decision-making process. In the view of Bosniacs, the vital national interest clause is often abused as a political tool to impose certain policies, rather than protecting the national interests.

Croats, on the other hand, focus on their role as a group that constitutes a minority both within the Federation and in Republika Srpska which tend to be outvoted by the larger groups in the House of Representatives. When the Croats invoke the vital national interest clause in the House of Peoples, it may be overturned by the Constitutional Court where the Croat judges may be outvoted. In the words of a Croat politician:

The electoral system established a structure of three ethnic groups. It becomes obvious that the group who has 200 000 votes cannot compete with someone who has ten times as much. Due to the very few Croat votes, Croat parties are always sidelined in all elected organs. Every decision made in the parliamentary assembly can be passed without any Croat vote in the BiH parliament, the parliaments of the entities and in most cantons. Out of 140 municipalities, in more than 100 no Croat vote is needed for decisions. While representatives of the other groups seemed sensitive to this problem, it seems hard to find practical solutions that will be accepted by the Croats. Some Croat parties have proposed a third entity for Croats, but this seems unsatisfactory to Bosniacs, who favour a more centralised federation. Furthermore, it would not address the predicament of ‘others’, who are not represented in the House of People, and who are constitutionally barred from running for the presidency. For ‘others’, the House of Peoples is not seen as a constructive institution, but rather as an instrument of obstruction. Serbs and Croats, on the other hand, will not support any move to abolish the vital national interest clause or change the relative balance between the groups. Entity voting is seen as a tool that protects the peoples from being outvoted. Aptly put by one Serb politician: “Without entity voting, it would be majority voting, but that would destroy the structure of BiH as we know it.”

6.3.3 Development over Time The three constituent peoples seem to lack a common vision for where their country should be within the next five years. Important issues, such as constitutional reform, the future of the House of Peoples and the national state as such, remain unsolved. In the words of a Serb politician:

It is like a minefield. The constitution is based upon distrust and full of protection mechanisms. It is absolutely dysfunctional. Some also say that it is too centralized, and that it should not even have the power it has now.

While the European Court of Human Rights in December 2009 ruled that the constitution must be changed, so as not to discriminate Jews and Serbs, there is no agreement on how to implement this reform.

Another divisive issue is how to move towards EU integration. While there is a broad agreement that EU membership is a goal, Republika Srpska has for the time being remained unwilling to implement reforms that will further additional centralisation.

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6.3.4 Development of Political Parties Most parties in Bosnia and Herzegovina are ethnic parties. The social democratic party SPD has gone furthest in developing a multi-ethnic appeal and maintaining a fairly inclusive party apparatus. There have been other attempts, for example Nasa Stranka, formed in April 2008, but it remains to be seen whether this party will be able to establish itself as a main political actor.

Among ‘others’, there are no concerted efforts to initiate multi-ethnic parties. There was an unsuccessful attempt by the Roma to create a political party, but the aim in that case was to enhance Roma participation specifically.

6.3.5 Other Possible Side Effects of the Power-Sharing Agreement Dayton places all residual powers with the entities, making it extremely hard to change the structures that are in place. In the words of one Croat politician:

If the citizens want to protest, they go to the federal entity because they know where the power is. We have too much government authority per capita. When the time comes to solve the problem, everybody says “that does not fall within my jurisdiction”. When it comes to exercising power, everybody says the power belongs to them. Frequent stalemates have led to a sense of pessimism among our informants. Fear of future conflicts was a reoccurring topic, and it seems that this partially explains the perceived importance of holding on to the existing protection mechanisms. Instead of healing the division, Dayton is seen as having made them permanent.

6.4 Main Conclusions and Thoughts for the Future

6.4.1 Learning Points The Dayton Agreement was successful in ending the war but less successful in creating a functional, democratic state. The weaknesses fall into two areas: The discrimination in the representation of people to House of People and the Presidency on one hand and the division of powers and the decision-making rules on the other. By the European Court decision the first issue needs to find a solution and all parties express their willingness to change the rules. The power-issues are much more difficult. They are related to how the other parts of the Dayton Agreement were followed up and the success of the institution building in general. The international community may take similar responsibilities after conflicts in other parts of the world and some questions might then be considered:

Should a direct international rule be more explicit for some period of time after the peace agreement is signed, without electing national bodies? This would enable the international ‘governor’ to deal with fundamental problems without being in constant conflicts with democratically elected authorities.

Should the return of displaced persons and properties be given a higher priority? It took at least four to five years to establish and enforce a framework for return in Bosnia and Herzegovina.

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Should the reform of the judiciary be in place before election of state bodies? A well working judiciary is a corner stone for a civil state and it is needed to provide return of property and the general trust in the authorities. The elected authorities have shown little capability for such reforms which have been carried out by the international community instead.

When the elected bodies are in place should the governor hand over all responsibilities and permit such bodies to make its own ‘wrong’ decisions?

In Bosnia and Herzegovina there were almost immediate elections and a long period were the powers in reality rested with the High Representative and the OSCE (regarding elections in particular but also regarding return of property and in suggesting that elected people be removed from office). The politicians hesitated to risk losing credibility as protectors of their people by taking decision necessary to bring the country forward when they instead could trust that the High Representative would take such decisions for them. In addition the High Representative dismissed a number of elected representatives and invalidated candidatures in response to parties’ actions against Dayton. Even if these actions might have been justified they did not offer good examples of how a civil state functions and of due legal processes. All this could possibly have been avoided if the elections had come much later following a period of rule by an international High Representative without pretending to empower elected bodies.

The devolution of powers was partly in favour of the two geographical entities, and partly of the constituent peoples with their veto powers. The Croats demanded at times a third Croat entity because they did not feel sufficiently protected as a minority within the Federation. The international community253 rejected such thoughts. They also tried to reduce the importance of the geographical divide, possibly because they did not want the ethnic cleansing to have succeeded and the entity voting already made decisions very cumbersome. Keeping in mind that voters - as the main rule - were to vote for the bodies and constituencies where they had lived before the war, there were a good number of Bosniacs and Croats elected from Republika Srpska and Serbs from the Federation. Multi-ethnic entities were part of the ideal and creating a new Croat entity was not seen to be a step forward.

The Serbs were the group most concerned with protecting the independence of their entity Republika Srpska. At a time many Serb politicians would interpret the constitution in such a way that any voter registered in Republika Srpska could run for the Serb seats in the House of People and the Presidency. The entity constitution stated that Republika Srpska was a State of the Serb people, but otherwise it was quite neutral in terms of ethnicity. By the Constitutional Court decision in 2000 (U-5/98) mandating Republika Srpska and the Federation to define constituent people, this neutral position became impossible and the Serb representatives did not only have to come from Republika Srpska but they had to be ethnic Serbs254. After this

253 The High Representative, the OSCE and the US State Department.

254 A ruling of the Constitutional Court in 2006 (AP 2678/06) confirmed this.

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Republika Srpska established a Council of People with representatives of constituent people but particularly the Croats are so few that their representatives are elected from Serb parties.

Croats sometimes advocated cantonising the whole country replacing the entity level. This would have given them a couple of Cantons where they had majority and one where they would be the largest group and any veto rules could be resting with geographical units rather than ethnic groups. Serbs clearly would not have accepted such a solution but even the international community was quite unwilling to discuss models based upon geography alone. This might have been a mistake even though it is easy to understand that stakeholders were reluctant to support such a drastic change.

In sum the following adjustments to the Dayton Constitution could make a big difference:

- A more extensive list of powers at state level, in particular if the residual powers were given to the entities. - Limitations to the kind of decisions where entity voting could be applied; A clearer definition of what ‘vital interests’ of a constituent people could be; - Representation in House of People and the Presidency where the right to stand for election would not be limited, even if the balance between the three ‘constituent people’ was secured. - An electoral system to the House of People which would not prescribe elections in separate caucuses but where all members of the Federation House of People could vote for all Federation representatives, even if the rules had ensure the representation of the constituent people. If that had been done multi-ethnic parties would not face the disadvantages they do under the current system. - Consideration of shifting from group rights to geographical rights only combined with strengthening the national authorities.

Bosnia and Herzegovina was admitted to the Council of Europe in 2002. At this time it was clear that the representation rules were highly discriminatory and state did not function without the powers of the High Representative. One could raise the question whether the pressure had been stronger if the admittance had been delayed until such time when more criteria had been met.

6.4.2 The Way Ahead Among the ethnic groups, there are serious disagreements as to how the issues discussed here can be solved. The disagreements stem from a blend of genuine fears, actual political disagreements as to the best solution, and power seeking among political actors. While Bosniac and Croat leaders perceive of the situation as “worse than ever”, they still express faith in the future. Republika Srpska politicians mainly seek to maintain status quo with its authorities as is today.

Electoral discrimination will possibly be removed from the constitution as a result of the European court decision, but the rules limiting the state powers are more difficult to reach an agreement on.

The High Representative has clearly expressed that he will use the Bonn powers much less in the future. The international community seems to agree that the way ahead would give elected

174 authorities more responsibility which in turn would mean that they are permitted to make their own mistakes. Some would therefore claim that the only pressure left is the conditions for entering the EU. Others seem to be more pessimistic stating that EU is giving too mixed signals and have problems in showing a consistent line which would constitute an efficient pressure255. The Serb position is that most of the negotiations with the EU on membership conditions could be done on entity level and some even states that if that is not acceptable they would rather stay outside the EU. The voters might, however, not agree to this line, in particular if Serbia is admitted membership.

A precondition for progress seems to be more coordination and consistency within the international community if they at all shall have a say on the progress. But it is the voters who, after having seen the progress in the region at large, can give the clear message if they want change.

