1. Ensure statement for financial donation using bank accounts (not cash) for each value of donations, not only for those higher than ALL 100 000.
Article 90 point 2 of the Electoral Code foresees the obligations that the subjects should fulfil in order to accept values higher than ALL 100 000 through bank accounts only (not cash). The publication of the donors is provided only for the donors who give values higher than ALL 100 000. This flexibility in accepting the money through bank accounts and declaring the donations in public has increased the threshold of chances to accept funds from unidentified donors. Considering the transparency of financial resources for the electoral campaigns as a very important element for having regular elections and an undistorted political will, it is suggested that the law foresees that the subjects or political parties accept monetary gifts only through bank accounts.
In three audited electoral campaigns, it is found that the values obtained from donors with a value lower than ALL 100 000, otherwise donors for whom there are no defined obligations for a detailed registration and declaration of funds (Article 90 provides only for donors of a value higher than ALL 100 000), are as the following:
Electoral Campaign 2009: 59% of the value ?Donations? has as source those donors with a value below ALL 100 000. In absolute value, this is ALL 64 435 904 million. The other part are donors for values above ALL 100 000.
Electoral Campaign 2011: 78,8% of the value ?Donations? are from donors with a value below ALL 100 000, which are not subject to the provisions of Article 90 of the Electoral Code.
Electoral Campaign 2013: 30 % of the value ?Donations? are donations with a value below ALL 100 000, (anonym donors).
2. Conflict of Interest. To foresee it in more details and define the circumstances prior and after the electoral process. To set legal competencies for controlling the conflict of Interest.
The Electoral Code, through Article 89, has foreseen several subjects that cannot be donors in electoral campaigns. The limitations provide exemption of foreign physical and juridical persons; juridical persons or shareholders who have benefited from public assets or funds; budgetary debtors; those who exercise media activities. This limitation is not defined in time and it does not limit post-electoral situations. The conflict of interest related to promoting donors in senior public functions (non-political) or in leadership positions of independent institutions regulated by law is also not foreseen by law.
A case for illustration is the promotion of donors of the electoral campaign 2013 in important directories and boards such as the Directory of Inspection and Prevention of Money Laundering; the Directory of Property Restitution and Compensation; General Secretaries or heads of national agencies of sectorial management.
It is suggested that the Code is reviewed in order to foresee clearer the Conflict of Interest; enlarging exempted subjects and circumstances; setting exemption deadlines prior and after the process. The law should clearly foresee the institution that will conduct the verification of the conflict of interest.
3. CEC competencies. Legal competencies as monitoring, regulating and referring institution.
The current law defines very narrowly the role of the CEC in the process of Auditing Electoral Finances. This law addresses the role of the CEC in issuing secondary legislation; distribution of funds according to a formula; organizing of the casting of lots for the experts; monitoring of the fulfilment of deadlines and publication of reports.
The Law should grant more specific competencies to the CEC charging it with duties of the institution which monitors and refers defects to respective institutions. For example, in case of identifying a problematic fiscal situation, this case should be referred to the Taxation Directorate; cases of financial transactions conducted not through the bank accounts (as provided by law) should be referred to the Money Laundering Directorate. Or in cases when experts identify a situation which raises concerns for legal criminal violations, the CEC should have the task to refer it to the investigation authorities.
As an analogy, this obligation to refer to in an official written form is similar with the obligation of the High State Audit to file charges when it finds severe violations in misuse of public funds and assets during their audits. The CEC should have more competencies as a regulator of the process. The political parties are important subjects of the public law. The case of the Electoral Debts (for more details see article on Electoral Expenses in the website of Open Data Albania) accompanied by lack of claims is an issue which questions the transparency of electoral finances. Long term debtors have turned into electoral
donors and in cases when they are media companies, the debt or the passive donation harms the separation of powers. It would be necessary that the CEC takes a more specific executive role at least for the part of funds that the parties take from public funding. These funds can be used to pay debts which create conflicts of interest or harm the separation of powers, and they should not be given to the political parties when they are debtors of media organizations.
