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Virtual Electoral Units = Virtual Accountability

19 December 2015 by Valery Perry
( BHS verzija - BCS version )

The past year, capped by the recent meeting of the Peace Implementation Council Steering Board, has clearly demonstrated that the primary priority of the European Union (and the broader international community in its wake) is the implementation of the so-called Reform Agenda. This was formally adopted in July, and aimed to operationalize the autumn 2014 German/UK/EU initiative to kick-start the moribund BiH economy through a laser-focus on socio-economic reforms, putting more troublesome matters such as implementation of Sejdić-Finci reforms aside. To date, two laws were adopted in the Federation as a part of the Agenda (the Labor Law and Law on Civil Service.) They have not been implemented. Nothing has been adopted in the RS or at the state level.

While the EU and its partners seek to focus on the economy rather than core BiH political debates, BiH's own political party leaders have not forgotten about Sejdić-Finci, or how creative and strategic implementation could have the double benefit of a) intimating credible good will for reform, while b) locking in a system of functional discrimination and electoral engineering that will preserve the politically advantageous status quo – and ensure dominant party access to resources – for the foreseeable future.

It is therefore worth explaining what is at stake, and how it could play out.

The Sejdić-Finci case challenged the structural discrimination in the BiH Constitution that denies the possibility of any citizen who is not a declared Bosniak, Croat or Serb to even stand for election to the Presidency or House of Peoples. The plaintiffs’ interest was to broaden political participation so that national minorities, the undeclared and people self-identifying simply as BiH citizens could stand for office as the three constituent peoples are legally able to do. At the time, idealists believed this could begin to loosen the tripartite constituent peoples’ straitjacket that has hamstrung the country’s functionality and cohesiveness since the war.

Instead, however, the primary focus of BiH’s political leaders during negotiations on how to implement Sejdić-Finci – very often with the support of international legal experts – has been less on removing structural discrimination from the constitution and more on replacing it with continued (but allowable) functional discrimination.

The difference between structural and functional discrimination is important. As an example: in the United States, it would be illegal to enact a provision that allowed either only a Republican or Democratic candidate to hold office in a certain electoral district; this would be structural discrimination, and unconstitutional. Nevertheless, effective gerrymandering has resulted in increasingly homogenous electoral units (units that overwhelmingly consist of only likely Republicans or Democrats) which present a considerable barrier to genuine and non-discriminatory political competition. (This practice is being challenged, both in the courts and through the establishment of independent commissions to remove political meddling in the redistricting process.)

Such a type of electoral engineering is also underway in BiH. For a number of years now, the goal of BiH’s leading parties has been twofold: 1) eliminate the troublesome structural discrimination on paper; 2) engineer new election techniques and rules in the Federation that maintain the privileged position of the three constituent peoples and their dominant parties, to ensure that, for example, non-approved (read: non-HDZ) Croats will not be elected, as Željko Komšić was on two occasions.

The parties who want to preserve the constituent peoples’ straitjacket on the country are looking for a way to ensure that, in the Federation, only Bosniaks can vote for Bosniaks (and the dominant Bosniak parties), and only Croats can vote for Croats (and the dominant Croat parties). (The Serbs already enjoy this in the RS, and for the record it has not resulted in either a stronger democracy or a more robust economy in that entity, nor more effective rights for non-Serbs.) This could in theory be achieved in the Federation by forcing citizens to say "what they are” and then providing them with "their” ballot on election day. This would be objectionable for many reasons; it would also again raise the thorny issue of what to do with people who don’t want to declare as such.

Therefore, a more sophisticated form of electoral engineering is required that will achieve the same result, but under the guise of a democratic, liberal process.

The favored approach has for some time been a form of gerrymandering in which those areas in which there is a majority of either Bosniaks or Croats would be shaped into a virtual or "one-day” election unit for the Presidency election. The Croat "virtual electoral unit” would be established only on the day of the election, and would likely consist of West Herzegovina, Herzegovina-Neretva, Posavina, and Canton 10, with the possible inclusion of Žepče and Usora municipalities from Zenica-Doboj Canton. The remaining parts of the Federation would constitute the Bosniak virtual electoral unit (though it’s still unclear how Central Bosnia Canton would be divvied up.) A new term – "mega-cantons” – has even been introduced to describe this vision, and to shift the focus away from the "third entity lite” overtones, and suggest it is really just a simple reapportionment of cantons into ethnically-based non-contiguous blocs. In terms of electing representatives to the House of Peoples, similar schemes are afloat.

So the question is: why now, especially if there is no pressure from the EU to do so? A few stars have aligned.

Milorad Dodik – speaking on behalf of the RS – has consistently maintained that the Federation can do whatever it wants to comply with Sejdić-Finci, as long as it doesn’t affect the RS. However, he does have a vested interest in systems that give constituent peoples’ status political and territorial privilege over all else. A hardening of the privileges of the Bosniaks and Croats in the Federation would fit in well with his vision of BiH as a confederation or "state union.” In addition, a continued tight alliance with Dragan Čović and his party could help to ensure he maintains influence at the state level regardless of coalition composition.

Bakir Izetbegović also benefits from the status quo, and would stand to lose more from an expanded definition of citizenship that could challenge or weaken his own Bosniak plurality and related party stranglehold and patronage system. Any virtual Croat units have as the logical corollary a virtual Bosniak-majority unit.

Čović wants to lock in such changes, a) during his tenure as Chairman of the BiH Presidency (until March), and b) before the results of the census are revealed, quite possibly showing that there are more "Others” than Croats.

Those heavily invested in the Reform Agenda are torn. They don’t want such discussions to distract party leaders from the economy; but it does and will continue to do just that as this is about power and privilege to be secured ad infinitum. Yet after years of consistently calling for a remedy for Sejdić-Finci, it could be difficult to put the brakes on agreed – albeit minimally just – domestic agreements, and there has been little apparent will to take a stand against institutionalized functional discrimination (or any other regression, for that matter). Ironically, the apparent interest of the EU and like-minded others in promoting and maintaining the status quo, but with the addition of the loudly-touted Reform Agenda, is hastening these partitionist processes, under the banner of Euro-Atlantic integration.

This evolving strategy is meant to give the dominant ethno-national parties a license to continue to rule evermore defined ethnic fiefdoms, with the possibilities for patronage and corruption firmly established. That the parties are also seeking to raise the vote threshold needed to gain seats in the legislature further confirms the interest in limiting voter options and opposition party challenges, and reducing the risk of future potential competition that could force coalition deals that require more hands in the pie.

Lost (or intentionally buried) in all of this is the concept of a relationship between a constituency of citizens and the leaders elected to represent them – not to mention the concept of accountability. The connection is already tenuous due to the privilege of parties over leaders. The legitimization and endorsement of a one-day "virtual electoral unit” or gerrymandered ethnic mega-cantons will simply confirm what many BiH citizens have known for years; that they live in a virtual democracy.