255 The police reform is often used as an example where wrong information was given what was international precedence for organising police districts, and the international community had back down on their position.

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7: Conclusions and Recommendations 7.1 Conflicts and Tools

7.1.1 The Type of Conflicts Studied As mentioned in the introduction the countries included in this study are limited to those with quotas for ethnic, confessional, linguistic or social groups as an imbedded part of the system of representation of national parliaments. The conflicts included are therefore such conflicts which ended with a power-sharing agreement where quotas are one of the elements. These are of different kinds: In some countries the quotas directly reflect the combating groups. In Bosnia and Herzegovina, Lebanon and Burundi that is the case and the quotas work along with decision-making rules (written or unwritten) to create a balance between the groups earlier in conflict or at war. In other countries, such as Nepal and the Philippines, the conflict was fought between political groups but the underlying causes where social or ethnic discrimination. The quotas in Nepal intend to address that conflict but in the Philippines there is no such agreement which is relevant to the conflict.

In Latin America there have also been a number of civil wars or insurgencies with an ideological identity but where the basis is deep social or ethnical divisions. None of these conflicts have resulted in power-sharing agreements which are covered in this study. All those countries have, however, introduced electoral systems with a strong element of proportional representation which in itself provides for inclusiveness.

7.1.2 The Tools In the following we will summarise the quotas used by (or discussed in) the countries of the study regardless of their purpose. After that we will discuss the effect of such arrangements in countries in conflict and then in the end we provide a list of possible quotas – the tool box.

7.2 Quotas and Veto Powers in Conflict-Ridden Societies. Main Findings In the beginning of this study we asked a number of research questions that has guided the work. The aim has not been to give conclusive answers but rather to demonstrate the academic and policy-related relevance of the themes raised, and to arrive at tentative recommendations that we think should be taken into account by policymakers and experts involved in democratic transitions in conflict-ridden states.

- To what extent is (minority) group representation in parliament able (sufficient) to reduce conflict? The main consideration here is if it is possible to see significant effects of the way in which electoral systems are designed relevant to group representation in processes of democratic transition. One conclusion based on our data is that we cannot identify any case where special provisions for group representation, with a particular focus on quota arrangements, has had a negative effect, i.e. that such provisions in itself has strengthened inter-communal conflict. It is however possible to demonstrate that choice of electoral system in such situations can have a direct effect on the distribution of political power in a country, including government

176 formation. Representation of groups that have been involved in open conflict is, however, no guarantee for more permanent peaceful relations. Some groups might boycott participation because their share of power turned out to be lesser than they had expected or were promised. Another decisive factor is the actual power of political institutions, particularly the parliament. In many countries, the parliament plays a secondary role in distributing real power in society and as the main arena for brokering power-sharing deals. In such cases design of the electoral system will have a reduced significance. In some countries, e.g., Lebanon and Bosnia and Herzegovina, the picture is further complicated by the fact that external actors and powers have a direct influence on the internal balance of power between contending groups. In these countries representation in parliament did not prevent the war to break out but a peace agreement would have been impossible without guaranteed group representation.

In the Philippines, the plurality system does not offer smaller parties a realistic possibility of representation in parliament beyond the rather artificial arrangements for ‘sectors’ of society. The Communist Party of the Philippines was re-established at the beginning of the Ferdinand Marcos dictatorship and it is impossible to assess if the insurgency still prevailing could have been prevented by a fair representation in a democratic parliament. However, a lasting peace deal should include electoral reform as an important component giving the parties to the conflict a real possibility of being represented according to their support.

In Nepal, the representation of earlier excluded groups is the new and essential element of the representative democracy. The electoral system includes a strong element of proportional representation which would secure the Maoists a fair share of the seats in the first parliament even if they should not have done very well. In the 2008 elections, the Maoists became the biggest party and took advantage of the plurality part of the mixed system but the political and group diversity would not have been secured without the electoral reform prior to that election.

In Burundi guaranteed representation of the groups in conflict has been essential to the peace deal whereas in Rwanda toning down the ethnic conflict has been imposed. With the autocratic regimes the actual effects of the opposite models are difficult to monitor.

In Iraq the Saddam Hussein regime had the Sunni minority as its power base. The List PR system introduced in 2005 secured all parties fair representation and the Shi’as became dominant in the parliament. Suppression of the largest confessional group was brought to an end and the Kurdish minority did also get a substantial share in the parliament. Iraq is still not at peace and to what extent this will be sufficient to establish a lasting peace is too early to assess.

- To what extent are formal power-sharing agreements including veto powers necessary to establish peace? There is no doubt that a peace agreement in Bosnia and Herzegovina had to include rather strong decision-making rules to establish a power balance between the groups. The question is if the elements that have produced a dysfunctional state could have been avoided by being clearer on the definition of vital interests, limiting the use of entity voting to certain decisions

177 and limiting the powers of the House of Peoples. If such rules could not be avoided, one might have been able to institutionalise a review conference with powers to reform the system in a more dynamic manner than a constitutional reform which is almost impossible to carry through because of the veto powers.

In Burundi, the requirement for qualified majorities encourage consensus but will sooner or later lead to stalemates which will weaken the parliament as an institution.

The main features of the Taif Agreement of 1989 that ended the civil war in Lebanon spelled out a formal power-sharing arrangement including a grand coalition government. This arrangement was essential to convincing the conflicting parties to lay down arms and reengage in parliamentary politics. A critical aspect of the arrangement is the institution of veto power that gives the groups certain guarantees for protecting vital interests also in the absence of mutual trust. A side effect of this arrangement is a weak executive and governmental inefficiency. Most stakeholders expressed however that such inefficiency is a prize worth paying for peaceful relations. The Taif Agreement foresees a reform of the institutions and gives the direction towards a more efficient and less confession-based system but this process of reform has not yet started.

- To what extent must the group elect its own representatives (as opposed to be quotas on regular party elections) to be able to reduce conflict? In Bosnia and Herzegovina and in Lebanon this issue has led to controversies. The Croats claim that their representative in the presidency is elected by the other groups and they have insisted on a maintaining the system where only the Croat caucus of the entity House of Peoples elect the Croat members of the country level House of Peoples. In Lebanon, the Christians complain that the Muslim majority in many constituencies decide the Christian representation.

There is no simple answer to this. By splitting the electorate one introduces a static element institutionalising the division as a permanent feature. If people’s priorities should change towards more political than ethnic divisions, the system would still lock parties and actors at large into an ethnic formula. In other cases, the distance from those electing and the elected may be too large. An obvious example is the religious minority representation in Pakistan where the accountability towards the minority constituency is weak. Instead, imbedding quotas into a List PR system where everybody vote in the same race may offer a good compromise and above all secure the dynamics needed to reflect changes to the priorities over time. A reform in Lebanon replacing the block vote with quotas, with a List PR system with quotas would accommodate the Christians’ concern there. In Pakistan, a direct election of the minorities’ representatives replacing the add-on system used today could strengthen the accountability. Further divisions of the electorate in Bosnia and Herzegovina would probably work in favour of more unwanted division. A more progressive reform working in the opposite direction would be to establish an electoral system to the House of Peoples which would not hamper the success of multi-ethnic parties.

In Nepal, a splitting of the electorate has not been seriously discussed among the main parties but it has been floated by group representatives from time to time. Such a move would

178 clearly accelerate the group division rather than reducing it. The main challenge is to maintain a direct election of all representatives of the excluded groups (with everybody voting) and not to introduce indirect elections or appointments of such representatives, suggestions that has been on the table from time to time.

- What are effects of the arrangements (in particular power-sharing) on efficiency, ability to govern? In Bosnia and Herzegovina, it is obvious that the power-sharing arrangements have led to weak central powers. The real powers rest with the entities and the international High Representative. In particular the Bosniacs advocate a stronger and more efficient central government. In Lebanon the powers are concentrated with leaders of the groups once in conflict, but they are not necessarily members of the elected bodies. Many stakeholders seem to accept that the lack of efficiency of elected bodies is an acceptable price to pay for peace.

In Nepal, the ideal of consensus governments to be established in the transition period until a new constitution had been adopted, proved very difficult to implement in practise. The procedures for electing a majority government (which was the fall-back system already described in the interim constitution) also failed and had to be changed both in the constitution and in the standing procedures of parliament before they could produce a government efficiently. Such changes were consequently made. In Bosnia and Herzegovina, some moderate reforms were implemented at an early stage but from 2005 it has not been possible to agree on reforms of the power-sharing.

A general lesson is that peace agreements should to a larger degree take a realistic view on the requirements of an efficient state, either by limiting cumbersome decision rules or by including a subsequent reform process. The latter is the case in Nepal since the consensus rules are limited to an interim period and in Lebanon where the Taif Agreement describes a more dynamic permanent solution. In Lebanon, the commitment of the parties to implement the reform process has, however, not been strong enough.

- What are the long-term effects of the arrangements? Do they deepen the divide between groups or do they contribute to normalise them? In Nepal, people are more conscious on ethnicity and caste than before the war. Unless the system of representation is being changed in the constitution now being drafted at the time of writing the direction may be towards more division rather than more equality. A shift from quotas affecting everybody to targeted quotas for excluded groups only may change this trend.

In Bosnia and Herzegovina, the identity of many people before the war was ’Yugoslav’ not Bosniac, Croat or Serb. The war created a division256 with a basic lack of trust between the groups and fear of suppression. Even with a large number of mixed marriages the feeling of group identity prevails. Clearly, the confessional divide in Lebanon became much stronger by the war. The question is if arrangements can be found that would reduce the conflicts and

256 It is not obvious that the war was a result of the division but the end result was certainly strengthened group identity.

