The Appointment of Commissioners of the Independent Electoral Commission in Botswana

The free, fair and credible election is one of the prerequisites of democratic governance. Kenya has held four general elections since the restoration of multi-party democracy in 1991. These four general elections between 1991 and 2013 have brought out one telling fact: That periodic election, are not by themselves a guarantee for sustainable democracy. There has to be more. There is need for sound constitutional, legal and administrative reforms and institutional framework that provide strong pillars to anchor and consolidate democratic gains. The Independent electoral and Boundaries Commission is mandated by law to ensure there is a free, fair, credible and transparent election. However, in its quest to ensure that it fulfills its obligations as mandated by the constitution, the IEBC has faced various challenges such as lack of transparency, insecurity in certain regions, and influence by politicians among others. To attain free, fair and transparent elections as envisaged in the constitution 2010, it requires commitment and active involvement from the Independent Electoral and Boundaries Commission, the government as well as the voters. However, this may not be possible unless democratic governance, institutions and procedures are in place. For this to happen there ought to be reforms in both legal and administrative bodies.

This article assesses the freedom and fairness of the 2001 parliamentary election in Sri Lanka according to a variety of criteria, judging the effects of violence and procedural irregularity on the election outcome. Despite its ambiguity, the international right to a free and fair election, expressed through the principles of the UDHR and the ICCPR, is substantially incorporated in the domestic law of Sri Lanka. The Constitution and elections legislation recognise essential democratic and electoral rights and establish administrative procedures and judicial remedies for enforcing them. Specific controversies over electoral laws have typically been resolved within the framework of the rule of law, through either the political process or the courts, including debates about the method of voting, the powers of the Election Commissioner and the registration of parties. Referendum and emergency powers have, however, been abused to interfere with free elections in some situations. Further, recent elections have degenerated into widespread violence, intimidation and procedural irregularity, culminating in the December 2001 parliamentary election. The violent events of the 2001 election suggest that despite the formal maturity of Sri Lankan election law, the law is not being adequately enforced and deterrence, through criminal sanctions, is failing. While most police and election officials are committed to ensuring the integrity of elections, many politicians and candidates have undermined elections, in a society militarised by a protracted ethnic separatist conflict.

The authority of the Constitutional Court in the judicial review against the 1945 Constitution of the Republic of Indonesia (UUD NRI 1945) is stated in Article 24C paragraph (3). One of the most frequently proposed judicial review is Law Number 7 of 2017 about General Elections (Election Law). The result of this review is the Constitutional Court's decision which is final, so no other legal action can be taken after the decision is issued. However, in reality the Constitutional Court's decision regarding the Judicial review of Election Laws experienced various problems in its execution which were referred to as constitutional disobedience . In other countries such as Germany, the Federal Constitutional Court uses the concept of judicial order to resolve this problem. The judicial order is an important message for the future Legislature to implement the Constitutional Court's decision through concrete follow-up. Formulation of the problem raised in this research First, what is the urgency of using a judicial order in the Constitutional Court Decision in the Election Law judicial Review? Second, what are the differences in the implementation of Constitutional Court Decisions containing judicial orders in judicial reviewing of the Election Law? The type of research used is normative juridical. Data collection techniques use library research. Data will be analyzed using qualitative analytical descriptive methods. The research results explain that in order to realize legal certainty in order to carry out direct, public, free, secret, honest and fair elections, this Constitutional Court Decision needs to be implemented immediately. For that reason, judicial orders that have been implemented by the Indonesian Constitutional Court and other countries prove its function in strengthening the final and binding effect of its decisions. Differences in the implementation of Constitutional Court decisions that contain judicial orders can be seen in several non-self-executing decisions, there are decisions that are fully implemented, partially implemented, not implemented and also implemented differently from orders from Constitutional Court decisions

