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The Functions of Electoral Bodies and Officials

Taken from: Governance and Democracy in the Commonwealth Caribbean: An introduction  by Patrick Emmanuel pp 21-29

The constitutions outline the functions to be performed by electoral Commissions, as well as the chief election officials in the OECS countries. The functions of Jamaica’s Electoral Advisory Committee and of election officials in the other countries are set out in electoral statutes. 

The exercise of responsibility for constituency matters, involves periodic review of the numbers and boundaries of constituencies and the submission of reports therein to the Houses of Representatives or Assembly. With particular exceptions in the cases of Belize and St. Vincent, the reports must recommend either the retention of existing numbers and boundaries or changes therein. In these cases, the elected Houses are empowered to accept, reject or amend these recommendations. Upon parliamentary resolution of the matter, an Order issued by the Head of State authoritatively sets out the arrangements with respect to constituency numbers and boundaries which will prevail until a new set of recommendations is received and acted upon. 

The exceptional provisions in Belize and St. Vincent are that in both cases while Parliament fixes the number of seats, the respective Commissions have final authority to fix boundaries. 

Most countries, seven in all, require constituency review reports to be submitted no more than five years apart, but Jamaica’s maximum interval is six years and St. Lucia’s is seven years. In Belize the Commission is required to report “from time to time”, while in St. Vincent the interval depends on the circumstances of the Commission’s appointment: when it is appointed on the occasion of a census or an alteration in the number of seats, a review must be undertaken forthwith. Otherwise such a review must be undertaken not less 8 years nor more than 10 years after its last boundaries review. 

One of the fundamental features of constituency delimitation lies in the relative sizes of constituencies. The requirement constituency review take account of the desirability of ensuring approximate equality among constituencies, is recognised in the Constitutions of ten of the eleven independent states emp1oying system of constituency representation. (However while seven countries confine this vital requirement to schedules to their Constitutions, of them, Bahamas, Belize and St. Vincent seem to give greater w to the matter, by including it in the section spelling out the functions of their constituency review bodies). In the exceptional case of Antigua, the Constitution provides that in undertaking its reviews, the Commission “shall be guided by such general principles as may be prescribed by Parliament” (S.64:3). 

In most cases, the requirement to strive for approximate equality of constituency size is qualified by the necessity to take account of

(a)    population density and in particular the need to ensure the adequate representation of sparsely  populated areas  

(b)   the means of communication

(c)    geographical features; and

(d)   the boundaries of administrative areas.

                      
But Trinidad and Tobago, while recognising the f mentioned above, has adopted the most rigorous standard, stated in the Second Schedule to its Constitution: “In Trinidad and in Tobago respectively, the electorate in any constituency shall not be more than one hundred and ten per cent nor less than ninety per cent of the total electorate of the island divided by the number of constituencies of that island”. Barbados has emulated this innovation, adopting this yardstick by way of constitutional amendment in 1981, albeit with the qualification “so far as is practicable”. As will be seen later in this Section considerable inequalities in constituency size exist Commonwealth Caribbean countries.

  In sum then, there is a common process involving Commissions, periodic reviews and submission of recommendations, with the elected Houses exercising final judgment, for setting the numbers and boundaries of constituencies; except for two cases (Belize and St. Vincent) where authority to fix boundaries rests with the Commissions. But Guyana’s electoral method of proportional representation does not involve constituencies, while as a non-independent country, Montserrat constituency members controlled by the British Government and boundaries by the Governor.

Compared with the arrangement for constituency matters, the allocation of responsibility for administering elections, which involves registration of electors and supervising the conduct of elections, is somewhat different. In seven cases - Barbados, Belize, Dominica, Guyana, St. Kitts-Nevis, St. Lucia and Trinidad and Tobago -Commissions are directly and solely charged with the responsibility for registration and elections. In four others, Antigua and Barbuda, Bahamas, Grenada and St. Vincent and the Grenadines, these functions carried out by independent election officials. In Jamaica there is a mixed approach involving a Director of Elections advised by the

Electoral Advisory Committee. And in Montserrat, a Supervisor of Elections is responsible to the Governor.

An important distinction between the formal provisions for constituency matters and for registration and voting is that Parliament, apart from its inescapable role in enacting electoral law, is insulated from involvement in the processes of registration and electoral supervision. But a fuller treatment of the matter requires explication of the rules governing appointment, tenure and removal of election commissioners and officials, to be undertaken later on.

 Because of the critical importance of elections in the region’s political systems, it is appropriate that some detailed treatment of the specific provisions for their administration be undertaken. There is an interesting variety of language in which the responsibilities are expressed, a factor which perhaps reflects the peculiar sensitiveness of electoral matters. This review is thus aptly approached on a country-by-country basis, before any assessment of uniformity and variability be attempted.

