Discussion Paper on Electoral Reform

Executive Summary

The prospects for democracy in a multi-ethnic country are better if the electoral system provides incentives for parties to be broad-based, than if it encourages parties to form around narrow appeals to ethnicity. In Bosnia and Herzegovina (Bosnia), however, overwhelming victories for ethnically-based parties in all post-war elections suggest that the existing system corresponds to the latter. The fundamental flaw is that candidates need only seek votes from their own ethnic group to win office. Given the recent experience of war, Bosnians vote for candidates and parties which promise the most robust defence against the perceived threat of the communities to which they do not belong, that is for their own ethnically-based parties. The logic behind the existing system is frightening. An ethnically-based party only represents the interests of its own community and feels no obligation to the rest of Bosnia's population. Instead of seeking accommodation, these parties view every political issue as a "zero sum" game. Further, where an ethnically-based party has an absolute majority, members of other communities effectively have no political representation or political rights. In these circumstances, prospects of reconciliation and long-term stability are virtually non-existent. The international community has in the past imposed solutions in intractable disputes to change the logic of the current system. It has pressured relevant authorities to accept quotas in institutions such as the police force and judiciary. However, these measures only address the symptoms of the problem, not its structural causes, and will unravel when the international community withdraws. And it is unlikely that civil society in Bosnia will be sufficiently strong to overcome the ethnic divide in the foreseeable future. Six separate direct elections took place in Bosnia in September 1996. The conditions for holding these polls were not met. Yet they were held because certain Western politicians wished to hail the event as a triumph. They have not contributed positively to the reconstruction of the country. Elections are again scheduled for this September because the initial mandates expire after two years. If the international community is to make a dignified withdrawal from Bosnia, it is critical to construct a healthy, functioning and self-sustainable democracy. That involves a lot more than simply inviting Bosnians to cast ballots. Since the Organisation for Security and Co-operation in Europe (OSCE) is to supervise the next elections, and the presence of US troops in Bosnia is now tied to a series of benchmarks, including "elections according to democratic norms", a window of opportunity is open. Devising an electoral system which will contribute to Bosnia's reconstruction must be a priority. Until such a system has been designed, agreed and put in place, elections should not be held. If a healthy electoral system cannot be implemented by September, elections should be postponed. When drawing up an electoral system, various characteristics specific to Bosnia have to be taken into consideration. These include: pronounced ethnic identities; the consequences of ethnic cleansing; the flawed elections of September 1996; and certain restrictive provisions of the DPA. The concept of separate ethnic identities is deeply rooted in Bosnian society, having evolved during more than four centuries of Ottoman rule when each religious community -- Muslim, Orthodox, Jewish and Catholic -- was effectively governed separately under their spiritual rulers. Half of Bosnia's population of 4.3 million was uprooted by the recent war. Many Bosnian electors, therefore, no longer live in their pre-war homes, thus making voter registration, whether displaced persons vote where they currently reside or where they lived in 1991, a key issue. As a result of voter registration manipulation in the 1996 elections, for example, Serbs do not have any political representation in the Federation. Some DPA provisions, such as restrictions on the ethnicity of candidates to the three-member Bosnian Presidency as well as who can vote for whom, appear designed to ensure that the same ethnically-based political parties remain entrenched in power indefinitely. If multi-ethnicity is to be reconstructed in Bosnia, the electoral system should attempt to: build in ethnic security; prevent the domination of the majority; provide incentives for conciliation by obliging political actors to seek support from peoples other than their own; ensure political representation of displaced persons returning to their homes; give Bosnians a chance to vote on issues, not simply according to their ethnic identity; facilitate stable and efficient government; build in a mechanism for future reform; build a pluralistic party structure; provide co-operative partners for the international community's reconstruction effort; ensure maximum voter participation; and minimise fraud. The current system used to elect members of Bosnia's various assemblies is a form of Proportional Representation. However, because parties rely exclusively on the votes of one community, the system has proved little more than an ethnic census. Seats are already ethnically-designated in Bosnia, at certain levels, including the Presidency. However, at present, seats are exclusively reserved for Serbs, Croats and Bosniacs. "Others", Bosnians who do not belong to the country's three major communities, do not have any reserved seats in any state- or entity-level body, despite comprising 7.7 percent of the population in 1991. The concept of ethnically-designated seats can be extended to all levels of government, and separate ethnic electoral rolls drawn up for Serbs, Croats, Bosniacs and "Others". The key issue is how many seats to set aside for each community and what criteria to use. The 1991 census may be the best basis for any seat allocation. However, ethnically-designated seats will only lead to moderation and conciliation if the method of electing office-holders is changed. The most certain way to boost multi-ethnic political parties is multiple voting: it obliges politicians to look beyond their own community. If the Bosnian electorate is divided into Serb, Croat and Bosniac electoral rolls, if the ethnic results are set in advance, and if every elector votes once each for Serb, Croat and Bosniac communities, then each community can have an influence on who is elected in the other communities. If the votes of each community are "weighted", it is possible to make that influence identical. One potential way to change the logic of Bosnian politics, which can be implemented immediately without any constitutional change in all legislatures, is the following:

• Set the ethnic results of the elections in advance to build in ethnic security.

Ideally, though not necessarily, the results should be set in such a way that no people has an absolute majority in any legislature so as to prevent the domination of the majority and ensure political representation for displaced persons. In addition, seats should also be reserved for Bosnians who do not belong to the country's three major communities.

• Divide the Bosnian electorate into Serb, Croat, Bosniac and "Other" voters and give each community an equal say in the election of members of other communities via "weighted", multiple votes.

• Consider ballots spoiled unless all sections are filled in to encourage electors to vote in all categories.

• Set a minimum threshold of support from a candidate's own community to ensure that "straw men" are not elected.

The system outlined above would help facilitate stable and efficient government and provide co-operative partners for the international community, since politicians will be beholden to the entire electorate and not only to their own ethnic group. With ethnic results set in advance and the various communities' votes "weighted" appropriately, the ethnic engineering and fraud which marred earlier elections could not be repeated. The system used to elect the Bosnian Presidency is difficult to reform without constitutional change. This may be achieved by bringing Bosnia's Constitution into line with the European Convention for the Protection of Human Rights and Fundamental Freedoms which, according to the Constitution, "shall have priority over all other law". The Constitution can also be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives. In the interest of designing the most appropriate electoral system, both options should be explored. While Westerners may find institutionalising ethnic divisions uncomfortable, the aim of this proposal is to acknowledge differences and to build them into the system in such a way that elected officials are answerable to all voters, and not exclusively their own ethnic group. All aspects of reconstruction in Bosnia are hostage to the political environment. Without the creation of a healthy political framework, other necessary reforms such as economic reconstruction, privatisation, media and judicial reforms will fail to have the desired impact. And the international community may have to remain in Bosnia propping up an untenable system and caring for the refugee community abroad almost indefinitely. Sarajevo
10 March 1998

