—Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity
[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]
One of the social distancing measures that some governments have considered (or indeed already implemented) to fight the Covid-19 pandemic is delaying previously scheduled elections. In a representative democracy, this must be seen as one of the most extreme steps a government can take. It could certainly be a legitimate way to slow the spread of the virus. Additionally, concerns about the fairness of holding an election under conditions where many potential voters may feel unsafe participating might further support a decision to postpone. Yet, the threat that such delays to elections pose to the foundational assumptions of representative democracy is significant. Moreover, given the ongoing uncertainty about a resolution to the pandemic, there can be no guarantee about exactly when it may be “safe” to reschedule an election. In this post, I explore what several relevant constitutions have to say about scheduling elections. I also draw on historical precedents to inform a discussion of one potential means of shoring up the legitimacy of a government thus denied the imprimatur of public votes: a government of national unity.
By the end of May 2020, approximately six months after the emergence of the Covid-19 virus, at least 17 countries have delayed a previously scheduled election.[1] The list of countries contains a wide spectrum of democratic performance, including several countries where the delay raises significant concerns, such as Ethiopia and Poland. Experts in each of these countries will have more to say about the extent to which the pandemic required this delay, and the extent to which governments have exploited the pandemic to pursue illegitimate political goals. It should be noted that in the Polish case, it is the opposition that has pushed to postpone the election. My purpose here is not to examine that question, but rather to explore a potential intermediate solution to the crisis of legitimacy that a delayed election may provoke.
Of course, this is not the first time that a pandemic or other emergency has at least raised serious questions about postponing an election. Given the wars and epidemics that the world has seen in the last few hundred years, it is actually surprising how rare emergency-delayed elections are. In one close parallel to the current situation (and especially notable give comments made recently by US presidential adviser Jared Kushner), serious consideration was given to postponing the US federal mid-term election during the influenza pandemic in 1918. In a study of that election published in 2010, Jason Marisam argued that the US election system was especially ill-designed to cope in such an emergency, as many key roles in organizing elections were (and are) filled by partisan officials.[2] In such a system, he argues, judicial supervision of any extraordinary steps taken is essential. Recent comparative research by David Landau and Rosalind Dixon, however, finds that courts cannot always be relied upon to protect the electoral process and may indeed sometimes undermine it.[3]
Nor are we without more recent precedents for holding an election during a major public health emergency. Most notably, Liberia held an election for the Senate at the height of the Ebola epidemic in 2014. Although the election was delayed for two months, the election was not postponed until the end of the epidemic. According to a contemporary report from the BBC, “Those who came to polling stations had their temperature taken, were told to stand a metre (3 ft) apart and wash their hands before and after voting.”[4] Similar precautions will no doubt be required wherever elections are held in the present pandemic. The fact that Liberia could hold an election in the middle of the Ebola epidemic perhaps suggests that the current crisis need not be seen to decisively rule out an in-person election.
One of the most engaging precedents for an extended delay of an election is the practice adopted by the United Kingdom during the Second World War. The parliament that was elected in 1935 continued until 1945. Of course, to facilitate this, some legislation was required: a number of bills were passed to continue the parliament on an annual basis. The debate in the House of Lords on the first of these bills (in 1940) included some lines that will be interesting to scholars of comparative constitutional law. Supporting the bill to continue the current parliament for another year, the Lord Chancellor (Viscount Simon) said: “It is, I believe, one of our real advantages, owing to the fact that we have no formal written Constitution, that in a time of emergency such a result can be achieved by the ordinary processes of legislation.”[5] This advantage (if it really is one) is not available in most states today.
Rather, the majority of national constitutions specify the scheduling of elections. According to data on constitutional content from the Comparative Constitutions Project, at least 120 constitutions currently in force set out some schedule for national elections. For example, delaying the Polish presidential election as referenced above runs afoul of Article 128 of the Polish constitution, which stipulates that the presidential election must be held between 100 and 75 days before the end of the president’s terms in office. Delaying Ethiopia’s election would violate Article 58 of the constitution, which requires an election at least one month before the expiry of the current legislature’s term. The Dominican Republic’s constitution is even more specific about the date of the currently-delayed election: Article 209 stipulates that it must take place on the third Sunday in May.
While China, much of Europe, and even the USA have begun to resume normal economic and social activities (albeit adapted to new hygienic standards), there is as yet no date at which one can confident that the pandemic will be over. In this context, there can be no guarantee about when a delayed election will in fact be held. Moreover, even in places where an election has not been delayed, the legislature may not be meeting regularly or in a functional way (e.g. the suspension of normal sittings of parliament in Canada). This serves to further complicate the legislative and constitutional steps that must be taken to preserve the legality of the government.