179 fears over time rather than deepening them. The ethnic cleansing in Bosnia and Herzegovina has proven difficult to reverse. There are fewer areas than before the war where the people live in mixed communities.

Any peace agreement will need to take the actual situation into account, identify the groups in conflict, and issue them with rights. However, by use of representative models which would also be able to absorb changes to people’s priorities and to review the systems over time one may create a dynamic which may reduce rather than accentuate differences over time

7.3 Methods for Group Representation

7.3.1 What Did the Study Show? Representation of special groups is quite common. We have found 36 countries with electoral arrangements for ethnic, linguistic, social and religious groups. In addition there are countries which have gender quotas and quotas for particular professions, youth, etc. The purpose of the quotas is in a few cases related directly to conflict between groups, but in most cases it is to ensure that groups which are otherwise excluded are included in parliament. This could have a conflict-prevention effect even though there have not been violent conflicts in the country.

In some cases, the arrangements are made for small groups whose voting power would otherwise not be strong enough to secure representation. When they are given quotas it could be to secure at least one or few representatives, which might still leave them underrepresented or, in some cases, actually by intention provide them with overrepresentation. In other cases it might be larger shares of the population which are provided for a quota in parliament, because they are traditionally excluded. This could be socially underprivileged groups (Dalits or ethnic groups in India and Nepal, Maoris in New Zealand) and they are provided for by special arrangements which may secure a certain representation which may or may not be in proportion to their share of the population. For example, Christians in Palestine are secured over-representation based upon their previous strong position in the territory, whereas women’s quotas in general almost never secure their full share of the population.

The main groups in a post-conflict situation may, as part of a power-sharing agreement, be secured a fixed representation in the parliament. The share may be negotiated and not necessarily represent a proportional share of the population. In Lebanon the share is set to fifty percent for both Christians and Muslims, even though the latter group is now the bigger, and in Bosnia and Herzegovina the three groups in conflict are each given one-third of the members of the upper chamber of the parliament, which gives the Croats strong overrepresentation.

The arrangements for achieving the desired representation vary a lot. Some fall into the categories we already introduced in Chapter 2, but some are quite different from that. In a number of cases, the rules for group representation are designed to ‘repair’ an electoral system which has not had the ability to produce the desired representation. One has decided on a general system of representation based on political considerations and notes that the result is not coming out as representative as desired. Instead of looking for a total overhaul of

180 the system amendments are made that may directly benefit specific groups without taking into careful considerations what possible side effects the rules might have. The most obvious example of such rules is where the parliament or the executive appoints members of parliament to represent certain groups257. If this is done to the principal chamber of parliament it violates the commonly accepted principle that one house of parliament shall be directly elected. The other common manner in which the side effects are not paid attention to is where the electoral system for the groups are based upon other principles than the general and possibly preferred one.258 A third category includes systems where the political (party- wise) composition of the parliament is affected by the group representation rules.259

The study brought up a number of arrangements, which partly did not involve elections and partly were based upon indirect elections where the electorate would not necessarily be representative. These repair-rules made to mend a flawed system could always be replaced by systems which would form more integral parts of the electoral system rather than add-ons which break with the over-all system of representation. In the next section we will look into some systems which may work well, and in the section after that we shall go through some unfortunate systems in use and suggest how the underlying intentions could be covered by a more regular and integrated system.

7.3.2 Workable Quota Arrangements As stated earlier the arrangements should fit with the general system of representation used in the country. With List PR it is easier to include quota arrangements than with FPTP in single- member constituencies. The choice of general electoral system is often based upon long traditions and is not only a result of a conscious political choice. The choice of special representation for groups is often not that conscious and has therefore sometimes been given strange shapes. In the following we will mainly consider the two main systems: List PR and FPTP in single-member constituencies. These would also cover mixed systems where quota arrangements may be combined with either of the two races.

Block vote (FPTP in multi-member constituencies) is not a system recommended for multi- party elections to parliament because of its winner-takes-all qualities, but the system is discussed only because it is used in a few countries together with quotas. SNTV and STV will be covered to some extent, even though few countries use them.

In the following we will advice on some systems which may be a good response to specific needs for group representation.

257 For example in Nepal in 2008.

258 Philippines.

259 The Palestinian Territory.

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Guaranteeing a minority which otherwise is unrepresented a minimum representation in parliament – affirmative action

The group may represent interests which are often different from those of the majority and should therefore be guaranteed a voice in parliament. They may be a discriminated social group (e.g. Dalits and under-privileged castes in India and Nepal), an ethnic group with interests which may be in conflict to the main stream politics or religious or linguistic minorities.

Constituency delimitation If the group is geographically concentrated the simplest is to draw the constituencies in such a way that the group is guaranteed representation even if the constituency may be smaller than the norm (e.g. Åland in Finland). This secures the representation, the group elects their own representation and it has few negative side effects. The only problem with the constituency solution may be that such constituency may have an unusual small magnitude and thus affect the equality of the vote. This could be, however, an intended effect. Even if it does have an effect on the overall political party composition of the parliament it is internationally acceptable. Under a List PR system (and STV and SNTV) a side effect of small constituencies is that the degree of proportionality may be reduced. If the constituency is given more seats than its population should account for the equality of the vote is affected as well. However, under a List PR system these two side effects can be amended by nation-wide compensatory seats. With a sufficient number of such seats to be distributed among parties based upon the nation-wide results the political composition of the parliament is not affected by over-representing a geographical area or by making an unusual small constituency.260

Separate race In many cases the small group which needs affirmative action is not geographically concentrated. One solution which may be used independently of the electoral system is a separate race for that group. This may be done either with a separate voters register for the group allowing only members of the group to vote for the reserved seats or without such register. In the latter case one may either let every voter vote both in the general election and in the separate race or one may allow the voter to make a choice in secrecy for which race he or she wants to participate, without checking the group belonging. All these arrangements have their own qualities.

In Croatia, there has since independence been quotas for Serbs and other minorities, organised as a separate race. Initially it was up to the voter on election day to decide which race to participate in. It was then reported that polling station staff would intimidate Serbs to take the Serb ballot and not the ballot of the general race. Seen from a Serb point of view it might, however, be more rational to participate in the general race, since they were guaranteed the reserved seats anyway. It is doubtful if the opposite happened to any extent; that Croats wanted to influence the choice of Serbs. It could therefore not be claimed that the Serb

260 Finland has not introduced compensatory seats to make up for disproportional results which the small Åland constituency may contribute to.

182 representatives were elected by the Croat majority. This arrangement was later changed and now minority group members may choose to register in a separate civil and voters register. The principle of individual choice is maintained, the voters vote for their representatives. The drawback seen from a minority point of view is that the choice is made well in advance of the elections and it takes some effort to change the registration.

With a limited number of minorities and a well functional registration system a separate registry may work well. In other situations, such as in Nepal with more than one hundred groups, such arrangements would not be practical. There a separate race would only work if one allowed people to make the choice on election day.

Allowing everybody to vote in both (or all) races is an option. This would guarantee minority representation but a minority may feel that their representatives have been chosen by the majority and not by them. This system is used in some countries to secure women’s representation where the purpose is to achieve gender balance, not to have women representing women in parliament.

If the voter has to choose the race there is always a tactical element. By voting in the general race a minority voter may get it in two ways: having a representation independent on the vote and still being able to influence the political composition in the main race. This may, however, be a possibility which is intended and accepted by the majority.

Nomination requirements The implementation of nomination requirements will depend a lot on the electoral system and so will the effects on actual representation. In systems based upon single-member constituencies (and block vote for that matter) there have been attempts to require a certain number of the candidates of a party to belong to a group. However, this will not necessarily translate into representation since the parties may choose to put forward group candidates in constituencies where they are not likely to win the seats. The only efficient quota arrangement under single-member constituencies would be if all candidates of a constituency have to come from a group, which is covered under the next section.

In List PR systems, it is more common to have requirements on candidacy and the effects are more significant. If the requirements are simply to nominate a certain percentage of candidates on a list the effect may be small since the party may choose to put the minority candidates on losing positions, even though the incentives are strong for giving them a more prominent position if the party wants to attract the group’s votes. However, it is common to combine this quota system with requirements to prominent placement on the lists and the actual effects on representation become more predictable. In the case of open lists the effects still tend to be more representation of the group even though the voters may change the sequence on the lists.

Requirements on the result In single-member constituencies this is either done by defining extra super-constituencies where all candidates have to be from a certain group or by earmarking some of the constituencies for a group only. The first is for example used for female representation in

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Egypt, Uganda, Kenya and some other countries. In Egypt area of three regular constituencies make out one women’s super-constituency and in Kenya each county represents a women only constituency. This arrangement could also be used for minorities but there are no such examples. This is very similar to a separate race open to all voters.

In India certain geographical constituencies may only be contested by scheduled castes and tribes. This restricts the right to stand for elections for those not belonging to the group in the sense that they will have to stand in some other constituency, not the one they might have preferred. The system is accepted in India and may work in other places as well.

In Kenya there has been discussion on another alternative system to secure women’s representation in the single-member constituencies.261 In each single-member constituency the parties should suggest a ticket of two ranked candidates, one man and one woman. In case that there will not be a sufficient number of women (or in principle even men) elected some tickets will have a number-two ranked women elected instead of the number-one man. Only so many tickets are changed which are needed for meeting the one-third requirement and it is the ticket with the relatively weakest electoral support that are changed.

In multi-member constituencies, one may use variants of best runner-up systems to guarantee representation. In a List PR system the shift up would be within a list and would therefore not affect party distribution of seats. In block vote and SNTV the best runner-up system has been used to elect group candidates regardless of party affiliation and a candidate of a minority of one party may therefore push out a candidate from another party262. This is a regrettable side effect which should be avoided.