 

Provisions for Administering Elections: Commissions and Officials

 A     Countries with Elections and Boundaries Commissions:

 (I) Barbados: By amendment in 1981, the Constitution provides that “the registration of voters and the conduct of elections in every constituency or any matters that appear to the Commission to be incidental to or consequential upon either, shall be subject to the direction and supervision of the Commission” (S.4 1C: 1), and further that in the “exercise of its functions under this section, the Commission shall not be subject to the direction or control of any person or authority” (S.4 1C:2). The (amended) Representation of the People Act which establishes the office of Chief Registering Officer/Supervisor of Elections, authorises the Commission to issue directions to this official “who shall comply with such directions” (S.7:4); and transfers functions previously exercised by a Minister or the officer to the Commission.

(II) Belize: By amendment (1988), the Constitution states that the EBC “shall be responsible for the direction and supervision of the registration of voters and the conduct of elections, referenda and all matters connected therewith” (S.88:13). It also declares the independence of the Commission from outside control except that it “shall, subject to the provisions of this Constitution, act in accordance with the Representation of the People Act or any other law, rule or regulation relating to elections” (S .88:14).      

According to the Representation of the People Act, which establishes the office of Chief Elections Officer, “the Commission may confer any of its powers and impose any of its duties on the Chief Elections Officer ...“ (S.10). 

(III) Trinidad and Tobago: The Constitution at S.71 states that the “registration of voters and the conduct of elections shall be subject to the direction and supervision of the Commission”, and that in the exercise of these functions the Commission “shall not be subject to the direction or control of any person or authority”. In turn, the Representation of the People Act, which establishes the office of Chief Election Officer, provides that the official “shall, subject to any general or specific directions of the Commission, perform such functions and duties and exercise such powers of the Commission in such manner as the Commission may from time to time direct...“(S.3:2). 

B.            Countries with Election Commissions: 

(I) Dominica: The Electoral Commission is charged with the responsibility for “the registration of voters ... and for the conduct of elections ... and shall have such powers and other functions relating to such registration and elections as may be prescribed by law” (S.38:1). In discharging its functions the Commission “shall be assisted by a Chief Elections Officer, whose office shall be a public office, and the Commission may give such directions as it considers necessary or expedient to the Officer, who shall comply with such directions or cause them to be complied with”. (S.38:2). It is provided that the officer, without prejudice to the provisions of the foregoing subsection, “shall not be subject to the direction or control of any other person or authority”. (S.38:5); but it is also expressly provided that the “question whether the Chief Elections Officer has acted in accordance with the directions of the Electoral Commission shall not be enquired into in any court of law” (S.38:6). The Commission itself is declared to be independent of all outside control in the performance of its functions (S.56:11). 

One particular requirement concerning Parliament and the Commission is that all proposed electoral bills, regulations or other instruments “relating to the registration of electors.., or the election of Representatives and Senators shall be referred to the Electoral Commnission and to the Chief Elections Officer at such time as shall give them sufficient opportunity to make comments thereon before the Bill is introduced in the House or, as the case may be, the regulation or other instrument is made” (S.5 I). 

(II) Guyana: Article 62 of the Constitution states that “(e)lections shall be independently supervised by the Elections Commissions in accordance with the provisions of Article 162,” which is both more expansive and specific in providing that “subject to the provisions of this Constitution, the Commission­- 

(a) shall exercise general direction and supervision over the registration of electors and the administrative conduct of all elections of members of the National Assembly; and 

(b) shall issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid”. 

The office and functions of a “Chief Elections Officer” are spelt out in the Representation of the People Act but there is no specific definition of the relationship between the Commission and the Officer. 

There is also no statement in the Constitution expressly establishing the independence of the Commission from outside direction or control, other than the above cited provision of Article 62. 

(III) Jamaica: In 1979 the Jamaican Parliament enacted a Representation of the People (Interim Electoral Reform) Act to make temporary provisions for the control of elections “until provision is made in the Constitution of Jamaica for the establishment of an Electoral Commission” (5.3). This Act established an Electoral Advisory Committee and a Director of Elections, the primary function of the Committee being defined as “advising the Director on the performance of his functions under the Representation of the People Act” (S. 5:1). The Director was given all the functions formerly exercised by the Chief Electoral Officer, and was made a non-voting member of the Committee. Power to hire staff was vested in the Committee. 

The provision which indicates the nature of the relationship between the Committee and the Director enunciates that where “the Director refuses to follow any advice or recommendation of the Committee he shall report the matter to Parliament within fourteen days of such refusal” (S. 5:2). At the same time however, S. 7 states that “The Minister (with responsibility for electoral matters) shall be responsible to Parliament for matters concerning the activities of the Committee and accordingly, the Committee shall keep the Minister fully informed of all such matters, and shall furnish the Minister with such information as he may request with respect to any particular matter’. The interim Act itself is silent about the resolution of differences between the Committee and the Director involving the Director’s refusal to accept advice from the Committee. It is evident however that unlike the regional cases where the chief elections official is subordinate to an Electoral Commission, the Jamaican case is significantly different in effectively stipulating that the chief official is not subject to the Electoral Committee’s direction and control. 

