Bosnia's Draft Election Law Exposes Dayton's Flaws

Bosnia's non-nationalist opposition parties held great hopes for their country's election law, believing that it would build in incentives for moderation and thus help their electoral prospects. However, as currently drafted, the law appears disappointing, in large part because of flaws in the Dayton Agreement.

The draft law, which is the fruit of a year-and-a-half's deliberations among a team of six Bosnian and three foreign experts put together by the Organisation for Security and Co-operation in Europe (OSCE), will shortly be put to the Bosnian parliament.

Robert Barry, US head of the OSCE's mission, has requested speedy passage of the law saying its adoption was a pre-condition for Bosnia's admittance to the Council of Europe. But he is finding that the draft law faces opposition in many quarters and that this opposition is spilling over into calls for reform of the Dayton Agreement.

Agreed after three weeks of intensive negotiations at the Wright-Patterson air base in Dayton, Ohio in 1995, Bosnia's peace accord is a compromise document which attempted to balance hard-line Serb, Muslim (Bosniak) and Croat positions and is generally referred to as if some form of holy book.

Many of its 11 annexes have not been implemented and the ruling nationalist parties have obstructed sections deemed against their interests, but it has consistently been supported by the non-nationalist opposition - until now.

The problem for Bosnia's non-nationalist political parties is that the draft law appears to make the elections process considerably more complicated without succeeding in overcoming the shortcomings of the existing system, since voting is likely to remain along ethnic lines.

"The draft of the new election law does not respect basic human rights," said Zlatko Lagumdjija, leader of the Social-Democratic Party (SDP). "All citizens are not entitled to vote throughout Bosnia and this violates the European Convention on Human Rights."

The key problem is the Dayton constitution which stipulates that the Bosnian Presidency is to consist of three members, a Bosniak, Serb and Croat, and that voters registered in the Federation can only vote for a Croat or a Bosniak, while those registered in Republika Srpska, regardless of their ethnic origins, can vote only for a Serb.

Lagumdjija has been intensively lobbying international officials in Bosnia and says that the SDP will attempt to push its own draft election law through the Bosnian parliament.

The draft law, nevertheless, represents an attempt to introduce incentives to boost moderate parties. It therefore includes, for example, open candidates lists in local elections and preferential voting at the presidential level, measures which are considered advantageous for moderate, opposition parties.

Of these measures, preferential voting is probably the most radical departure from the existing law, since it enables voters to rank candidates as first choice, second choice, third choice and so on, and obliges candidates to win support from an absolute majority of the electorate in order to win office. Advocates of this system point out that had it been in place in the last elections, Biljana Plavsic, the West's preferred choice for president of Republika Srpska, would likely have been elected ahead of the ultra-nationalist Nikola Poplasen.

As expected, the ruling Muslim Party of Democratic Action (SDA) complained that the draft goes against the constitution, while the ruling Bosnian Croat party the Croat Democratic Union (HDZ)said that it jeopardises the very existence of Croats in Bosnia.

These two, and several other, parties also expressed concern that open lists in local elections will make ballot papers too big and complicated due to large number of candidates for so many local assemblies, though OSCE officials said they will make sure that this does not happen.

To date, only the ruling Bosnian Serb Sloga (Unity) coalition has remained silent about the draft. OSCE officials said they believe that Sloga leaders were still analysing the document and calculating its eventual effects.

Bosnia's top international mediator, High Representative Wolfgang Petritsch, said that the draft was "well balanced, well thought proposal" adding that: "Nobody will be one hundred per cent satisfied, but that is the nature of this exercise."

International officials acknowledge the flaws of their draft which they attribute to limitations on the Bosnian constitution and the Dayton Agreement. One of the OSCE's foreign experts, Francois Froment-Meurice, recognised that the proposed draft goes against European Conventions, but stressed that it had to be that way in order to accommodate Bosnia's complicated constitution. "We don't like it very much," Froment-Meurice said, adding that without altering the Bosnian constitution and therefore the Dayton Agreement "we cannot go any further".

"This is really the best what we could do within the Dayton framework," another western diplomat who helped creating the draft said.

The draft could be improved if Bosnia's Constitutional Court would change the constitution in accordance with international conventions, the diplomat said. Recent OSCE polls show that the three ethnic groups have a different opinion about that: some 70 per cent of Muslims support the idea, but among Bosnian Serbs and Croats the percentage in favour is only some 30 per cent.

"Over time, the Dayton Agreement will have to be changed and readjusted," one of the Bosnian Serb opposition leaders, Mladen Ivanic, said in a recent interview with IWPR. Yet he also acknowledged that that process will be slow and difficult.

High Representative Petritsch also has the power to impose necessary amendments to the constitution, but it is highly unlikely he would do that as he fears it would destabilise the situation in Bosnia, the diplomat said.

Ultimately, the Dayton Agreement could be amended if and when all three ethnic groups in Bosnia agree to changes. However, the ruling nationalist parties do not consider it in their interests to change the main mechanism that keeps them in power. "It's classic Catch 22," said the western diplomat.

Bosnia's municipal elections, which are scheduled for April 2000, will take place according to the existing election law. However, the new law should be in place before the next national elections, currently slated for September 2000.

Janez Kovac is a pseudonym for a journalist from Sarajevo. Edina Becirevic is a journalist with Slobodna Bosna.