Introduction

In every country, the electoral system has a profound effect on the evolution of political life, influencing the way parties campaign and political elites behave. In ethnically-divided societies the choice of electoral system is especially important. Depending on the system selected, it can either provide incentives for parties to be broad-based and accommodating, or it can achieve the opposite, namely to encourage parties to form around narrow appeals to ethnicity. The chances of democracy flourishing in a multi-ethnic country are clearly greater if the electoral system corresponds to the former. Overwhelming victories for ethnically-based parties in all of Bosnia and Herzegovina's (Bosnia's) post-war elections, however, would suggest that the country's current electoral system corresponds to the latter. 2 The rise of democracy in the 1980s and 1990s in countries without a tradition of liberal constitutionalism and little depth to civil society has stimulated a new urgency in the search for enduring models of appropriate representative government. The key to constructing a flourishing democracy is tailoring democratic principles to local conditions. However, designing electoral systems in multi-ethnic states remains an area of relatively little expertise. As a result, all too often either political actors lack basic understanding of electoral systems and therefore do not recognise the consequences of different choices, or, conversely, political actors use their knowledge of electoral systems to promote designs which they think will work to their own advantage, though not necessarily in the interest of long-term stability. Four years of war, ethnic cleansing and the flawed elections of September 1996 compound the difficulty of devising an appropriate electoral system for Bosnia today. Since no system is politically neutral, moves to change existing laws will inevitably come up against strong vested interests. However, the large international influence and stake in Bosnia and the fact that the Organisation for Security and Co-operation in Europe (OSCE) is again to supervise the country's next elections 3 opens a window of opportunity, perhaps the best remaining. In total, six separate direct elections are scheduled to take place in Bosnia by 14 September 1998, two years after the first post-war poll. These are elections for the three members of Bosnia's Presidency; the House of Representatives of Bosnia; the House of Representatives of the Federation of Bosnia and Herzegovina (Federation); the President of Republika Srpska; the National Assembly of Republika Srpska; and the assemblies of the ten cantons within the Federation. Designing an appropriate electoral system in advance of the September 1998 poll is especially important because, with a four-year mandate on offer, 4 those parties and politicians which prevail will be in power as international involvement winds down. This paper sketches out the flaws in the existing system and current attempts to address them; analyses conditions specific to today's Bosnia; considers criteria for design which are important for Bosnia's electoral system to contain; examines various ways to reduce inter-communal conflict and build consensus in the Bosnian context; and proposes a system which could help the country evolve in a healthy manner.

Existing Electoral System: Flaws and Attempted Solutions

The electoral system used for the six polls which took place in September 1996, the municipal elections of September 1997 and the Republika Srpska National Assembly elections of November 1997 were designed by the Provisional Election commission (PEC). 5 The PEC consisted of the "Head of the OSCE Mission, the High Representative or his designee, representatives of the Parties, and such other persons as the Head of the OSCE Mission, in consultation with the Parties, may decide". 6 In practice, this meant employees of the OSCE and the Office of the High Representative (OHR) and representatives of the three ruling, ethnically-based parties, the Bosnian Serb Srpska demokratska stranka (SDS), the Bosniac Stranka demokratske akcije (SDA) and the Bosnian Croat Hrvatska demokratska zajednica (HDZ). Multi-ethnic, opposition parties were not represented in the PEC and had no say in drawing up electoral laws. In the interests of supervising the elections according to the time limits imposed by the DPA, the head of the OSCE chose to work exclusively with the ruling, ethnically-based parties. In this atmosphere, the results, both of the electoral system and the elections themselves, were predictable. The fundamental flaw in the existing electoral system -- at all levels -- is that candidates need only seek votes from one ethnic group to win office. Bosniacs can be elected without receiving a single vote cast by a Serb or a Croat. Serbs can be elected without receiving any Bosniac or Croat support. And Croats can be elected without receiving a single Bosniac or Serb vote. Given the very recent experience of war, the prime factor motivating the electoral decision of almost all Bosnians is fear of the other two major communities to which they do not belong. Understandably, therefore, almost everybody votes for candidates and parties which promise the most robust defence against the perceived threat, that is for ethnically-based parties. But since ethnically-based parties are themselves the greatest threat to the two other peoples, the consequence is a vicious cycle of fear and insecurity. 7 To date, elections in Bosnia have failed to reflect citizens' basic concerns. Even though unemployment stands above 50 percent throughout the country, basic social services are miserable and much of the country still does not have water, gas and electricity 24-hours-a-day, these issues did not feature in the various electoral campaigns. Instead, there was only one issue: the national question. Moreover, since the ruling, ethnically-based parties were aware that they would not receive any support from voters of other ethnic backgrounds, the key battle was voter registration. The more Serbs registered in a particular electoral unit, the more votes for the SDS and other exclusively Serb parties; the more Croats registered, the more votes for the HDZ; and the more Bosniacs registered, the more votes for the SDA. Given the option in the DPA for voters to cast ballots in municipalities other than those in which they were living at the time of the 1991 census, opportunities for electoral engineering were rife. 8 Voting itself was little more than a formality. 9 The logic behind the existing system is especially frightening. Having been elected on the basis of votes of a single community, an ethnically-based party will only represent the interests, or what they deem to be the interests, of that one people and feel no obligation to the rest of Bosnia's population. Instead of seeking accommodation in common institutions, these parties view every political issue as a "zero sum" game in which there will inevitably be a winner and a loser and thus fail at all times to reach compromise. Further, where an ethnically-based party has an absolute majority, members of other communities effectively have no political representation and, by extension, no political rights. Sadly, this logic has been borne out both during the 15 months of nationalist party government which preceded the outbreak of war in 1992 and the 27 months of nationalist party rule since the DPA came into force. In these circumstances, prospects of reconciliation and, yet more worrying, long-term stability are virtually non-existent. To date, the international community has intervened to change the logic of the current system by imposing solutions in intractable disputes, such as the citizenship laws as well as the design of the flag and common currency, where the nationalist parties were unable, or unwilling, to reach compromise. In addition, the international community has pressured relevant authorities in both entities to accept quotas in institutions such as the police force and judiciary in some parts of the country. However, while all these measures do push the peace process forward in the short term, they do not offer long-term solutions. They are addressing the symptoms of the problem, not its structural causes, and quick-fix solutions will rapidly unravel if and when the international community withdraws. In the interest of a longer-term solution and a self-sustaining peace process, the international community is also working to build civil society in Bosnia. The major donors all have programmes aimed at strengthening institutions, in particular media, judiciary, non-governmental organisations, and opposition parties, without which democracy cannot evolve in a healthy manner. However, even if these projects are all a resounding success, it is unlikely that civil society will be sufficiently strong to overcome the ethnic divide in the foreseeable future.

Characteristics Specific to Bosnia

Various characteristics specific to Bosnia have to be taken into consideration when drawing up an electoral system. These include the following:

Ethnic Identities

The concept of separate ethnic identities is deeply rooted in Bosnian society. These identities were formed during more than four centuries of Ottoman rule and reflect the unique structure of that empire's administration, the so-called millet system. Like all Ottoman subjects, Bosnia's religious communities -- Muslim, Orthodox, Jewish and Catholic -- were effectively governed separately, in millets, under their spiritual rulers. Moreover, these separate identities have remained clearly defined into the late 20th century and were even institutionalised in the constitutions of the former Yugoslavia via the concept of "constituent nations". Serbs, Croats and Muslims (now Bosniacs) were all constituent nations of Bosnia under the former Yugoslav republic's last constitution. Bosnians can usually tell which ethnic group their fellow citizens belong to via clearly-distinguishable names; were used to declaring their own ethnicity on forms and in censuses; and expected to see key posts in government shared according to an ethnic key.

