Electoral Quotas and the Challenges of Democratic Transition in Conﬂict-Ridden Societies

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Electoral Quotas and the Challenges of Democratic Transition in Conﬂict-Ridden Societies

A NORDEM SPECIAL REPORT 2011

Nils A. Butenschøn and Kåre Vollan

With contributions by Bjørn Erik Rasch and Tonje Merete Viken September 2011

The Norwegian Centre for Human Rights

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Electoral Quotas and the Challenges of Democratic Transition in Conﬂict-Ridden Societies A NORDEM Special Report

Editor: Siri Skåre Copyright:

Norwegian Centre for Human Rights, (NCHR)

The Norwegian Resource Bank for Democracy and Human Rights (NORDEM) Nils A. Butenschøn and Kåre Vollan

Quotations and extracts from this report may be reprinted by permission and if accompanied by source information.

This report is published electronically in a pdf version on the NCHR web pages:

http://www.jus.uio.no/smr/english/about/programmes/nordem/

NORDEM is a programme at

The Norwegian Centre for Human Rights The Faculty of Law

University of Oslo

P.O. Box 6706 St. Olavs plass NO-0130 Oslo

NORWAY info@nchr.uio.no

Front page photo: Kåre Vollan. Printed by permission ISBN 978-82-8158-071-8

Technical consultant: Christian Boe Astrup/NCHR Printed by: 07 Gruppen AS

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Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies

Nils A. Butenschøn and Kåre Vollan

With contributions by Bjørn Erik Rasch and Tonje Merete Viken

September 2011, re-issued with corrections September 2014

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Nils A. Butenschøn and Kåre Vollan:

Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies A NORDEM Special Report

Norwegian Centre for Human Rights, (NCHR)

The Norwegian Resource Bank for Democracy and Human Rights (NORDEM) Nils A. Butenschøn and Kåre Vollan

Quotations and extracts from this report may be reprinted by permission and if accompanied by source information.

This report is published electronically in a pdf version on the NCHR web pages:

http://www.jus.uio.no/smr/english/about/programmes/nordem/

NORDEM is a programme at

The Norwegian Centre for Human Rights The Faculty of Law

University of Oslo

P.O. Box 6706 St. Olavs plass NO-0130 Oslo

NORWAY info@nchr.uio.no

Front page photo: Kåre Vollan. Printed by permission ISBN 978-82-8158-071-8

Technical consultant: Christian Boe Astrup/NCHR Printed by: 07 Gruppen AS, Oslo, Norway

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Preface

Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies is a project organised under NORDEM, the Norwegian Resource Bank for Democracy and Human Rights at the Norwegian Centre for Human Rights, University of Oslo. The basic purpose is to contribute to the filling in of what we consider to be a gap in our understanding of the significance of the type and design chosen for electoral laws and systems in critical stages of political transition from open conflict to democratic stability in conflict-ridden societies. We look particularly into cases of conflicts between socio-cultural groups mobilised along ethnic, religious, and linguistic cleavages.

This report addresses an aspect of a classical theme in political analysis: How can designing a political system contribute to overcoming deep-seated conflicts in society? Peace agreements after civil wars should seek to overcome the mistrust and enmity between the groups, possibly overcoming the conflict-producing cleavage structure itself. The assumption is that

democracy and stability are strengthened if citizens see their interests in terms of socio- economic factors across cultural divides rather than in terms of socio-cultural identities. The recommendation would therefore be to encourage types of political representation that criss- cross cultural divides in society. On the other hand, a democratic system should also reflect real opinions and interests in society as the voters themselves define them. We observe that in most post-conflict societies, the political system tends to be organised along the ethnic divides that defined the previous conflict. The dilemma then is how a democratic principle of

representation that tends to reflect group-based identities can contribute to overcoming group- based conflict dynamics. This is where electoral quotas come into the picture: What are the effects of introducing quotas? Will they contribute to democratic stability or rather preserve and strengthen the cleavages that led to open conflict in the first place?

In addition to the three cases of Lebanon, Bosnia and Herzegovina and Nepal, the report includes a broad overview of all relevant systems in the world where such quotas are applied (Chapter 3). We believe that this has a value in its own right as a catalogue of applied quota systems. It furthermore gives a valuable empirical context for the comparative discussion and the “tool box” developed in the concluding chapter. Researcher Tonje Merete Viken wrote a draft version of Chapter 3 and collected the data for that chapter. She also drafted part of the chapter on Bosnia and Herzegovina. Professor Bjørn Erik Rasch, Department of Political Science, University of Oslo, has commented throughout the process on all parts of the report and contributed particularly to Chapter 2. Siri Skåre, Director of International Programmes at the Norwegian Centre for Human Rights, has had the administrative responsibility.

We would like to thank the Norwegian Ministry of Foreign Affairs for their generous support making this study possible and for their patience regarding the completion of the final product. We are also grateful for the invaluable support we received by Norwegian embassy personnel in conducting our fieldwork for the case studies.

Oslo, September 2011,

Nils Butenschøn and Kåre Vollan

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1: Introduction

1.1 The Purpose of the Study

Within the tradition of democratic theory, models of power-sharing can be considered as modifications of the classical liberal principle of 'one person-one vote'. For a variety of reasons, this principle of organising a political order – when strictly applied in national elections – does not always produce institutional outcomes that give every group of citizens adequate protection of their core rights and interests or a fair say in the running of their country. This is because political institutions composed on the basis of aggregate individual votes do not always meet the requirements for reconciling or managing conflicts in societies that are collective in nature. The democratic dilemma that this situation creates is particularly typical of deeply divided societies. Minorities who are constantly and systematically outvoted or otherwise marginalised in the political process might easily feel trapped in a position of democratic deficiency, lose confidence in the political system, and seek non-democratic ways in the struggle for their interests. This is why models of group-based power-sharing are frequently being discussed as ways in which new democratic institutions can replace or be introduced as complementary to existing ones in conflict-ridden societies.

In this way, electoral laws and decision- making procedures can be critical factors in peace processes and mechanisms of transitional justice from open conflict to democratic stability.

