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Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies
A NORDEM SPECIAL REPORT 2011
Nils A. Butenschøn and Kåre Vollan
With contributions by Bjørn Erik Rasch and Tonje Merete Viken
Electoral Quotas and the C
hallenges of Dem
ocratic Transition in Conflict-Ridden Societies A
NO
RDEM
SPECIA
L REPORT 2011
The Norwegian Centre for Human Rights
Nils A. Butenschøn and Kåre Vollan:Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies A NORDEM Special ReportEditor: 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/
NORDEM is a programme at
The Norwegian Centre for Human RightsThe Faculty of LawUniversity of OsloP.O. Box 6706 St. Olavs plassNO-0130 OsloNORWAY
Front page photo: Kåre Vollan. Printed by permission
ISBN 978-82-8158-071-8
Technical consultant: Christian Boe Astrup/NCHRPrinted by: 07 Gruppen AS
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
2
3
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
4
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
5
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
6
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
7
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.
8
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?
9
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
10
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.
13
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.
14
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.
16
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.
17
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.
19
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.
20
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
21
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)
23
– 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.
24
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.
26
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.
27
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 pre-
defined 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.
32
Table 2.1: Electoral systems and types of requirements to secure group representation.
System of
representation
(electoral
systems)
Earmarked Seats
(Separate race)
Nomination requirements Results
requirements,
best runner-ups Without
separate
voters
register
With
separate
voters
register
In percent Placement
Single-member
constituencies
with
plurality/majorit
y
India Fiji, New
Zealand
Not efficient,
women in
Nepal before
2008
This is handled
under
earmarked
seats
Block vote Lebanon, in
combination
with best
runner-up
Possible but
not efficient
Possible but
not efficient
The Palestinian
Territory
Party block vote Singapore
List PR closed Kosovo Croatia Does not
guarantee
representatio
n
Bolivia,
women
Municipal
election in the
Palestinian
Territory, Nepal
List PR Open Does not
guarantee
representatio
n
Women in
Bosnia and
Herzegovina
STV
Mixed systems
(MMP and
Parallel)
The
Palestinian
Territory,
women
The Palestinian
Territory,
women
Nepal
SNTV Jordan
33
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.
34
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.
36
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.
37
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
assembly
Electoral System Basis of Quota Type of quota Democracy Index
BOLIVIA
Plurinational
Legislative
Assembly
(Asamblea
Legislativa
Plurinacional)
Chamber of deputies (Cámara de Diputados)
Parallel
(List PR+FPTP)
Ethnicity Earmarked seats
Partly free Gender Quota on lists
Senate (Cámara de
Senadores) No quota No quota
COLOMBIA
Congress
(Congreso)
House of representatives
(Cámara de
Representantes): FPTP
Ethnicity
and ‘small parties’
Earmarked constituencies,
earmarked seats
Partly free
Senate (Senado de la
República): List PR Ethnicity
Earmarked constituency,
earmarked seats
VENEZUELA
National Assembly
(Asamblea Nacional):
Parallel
Ethnicity Earmarked constituency,
earmarked seats Partly free
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).
38
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.
40
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.
41
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
Electoral System Basis of Quota Type of quota Democracy
Index
AFGHANISTAN
National Assembly
(Jirga)
House of
Representatives (Wolesi Jirga)
SNTV
Social Group
Earmarked seats
Reserved constituency for
nomads
Not free House of Elders (Meshrano Jirga)
Indirect TRS +
presidential
appointment
No quota
FIJI
Parliament
House of
Representatives
AV and FPTP
Ethnicity
Separate race
and voters registers FPTP
and multiethnic delimitation
in AV constituencies
Partly free
INDIA
Parliament (Sansad)
House of the People (Lok Sabha)
FPTP + Executive
Appointment
Social group and
ethnicity
Earmarked constituencies
for scheduled castes and
tribes
Free Ethnicity Earmarked seats, executive
appointment
Council of States (Rajya Sabha)
Indirect, STV +
Executive Appointment
Experts and
particular skills
Earmarked seats, executive
appointment
NEPAL
Parliament (Sansad)
Constituent Assembly
(Sambidhan Sabha)
Parallel (FPTP and List
PR) plus appointments
Social group,
ethnicity and
linguistic groups
Requirements to lists
Nomination percentage
Selection from party lists
composed after elections to
fill quotas
Partly free
Gender
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.