Among the possibilities for maintaining commitments to democracy during a crisis is a government of national unity. As strange as the idea of a government that could include both Joe Biden and Donald Trump might sound (or for that matter Andrej Duda and Rafal Trzaskowski), national unity governments have worked in more difficult circumstances in the past. Indeed, a bi-partisan unity cabinet for the USA (under Biden) was recently proposed by Thomas Friedman. He recognizes, of course, the skepticism with which such a proposal might be met, and writes: “A fantasy, you say? No, no. I’ll give you fantasy. Fantasy is thinking we’ll be OK, post-Covid-19, with toxic politics as usual…”
States (and self-governing territories) that have had a unity government in the past couple of decades include Afghanistan, Côte d’Ivoire, Kenya, Liberia, Palestine, South Africa, Sri Lanka, Tunisia, Zanzibar, and Zimbabwe. Governments of national unity are most often employed in contexts where either a national election has produced an unclear or disputed result, or it is not yet possible to hold an election for some reason. Perhaps it is not a stretch to propose that these pandemic-related delays approach these conditions. While the pandemic is clearly a crisis of a different kind, the need to legitimate a government without relying solely on an election, and for multi-party cooperation to solve era-defining problems, is similar.
The key characteristic of a government of national unity is inclusion of at least two of the main competing parties in the executive. Describing these arrangements in the African context, Muguti et al. write: “It is born out of circumstances in which the legitimacy of a party in office is severely weakened and the party is incapacitated to govern the country alone. This then makes it imperative for such a party to seek legitimacy by forming a governance alliance with partners in opposition.”[6] The means by which such a governing alliance is implemented will of course vary in different institutional contexts but are equally possible in parliamentary and presidential systems. In some parliamentary systems, for example, coalition governments are the norm. We might distinguish between the two by noting that coalitions are intended to be stable and long-lasting, while governments of national unity are unstable (likely ideologically incompatible) and intended to last only long enough to overcome a crisis. On this basis, Israel’s current alliance between Benjamin Netanyahu and Benny Gantz would qualify as a government of national unity. A good example from a semi-presidential system is South Africa’s government of national unity that lasted from 1994 to 1996, with Nelson Mandela as the President and F. W. de Klerk as one of the Deputy Presidents. Other cabinet posts were distributed between the African National Congress, National Party, and Inkatha Freedom Party.
In the current Ethiopian context, Marew Abebe Salemot has recently proposed a “transitional government” as a viable solution to the crisis in governance that the delayed election has created. Salemot writes: “Ethiopia faces two unpalatable scenarios: a state with no government, or unconstitutional government. In the absence of constitutional remedy, political dialogue remains the only peaceful avenue for resolution. Given internal polarizations and external challenges, a short period of transitional government is therefore the least bad option.” This sounds a lot like a government of national unity. Instead, the incumbent government is seeking a constitutional interpretation that could establish the appropriate path forward.
Whether or not a government of national unity is a real possibility in Ethiopia or elsewhere depends on a subjective assessment of the extent of the crisis. Additionally, if the situation is severe enough to delay an election or prevent the legislature from sitting, it is difficult to imagine how a constitution could be amended should that be necessary. However, in extraordinary circumstances, a government of national unity may be able to sustain its legitimacy even without clear constitutionality. As a matter of principle, an interruption in the expected procedures of democracy (elections, legislative oversight of the executive) suggests that something substantial should be done to address these deficits.
Suggested
citation: Alexander Hudson, Governments of
National Unity: A Potential Solution to Legitimacy Crises Caused by the
Pandemic, Int’l J. Const. L. Blog, May 27, 2020, at:
http://www.iconnectblog.com/2020/05/governments-of-national-unity-a-potential-solution-to-legitimacy-crises-caused-by-the-pandemic/
[1] This is certainly an under-count, but the list includes: Armenia (referendum), Bolivia (re-run presidential), Bosnia (local), Canada (First Nations band councils), Chile (referendum), Dominican Republic (presidential and legislative), Ethiopia (parliamentary), France (local), Indonesia (regional), Italy (referendum), North Macedonia (parliamentary), Poland (presidential), regional), Serbia (parliamentary), Spain (regional), United Kingdom (local), USA (several state primaries).
[2] Jason Marisam, Judging the 1918 Election, 9 Election Law Journal 141–152 (2010).
[3] David Landau & Rosalind Dixon, Abusive Judicial Review: Courts Against Democracy, 53 University of California, Davis Law Review 1313–1387 (2020).
[4] BBC, Liberia vote count in Ebola-hit poll, BBC News, December 21, 2014, https://www.bbc.com/news/world-africa-30553837 (last visited May 25, 2020).
[5] HL Deb 05 November 1940 vol 117 c577, available at https://api.parliament.uk/historic-hansard/lords/1940/nov/05/prolongation-of-parliament-bill (last visited May 25, 2020)
[6] Tasara Muguti, Baxter Tavuyanago & James Hlongwana, Untenable Marriages: Situating Governments of National Unity in Africa’s Political Landscape Since 2000, 1 International Journal of Developing Societies 149–158, 149 (2012).
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