This study focuses on the significance and application of such factors and mechanisms as they can be observed both in the form of an overview of global trends and in three countries chosen as cases for more detailed analysis: Nepal, Bosnia and Herzegovina, and Lebanon.

On the global scale, we find that countries apply a whole range of constitutional provisions and other formal or informal arrangements and rules meant to secure or facilitate the politics of compromise between groups. Strengthening political stability within the existing

constitutional order is normally the aim of such arrangements. They can be found at different institutional levels in a state, and they vary in nature according to the underlying tensions that they seek to address. States with deep-seated geographical divisions will, for example, tend to be organised as federations where the constitutive parts are equally represented in a national decision-making body (i.e., a senate) with qualified veto powers, irrespective of the relative demographic strength of each part. In other situations, the purpose of power-sharing

mechanisms can be to accommodate demands for minority rights or to define modes of power distribution between multiple groups of varying sizes within a unitary state. Arend Lijphart, in one of his well-known studies of power-sharing, explains:

Especially in plural societies – societies that are sharply divided along religious, ideological, linguistic, cultural, ethnic, or racial lines into virtually separate sub- societies with their own political parties, interest groups, and media or communication – the flexibility necessary for majoritarian democracy is absent. Under these

conditions, majority rule is not only undemocratic but also dangerous, because

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minorities that are continually denied access to power will feel excluded and discriminated against and will lose their allegiance to the regime.¹

The use of quota systems, reserved seats and other deviations from the 'one person-one vote' principle might be to secure a proportional representation of votes that would otherwise not be realised. But it might also be used to create disproportional representation (positive discrimination) if that is considered conducive to stability in the society at large. Such arrangements are typically introduced as negotiated outcomes of protracted conflicts between communal groups where the dominating dividing cleavage is ethnic, religious or linguistic, or a combination of the three. Power-sharing along such lines is often described as

‘consociational’ and the corresponding political system as ‘consociational democracy’, a term coined by Arend Lijphart. Lijphart’s work has had a significant impact on contemporary discussions among academics and electoral experts on the questions of power-sharing as a solution to democratic dilemmas in deeply divided societies.

While there might be many good reasons to consider the use of consociational principles in transitions from civil war or authoritarian rule to more democratic governance, the

effectiveness of such an arrangement will be contingent on the specific conditions in each case. The most salient factor is naturally whether or not the dominant parties are ready to accept power-sharing and respect agreements to that regard. This, furthermore, reflects the level of mutual trust and polarisation between the groups. In addition, several structural factors will influence the outcome, such as number and degree of contending parties, the balance of power between them, their geographic distribution, the general level of economic and political development in society and the distribution of such resources.

It is also important to pay critical attention to the risks involved in establishing institutions of power-sharing for the sustainability of democratic politics. The most obvious of these risks is that power-sharing arrangements can be very difficult to undo if introduced in the first place, even if the conditions and political dynamics that underpinned the original agreement have changed. A political system based on consociational power-sharing has built-in mechanisms that normally give the parties formal or de facto veto power over constitutional changes or reforms that would substantially reduce their relative power in the system. What is often introduced as a transitional arrangement to facilitate a political agreement in a situation of serious conflict might consequently become a permanent mode for distributing powerful positions in society. On the one hand, such arrangements give the parties a large margin of flexibility in inter-group negotiations, since the central government can only exist as long as the most powerful groups are able to find common ground. This might be conducive for keeping peace and political stability. However, this modus operandi of the system tends to empty the formal political institutions of decision-making power, leaving it in the hands of informal power structures that are controlled by the most important groups. This arrangement is not only a democratic problem — it makes it almost impossible to reform the political system in directions that are considered unacceptable to at least one influential group commanding a veto power.

1 Lijphart 1984:22-23.

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An existing system of power-sharing that allows for flexibility and pragmatism in decision- making processes between the parties in power might be very inflexible in other respects, particularly when it comes to adapting to or addressing new conditions and challenges to the established power-sharing arrangement. The arrangement itself will have the probable effect of “cementing” or “freezing” old cleavages in the society that would otherwise dissolve under the influence of economic or socio-cultural developments. The obvious risk in the long run is that inflexible political institutions will stand in the way of dynamic societal developments, which will create mounting discontent, reproduce old conflicts, and undermine the stability that these institutions were meant to secure.

An important challenge to policymakers and advisors in conflict-ridden societies seeking a peaceful and democratic future would therefore be to strike a balance, on the one hand, between building institutional guarantees within which every group and every individual within the group can feel secure and have their basic rights protected. On the other hand, such policymakers and advisors must remain flexible in the face of the unpredictability of

democratic politics based on decision-making procedures that presuppose a certain level of mutual trust among the citizens.

In the following, we will study the mechanisms that are actually being used for representation and decision-making in pre- and post-conflict situations, with a particular focus on

arrangements that seem to have favourable effects on democratic stability. First, we will present the discourse among academics and experts on theoretical questions relevant to this study (Chapter 2). This will be followed by an overview of mechanisms in use across the world (Chapter 3). Chapters 4 to 6 contain three case studies with detailed assessments of the electoral arrangements and their effects, and Chapter 7 concludes the study, giving

recommendations on the basis of what we consider to be the lessons learned so far.

We enter this study with certain expectations that we want to elaborate further. On both representation and decision-making rules, it is likely that there are methods that vary in their efficiency from greater to lesser, and that they offer various degrees of conflict resolution in the short- and long-term perspectives. Not least, the long-term incentives for reconciliation will be discussed. In particular, the following questions will be studied:

x To what extent is representation by a representative group in parliament able (or sufficient) to reduce conflict?

x To what extent are formal power-sharing agreements, including veto powers, necessary to establish peace?

x To what extent must the group elect its own representatives (as opposed to be quotas on regular party elections) to be able to reduce conflict?

x What are the effects of these arrangements (in particular power-sharing) on efficiency and the ability to govern?

x What are the long-term effects of these arrangements? Do they deepen the divide between groups or do they contribute to normalising them?

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1.2 The Case Studies 1.2.1 Introduction

The three case studies include countries that have recently emerged from armed internal conflicts: Lebanon, Nepal, and Bosnia and Herzegovina. The nature of the conflicts varies, as does the degree of stability established after the conflict. Both Bosnia and Herzegovina and Lebanon have introduced a number of arrangements supporting power-sharing between earlier combatants. In Nepal, the constitution currently being drafted is expected to bring forward quota rules ensuring that the social and ethnic groups previously excluded from political life can be properly represented.

