Prime Minister KP Sharma Oli last month visited the Election Commission to enquire about its preparedness for new elections. The visit followed after the government announcement to hold three elections—local, provincial and parliamentary elections—in the next 18 months. For its part, the Election Commission (EC) has made it clear that the legal framework is a perquisite for a free and fair election. Once the elections laws and regulations are put in place, the EC will need at least 120-day pre-election period to hold elections. Election Commissioner Ila Sharma spoke to Akhilesh Upadhyay and Apekshya Shah Rana about the timeline proposed by the government, legal framework that has to be put in place to hold the elections and how reforming the election process will further contribute to fairer elections in the future. Sharma, who holds an LL.M. in International Business law from University of Hull in the UK, has been with the EC since 2013, expressed reservations about two provisions in the new constitution, which, she hinted, could compromise on the autonomy of the constitutional body.

The Cabinet has recently endorsed the roadmap for holding all the elections in the next 18 months. Do you think the timeline is realistic?

We do not have a choice. All the elections need to be held within the 18 months as it is a constitutional imperative. The constitution mandates that three elections—of the local bodies, state assembly and federal parliament—need be conducted by Magh 7, 2074  (January 21, 2018) and everybody needs to be serious about holding them.

Moreover, these elections are not only a constitutional mandate but periodic elections are a must for a democracy. Now that the elected Constituent Assembly (CA) has endorsed the constitution and the CA members have turned into parliamentarians, holding the elections is the next logical step to institutionalising democracy in the country.

How is the sequencing of the three elections?

According to the government’s proposed roadmap, the local elections are to be held first followed by provincial and federal parliament elections respectively. So according to the government’s  timeline the legislation required to hold the local elections need to be in place by Shrawan 2073 (July-August 2016) so that we can hold the elections by Mangsir 2073 (November 2016). The EC will then require at least 120 days to prepare for the elections after the laws are introduced and the states are delineated.

The provincial elections are scheduled for Jestha, 2074 (May-June 2017) and elections for federal Parliament need to be done with by Magh 2074 (January 2018). 

What could be the legal hurdles to conducting the local elections? Don’t we need to delineate the state and constituencies boundaries first to hold the local elections?

Actually we do not have any legal hurdles as such to hold the local elections. We just need the required laws endorsed. The Political Parties Act, Political Parties Registration Act, Election Commission Act, Voters’ Registration Act, Election Offence and Punishment Act will be required for all the three elections. Also the Local Bodies Election Procedure Act or the Local Level Election Procedure Act need to be endorsed by Parliament. After these legal framework are in place, we can draft the procedures and the directives for the local elections.

But the government needs to decide if it wants to hold the elections of the local bodies according to the Article 303 of the constitution or of the local level as envisaged in the constitution. For this, the report of the Federalism Implementation and Restructuring Committee is also required along with the Local Level Election Procedure Act. We have already drafted the Local Bodies Election Procedure Act which awaits endorsement by Parliament and we will finish drafting the Local Level Election Procedure Act by the end of Asar (mid-July). So there could be two scenarios: Hold the local body elections (elections of the existing local bodies according to current state structure) or hold local level election after the new delineation. It’s a political decision.

According to the prime minister, the local body elections will be held first? Where does EC stand?

I feel that the government is still trying to figure out the situation. Initially they were thinking of holding the local level elections first. But then the restructuring committee visited us and in our discussions we reached to the conclusion that the committee most probably will not be able to delineate the boundaries and the constituencies by Bhadra (mid-September 2016), which in turn can delay the local level elections. Thus, we can hold the elections of local bodies for now but will need to hold local level elections later once the boundaries are delineated. 

So how early can we have the required laws in place?

Well, we can only say about EC’s work. It is up to Parliament to put the laws in place. Once the laws—and the report of the restructuring committee in the case of local level election—are in place, we can start the discussion with the government about the date of the election.

The roadmap approved by the Cabinet for the implementation of the constitution, aiming to hold three elections, however, cannot be considered as the actual action plan for the elections. Only the EC has the mandate to announce the election dates.