It is possible to define a system whereby the shift takes place only within a party also in the case of block vote and SNTV (and STV) but that would create strong incentives for running as independent candidates instead of under party affiliation and would probably not work.

Block vote systems should in general be avoided in multi-party national elections because of its winner-takes-all nature. SNTV has some serious drawbacks on promoting tactical voting behaviour. STV is a robust electoral system but there is no straight-forward way of implementing quotas without altering the party representation. It is possible, though, but one will have to accept that candidates with very little individual support may be elected in such case.

Representing groups according to a preset exact or close to exact formula

This is mainly a requirement after conflict when the groups want to secure a fixed balance between the conflicting groups (Bosnia and Herzegovina and Lebanon). There is also an example where the need for representing underprivileged groups has resulted in a demand for

261 The new constitution of 2010 requires that at least one-third of the members of parliament are women but the system laid out in detail in the constitution does not guarantee this. Some systems have been presented publicly in order to give such guarantees without making big changes to the prescribed system.

262 In principle this could also be done under STV but we know of no such example.

184 all groups, even the privileged, being represented according to their proportional share of the population. In Nepal this demand has strong but the implementation has only been on the List PR side of a mixed system, which means that some excluded groups have got their share in the List PR part of elections but have remained excluded in the single-member constituency part of the election. It remains to be seen what principle will win in the constitution still being drafted in 2011 – inclusiveness or proportionality. In the following it is the conflict situation which is the scenario but the discussion is valid to a large extent even for situations like Nepal.

The vision In deeply divided societies, one will need to strike the balance between granting political group rights, which may even go beyond the group’s strength in the population, and maintaining individual rights. Group rights in terms of cultural protection, development of language, etc are not problematic in this context. Political rights which come out of an agreement with the aim of keeping a balance between the groups over time may, however, rather deepen than reduce differences. A peace treaty will first of all state that the groups in conflict shall stop the hostilities and it will deal with disarmament, return of displaced persons, property, etc. The vision for the country may include:

 Maintaining mutual respect for the groups identity, religion, language, and way of life;  Establishing forms of self rule within reasonable areas, such as religion and culture, and sometimes beyond that;  Establishing a regular political scene where the group belonging is less important. That would include encouragement of political parties across groups and where regular political issues and ideologies would be the focus of their platforms rather than group identity;  Establishing a society where cultural differences are an integral common value but where the belonging to a group is not predefining a person in all respects;  Developing a society where it is up to the individual’s free choice to invoke group rights or to individual rights only;  Creating a society which protects the individual’s rights and where any group rights employed does not limit any person’s basic human rights.

Some of these principles are blueprints of international conventions but others are less obvious: In particular the ideal of creating a political system where political parties reach beyond group interests and develops into organisations based on a political action plans for the country. In a number of divided societies this is a main challenge, such as in Bosnia and Herzegovina, Lebanon, Iraq, etc.

If a society based upon equality is the ideal it means that the quota arrangements should be structured in such a way that they have inbuilt incentives for cross group politics, reconciliation, and dialogue. To achieve that one may look for arrangements which are less divisive and constitute a more integral part of a general electoral system rather than for systems which may strengthen the separation.

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Who votes? One fundamental question is who elect the group representatives. This has been an issue in Bosnia and Herzegovina where in particular Croats claim that their representative in the national presidency is elected by votes from other groups than the Croats and in Lebanon where the Christians claim that in some constituencies the Muslims decide who to represent them.

After a conflict between ethnic or confessional groups it is important that people feel that those elected to represent them is actually representing them. That does not mean that there should be exclusive electorates in separate races for all groups. Electoral systems based upon lists would encourage diversity while separate electorate may encourage division. When the population is mixed the only way of securing that for example the Croats votes for the Croats is to keep a separate voter register for the group and have a separate race for the group. This raises a number of other issues: The definition of who belongs to the group, the complexity if there are a number of groups, the pressure that may be in place for registration as a group member, and thus violate the principle of free choice, etc. Most important is, however, that people from the same neighbourhood and area, vote for totally different candidates even if they may have similar political programmes. Because of the group belonging a person may be deprived the right to vote for the party and the candidates which may cover the person’s views best, only because of the group belonging. It is therefore often agreed that in most cases everybody should be able to vote for everybody in a constituency. In addition if diversity is promoted rather than division the system may by more dynamic and reflect changes to the electorate’s priorities in a better way that a static division resulting from a power-sharing agreement263.

That does not mean, however, that constituencies should not be drawn up in such a way that people feel represented along several dimensions, also group-wise. This may be combined with a system of federalism or devolution of powers to keep the balance of powers without the use of special group representation.

Constituencies Constituencies may be drawn in such a way that minorities or groups at large are guaranteed representation. Federal states also serve as the basis for representation at national level and some federal states are drawn up so that the group identity of the states is strong (Switzerland, Ethiopia). With devolution of powers and protection against the majority’s possibility to change the rules of the game, this may be sufficient to diffuse conflict.

There is, however, another school of thought: After conflict one might design an electoral system which would promote reconciliation and dialogue between groups and where the moderate leaders within groups previously in conflict should have a good chance of being elected. Some experts have on strongly promoted the alternative vote system (AV) combined with design of constituencies where the groups are as mixed as possible in order to achieve

263 Lijphard 2008.

186 that. Fiji is the most prominent example of this done in practice264. The constituencies are drawn up with the aim to make the Indians and the indigenous Fijians as equal in number as possible. The constituencies are single-member and the candidates are individuals which may belong to parties or be independents. The voter will rank the candidates by preference and a candidate needs support of at least half of the electorate to be elected. The ballots will first be sorted by first preference. If a candidate has won more than fifty percent of the votes he or she is elected straight. If no candidate has won such a majority one will continue with rounds of counting where the second and further preferences are coming into the count.

The theory is that even if a voter would prefer a candidate who is standing firm on his own identity he would vote for a more moderate candidate of the opposite identity with lower preference before voting for a radical candidate of that identity. A candidate would therefore need to appeal not only his or her own group but would seek support of other groups as well. The reason for trying to balance the groups within a constituency is to avoid that a radical candidate running on groups identity programme is elected straight based upon first preferences.

The system in Fiji has not been a great success with two coup d’états since the election reform in 1999265. The criticism in Fiji is that the constituencies are seen to be drawn up in artificial way and that the system represents electoral engineering to achieve a particular result rather than providing a representative parliament. A similar system was suggested in Bosnia and Herzegovina in 1999 but rejected by both political leaders and prominent leaders of the civil society. They did not want a system based upon single-member constituencies because they were convinced that the voters would vote ethnically in such case. With List PR in multimember constituencies (which they had from before) it would be easier to convince people to vote for multi-ethnic lists since their group would be properly represented anyway.

AV may be a system which works well in some situations. In particular, when a president is to be elected in a country of conflict it can be a very good alternative to a two-round system (which basically tries to achieve the same). However, the combination with drawing constituencies which the general public find artificial may work against its purpose and the ability to represent minorities is just as weak as any other majoritarian system.

Separate race A separate race is possible to combine with any systems of representation. It may be done with or without a separate voters register. The elections of the Croat and the Bosniac members of the presidency of Bosnia and Herzegovina are in principle two separate races. There is no group identification of the voters and each voter may choose in secrecy whether to participate in the Croat race or the Bosniac race. Most voters would probably be most interested in ‘their own’ representative but Serbs and other groups may choose any race. Croats claim that even Bosniac voters vote in ‘their’ race and thus insure that a moderate

264 Donald Horowitz was a main architect and has written a lot about AV in Fiji and other scholars has written more critical reviews, such as Lijphart 2008.

265 In 2000 and 2006.

187 person is elected. One may claim that it is an advantage that everybody can cast their vote in any of the races. Representatives of the Croat parties argue that the real Croats are only those running from parties with ‘Croat’ in their names. According to them candidates running on multi-ethnic parties cannot properly represent the Croats.

The presidency is not the most important body in Bosnia and Herzegovina. However, the system is open for tactical behaviour which may benefit the parties which are best at predicting the voters’ vote and to control the voting of their own electorate. A better method could have been STV with quotas to ensure that one Bosniac and one Croat are elected. This would have ensured proportionality in the party-wise representation and every voter would in principle have influence in the election of both members of the presidency, without tactical planning of the vote.266

Requirement to the result If one wants to guarantee certain group representation the arrangements will depend on the general system of representation. Quotas with FPTP will generally have more negative side effects that List PR and in some cases one may want to change the general system of representation to be able to include the group representation in a good manner.

Elections in single-member constituencies combined with exact quotas may only be implemented by reserving constituencies to each group.267 Such system would be equivalent to separate race(s).

For multi-member constituencies the discussion is as for the minority representation above. It is quite easy to combine exact quotas with List PR (like in Nepal) but for block vote, SNTV and STV the party representation may be changed by the quota rules.

Despite that, the block vote system is combined with exact quotas in Lebanon. There the implementation is done without pre-printed ballots (which would make the risk of many invalid votes high) and allowing the parties and alliances to print their own ballots instead. Those ballots are widely used and the system has therefore almost degenerated to a party block vote system. Only in one constituency the alliances were broken during the 2009 election.

The Dynamics of the Methods of Representation The electoral system should translate the will of the voters into a representative parliament. That means that shifts in the electorate’s preferences should be reflected in the result. A power-sharing agreement may limit the dynamics of the representation. If the agreement sets the balance between the groups because that is important at the time of the agreement, a shift in the preferences of the electorate would not change this balance (Lebanon and Bosnia and Herzegovina) unless the quotas are linked to the share of the population as measured in a

266 Even better would it be if all three (or even four if the discriminatory exclusion of other groups is amended by adding one member) had been elected by all voters across the entity lines. STV with quotas would then be an excellent choice.