The case studies were designed to allow for a more thorough discussion of the effects of introducing certain electoral mechanisms in countries haunted by ethnic or confessional (i.e.

religious) conflicts. The purpose is to assess whether the arrangements work as intended and if there are side effects, expected or unexpected, which could have been avoided if they had been considered at an early stage.

1.2.2 Methodology for the Case Studies

Each case study consists of an overview of the recent history of the country and a detailed analysis of the electoral system and other power-sharing elements, and the field study that primarily discusses the current challenges as seen by respondents. The field study is based upon interviews with a selection of stakeholders in the country. The purpose of the interviews is partly to get a first-hand view of the intentions behind the relevant power- sharing arrangements, then to make an assessment of how they have worked out in practice, both in terms of providing a safe and peaceful environment and in providing a functional state, and finally to find out whether stakeholders are looking for changes or how they intend to assess the development ahead.

Respondents were selected according to a number of criteria, the most obvious being prominent representatives of the previous conflicting parties. In addition, we interviewed representatives of groups that were being marginalised by the peace agreement (e.g. Romas in Bosnia and Herzegovina), politicians, NGO representatives, academics, etc. In sum, a selection among the following — partly overlapping — groups was interviewed:

x Leaders of the parties in conflict

x Political leaders at large within and outside the parliament

x Leaders of religious, ethnic, linguistic, social groups whenever relevant x Representatives of possible marginalised groups

x Representatives of the government

x Representatives of the international community (and in Bosnia and Herzegovina in particular the office of the High Representative, OSCE and Embassies)

x Representatives of local governments x Opinion leaders

x Think tanks and institutes

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To work as an aide memoire during the interviews, a checklist was prepared. The intention of this was not to list a strict questionnaire but to assist in ensuring that we covered the topics relevant for the person being interviewed. The interviews were recorded according to a thematic structure defined. In addition to these formal interviews, a number of meetings of a more informal nature were conducted.

We recorded fourteen interviews in Bosnia and Herzegovina, ten in Lebanon and twelve in Nepal. It should be noted that the countries were chosen partly based upon two of the researchers’ prior thorough knowledge of the countries. The interviews could not, in themselves, provide for a representative selection of respondents from all relevant parts of society. However, with the researchers' background knowledge, the interviews provided for a very useful update on the current status in the country and were an invaluable addition to the facts that were already available to the team.

It should also be noted that ten years ago one of the interviewers² played an active role as an advisor in Bosnia and Herzegovina on electoral issues and is currently active in an advisory role on the same issues in Nepal. In Nepal, it was made very clear to the interviewees that the purpose of the interview was for the respondents to come up with their own views and not to discuss various alternatives.

The number of interviewees is too low to be subject to statistical analysis and it is the total amount of information we have about the countries that forms the basis for our conclusions and recommendations. Without the researchers' prior knowledge, much of the information collected might have been misinterpreted and too much emphasis could have been put on statements of individuals which were not really representative of the views of the group.

1.3 Scope and Limitations 1.3.1 General

The study includes a review of all countries in the world applying quotas to the election of parliament. When describing a country, other elements of power-sharing, such as devolution of powers and decision rules, are included, but countries are not included if they do not also have electoral quotas. The quota arrangements are described regardless of whether their purpose is to reconcile after a war or if it is merely to include groups that the electoral system would otherwise exclude. Countries that have only gender quotas are not included, however, if the country is included in the study for other qualifying reasons, their gender quotas are also described.

In addition, three countries — Lebanon, Bosnia and Herzegovina and Nepal — have been selected for case studies. In these three case studies, the relationship between representation, decision-making rules and devolution of powers is of central concern.

In the end, the purpose of this study is to present a toolbox of electoral quotas that may be applied in certain situations as well as an analysis of their pros and cons. Quota rules have

2 Kåre Vollan

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aspects that are technically complicated and the alternatives may be of interest in a post- conflict situation, even if they, up to this point, have been applied in a context that differs from the present examples.

Three kinds of sources have been applied in compiling data for this study: To the extent possible within the resources available, we have used primary sources as bases for empirical presentations, including the overview of global patterns. Interviews with representatives of conflicting parties, as well as country experts, were conducted in order to strengthen the analysis of the three selected cases. A broad range of academic works were also consulted in developing the theoretical and analytical perspectives. In addition, the authors have

considerable experiences within this field of study, both as researchers and experts in different countries for governmental and non-governmental organisations.

1.3.2 The Broad Overview

The broad overview of systems is aimed at giving a comprehensive overview of ethnic, religious and social quotas in parliaments around the world. The overview will be used as a source of information on what systems of group representation are actually in use for whatever purpose, even if they have not originated from a conflict situation. This will be useful when a toolbox of systems is discussed in the last part of the report. At the end of each regional presentation, those systems that are being used particularly for the reduction of conflict will be discussed.

In Chapter 2, power-sharing arrangements are defined as combinations of the following elements:

1. Grand Coalitions

2. Proportionality or representation of groups 3. Devolution of powers

4. Decision-making rules designed to protect groups.

In the broad overview, those countries that have predefined rules for representation of groups have been selected. For these countries, decision-making rules, grand coalitions and gender quotas are also described. Devolution of powers is described for countries selected due to point 2, above, by classifying them as federal or unitary states. Countries with conflicts that are considered to be reduced only by devolution of powers or decision-making rules (including grand coalitions) are not covered in this part unless they also have particular representation of groups according to point 2, above.

It should be noted that parliamentary quotas are in themselves only one of several possible measures to ensure representation of selected groups in state affairs. Quota mechanisms can also apply to the executive, the courts and bureaucracy and they may apply exclusively to the local level of governments. In several countries, requirements for nominations (such as the list composition) are covered in parties’ by-laws. Such countries have not been included here.

Countries where group representation is secured solely by appointments are not included even

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though appointments are described where they come in addition to elected group representation.