The Consequences of Ethnic Cleansing

In the course of 43 months of war, approximately half of Bosnia's pre-war population of 4.3 million was uprooted. Of these, some one million remained within the country, and more than 1.2 million refugees were dispersed throughout 25 host countries. 10 By the end of hostilities, Republika Srpska was virtually cleansed of non-Serbs; the number of non-Croats in areas of the Federation under the control of the Croat Defence Council was minimal; and the number of Serbs and Croats in areas of the Federation under the control of the Bosnian Army was greatly reduced. Many Bosnian electors, therefore, no longer live in their pre-war homes, thus making voter registration a key issue. The DPA annex covering the first elections stipulates that: "A citizen who no longer lives in the municipality in which he or she resided in 1991 shall, as a general rule, be expected to vote, in person or by absentee ballot, in that municipality," and continues, "Such a citizen may, however, apply ... to cast his or her ballot elsewhere." 11 However, in the future this issue will depend on a new electoral law to be adopted by the Parliamentary Assembly. 12

Limitations of the Dayton Constitution

Given that the DPA was a compromise hammered out between the ethnically-based parties which waged the Bosnian war, it is hardly surprising that the Constitution, which forms an integral part of the DPA, 13 contains a series of provisions which appear designed to ensure that those same parties remain entrenched in power indefinitely. For example, at the Presidential level, the DPA stipulates: "The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska." 14 This provision -- which prevents Serbs and "Others" 15 from the Federation and Croats, Bosniacs and "Others" from Republika Srpska becoming president of their country -- and other provisions make it considerably more difficult to construct an electoral system designed to promote moderation and reconciliation.

Flawed Elections of September 1996 16

Elections formed a key part of the DPA and were scheduled to take place at the latest nine months after the agreement came into force, under the supervision of the OSCE. 17 Though the then OSCE Chairman-in-Office Flavio Cotti recognised that conditions did not exist for the elections to be free and fair, he, nevertheless, certified that "elections can be effective under current conditions in both Entities". 18 At the same time, however, he warned that if certain minimal prerequisites were not met, the elections would lead to further tensions and "pseudo-democratic legitimisation of extreme nationalist power structures". This was to prove sadly prophetic. Attempts to reform the electoral system in 1998 to promote moderation and conciliation also have to undo many of the results of the 1996 polls, in particular, the consequences of the manipulation of voter registration. The electoral engineering which characterised the 1996 elections has, among a plethora of problems, effectively left Serbs in the Federation without political representation.

Criteria for Designing an Electoral System for Bosnia

The criteria for designing an electoral system for Bosnia depend above all on the desired end-state, whether ethnic partition or integration. The premise of this paper is that the division of Bosnia into ethnic ghettos will never provide long-term stability. Moreover, the DPA includes among its provisions the right of refugees to return to their homes, 19 which, if implemented, would recreate multi-ethnicity in Bosnia. 20 Successive meetings of the Peace Implementation Council (PIC) have reaffirmed the commitment to multi-ethnicity. In Sintra in May 1997, the PIC declared that: "Bosnia and Herzegovina will remain as a united and sovereign country, consisting of two multi-ethnic Entities". In Bonn in December 1997, the PIC declared that it "considers multi-ethnicity a fundamental goal for the consolidation of a stable and democratic Bosnia and Herzegovina. It therefore recognises the need to support the establishment of new multi-ethnic parties and to strengthen the existing ones. It invited the High Representative, the OSCE and the Council of Europe to take due account of this need when reviewing the draft Election Law." 21 Given the above, the electoral system should attempt to:

• Build in ethnic security.

• Prevent the tyranny of the majority.

• Provide incentives for conciliation by obliging politicians and political parties to seek support from peoples other than their own.

• Ensure political representation of displaced persons returning to their homes.

• Give Bosnians a chance to vote on issues, not simply according to their ethnic identity.

• Facilitate stable and efficient government.

• Build in a mechanism for future reform.

• Build a pluralistic party structure.

• Provide co-operative partners for the international community's reconstruction effort.

• Ensure maximum voter participation.

• Minimise fraud.

Ways to Provide Incentives for Conciliation via the Electoral System

Various ways have been tried in other countries at different times to provide incentives for conciliation, many of which are also relevant in Bosnia. These include the following:

Proportional Representation

The rationale behind all Proportional Representation (PR) systems is to translate a party's share of the national vote into a corresponding proportion of parliamentary seats. As long as the threshold for representation is sufficiently low, this system should give a voice to minority views. With a plethora of parties represented in the legislature, politicians wishing to form a government are usually obliged to build coalitions and have a great incentive to seek support across the ethnic divide. Indeed, in January this year, it was by soliciting the 18 votes of Bosniac and Croat deputies that Milorad Dodik, the Prime Minister of Republika Srpska, was able to form a new government. One problem with such a system in the Bosnian context is that when a single community has an absolute majority in the legislature, only in exceptional circumstances will politicians from that community have any need to look beyond their own ethnic group. 22 Another is that, because parties rely exclusively on the votes of one community, there is little incentive for accommodation on ethnic issues. The system currently used to elect members of Bosnia's various assemblies is a form of PR. However, in practice, it has proved little more than a mechanism determining how many Serbs, Croats and Bosniacs registered and voted.

Alternative Vote

Elections using the Alternative Vote (AV) give voters the option of expressing preferences between candidates. Instead of picking their favoured candidate, electors rank candidates in the order of their choice by marking a "1" for their favourite candidate, "2" for their second choice, "3" for their third choice, and so on. To be elected, a candidate requires an absolute majority of votes, that is, more than 50 percent. Where no candidate has an absolute majority, the candidate with the lowest number of first preferences is eliminated from the count and his or her second preferences redistributed among the remaining candidates. This process is then repeated until a candidate has an absolute majority. The obvious advantage of AV in Bosnia is that in seeking second choice votes, candidates will be looking to cross the ethnic divide. The problem is that the system only works in single-member constituencies, that is where the country is divided into electoral units which each elect one office-holder. If Bosnia's ethnic distribution was the same as before the war or if electors were obliged to vote where they had been living at the time of the 1991 census, it would be possible to construct single-member constituencies. Given the ethnic cleansing of the war and the electoral engineering which has characterised voter registration, it is unlikely that constituency boundaries can be drawn in such a way as to oblige candidates to seek support across the ethnic divide. The possible exceptions are at the presidential level in Republika Srpska, that is both for the President of Republika Srpska and for the Serb member of Bosnia's collective Presidency, since the entire entity is one constituency.

Single Transferable Vote

Single Transferable Vote (STV) is probably the most sophisticated electoral system since it allows voters to choose both between parties and between candidates within parties. STV requires multi-member constituencies, that is the division of the country into electoral units which each elect more than one office-holder, with voters ranking candidates in order of preference in the same manner as the AV. After the total number of ballots are tallied, a "quota" of votes required for the election of a single candidate is calculated. This is done via the formula: Quota = ballots/(seats + 1) + 1 Any candidate who has more first preference votes than the quota is immediately elected. The surplus votes of elected candidates are then redistributed among the remaining candidates according to the second preferences on the ballot. 23 This process continues until all seats for the constituency are filled. The advantage in the Bosnian context is both that candidates will seek to cross the ethnic divide to pick up second choice votes (as with AV), and that voters can pick out moderates on party lists. The problem once again, however, is that as a result of ethnic cleansing and electoral engineering, the constituencies which existed naturally before the war are no longer there.

