Recall of mandate through referendum

A recall election is a procedure by which voters can remove an elected official from office through a direct vote before that official's term has ended. According to the “Direct Democracy Database”, run by International IDEA[1], at least 23 countries have legislation that makes this possible. It should be noted that some of these countries are not normally viewed as democracies, making the possibility for citizens in these countries to actually use the concept of recall questionable.

There are several aspects of the recall elections that differs between countries:

  • Which elected positions may be subject to recall election?
  • Who can initiate a recall election?
  • When can a recall petition be made?
  • On what grounds could a recall election be initiated?
  • How many signatures does a recall petitions need to get to a referendum?
  • Which percentage of the voters must support the recall to make it happen?
  • Who takes over the position that has been vacant through a successful recall?

Early examples of the right to initiate recall elections come from Switzerland, were the figure was introduced in the legislation of six cantons (regions) in the middle of the 19th century, but only once resulted in an actual recall of a mandate.[2] In more modern days Peru, which introduced recall regulations in 1992 for elected individuals at local and regional level, is the country with the most intense use of the facility.

Recall should be distinguished from revocation, i.e. when the body that have elected a representative is taking a vote of no-confidence, and from destitution, i.e. when an elected representative have been found guilty of crime and therefore loses his or her mandate in line with clear legislation on which crimes would lead to destitution.

 

Aspects

Which elected representatives and/or bodies that could face a recall election varies greatly between different countries. In Bolivia all person pursuing an elected office may be subject to a recall[3], whereas in Iceland this goes only for the president[4].  In some countries recall is only applicable to local and regional levels and in yet others only to executive positions like mayors and (elected) governors. There are also examples of countries where the whole parliament could be recalled through a popular initiative[5].

The initiative for a recall process could come either from citizens or from other elected bodies. In the case of Iceland, mentioned above, it is only by a resolution supported by three quarter of the members of parliament that the president could be submitted to a recall election. If the resolution is not approved by the referendum, the parliament “shall be immediately resolved and new elections called”.  But in most countries, the initiative could come from citizens, often with demands for a certain number of individuals to stand behind the initiative.

In several countries, especially in Latin America, a recall cannot be initiated during the first or last year of the mandate period of an elected position. The reasons for this is that the elected must have a chance to deliver on the popular vote, before being questioned and that a recall process during the last year of office would lack meaning, as the termination of the mandate would come very close to the next elections.

In most countries that have possibilities for recall elections, no necessary ground for the recall is specified.[6] In Colombia the criteria are specified but rather wide: “Non accomplishment of the government program proposed at the beginning of the respective term, or general disaffection of the population with the performance of the authority“[7]. A special case is Kenya, where a member of parliament could be submitted to a recall election only if convicted for certain crimes[8]. (In most other countries the destitution of a convicted parliamentarian is done by the parliament or automatically.)

To be able to launch a successful recall process, the initiators need to collect sufficient support – what is sufficient differs significantly. In some Swiss cantons it is as low as 2 percent of the electorate, whereas in Peru the limit is 25 percent. In some countries, the threshold relates to the number of votes that the elected holder of office received.

Likewise, the conditions for a successful recall vote varies. Often it should be a majority of those voting and a certain percentage of eligible voters casting votes for a recall to take place. But the limit could also relate to the numbers of votes originally won by the office-holder.

A successful recall leads to different outcomes in different systems: 1. There could be new elections for the vacant seat – done simultaneously or after the recall election. 2. The next on the list from which the office-holder was elected takes the position could get the position. 3. The runner-up in the elections takes the office.

 

Examples

As mentioned above, Peru is the country with the highest incidence of recall elections. Here, all persons that have been elected locally and regionally i.e. governors, mayors, members of local and regional councils as well as elected judges of peace could have their mandates recalled through referendums. This could only be done in the second or third year of their four year mandates.

The person initiating a recall process must a.) register the case with the National Office for Electoral Procedures[9] b.) give reasons for the petition (that do not need to be proven) and c.) buy an “electoral kit” for approximately 14 Euro before starting to collect signatures.

A successful initiative needs the signatures of at least 25 percent of the citizens in the electoral register for the relevant constituency. The signatures are checked by the national authority for civic registry and if they find that the sufficient number of verified signatures have been reached, the initiator can proceed with the request by sending the documentation to the National election authority Junta Nacional de Elecciónes (JNP)[10].

The JNP normally gather the different requests for recall and organizes all or a majority of the recall elections on the same day. The last time this was done was in 2017, when 938 initiatives were taken. Out of them initiatives related to 27 municipalities (districts) managed to gather the sufficient number of signatures, in most cases relating to both the mayor and one or more councillors. At least one person had his/her mandate recalled in 17 of these municipalities. All of the 27 municipalities where recall elections were held are small rural districts, the largest of them with 5505 eligible voters and the smallest with only 318 voters[11].