Types of Groups

We have already pointed to the distinction between small and large minorities. The concept of

‘group’ may be further elaborated. Groups protected in constitutions and election laws are broadly defined by ethnic, linguistic or religious features. While a rough categorization is applied here, these distinctions are blurred and overlapping. Are Bosniacs, for instance, a religious or ethnic group? While Bosniacs are Moslem by definition, members of the Bosniac group will not necessarily accept that religion is a constituting element of their group identity.

Other types of groups that enjoy quota protection can be professional groups, like workers and farmers in Egypt. Social factors may also trigger protection. Examples are the quotas for youth and disabled (Uganda and Kenya). Protection of all these groups will be discussed here.

Gender quotas will be described when other mechanisms of group protection are also present.

Selection of Countries

Countries with quotas have been identified at the outset by use of the Parline database of the Inter-Parliamentary Union and other secondary sources. The information has been verified by the countries’ legislation. Further reading and research has added additional countries. It should be noted that electoral design is an ongoing process all over the world, and a study such as this will inevitably be outdated. This does not, however, lower the value of such a thorough compilation of available legal tools to ensure group representation at a given time in history.

Countries are grouped and presented alphabetically according to the regional breakdown of Freedom House. Countries that are ranked as ‘not free’ on the 2011 Freedom in the World index are only summarily described in the country tables but not in the narrative following the table. Countries that have devolution of powers and relevant decision-making rules in response to an ethnic, religious or social conflict, in addition to group representation, will be discussed in some detail.

Sources

To the greatest extent possible, the quota mechanisms themselves are described on the basis of primary sources, namely, the constitutions and electoral laws of the selected countries. It should be noted that the quality of legislation and their translation into languages these authors may command may vary, and electoral laws may be incomplete, inconsistent, or may even contradict the constitution. Furthermore, the election laws may consist of several pieces of legislation, and it has not always been possible to obtain all the relevant documents. In such rare cases, we have consulted secondary sources to answer questions concerning voter registries, voting rights, etc.

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Country profiles

Each country profile contains a thorough presentation of the quota mechanism. In addition, the countries’ political systems are briefly described, with regard to the federal or unitary nature of the state, form of government, and decision-making procedures whenever these are related to the quota rules. Focus is on the technical aspects of the quota. It does not fall within the scope of this part of the study to measure to what extent the quotas affect informal politics.

Such a broad comparative study does not allow for extensive studies of each country.

However, each country profile contains a brief background outlining the main conflicts in the country.³ The purpose is to broaden the understanding of the quota systems and the political context in which they work (or don’t work).

For the sake of readability, selected countries are presented alphabetically and grouped by continent or parts of continents. Some of the quota mechanisms represent differing national solutions to cross-border conflicts, such as Hutus and Tutsis in Rwanda and Burundi, and some of the former Yugoslav republics. This gives some advantage to the subdivision.

However, this breakdown is primarily for pedagogical reasons, and we do not attempt to draw a causal line from geographical situation to the quota systems that are applied in each individual country. Some rough patterns may be distinguished, namely, the relatively extensive use of linguistic quotas in Europe, and social quotas in Africa. We aim to describe, not to explain, such patterns wherever they occur in our material.

3 In addition, Chapters 4 to 6 contain case studies of three conflict-ridden countries with quota systems.

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2: Power-Sharing Arrangements: Representation and Decision- Making Rules

2.1 Democratic Institutions in Deeply Divided Societies

Every society has divisions between groups of people, reflecting differences in living conditions, religion, education, culture, and so on. Some divisions are easier to handle than others, for instance, because they do not concern deep-rooted values and identities. Societies are often described as deeply divided when cleavages are particularly intense, and they run along ethnic, religious or nationalistic lines. Ethnicity is a contested concept, but it is usually defined broadly in terms of shared beliefs of common ancestry, shared customs and cultural features, common language, and the like.⁴ The configuration of conflicting groups – whether divisions rest on ethnicity, culture, religion or other factors – may vary a lot: A majority could dominate minorities, a minority group could dominate other parts of the society (the

majority), a balanced configuration with a relatively limited number of groups is a possibility (bipolar or multipolar conflict), as well as a highly fragmented situation with no dominant group at all.⁵ Lijphart used the term plural society to describe societies with deep and lasting segmental cleavages of a “religious, ideological, linguistic, regional, cultural, racial, or ethnic nature.”⁶ Rabushka and Shepsle use the term more narrowly: A plural society is culturally diverse, and the feature that distinguishes it from a pluralistic society is that politics almost exclusively follow ethnic cleavages.⁷

Deeply divided multi-ethnic societies may choose different models for their state structure.⁸ The classical liberal state puts emphasis on the individual and gives equal rights and

opportunities to each individual, regardless of what segment of society the individual belongs to. The problem with this model in deeply divided societies is that there may be a long distance from the theoretical equality to the actual possibility for all to exercise their right in full. A different model is the “consociational state” or a state based on forms of power- sharing between groups. Power-sharing may be by tradition or by design or both. In deeply divided societies, power-sharing may be a necessary condition for a democratic system to work and even for civil peace. Power-sharing may not be written into the constitution but rather be a strong element of the political tradition (like grand coalitions in Switzerland). In

4 After discussing conceptual issues, Fearon 2003 presents data on ethnic structure in 160 countries in the early 1990s. More than 800 ethnic groups are identified. See also Chirot 2009.

5 Rabushka and Shepsle 1972 thus distinguish between four types of deeply divided societies: Fragmented, balanced, dominant minority and dominant majority. Each configuration has its own challenges.

6 Lijphart 1977: 3-4. The term “segmental cleavages” was taken from Eckstein’s 1966 study of division and cohesion in Norway.

7 Rabushka and Shepsle 1972: 20-21

8 For an overview, see Lijphart 1977, 2008, Sisk 2006 and Reynolds 2011.

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some cases, power-sharing arrangements are vital elements of formal peace agreements and are laid out in detail (for example, the Dayton Agreement in Bosnia and Herzegovina).

Power-sharing may take different forms, and four basic characteristics are often accentuated.