Ethnically-Designated Seats

Reserving a certain number of parliamentary seats for particular communities is one way to ensure representation for groups which might otherwise not have a political voice. Indeed, this is common practice in a diverse group of multi-ethnic countries including Jordan (Christians and Circassians), India (certain tribes, castes and Anglo-Indians), New Zealand (Maoris), Croatia (many minorities though not Serbs) and Slovenia (Hungarians and Italians). The concept of ethnically-designated seats already exists in Bosnia at several levels of government, including the Bosnian Presidency. However, at present, seats are exclusively reserved for Serbs, Croats and Bosniacs. Although 7.7 percent of the country's population were not, according to the 1991 census, Serbs, Croats or Bosniacs, 24 no seats are at present reserved in any state- or entity-level body for these minority communities. The Bosnian Presidency currently consists of one Serb (elected from Republika Srpska), one Croat and one Bosniac (both elected from the Federation). The pre-war version of the Presidency, whose composition was also ethnically-designated, consisted of two Serbs, two Croats, two Bosniacs and one "Other", thus, in theory, building in political representation for Bosnians who do not belong to the country's three main communities. 25 In addition to the Presidency, seats are also at present ethnically-designated in Bosnia's House of Peoples and in Mostar's seven assemblies. Of the House of Peoples' 15 delegates, five are Serbs, five Croats and five Bosniacs; 26 Mostar's City Council is also divided into thirds with 16 Croats, 16 Bosniacs and 16 "Others"; 27 and the ethnic composition of the six City-Municipal Councils are based on the 1991 census. 28 Moreover, the concept of ethnically-designated seats can be extended to many other levels of government as it has been at times in other ethnically-divided societies, including India under colonial rule, Pakistan, Cyprus, Zimbabwe and Fiji. Here, given that Bosnia was once part of the Austro-Hungarian Empire, the Habsburg experience may be the most illustrative. In the late 19th and early 20th centuries, Habsburg law-makers had to address very similar issues to those facing Bosnia today, in essence how to build viable and stable electoral systems in multi-ethnic provinces. The solution which they adopted shortly before the First World War was one of separate electoral rolls for different peoples with ethnically-designated seats in the legislature. The first such solution was the so-called Moravian Compromise of 1905 between Czechs and Germans. 29 This was followed soon after by similar agreements in Bukovina, between four peoples, and Galicia, between two. 30 Separate ethnic electoral rolls can be drawn up in Bosnia for Serbs, Croats and Bosniacs, as well as "Others" who do not belong to the three main communities and seats allocated in advance for each group. If such a system were to be selected, the key issue would obviously be how many seats to set aside for each community and what criteria to use in making such a decision. The 1991 census may be the best basis for any seat allocation. Another factor which must be taken into consideration is the potential to lock in ethnic dominance if any people automatically receives a majority of seats. That said, none of Bosnia's peoples formed an absolute majority of the population before the war. 31 One issue which has arisen in other ethnically-divided societies, which should be addressed is who qualifies as belonging to a particular ethnic group. In Singapore, where seats are reserved for Indian, Malay and other ethnic minorities, a committee of members of each community acts as the ultimate arbiter of whether someone claiming to be from a particular ethnic group is actually recognised as belonging to it. While ethnically-designated seats certainly build an element of ethnic security into the electoral system, experience to date of those tiers of government at which such a system is already in place has been very disappointing. The Presidency, the House of Peoples and Mostar's legislatures have all failed to function. This failure, however, is to a large extent the result of the existing composition of these institutions and not necessarily the concept of ethnically-designated seats. At present, members of these institutions have all been elected exclusively on the basis of the votes of only one of Bosnia's peoples or appointed by parties elected on the basis of the votes of only one of Bosnia's peoples. If, instead, they were obliged via other aspects of the electoral system to seek the support of other peoples as well, the results may be very different.

Double or Multiple Voting

Double or multiple voting is probably the most certain way to boost multi-ethnic political parties via the electoral system, since it effectively obliges prospective politicians to look beyond their own community to win office. Moreover, a form of multiple voting has already been used once before in Bosnia in the 1990 presidential elections, so Bosnians are familiar with the concept, even if most foreigners are not. The theory is quite simple. If the ethnic results of elections are set in advance and all electors vote in each category, then moderate candidates who can draw votes both inside and outside their community should perform better than those who look exclusively to one ethnic group for support. In the 1990 Presidential elections, all Bosnians voted for each of seven members of the Presidency, two of whom were Serbs, two Croats, two Bosniacs and one "Other". 32 In effect, because of their relative numbers in the population, Serb and Croat candidates, at least, could not hope to get elected without a certain number of votes cast by Bosniacs. Nevertheless, ethnically-based parties were triumphant across the board. 33 The best explanation for these results is probably the political climate of the time. For, as elsewhere in Eastern Europe and the former Yugoslavia, the 1990 elections were, above all, about ousting the Communists. Moreover, strange though it may appear today, the ethnically-based parties actually formed an electoral coalition among themselves and even advised their own natural supporters to vote for the other ethnically-based parties. 34 Furthermore, most ordinary Bosnians who went to the polls were unaware at the time of the potential consequences of the new order they were creating. If elections were rerun on an identical basis today, it is highly unlikely that Bosniacs would again vote for parties which were exclusively Croat or Serb. Reverting to the 1990 system at the Presidential level is not an option today for two reasons. Firstly, it is not possible because of provisions of the Bosnian Constitution agreed at Dayton. 35 Secondly, it effectively gives Bosniacs a disproportionate say in the election of Serbs and Croats because of their relative numbers in the overall population. However, a more comprehensive approach, including separate ethnic electoral rolls (as discussed above) and each community's vote "weighted" to give each ethnic group an identical say in the election of members of other ethnic groups, could be implemented at many levels of government. If the Bosnian electorate is divided into Serb, Croat and Bosniac electoral rolls, the ethnic results are set in advance, and every elector votes once each for Serb, Croat and Bosniac candidates, each community can have an influence on who is elected in the other communities. The extent of that influence depends on how votes cast by the other communities are tabulated. One possible solution is to insist that all prospective candidates obtain a minimum amount of support, say 5 percent, from each community and that anybody who does not achieve that threshold in any community cannot win office. In practice, however, this is not realistic, since Bosnians are extremely unlikely today to vote for ethnically-based parties of the communities to which they do not belong and such a condition would thus deprive ethnically-based parties of all representation, effectively banning them. A more realistic option is to "weight" the votes of the various communities in such a way as to give each equal say in the selection of candidates from other communities. Thus, though only, say, 20 percent of the overall Bosnian electorate are Croats, and only, say, 30 percent are Serbs, as compared to about 45 percent Bosniacs, the numerical differences could be evened out by multiplying the Croat and Serb votes by a coefficient. In the theoretical example above, that coefficient would be 2.25 for Croat votes and 1.5 for Serb votes. Since there are more Bosniacs in the population than Croats and Serbs, there would, of course, be more seats allocated to Bosniacs in the legislature than to Croats and Serbs. Ethnically-based parties would retain some representation since they would probably receive votes from their own community, even if they do not receive any support from other ethnic groups. One potential problem associated with multiple voting, namely that of the "straw man", remains and must be addressed. If, for example, Serb and Bosniac voters have as much say in the selection of Croat parliamentarians, as Croat voters, candidates may present themselves for election on a Croat ticket who have no following whatsoever among Croats and are therefore effectively puppets of the other two communities. To get around this, and ensure that those individuals who fill the seats reserved for their community do have backing within that ethnic group, a threshold for minimum support from within their own community of, say, 5 percent can be set. Unless a candidate achieves this minimal amount of support from his own ethnic group, votes cast for him or her by other ethnic groups will not be counted. While the aim of the system outlined above is to bridge the ethnic divide by obliging politicians and political parties to seek the support of all communities, a drawback to be aware of is that, by creating separate ethnic electoral rolls, the ethnic divide is institutionalised. This may, however, only be necessary in the short-term to promote a sense of security and to build confidence among communities.

