jasmine foundation briefing: tunisian new elections law

JF Briefing

TUNISIA’S NEW

ELECTORAL LAW

2014

Prepared By

Jasmine Foundation Researchers

MAY 2014 www.jasmine-foundation.org

JF Briefing | TUNISIA’S NEW ELECTORAL LAW 2014

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Tunisia’s National Constituent Assembly passed, on 1st May, a new

Electoral Law, marking a key step towards completing its democratic transition.

The new Fundamental Law on Elections and Referenda, adopted by 132 deputies

with 11 against and 9 abstentions, sets out the process for organising elections

and referenda, from registration of voters to declaration of results and

contestation mechanisms.

It comes as a result of two months of discussions within the Assembly and

intense debate in the Consensus Committee (set up last June as a forum for

political parties to debate the most contentious points within the Constitution

and the democratic transition). The law is based on draft proposals by a group

of civil society organisations, including Chahed Observatory, ATIDE, Youth

without Borders, the Foundation for the Future and the Centre for Citizenship.

The law was first discussed in the General Legislative Committee of the Assembly,

which examined the proposals article by article, collecting opinions and

feedback from Committee members. The Committee then held open hearings

with stakeholders on their views on the proposals, the electoral process and

lessons learned from the last elections. The Committee also held open hearings

with civil society organizations, representatives of the Tunisian diaspora, the

Independent Higher Authority for Elections (ISIE), the Higher Authority for

Audiovisual Communication (HAICA) and the Court of Auditors. The Committee

also held a hearing with experts from the United Nations Development Program

(PNUD), the International Organization for Elections and the Council of Europe’s

Venice Commission.

A number of deputies had proposed a draft that sought to disqualify any

individual who had held a position within a government in Ben Ali’s era from

standing, as well as those who had held a position within the dissolved former

ruling RCD party. The issue has been heavily debated among parties and the

public for months, with calls for “preserving the revolution” by excluding all

those who were closely associated with the old regime from standing and

returning to power, as was seen in a number of post-Communist states in

Eastern Europe. Those against cited Constitutional guarantees of equality before

the law, while some opposed the law on the basis that excluding old regime

figures from the race would encourage them to use all means to abort the

elections and make them fail, thus endangering the democratic transition. The

highly charged debate led to emotional scenes outside the Assembly as relatives


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of those who were killed during the revolution protested outside and deputies

inside the Assembly broke up the session after the proposal failed to be passed,

with only 100 votes for, 27 against and 46 abstentions, falling short of the 109

majority required.

The law sets all the stages and procedures relating to any party, entity or

authority involved in the electoral process, defining the powers of each of those

parties.

Below is a translation by Jasmine Foundation of the key provisions:

All Tunisians registered in the electoral register, over 18 years of age may vote,

unless they (a) have a conviction under article 5 of the Penal Code; (b) are

members of the Armed Forces or Security Forces; or (c) are mentally

incapacitated.

The law requires individuals to meet the following conditions in order to stand:

have held Tunisian citizenship for at least 10 years, be over 23 years of age and

not barred from standing by virtue of any law.

The law requires 50-50 representation of male and female candidates on all lists,

to be listed alternately, so-called “vertical parity”. A proposal to impose an

additional requirement for “horizontal parity”, i.e. that 50% of a party’s lists must

be headed by a female candidate and 50% headed by a male candidate, was

rejected.

The final text adopted states: “Candidacies are presented on the basis of the

principle of parity between women and men and the basis of alternation

between them on the list. A list that does not respect this principle will not be

accepted except in relation to constituencies having only one representative.”

The law requires every electoral list in a constituency with four seats or more to

have, among its top four candidates, at least one candidate under the age of 35.

Any list not meeting this requirement will have half of its public funding withheld.


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The law bans individuals from simultaneously holding membership of the

legislature and the following positions:

member of the Government;

official position in any state institution or company in which the state has

a stake;

member of elected official local bodies;

official position in a foreign state institution; or

Official position in an intergovernmental organization or international

institution.

The law requires presidential candidates to be at least 35 years of age, have held

Tunisian nationality since birth, and to be a Muslim.

Applications for candidacy must be supported by either 10 members of

Parliament, 40 presidents of local councils or by 10,000 voters from at least 10

districts.

Presidential candidates must provide a deposit of 10,000 dinars that will only be

reimbursed if they attain at least 3% of the vote.