42
NEW
ZEALAND
House of
Representatives
MMP
Ethnicity
Separate race
earmarked constituencies Free
PAKISTAN
Parliament (Majlis-E-
Shoora)
National Assembly:
Direct FPTP election +
indirect List PR
representation
Religion
List PR in one nationwide
constituency from separate,
closed party lists, based on
the distribution of seats in
parliament
Partly free Gender
List PR in reserved
constituencies from
separate, closed party lists
based on the distribution of
seats in parliament
Senate:
STV Indirect
Gender Reserved seats
Social Groups Reserved seats
PHILIPPINES
Congress
(Kongreso)
House of
Representatives (Kapulungan Ng
Kinatawan):
Parallel (Mostly FPTP
but List PR for small
parties)
Small parties with
purpose to
accommodate social
groups
Reserved constituency with
List PR
Partly free
Senate
(Senado): Block vote No quota
SAMOA
Legislative Assembly
(Fono): Parallel
(FPTP+BV)
Ethnicity
Earmarked constituency,
separate race
Free
SINGAPORE
Parliament
Parallel (FPTP+PBV)
+
appointments
Ethnicity
Reserved constituencies
with list requirements and
Party block vote
Partly free
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.
43
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.
44
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.
45
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 <accessed 5 May 2010>.
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.
49
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
50
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.
51
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.
52
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.
53
Table of systems Central Eastern Europe
Country Electoral System Basis of
Quota Type of quota
Democracy
Index
BOSNIA AND
HERZEGOVINA
Parliamentary assembly
(Parlamentarna
Skupština)
House of
Representatives
(Predstavnički Dom )
List PR with
compensation
Gender
Nomination percentage and
rank order
Partly free
House of Peoples
(Dom Narodna)
Indirect List PR
Ethnicity Earmarked seats
CROATIA
Croatian parliament
(Hrvatski Sabor)
List PR
Ethnicity
Earmarked seats, separate
race, separate voters
registers
Free
KOSOVO
Kosovo Assembly
(Kuvendi i Kosovës)
List PR
Ethnicity Reserved seats
Separate race
Partly free
Gender
Nomination percentage and
rank order
Requirements to result
BRU to fill quota
MONTENEGRO List PR Ethnicity Reserved constituency Free
POLAND
Parliament
(Parlament)
Principal chamber
(Sejm)
List PR
Ethnicity and
language Threshold exemption
Free Senate
(Senat)
Block Vote
No quota No quota
ROMANIA
Parliament
(Parlamentul)
Chamber of Deputies
(Camera Deputatilor)
List PR
Ethnicity and
language
Earmarked seats, best
runner-up
Free Senate
(Senat)
List PR
No quota No quota
SERBIA
National Assembly
(Narodna skupshtina)
List PR
Ethnicity Lower threshold for
minority parties
Free
Gender
Requirements to
nomination percentage and
rank order
SLOVENIA
Parliament
(Parlament)
National Assembly
(Državni zbor)
List PR
Ethnicity Separate race
earmarked constituencies
Free National Council
(Državni svet)
Indirect elections by
electoral colleges
Interest groups Reserved seats
54
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.
55
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.
56
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.
57
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.
60
Table of systems Middle East and North Africa
Country Electoral System
Basis of Quota Type of quota Democracy
Index
EGYPT
Parliament
(Majilis al-Sha’ab)
People’s Assembly
(Majilis al-Sha’ab)
Direct, two-member
majoritarian (TRS) +
presidential
appointment
Social group
Requirements to
result
Best runner-up
Not free
Gender
Earmarked seats
Separate race in
earmarked
constituencies
Advisory Council
(Majilis al-Shura)
Direct, single-
member majoritarian
(TRS) + presidential
appointment
Social group
Requirements to
result
Best runner-up
JORDAN
National Assembly
Chamber of
Deputies
(Majlis al-Nuwaab)
SNTV in multi-
member
constituencies
Religion
Earmarked seats
Earmarked sub
districts
Not free (partly
free in 2009) Gender Best runner-up
House of Notables
(Majlis al-Aayan)
Appointed by the
King
No quota
LEBANON
National Assembly
(Majlis al-Nuwaab)
Block vote in multi-
member
constituencies
Religion
All seats are
earmarked in multi-
member
constituencies
Partly free
PALESTINIAN
AUTHORITY
Palestinian
Legislative Council
Parallel (List PR /
Block vote)
Religion
Requirement to the
result, best runner-
up
Not ranked
SYRIA
People’s Assembly
Block vote
Social Group
(workers and farmers) Not free
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
61
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,
62
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 <accessed 12 April 2011>.