Candidacy Requirements

In order to stand in elections, candidates and parties usually have to fulfil certain criteria which, if sufficiently demanding, can help build moderation into politics. The existing PEC rules and regulations already contain a number of such requirements. These include the following: parties and candidates must demonstrate the support of a specified number of registered voters, indicated by the collection of their signatures; 36 parties and candidates must subscribe to the DPA; 37 and candidates may not be, persons indicted by the International Criminal Tribunal for the former Yugoslavia who have not surrendered themselves to the Tribunal. 38 In other ethnically-divided countries, such criteria have been even more demanding. At one extreme, parties can be obliged to run multi-ethnic lists. This is, for example, the case in Lebanon. However, such a requirement, or one demanding that parties seek a minimum number of signatures from all ethnic groups and both entities, is probably unrealistic in Bosnia today, since again it would be tantamount to banning the ethnically-based parties which currently rule the country.

Proposals for Reform of Electoral System

Hypotheses

The following proposals are based on two hypotheses. The first hypothesis is that politicians modify their behaviour according to the logic of the system in which they have to operate. If this is indeed the case, it is possible that Bosnian politicians currently appear to pursue the most unreasonable, obstructionist tactics because they have learned that in the existing system the way to get ahead is to defend the interests of their own community in the most aggressive manner possible. It is also possible that if the logic of the system is changed in such a way as to reward moderation, they would adopt very different positions. The second hypothesis is that the international community is prepared to remain in Bosnia as long as it takes to prevent the country slipping back into war and, at the same time, build a functioning democracy. This now appears likely since on 4 March, US President William Clinton agreed to extend the presence of US armed forces in Bosnia beyond 30 June 1998, explaining to Congress that he was tying their presence to "concrete and achievable benchmarks". 39 If the logic of politics is changed, either the current political elite will radically alter its behaviour, or a new generation of political leaders will emerge. In the latter scenario, a concerted international effort will be required to ensure a clean transfer of power.

Potential Solution to Meet Criteria Specified Above

Constructing an electoral system for Bosnia which would build in moderation and promote harmony among the country's communities would obviously be considerably easier had it not been for the population-shifts of the war, certain strait-jacket provisions of the DPA, and also the flawed 1996 elections. That said, the existing constitution offers some scope for manoeuvre since it states that: "The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law." 40 The European Convention can, for example, be called upon to challenge the electoral division between Republika Srpska and the Federation at the Presidential level which prevents Bosniacs, Croats and "Others" from Republika Srpska and Serbs and "Others" from the Federation from becoming President of their country. Restrictive Constitutional provisions may also be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives. 41 In the interest of designing the most appropriate electoral system, these options should be explored. Based on the above analysis of electoral mechanisms to promote reconciliation, the best way to build ethnic security into Bosnian politics would be to set the ethnic results of the elections in advance. Ideally, though not necessarily, they should be set in such a way that no people has an absolute majority in any legislature so as to prevent the domination of the majority and ensure political representation for displaced persons. Seats should also be reserved for Bosnians who do not belong to the country's three constituent peoples. To provide incentives for conciliation and oblige politicians and political parties to look beyond their own community for support, each ethnic group should have equal say in the election of the members of the other communities via "weighted" multiple votes. To achieve this, the Bosnian electorate has to be divided into Serb, Croat, Bosniac and "Other" voters. To encourage electors to vote in all categories, ballots should be considered spoiled unless all sections are filled. To ensure that "straw men" are not elected, a threshold of support from one's own community must be set. The system outlined above would help facilitate stable and efficient government and provide co-operative partners for the international community since politicians will be beholden to the entire electorate and not only their own ethnic group in future elections. Moreover, given these incentives for co-operation, Bosnians should in time be able to reform their own political system without international mediation. The incentive for Bosnians to vote would be massive, since they would have a say in the election of individuals from the communities to which they do not belong. They would also therefore be making a positive choice, based on who they most wished to see in authority. And with ethnic results set in advance and the various communities' votes "weighted" appropriately, the ethnic engineering and fraud which marred earlier elections could not be repeated.

Practical Options 42

Putting the potential solution outlined above into practice requires, in the first instance, voter registration by ethnic community. Electoral identity cards can be issued specifying which ethnic group voters belong to and also both where they currently reside and where they were living at the time of the 1991 census, if different. Such electoral identity cards could be retained for future elections, thus obviating the need for repeated voter registration. The electoral system outlined above can be adopted relatively easily for all September's scheduled assembly elections, that is for the House of Representatives of Bosnia, the House of Representatives of the Federation, the National Assembly of Republika Srpska, as well as the Federation's 10 Cantonal assemblies. Introducing the same, or a similar system to elect the President of Republika Srpska and the three members of Bosnia's Presidency is more complex and considered separately below.

Assembly Elections

Introducing an electoral system based on pre-determined ethnic results and "weighted" multiple voting does not require any constitutional changes in any of the assembly elections. It is, nevertheless, potentially controversial, with the key task being to set the ethnic division of seats appropriately. This is probably least controversial for the House of Representatives of Bosnia where the 1991 census offers a good starting point. According to the Constitution, 28 out of 42 seats are elected from the Federation and 14 from Republika Srpska 43 and, following the 1996 poll, all three constituent peoples are already represented. 44 The ethnic allocation could also include one seat reserved for "Others" in Republika Srpska and two seats reserved for "Others" in the Federation. 45 Further, in the interest of reconstructing two multi-ethnic entities, all three major communities could be represented in both. And in the interest of encouraging politicians to look beyond their own community, seats could be allocated in such a way that no single ethnic group has an absolute majority built in. Allocating seats to each of Bosnia's communities is more controversial and complicated in elections to Bosnia's other assemblies as a result of the electoral engineering which took place in 1996. Not one parliamentarian of the Federation's 140-member House of Representatives 46 or even in the Federation's 10 Cantonal legislatures is Serb. If, however, Serbs are to return to their homes in the Federation, they require some form of political representation and this can only effectively be guaranteed by reserving a number of seats in advance. This may be possible to arrange on the basis of reciprocal changes in the National Assembly of Republika Srpska, in which Bosniacs are currently represented, but Croats are not. Where the ethnic results are set in advance, voter registration ceases to be an ethnic issue as there is no advantage to "packing" regions with electors of a particular community. If a system along these lines is adopted in both Republika Srpska and the Federation, perhaps displaced voters should be able to vote both where they currently live and where they resided in 1991, in elections which are mutually exclusive, thus allowing them to keep their options open. Thus it would be possible for them to vote in elections at an entity level on both sides, but not, for example, at the Presidential level, where electors are limited constitutionally to voting for one member of the Presidency.