Article 345 paragraph (1) and paragraph (2) in conjunction with Article 529 and Article 530 of the Election Law prohibits companies from printing ballots beyond the prescribed amount and is obliged to maintain the confidentiality, security, and integrity of the ballot papers. The type of criminal in the provision is in the form of basic crime including imprisonment and fine (cumulative). There are incomplete norms in the provision regarding imprisonment and fines given to ballot printing companies. This paper is normative legal research, with a statutory approach, a comparative approach, and a conceptual approach. The result of this study is that the criminal law regulating election ballot printing company companies in the Election Law does not regulate the separation of basic crimes in the form of imprisonment and fines. The formulation of criminal convictions for election ballot printing companies does not pay attention to the regulation of corporate punishment in several statutory provisions including the Corruption Eradication Act, the Environmental Protection and Management Act, the Law on Prevention and Eradication of Money Laundering, and Perma No 13 of 2016. Required the reconstruction of the criminal prosecution of companies that print election ballots in the Election Law to ensure legal certainty and the implementation of law enforcement which creates fair and fair elections.

This article examined whether, in the pandemic, the conduct of Ghana’s 2020 general elections conformed to acceptable international standards or not? Analysing data drawn from 120 respondents based on face-to-face and telephone interviews, the study established that the measures for pre-election and polling day activities guaranteed the integrity of the elections. The electoral laws and system, the mechanics for voter registration, polling, and balloting were fair, transparent, and inclusive. The fair application of the electoral laws, openness, and stakeholders’ active participation in the electoral process obviated fraud. Both domestic and international observers validated the election result declared by the EC because the processes satisfied the standards for free and fair elections even though Ghanaian diasporas were disenfranchised, and a few administrative and technical challenges occurred. Hence, electoral reform targeting efficient management, enlargement of the franchise to capture diasporas’ votes, and an electoral system that supports proportional representation albeit a possibility of proliferation of parties, would improve electoral integrity for deepening democratic development.

General elections in Indonesia uphold the principles of equality and justice for all voters and election participants. Every individual has the same right to vote and be elected without discrimination and free from the intervention of any party. The holding of elections is not free from various violations, which are divided into Criminal Elections or Elections, namely criminal acts regulated in law and threatened with criminal sanctions, violations of the code of ethics of election organizers or elections, namely violations of the norms and ethics that apply to election organizers, Administrative violations, namely violations of the technical rules for holding elections. In order to maintain the purity of elections that are essential for democracy, lawmakers categorize a number of fraud in elections as criminal acts. The Election Law not only regulates the procedures for conducting elections, but also prohibits various actions that can undermine the nature of free and fair elections, and imposes penalties for perpetrators. The type of research in this study is normative legal research, which is a research method that focuses on written legal norms.


 
 
 Digital technologies for elections were introduced in Kenya with a vision that they would bring election reforms through increasing administrative efficiency, reducing long-term costs, and by enhancing transparency in the electoral process would enhance citizenry inclusivity. Despite the voting exercise taking place without a hitch, the 2017 General Election results were dismissed by various stakeholders who called on the Independent Electoral and Boundaries Commission (IEBC) to ‘open the servers’, with witnesses, to use the results inside the servers to verify the ballot papers in the ballot boxes. Promises by IEBC that counting, transmission and verification of results would promote citizens’ rights during the electoral process were not met hence the Swahili phrase, ‘Fungua server’ (Open the servers) was coined. The server became the Holy Grail, the gadget of hope for free and fair elections. Chants of ‘Fungua server’ unveiled the dreaded side of Kenya’s democratisation; of flawed elections and violence that followed. ‘Fungua server’ was a call to free and fair elections. The paradox of technology this article seeks to interrogate was how technology has subverted democratic elections in Kenya; arguing that there is need to demystify the server and focus on electoral transparency as a yardstick of democracy.
 
 
 
 Joyce Omwoha, PhD, Lecturer, Journalism & Media Studies, Technical University of Kenya. Email: joyceomwoha@gmail.com
 
 
 
 
 

