III. DISCUSSION OF THE DRAFT NATIONAL ELECTIONS LAW AND THE DRAFT ELECTION COMMISSIONS LAW

J. Forfeiture of Mandate

Termination of a mandate for leaving one’s original faction in parliament is a practice that has been used in recent years in several countries. Leaving one’s faction is commonly known as “floor crossing”. Courts in these countries, particularly in South Africa and Malawi, have written extensive opinions concerning the legitimacy of prohibitions on “floor crossing” due to the right of freedom of association. In fact, these opinions reference Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the principle that a restriction of Article 11 must be strictly necessary in a democratic society and proportionate. Applying such an analysis, courts have ruled that absolute bans on “floor crossing”, which are an absolute ban on freedom of association, are contrary to the right of freedom of association. Such an analysis leaves open the possibility for limited bans, which allow windows (timeframes) for changing political affiliations in a legislative institution as opposed to outright bans. An analogous analysis would be how the European Court of Human Rights has treated restrictions on voting rights of persons convicted of crimes, i.e., general absolute restrictions are unacceptable and text must be narrowly crafted for specific conduct. The provisions in Article 66(3) of the draft law are absolute restrictions. As absolute restrictions, they are contrary to Article 11 of the European Convention as well as other international instruments that recognize the right to freedom of association.[1]

[1] See also Report on the Imperative Mandate and Similar Practices adopted by the Council for Democratic Elections at its 28th meeting (CDL-AD(2009)027Venice, 14 March 2009) and by the Venice Commission at its 79th Plenary Session (Venice, 12-13 June 2009.