Election for the President of Republika Srpska

The ethnicity of the President of Republika Srpska is not specified so that, at least in theory, any citizen of that entity can aspire to that office, irrespective of ethnic origins. As a result, both Serb and Bosniac candidates stood for this position in the 1996 election. The system used to elect that individual was one of first-past-the-post, that is the candidate who won the most votes on the day became president, irrespective of the actual percentage of votes he or she acquired. With seven candidates, it was therefore theoretically possible for the President of Republika Srpska to be elected with less than 15 percent of the vote. In the event, Biljana Plavsic, then of the SDS, won 59 percent. To a large extent, however, the strength of her performance reflected a homogenisation among Serb voters determined to keep out the Bosniac candidate, Adib Dozic of the SDA, who came second with 18 percent. In theory, it is possible to oblige the President of Republika Srpska to seek the support of all three of Bosnia's major constituent peoples via separate electoral rolls and "weighted" votes cast by each community. Politically, however, this system would be almost impossible to introduce, since giving each community an equal say would open up the serious possibility of a Croat or Bosniac being elected. Nevertheless, the potential for a candidate to become President of Republika Srpska with only a very small proportion of the vote, as well as the negative selection process which characterised the 1996 elections at this level, make the existing system unsatisfactory. One potential improvement is the French model of two rounds of voting: the first to determine the top two candidates (assuming that no individual obtains an absolute majority in the first round); and the second a run-off between the two which ensures that the victor is supported by a majority of the electorate. However, two ballots on two separate days, usually a week or two apart, adds greatly to the cost of the elections. A cheaper alternative, which has the same effect, is to use the Alternative Vote (AV) as in the Sri Lankan Presidential elections. There are several advantages to the Sri Lankan model, which was itself designed to encourage consensus politics in what is otherwise also an ethnically-divided country and ensure the election of a national figure representative of all groups in society. Firstly, whoever is elected will have the support of at least half the electorate. Secondly, candidates will have a strong incentive to look beyond their own ethnic community to pick up the second choice ballots cast by members of other ethnic groups. And thirdly, only one round of voting is required making it cheaper than the French model.

Election for Bosnia's Three-Member Presidency

According to the Constitution, Bosnia's three-member Presidency consists of one Serb, one Croat and one Bosniac. The Croat and the Bosniac are each directly elected from the territory of the Federation and the Serb is directly elected from the territory of Republika Srpska. Further, they "shall be directly elected in each Entity (with each voter voting to fill one seat on the Presidency)". 47 Under the existing system the Serb member is elected by direct ballot from Republika Srpska in the same fashion as the President of that entity. And the Croat and Bosniac members are elected by direct ballot in the Federation in which each elector has only one vote, in such a way that effectively Croats vote for the Croat member of the Presidency and Bosniacs vote for the Bosniac member of the Presidency. The Serb member of the Presidency can in theory be elected by all three communities in Republika Srpska using separate rolls and "weighted" voting. Moreover, if a threshold of, say, 5 percent of votes cast by Serbs is required, there is no chance of the successful candidate being a Croat or Bosniac stooge. Politically, however, such a change would be very difficult to introduce without similar reform for the election of the Croat and Bosniac members of the Presidency. And similar reform is not, under the existing constitutional arrangement, possible since electors are unable to vote both for the Croat and the Bosniac member of the Presidency. Indeed, without key changes to the Constitution, the only obvious way to build in incentives for moderation at this level is, as with the election for President of Republika Srpska, to introduce AV to elect the Serb member of the Presidency.

Other Factors

Importance of Elections to Reconstruction

Bosnia's September 1996 elections took place because they were scheduled in the DPA and because certain Western politicians wished to hail the event as a triumph, irrespective of what did or did not actually take place, not because they were necessarily going to contribute positively to the reconstruction of the country. Indeed, the consequences of the original polls have been extremely damaging to other aspects of the peace process and the joint institutions, whose formation was ostensibly the reason for the poll, have completely failed to function. Elections are scheduled to take place again in September this year because the initial mandates, at least at the Presidential level, were specified in the DPA to expire after two years. 48 Technically, it will again, without doubt, be feasible to stage a day or two of voting. However, building a healthy, functioning and self-sustainable democracy in Bosnia is about a lot more than simply inviting Bosnians to cast ballots. The process of voting alone should never be hailed as a triumph of democracy. And the political consequences of further elections must be evaluated and clearly understood in advance. Organising elections so soon after the end of the war in Bosnia ostensibly to help resolve the conflict has, from the very start, been controversial. In West Germany after the Second World War, by comparison, the allies deliberately chose not to hold elections for four years, aware that premature polls without fundamental political reform would probably set the reconstruction process back. Instead, they invested several years rebuilding German society and constructing the political system in such a way that the country would be able to evolve into a healthy democracy. The German experience is especially relevant now that President Clinton has linked the presence of US troops to achievable benchmarks, including "the conduct of elections according to democratic norms". If the international community and NATO are eventually to make a dignified withdrawal from Bosnia, democracy-building has to be viewed as a long-term project and these benchmarks achieved. 49 Key to the success of this endeavour is reform of the political system. Devising an appropriate electoral system which will contribute positively to Bosnia's reconstruction must therefore be a priority. Moreover, elections should not be held until such a system has been designed, agreed and put in place. If this cannot be implemented by September, the elections should be postponed. When an appropriate system is in place, it will also be important to reduce the four-year mandate which the elections are scheduled to confer and stagger the reduced electoral mandates in such a way that, in the future, elections to the Presidency and various legislatures take place in different years.

"Selling" Electoral Reform

If the electoral system is to be reformed, it is above all critical to "sell" the changes within Bosnia, both to the authorities and the electorate. To be successful, key leaders have to endorse the reforms which then have to be explained at length to the Bosnian public. In effect, Alija Izetbegovic (Bosniac member and chairman of the Bosnian Presidency), Biljana Plavsic (President of Republika Srpska) and Kresimir Zubak (Croat member of the Bosnian Presidency) have to sign off on the new system. Though reform would challenge the dominance of the ethnically-based parties, there is a good chance that these individuals, at least, would see the benefits for their own communities. For Serbs and Croats, the proposed electoral system offers protection from threats of the domination of a Bosniac majority and assures their existence in Bosnia. For Bosniacs, the proposal helps guarantee the unity of Bosnia.

