Papua New Guinea elections have frequently been marred by violence, allegations of foul play and complaints regarding electoral roll discrepancies. Against this background, any unusual behaviour in this year’s vote – even tiny deviations – will attract attention. There is, however, a legitimate expectation the Electoral Commission (EC) will be above suspicion.
The EC is an independent constitutional body. Its Commissioner is appointed by a bipartisan committee that includes the Prime Minister and the Opposition Leader. In the performance of its functions, the EC is insulated by the constitution against any forms of control or direction by any person or authority, except those authorised by law. One authority that is authorised to advise the EC, especially during election times, is the Election Advisory Committee (EAC), established under section 96C of the Organic Law on National and Local Level Government Elections (Organic Law). The EAC is an oversight committee with three members drawn from the PNG Ombudsman Commission, Transparency International PNG and the legal profession.
The goal of this governance framework is to ensure the EC’s independence and credibility in conducting democratic elections.
The resignation of the members of EAC a week ago, however, has cast a dark cloud over the EC’s credibility as an independent institution. Among other reasons, the EAC members claim they were starved of certain baseline data and information. They also claim they were not as sufficiently resourced as they should have been by law.
There is much we know about the institution of the EAC, and much we do not. We know it was established in law in 2006 in an effort to prevent a repeat of the experiences in the 2002 elections, where the then-Electoral Commissioner invoked section 97(2) of the Organic Law to declare elections failed in six electorates in the Southern Highlands Province (meaning no candidate was elected in those electorates). Although that section was of limited application, at that time there was no other provision that would have authorised the Electoral Commissioner to intervene when there is violence and foul play in a particular electorate.
The 2006 amendments introduced a separate provision (s.96A) for withdrawing a writ if the circumstances prevailing in an electorate are such that a proper conduct of elections in that electorate is not predictable. Unlike the failure of elections, this provision allows consideration of a broad range of grounds, including violence; election fraud such as hijacking of rolls, ballots or poll workers; and the failure of polls in designated places and times. To make an informed decision, and to allay any accusations of arbitrary or biased decisions, the Organic Law recommends the Electoral Commissioner receive recommendations from the EAC only.
The relevant legislation deals with the EAC in two short sections. It does not detail such matters as how the EAC committee will operate, the chain of command, the flow of information (how the EAC gathers it and from whom), whether its assessments of the EC should be driven by particular incidents, random selection or whether it should attempt to cover an entire election, or, importantly, when the Committee should be activated.
This EAC was activated by the Electoral Commissioner just two weeks before voting began in this year’s election (it has also emerged the EAC was non-operational for the 2007 and 2012 elections, which prompts a whole other set of questions). So by the time the EAC was sworn in, the EC would have been busy mobilising for the polling. That may help explain why the EC paid little attention to EAC’s operations.
I believe the timing of the EAC appointment is key. If the EAC is an important element in the governance framework, why was its formation left so late? Some claim this was by design. While I don’t have evidence that would either confirm or deny this, I don’t think it is likely to be the case. In my view, this tardiness was one more reflection of inadequate preparations for the elections.
Despite this, and the reactions to the EAC resignations (including expressions across the country of a lack of public confidence, as well as scathing observations from observer groups), the Electoral Commissioner remains doggedly determined to successfully deliver an election result. His determination is understandable, especially given this is his first national election. However, the road toward a result is far from smooth. At the very least, it’s clear we need more clarity around what exactly the EAC’s role should be.