As for the above, there is need for legal changes because the CEC cannot take such competencies provided only by secondary legislation. If this is the case, the CEC could be vulnerable towards those subjects that prejudge its work and its impartiality.
The process of auditing the political parties cannot be achieved without having the right human and logistic capacities. It would be proper if one of the CEC commissioners had the role of the Auditor with clear competencies defined and selected among independent experts.
4. Legal Guarantees for the Licensed Experts Participating in the Process
After the 2013 electoral campaign, in the selection process of Legal Experts (by casting lots) took part only nine experts among about 200 experts who have a license in this profession. Casting lots only with nine subjects that expressed interest, (read http://open.data.al/sq/lajme/lajm/id/833/Komisioni-Qendror-i-Zgjedhjeve-shkel-Kodin-Zgjedhor-per-Financimin-e-Subjekteve)harmed the quality of the process . As such, five or six political subjects focused their auditing in only one expert. The legal criteria that provides that the casting of lots should be done with no less than 20 experts, was not respected.
The fact that many of them did not present themselves in the selection process is related with the fact that many of them were not paid for their work during the years, as well as the difficulties that accompany the auditing process of subjects that have political power, or later on even executive power. Different from the case of the Electoral College judge, the Accounting Expert has no legal guarantees that provide assurances and provide for him/her to be incorruptible and not unbiased in his/her work. The task of the accounting expert is very delicate and the law obliges them with the duty of finding and signing over accounting regularities or irregularities of very powerful subjects (executive and legislative).
The issue of unpaid salaries can be fixed through the organic budget of the CEC. The Commission, as a party that assigns duties by casting lots, has the obligation to guarantee the salary for a job that the Commission orders itself. In cases when the parties do not fulfil these obligations, then the CEC should pay for the services of the Experts and should calculate the amount paid, as an obligation the parties owe to the CEC.
4. Abrogation of Article 84 point 6.
This article creates an additional financial resource for the big political parties. The way how it is implemented, it implicates in financial transactions and fiscal activities even media institutions creating confidential economic situations among parties and radios and televisions. This is an article which is very difficult to be monitored and it involves several monitoring structures (the media board, taxation office, etc.). The situation provided in this article has been implemented in an arbitrary way in the 2011 elections by at least one party and two media companies , although this law should be implemented only for Parliamentary elections. The current reality shows that there is quantity surplus in media time during electoral campaigns, which lowers the quality of the media programs. We are not any more in the situation of the beginning of the political pluralism when political parties had economic difficulties in order to provide financial resources for political advertising and communication with the voters.
5. The right to access information in the context of the Electoral Law.
There are several articles in the Electoral Code that foresee situations related with the access of public to information. One of them is the right provided by article 90 point 2 which allows the public to access information about donations with a value higher than ALL 100 000. The law provides that these data should be ?always public? which means that the right to information starts at the moment the donation is recorded in the respective bank account. During the 2013 Electoral Campaign, the team that worked for Open Data Albania requested in a written form to eight main parties to reveal their donors from the beginning of the campaign.
Although the request was made in an official written form, it was never replied with information be it during or after the campaign. The political parties tried to argue that they are not subject to this legal provision, and some of them even replied that they are not subject to the right to access information, limiting this access only in the context of the law with the same object. It would be relevant to work towards creating a good model of doctrinal interpretation about Access to Information in Electoral Campaigns. In order to make this model concrete, it could be considered the organizing of a working roundtable with legal experts and experts of the right to information in order to conclude by producing a monetary or work manual useful for the judiciary, political parties, law students, social studies ?students, journalists, etc.
The team of analysers who work with the Open Data Albania Project, invites all the interested parties and media representatives to be aware of a list of irregularities or violations found and transcribed during the Electoral process and published in its website in an article titled ?Data and visualizations about 2013 Electoral Donation Funds, Debts and Expenses?. http://open.data.al/en/lajme/lajm/id/965/Te-dhena-dhe-vizualizime-mbi-Fondi-Donacionet-Borxhet-dhe-Shpenzimet-Elektorale-2013 .
Albanian Institute of Science
Open Data Albania Programme