Conclusion

Some of the proposals contained in this paper will no doubt be unpalatable to Westerners. In particular, the division of Bosnia's communities into separate ethnic electoral rolls is a concept which some may find difficult to stomach. However, Bosnia is not a melting pot on the US model. Rather, it is a country in which three distinct ethnic groups have lived side by side for centuries, maintaining their separate identities and traditions. Within the past 100 years, Bosnia's communities have inter-mingled and inter-married in cities and distinctions have begun to blur. Nevertheless, these distinctions remain probably the most striking feature of Bosnian society. While Westerners may find institutionalising divisions uncomfortable, the aim of this proposal is to acknowledge differences and to build them into the system in such a way that elected officials are answerable to, and dependent on, all voters and not exclusively their own ethnic group. It is also based on the experience and practice of other multi-ethnic states, which is very different to Western countries, but more relevant to Bosnia. The key issue is how to construct a self-sustaining democracy which offers a stable future to all Bosnia's citizens and enables those who wish to return to their homes. Given the experience of the past two years, the existing arrangement has clearly failed. If the international community chooses merely to persevere with the current electoral system, the logic of ethnically-based politics will not have been changed. Candidates and parties will still be able to win office with the exclusive support of one community and politics will remain a "zero sum" game in which it is impossible ever to reach compromise. In these circumstances, it is almost irresponsible to attempt to push displaced persons back into areas in which they do not belong to the majority ethnic group and in which they will effectively have no political rights. All aspects of reconstruction in Bosnia are hostage to the political environment. Without the creation of a healthy political framework, economic reconstruction, privatisation, media and judicial reforms will fail to have the desired impact. Moreover, the international community can expect to have to remain in Bosnia propping up an untenable system and, at the same time, caring for the refugee community abroad almost indefinitely. Hence the overwhelming need for an innovative solution to the electoral system so as to move the political debate beyond exclusively ethnic issues. Sarajevo
10 March 1998

Appendix

Constitutional Provisions Constitution of Bosnia and Herzegovina, DPA, Annex 4: Article IV - Parliamentary Assembly The Parliamentary Assembly shall have two Chambers: the House of Peoples and the House of Representatives. 1 - House of Peoples The House of Peoples shall comprise 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs). (a) The designated Croat and Bosniac Delegates from the Federation shall be selected, respectively, by the Croat and Bosniac Delegates to the House of Peoples of the Federation. Delegates from the Republika Srpska shall be selected by the National Assembly of the Republika Srpska. 2 - House of Representatives The House of Representatives shall comprise 42 Members, two-thirds elected from the territory of the Federation, one-third from the territory of the Republika Srpska. (a) Members of the House of Representatives shall be directly elected from their Entity in accordance with an election law… Article V - Presidency The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska. 1 - Election and Term (a) Members of the Presidency shall be directly elected in each Entity (with each voter voting to fill one seat on the Presidency) in accordance with an election law… Constitution of the Federation of Bosnia and Herzegovina Section IV, A, 1 - The House of Representatives Article 1 There shall be a House of Representatives, comprising 140 Members. Article 3 (1) Members of the House of Representatives shall be elected democratically by eligible voters in a direct, Federation-wide election. Each voter shall be eligible to cast a single, secret ballot for any registered party. Each party receiving at least five percent (5%) of the total valid votes cast shall be allocated a number of seats proportional to its percentage of the vote received. (2) Before each election, each registered party shall publish a list of candidates. The Members of the House of Representatives from each party shall be the persons highest on that party's list…. Section IV, A, 2 - House of Peoples Article 6 There shall be a House of Peoples, comprising 30 Bosniac and 30 Croat Delegates as well as Other Delegates, whose number shall be in the same ratio to 60 - as the number of Cantonal legislators not identified as Bosniac or Croat is in relation to the number of legislators who are so identified. Article 8 The number of Delegates to be allocated to each Canton shall be proportional to the population of the Canton. Within that number, the percentage of Bosniac, Croat, and Other Delegates of a Canton shall be as close as possible to the percentage of the Bosniac, Croat, and Other legislators in that Canton. However, there shall be at least one Bosniac, one Croat, and one Other Delegate from each Canton that has at least one such member in its Legislature, and the total number of Bosniac, Croat, and Other Delegates shall be in accordance with Article 6. Bosniac, Croat, and Other Delegates from each Canton shall be elected by the respective legislators in that Canton's Legislature. Article 9 The Delegates shall be elected from the members of the Cantonal legislatures. Section B, 1. The President and the Vice-President Article 2 In electing the President and Vice-President, a caucus of the Bosniac Delegates and a caucus of the Croat Delegates to the House of Peoples shall each nominate one person. Election as President and Vice-President shall require approval of the two nominees jointly by a majority vote in the House of Representatives, then by a majority vote in the House of Peoples, including a majority of the Bosniacs Delegates and a majority of the Croat Delegates…. Constitution of Republika Srpska Article 71, as amended by Amendment XXXVI

1. The National Assembly has 83 people's deputies.

2. Electoral laws shall establish the electoral units and the system of distribution/allocation of mandates, thus ensuring that all municipalities are properly represented in the National Parliament.

3. The representatives shall be elected in direct elections by secret ballot.

Article 83, as amended by Amendment XL The President and Vice-President of the Republic are elected by the citizens by immediate and secret voting…. The President and Vice-President of the Republic are elected at the same time from the same list of candidates.

FootNotes

1. This paper draws on The International IDEA's Handbook of Electoral System Design, an unpublished paper produced by the United Kingdom's Electoral Reform Society on electoral reform in Bosnia and Herzegovina; Donald Horowitz's Democracy in Divided Societies, Journal of Democracy 4: 18-38; Habsburg electoral experience as explained orally by a professor of the history of the Habsburg Monarchy; ICG's various election reports; Suad Arnautovic's Izbori '90; an unpublished paper by Francis Delperee, a law professor and constitutional expert from Louvain's Catholic University commissioned by ICG's Brussels headquarters; and discussions with Bosnian lawyers and constitutional specialists.

2. For comprehensive analyses of the elections of September 1996 and September 1997, see the ICG reports Elections in Bosnia and Herzegovina, 22 September 1996; ADDENDUM to the 22 September 1996 ICG Report on Elections in Bosnia and Herzegovina, 30 October 1996; Beyond Ballot Boxes: Municipal Elections in Bosnia and Herzegovina, 10 September 1997; and ICG Analysis of 1997 Municipal Election Results, 14 October 1997.

3. At its Bonn meeting on 10 December 1997, the Peace Implementation Council stated: "Underlining the importance of international involvement in future elections in Bosnia and Herzegovina, the Council expects the authorities in Bosnia and Herzegovina to invite the OSCE to supervise elections in Bosnia and Herzegovina in 1998. It therefore requests the OSCE to extend the mandate of its Mission in Bosnia and Herzegovina accordingly."

4. The General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Peace Agreement or DPA), Annex 4, Article V, Par. 1(b) states: "The term of the Members of the Presidency elected in the first election shall be two years; the term of Members subsequently elected shall be four years."

5. The Parties to the DPA asked the OSCE to establish a Provisional Election commission (PEC) and mandated it to adopt rules and regulations regarding: the registration of political parties and independent candidates; the eligibility of candidates and voters; the role of domestic and international election observers; the ensuring of an open and fair electoral campaign; and the establishment, publication and certification of definitive election results. The PEC was also mandated to supervise all aspects of the electoral process, to elaborate a voter registration procedure, to ensure compliance with the electoral rules and regulations, and to ensure that appropriate action was taken to remedy any violation of the DPA or the rules and regulations (DPA, Annex 3, Article III).

6. DPA, Annex 3, Article III(3).

7. While the SDS no longer dominates politics in Republika Srpska, almost all the political parties which achieved electoral breakthroughs in the November 1997 poll are, nevertheless, ethnically-based and exclusively Serb. The logic of the political system itself, therefore, remains unchanged. The only parties which attempted to appeal to the entire electorate, and can thus claim to be multi-ethnic, were Milorad Dodik's Party of Independent Social Democrats and Zlatko Lagumdjia's Social-Democratic Party. Both parties won two seats each out of the 83 seats in the Republika Srpska National Assembly.