(IV) St. Kitts-Nevis: The Constitution briefly lays down that the function of the Electoral Commission “shall be to supervise the Supervisor of Elections in the performance of his functions ... relating to elections and referenda” (5. 33:4). The Supervisor’s duty is “to exercise general supervision over the registration of voters in elections of Representatives and over the conduct of elections” (S. 34:1). The officer is obliged to report to the Commission when requested, on the exercise of his functions, in which instances copies of the report must be sent to the Minister responsible for elections, who is required to lay the reports and any comments from the Commission, before the House (S.34:5). 

The Supervisor is required to “act in accordance with such directions as he may ... be given by the Electoral Commission” but “shall not be subject to the direction or control of any other person or authority” (S. 34:7). However, there is no such declaration concerning the Commission itself. 

(V) St. Lucia: The Electoral Commission “shall be responsible for the registration of voters ... and for the conduct of elections ... and shall have such powers and other functions relating to such registration and elections as may be prescribed by law” (S.37:l). The Commission is to be “assisted by a Chief Elections Officer” in the discharge of its functions and “may give such directions as it considers necessary or expedient to the Officer, who shall comply with such directions or cause them to be complied with” (S.37:2). The Commission has the right of scrutiny of proposed electoral bills, regulations or other instruments in good time before such proposals are enacted or otherwise authorised (S.52). 

While the Chief Elections Official is subject to the direction and control of the Commission only (S.37:5) it is also provided that the “question whether [he] has acted in accordance with the directions of the Electoral Commission shall not be enquired into in any court of law” (S. 37:6). The Commission itself is declared to be not subject to outside direction or control (S. 59:11).

 

C            Countries with Chief Election Officials Only 

In terms of responsibility for registration and the conduct of elections, there is a third group of countries, numbering five, in which these functions are vested not in a Commission but a sole elections officer, variously styled. Summarily, the particular constitutional or statutory provisions are: 

(I) In Antigua and Barbuda the Constitution establishes the office of Supervisor of Elections, the holder of which “shall have and exercise such functions, powers and duties as may be provided by law” (5. 67). 

(II) Bahamas: The Constitution states only that parliamentary elections shall take place “in the manner provided by any law in force in the Bahamas” (S. 46:2). The Representation of the People law establishes the office of Parliamentary Registrar who has sole responsibility for the registration of electors and the conduct of elections (S. 12). 

(Ill) Grenada: The Constitution establishes the office of Supervisor of Elections “whose duty it shall be to exercise general supervision over the registration of voters ... and over the conduct of ... elections” (S. 35:1). The Supervisor “may, whenever he considers it necessary or expedient so to do, report to the House of Representatives on the exercise of his functions ...“, such reports to be submitted to the Minister responsible for election matters who is obligated to lay them before the House within a stipulated time period (S. 35:5). Section 35:6 declares the independence of the Supervisor from outside direction or control in the performance of his election duties. 

(IV) Montserrat: The Electoral Provisions Order (1966 No. 1402) assigns responsibility for elections (registration and voting) to the Governor solely, while the Constitution and Elections Ordinance (Cap. 53) provides for a Supervisor of Elections who is responsible (to the Governor) for “general direction and supervision over the administrative conduct of elections” and related matters. 

(V) St. Vincent and the Grenadines: There is constitutional provision for a Supervisor of Elections, independent of outside direction, “whose duty it shall be to exercise general supervision over the registration of voters ... and over the conduct of .... elections”. The officer has discretionary responsibility for the submission of reports on his functions, which must be laid before the House of Representatives. (S.34).

 

The Appointment, Tenure and Removal of

Commissioners and Officials 

The integrity of the region’s electoral systems relies not only on the scope of the powers and functions of commissions, committees and officials, but also importantly on the procedures emplaced for appointment, tenure and removal. With a few exceptions, the Constitutions and statutes, as the case may be, make express provision for these procedures. 

The following is a summary presentation of provisions for appointment and removal for the relevant bodies and officials in each of the thirteen states. 

There are several aspects of the summary presentation which necessarily require explication and elaboration. Primarily, these concern the source of power over appointment and the formal manner of its exercise, the specification of offices and classes of persons to which appointment is in some cases confined, the exclusion of classes of persons from eligibility for appointment in other instances, differences in the composition of bodies and selection of offices which have authority exclusively for constituency review, or for registration and voting, and the location of initiative to effect removal through the tribunal process.