63
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.
64
Table of systems Sub-Saharan Africa
Country and
name of
assembly
Electoral System Basis of
Quota Type of quota
Democracy
Index
BURUNDI
Parliament
(Parlement)
National Assembly
(Inama NshingmateKa)
List proportional + appointments
Ethnicity
Requirements to candidate
nominations of the two major
ethnicities
Requirements to the result:
Supplementing from lists to
top quota
Earmarked seats: Appointment
of representatives of the small
group Twas from predefined
lists
Partly free Gender
Requirements to candidate
nominations Requirements to
result
Senate (Sénat) Indirect, double
member majoritarian (three
round system) + appointments
Ethnicity
Earmarked seats
Indirect elections by electoral
colleges
Separate race for Hutus and
Tutsis Appointment of Twas
from predefined lists
Gender
Requirement to
results Supplementation by
the election commission from
lists to top quota
ETHIOPIA
Parliament (Mekir
Bet)
House of People’s
Representatives
(Yehizbetewekayoch Mekir Bet)
Single-member plurality (FPTP)
+ indirect elections
Ethnicity
Earmarked seats with Indirect
elections to ensure quota
Not free
(partly free in
2011) House of Federation
(Yefedereshn Mekir Bet)
Indirect, single-member plurality
(FPTP) + indirect elections
Ethnicity
Requirements to results
Electoral colleges to ensure
quota for small ethnic groups
KENYA
Parliament
House of Representatives
FPTP + representation based
upon the representation of the
directly elected members
Social
groups
List PR from separate, closed
party lists, based on the
distribution of seats in
parliament
Partly free
Gender Reserved seats FPTP
Senate
FPTP + representation based
upon the representation of the
directly elected members
Social
groups
List PR from separate, closed
party lists, based on the
distribution of seats in
parliament
Gender
List PR from separate, closed
party lists, based on the
distribution of seats in
parliament
MAURITIUS
National Assembly
Multimember plurality
(block vote)
Ethnicity
Requirements to results for major
groups
Best runner-up
Free
NIGER
National Assembly
(Assamblée National)
Mixed (List PR/FPTP)
Ethnicity
Earmarked seats
Earmarked constituencies with FPTP
for small groups Partly
free
Gender Requirements to candidate
nominations
RWANDA
Parliament
(Inteko Ishinga
Amategeko)
Chamber of Deputies
(Umutwe w’Abadepite)
Direct election with
List PR in one single
constituency
Indirect election
Youth and disabled
Earmarked seats
Indirect elections based on FPTP by
interest groups
Not free
Gender
Earmarked seats
Indirect elections based upon FPTP
by electoral colleges in
administrative units and requirements
to result in the regular race
The Senate
(Umutwe wa Sena)
List PR
Indirect and
appointments
Social groups
(Historically
marginalized groups
and academics)
Requirements to candidate
nominations
Requirements to result
Appointment by president and
indirect elections by interest groups
to fill quota
Gender
Requirements to candidate
nominations
Requirements to result
Indirect elections based by local
councils
UGANDA
National Assembly
National Assembly
Direct, single-member
plurality (FPTP) +
indirect elections +
appointments
Special interest
groups
Earmarked seats
Indirect elections by electoral
colleges
Partly
free
Gender Earmarked seats
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, <last
accessed 23 March 2010>. 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
67
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.
68
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.
69
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 <accessed 31 May 2011>.
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.
71
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 <accessed 28 may 2010>. 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 <last accessed 31 May 2011>. 99
Van der Beken 2010: 91-92. 100
Van der Beken 2010: 14-16.
72
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 <accessed 28 may 2010>. 104
European Union Election Observation Mission, 2005: 19.
73
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/ <accessed 26 March
2010>. 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.
76
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 <accessed 30 March 2010>.
115. African Elections Database http://africanelections.tripod.com/ne.html <accessed 9 August 2011>
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 <last accessed 1 June 2011>.
77
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 <last accessed 9 March 2011>. 119
IFES 2010.