267 Or with ranked tickets as discussed above.

188 census (India, Nepal). After conflict ethnicity may mean everything to the voters but after some time the priorities may shift to political issues. Electoral systems have different ways of responding to such changes in preferences in the electorate.

The STV system may be one of the most dynamic systems in that respect. The voters rank the individual candidates according to their preferences. If ideology is dominant the voters would rank all candidates of their preferred party first and then the candidates closest to their own party. If ethnicity, gender, geography, age or other priorities are more important the voter will rank the candidates accordingly. Different voters may have different dimensions of priorities in the same election and the system would give a proportional representation along a complex set of dimensions. STV therefore may be said to give an immediate response to the shifts of the priorities in the electorate.

List PR systems would basically respond to the party priority of the electorate. Parties may be formed on the basis of ethnicity (Bosnia and Herzegovina), age (the party Fidesz in Hungary268) or other dimensions of representation and the system will therefore be able to reflect shifts in priorities. The response will, however, have to be institutionalised for example by formation of parties. If the parties are group based the groups will be represented according to their strengths as long as the voters feel group identity is important. If group identity is not important any more voters may shift to parties based upon their political platform instead.

The elections of the members to the Federation of Bosnia and Herzegovina (the entity) House of Peoples have to be done in separate caucuses for Bosniacs, Croats and Others in each canton assembly of the entity. That contributes to cementing the group divisions and works against the incentives to form multi-ethnic parties. A system where all members of the assemblies vote for all representatives but with quotas would not have that effect.

In FPTP there are few incentives for parties to nominate candidates (of the constituency) of the minorities since they have less chance to be elected. Small changes in party preferences may give big changes in the result but group representation will remain conservative.

Two round systems and AV will give a possibility to compromise candidates but in other ways have the same effects as FPTP and not really reflecting minorities in any systematic manner.

7.3.3 Alternatives to Systems that Should be Avoided At least one chamber of parliament should be directly elected. A number of countries, not least in Africa, have chosen to give special minority (and even gender) representation by appointments or indirect elections rather than by direct elections by the voters. This is probably most often done for simplicity but it could also be done to secure representation which is loyal to the executive powers of the country.

268 The upper limit of 35 years for membership was abolished in 1993.

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Further there are election based systems which should be avoided because of their side effects. The side effects may include:

- The system may change the party-wise representation in the parliament. This happens for example in best runner-up systems in candidate based multi-member constituencies269. - The system may restrict the voters’ choice to an unacceptable level. The voters’ choice will always be restricted by quotas but not necessarily to an unacceptable level. - The right to stand for elections may be restricted to an unacceptable level. The candidates’ rights will always be restricted by quotas but not necessarily to an unacceptable level. - The complexity of the system may be too high (e.g. Nepal in 2008). - The incentives may not be right in that it is more divisive than necessary and therefore consolidate differences rather than bridge them. With group quotas as least the candidates need to be identified, but such identification should be kept to a minimum. - The accountability may be weak because the group representation comes as a by- product of another vote (Pakistan and Kenya from 2010) or of a winner takes all system favouring the largest party (Singapore).

It may sometimes not be possible to design a system which combines the general system of representation and quotas in an integrated manner without negative side effects. The general system may therefore have to be redesigned in order to accommodate group representation in a reasonable manner.

One possibility is always to define a separate race for a minority group. This may be done either by allowing everybody to vote in both the general and the special race or by a separate voters’ register, but if there are many groups which are to be represented it becomes too complicated. This is illustrated by the example of the system used in Sudan in 2010 the last election before South Sudan voted for secession270. Sudan decided on using a parallel system for the election of the national legislator, the legislator of Southern Sudan and the provinces (states). That meant that each of these three elections held simultaneously with three executive elections would need two ballots each. In addition they decided to have separate race for women in all three legislatures each with yet another ballot. All together voters in Southern Sudan had to cast twelve ballots and in the rest of the country eight ballot. The Carter Center commented in their preliminary statement after the election: “The electoral system, as established within the National Elections Act, is highly complex and has led to confusion among the public and significant problems in its implementation.”271

It would not have been difficult to find simpler solutions meeting the possible intentions. The National Legislative Assembly had 450 members elected according to the following three

269 Block vote, SNTV and STV, but not List PR.

270 Sudan is not described in previous sections since they do not have other quotas than the women’s quota. Here it is used only to illustrate unnecessary complexities.

271 The Carter Center 2010

190 races (and the two other legislative bodies had similar structures):

i) 270 (60 percent) elected in single-member constituencies

ii) 112 (25 percent) women elected at province level in closed PR lists. (Average constituency magnitude 4.5)

iii) 68 (15 percent) elected at province level in closed PR lists. (Average constituency magnitude 2.7)

With the constituency magnitude of two to five, List PR would not produce an overall proportional result within the List PR parts of the election. Small parties would have little chance to be elected272. The parallel system was chosen as a compromise between the two dominant parties (NCP in the north and SPLM in the south). The List PR part was substantially smaller that the FPTP part (40 percent against 60 percent) but the proportionality was weakened even further by splitting the List PR vote into two races, even with the same electorate of the provinces. The extra ballot for women was difficult to justify both from a complexity and representation point of view. It would have been easy to reduce it to two races and ballots by simply introduce a 65 percent quota on the PR lists in a combined race. This would have increased the proportionality and allowed more of the smaller parties to win seats.273

When the general system is FPTP, a separate race may be a more adequate choice for minority representation. If the group is geographically concentrated delimitation of constituencies may be sufficient. An alternative would be create a meta-constituency covering the country or a region and provide an extra ballot voting for the group candidates (Egypt for women, etc). With many groups this become too complicated and a shift to List PR may be considered.

If the general system is FPTP, one may introduce a separate race with List PR for minority representation. It is similar to what is done in the Philippines but there the groups are not defined274. In for example Niger where the general system is List PR it would have been more logical to define one List PR constituency for all the minorities combined and used quota rules as per Appendix B to ensure representation instead of introducing eight single- member constituencies. A similar system could have been used in Rwanda and other countries using systems where the voters have little say in the minority representation.

272 Only five seats were won by other parties that the two dominant ones and four of the five were won in the province of Southern Sudan by a party with concentrated support there.

273 NCP and SPLM may have intended to keep small parties out but some generosity would probably have had a positive long term effect in Sudan

274 The seats are reserved for “small parties” not groups, which makes the system quite arbitrarily.

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The systems used in Kenya (according to the constitution passed by referendum 4 August 2010) and Pakistan are better than the ones described above but the distance from the voters to those elected is unnecessarily long. In both countries, the parties will before the election suggest lists of minority candidates (and in Pakistan also for women) and the parties win such seats according to their strength in parliament resulting from an FPTP election. The balance between the parties is therefore maintained but the voter will by casting a vote in a single- member constituency not necessarily being aware that the vote also counts for the minority representation. A separate ballot within a direct List PR vote would reduce the distance, and this could have been combined even with women’s representation so that only two ballots would be needed.

In Mauritius, the main system is block vote but at the same time they want the four communities to have shares in the seventy member parliament in accordance with their share of the population. This is done by adding eight seats to the parliament which are filled by the best runner-ups from groups which are underrepresented. There is an attempt to look to the political balance with a rather intricate system where four out of the eight are given to parties which won the highest share of the votes in the constituencies, and to the underrepresented communities. However, it is clearly possible that the allocation of the eight seats may change the political balance of the parliament. With block vote this cannot easily be avoided unless one goes for something like the Pakistani or Kenyan system. If one wants to maintain the block vote system as the general system of representation (which is not recommended due to the winner takes all quality) one good option could be to have a mixed system where at least the eight seats are filled from a List PR system based upon the same ballots or a separate ballot. Then the eight seats may still change the political composition but it will be according to a popular vote and not by random affects of the best runner-up arrangement.

Palestine has quotas for Christian in some of their multimember constituencies with FPTP (block vote) and Jordan has quotas for women and for Christians and Circassian275 in multi- member constituencies under SNTV. In both cases the best runner-up method is used across parties and in both cases a group representative of one party may push out a candidate from another party. This gave Fatah FPTP seats that would otherwise have gone to Hamas in 2006. A better way would be to either change to a list based system or to have a separate race (without separate voter register) for the group representatives.

In Lebanon, every seat is marked for a group representative. Even though the principle is block vote and best runner-up, the complexity for the voters to cast a valid ballot has in practise transformed the system into a party block vote system. The party alliances make deals on a combined list of candidates which for each constituency meets the quota requirements and they print their own ballots to reflect that. If all voters are using the privately pre-printed ballots and thus are loyal to the alliances’ deals the biggest alliance in that constituency will win all seats. In 2009, only one constituency had candidates elected from more than one alliance. In Nepal, the Maoists had this system as one of their options for the new constitution.

275 The Bedouin representation is from separate constituencies.

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In Singapore, most members of parliament are elected under a party block vote system where there are some requirements to ethnic representation of the lists. Party block vote is not just in reality but even formally a winner-takes-all system and the smaller parties will not be represented. The minority representatives will also always come from the biggest party of the constituency and the minorities may not feel that their vote is taken into account in a reasonable manner. In 2006 the ruling party won all seats in all multi-member constituencies.

The only reasonable alternative to such extensive use of quotas in multi-member constituencies is to combine them with a List PR system; such reform is being discussed in Lebanon (2011) and in Nepal that is the most realistic alternative for the future system, either with the country as a whole or the provinces as constituencies.

