Chawki Gaddes, Secretary General of the Tunisian Association of Constitutional Law and Executive Secretary of the International Academy of Constitutional Law gave an exclusive interview to Africanmanager. He spoke of the preliminary draft of the ISIE, the failures identified, the proposed solutions and the essentials of a transparent and democratic electoral process.
To what extent the preliminary draft of the ISIE can guarantee democratic, free, pluralistic, fair and transparent elections?
We must begin by recalling that developing the best draft law does not necessarily guarantee the success of the action it is supposed to regulate.
Today, the draft law being discussed within the National Constituent Assembly (NCA) will not necessarily be adopted in its current form and content. But what is most important is that politicians, citizens and the civil society seize this document to act with a clear and unambiguous will to ensure the success of the upcoming elections.
This is, indeed, what had happened in 2011, where all stakeholders devoted themselves solely to this process of realization of elections with ISIE as the arbitrator and conductor.
However, we should not believe that the piece of legislation is the only element that can make the next elections a success for the Republic.
Are there any failures noted?
Of course there are gaps in this draft. This text cannot, in addition, be perfect, as it was written without any serious evaluation of the experience of the October 23, 2011 elections.
It is legitimate to question the seriousness of a construction that is not preceded by the evaluation of past experience. The evaluation can be done by the Court of Auditors that simply verifies compliance of the formalism of expenditure incurred by the ISIE. The ISIE itself cannot do this because we cannot be judge and party, and self-assessment is thus biased in its principle.
It was necessary, therefore, to ensure that this assessment is performed after October 23 by stakeholders who must meet the requirements of impartiality and competence especially in the electoral field. Following this, we’d have identified conditions to implement to ensure successful elections in Tunisia, avoiding “mistakes” of the past experience.
The assessment would have shown the negative effect of several factors, such as the high number of Central Committee members, the blocking method of decision-making within this structure, the representation of professional associations in the Central Committee, the marginalization of the technical, administrative and financial organ and the creation of regional bodies similar to the ISIE…
How do you see the solutions?
Several solutions are available to avoid the mistakes of the past experience. They include:
The first proposal is to classify ISIE in a category of public legal persons known among lawyers for their own autonomy and powers to enable it to regulate and monitor a specific area, namely the independent administrative authorities. Another important element is the ability of the ISIE to monitor and, if necessary, sanction or take legal action against offenders of electoral standards or the guidelines of ISIE. This structure would also benefit all kind of protection.
The second proposal is the need to affirm and acknowledge that the Central Committee of the ISIE consists of people, men and women, limited in number who confine themselves only to representing the ISIE and ensuring good elections thanks to the image of impartiality, morality and respect they generate from society. But they are not responsible for conducting the election on the ground.
The third proposal is the needed competence and professionalism that must be checked in the administrative body which I would call rather technical to avoid possible ambiguity.
The fourth proposal is to put as a central element of the electoral process, the transparency of work of the ISIE. All data concerning the process should be made available in real time to citizens, the media and the candidates or political parties running for the elections.
What do you think of the old ISIE? The ISIE of Decree-Law No. 27 suffers from congenital malformations which were amplified by practice and especially by the atmosphere of that transition period. According to Article 5 of Decree-Law No. 47 creating the authority, it has been endowed with a central committee which suffers, from our point of view, from three imperfections that will affect the functioning the ISIE and the efficient organization of the elections.
The first imperfection arises from the very large number of its members which was 16. This choice was explained at the time by the pressure suffered in the transition period by the High Authority under the leadership of Dean Yadh Ben Achour. It was important for the smooth running of the process to involve maximum representatives of the civil society who claimed involvement in transition structures. The initial draft prepared by the electoral commission provided for only seven members in the Central Committee of ISIE, which was a suitable number.
The large composition, contrary to all the rules of the sociology of groups, would be disruptive and sometimes blocking the implementation of the electoral process.
The Carter report presented after the elections highlighted the duality of seats in ISIE between “Lafayette” and “Rue de Rome”. This split in the localization of members of the Central Committee and services distributed between the two seats made the actors of the electoral process and national and foreign observers believe there was lack of cohesion in the inner workings of the ISIE.
