Second Annual Conference in Teslic

Page 9

Good Morning.

I'm pleased to be back in Bosnia and Herzegovina. The time that I spent here in 1996 was both personally and professionally rewarding. Because of this experience, I will always have a strong affection for the country and its people.

I'm here today on behalf of IFES to discuss two other areas of the former Yugoslavia where we have provided assistance in electoral matters.

Professor Rafael Lopez Pintor described the three ways in which the international community involves itself in elections.

1. Supervising elections in post-conflict situations, such as Bosnia, Eastern Slavonia, Cambodia and Kosovo;
2. Providing various levels of electoral assistance to local authorities conducting elections in transitional democracies; and
3. Conducting election observation missions.

IFES has been involved in all three. The first two are represented by recent activities in Kosovo and Macedonia, respectively.

In Kosovo, IFES had a prominent role in working with the OSCE/UN to supervise elections, while in Macedonia, we worked with the local authorities - in this case, the State Election Commission chaired by Josif Lukovski (see presentation 7) to assist in elections.

The past few months have been extremely busy ones in the Balkans, including the recently concluded elections here. Since your attention was directed inward, I thought you might be interested in an overview of the events in Kosovo and Macedonia. I'll be providing a legal perspective, although it won't be overly technical. Given your evident interest in both election administration and registration, I'll discuss those issues.

Everyone here knows that local elections were held in Kosovo on October the 24th. The UN Administration has reported that 79% of the eligible voting population cast ballots, and that the political party of Ibrahim Rugova was the most successful of the competitors. What I will focus on today is some of the early planning for those elections:

1. The legal authority under which they were held;
2. The respective roles of the United Nations, the OSCE and IFES; and
3. A sampling of some of the major issues and challenges.

I will then turn to the recent local elections in Macedonia, which Chairman Lukovski touched upon yesterday. I'll discuss:

1. A background on what was at stake;
2. The role of IFES both before and after the elections;
3. Highlights of the findings of the OSCE Monitoring Mission; and
4. The Growing Consensus for Electoral Reform.

The legal basis for the elections held in Kosovo in October - indeed the legal basis for the entire international administration of Kosovo - begins with United Nations Security Council Resolution 1244.

• The resolution "[authorized] the Secretary General, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration…." (Paragraph 10)
  
• The United Nations Interim Administration Mission in Kosovo (UNMIK) was established to "provide transitional administration while establishing and overseeing the development of provisional institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo." (Paragraph 10)
  
• The Secretary General was authorized, in consultation with the Security Council, to appoint a Special Representative (SRSG) "to control the implementation of the international civil presence." (Paragraph 6).

Under the Resolution, the Special Representative has both executive and legislative powers. He exercises these legislative powers by issuing Regulations that have the force of law - similar to enactments by parliaments. These regulations are sometimes implemented by Administrative Directions. So in the legal hierarchy, there are 1) UNSC Resolution 1244; 2) Regulations; and 3) Administrative Directions.

In terms of legal effect there is no difference between a regulation and an administrative direction. Both are issued by the Special Representative under the authority of the Security Council.

In practical terms, however, there was a huge difference. All regulations had to be cleared at UN Headquarters in New York before the Special Representative could issue them. This was nowhere written in the legal framework - it was simply how the UN operated. By way of contrast, New York did not have to give prior approval to administrative directions. For those of us in Kosovo, then, there was a great advantage in legislating via administrative direction. We could avoid the black hole of New York.

In a few minutes, I'm going to illustrate how this worked by briefly describing the legislation in Kosovo that authorized civil and voter registration. But first, I want to tell you a little bit about the structure of UNMIK and how IFES fit into it.

Early on UNMIK developed a four-pillar structure - it's since been reduced to three. At the top is The Special Representative of the Secretary-General. For nearly the entirety of the UN's involvement, this has been Doctor Bernard Kouchner of France. Under the Special Representative were the four pillars:

1. The UN Civil Administration;
2. The United Nations High Commissioner for Refugees;
3. The European Union; and
4. The OSCE

The OSCE, by agreement with the UN, was responsible for organizing and supervising the elections in Kosovo.

The UN Civil Administration was responsible for all matters concerning civil registration, including the identification of the population and providing them with proper documents.

In planning for the elections, the OSCE had to develop a voter list. But the UN Civil Administration had the responsibility for matters of civil registration of Kosovo.

It was obvious that the UN and the OSCE would have to coordinate their efforts. As you may expect, this was easier said than done. It turned out that IFES became the link between these two very different bureaucracies.

With funding from USAID and in coordination with the OSCE and UNMIK, IFES sent an advance team to Kosovo in October of 1999 to provide technical assistance in civil registration and election planning. I was a member of that team focusing on legal matters. We submitted a Draft Operational Plan for a Population Registration and Identification to the United Nations Civil Administration and the OSCE. Over the next six months, we focused on legal, logistical, and systemic design of a multi-use population database.

Given its role in elections, the OSCE's interest in the registration was limited to its usefulness in creating a voter' list. In contrast, the UN had two central concerns: First - to identify the population then residing in Kosovo; and Second - to provide the population with reliable, standardized documentation to be used for a variety of purposes, such as motor vehicle registration and the issuance of travel documents. As you know, there were widely varying estimates of how many people had either lost their identification documents or had them confiscated.

Any of us who has dealt with bureaucracies know how frustrating it can be. The permanent structures of international organizations have procedures for doing things that do not always reflect the reality in the field. There is conflict between the permanent staff in headquarters and those in the field - many of whom are seconded by member governments on a temporary basis. With respect to registration in Kosovo, these problems were magnified because two very different bureaucracies had to work together: The OSCE - much younger and much smaller; and the UN - an almost inconceivably large organization in existence for 50 years.

