The Legal Framework
Legal factors affecting women and elections in post-conflict countries
Non-discrimination and the equal rights of women and men are fundamental principles of international human rights law. Women’s entitlement to full participation in electoral processes is recognized in United Nations and international instruments. In practice, however, women are often marginalized in elections as a result of gender discrimination and any number of social, economic and political factors. This marginalization is often more acute in post-conflict countries owing to volatile security situations, the prevalence of well-entrenched military factions, large numbers of women refugees and other circumstances. Post-conflict legal regimes may reinforce the marginalization of women, as follows:
· The rule of law and the human rights protections it affords women often break down during conflicts;
· Post-conflict countries are less likely to have strong judiciaries and other institutions to protect the rights of women;
· Peace agreements are designed primarily to end conflicts and may not include provisions to protect and advance the human rights of women;
· Interim administrations may devote little attention to women’s rights;
· Parties in conflict States may seek to entrench their own positions in post-conflict settlements rather than supporting broader access to the political process for women or society in general.
Post-conflict countries often establish new political systems, constitutions and laws and are therefore given a rare opportunity to institute fundamental changes that can advance the rights and electoral participation of women.
Basic elements of the legal framework for elections
In post-conflict countries, the peace agreement may stipulate conditions for elections. If so, it is important that the agreement be crafted and implemented with a gender perspective that ensures the protection of and respect for the human rights of women as they relate to the electoral system, as specified in United Nations Security Council resolution 1325 (2000) of 31 October 2000.
A country’s constitution should explicitly guarantee equal human rights for women, including civil, political and electoral rights. If a constitution does not specifically include such language, this may ultimately prove to be a serious impediment to women’s participation.
The constitution and other elements of the legal framework should conform with international human rights instruments, including the Universal Declaration of Human Rights and human rights treaties to which the country is a party, in particular the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women. It is a best practice to incorporate such treaties as part of a country’s constitution, or to specify in the constitution that the treaties take precedence over domestic law.
The election law should be clear, comprehensive and transparent. It should ensure that no element of the electoral process disadvantages women either directly or indirectly. For example, election laws requiring candidates to post large monetary deposits can work against women. Literacy or education requirements may give men an unfair advantage over women. Laws creating too few polling stations can lead to long lines and discourage voting by women with small children. In contrast, gender-sensitive election laws can create an environment in which these and other problems may be avoided, and may even include special positive measures to ensure that women are elected to office. It is important to ensure conformity between the election law and any other national laws on non-discrimination or the equality of women and men.
Election laws often authorize election management bodies to issue legally binding regulations, consistent with the law, on voter registration, campaigning, voting, vote counting, complaint procedures and other issues. These regulations are extremely important. If not carefully drafted, the regulations, like the law itself, may indirectly disadvantage women. When election management bodies are sensitive to gender considerations, regulations that facilitate women’s participation may be issued.
Many other laws can have a bearing on women’s participation in the electoral process. Since political parties play an enormous role in selecting candidates and setting the political agenda for election campaigns, national laws on political parties are often central to women’s participation. Women will enjoy greater opportunities if a country’s laws stipulate that the internal functioning of political parties must be transparent and democratic than if party operations are highly centralized and controlled by a few party leaders. Campaign finance laws can assist or disadvantage women, depending on their provisions. Laws relating to freedom of expression, assembly and association, as well as laws on personal status, the family, citizenship and other such issues can also influence women’s political participation. For example, discriminatory citizenship laws may prevent women—but not men—from passing on their nationality to their children, thus depriving them of the right to vote once they reach the age of majority.
Basic elements of election systems
Democratic election systems are not necessarily gender-neutral. Both the general type of electoral system used by a country and the details of election procedures can have a significant effect on how many women are elected to office. When new election systems are being developed in post-conflict situations, careful account should be taken of these considerations.