Together, they define consociational democracy, and each of them implies some kind of deviation from (pure) majority rule and the principle of ‘one person-one vote’:⁹

1. Grand Coalition. Power-sharing can take the form of broad-based governmental coalitions. This implies that all the main political forces are invited into central decision-making bodies, thereby ensuring that no significant minority is permanently excluded from exercising political power. In parliamentary systems, grand coalition may mean that the cabinet includes the political leaders of all significant groups or segments of the society. In systems without an executive body accountable to the parliament (e.g. presidential ones), a variety of arrangement are available to serve the same purpose of inclusive decision-making. Grand coalitions may blur the distinctions between government and opposition or leave the country without a formal opposition.

In turn, it could also limit political contestation.

2. Decision-making rules: Minority veto or mutual veto. Minority groups may not only be included and given participation rights, they may also be granted veto power (formally or informally), in particular with regard to vital interests. For instance, the veto option guarantees that a group will not be outvoted when its autonomy is at stake.

Alternatively, the decision-making rules may be designed to protect a minority from changes by the majority by qualified or double majorities. Super-majority

requirements and the like are, of course, a weaker type of minority protection than veto power. In any case, consensus may be the underlying goal.

3. Proportionality. Power-sharing implies that arrangements for representation are utilized at every level of political life – nationally, regionally and locally. The purpose is to give (almost) every group in society access to decision-making bodies according to their overall size, and to allocate scarce financial resources in the form of state subsidies in roughly the same way.¹⁰ The electoral system is the instrument by which votes are translated into seats in assemblies, and its design is crucial for how – and to what extent – segments or (minority) groups are represented. Below, we will have a lot more to say about electoral systems and methods of securing minority

representation.

4. Segmental group autonomy or federalism. Segments of society (here called groups) may have rights to a well-defined autonomy. Devolution of powers may take care of this aspect. In federal states, this may be a fundamental condition. If the states are drawn up along linguistic or ethnic lines, the power-sharing is protected by the definition of powers of the states versus the centre. Other forms of autonomy for

9 See Chapter 2 in Lijphart 1977.

10 Lijphart 1977: 38-41.

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groups may also be envisaged, such as giving ethnic groups the right to their own elected bodies with advisory or even decision-making authority (e.g. Norwegian Sámi parliament).

Some of the principles are interrelated, and in practice, they often occur together. There is no

“one size fits all” solution for power-sharing in deeply divided societies. The tradition for consensus policy may be very strong in some countries whereas in other countries the majority will use their powers regardless of strong opposition from minority groups. In this report, we will assess some elements of power-sharing and the effects of formalising the rules.

In particular, the representation of groups and the decision-making aspects of such

arrangements will be covered (i.e. characteristics 2 and 3, above). Devolution of powers will be discussed only when necessary for the analysis of the primary aspects of the report. As Lijphart emphasises, the grand coalition is a superior principle of consociational democracy, but will only be discussed more indirectly in the sequel.

Several arguments against consociationalism have been voiced over the years. It has been criticized for relying too much on elite accommodation. It has been argued that there is a problem of elite initiated conflict, as political leaders of the various segments may increase their bargaining power vis-à-vis other groups by mobilizing their own group on sectarian grounds.¹¹ A related critique says that consociationalism is problematic in deeply divided societies because it rests on constraints and restrictions against immoderate politics via veto power, instead of incentives for actors to cooperate across segments.¹² In short,

consociationalism may provide fertile grounds for conflict entrepreneurs, whose powerbase rests on continued conflict, rather than actors of reconciliation. Furthermore, the tendency towards non-democratic decision-making, in the sense of not honouring majority rule and the principle of ‘one person-one vote’, has been emphasized by many.¹³ Similarly, inefficiency and the risk of deadlock has been an important part of the criticism. If a political system is incapable of producing necessary decisions because of a stalemate, the legitimacy of the system is potentially threatened. Finally, consociationalism has been criticised for facilitating policies of discrimination, for example, related to the tendency of powerful minorities to exploit the system of veto power to protect undemocratic privileges. Such problems are particularly evident in situations of extreme power asymmetry between the groups because the power-sharing institutions, set up on the basis of negotiations between the constituent groups in the society, will tend to reflect the imbalances between them and thus build discriminatory practices into the emerging political system. Injustices will consequently be institutionalised, not abolished.¹⁴ Lijphart’s suggestions for a system of power-sharing in South Africa in the mid-1980’s (i.e., before the end of Apartheid) that would have preserved

11 See, in particular, Tsebelis 1990.

12 Here, work by Horowitz (e.g. 1985, 1990) is relevant.

13 See, for example, Barry 1975.

14 See Butenschøn, 1985 and 2006.

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the White community as a separate and relatively privileged political community is an example, and was heavily criticised by anti-Apartheid activists and academics at the time.¹⁵ Our main reason for focusing on power-sharing arrangements is their prospect for preventing or ending violent conflicts. Power-sharing may also be used to secure civil peace even if there is no immediate danger of conflict. We will concentrate on consociational arrangements (related to representation and decision-making rules) that have a peace-keeping justification.

There is a growing body of academic literature that studies the relationship between power- sharing and post-conflict peace, and several have found a positive association.¹⁶

Even in a structure based upon power-sharing between groups, the long-term goal may be the development into a liberal state where group identity is less important. In the following discussion, we will therefore also study the long-term effects of formal arrangements for power-sharing and to what extent they are self-magnifying (deepening conflict and the needs for measures) or if they are giving incentives for more equality.

2.2 Power-Sharing through Representation and Decision Rules

Special representation for groups may be introduced for different reasons. Our focus is on measures that may reduce conflict at its outset or on arrangements that may reduce the conflict level after an armed conflict. Representation in elected bodies is clearly only one of many such measures and a peace agreement will often have elements of power-sharing as an extension to group representation.

Power-sharing agreements are agreements between groups that regulate the decision-making, independent of the election result. Therefore, it deviates from pure majority rule. The groups of the agreement may be represented according to an election result but the power is shared between the groups according to the agreement, not the balance between parties as a result of an election.

A power-sharing agreement may regulate the composition of the executive or parliament or it may regulate the decision-making process. An example of the first is the presidency of Bosnia and Herzegovina, where each of the three war-faring parties from 1992 to 1995 has one member in the presidency and an equal number of members in the upper house of parliament. In Sudan, until the secession of South Sudan in 2011, the president and the first vice president need to come from different groups (north and south).