7.4. What May Work in Conflict Situations?

7.4.1 Power-Sharing Elements Consociational or Majority Democracy, this is a crucial question after conflict. The alternatives may be reflected in a complex combination of representation, devolution of powers and decision-making. This study has mainly looked into representation and decision- making. In countries which are discussed because of the representation of particular groups even federalism has been assessed (Bosnia and Herzegovina) but we have not included countries where federalism is the main element of a power-sharing agreement if there are no quota arrangements.

Should a consociational government be a permanent and inevitable feature or is it a step on the road to a majority based system where the ethnic, linguistic or confessional belonging has been made irrelevant? In Germany there is a consociational political culture even though it is not written into the constitution (except for what derives from the federal structure. The tendency to prefer broad coalitions to weaker but more political unified coalitions is a sign of this. Switzerland is also a long lasting example of a consociational system where four linguistic groups have been able to make common decisions while keeping their identity. However, the balance between the linguistic groups is mainly covered by unwritten rules where the formal rules deal with the balance between the cantons regardless of the official language of the cantons.276

In some countries, like Germany and Switzerland, the federal system with substantive devolution of powers is key to the consociational philosophy of governance. This also reduces the number of issues that may cause stale mate situations centrally. Unlike in Bosnia and Herzegovina and in Lebanon the formal requirements for regular decisions are majority, not consensus or qualified majorities (more than 50 percent). In Germany and Switzerland the consociational system is more of a political cultural issue, except for when the rules of game are to be changed. Constitutional changes and entering international organisations with supra-national powers in Switzerland need majorities in referenda both in total and a majority

276 However, the rotation of the membership of the cabinet among the linguistic groups was written into the constitution after a referendum in 1999.

193 in a majority of cantons277. The members of the cabinet (Bundesrat) are elected one by one by the parliament by majority vote according to the law278 but the unwritten rules secures that the members ‘reflect the people’ which means that the parties are represented according to their strength in the parliament in addition to the constitutional requirement of reflecting language groups279. The constitution also has a number of statements underlining principle of finding agreements by negotiations and cooperation (e.g. articles 44 and 55). In Germany changes to the constitution needs a two-thirds majority in both chambers, and laws affecting the financing or competencies of the states need to pass the upper house in addition to the principal chamber of the parliament.

7.4.2 Representation and Decision-Making The ideal principle in a peace agreement is often that state affairs shall be handled in consensus but such understanding may break down when tough decisions are to be made. In Nepal the peace agreement of 2006 and the interim constitution of 2007 the ideal is a consensus government including all the major parties (the seven party alliance and the Maoists). After the 2008 elections such a government was formed after two and a half months of negotiations but it resigned after less than nine months. After that a simple majority government not including the biggest party (the Maoists) was formed but came under tremendous pressure to resign to make space for a new consensus government. In May 2010 it resigned, but efforts to make a consensus government failed and in July the parliament started a vote for a majority prime minister following the fall-back procedure of the constitution. Only in February 2011 in the 17th vote a majority prime minister was elected and a UML and Maoist government was formed.280 When a majority was reached during the endless votes in 2010 the underlying reason was the intention of the peace agreement to form consensus based government and this in turn was linked to the unresolved issues of integration of the armies. Consensus is clearly not an efficient way of taking decisions but it is needed immediately after conflict in order to establish a political system acceptable to all major parties.

In Lebanon and in Bosnia and Herzegovina the consensus requirements are written into the agreements and the constitution. In Lebanon forming the government is a struggle and key decisions are only made after endless negotiations. In Bosnia and Herzegovina it is the decision-making in parliament which suffers from the consensus requirement and decisions were for twelve to thirteen years after the war only made by the international High Representative according to his power to enact laws (the Bonn power)281. Consensus rules

277 The constitution articles 140 and 142.

278 Federal law on the parliament (Bundesgesetz über die Bundesversammlung) Article 132, as per 1 May 2011 279 Article 175,4

280 This government resigned in August the same year and new negotiation on a consensus government failed. At the end of August a new majority prime minister was voted in by majority vote.

281 Nobody knows what would have happened had the High Representative not enacted that many laws, see the discussion in the in-depth study.

194 were key elements of the peace agreements and possibly condition for the peace. However, the long term vision of reducing the confessional and ethnic basis for decisions could have been more clearly spelled out with a roadmap for how to reduce the ethnic element. In Lebanon the Taif agreement does have such a vision but in Bosnia and Herzegovina the Serbs and to some extent the Croats have at times rather tried to move the country in the opposite direction.

Bosnia and Herzegovina has a federal structure of two entities with few duties given to national level and the residual powers given to the entities. In order to make a well functioning national state the central government is far too weak and a number of attempts have been done to strengthen the central power. The only consistent supporters of this system today are the majority of the elected Serb representatives from Republika Srpska. A few initiatives to strengthen the central powers succeeded but since 2006 they have all failed. A federal structure was clearly the only possible solution for peace in Bosnia and Herzegovina and it was part of all peace negotiations also before Dayton. What is more uncertain is if the actual lists of power-sharing elements between the centre and the entities could have been made in such a way that the state at the central level could function, or if a roadmap for reform could have been worked into the agreement (e.g. a Dayton II).

In Lebanon, consensus rules are seen in general as a necessity and the costs of reduced efficiency are by many stakeholders seen to be worth taken even if they share a vision of a state where such arrangements are unnecessary.

Burundi is another interesting case, not least with the contrast to Rwanda. Both countries came out of devastating conflicts between Hutus and Tutsis but they chose very different models for reconciliation. In Burundi rigorous quotas for the two conflicting groups are combined with a two-thirds majority requirement for all decisions in parliament. That insures that no ethnic group can impose decisions without some support from the other group. In Rwanda, they chose to introduce strong regulations against any divisive laws, rules and parties. The idea was, instead of defining the groups and securing representation, to regulate that all people are equal and that the political system should not recognise groups at all. Parties are not allowed to be based on group identity and they cannot discriminate against any groups. Decisions in parliament are taken based upon regular majority rules.

Burundi and Rwanda are not rid of their political or ethnical problems. It is too early to make an assessment of which of the two models (if any) would work since the complexity of the current issues go beyond the ethnic dimension only. It may be that Rwanda is hiding the real underlying problems by leaping into a civil society pretending not to see ethnic divide and base the system on individual rights only while Burundi has introduced rules which cannot possibly create an efficient parliament. However, none of the two countries are well functioning democracies and one may therefore not draw conclusions based upon the different paths chosen as if their models were free and democratic.

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The democracies which have practised a consensus model (written or unwritten) over time have not had restrictions on regular decision-making beyond regular majorities.282 Only constitutional changes would require special majorities and the constitution would often define a substantial devolution of powers in particular within federal states. After conflict rules restricting a larger class of decisions may be inevitable but they can hardly underpin a functioning state in the long run. The following should be considered when qualified majorities are introduced beyond constitutional changes:

 The scope of decisions where qualified majorities are required should be clearly defined and restricted to such decisions which may threaten the identity and freedom of a group.  The rules should either have a time stamp or some other mechanisms for moving into more regular systems.  As an alternative to qualified majority within bodies devolution of well defined powers may be more carefully worked out.

7.4.3 Side Effects of Quotas which May not be Avoided

In general power-sharing agreements may have unwanted side effects. We already discussed those connected to decision-making. Here we will look closer into some side effects of quota rules which may be regrettable but still inevitable.

First of all quotas will always limit the voters’ and the parties’ choice. Quotas, regardless of whether it is a separate race, requirements on lists or results, bring in a restriction to the right to vote and stand for elections. If the parties have to nominate group representatives on electable position on a list the choice is already limited. This is why quotas are still subject to political criticism from a principle point of view. However, these are effects which internationally are held to be acceptable if the long term aim is equality or reconciliation.

When every seat in FPTP elections are assigned to a confession like in Lebanon one may argue that this restrict the voters’ choice more than what is acceptable. Similar quotas applied to List PR systems would offer more flexibility and the voters’ choice would be higher.

Systems totally excluding segments of voters are not common283, but it is common that a system affects the equality of the vote. If a group of voters have the possibility to cast a vote in a general election and an additional vote for a group representative such voters will have extra weight.284 If a group is over-represented in an elected body, their voters’ have a higher weight than others (e.g. Croats in the House of Peoples of Bosnia and Herzegovina). This is

282 But requirements to pass laws in a second chamber based upon representation of provinces or states rather than equal vote do exist.

283 But it exists in Bosnia and Herzegovina for the House of Peoples and the Presidency.

284 In the case of indirect elections in a number of African countries, it is the organised members of the groups which have these extra possibilities, but we do not discuss that further since we do not recommend such appointments at all.

196 an intended quality of the system and is mostly seen as acceptable if it is necessary for promotion of equality of peace.

The limitation to stand for elections which derives from limited quotas on party lists is generally regarded as acceptable. With a separate race for a group where all can vote but only group representatives can stand for elections gives this group an advantage provided they can also run in the general race. The Maoris in New Zealand have these double possibilities, which are generally seen as serving the overall purpose of providing representation for otherwise excluded groups, and they have eventually even produced overrepresentation. A more problematic case is the system in India where more than twenty percent of the single- member constituencies are reserved for scheduled tribes and castes. That means that persons not belonging to those groups cannot stand for elections in the earmarked constituencies. If he or she lives in the constituency and feel that their chance would have been better if the person were able to run in his or her home constituency. Under the Westminster electoral model it is on the other hand quite common to run outside the candidate’s own constituency and this has been regarded as acceptable in India.