At least 50 percent of the eligible voters need to cast a valid vote and a majority of them need to vote for the recall to actually revoke the mandate of the earlier elected representative. In 6 of the 27 recall elections the participation threshold was not met.

When a recall election is successful, the major or councillor that has lost the confidence of the electorate is replaced by the next candidate on the list from which the person was elected. Because of this, it is rare that the initiative for recall elections is taken by the opposition parties.

The largest recall process ever in Peru occurred in 2013, when the major of Lima and all councillor of the metropolitan municipality were tested at the ballot boxes and the number of voters exceeded 6.3 million. By a slight margin – 51.2 percent approval – the mayor Susana Villarán managed to stay in office, but 19 of the councillors from her party were ousted[12].

In this case it was argued that the opposition as well as economic powers with interests in stopping on-going changes in the urban transportation system were financing the campaign for a recall. This is quite different from the situation in the small municipalities were recall election were held in 2017 and were the given reasons for the recall initiatives mostly relates to the absence of the major or general lack of activities within the municipality.

 

In Venezuela, initiatives for recall elections have been targeting the president of the republic, both against Hugo Chavez and the current president Nicolas Maduro. In the year 2004, after the opposition had managed to gather a sufficient number of signatures, a referendum was held and were official figures showed that president Hugo Chavez had won 59 percent of the votes[13].

The recall process was conflictive in every step; a first collection of signatures was rejected due to that they had been collected before the mid-point of the presidents mandate period. The subsequent collection was not accepted by the authorities, which claimed more than 40 percent of the signatures were dubious or completely invalid. The lists of signatories were collected by the government and became published on-line, which reportedly lead to harassment and firing of petition signers. There were also protests leading to violence and reports of several people killed, injured and arrested.

After signatories were allowed to verify their signatures, the necessary number – 25 percent of eligible voters – was met and the recall election was held. For a successful recall there were three criteria: minimum 50 percent of eligible voters must vote, the recall-alternative (“No”) must reach a majority and the number of No-votes must be higher than the number of votes that brought the president to power in the original elections.

A recall would have resulted in new elections within 30 days with a disputed intention of Chavez to run for office again. Had, however, the recall election been held less than 24 months before the end of the presidents mandate, a recall would have meant that the vice president would have taken over the office.

The official result of the Venezuelan recall election was met with criticisms for fraud, but the end result was that president Chavez came out of the process stronger than he had been before.

 

In Bolivia a similar process took place in 2008. There the president Evo Morales had suggested a referendum to reaffirm his mandate in 2007. When the law making recall elections possible came in place, the senate, controlled by the opposition initiated recall elections against the president, the vice president and nine elected governors. In the Bolivian version, a successful recall vote must receive a higher percentage of votes than those electing the officials in the first place. The recall elections confirmed the mandates of the president and vice president and all but two of the governors.

 

In Europe provisions for recall elections on citizens’ initiative are rare and initiatives leading to a referendum even more rare. The Latvian possibility for recall elections mentioned above is one of the few at the national level. Here one tenth of electors has the right to initiate a national referendum regarding recalling of the parliament. If the majority of voters and at least two thirds of the number of the voters who participated in the last parliamentary elections vote in the national referendum regarding a recall, then the parliament shall be deemed recalled. The right to initiate a national referendum may not be exercised one year after the convening of the parliament and one year before the end of the term of office of the assembly, nor earlier than six months after the previous national referendum regarding recalling of the parliament.

 

In Germany it is possible for one million voters in the state of Bavaria to initiate a recall referendum of the entire Landtag i.e. the parliament of Bavaria[14]. The recall of individual members is not possible. Four other länder have similar provisions. The mandate of mayors can also be recalled through referendum in most German states. In four, the initiative can come from the citizens, while in other states it is the municipal council that has the right to initiate the recall election.

 

The Swiss experience mentioned above includes a handful of initiatives leading to unsuccessful recall elections at the cantonal level and one successful in the Canton of Aargau in the year 1862.

 

In North America both Canada and the United States have provisions for recall elections in some states. In Canada the practical importance of the provision, introduced in 1995 in the state of British Colombia, has been negligible, while in the US mandates of both governors, mayors and other elected officials have been recalled[15]. The minimum number of signatures to qualify a recall, and the time limit to do so, vary among the states. In addition, the handling of recalls, once they qualify, differs. In some states a recall triggers a simultaneous special election, where the vote on the recall, as well as the vote on the replacement if the recall succeeds, are on the same ballot. In other states, a separate special election is held after the target is recalled, or a replacement is appointed by the Governor or some other state authority. In seven states specific grounds are required for a recall. Some form of malfeasance or misconduct while in office must be identified by the petitioners. The target may choose to dispute the validity of the grounds in court, and a court then judges whether the allegations in the petition rise to a level where a recall is necessary. In eleven states that permit state-wide recall, no grounds are required and recall petitions may be circulated for any reason. However, the target is permitted to submit responses to the stated reasons for recall.

