The Carter Center Encourages Tunisians to Promptly Ensure Broad Consultations and Passage of Law Creating Permanent Independent Election Commission

Contact: In Tunis, Sabina Vigani +216 23 63 49 79 or sabina.vigani@tunisia.cceom.org; In Atlanta, Deborah Hakes +1 404 420 5124

While acknowledging initiatives undertaken by the government and several civil society organizations, The Carter Center calls on Tunisian authorities to launch a broad and transparent consultation process, including all relevant stakeholders, to build consensus on the key features of an independent body entrusted with future elections in Tunisia. The time required for the effective establishment of the future election management body (EMB) should not be underestimated by the Tunisian authorities. Creating a permanent EMB includes not only defining its key architecture but also conducting a transparent member selection process.

Following the October 2011 National Constituent Assembly elections, the ISIE (L'Instance Supérieure Indépendante pour les Élections) recommended the establishment of a permanent EMB to lead future elections. In April, Prime Minister Hamadi Jebali announced the government's intention to submit a draft law outlining mechanisms to provide for an independent and credible EMB to the National Constituent Assembly within days. Assembly President Moustapha Ben Jâafar later supported the timely adoption of the law.[1]However, more than two months have lapsed since the first announcement of the draft and the government has yet to present the draft legislation.

The government tasked a group of experts with preparing the draft law, which was leaked to social media outlets on April 29. Several civil society organizations and academics criticized the draft. Proposed nomination and appointment mechanisms for future members were perceived as an attempt by the Troika to control the EMB, and the absence of inclusive consultations prior to or during the drafting process were also deplored. In an effort to contribute to the discussion and decision-making process, several civil society organizations advocated for alternative features of the EMB.[2] The group of experts have reportedly reviewed and amended their first draft. In addition, last week the group of experts met with the General Union of Tunisian Workers and prepared a joint draft, which they intend to present and discuss with other relevant stakeholders in the weeks to come.

Despite a tendency for public discourse to focus on differences between the various initiatives, they share many common points on which key actors can find consensus quickly. The nomination and appointment mechanisms of EMB members appears to be the single most divisive issue, with options stretching from a selection process led by political parties to one driven by professional organizations, such as those representing judges, lawyers, accountants, and academics. On the other hand, all stakeholders support key elements such as the independent and permanent character of the future EMB, its financial autonomy, and the number of members, as well as the absence of political party representatives.

The Government of Tunisia and the National Constituent Assembly should build on existing initiatives to launch, without further delay, an inclusive and transparent consultation process to lay the groundwork for a timely adoption of a law to establish a permanent EMB.

The Carter Center recommends the following:

• In light of the right of citizens to participate in public affairs, consultations should involve all interested and relevant stakeholders, including political parties, civil society organizations, and Tunisian election observers' groups.[3] Lessons learned from the October 2011 elections should be taken into account, while advice from electoral assistance teams could be sought.
• The composition of the EMB has sparked considerable debate. International standards do not prescribe a specific composition, and existing models of EMBs around the world are composed of both political and technical representatives; each option entailing pros and cons. Regardless of the model that Tunisia selects, members of the EMB should perform their tasks in an impartial and neutral manner,[4] and candidates to this position should be recruited according to their merits and possibly based on individual public hearings to promote transparency of the selection process and increase legitimacy of the future body.[5] If the appointment of EMB members is selected by the National Constituent Assembly, the vote should require a qualified majority[6] to ensure that members enjoy broad political support.[7]
• In the definition of the EMB's mandate, areas of competence for which the EMB has sole and full implementing responsibilities should be distinguished from those where it has supervisory and consultative roles. This would allow the EMB to focus on its core business and take advantage of specialized expertise amongst government offices and institutions for other activities.[8]
• The respective roles and responsibilities of the supervisory and executive structures should be defined without ambiguity. The former should have a decision-making and supervisory authority while the latter should have executive, administrative, operational, and financial responsibilities.[9]
• The EMB should function in a transparent, impartial, and independent manner. Transparency implies facilitating access to information,[10] proactive, regular, and timely communication on decisions, activities, and technical aspects of the electoral process, and consulting with participants in the electoral process on a regular basis to promote understanding and acceptance of decisions.[11] A general principle of transparency should be enshrined in the law.
• The EMB, as any state institution, should uphold the principle of gender equality in its membership at all levels. The law should entail measures intended to underpin this principle.[12]

Following its observation of the National Constituent Assembly elections, The Carter Center is monitoring the constitution drafting process and developments related to the establishment of institutional and legal frameworks for subsequent elections. The Carter Center assesses these processes against Tunisia's national laws and international treaty obligations to which the country has obligated itself, including, among others, the International Covenant on Civil and Political Rights.

The Carter Center has been following developments related to the establishment of a permanent EMB in Tunisia, as envisioned by Tunisia's Constitutional Act.[13] On May 11, The Carter Center published a report assessing the constitution drafting process in light of Tunisia's international obligations stipulating transparency, right to access of information, and right to participate in public affairs. The Center's reports and statements on Tunisia may be found at www.cartercenter.org.

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The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, in partnership with Emory University, to advance peace and health worldwide. A not-for-profit, nongovernmental organization, the Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; improving mental health care; and teaching farmers to increase crop production. Visit www.cartercenter.orgto learn more about The Carter Center.

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[1] Prime Minister Jebali announcement was made on April 26 and National Constituent Assembly President Ben Jâafar declaration on May 11.

[2] The Tunisian Association for the Integrity of the Elections published a proposal on May 29 and presented to the Constitutional Bodies Commission of the National Constituent Assembly. On June 2, the General Union of Tunisian Workers, the Tunisian League for Human Rights, and the Bar Association presented a joint proposal during a press conference.

[3] International Covenant on Civil and Political Rights, art. 25(a); Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, art. 8(1), 2.

[4] UN Human Rights Committee, General Comment 25 on "The Right to Participate in Public Affairs, Voting Rights and the Right to Equal Access to Public Service," para. 20.

[5] UN Convention against Corruption, art. 7.1a.

[6] A qualified majority requires decisions to be made by a broader consensus (2/3, 4/5…)

[7] Electoral Management Design: The International IDEA Handbook, Chapter 4 "The Composition, Roles and Functioning of an EMB," 2006, p. 85.

[8] Electoral Management Design: The International IDEA Handbook, Chapter 3 "The Powers, Functions and Responsibilities of an EMB," 2006, p.64.

[9] Electoral Management Design: The International IDEA Handbook, Chapter 4 "The Composition, Roles and Functioning of an EMB," 2006, p. 105.

[10] ICCPR, Article 19 para.2; UNHCR, General Comment 34,  para. 19.

[11] Code of Conduct for the Ethical and Professional Administration of Elections, IDEA (1997), para. 15-17.

[12] Convention on the Elimination of All Forms of Discrimination against Women, art.3; CEDAW Committee, General Recommendation No. 5, para. 15.

[13] Article 25 of the Constitutional Act n°2011-6 dated Dec. 16, 2011, related to the provisional organization public authorities.

Translations

Le Centre Carter appelle au lancement rapide de consultations élargies et à l'adoption d'une loi établissant une Instance électorale permanente et indépendante

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