Most countries have electoral systems based on either majority vote or proportional representation; more women tend to be elected under the latter system. Proportional systems are those in which political parties present lists of candidates, and voters must choose among competing party lists. Parties receiving sufficient votes are allocated a certain number of seats in proportion to their share of the vote, and the members at the top of those parties’ lists are elected. This is the type of system most commonly used in post-conflict countries. In proportional systems there is a greater incentive for parties to draw up a diversified list of candidates—including women—in order to appeal to a wider base of voters. If women are placed high enough on the party lists, in which candidates are ranked in order of party preference, they will probably win seats in parliament.
In contrast, majority systems generally operate on a winner-take-all basis, with a single seat in each constituency awarded to the candidate securing the most votes. With only one seat available in a constituency, parties are less likely to nominate women as their candidates. New parties, which are sometimes more progressive and may include more women, are also less likely to win seats in majority systems. Incumbents, who are usually men, tend to enjoy an extra advantage in such systems.
A number of countries have adopted variants of the two main systems, and others use mixed systems that combine elements of proportional and majority systems. In one such system, the “single non-transferable vote”, there are several seats to be filled in each constituency, and the candidates with the highest numbers of votes are elected. This system has led to the election of greater numbers of women in at least one new democracy. In general, post-conflict situations offer countries the opportunity to be innovative and to change their electoral systems and adopt procedures that can lead to greater equality for women.
The way in which proportional or majority systems are implemented can also have a major impact on the number of women elected. Examples are as follows:
· In proportional systems, party lists may be “open” or “closed”. Open lists allow voters to mark their preferences for individuals on a list, while closed lists require the voter to select the entire list in the order in which it appears. Closed lists usually improve women’s chances of being elected, provided the women candidates are placed high enough on the lists.
· In some proportional systems, parties must obtain a certain percentage of the total votes cast—say, 3 or 5 per cent—in order to participate in the distribution of seats; this is called the “threshold”. A low threshold works to the advantage of small parties, which may include women’s parties. A system encouraging a proliferation of small parties often works against women, however, because the top places on party lists tend to be filled by men. As a rule, therefore, a higher threshold is likely to result in the election of a somewhat larger number of women.
· In both proportional and majority systems, the country may be divided into electoral districts. In proportional systems, large districts are more advantageous to women, as the larger the district is, the longer the party list will be. When the entire country is regarded as a single district, larger numbers of women are likely to be elected as representatives, provided they are placed high enough on the party lists. In majority systems, however, smaller districts translate into a higher overall number of representatives elected to the legislature, creating more opportunities for women to stand as candidates.
· The geographical distribution of available seats is also an important issue. If rural areas are over-represented in a parliament, as is often the case, this may place women at a serious disadvantage, since more urban women may adopt non-traditional roles and run for office.
According to article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, “adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination …”. Such measures have been applied in a number of electoral systems and have proved to be the most effective short-term means of increasing the number of women elected to office (see box 2.1).
The oldest type of special measure is to set aside a designated number of seats in the legislature for women, who may then be elected off separate lists or in a separate vote. Reserving seats guarantees that a minimum number or proportion of women are elected (see box 2.2). While this policy has the advantage of ensuring some women are elected, it can lead to tokenism if only a very small number of seats are reserved, and may ultimately be counterproductive. For example, reserved seats can create a glass ceiling and take the onus off political parties to address the issue of inequality within their own ranks.
An even more effective special measure is to require or strongly recommend that party lists include a certain proportion of women. In some countries compliance is required by legislation, while in others parties have voluntarily adopted quotas or targets. Such measures will achieve the desired results only if women are placed high enough on party candidate lists to be elected to office. A “zippered” or “zebra” list, in which every other candidate is a woman, will often provide the best prospects for women seeking election. However, even a perfectly zippered list can be undermined if the country uses an open list system, which allows voters to reorder candidates on the list. Experience shows that it is critical to have an enforcement mechanism to ensure that parties abide by any legal requirements governing the placement of women on candidate lists.
Temporary special measures have been the most effective means of ensuring the election of women in post-conflict countries. However, the benefits of incorporating such measures into electoral systems and the long-term effects they may have within specific contexts should be carefully considered by all national and international entities involved in developing and instituting post-conflict electoral processes. Special measures are more likely to produce results if they are accompanied by long-term policies and commitments—including legal measures, resources and capacity-building—to strengthen women’s effectiveness as voters, candidates and elected officials. In general, including women in government through special measures broadens democracy and contributes to effective peace-building.