The rules for decision-making may vary from a requirement for a qualified majority which guarantees that one group alone cannot pass a decision without at least some support of the other group(s) (Burundi), to firm veto powers of a group over all or some decisions (Bosnia and Herzegovina). In a way, all deviations from a strict majority rule may be seen as a kind of power-sharing agreement. When a qualified majority is needed to change a constitution, it is a measure to ensure that a small simple majority cannot change fundamental rights or the

15 See Lijphart 1985. For a critical discussion of Lijphart, see Jung and Shapiro 1995.

16 See Hartzell and Hoodie 2003, Hartzell et al. 2001 and Binningsbø 2006 for further references.

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rules of the game.¹⁷ The same is the case for requirements for double majorities as required for changes to the US constitution. A much stronger form is where a minority group can veto certain decisions. If a decision concerns fundamental group rights or division of powers between bodies or units, they may not have a very significant effect on the day-to-day government of the country but if they can be applied to large number of decisions such as in Bosnia and Herzegovina, they may represent a hurdle to the functioning of the state as such.¹⁸ Group representation in the form of electoral quotas may be introduced alone or together with more extensive power-sharing agreements. They may be introduced only to make a

parliament more representative (or to over-represent a group) along an ethnic, linguistic or social dimension in addition to the political one. The purpose can be to broaden the representation and to make sure that the groups have their voices heard before decisions are made. Section 2.4, below, will provide an overview of electoral quotas regardless of whether the purpose is to underpin a peace agreement, prevent an armed conflict or simply to provide broader representation in the elected body.¹⁹ Even if an arrangement is used only for representation, the same method may have a conflict-prevention effect in another country.

In the following, we will cover both direct and indirect elections. Systems of representation may be the same in the two cases but, in an indirect election, the inequality is often

established in the number of representatives of each group in the upper house of parliament rather by the electoral system.

It is useful to distinguish between small and large minorities, and how dispersed they are geographically, although it is not always possible to draw a sharp line between them.²⁰ A small minority will typically have a strength of a few percent of the population (for

example, less than ten), but their characteristics are such that they may need special protection in such areas as the use of language, the promotion of culture, etc. A group which in the country as a whole is a large minority or even a majority, may in some respects constitute a small minority and need corresponding protection. Except when a small minority is geographically concentrated, it will typically not be involved in civil wars and other major conflicts, or it will at least not be among the principal parties to such conflicts.

A large minority runs the risk of losing all influence by systematically being voted down by the majority or a coalition of other large minorities. Protection against this would typically take the form of balancing the group interest within the organization of the state, or by introducing an electoral system that secures a balance between competing groups. To use Bosnia and Herzegovina as an example, the main groups involved in the civil war – Bosniacs,

17 On constitutional amendment procedures, see Rasch and Congleton 2006.

18 A thorough and sophisticated analysis of the properties of relevant decision-making rules can be found in McGann 2006.

19 A discussion of different types of quotas, see Htun 2004 and Schwindt-Bayer 2009.

20 This and the next paragraph are taken directly from Blanc, Hylland and Vollan, 2006: 3-4.

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Croats and Serbs – are large minorities in the country as a whole, and each of them may be a majority in certain regions. On the other hand, Romas, Slovenians, Montenegrins, etc. are small minorities.

The purpose of defining small and large groups is to be able to differentiate between groups that could be parties to a peace agreement and those groups that should be guaranteed representation for other reasons. This division is obviously not sharp. Even small groups may use arms in the end to protect their interests if the majority does not respect what they regard as their fundamental rights. In our context, most of the groups in conflict will be

‘large’ but there may be exceptions that, in such cases, will also be covered.

2.3 The Systems of Representation

Elections are a central ingredient in the system of representation in modern democracies.

They are conducted by a more or less complex set of rules and procedures; electoral systems can be “defined as those rules which govern the processes by which preferences are

articulated as votes and by which these votes are translated into the election of decision- makers.”²¹ Electoral systems are used for many purposes, but what concerns us in this report are primarily legislative elections at the level of nation-states (and not, for instance,

presidential elections). There is a broad family of such systems ranging from

plurality/majority-based systems, which normally produce an overrepresentation of the largest party to fully proportional systems. It is also possible to design systems that secure

overrepresentation of small entities, which is particularly relevant in processes of

apportionment (e.g. distribution of seats on constituencies).²² Electoral systems have different qualities regarding group representation and some may be more suited in post-conflict situations than others. In this section, we will first list some criteria for good electoral systems and then give a categorisation of systems that will be used in this report.

2.3.1. Criteria for good systems of representation

Blanc, Hylland and Vollan define the following criteria for good systems of representation:²³ Even though a large variety of systems are being used in established democracies, some general criteria for good electoral systems can be defined. The weight put on each of them, however, would vary, among experts as well as among political decision makers.

We list some criteria that electoral systems may meet, and discuss briefly some aspects of each. Most of the criteria apply to elections generally, not just to elections in post-conflict situations, but some of them are particularly important in such situations.

Create representative assemblies. In simple terms, this criterion means that a party

21 Blais 1988: 100.

22 Balinski and Young 2001.

23 Blanc, Hylland and Vollan 2006: section 7.4.

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running in an election shall get a number of seats in the assembly that corresponds approximately to its proportional share of the vote. This is often regarded as the overriding criterion for a fair electoral system, and it is the most important justification for proportional elections. An elected assembly should reflect the political composition of the electorate, as well as other aspects such as geography, gender, etc.

The decisions made by the assembly should be representative of the opinions of the electorate.

Support accountability of the elected members. Another important aspect of elections is the relationship between the electorate and the elected member of the assembly.

Elections in single-member constituencies are often justified by the need for strong accountability, since a comparatively small electorate will elect its own member of parliament and maintain direct contact with the elected member.

Support stable governments. It has been argued that a fully proportional electoral system may result in an assembly split into a large number of parties, which in turn will lead to unstable coalition governments. The empirical data does not necessarily support this claim, at least not in countries with some kind of threshold for representation.

