Home » Uncategorized » A year on and still no clearer. The decree is still vague and controversial

A year on and still no clearer. The decree is still vague and controversial

New rules of play

Tough for oldies, but vague on independents

                                                By Dionisia Tabureguci

March 2013

 

Over the next few weeks, political groupings formed under the new Political Parties (Registration, Conduct, Funding and Disclosures) Decree 2013 will be applying to register as hopeful new political parties aspiring to contest the next national election, scheduled for September next year.

And while the focus so far has been on how the decree is shaping the competitive bid for electorates by political parties, the passage to contesting next year’s elections could relatively be looking much easier on paper for independent candidates.

For one, the decree has offered little information on the processes independent candidates must follow in order to be legally recognised as contenders in the elections, with more attention being given to the registration of political parties.

By press time, Fiji’s elections office had yet to respond to questions sent to it by FIJI BUSINESS on clarification on the issue, given that the decree is vague on the step-by-step of registration for an independent candidate, nor is it clear on whether the much-talked about mandatory 5000 signatures of supporters required of political parties also applies to independent candidates.

While the decree defines an independent candidate as “any person who stands as an independent candidate and who is not nominated or supported by a political party registered under this decree”, information on this category of candidacy, for instance how they may apply for registration and what the requirements are on their eligibility, are sketchy.

Would independent candidates therefore find it a breeze to contest next year’s national elections? The decree, with its heavy focus on the make-up, shape and restrictions of a political party, seems to suggest this. Part 1 of the document does indeed carry the definition of an independent candidate, but it isn’t until Part 3—which deals with “Funding and Accounts of Political Parties and Candidates”—that the first mention of independent candidacy is made.

Part 3 covers Sections 21 to 26 of the decree. In Section 21, the sources of financing for a political party or independent candidate are narrowed down to three for political parties and two for independent candidates. Political parties are allowed to accept funds from:

  1. membership fees;
  2. proceeds of any investment, project, or undertaking in which the political party has an interest; and
  3. voluntary contributions, donations, bequests and grants from a lawful source, not being from a foreign government or non-governmental organisation.

The latter two sources are also applied to the independent candidate, eliminating the membership fee factor, inferring that an independent candidate, in order to qualify for registration, does not need to meet the rigorous criterion of collecting 5,000 signatures from supporters.

Another grey area is whether the strict rule on public officers with intentions to enter politics also applies to independent candidates.

This is covered in Section 14 of the decree but the focus is on political parties and public officers wishing to join them and if the same restrictions also apply to independent candidates, provisions are not specified under the decree.

The decree constricts the political field of involvement for public officers in four categories, most controversial of which is the inclusion as “public officers” of those holding office in local trade unions or any other similar organisations that these unions are affiliated to.  If these restrictions also extend to independent candidates, the decree is unclear on it.

In most other details however, the pre-conditions for registration for political parties—such as the mandatory disclosure of financial accounts and sources of funds—apply equally to independents.

Radical shift?

Whether or not these deficiencies mean the rules of play have yet to fully address what the government wants out of aspiring politicians or political parties when they enter Fiji’s political arena, there is a view in some quarters that this decree has been put together hastily, albeit tailored close to what’s available in the Kenyan model.

Loopholes have popped up as quickly as the decree was released, the first being the amendment just a month after promulgation, which some believe is a clear attack on political parties that have been active in Fiji’s political arena over the last decade.

That amendment tweaked certain requirements in the initial decree that dealt with these parties, tightening the leash further on what these parties can or cannot do.

When the initial decree was promulgated, Fiji had 17 registered parties, most of them not active. Two that were active included parties headed by ousted Prime Minister Laisenia Qarase and by Mahendra Chaudhry—Fiji’s first Indo-Fijian Prime Minister, also ousted during his term—at the helm.

When it usurped power from the Qarase-led coalition government in 2006, the Voreqe Bainimarama team adopted a radical shift in political ideology by taking an unprecedented stand against what it perceived were racially based policies that favoured indigenous Fijians, which comprised half of Fiji’s population, and marginalised other ethnic groups in Fiji.

Bainimarama blamed much of the country’s chronic and unresolved political and economic issues on the heavily race-based overtones in Fiji politics as well as corruption, which he believed was rife within government and public institutions.

He made no secret of his dislike for politicians who he believed constantly stoked the fire of a deep mistrust between indigenous and Indo-Fijians, two major ethnic groups in the country.

The racial card played a key power tool by instilling within indigenous Fijians the fear of losing custody over their land and the blame upon Indo-Fijians for being the phantom out to steal those lands. This radical shift under the Bainimarama administration gave birth to policies that sought to correct that fault.

Stringent measures

In that vein, the new decree is perceived to be based on attempts to further Bainimarama’s non-racial ideology by instituting stringent measures for these long-standing political parties to eliminate the race-driven agendas they’re accused of if they wish to still take part in national politics.

“The intention of the Political Parties Decree is to encourage the formation of broad-based political parties—which are not predicated on race—that, within a system of democratic competition, will encourage as much unity as possible.

The framework established under the decree will accomplish this,” the Fiji Government said in a statement decrying an article written by Barry Soper, political editor of New Zealand-based radio station Newstalk ZB. Not only are these existing parties expected to re-register under new registration rules, they also must conform to significant changes that will see most of them with new names.

Proposed party names therefore have come under heavy scrutiny in the decree, the list of no-no being names in the vernacular language, comprising the word ‘Independent’, and abbreviation or acronyms of the name not reflective of the actual name of the party. These conditions are uniform in that they also apply to proposed parties new to Fiji’s political arena.

In the recent amendment, Section 8 which deals with party names, is bolstered to ensure that any proposed party name, its abbreviation, acronym or symbol does not in any way mirror the vital structure of an existing political party that has not registered or whose application to be registered has been refused by the registrar, which in this case is the Registrar of Political Parties.

