On Tuesday (May 8), Bosnia and Herzegovina’s Central Election Commission announced that general elections will be held on October 7. Nevertheless, the unofficial campaigning began as early as mid-2017 when politicians of all stripes started speculating about announcing their candidacies for the multitude of offices at both state and entity level that will need to be filled in accordance with Bosnia’s complex power-sharing system.

In April 2017 the Federation — one of two political entities within Bosnia — was rocked by rumors that Sebija Izetbegović, the wife of Bosniak member of the tripartite Presidency Bakir Izetbegović, planned to run for her husband’s position, while in Republika Srpska — the other entity — current president Milorad Dodik defiantly announced in October 2017 that he will be “a president of something, for sure.” Later on, he confirmed he would be running for the state Presidency.

The speculation continued unabated into 2018 despite experts’ advice that a prolonged period of campaigning could lead to a “constant institutional blockage,” harming the country’s vital interests and stalling necessary reforms.

The governor of Bosnia’s central bank warned that living standards might not improve this year as “the focus may rather be on political than economic issues.” But the prospect of stunted economic growth has not been the only threat that risks overshadowing the overzealous campaigning for power in Bosnia.

According to experts, a lingering stalemate around the country’s election legislation might mean the results of the October vote will not be implemented all at, which could push the state toward political and constitutional paralysis.

Origins of state paralysis

The origin of the current deadlock dates back to 2006, when the multi-ethnic opposition Social Democratic Party (SDP) nominated a Bosnian Croat, Željko Komšić, as a candidate for the three-member Bosnian Presidency. He was then voted into power by a mix of Croat and Bosniak votes.

Bodo Weber, a senior associate at the NGO Democratization Policy Council, argues that, although the move was legally correct, it violated the unwritten understanding among Bosnian politicians that the seats in the Presidency are reserved for members of the three largest ethnic political parties.

In 2016, as a belated response to the election of Komšić, Božo Ljubić, a Bosnian Croat politician, submitted a complaint to the Constitutional Court of Bosnia and Herzegovina requesting the assessment of the constitutionality of electoral legislation. Backed by the conservative and nationalist Croatian Democratic Union of Bosnia and Herzegovina (HDZ BiH), he alleged that the legislation was discriminating against Croats as it allowed the numerically-dominant Bosniaks in the Federation to cast votes for a representative of Croats.

In December 2016, the Constitutional Court partially accepted Ljubić’s appeal and annulled several articles of the Bosnian Election Law. In doing so it removed the legal basis for establishing the House of Peoples in the Federation Parliament.

Since political parties have not yet agreed on how to fill the gap left by the annulled provisions, it might be impossible not only to form the House of Peoples in the Federation Parliament, but also the House of Peoples in the state Parliament, whose members are elected from the entity level parliaments. The Federation would also end up without a president and vice presidents, who are elected by the House of Peoples, although the state level Presidency would not be directly affected as these positions are elected directly.

In March 2018, Lars Gunnar Wigemark, the European Union Special Representative in Bosnia, and Maureen Cormack, the U.S. Ambassador in Sarajevo, called on Bosniak and Bosnian Croat politicians in the Federation to “show their leadership through compromise” and reach an agreement on the contested provisions before the elections was due to be called.

However, Valentino Grbavac, an associate at the Institute for Social and Political Research in Mostar, believes that it is unlikely that a solution will even be found before October. He warns that “if this issue is not fixed by Bosnian politicians before the elections, it might just be impossible to fix it afterwards as the legislative body simply will not be there to deal with it.”

Although, in theory, Bosnia’s Central Election Commission (CEC) could step in and design a new mechanism that would allow for the conduction of election of delegates to the Federation Parliament’s House of Peoples in order to avert a political paralysis, Grbavac says the assumption that this option would work is “dubious, at best.”

He points out that, as they stem from a Constitutional Court ruling, changes to the Electoral Law need to be implemented through legislative means, and the CEC does not have the power to legislate.

President of the CEC Irena Hadžiabdić said during a press conference on Tuesday, following the announcement of the elections, that the state level Parliament should amend the Election Law by the time the elections take place. She said that while the CEC could pass a bylaw as an option of last resort, it could pose significant legal challenges. Hadžiabdić also noted that unless any solution is found by March 2019, in time to form a new government and to pass the budget, Bosnia would face a “total blockade.”  