We have stated earlier that the quotas should not change the political party composition of the parliament. The examples of such replacement are mainly where a best runner-up system makes a person with fewer votes replace one with more votes from another party. One should make attempts to find alternatives to such systems. When there is a separate race for minorities this arrangement may clearly give a different political result than if there had been only one main race. This is generally acceptable since the result reflects the votes in that special race. However, one may argue that some of the systems where the special race is conducted under another system of representation than the main race, the effect on the party representation of the separate race becomes unnecessarily significant. The separate race in the Philippines (List PR) gives an advantage to some small parties and the separate race in Niger (FPTP) gives an extra advantage to the largest party. In conclusion, the separate race should as far as possible follow the same system of representation as the main vote.

The last side effect we want to discuss is the distance between the voter and the person elected, the accountability. Generally, accountability is used as the main justification for FPTP in single-member constituencies but also within a List PR system the accountability is strong if it is known to the voters which candidates are elected if the party wins a certain number of seats and the constituencies have a reasonable magnitude. With quotas on the result this may be slightly more complicated since there may be a best runner-up system within the list to accommodate quota requirements. This is acceptable as long as the rules are clear and the sequence on the list (or votes collected in an open list system) is followed with the exceptions deriving from the quotas. These restrictions are not more severe than restrictions on the nomination before the elections.

Pakistan and Kenya have introduced minority representation which will not change the party- wise composition of the parliaments elected according to FPTP. The minority (and in Pakistan also the women) seats are filled from predefined lists in proportion to the parties’ representation in parliament. The voter cast a vote for a candidate in a single-member

197 constituency and that vote will also influence the choice of minority representatives. The vote is counted for two tiers of an election; it is the result in form of seats in the parliament which is decisive. This means that in Pakistan, the Hindus and Christians are represented from the Muslim League, the PPP, etc, regardless of whether the parties show any interests in minority rights. The representation seems to be unnecessarily indirect and illustrates the inbuilt problems with combining quotas with FPTP. If one has only one minority group, it could be solved by a separate ballot for the minority race but with a number of groups, that will become too complicated. Alternatively, one could have a separate List PR race combining all minority representations. Then one would have to accept that the two systems are different but it would improve the accountability. One more fundamental change could be to introduce a regular mixed system with half the parliament elected in FPTP and half with List PR and then build in the quotas in the List PR part of the election. In such case there should be a political will to actually introduce a strong element of proportional representation even for other reasons than to accommodate group representation and the group representation would integrate elegantly into the system. In Sudan, a mixed system was introduced as a compromise between those supporting a plurality system and those favouring proportional systems but they unnecessarily introduced a separate race for women instead of integrating women’s quotas in one single List PR race.

7.5 The Quota Tool Box In the following we will give some recommendations related to defined situations. We will not cover such solutions which have unacceptable or unnecessary side effects as described earlier. Only representation and quotas are presented, not devolution of powers and decision- making rules.

7.5.1 Representing Large Groups after (or before) Conflict The groups are assumed to be large in the sense that they are more than minor, marginalised groups.

The size of the quotas After conflict the purpose of the system may be to balance the representation of the conflicting groups. This may be done numerically by the quotas and it may be underpinned by decision-making rules. Sometimes it may suffice to secure the groups a share in the parliament according to their share of the population, but overrepresentation of the smallest group may also be institutionalised (Burundi, Lebanon, The House of Peoples in Bosnia and Herzegovina).

Who elects the representatives? It is not obvious that the voters of a group should elect their own representatives. The dynamics of the system of representation may be weakened by splitting the electorate by groups. Instead the group representation may come as an add-on to a general system of representation. However, if the distance between the vote of the smallest group and their representatives is too large, there may be justified complaints that the majority elects even the minority’s representatives (Lebanon, Pakistan).

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Geographically concentrated groups If the groups are geographically concentrated delimitation of constituencies (single- or multi- member) may be sufficient to create the representation needed. In order to balance the groups some areas may be over-represented relative to their strength in the population. Any system of representation may work in this case and even though the representation is geographical the effect is that the group representatives are mainly elected by the group voters. The dynamics may in this case be quite good since the representation formally is connected to geographical areas and if the population gets more mixed the system does not need to be adjusted since the changes probably reflects reconciliation between the groups.

Separate race for scattered group If the group which needs protection is scattered around the country285 one may introduce a separate race for the minority. The separate race does not necessarily have to be with a separate ballot, but the results may be calculated separately for the group representatives. If only the candidates are identified in terms of groups and not the voters, it means that everybody is voting for everybody. The problem may then be that the smallest group feel that the majority elects their representatives. This will effect will be largely dependent on the system of representation. There are three possibilities:

1. There is one ballot only and the group representation is fixed by counting the ballot twice, for the general and the separate race (Kosovo). 2. There are two races, one general and one for the group and votes are cast by all voters (women in Kenya). 3. There are two races and the voters choose in secrecy which race to vote for (Presidential election in Bosnia and Herzegovina from the Federation entity).

The next option is that the group races are also defined by separate electorates. Voters are then registering as per their identity and vote in that race only (Fiji, where they vote both in separate race and in a general vote). The alternative is to make such registration a personal choice (Croatia and New Zealand). In the first case one may argue that ethnic voting sharpens the divide rather than reconcile (which is part of the critics in Fiji): The second option is a milder form but with this alternative the electorate is also segregated. The advantage by the separate electorate is that groups elect their own representatives but the segregation may be unnecessarily sharp. A better alternative may be to implement quotas embedded in the general representation as discussed below.

Quotas imbedded in the electoral system Quotas integrated into the general electoral system are implemented with fewer side effects within proportional systems than in majoritarian ones. Proportional systems are also more capable of automatically giving minorities a fair representation and thus make quotas less necessary. The choice of the general system of representation therefore becomes important. Instead of adding group representation on top of the system of representation one should consider the system of representation as a whole.

285 Or one does not want to introduce constituencies which was the case in Kosovo.

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Plurality and majority based systems cannot easily be combined with group representation without making a separate race. One way is to mark certain constituencies for group candidates only (India). The disadvantage is that all citizens living in the constituency cannot run in their home constituency but have to choose another one. Nevertheless it is a possible solution.

Another way of securing a certain representation of a group under FPTP in single-member constituencies could be to let candidates run in tickets of two (or in principle more). The ticket is ranked and if in the country as a whole a pre-set quota for a group (or more groups) is met the seat of the winning ticket is filled with number one on the list. If the quota is not filled, a number of such candidates who belong to the group and are ranked as number two on winning tickets are elected instead. The constituencies where this change is made should be those where the ticket won with the least convincing margin. This system would not alter the political composition of the parliament, will not limit the right to stand for election and those ranking first on tickets with high voters’ support will be elected. Only those with less support are altered.286

In the block vote system, quotas may change the political composition of the parliament and party block vote is not recommended because of its winner-takes-all quality (as is block vote in a slightly milder form). STV and SNTV will also have the possibility to change the political composition if combined with quotas by first runner-up arrangements.

Within List PR systems it is possible to implement quotas which will only effect the representation within the party, not across parties. The political distribution of seats will therefore not be effected by quotas on nomination or results.

After a conflict a good representation of the groups in conflict is crucial. This may be more important than providing for systems which produce overrepresentation of the largest party (and therefore produce a parliament where it may be easier to form government) or to have the direct accountability between voters and single MPs. Lijphard argues that there is a ‘scholarly consensus against majoritarian systems in divided societies”.287

Alternative vote (AV) has been suggested by some (e.g. D. Horowitz) as a mean of promoting moderation and reconciliation. Fiji has such a system but the country’s political system has not proven to be very successful, partly because of the ethnic formula in one part of the election and partly because people feel that the delimitation of AV constituencies of the general part of the election is artificial and done to achieve a certain political result288. The system is furthermore basically a majoritarian system with the benefits for large parties and ethnic groups which come with it.

286 The system has not been used but has been discussed in Kenya to secure female representation.

287 Lijphart 2008: 78.

288 See Chapter 3 for a more thorough explanation.

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7.5.2 Representing small minority groups If the purpose of representation is to represent minorities which would otherwise be excluded there are more systems to choose from. Again the general system of representation is decisive for how easily and elegantly such representation may be incorporated. List PR gives more automatic representation than majority based systems and minimum quotas for excluded minorities can be built in with few negative side effects.

Many of the same questions as we rose for the larger groups are relevant here as well, but some of the side effects may be less significant.

For small groups, it may be important that there is a firm link between the minority voters and those elected. A separate race with a separate electorate might therefore have an attraction. However, with many minority groups within the electorate that may become very complicated. If one instead marks constituencies reserved for minorities (India), the effect may be that the general electorate elects the minority representatives but that may still work well if the vision is to reduce the divide rather than deepen it. A general recommendation is to group minorities together in their representation if they have similar political interests even if they culturally are different in order to reduce the complexity.

If the minority is geographically concentrated a separate constituency (or constituencies) may be sufficient (Gagauz in Moldova).

For minorities scattered across the country it might be better to force parties to include the minority candidates on their lists, provided the system is List PR. The minority may then either work within the parties to insure good representation and be careful in the vote to honour such parties which take their representation seriously. In the worst case the minority may choose to from their own party which in List PR system may have a chance to get representatives elected. In such cases, one may lower the threshold for lists representing minorities (Germany and Poland).

If there is a need to represent a number of smaller minorities in the parliament one may benefit from taking a holistic view on the system of representation. In a number of countries, one has chosen a rather artificial add-on to the general system and by doing so introduced weak accountability (Pakistan and Kenya)289. By shifting from majoritarian systems to proportional systems the need for special quotas may be reduced and the possibility to integrate quotas without serious side effects would be much better. In other cases delimitation of constituencies honouring the minorities’ needs could be the most straight forward solution, even combined with a certain overrepresentation from minority dominated areas.