Electoral and referenda campaigns begin 22 days before the date of voting. This

campaign period is preceded by a pre-campaign period of 3 months. The

campaign period ends 24 hours before the day of voting.

Campaigns must respect the following principles:

- neutrality of the administration and places of worship

- impartiality of national media

- transparency relating to campaign financing expenditure

- equity and equality of opportunity between all candidates

- respect for physical integrity, honour and dignity of all candidates and

electors

- respect for the private life and personal details of candidates


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- not inciting to hatred, fanaticism or discrimination.

Article 53 states that it is prohibited to distribute literature or disseminate

slogans relating to election or referendum propaganda in public administration

institutions or publicly owned companies by the head of the institution, its

employees or agents. It is prohibited to use resources of public institutions for

the benefit of a party or candidate or list, and any such use is punishable with six

months’ imprisonment.

Article 54 prohibits all election or referendum propaganda in schools,

universities, training institutions and places of worship.

Violation of these prohibitions is punishable by a fine of between 2000 and 5000

Dinars.

Article 57 prohibits political advertising throughout the campaign period. It

permits party newspapers to publish adverts for the political party to which it is

linked, during the campaign period. Violation of this prohibition is punishable by

a fine of between 5000 and 10,000 Dinars.

It is permissible for presidential candidates to use political advertising.

The publicity means permitted to candidates during the campaign period

include announcements, public meetings, demonstrations, rallies, and publicity

in all audiovisual media, print and electronic press, among others. The ISIE must

be informed of any activity in writing at least two days prior to the event.

Article 62 states that local authorities shall provide spaces during the campaign

period dedicated to campaign posters, with equal space provided for each

candidate, list or party. All campaign posters outside these spaces are prohibited.

It is prohibited to remove, cover or deface the poster of another candidate, list

or party. Any violation of this shall be punishable by a fine between 500 and

1000 Dinars.

The HAICA guarantees the right to access to media for all political groups in the

pre-campaign period, according to the principle of pluralism.


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The HAICA guarantees pluralism and diversity in the audiovisual media during

the campaign period and the removal of all obstacles to equal access to

audiovisual media for all candidates, lists and parties.

Article 66 permits candidates to use national and electronic media in their

campaign. It forbids the use of foreign media, with the exception of lists for

electors outside Tunisia during legislative election campaigns. Violation of this

prohibition is punishable by a fine of between 2000 and 5000 Dinars.

Article 69 prohibits the use of media for any campaigning during the “silent

period” (24 hours prior to voting day). Violation of this prohibition is punishable

by a fine of between 3000 and 20,000 Dinars.

Article 70 prohibits the dissemination or publication of the results of surveys,

polls or studies relating to elections or referenda during the campaign period

and the silent period. Violation of this prohibition is punishable by a fine of

between 20,000 and 50,000 Dinars.

The ISIE is charged with monitoring respect for legal rules, principles and

procedures by candidates, lists and parties during campaigns. It is empowered

to take the necessary measures to bring infringements to an end.

The HAICA is charged with monitoring compliance with the prohibition on the

use of foreign media during the campaign. It shall inform the ISIE of any

violations and is empowered to take decisions relating to violations.

Electoral and referendum campaigns can be self-financed by a candidate, list or

party, by private donations or by public financing, in accordance with the law.

All foreign financing (financing which originates from outside Tunisia) is

prohibited, except in the case of lists and candidates in districts outside Tunisia.

Any violation of this prohibition is punishable by a fine equal to 10 to 50 times

the amount of the foreign financing. All members of the electoral list shall lose

their seats in the Assembly. In the case of presidential elections, the candidate

shall be punished with five years’ imprisonment. Any person found guilty of such

a violation shall be disqualified from standing in the following legislative and

presidential elections.

Private donations can only be received from physical persons, earning over 20

times the individual minimum wage in the non-agricultural sector, in relation to


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legislative elections, or 30 times the minimum salary in relation to presidential

elections or referenda.

All candidates shall be granted an equal amount of public financing. 50% of this

is granted before the start of the campaign. The second half shall be paid one

week after the announcement of the final results of the election, on the

condition that the candidate presents proofs of expenditure and deposits their

campaign accounts before the Court of Auditors.

Any candidate obtaining less than 3% of the national vote and any list obtaining

less than 3% of the vote in the relevant district and not gaining any seat in the

Parliament shall be obliged to refund all public financing. All candidates and lists

shall return all unused public funds. Any individual, list or party violating these

rules shall not be granted any public financing in future elections.