8. According to DPA, Annex 3, Article IV: "A citizen who no longer lives in the municipality in which he or she resided in 1991 shall, as a general rule, be expected to vote ... in that municipality, provided that the person is determined to have been registered in that municipality as confirmed by the local election commission and the Provisional Election commission. Such a citizen may, however, apply to the commission to cast his or her ballot elsewhere."

9. The first electoral campaign in which issues other than the national question were discussed was that for Republika Srpska's National Assembly in November 1997. There were two main reasons for this debate. On the one hand, the output of SRT, the entity's principal broadcaster, was heavily controlled by the international community. On the other, the number of Serbs registered to vote in the election was so much higher than the number of non-Serbs that the perceived threat was minimal.

10. Operational Plan for Durable Solutions Within the Framework of Annex 7 of the General Framework Agreement for Peace in Bosnia and Herzegovina and Related Regional Return and Repatriation Movements, High Level Working Meeting on Implementation of Annex 7 of the DPA, 8 March 1996, Oslo.

11. DPA, Annex 3, Article IV, emphasis added.

12. DPA, Annex 4, Article V(1).

13. DPA, Annex 4.

14. DPA, Annex 4, Article V, emphasis added.

15. "Others" are Bosnians who are not Serbs, Croats or Bosniacs.

16. For a complete analysis of the September 1996 elections, see the ICG reports, Elections in Bosnia and Herzegovina, 22 September 1996 and ADDENDUM to the 22 September ICG Report on Elections in Bosnia and Herzegovina, 30 October 1996.

17. DPA, Annex 3, Article II(4).

18. Certification of the Elections in Bosnia, Declaration of the Chairman-in-Office, Federal Councillor Flavio Cotti, at the Permanent Council of the OSCE, 25 June 1996.

19. DPA, Annex 7, Chapter One, Article 1 states: "All refugees and displaced persons have the right freely to return to their homes of origin."

20. PIC Sintra declaration, 30 May 1997, p. 3, emphasis added.

21. PIC Bonn declaration, 10 December 1997, p. 18.

22. The circumstances in which Prime Minister Dodik brokered a coalition with non-Serb members of the Republika Srpska National Assembly to form his government on 18 January were exceptional. An earlier attempt to form a government based exclusively on Serb support had already collapsed as a result of the intransigence of the SDS which hoped to leave the parliament in deadlock. The parliamentary session itself was directed at key moments by the OHR which even organised the return of a Croat member of the parliament, who had already set off for home in Zagreb, so that he could vote. Moreover, the new government is not a multi-ethnic coalition, since all ministers are Serbs.

23. All of the candidate's ballots are redistributed, but each at a fractional percentage of one vote, so that the total redistributed vote equals the candidate's surplus. If, for example a candidate had 100 votes and 10 votes were surplus, then each ballot paper would be redistributed at the value of one tenth of a vote.

24. Of this, 5.5 percent described themselves as "Yugoslavs" and 2.2 percent as "Others".

25. The Bosnian who was elected in 1990 as an "Other" was Ejup Ganic, the current President of the Federation, who is now considered a Bosniac. Ganic comes originally not from Bosnia but from the Sandzak and stood as a Yugoslav in 1990.

26. DPA, Annex 4, Article IV(1).

27. Official Gazette of the City of Mostar, Interim Statute of the City of Mostar, Chapter III, Article 16(2), 20 February 1996.

28. Ibid, Article 56(3).

29. The Moravian Compromise established two voting lists, one German and one Czech, in which Moravians were able to choose to which they wanted to belong. The provincial assembly allotted a set number of seats for each of its chambers, which roughly divided the Germans and Czechs 40:60. This was somewhat advantageous for the Germans, since the actual ratio by population was closer to 35:65, but the compromise also locked in a Czech majority.

30. The literature on the Habsburgs' experiments with electoral systems in multi-ethnic provinces in the early 20th century is largely in German and Czech. In German it includes Horst Glassl's, Der mahrische Ausgleich (Munich, 1967); Wilhelm Kosch, Die Deutschen in Osterreich und ihr Ausgleich mit den Tschechen, (Leipzig, 1909); and Alfred Freiherr von Skene, Der nationale Ausgleich in Mahren 1905, (Vienna, 1910). In Czech there is Vaclav Slesinger, Z boju o pokrokovou Moravu 1890-1918, (Brno, 1947); Josef Kolejka "'Moravsky pakt' z roku 1905" in Ceskoslovensky Casopis Historicky 4, 1956, pp. 590-615. The only literature in English on the same general topic is Peter Mirejovsky, "In Search of a Bohemian Compromise: Czech-German Negotiations 1908-1914", Ph.D. Dissertation, University of Toronto, 1982.

31. According to the 1991 census, 43.7 percent of Bosnia's population was Bosniac, 31.3 percent Serb, 17.3 percent Croat, 5.5 percent Yugoslav and 2.2 percent "Other".

32. For a full analysis of the 1990 elections, see Suad Arnautovic's Izbori u Bosni i Hercegovini '90, Promocult, Sarajevo, 1996.

33. The two Bosniac members of the Presidency elected in 1990 were Fikret Abdic and Alija Izetbegovic of the SDA; the two Serb members elected were the late Nikola Koljevic and Biljana Plavsic of the SDS; and the two Croat members elected were Stjepan Kljuic and Franjo Boras of the HDZ. Ejup Ganic was the "Other".

34. Leaders of the three ethnically-based parties which emerged in 1990 all attended the founding rallies of the other ethnically-based parties to demonstrate their support.

35. DPA, Annex 4, Article V states: "The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska."

36. The precise number of signatures required varies according to the election and is different for independent candidates and parties, PEC Rules and Regulations, Articles 40-43 and 54.

37. PEC Rules and Regulations, Articles 46, 49, 55 and 62.

38. PEC Rules and Regulations, Articles 46 and 56.

39. Clinton speech to Congress, US Newswire, 4 March 1998.

40. DPA, Annex 4, Article II(2), emphasis added.

41. DPA, Annex 4, Article X(1).

42. See appendix for constitutional provisions for each level discussed below.

43. DPA, Annex 4, Article IV(2).

44. In the 1996 elections, 23 Bosniacs were elected, 20 in the Federation and 3 in Republika Srpska, 11 Serbs, all in Republika Srpska, and 8 Croats, all in the Federation.

45. Given the small proportion of "Others" in the population, these representatives would be elected from a separate ballot for which only "Others" could vote, similar to the Maori list in New Zealand.

46. In the 1996 elections, the SDA won 78 seats, the HDZ 36, the United List 11, the Party for Bosnia and Herzegovina 10, a minor Bosniac nationalist party 3 and a minor Croat nationalist party 2.

47. DPA, Annex 4, Article V.

48. DPA, Annex 4, Article V(1).

49. The other benchmarks which President Clinton specified to Congress are the reform of police and media, the elimination of illegal pre-DPA institutions, elimination of cross-entity barriers to commerce, and a framework for the phased and orderly return of refugees, Clinton speech to Congress, US Newswire, 4 March 1998.