Acting Registrar of Political Parties Mere Vuniwaqa had handed in her resignation when this edition went to press. Vuniwaqa had cited personal reasons. Acting Chief Registrar, Mohammed Saneem, is assuming the position until a replacement is announced.

What also appeared to be unforeseen was the occurrence of fraudulent activities linked to the collection by proposed parties of the compulsory minimum 5,000 members’ signatures.

The original decree instructs proposed political parties to include as part of their application for registration the names, details and signature of 5,000 members.

These members are to be distributed throughout Fiji as: 2,000 members from the Central Division; 1,700 from the Western Division; 1,000 from the Northern Division; and 250 members from the Eastern Division.

When it came into effect on January 18 this year, the decree had applied a strict timeline on the then existing political parties to comply with a host of requirements, including this list of 5,000 members’ details, if they wished to apply for registration.

While registration was open to proposed parties until the writ of election is issued, which meant they had the luxury of time to comply with the requirements for registration, existing political parties were given only 28 days to comply.

Towards the end of this deadline, various reports had surfaced on how representatives of one party—three out of the 17 old parties had managed to make the deadline—had collected signatures by posing as government election officials tricking registered voters to sign forms.

The decree, not prepared for that, had to be revised. Other amendments include proper context reporting by the local media, a more detailed definition of trade unionists who cannot be involved in politics and bringing forward the date that office holders in a registered political party are to submit their and their family’s financial information, including assets, business interests and liabilities.

It is expected that parties who do pass the test for registration will then be involved in the formation of a Constituent Assembly that will approve Fiji’s new Constitution.

From what has been played out over the last month in the local and international media, the new rules of play in Fiji’s politics are not without shortcomings.

On one end of the spectrum are the harsh government critics who have dismissed the new decree as an attempt to “kill off Fiji’s established political networks because they pose too much of a threat to the unelected government.”

On the other end are government supporters who see the decree as eliminating racial elements in Fiji’s politics that for so long have festered as a necrosis to national progress.

From the international audience, a report has emerged from the International Senior Lawyers Project (ISLP) presenting a critique on the various parts of the document, which assesses Fiji to have set some unprecedented measures when compared even to Kenya’s model, which the decree is said to have been borrowed from.

“On 15 January 2013, the Government of The Republic of Fiji (GoF), promulgated the Political Parties (Registration, Conduct, Funding and Disclosures) Decree (4 of 2013, which repeals and replaces the Electoral (Political Parties Registration) Regulations of 1991. Decree 4 requires existing political parties to re-register under its new provisions, or face dissolution and forfeiture of assets to the state,” ISLP wrote in its executive summary.

“A key provision of Decree 4 requires Fiji’s long-standing political parties to gather 5,000 endorsements signatures within 28 days of its sudden promulgation. Decree 4 thus sets a higher bar to stay on the register, a threshold that is daunting to leading parties, if not prohibitive on their lesser peers.

“Global practice on signature requirements vary; however, the sheer number of signatures required under Decree 4 sets Fiji apart from its peers in the region and globally, particularly when compared in light of registered voters.

“Because this requirement applies to existing parties only, Decree 4 privileges new parties by allowing them an unspecified amount of time to gather signatures,” ISLP wrote.

“Adding to the burden of collecting 5,000 signatures in a short time-period, Decree 4 reduces the field of potential signatories by imposing a blanket ban on ‘public officers’ from becoming a member of a political party. Decree 4 thus disqualifies approximately six percent of registered voters from political party membership. “While there is international precedent for restricting public servants, such as those vested with discretion or deliberate powers, and aim at preventing a conflict-of-interest or appearance of conflict of interest, Fiji, in comparison, broadly imposes a sector-wide ban.

Further, entirely unprecedented in global practice, Decree 4 prohibits civil society leaders, such as a trade union and employer association officers from party membership, thereby manifestly breaching Fiji’s obligations under ILO Convention 87.

“Decree 4 further compels political parties to publicly disclose their members’ identities. Unlike the anonymity of the secret electoral ballot, public endorsement of political parties for registration exposes signatories to future reprisal, thus requiring a heartened leap of faith on the part of the voter,” the ISLP executive summary went on to say.

“Should an existing political party be able to meet the high bar set by Decree 4, contravention of any provision of Decree 4 suffices as grounds for deregistration—usually a last resort sanction, reserved for political finance violations.

“Further, Decree 4 entrusts a Permanent Secretary in the Ministry of Justice with administrative discretion to deregister political parties, rather than an independent electoral commission, as has become standard international practice.

Finally, Decree 4 sets criminal sanctions on political finance offences at 10 years; again establishing Fiji as outlier by international comparison,” ISLP wrote.

The organisation’s comparative analysis is titled “Government of Fiji Decree 4 of 2013: A comparative Analysis against International Instruments and Precedent.” It compared the Fiji Decree to provisions in the Kenyan Political Parties Act of 2011, which it said the Fijian Government had said it drew from when it drafted its decree.


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3 thoughts on “A year on and still no clearer. The decree is still vague and controversial

  1. the Fijian Government is an unlawful government passing unlawful decrees. that is the starting point. we can elaborate from there the finer points about the inconsistencies etc of the decrees etc as is done here.

  2. Our toolbox is large and full of wonderful gimmicks. We can deregister any party we want to deregister as nobody will be able to accurately and comprehensively declare all family assets. We can deregister on grounds that convicted criminals such as Qarase and Chaudhry are associated with parties. We can intimidate using our thugs in green, we can stuff the ballot boxes and we can manipulate the electronic vote counting. If this is not enough, the constitution provides for RFMF’s step-in rights at any point in time. The choice is simply: Vote for Khaiyum or we have another coup!

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