Article 81 provides that a ceiling for total campaign financing, private financing

and public financing can be set by way of governmental decrees, after

consultation with the ISIE.

Each candidate, party or list must open a single bank account for all campaign

finances. The candidate, party or list must appoint and inform the ISIE of a single

representative responsible for managing the finances and responding to any

questions relating to finances during the campaign.

Article 84 requires that each political party presenting more than one list in the

election must maintain integrated accounts for all financial dealings in all the

districts in which they have put forward an electoral list.

Article 85 requires that all expenditure be justified with authentic and reliable

documents. Any payment over 500 Dinars must be completed by way of cheque

or bank transfer.

Each candidate, party or list must present an original set of its accounts and

proofs of expenditure to the Court of Auditors, along with accounts for each

district as well as accounts for the whole campaign, no more than 45 days after

the announcement of the final results of the election.

All electoral lists in legislative elections, all candidates in presidential elections,

and all parties in referenda shall publish their accounts in a national daily

newspaper no later than 2 months after the announcement of final results.


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The ISIE is responsible for monitoring compliance with campaign financing rules,

and ensuring compliance in cooperation with other public bodies, including the

Central Bank of Tunisia, the Court of Auditors and the Ministry of Finance.

The Court of Auditors is responsible for monitoring the incomings and

outgoings relating to campaign finances of all electoral lists, candidates and

parties. It shall prepare a public report of its findings within six months of the

announcement of the final results.

If an electoral list, candidate or party fails to present its accounts to the Court of

Auditors as required, the Court may impose a fine amounting to 25 times the

maximum threshold for campaign expenditure and disqualify all members of the

Assembly elected from that list.

If the Court decides to reject the accounts of an electoral list, candidate or party,

without the latter having exceeded the maximum threshold for campaign

expenditure, the Court may impose a fine amounting to 10% of the maximum

threshold for campaign expenditure.

If an electoral list, candidate or party exceeds the maximum threshold for

campaign expenditure, the Court may impose the following penalties:

- a fine equaling the excess amount spent over the maximum threshold for

campaign expenditure, if the excess amount is less than 10% of the

maximum amount for campaign expenditure;

- If the amount spent exceeded the maximum threshold for campaign

expenditure by 10-30%, a fine amounting to 10 times the excess amount;


expenditure by 30-75%, a fine amounting to 20 times the excess amount;


expenditure by over 75%, a fine amounting to 25 times the excess

amount, and disqualification of all members of the Parliament elected

from that list.

Article 99 gives the Court to power to impose a fine between 500 and 2500

Dinars on any candidate or electoral list or party that obstruct its work by

delaying the submission of required documents.


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Elections are announced by a Presidential order at least three months before the

voting day, in the case of legislative and presidential elections, and two months

in the case of a referendum.

Voting takes place on one day, either on a weekend or national holiday. In the

case of Tunisians abroad, voting shall last three consecutive days, with the last

day coinciding with Election Day inside Tunisia. The second round of presidential

elections shall be held within two weeks of the announcement of the first round

results.

Electoral districts for legislative elections shall be set by way of a law, passed at

least one year before legislative elections.

Legislative elections shall have one round of voting. Seats are allocated for each

district using the Proportional Representation with Largest Remainders system.

The electoral quota for each district – i.e. the minimum number of votes

required for a party or candidate to win a seat in that district - is calculated by

dividing the number of votes cast (excluding blank ballots) by the number of

seats available in that district.

Electors shall choose an electoral list.

The President is elected by a majority of votes cast. If no candidate wins a

majority of votes cast, a second round shall be held within two weeks of the first

round, between the two candidates who gained the highest number of votes in

the first round. The winner is the candidate with the highest number of votes. If

the candidates win an equal number of votes, the older candidate shall be the

winner.

A referendum is announced by way of presidential order, accompanied by a

copy of the subject of the referendum, and published in the Official Gazette.

The referendum is won by a majority of votes cast.


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Voting is personal and cannot be carried out by a third party. Voting shall be by

way of a single ballot paper in legislative and presidential elections and

referenda. It shall be designed and printed in colour by the ISIE, ensuring clarity

and precision. The names of candidates and lists shall be arranged in a column,

to avoid any confusion for voters. An example of a ballot paper shall be

published on the website of the ISIE prior to the beginning of the election

campaign.