The resurgence of coups d’etat in Africa has resuscitated discussions about the suitability of democracy as an agent of development on the Continent. The dominant impression in extant literature suggests that the inefficiencies of democratic regimes provide the attractive invitation to military rule. Despite the encomiums showered on democracy as the global best form government, many years of its practice in Africa have resulted in massive underdevelopment. It has not delivered on its promise of free and fair elections, freedom of the press, association and others. Under the watch of democracy, many African countries have transited from one-party to dominant-party states while rigging and related electoral vices continue to fester. Police brutality and human rights abuses are rampant while insecurity and inequality have reproduced themselves in many forms. This paper contends that democracy is culpable in the business of stifling development in Africa hence, the complexity and continuity of Africa’s crisis of underdevelopment questions the validity of Western imposition of Democracy as the best form of government. It adopts an amalgam of the Liberal Democratic and Centre-Periphery Models to situate the failure of democracy in Africa within the context of metropolitan interference in African politics, with attendant African petit bourgeois attachment to foreign finance capital. Consequently, it denounces democracy as the best form of government and insists that Africa’s best form of government is that which arises out of her sociological experience and censorship to address critical aspects of her political economy.

The coining of the expression free and fair was a good way towards evaluating elections, but fell short of qualifying its real quantification to guide an informed judgment; this paper provides guidance for such a definition. Data from the Uganda National Baseline Survey were used to assess the dynamics of the determinants for a free and fair election. All determinants were statistically significant (p<0.01) for the two multinomial models (free and fair election models). The predicted probabilities for free and fair were each used as inputs to form probability distribution function could jointly define the expression free and fair using a bivariate normal distribution. A strong positive correlation was identified between an election being free and fair (ρ=0.9693,p<0.01) implying the reliability of the statistical models in jointly considering free and fair. The study recommends development of central statistical computational system to inform electoral bodies and judges in passing scientifically backed ruling on whether an election is free and fair. A threshold percentage for any election to be referred to as free and fair could be developed either deterministically or stochastically and provisions of which passed under electoral law.

This study explores the state of liberal democracy and political stability in Africa. In particular it intends to assess what is said about liberal democracy in relation to free and fair election, political stability and the politics of ethnicity in Tanzania and Kenya and the reality happening on the ground (the practice) in East African countries. The rationale for undertaking this analysis is that the East African countries have experienced political transformation: for instance, for much of the post-colonial period East African countries tended to live under one-party regime, but since 1990s East African countries embraced multiparty system. This study pays attention to assessing the outcomes of liberal democracy in East African countries in particular examining the extent to which the liberal democracy promotes free and fair elections, political stability and the mitigation of the politics of ethnicity. This study employed a comparative analysis, in which it compared the extent to which liberal democracy is practiced in Tanzania and Kenya and how far the above-mentioned parameters are realized under the broad spectrum of liberal democracy. The methods of data collection were interviews and documentary review and the discussion of the findings was organized around the sub-themes of this study. The period covered in this discussion is the contemporary period from 1990’s to 2019. The findings indicate that even though African countries have adopted liberal democracy, in some of the East African countries like Kenya, political stability and free and fair elections have not been fully realized, while in Tanzania the experience indicates that political stability is relatively realized after elections. This study concludes that even if the institutions of liberal democracy have gradually developed with partial free and fair elections, the manifestations of political instability still exist in some of the East African countries, as shown by the election violence in Kenya comparatively to Tanzania. Therefore, the interface between the liberal democracy and political stability has not been sufficiently realized in the liberal democratic tradition. This study recommends that elections as one of the pillars of liberal democracy should be properly and fairly instituted, so that the role of liberal democracy is realized in fostering peace and tranquility.

The issues with upholding election law must be resolved comprehensively if elections are to be held in an honest and fair manner and if they are not to be delegitimized in the future. The first thing that must be done is to determine what is causing issues with law enforcement; After that, a comprehensive solution to this issue is sought, resulting in the establishment of a system of election law enforcement capable of guaranteeing free and fair elections. According to international democratic election standards, free and fair elections can be achieved if there are legal instruments that can protect organizers, participants, candidates, voters, observers, and citizens in general from fear and intimidation, violence, bribery, fraud, and other fraudulent practices that will affect the results of the election. This type of research is normative research. The approach used is a statutory approach (statute approach) and a conceptual approach (conceptual approach). Secondary data are used as the data source. Qualitative and descriptive methods were used to analyze the data. Conclusions are drawn using the deductive method, namely concluding from general to specific, especially those related to the research topic, namely law enforcement against election crimes. This research resulted in findings that future election legislation must re-clarify the notion of election administration violations. In this case, administrative violations can be divided into two major groups, namely minor administrative violations, and serious administrative violations.