The solution was the creation of the Joint Registration Task Force that consisted of UN personnel, including UN volunteers and OSCE personnel brought into the organization to work on elections. The Head of the Task Force was Jeff Fischer, a senior IFES adviser who directed the elections here in 1996. In Kosovo, he wore two hats - Director of Elections under the OSCE and Head of Registration under the UN. IFES supported Jeff by bringing in approximately 25 consultants who served as advisers in: Database development; Domestic capacity building; logistics; training; operations; registration and legal matters.

One of the first legal tasks was to draft legislation providing Jeff with the sufficient legal authority to accomplish his responsibilities with respect to registration and to satisfy international data protection standards. The Regulation dealing with registration was very broad and insufficient to constitute a proper legal basis for the collection and use of personal data - including biometric data, such as photographs and digitized fingerprints. On this latter point, we enlisted data protection experts from the Council of Europe to assist us in the drafting of the direction. Ultimately, the Special Representative issued three administrative directions to implement registration under the Joint Registration Taskforce. The Administrative Directions incorporated international standards, and thus formed a proper legal framework for both civil and voter registration. How it all worked in practice is a matter for another day. I can only tell you there were many problems.

But I would be remiss if I didn't mention at least one negative aspect regarding registration and elections in Kosovo.

The overwhelming majority of Serbs in Kosovo boycotted the registration, and, consequently, the elections. Again, this is a subject for another day. But to the extent that the elections were considered a success, this fact alone makes them only a partial success.

In the time remaining, I'm going to talk about Macedonia. In July of this year, I left Pristina for Skopje to direct an IFES project in connection with local elections scheduled for September 10th. I wish to stress that these were local elections - by themselves, not considered very important, since local officials have only limited authority under current Macedonian law. Nonetheless these elections took on an enormous importance since the opposition tried to turn them into a referendum on the performance of the current government. To use a gambling metaphor, the stakes became very high.

In any case, USAID decided to fund the IFES project shortly after the date for elections was announced. At the invitation of State Election Commission Chairman Lukovski, we focused our efforts on providing assistance to the State Electoral Commission. In addition to myself, three international IFES consultants worked on this project. Chairman Lukovski and I signed a Memorandum of Understanding on August 9th - approved by the full commission - as to how we would provide assistance.

Our partnership with the SEC resulted in the development and implementation of a voter education and information campaign - both print and electronic - and the production of a guidebook designed for use by polling station officials.

We produced the voter education materials in both the Macedonian and Albanian languages. There were television and radio spots, as well as posters and leaflets. We also produced over 4000 guides in the Albanian and Macedonian languages that were distributed through the Municipal Election Commissions to the polling stations. Additional guides were provided to domestic observers, and English-language guides were provided to the OSCE Election Observation Mission. All of this was accomplished with the active involvement of working groups within the SEC, and was approved by the full SEC.

Unfortunately, time was not our ally. There was only time for us to conduct minimal training for a core group of Municipal Election Commission Members, who in turn provided derivative training to other MEC members. Thereafter, the MECs were responsible for training polling station officials. The training was spotty, at best, but at least the polling station members had an easy-to-use guide to assist them.

Given the nature of the group assembled here, I should point out that the members of polling station boards are only appointed approximately 2 weeks before the election. The Municipal Election Commissions that supervise them are also appointed for specific elections. While many individuals have served on commissions and boards over the course of several elections, there is no permanent body of election officials at the local level. Even the SEC exists in fact only during the period of elections. Chairman Lukovski and others all have permanent jobs to which they return when their election work is over. Moreover there is no permanent professional staff to support the Commission's work. For the local elections, the temporary staff consisted of two individuals - the Commission Secretary and his assistant - on loan from Parliament. While other official bodies assisted the Commission in collecting and disseminating election results, they cannot substitute for a permanent professional staff.

The verdict on the elections - in the press and by the OSCE's monitoring mission - was not good. With each torturous round of elections, the general public became increasingly dispirited.

Many called the elections a "step backward" in Macedonia's democratic development. The OSCE Observation Mission - while allowing that there had been some improvements - stated that the country "fell short" on a number of international standards, and that it failed to meet its OSCE commitment "to conduct elections free from violence and intimidation, and to safeguard the secrecy of the vote."

The OSCE report noted:

1. Shortcomings and inconsistencies in the laws;
2. Instances of violence in numerous polling stations;
3. The destruction of ballot boxes in a number of municipalities; and
4. Inconsistent application of the laws by local election officials.

The report recommended improvements that should be considered to help overcome these problems:

• The State Election Commission should have a stronger mandate to provide decisive authority over electoral administration;
• The various election laws and procedures should be integrated, preferably into a single election code;
• Standardized training should be introduced for election officials at all levels; and
• National and local authorities, as well as political parties, should take steps to reduce intimidation and violence, and to preserve the secrecy of the vote.

Thank you very much for your attention.

Question and Answer Session

Q: In Macedonia MEC members carried out training of polling station committee members. Would that model work in BiH?

A: This model was chosen because of the tremendous time constraints we had to observe. It makes sense - to use MEC members as trainers - at one level, but professional trainers advise against it, as MEC members - most of them being judges - have a legalistic approach and fail to put the teaching material into terms that can be readily understood.

Q: What are the lessons learnt from the registration process in Kosovo?

A: Sometimes it is also important to unlearn lessons! It is difficult to draw lessons from Kosovo to BiH. In Kosovo it was a civil registration process. The registration system was very sophisticated. It was a high tech solution that was decided on before IFES got involved. To my knowledge is not yet working and people did not use registration cards during the election. They used receipts from their registration card application.