 

Discussion

As seen from the above examples, recall elections could take many different shapes. When the provision exists, the use of it seems to depend less on the criteria set up than on the political culture of the country. The Peruvian example, that combines highly set criteria for a referendum to take place with a very large number of initiatives and a relatively large number of successful attempts, indicates that here the figure of recall election has become part of the political culture. (I may also say something about the quality of the locally elected.) Further, the importance of the possibility for recall elections should not only be judged by the extent to which it is used, but also by the eventual preventive effects the risk of facing a recall process has on those that have been elected.

It should also be noted that recall elections and other forms of direct democracy (referendum, citizens’ initiative) may have adverse effects on the democratic system. Critics of direct democracy argue that it weakens representative democracy by undermining the role and importance of elected representatives.  Since it is unlikely that any democratic system will ever be purely direct, weakening elected representatives has a negative effect on the democratic system.  However, supporters of the use of referendums argue that, in the context of increasing voter apathy and disenchantment with traditional forms of democracy, direct democracy can help to re-engage voters with politics and democracy.  It is also argued that direct democracy acts as a useful discipline on the behaviour of elected representatives, ensuring that they fully consider the likely views of voters when taking decisions on their behalf.[16]

There is not much comparative research on recall elections, but the so called Venice Commission i.e. the European Commission for Democracy through Law of the Council of Europe published a report on the recall of mayors and local elected representatives[17] in the year 2019. The commission goes through theoretical and practical aspects of recall as well as some examples and relate this to relevant international instruments such as the European Charter of Local Self-Government and other documents from the Council of Europe. Their conclusions are the following:

  • It cannot be disputed that, by putting an end to an elected office prior to regular elections, the recall goes against the very principle of the free representative mandate for a determined period on which today’s democracies are based. In addition, it does not allow politicians to implement their programme established for the duration of an entire term. Its use has therefore to remain exceptional.
  • Another important concern is that, in the context of the crisis of representation, recall could introduce a further threat for the stability of representative democracy. Subject to a variety of factors (such as the level of political culture) and influences, even manipulation by the authorities in some cases, it may be instrumentalised and used for different kinds of interests.
  • In the opinion of the Venice Commission, the recall of mayors may only be seen as an acceptable, though exceptional, democratic tool, when it is provided for by the national or regional law, if it is regulated very carefully and coupled with adequate and effective procedural safeguards to prevent its misuse.
  • From this perspective, a number of key conditions must be fulfilled:

- The Venice Commission recommends that recall be permitted only in respect of mayors who are directly elected, when and if it is prescribed by the Constitution or the national/regional law; relevant provisions should attempt to find a balance between the need for voters to be able to remove an elected official having lost their confidence, and the necessity to prevent misuse of the process; individual recall of local council members should not be allowed; 

- in those situations where the reasons for terminating the mandate imply legal assessments (destitution), the end of the mandate should be the subject of a judicial decision taken in an urgent judicial procedure within the time frame enshrined in the law, and not of a popular vote; therefore, a clear distinction must be made between the legal and political responsibility of elected mayors, and between the institutions of recall, revocation and destitution;

- recall should be used as an exceptional tool and national or regional legislation should regulate it very carefully and only as a complement to other democratic mechanisms which are available in a representative system;

- legislation should provide for adequate procedural safeguards, ensuring transparency, legitimacy and legality of the recall process; clearly identify the actors of the process and define sufficiently high thresholds for initiating (number of signatures or of members of the local council) and validating the recall; provide for a clear and reasonable timeframe; and for judicial review of the different steps and conditions in the process.


[2] https://en.wikipedia.org/wiki/Recall_election#Switzerland

[3] http://aceproject.org/ero-en/regions/americas/BO/bolivia-constitucion-2016

[4]. https://www.constituteproject.org/constitution/Iceland_2013.pdf?lang=en

[11] https://www.onpe.gob.pe/modEducacion/Publicaciones/RPC-CPR2017.pdf

[12] https://es.wikipedia.org/wiki/Consulta_popular_de_revocatoria_de_marzo_de_2013

[16] This part of the discussion is based on a paper from International IDEA which also gives an overview of the different aspects of systems for recall votes. See https://www.idea.int/sites/default/files/speeches/The-Use-and-Design-of-Recall-Votes.pdf

09.02.2021 - 18:16 | Views: 9192
Recall of mandate through referendum

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