120 African Elections database, http://africanelections.tripod.com/ne.html#2011_Presidential_Election <accessed
9 August 2011>
78
(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.
79
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.
80
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.
81
Table of systems Western Europe
Country Electoral System Basis of
Quota Type of quota
Democracy
Index BELGIUM
Federal
parliament
(Parlement
fédéral
Federaal
Parlement
Föderales
Parlament)
House of Representatives: List PR
(Kamer van
Volksvertegenwoordigers / Chambre
des Représentants)
No quota
Free
Senate: List PR
(Sénat / Senaat) Language
Earmarked seats,
separate races
CYPRUS
House of representatives: List PR
(Vouli Antiprosopon) Ethnicity
Separate race with
separate voters registers Free
GERMANY
Parliament
(Bundestag)
Parliamentary Assembly: MMP
(Bundestag)
Ethnicity and
language
Threshold and support
signature exemptions
Free
Federal Council: Indirect
(Bundesrat)
No quota
ITALY
Parliament
(Parlamento)
Chamber of Deputies
(Camara dei deputati)
List PR + FPTP in Valle d’Aousta
Language Threshold exemptions
Free Senate
(Senato)
List PR + FPTP in 7 constituencies
in autonomous regions
Language
Constituencies drawn in
support of minorities
Best runner-up for
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
82
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.
83
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.
86
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).
89
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.
90
‘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.
92
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.
97
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.
98
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.
99
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
Commission
2008
Block vote element
Number of elected
members
128 77 128
Number of
constituencies
14 27 27
Magnitude of
constituencies
6 - 17 1 - 6 1 - 10
PR element
Number of elected
members
- 51 -
Number of
constituencies
- 6 -
Magnitude of
constituencies
- 6 - 11 -
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.
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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
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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.
108
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:
109
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
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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.
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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
116
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
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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
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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
176
The 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.
126
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.
127
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.
129
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.
132
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:
134
“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.
137
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.
138
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.
139
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.
140
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
141
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.
142
The excluded groups’ share of the population209
could form a basis for future minimum
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.
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,
excluded only
0.5 0.0 0.5 1.7 2.0
Madhesi castes, excluded
only
3.4 2.4 5.4 6.7 12.4
Hill Dalits 0.5 0.0 0.0 2.5 8.0
Hill and Mountain
Janajatis, excluded only
1.0 1.0 1.0 0.4 3.5
Total excluded groups 5.4 3.4 6.8 11.7 29.8
Included groups:
Madhesi/Terai Janajatis,
included only
8.3 6.8 3.9 5.4 6.8
Madhesi castes, included
only
8.3 10.2 10.7 16.4 6.9
Hill caste 53.7 62.4 58.0 41.7 31.2
Hill and Mountain
Janajatis, included only
24.4 17.1 20.5 24.6 25.3
Total included groups 94.6 96.6 93.2 88.3 70.2
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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.
144
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.
146
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.
148
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 under-
represented. 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:
149
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.
152
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 co-
ordinate 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.
156
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.
159
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.
160
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.”
161
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.
162
- 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: “
163
(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.
165
(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.
169
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
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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
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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
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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
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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.
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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
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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.
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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.
185
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.
189
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.
191
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.
192
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.
195
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).
198
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.
199
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.
200
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)
201
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.
202
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 pre-
set 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.
203
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.
204
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.
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
205
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.
206
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: Nils A. Butenschøn is professor of International Relations and Director of the Norwegian Centre for Human Rights, Faculty of Law, University of Oslo. His 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 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 1996 to 2009 he headed twelve OSCE/ODIHR and NORDEM international election observation missions or teams. From 2003 he has issued opinions on election 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:Nils Butenschøn and Kåre Vollan (eds.): Interim Democracy. Report on the Palestinian Elections January 1996, Human Rights Report No 7 1996, Norwegian 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 handshake between two senior officials on the Palestinian presidential Election Day in January 2005 following President Yasser Arafat´s death. Both thumbs carry indelible ink showing that they have voted and the handshake may symbolise the overall political agreement to carry out an election, even under occupation. (Photo: Kåre Vollan)
Electoral Quotas and the C
hallenges of Dem
ocratic Transition in Conflict-Ridden Societies A
NO
RDEM
SPECIA
L REPORT 2011
ISBN 978-82-8158-071-8