Give equal weight to each voter. This requirement can be interpreted in various ways when applied to different electoral systems. The most general formulation is that voters shall not be discriminated against on account of ethnicity, geography, gender and so on, except for what may follow from valid affirmative actions.

Resist tactical voting behaviour. A system should support an immediate link between the voters' primary preferences and the result. Tactical voting means that the voters do not vote according to their primary preferences. Instead, they vote according to, for example, their secondary preferences, because they believe they can thereby get an advantage.

Be simple for the voters. Systems can be designed to meet many requirements, but could end up being extremely complicated for the voters, both in the sense that it is difficult to cast a valid and effective vote, and in the sense that it is not easy to understand how the system works.

Be simple for the election administration. Systems can be very complicated for those implementing them. However, what may seem difficult to implement, need not be complicated from a voter's point of view. A possible example is the single transferable vote.

Be generally accepted by the parties and the public. Degree of acceptance should be taken into account when choosing a system. This is particularly important in post- conflict elections, because of the level of mistrust, frequently occurring disorder in election administrations, and the immaturity of the party system. One should not, however, refrain from proposing a system one genuinely regards as good, simply because of fear that it will not be accepted.

Promote conciliation among different groups. In post-conflict situations this is an important criterion, and it is the main focus of this report.

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Promote cross-community parties. This is related to the previous item, but is not exactly identical as a criterion for electoral systems. Community may refer to ethnic, linguistic, religious or sectarian groups as well as geographical areas.

Promote dialogue and compromise. The electoral system should in general support dialogue and conciliation in post-conflict situations. Therefore, whenever reasonable, the system should promote compromise candidates instead of extremist ones.

However, there are clear limits to what an electoral system can and should do in this respect. If the voters really support extremist candidates, the system should not prevent these candidates from being elected.

Be robust against changes. This may be a fairly technical issue, but a system should be designed in such a way that small changes in some aspect of the system, such as constituency boundaries, will not have a drastic effect on the outcome of the elections.

In a system based on single-member constituencies, the drawing of boundaries can significantly affect the outcome, even if it is required that all constituencies be of equal size. If the boundaries are determined through a political process, there is a danger that the present majority will try to perpetuate its power by carefully taking account of how its support is distributed when boundaries are drawn, so-called

"gerrymandering".

Respond logically to changing support. Increased support for a party should normally lead to increased representation, with as few unforeseen and illogical side effects as possible.

Be sustainable. This means that even though there may be particular needs in a transitional period, the electoral system should be adapted to a normalized situation and should also support the process of normalization. One should keep in mind that systems which are adopted after a conflict, even if they are tailor-made to the current situation, will create precedent, that is, they will have a tendency to perpetuate themselves. This is particularly true if the international community has been instrumental in establishing the system.

A system should be chosen according to the needs and the historical context of the country.

Some choices are nevertheless political and controversial, as many aspects of electoral systems have long-lasting political consequences.²⁴ In most countries, there would be people who strongly believe in proportional systems because of their ability to represent all parties according to their overall votes, whereas for others the accountability offered by first-past- the-post systems in single-member constituencies would be much more important.

In our context, it is the system’s ability to represent groups in conflict and to promote dialogue and reconciliation that would be more important. Again, it is important to stress that there is no 'one-size-fits-all' solution. In some situations, constituencies may be the best solution if a minority is geographically concentrated. In such a case, the regular party

24 See e.g. Lijphart 1994 and Taagepera and Shugart 1989.

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structure may work across constituencies and promote a long-term goal of 'normalising' political life across group identities. In other situations, a proportional system with the whole country as constituency and a low threshold may offer the best solution because every group with some support in the electorate will have a chance to be represented. That system may, however, give incentives to forming parties with group identities rather than parties formed on a political platform across group identities.

2.3.2 The Classification of Systems of Representation

Electoral systems can be classified in various ways, and many classifications are offered in the literature.²⁵ Two dimensions are central to most typologies: Electoral formula

(majoritarian or proportional type) and district structure (single-member or multi-member constituencies or some mix thereof). In addition, some also take explicit account of the ballot structure of the electoral system, i.e. what kind of information voters provide through their vote. Several electoral formulas can be used both in single- and multi-member districts. The alternative vote (AV), where voters are allowed to rank candidates, becomes STV when applied in multi-member districts. First-past-the-post or plurality rule has a straightforward application in multi-member districts as the SNTV system.²⁶ It could also be implemented as a block voting system. Proportional electoral formulas are, of course, not designed for single- member constituencies, but if nevertheless applied, they would simply reduce to first-past- the-post.

The classification below is relatively close to the ones in Reynolds et al. 2005 and Blanc et al 2006, but it is not exhaustive with respect to electoral formulas. A further description of the methods can be found in both sources.

Plurality and majority elections in single-member constituencies:

– Plurality elections, ‘first-past-the-post’ (FPTP)

– Majority elections in two rounds (either top-two run-off or second round plurality) – Majority elections by the alternative vote (AV)

Plurality elections in multi-member constituencies:

– Single, non-transferable vote (SNTV, which may result in semi-proportional outcomes)

– Elections based on individual candidates, the ‘block vote’²⁷ – Elections based on party lists, the ‘party block vote’

Proportional representation (one nation-wide constituency or several multi-member constituencies):

25 Examples are Blais 1988, Reynolds, Reilly and Ellis 2005, Norris 2004: 41 and Renwick 2010: 4.

26 Cox 1997 has even shown that, under some conditions, SNTV will give the same outcome as the d’Hondt (proportional) divisor rule.

27 In the block vote system, the voter may give as many individual votes as there are seats in the constituency. In SNTV, the voter may only give one vote. The ‘limited vote’ system, where the voter may give more than one vote but fewer than the total number of seats, is not listed here. In parliamentary elections, the only example of a limited vote is to the Senate of Spain (Reynolds et al. 2005)

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– List-based proportional systems (List PR)

– Formulas based on quotas and largest remainders – Formulas based on divisors and largest averages – The single transferable vote (STV)

Mixed systems (combining single-member and multi-member constituencies):

– Dependent (compensatory system): Mixed-member proportional representation (MMP)

– Independent (parallel system with separate upper tier, which may result in semi- proportional outcomes)

We will not discuss other methods that are rarely used in parliamentary elections, such as the de Borda count²⁸.