The second flaw is the mode of decision-making within the Central Committee. Article 12 of the text on the creation of ISIE states that: “…decisions are taken by consensus and, failing that, by a majority of two thirds of its members.” This goes against the high number provided for in its composition. It is very difficult to obtain a consensus in a structure with a significant number of members and who are especially heterogeneous with respect to their specialization, training and curriculum. The practical operation of the authority highlighted the difficulty of reaching consensus and also the two-thirds majority. This has encouraged the formation of two poles, which, gradually, were separated physically.
The third imperfection arises from the composition based on the representation of professional corporations. This option stems, on the one hand, from the High Authority’s concern to content itself with some specialties that have been quite active in the period from January 2011, but especially from the poor vision drafters had of the mission of the Central Committee of the ISIE.
Can we speak of irregularities committed by the former ISIE?
In legal terms, the ISIE under the leadership of Kamel Jendoubi, has not, to my knowledge, committed mismanagement. My assertion is based on the statement made by Chedly Srarfi, General Rapporteur of the Court of Auditors to Mosaique FM, last week.
Indeed, the Decree-Law No. 2011-27 of April 18, 2011 establishing the ISIE states in Article 3 that “expenses of the authority are exempted from ex ante control of public spending and procurement provisions.”This very important exception of management of public funds was stipulated in the piece of legislation on the creation of the authority.
Thus, ISIE benefits of an autonomous budget, which was paid by the Government in a special account with the Central Bank of Tunisia. His officer was the president of the ISIE who, pursuant to decisions taken by the Authority’s Board, undertook, like commercial companies, to pay invoices submitted by suppliers that have been selected, either by OTC procedures or through reduced consultations, or, finally through the payment of the emoluments of members and staff of the ISIE.
The only financial management control stated by the draft is, therefore, the ex-post one, i.e. after the closure of the management by the Court of Auditors, since the same provision provides that “are subject to verification by the Court of Auditors, all financial transactions made by the authority.”
The latest information indicate that judges of the court of auditors have identified certain points that require further clarification from the ISIE. We therefore expect the final and official report of the court before we move forward on this issue, and we deplore the manipulation of public opinion through unofficial publishing, among others, on social networks, of preliminary remarks of the court of auditors.
Which role can be played by the civil society in the successful electoral process?
It is very utopian and unrealistic to believe that the electoral process is a bipartite relationship between candidates and voters. The relationship includes the electoral management body, but also the civil society.
The latter is important, because the components of civil society are responsible, through their position and their non-partisan nature, for the guidance of the community and the popularization of important concepts of any democratic action. This civic education action allows citizens, firstly, to make the decision to vote, and secondly, to know what to choose, according to one’s political beliefs, the day come inside the voting booth.
But civil society intervenes thereafter, significantly, as an observer of the electoral process.
They are the components of the civil society that will ensure the smooth running of the election campaign, the voting process, the counting of votes and announcement of results.
After the first experience of October 23, 2011, it is imperative for these civil society organizations to come together in a network of associations which is stated indeed by the new Decree-Law 88 of the organization of associations.
It is also necessary to place, in the next elections, a trained observer in each polling station. The number of these stations will normally be much higher than before: from 8,000 stations they will rise to 12,000, if not more. To ensure a serious observation, the civil society, therefore, must prepare at least 25-30,000 observers for this operation. On the other hand, the efficiency of this operation must pass through the channeling of funds from grants both national public and private but also international to a single operator which will be able to properly distribute such amounts on all actions to be carried out.
Which date you suggest for the next elections?
No person may, in our opinion, bring forward today, a date or even a time for the organization of elections in Tunisia. This follows from the fact that the process is complex and depends on the enactment of a number of legal texts that require cooperation and confrontation of views and therefore time. Once the text on the ISIE enacted, it will have to form its structures and, more specifically, its Central Committee. Proceedings to which we are moving will take time and will be likely to delay the process enormously.
When the Central Committee will meet for the first time, it will choose its president, but also begin to discuss the recruitment of its governing body, and at their head, the Executive Director, the masterpiece of the management of elections in our country.
Once the implementation of the administrative body made, it will determine the draft budget of the ISIE and begin the process of its internal and external approval and its release by the Ministry of Finance.
It should start, in parallel, the installation of regional structures, the training of staff, whether occasional or permanent and the registration procedure on the electoral list and public awareness, define the planning of elections and report them to political bodies and civil society.
This sequence of operations to be performed within the framework of an atmosphere similar to the present one in Tunisia, will take quite a long time. It seems, therefore, impossible to see elections take place before the end of 2013, if not, without being alarmist, in the beginning of the year 2014.