Another strategy is to adopt legislation to achieve gender equality in electoral systems, as actual laws generally imply greater permanence and compulsion than special measures. For example, a law can require that party lists include designated percentages of men and women. Laws written in this way, with specific provisions for each sex, apply equally to women and men.
Implementation and enforcement
Even the best legal framework will be of little value in advancing democratic elections or enhancing women’s participation unless it is adequately implemented and enforced. There are a number of potential obstacles to implementation. In some instances, there may not be a government department or agency with the authority or the political will to enforce election regulations concerning women’s participation. For example, the election management body responsible for running an election may not have the power to enforce its rulings against political parties failing to comply with the law. In other cases, judicial and police reform and training may not have kept up with legislative reform. Another problem may be that women are unaware of their rights—a possibility that underscores the importance of effective voter education campaigns targeting women.
Weak enforcement of election laws can often be more detrimental to women than to men. For example, in post-conflict countries with volatile security situations, women voters and candidates are more likely than the corresponding groups of men to be subject to intimidation. In countries in which refugees and displaced persons must be registered, any discrepancies are more likely to disenfranchise women. Inadequate enforcement of campaign spending limits can work to the disadvantage of women candidates, who often have fewer financial resources than their male counterparts.
A key element in the implementation and enforcement of election laws is the effectiveness of the judicial system and dispute resolution mechanisms. Election complaints generally must be resolved in a very short time frame, whether they concern individual grievances such as omissions from the voter register or larger matters such as candidate disqualification or vote rigging. Women must acquire a basic understanding of the election complaint system, especially the courts, and have the ability and confidence to use this knowledge. Easy access to the courts is essential, and legal assistance should be made available. Under international human rights law, all individuals have the right to seek effective remedies if their rights are violated.
Legal frameworks for electoral processes in post-conflict countries should be gender-sensitive and should ensure gender balance in all bodies involved in elections. The constitution and other legal instruments should guarantee non-discrimination and the equality of women and men. Special measures, including quotas, can increase women’s representation and should be carefully considered when election systems are designed. Care should be taken to ensure that the legal and regulatory framework does not include provisions that allow or support indirect discrimination against women. Governmental, international and civil society actors can all contribute in different ways to ensure that the legal framework guarantees women equal rights in the electoral process and enhances their participation in elections.
Government actors should:
· Ensure their laws comply with international human rights standards;
· Include women in discussions and negotiations leading to the adoption of new electoral systems and electoral laws, as well as in the bodies responsible for the implementation of such systems and laws;
· Review legislation and regulations to identify elements that may hinder women’s participation in elections and amend the laws to rectify any problems identified.
International actors should:
· Include a specific reference in their mandates to United Nations Security Council resolution 1325 (2000) of 31 October 2000;
· Encourage the adoption of a legal framework that guarantees women the right to full and equal participation in elections;
· Assist with a gender analysis of the legal framework for elections to identify shortcomings and propose remedies;
· Ensure that promoting international human rights law is part of the mandate of peacekeeping missions;
· Encourage the creation of new institutions and offices dedicated to empowering women and advancing their political rights, including ombudspersons, human rights commissions, and ministries of women’s affairs;
· Facilitate the exchange of information and best practices on women and elections;
· Provide information on special measures to increase women’s representation and encourage their adoption.
Civil society actors should:
· Lobby for women to participate as members and decision makers in bodies involved in electoral processes;
· Support gender equality through the presentation of position papers on such issues as international legal instruments, internal party democracy and special measures;
· Monitor the Government’s implementation of peace agreements and electoral processes to facilitate full and equal participation by women;
· Work to ensure displaced and refugee women are not legally disenfranchised;
· Develop coalitions to galvanize support for constitutional and electoral reform;
· Provide training on gender equality and human rights for members of electoral management bodies.