Is the EC bureaucracy well equipped to prepare for the elections? You are short-staffed and there are only two election commissioners, including the Chief Election Commissioners, in office instead of five commissioners, for example.

Yes, we are short on human resource but we have already started to draft the laws since last year. Many of our qualified personnel have been transferred to other offices and three positions of the commissioners, as you rightly point out, are also vacant. As a result, we have been overworked. It would have been much better if all the commissioners had been appointed by now.

The PM recently visited the EC and offered his views on elections. Has the EC held similar discussions with the opposition parties to ensure that elections are as representative as possible?

Now that we have had discussion with the PM and the restructuring committee, we are thinking of holding a dialogue with all the political parties and the restructuring committee at once so that we can decide whether to hold local bodies or local level elections. 

So a broader political understanding is key to participatory elections for Nepal at this point of time?

The only thing the EC knows is that the elections need to be held on time. Ideally, the election process should not be held hostage to political consensus. But in our case we need all the parties on board—or a maximum number of parties at least—as there will be no point in holding the elections if there is not going to be a broader participation.

The proposed sequencing for the elections is good; only the time factor is a bit tricky. That said, we are not a political body but an authority created to facilitate the election. We will do everything we can to conduct a good election, from drafting the required laws to building political consensus, and yet our mandate is apolitical.

Our only concern is that the elections should be held peacefully, and on time with maximum participation. Things went very smoothly during the previous CA election. So we would want to make sure that the coming elections are held even better. We have our strategic plan to improve our election process and this time we are planning to introduce Electronic Voting Machines in different places and distribute better quality voter IDs before the local elections. We have introduced many reform measures at the policy level to improve the election process.

Could you elaborate?

Our focus is on financial transparency of the political parties. Earlier the EC could revoke a political party’s candidacy if they failed to submit their annual audit report for three consecutive years. But in the new draft we have made the provision stricter and now the registration of the political parties can get disqualified for the elections if they do not submit their audit report every year. Another provision we have included is that if a party is to spend more than Rs25, 000 they have to use banking instrument.

We are also supporting public funding—giving government grant to the contesting political parties with a certain threshold or to the parties that are supporting marginalised groups, such as women or Dalits. We want to do our best to ensure there is a level playing field among all the parties.

There is a certain degree criticism against the EC that it has been relatively toothless when it comes to controlling the political parties in their election expenses and by some high-profile candidates?

For violation of code of conduct quite a few actions were taken in the past 2070 (2013) CA elections. I recall the sitting industry minister being fined for use of government vehicles during the ‘silent period’ and quite a few ‘notes’ were sent to the candidates, including to Pushpa Kamal Dahal and Bamdev Gautam.

The commission also dismissed the registration of 10 political parties in 2068 (2011-2012). Currently, the commission has sent a notice to the parties who have not submitted their annual audit for three years in a row. So the EC is not toothless; we would ideally like to develop a culture of observance of democratic values, instead of perpetually wielding a stick.

You have been in office for a while now and have also observed election commissions in other countries. How autonomous is Nepal’s EC?

Well, yes it is supposed to be, but the provisions in the new constitution do complicate things. One is Article 293 that says, the committees of the House of Representatives may monitor and evaluate the functioning, including reports, of the Constitutional Bodies and offer necessary direction or advice.

The other problematic provision is Article 101, which says at least three members of the House of Representatives will certify and submit a petition on the ground of serious violation of the constitution or incompetence or misconduct, a motion of impeachment can be moved against the chief or official of the constitutional body.

This is a direct and major conflict of interest as the major stakeholders of the election commission are politicians who become lawmakers.

Constitutional bodies owe an allegiance to the constitution, the people and the President. Take for example the reforms that the EC is recommending, many of them may not be popular with the lawmakers and sitting ministers. We must remember the purpose why constitutional bodies were envisaged in the first place: for checks and balances where governments’ or political parties’ or any politician/lawmakers’ influence is undesirable.