289 Or by appointments which offer no accountability at all (e.g. Nepal in 2008)

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7.6 A Feature of Representative Systems In sum, the most important is that the voters are regarded the masters of a representative system. No systems should be designed in such a way that representation comes out of a pre- negotiated deal only. Restrictions of the voters’ choice are acceptable but reducing the powers of the vote to mere symbols is not. One chamber of parliament should be fully elected by the voters under a predictable and transparent system with reasonable accountability and reasonable representation, along political and other relevant dimensions.

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Appendices A: A Method for Quotas on the Total Result in a List PR System Open and closed lists

In this Appendix we assume that the candidate lists are ranked. If the lists are ‘closed’ the seats won by a list are filled from the top of the lists. With ‘open lists’ the voters are able to give some priority vote to individual candidates within the list and the thereby change the preset order. If the voters are not giving such votes the party ranking prevails.

Requirements for meeting quotas when composing a list would normally only have an effect if it is followed by a requirement to the placement on the list. If there is a Christian Quota of ten percent in an otherwise predominantly Muslim country it will not help if all the Christian candidates are put at the end of the list at places where they have no chance to be elected. It is therefore common to have rules like the following:

Among the first ten candidates at least one should be Christian, among the first twenty candidates at least two should be Christian, etc.

With open lists the voters may change the ranking on the list and therefore the list may not return as many from the group with quota as intended. This may be acceptable. In Bosnia and Herzegovina the female representation is slightly reduced by the voters’ choice but not drastically. One may, however, still enforce the quotas by prescribing a best runner-up system for the group candidates within the list in order to meet the requirements. That would mean that the voters’ choice in the open list system is limited by the quotas.

Quotas within lists

Some quota requirements would apply to the result for each political party list. This is common for gender quotas and also for other group representation for example in Nepal. Out of the number of seats won by a list a minimum percentage need come from specified groups. Now, if it is prescribed that for example 10 percent of the seats won by each party have to be Dalits, there is no guarantee that the parliament will have at least 10 percent Dalits. Dependent on the rules for treating fractions the rule may in worst case only kick in for parties having won ten seats of more. Therefore only big parties will be close to return 10 percent Dalits and even they might be well below if they are required to return only two if they win 29 seats.

This problem can partly be overcome by requiring more Dalits at the top of the candidate lists that further down. This is done for women’s representation in Palestine where they need one Christian among the first three candidates, two among the first seven, three among the first twelve and then one more for each step of five. The intention was to get approximately twenty percent women, but even this rule is no guarantee for a minimum representation.

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Quotas across lists

If one want to give a full guarantee that a group gets a fixed representation290, quotas may be applied to the result across parties. This has been done in the Mostar city council election (which had fixed quotas for three groups), in local elections in Palestine (with quotas for Christians in some municipalities), and could be used in Lebanon to secure a fixed group result for each constituency.

With fixed quotas by-passing candidates on some lists is inevitable. There are simple methods to achieve this by using a division method for the distribution of seats between lists combined with quotas. A division method would rank the mandates from the strongest to the weakest and the seats can be filled in the same sequence. One such division method which produces a result close to the method of largest remainder is the Sainte-Laguë method. By this method the votes for each list are divided by the numbers 1,3,5,7, etc. to produce the ‘quotients’. The quotients are ranked from the highest to the lowest, and the seats are allocated one by one according to this ranking until all seats are distributed.

Let us illustrate by an example: The requirement is that at least 30 percent of the members of the assembly represent a Christian group. There is, in other words, a maximum quota of 70 percent Muslim in the assembly. Let us consider an election in a constituency with twelve seats. Out of these at least four should be Christian (and maximum eight may be Muslim). In the example we will use the Sainte-Laguë division method. The votes for each party list are divided by 1, 3, 5, etc.

290 The quota may be a minimum requirement for one group or an exact requirement for all groups.

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Divisors Party 1 Party 2 Party 3 Party 4

1 5000/1 3600/3 4000/2 500/13

3 1667/4 1200/6 1333/5 167

5 1000/7 720/9 800/8

7 714/10 514/16 571/11

9 555/12 400/17 444/15

11 455/14 327/20 364/19

13 384/18 277 307/21

15 333/20

17 294/22

Total number of seats 5 3 4 0

The number after the oblique indicates in descending order the size of the quotient. The first mandate is given to the party with the first quotient and so forth. The candidates elected are those ranking highest on the party list. However, if one maximum Muslim quota is filled, one will simply delete from the list all remaining Muslim candidates. If there is nobody left on that list, the party loses the mandate, and the mandate goes to the list with the next quotient. If there in the end are no more candidates to fill the quota, the seat remains empty.

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In the example, it may go like this:

Candidate number on list Party 1 Party 2 Party 3 Party 4

1 Muslim/1 Christian/3 Muslim/2 Christian/13

2 Muslim/4 Muslim /6 Muslim/5 Muslim

3 Muslim/7 Muslim/9 Muslim/8 Muslim

4 Muslim/10 Muslim Muslim/11 Muslim

5 Muslim/12 Christian Muslim/14 Muslim

6 Muslim/15 Muslim Christian Muslim

7 Muslim Christian Muslim Muslim

8 Muslim Muslim Muslim Muslim

9 Muslim Muslim Muslim Muslim

10 Muslim Christian Muslim Muslim

11 Muslim Muslim Christian Muslim

12 Muslim Muslim Muslim Muslim

Total number of seats 3 3 5 1

After having distributed the first nine mandates, eight of them went to men. The maximum quota for men was reached and the remaining three had to go to women. Party A was entitled to five seats, but since they did not have women on the list, they lost two of them. Parties B, C and D were balanced and received either what they were entitled or more. Parties C and D were the ones which were next to gain seats and they therefore gained one each of the two seats lost by Party A.

One advantage of this system is that it would allow women’s parties to run without restriction. A disadvantage is that it will clearly cause agony if a party loses seats. It may also not get the positive psychological effect before the elections by showing to the electorate that women are running at prominent places for parliament.

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The legal text to regulate this could be as simple as this:

1. The number of votes obtained by a list is divided by 1, 3, 5, 7, 9, etc. up to the number of candidates on the list. The numbers resulting from these series of divisions are “quotients”. The quotients shall be ranked in order from the highest quotient to the lowest quotient. Seats shall be distributed, in order, to the highest quotient remaining until all the seats have been distributed.

2. The seats are filled by candidates one by one in the order they are won according to Section 1 by filling the seats according to the ranked lists. If during this process all seats of a group is filled all candidates of that group are deleted from the list of all remaining candidates from all lists. If there are no more candidates on a list to fill the seat that list will go to the list next to win a mandate according to Section 1.

In that way, it is the strength of each mandate which counts. The strongest mandate will always belong to the biggest party and therefore that party will get their first candidate elected. After that it depends on the strength of subsequent mandates.

207

B: Abbreviations of Names of Electoral Systems BV Block vote

FPTP First-past-the-post

List PR List proportional representation

MMP Mixed member proportional system

PBV Party block vote

SNTV Single non-transferrable vote

STV Single transferrable vote

TRS Two round system

208

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The Authors: Elec

Nils A. Butenschøn is professor of International Relations and Director of the tor

Norwegian Centre for Human Rights, Faculty of Law, University of Oslo. His al Quotas and the Challeng publications are mostly within the academic field of nationality conflicts and state formations. The theoretical focus is on questions of citizenship in deeply divided societies, the empirical focus is on the Middle East. Examples include: Butenschøn, N., Davis, U., and Hassassian, M. (eds.): Citizenship and the State in the Middle East. Approaches and Applications, Syracuse, N.Y. (2000); Butenschøn, N. and Vollan, K., Democracy in Conflict, NORDEM Special Report, NCHR, University of Oslo (2006); Butenschøn, N., Midtøsten. Imperiefall, statsutvikling, kriger, Universitetsforlaget (2008) [The Middle East. The Fall of Empires, State Formations, Wars, Oslo University Press, in Norwegian].

Kåre Vollan is Director and owner of the company Quality AS. He has been es of Democr working on elections in thirty countries and territories including Nepal, Kenya, Iraq, Palestine, Sudan, Egypt and Bosnia and Herzegovina. He has since 2006 been advising the Election Commission and politicians in Nepal, in particular the group representation system. From 1999 to 2000 Vollan was Deputy Head of the

OSCE Mission to Bosnia and Herzegovina organising two elections. In the period a tic 1996 to 2009 he headed twelve OSCE/ODIHR and NORDEM international election T r observation missions or teams. From 2003 he has issued opinions on election ansition in C laws for the Council of Europe Venice Commission. Vollan, who is an applied mathematician by profession, has published a number of articles and reports on electoral and decision making issues.

Also by the same Authors: onflic Nils Butenschøn and Kåre Vollan (eds.): Interim Democracy. Report on the

Palestinian Elections January 1996, Human Rights Report No 7 1996, Norwegian t -Ridden Societies Institute of Human Rights, University of Oslo.

Nils Butenschøn and Kåre Vollan: Democracy in Conflict. Report on the Elections for Local Councils, President, and Legislative Council in the Occupied Palestinian Territory 2004-2006, NORDEM Special Report 2006, NCHR, University of Oslo.

The Front Page Photo: A

A handshake between two senior officials on the alestinianP presidential Election N

Day in January 2005 following President Yasser Arafat´s death. Both thumbs carry O R indelible ink showing that they have voted and the handshake may symbolise D E the overall political agreement to carry out an election, even under occupation. M

(Photo: Kåre Vollan) P E C I A L

ISBN 978-82-8158-071-8 R E P O R T

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