Labour Leader Mahendra Chaudhry looks at recent worrying developments including questionable changes to the electoral legislation in relation to the upcoming 2022 general elections.
Are we really going to have free and fair elections in 2022?
This is the question many are asking today. There is considerable disquiet among opposition political parties, the legal fraternity, civil society and other right minded observers about where recent developments are leading this country.
The court ruling in the case of Sodelpa MP Niko Nawaikula that the Supervisor of Elections (SOE) Mohammed Saneem had acted “wrongfully and unlawfully” in removing him from the National Voters Register, has opened up a Pandora’s box of issues.
It is rather disconcerting to see the Minister for Elections (who is also general secretary of the Fiji First Party), and the Chairman of the Electoral Commission, jump promptly to the SOE’s defence and call for the law to be changed.
It also raises issues regarding the independence (or lack of it) of the Electoral Commission vis a vis the Supervisor of Elections and the Elections Minister. As it is, at least two members of the former Electoral Commission have alleged high ministerial interference in the affairs of the Elections office and the Commission.
Besides, one also notices a worrying step-up in the harassment and intimidation of those who speak out or criticise the government, as evidenced by the recent arrests and questioning of opposition leaders and parliamentarians, as well as ordinary citizens, including a person who was arrested at midnight.
Adding to such concerns, are several legislative changes brought in recently which grant unrestrained powers to the Electoral Commission (explained later), or make little sense except to harass opposition political parties in the run up to the elections.
One such legislation rushed through Parliament in July, is an amendment to the Electoral Act that was sneaked in by the Economy Minister as an appendage to Bill 29 of 2021, to amend the Financial Management Act, 2004.
Notwithstanding the Speaker’s ruling in the matter, I believe that as an amendment to the Electoral Act, it should have been tabled as a separate Bill and not allowed as a consequential amendment arising from the amendments to the Financial Management Act.
This amendment which appears to have completely escaped the attention of the parliamentary opposition, can drastically undermine the ability of the opposition parties to mount an effective campaign.
What is the new law?
The new law inserted as completely new sub sections (4C) and (4D) to Section 116 of the Electoral Act, requires any political party, candidate for election or any other person representing or acting under the direction of the political party or candidate who:
(4C) “makes a financial commitment, whether orally or in writing … must immediately provide a written explanation setting out the following information
(i) how revenue for the financial commitment is to be raised
(ii) how expenditure for the financial commitment is to be made
(iii) how expenditure is to be allocated to different sectors and budget sector agencies; and
(iv) if expenditure exceeds revenue, how the deficit is to be financed
(4D) : For the purposes of subsection (4C) “financial commitment” means any commitment made as part of a campaign for a general election, where the implementation of the commitment after the general election has financial implications.
The amendment, however, does not state to whom the written explanation must be made.
In simple layman’s terms this is what the inserted (4C) means: If in an election campaign, a party leader promises that his/her party will, say, build a bypass road to ease traffic congestion in Labasa town, he/she will have to immediately issue a written explanation stating how much it will cost to build the road, where the money for it will come from and how the expenditure will be allocated in the government’s account books.
The amendment requires that the written explanation must be made “immediately”. Now, the Oxford dictionary explains immediate as ‘at once’ or ‘instantly’ without any intervening time or space.
Failure to do so could lead to a fine of up to $50,000 and/or a jail term of up to 10 years because the amended law makes it a serious criminal offence – how preposterous!
Election campaigns are normally centred around the manifestos of political parties. These are documents where the parties set out their vision for the nation and state specifically how they intend to address social, economic and governance issues facing the nation. Rarely, if ever, will there be a manifesto that does not entail public expenditure.
Under this amendment, however, every proposal contained in a manifesto or mentioned in a campaign speech, will require to be “explained” in writing setting out among other things, where the money for it will be sourced.
Of course, the money for all such things will come from government coffers under the appropriate Budget allocation – where else? Quite ridiculously, explanation is also required on how the deficit arising from the expenditure exceeding the revenue will be financed.
Surely, the Economy Minister must know that Budget deficits arising from excess of expenditure over revenue relate to the whole of expenditure over the whole of revenue for the fiscal year and it is not or cannot be computed on the basis of individual projects.
What then is the intention behind such silly enactments?
Is it to discourage the opposition from taking up as campaign issues the urgent need to increase the national minimum wage rate or to remove VAT on basic food and household items etc to provide relief to the poor – issues that weigh heavily against the FF government’s policies.
Whatever it be, all signs point to a tightly controlled election with more oppressive amendments to the electoral and political parties legislations likely.
To me, it is quite hilarious that a government that has grossly mismanaged State finances over the past 12 years, taking the nation to the brink of bankruptcy, should suddenly awaken to the need for accountability and financial prudence.
But Economy Minister and Attorney General Sayed-Khaiyum has a record of requiring accountability from everyone except himself. This is probably why we still have not seen the constitutionally mandated Code of Conduct and Freedom of Information legislations enacted to hold ministers and others in high public office accountable.
Removal of the right of appeal to courts
Equally disturbing is an amendment to the Political Parties Act (Act 11 of 2021) which removes an aggrieved person’s right of appeal to the High Court against decisions of the Registrar of Political Parties.
Under the amendment, appeals must now be made to the Electoral Commission.
In my view, the Commission cannot be seen as independent of the Registrar who in his capacity as Supervisor of Elections, is also secretary to the Commission. There is a clear conflict here.
The amendment is also unconstitutional. Section 15 (2) of the Bill of Rights in the 2013 Constitution states:
“Every party to a civil dispute has the right to have the matter determined by a court of law or if appropriate, by an independent and impartial tribunal.”
Delegating this right to the Electoral Commission which I reiterate is not truly independent or impartial of the Office of the Registrar, is tantamount to denying the complainants their constitutional rights.
In conclusion, all I can say is that these are the ominous signs of things to come. I urge opposition political parties and civil society organisations to be vigilant. They must stand up to such oppressive measures and fight them if we are to look forward to free and fair elections.
The only way to do so effectively is through a united front.