The three year term of the Electoral Commission ended on 9th January 2017 and since then the Supervisor of Elections, who reports to the Commission and takes directions from it, has been left unsupervised and is carrying on with preparatory work for the elections.
We ask whom is the Supervisor reporting to and taking directions from? Is it the Minister responsible for Elections who happens to be the Attorney General as well as the General Secretary of the Fiji First Party?
The Constitutional Offices Commission is empowered under Section 13 of the 2013 Constitution to appoint the Chairperson and Members of the Electoral Commission. The COC is chaired by the Prime Minister and its members are the Attorney General, the Leader of the Opposition, two Members appointed by the President on the advice of the PM and one member appointed by President on the advice of the Opposition Leader.
The Member nominated by the Leader of the Opposition lawyer Richard Naidu resigned last year. The current COC is therefore totally lopsided in favour of Government. We also note that the COC Chairperson who is the PM has been empowered to make acting appointments for a period of three months. He used this to appoint the Acting Commander of the Army in August 2015.
Why couldn’t the PM extend the term of the Chenn Bunn Young Chaired Commission for a three-month term using his powers, pending the Commission’s re-appointment or appoint a Commission for another three-year term?
It is deeply concerning that the Elections Office has been running without the constitutionally mandated oversight of the Constitutional Offices Commission especially when the Elections Office is already preparing for the 2018 elections.
The next scheduled general elections can be constitutionally held as early as April 2018, three and a half years into the term of the current Parliament. This is 15 months away. We cannot have the Supervisor of Elections running election preparations at his own discretion against a backdrop of clear conflict of interest from his Minister who is the general secretary of the governing Fiji First.
Furthermore, the Court of Appeal judgment (Civil Appeal ABU 0069 of 2014) was crystal clear in its declaration when it said that:
‘The construction to be placed on sections 76(3) of the Constitution read with section 8(a) of the Electoral Decree requires the Supervisor to comply with all decisions and directions given to him concerning the performance of his functions by the Commission.’
This is a very clear direction from the Court of Appeal and their declaration read against the Constitution places the onus on the Prime Minister to ensure that these legal principles are upheld expeditiously.
An Electoral Commission is needed to ensure the implementation of Recommendations by the Multinational Observer Group (MOG) that observed the 2014 General Election and the 2014 annual report of the Electoral Commission itself.
We know the reports, after a delay, were referred to the Parliamentary Select Committee on Justice, Law and Human Rights. The Committee’s Report should be tabled in the February sitting of Parliament because there was no time for delay if there had to be a truly credible and genuinely free and fair election next year.
The full implementation of the report is a prerequisite to our electoral integrity and for totally free and fair and robust debate among and between political parties and candidates and, most importantly, for the media to amplify, without fear, their voices to the public.
For the sake of transparency and accountability of the electoral process, there shouldn’t be any delay in the appointment of the Electoral Commission. Otherwise, any further delay will in our view constitute systematic election rigging by ignoring the need for the continuous existence of an independent institution.
Professor Biman Prasad