The ISIE shall establish a list of polling stations in every electoral district, and

shall seek to ensure that each polling station has a maximum of 600 voters. The

ISIE shall appoint heads of polling stations, on the basis of integrity, impartiality

and independence. No staff in a polling station may be related to a candidate or

employed by him or her, or a member of a political party. It is prohibited for

staff or head of a polling station to have held a position of responsibility in the

dissolved Rassemblement Constitutionnel Democratique Party (former ruling

party).

Each electoral list, candidate or party may appoint representatives to be present

in polling stations on Election Day. No such representative, or observers, may

display any symbol indicating affiliation to a political party.

Article 128 prohibits any campaigning inside polling booths or stations or in their

vicinity.

Article 131 requires polling stations to facilitate the participation of voters with

disabilities. Article 132 gives blind voters and voters with a disability preventing

them from being able to write the right to choose an assistant to accompany

them during voting, who shall be an eligible elector and related to them. The

role of the assistant is limited to doing those acts that it is difficult for the voter

to do.

Any violation by an assistant to a disabled voter of the voter’s right to

confidentiality shall be punishable by a 500 Dinar fine.

Ballot papers shall be sorted publicly in the presence of observers and

representatives of electoral lists (in the case of legislative elections) or

representatives of candidates (in the case of presidential elections) or

representatives of parties (in the case of referenda).

Blank ballot papers are counted as part of the election results.


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At the end of the sorting process, all staff of the relevant polling station and

representatives of lists, candidates or parties sign the minutes of the sorting

process. The observers and representatives can request for their observations

and reservations to be included as an annex to the minutes and the head of the

polling station shall document and include them.

The minutes shall be hung in front of the polling station, and a copy placed

inside the ballot box.

The ISIE monitors and collects results from polling stations, and examines any

claims of irregularities. It can order a re-count in any district, and can annul the

results in any district if it believes there are fundamental irregularities in the

voting and sorting process. If this annulment is likely to affect the allocation of

seats in a district, the ISIE shall repeat the voting process in the relevant district.

The ISIE may disqualify a winning candidate or list if that candidate or list has

violated the restrictions relating to the campaign period and financing, if the ISIE

believes such violation has had a fundamental effect on the results. In such a

case, the results shall be recalculated, excluding the disqualified candidate or list.

The ISIE shall announce the results within three days of the end of voting and

sorting of votes. Appeals against the results may be submitted to the

Administrative Court within three days of their announcement. Appeals may be

submitted, in the case of legislative elections, by the head of an electoral list or

one of its members or a party’s legal representative, and in the case of

presidential elections, by a candidate.

Staff of polling stations can be fined where they cause a delay in the election

process without valid excuse.

Any head of a polling station who fails to open a ballot box in front of

representatives or observers before the beginning of the voting process in order

to check that it is empty shall be punished with one month’s imprisonment and

a fine of 1000 Dinars.

Any person who uses fraud, or conceals grounds for disqualification or attempts

to vote at more than one polling station shall be punished with six months’

imprisonment.


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Any person who attempts to enter a polling station to violate voter

confidentiality or the fairness of the electoral process shall be punished with one

year’s imprisonment and a fine of 1000 Dinars.

Any person who abuses polling station staff during their fulfillment of their

functions, causing the suspension of voting, shall be punished with one year’s

imprisonment and a fine of 1000 Dinars.

Any person caught giving donations to voters with the aim of influencing their

vote, obstructing voters from voting or sneaking ballot papers out of a polling

station shall be punished with between six months’ and three years’

imprisonment and a fine of 3000 Dinars.

Any person who violates another’s right to vote with the use of violence or

threat of violence, whether direct or indirect, the threat of loss of employment,

or of some form of harm to the voter shall be punished with between three and

five years’ imprisonment and a fine between 3000 and 5000 Dinars.

Any person who seeks to cause chaos and disturbance at a polling station or in

its vicinity or uses public gatherings or demonstrations to disturb the voting

process shall be punished with between three and five years’ imprisonment and

a fine between 3000 and 5000 Dinars.

Any polling station staff or individual caught committing electoral fraud or

procuring others to do so shall be punished with six years’ imprisonment and a

fine of 5000 Dinars.

Any person who attacks or breaks into a polling station, election office or

counting office using violence in order to obstruct the election process shall be

punished with six years’ imprisonment and a fine of 5000 Dinars, and ten years’

imprisonment if it involved the use of weapons.

Any person punished with one year’s imprisonment or over under this law can

also be punished with disqualification from voting for between two and six years.


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