This study critically examines the constitutionality of the presidential nomination threshold provision stipulated in Law No. 7/2017 on General Elections. By conducting a juridical analysis, this research explores the legal and constitutional underpinnings of the presidential nomination threshold, which mandates a minimum percentage of parliamentary seats or popular votes for a political party or coalition to nominate a presidential candidate. The analysis explores the historical context, legislative intent and judicial interpretation of the threshold provision. It also assesses the impact of these provisions on political competition, electoral fairness and democratic representation in Indonesia. It identifies potential constitutional conflicts and proposes legal reforms to enhance the legitimacy and inclusiveness of the presidential election process. Through a comprehensive legal review, this research aims to contribute to the ongoing discourse on electoral law and democratic governance in Indonesia.

Gakkumdu as an integrated law enforcement center has an important role in handling election criminal acts. In Article 486 point (1) of Law Number 7 of 2017 concerning General Election, the Gakkumdu establishment is explicitly intended to equalize the understanding and pattern of handling election criminal acts by the Bawaslu, the Indonesian National Police, and the Attorney General's Office of the Republic of Indonesia. There are 2 (two) problems in this research, firstly how the function and mechanism of the Gakkumdu Center in handling 2019 Election crime. Second, how the implementation of the Gakkumdu Center function in law enforcement in 2019 Election in West Sumatra. This research approach is empirical (sociological juridical) with a statutory approach. The data was collected by interviews and studies on primary, secondary and tertiary legal materials. The results showed that first, the function of the Gakkumdu Center was to equalize the understanding and pattern of election crime handling between the Election Supervisory Body, the Police and the Prosecutor's Office with the mechanism of work starting with the receipt of reports and findings of alleged acts which allegedly constituted an election criminal act which had been regulated in the Act Law No. 7 of 2017 concerning General Elections. Second, the implementation of the function of the Gakkumdu Center in law enforcement for the 2019 Election in West Sumatra is carried out under the Election Law and Bawaslu Regulation No. 31 of 2018 concerning the Gakkumdu Center. From all findings and reports of alleged election crimes that entered the Gakkumdu Center in West Sumatra based on studies and discussions as well as plenary meetings and the results of the investigation there were 101 cases that constituted criminal acts. Of these cases, 17 cases have been tried and decided by the court. Thus, this study recommends that coordination between law enforcement officers manifested in the Gakkumdu Center be further improved for the implementation of subsequent elections so that all reports and findings can be processed and the government can increase the active role of the community in overseeing the implementation of elections because it is needed to realize quality elections .

The number of cases of violations that occurred in the process and implementation of elections, both administrative violations, election crimes, violations of the election organizers' code of ethics, Disputes between Election Participants (PSAP), Election Contestant Disputes with Election Organizers (PSPP). This research was created to analyze election law enforcement in Indonesia, with a focus on disputes that occur between election contestants (PSAP), disputes between election contestants and election organizers (PSPP), which are based on constitutional law, associated with theories which is relevant. In this study, the authors used a normative juridical method by analyzing data through a review of literature or secondary data which included primary legal raw materials, secondary legal materials and tertiary legal materials, both in the form of documents and applicable laws and regulations related to normative juridical analysis. implementation. election and election law. The results of the study show that: Election law enforcement and settlement is carried out by Bawaslu, Provincial Bawaslu, and Regency/Municipal Bawaslu with the authority to settle election process disputes and processes according to their respective levels, with the process of receiving requests, reviewing requests through formal verification and material verification, conduct mediation between disputing parties, conduct adjudication between disputing parties and decide. Bawaslu accepts the PSPP request as a result of the issuance of a KPU decision in the form of a Decree and/or Minutes. So that the elections to be held in 2024 can run according to the applicable laws and regulations. It is recommended that in upholding election law, election administration (KPU), Bawaslu and election participants, they must be able to guarantee free and fair elections, by guaranteeing the constitutional rights of all parties in a proportional and fair, honest and fair manner, as well as election results. which legitimizes the presence of leaders in accordance with the people's choice.

Judging the Public Interest: The Rule of Law vs. The Rule of Courts