Mixed systems have at least two tiers, and one of the tiers consists of single-member constituencies. Upper tiers also occur in systems with only multi-member districts, but then typically as a set of adjustment seats to improve on the proportionality of election results. The Scandinavian countries and South Africa are examples.

Depending on how one counts it, roughly half of today’s countries and territories conduct legislative elections with systems that belong to the plurality/majority family. Most of the others use (single-tier) proportional representation, but mixed systems have become more and more popular over the last couple of decades.²⁹

2.3.3 The Effect of the System of Representation on Group Representation

Each electoral system has its own characteristics when it comes to group or minority representation. Generally speaking, the List PR system will accommodate such representation better than majority/plurality-based systems.

Lijphart states that “[f]or divided societies, ensuring the election of a broadly representative legislature should be the crucial consideration, and PR is undoubtedly the optimal way of doing so”.³⁰

Andrew Reynolds also argues that List PR gives better minority representation than other systems do, without any pre-defined arrangement:

Because List PR systems encourage parties to maximize votes won both in areas where they are strong and areas where they are weak (because every vote is aggregated at a larger level) there exists an incentive to appeal to ‘other’ voters who may not be part of your core ethnic or ideological base. Thus, List PR systems might encourage moderation in ethnic chauvinism and inclusiveness of minorities in campaign appeals. This may be particularly strong if majority parties need minority votes to make it over a given threshold or to have enough seats to form a

28 The election of two minority representatives of the parliament in Slovenia is a rare exception.

29 Reynolds et al. 2005, Golder 2005 and Shugart and Wattenberg 2001.

30 Lijphart 2008: 78.

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government. These incentives would dissipate if the party/majority group did not need extra votes and appealing for such votes would lose them members of their core constituency who were opposed to accommodatory overtures to minorities.³¹

On the other hand, the majority/plurality systems will normally not accommodate minority representation since the parties will tend to propose candidates belonging to the majority group of the constituency. However, if a minority is geographically concentrated, such systems may still work in a minority’s favour. Reynolds says:

Plurality-majority systems [...] are predisposed to exclude minorities from power, even if the minority’s concentration allows them to win some single-member seats. There are countless cases of minorities clustered in a given geographical area who can win a small number of

representatives, but who rarely form part of governing coalitions and cannot mount much of an opposition to majority rule within the legislature. Plurality-majority systems (without extra provisions to ensure multi-ethnic parties) are also likely to accentuate majority–minority polarization and campaigns based on ‘us against them’ and ethnic chauvinism. The most efficient way of winning more votes than the next candidate (if you are the largest group in a district) is to make sure all your group members support you, and the easiest mobilization strategy revolves around appeals to identity and preservation of group interests. If no single group can expect a clear majority in a district, one group may seek alliances with other groups, but such geographic intermingling is rare and alliances, while useful for one district, may alienate core voters in others.³²

This means that, everything else remaining the same, a List PR system will be more efficient in providing minority representation than majority/plurality systems, even without any extra measures.

Another advantage of List PR is that the groups do not have to be pre-defined.³³ Any group may form a party and take advantage of the system and any group may be included on the lists by parties that want to appeal to the group in a particular election.

Majority or plurality-based systems may work well in cases where the minority is

concentrated and the constituencies are drawn up in such a way that the minority gets benefit from the concentration. Under suppressive regimes, the opposite is often the case; the constituencies are drawn to dilute the minority’s influence. It is therefore a challenge to implement such systems for the benefit of a minority if there is a conflict; it will need good will. Changes in the population structure will also not be automatically covered and the arrangements will have to be pre-defined.

Further, List PR systems are easier to combine with methods to guarantee minorities a certain representation. Plurality and majority systems may be combined with certain quota rules but such rules, unless the groups are geographically concentrated, will often have negative side

31 Reynolds 2006: 21.

32 Reynolds 2006: 21-22.

33 Lijphart 2008.

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effects in terms of unreasonable restrictions to the passive voting rights or by changing the political party result of the election (see the discussion of the various systems below).

Some experts advocate the use of the alternative vote (AV) in deeply divided societies (e.g.

Horowitz). It is a preferential system that – they argue – tends to reward political moderation and compromise. The idea is that the single-member constituencies are drawn up in such a way that no group has majority (more than fifty percent) and an elected candidate would therefore need additional votes (second preference, third preference, etc.) from voters of communities other than his or her own to be elected. This, in particular, has been tried out in Fiji where one may claim that it has not worked as intended.³⁴ It has been argued that the Fiji experience has shown to be unsuccessful and that elections in single-member constituencies will inevitably make minority representation more difficult.

See Chapter 7 for a more comprehensive discussion of the various systems.

2.4 Methods for Securing Group Representation 2.4.1 On the Purpose of Secured Group Representation

There are a large number of methods securing group representation. To a large extent, the way each of them works is dependent on the overall system of representation, with some exceptions. The method is also often chosen to support a specific purpose of the quotas. One example is arrangements defined in power-sharing agreements where groups in conflict have a fixed share of representatives in decision-making bodies regardless of electoral result.

Another example of a milder rule is the more general need for including groups that are otherwise underrepresented or not represented at all in political decision-making. The driving force is then a belief that a more inclusive body may be able to take better decisions; they can draw on a broader experience, in addition to simply being fair.

This study is motivated by the search for arrangements which may reduce conflict, but it is not obvious that it is the formal and rigid power-sharing agreements which have the most positive short and long term effects. We therefore need to study all the quota systems available to see how they work from a theoretical as well as empirical point of view.

The group representation arrangements that are independent of the system of representation are those that can be classified as separate elections for a group. Other methods will be described under the relevant systems of representation.

One important question regarding group representation is who is the electorate? Most gender rules are, for example, implemented in such a way that all voters vote for all candidates but the rules secure the gender balance. In other cases, the electorates are singled out, such as the Maoris in New Zealand, who have a separate voters register for voters electing a fixed number of members of parliament.

34 See e.g. Fraenkel 2001 for a thorough discussion.

Electoral Quotas and the Challenges of Democratic Transition in Conﬂict-Ridden Societies