Grbavac notes that the current circumstances leave Bosnia in an “unprecedented” situation. “There is a possibility that the stakes will be so high that everyone will turn a blind eye and be satisfied that we got any solution,” he says, adding that due to its unconstitutionality, the passing of a bylaw by the CEC could lead to another Constitutional Court trial being triggered later on.

“Or, some political parties, unhappy with the solution, could boycott the elections on the grounds that rules are being changed in the middle of the campaign, and it’s undemocratic,” he adds.

Unimplemented judgments

Given local politicians’ inability to reach a compromise, some have been looking to third party actors for an answer.

Eric Gordy, Professor of Political and Cultural Sociology at the School of Slavonic and East European Studies, University College London, believes that intervention from outside has resolved many conflicts in Bosnia in the past. But, he claims, the downside to this approach is that it blocks the development of the capacity of democratic institutions. “Usually these agreements are made informally, and the actual representative institutions that are set out in the Constitution don’t do their work,” Gordy says.

The Ljubić case is only one of a number of rulings that have found irregularities in Bosnia’s Electoral Law in recent years. During the past decade the Strasbourg-based European Court of Human Rights has issued three judgements that require the country’s Constitution to be amended.

The 2009 Sejdić-Finci ruling in 2009 found the Constitutional requirement for candidates for the tripartite Presidency and the House of Peoples to come from one of the constituent ethnic groups — Bosniaks, Serbs, and Croats — to be unlawful as it excludes Jews, Roma and other minorities from running for political office. The judgment was echoed in the 2014 Zornić ruling, while the Pilav case in 2016 pilled further pressure on the country to amend its constitution, stating that citizens should be able to run for any of the three state level Presidency positions regardless of which entity they live in. However, to date, none of rulings have been implemented.

Gordy believes that political parties in Bosnia “pick and choose international rulings for their convenience and interpret them the way they want.” He notes that “if Sejdić-Finci had been implemented, there would be no ground for the current conflict at all because the state would be guaranteeing the rights of individual citizens to political representation.”

In 2016, Jakob Finci, representative of the Jewish community in Bosnia and party to the Sejdić-Finci case, said that the ruling had morphed into a “Croat question” as the leader of HDZ BiH and Croat member of the Presidency, Dragan Čović, had attempted to harness it to push for the amendments to the Electoral Law that refer to the election of the Croat member of the Presidency.

The three rulings of the European Court of Human Rights also led to a renewed debate about the nature of the Dayton Agreement. The accords that ended the Bosnian war in 1995 were never meant to govern the country for a significant period of time, but 23 years after the ceasefire Annex 4 of the Agreement still serves as Bosnia’s Constitution. Implementing any of the rulings would mean revising the Constitution and changing the very nature of the state.

Kurt Bassuener, a co-founder and senior associate of the Democratization Policy Council, believes that the Bosnian political ethno-nationalist elites have resisted change as they stand to gain from a system where they preside over ethnic divisions. He notes that “the elites are not going to be part of the solution. They will have to be dragged kicking and screaming into the future.”

“The point is to radically reduce their leverage by disarming them from their two main tools: the ability to make people afraid and the ability to buy social peace through patronage,” Bassuener adds.

The question widely asked in Bosnia is whether the current impasse has the potential to become the ultimate litmus test for the fragile political setup and lead to an outbreak of renewed hostilities.

Grbavac fears that if a new government is not formed by the start of the fall, the budget will not be approved before the legal cut off date of March 31, 2019. As a result, pensions and salaries of public sector workers will not be paid. He says that this scenario could lead to “a total breakdown of the whole social and political system.”

Bassuener, however, believes that this is alarmism and that it stems from the fact that those who peddle this narrative are “extrapolating from a lack of deal and the lack of an ability to form a government. But conflict and break-up of state can be prevented regardless of what happens with the election.”

He notes that the current deadlock “is not about the Croats or the HDZ BiH. This is about Dragan Čović and ensuring there can never be another challenge to him from outside the Croat community. This is an incumbency agenda masquerading as a collective rights protection agenda.”

According to Gordy, “we have to see what the result of the election is. If the right wing parties win the seats that are delegated to Croats, then there won’t be a conflict.”K

Feature image: Nidzara Ahmetasevic / K2.0.