Preparing self-determination: crucial elections in New Caledonia, 11 May 2014 – PART 1 (EN)

This Sunday 11 May 2014, crucial local elections are being held in New Caledonia. These elections will determine the constitution of the country’s three Provincial Assemblies – South, North and Islands – as well as the constitution of the New Caledonian Congress and the New Caledonian Government for the next five years. A three-fifths majority of the Congress elected this Sunday will have the power to call the first of three possible local referendums on the country’s independence from France. The political parties with the strongest results at these elections will undoubtedly play a significant role in framing the debate and leading any political negotiations relating to the upcoming ‘sortie’ (exit) from the Noumea Accord process.

 

Decolonisation under the Noumea Accord

New Caledonia’s internal institutional structure and its political relationship to France are defined by Title XIII of the French Constitution, and the Noumea Accord and the Organic Law to which it refers. The Noumea Accord agreement was concluded by the French State and local pro- and anti-independence political representatives in 1998. It deferred the referendum on independence programmed to take place that year by an earlier political agreement between the same parties, the 1988 Matignon Accords.

The Matignon Accords peace agreement put an end to a period of protracted civil violence and unrest over the question of independence. At the heart of that agreement was a program of ‘rééquilibrage’ (rebalancing), intended to redress the significant, entrenched imbalances existing between the systemically disadvantaged Indigenous People, the Kanak people, and the country’s pluri-ethnic settler and immigrant populations. Rebalancing was conceived by the largely Kanak pro-independence movement as necessary in preparation for the country’s projected accession to independence.

While the Noumea Accord effectively deferred the self-determination referendum until after 2014, it nevertheless significantly extended the 1988 Matignon Accords peace agreement by instituting a process of progressive ‘décolonisation’ (decolonisation). This process included a program of successive, irreversible transfers of governmental authority over specific areas from the French State to the local, New Caledonian political institutions. It also included further rebalancing measures and measures designed to give full recognition to Kanak identity, placing the Kanak people at the agreement’s centre.

 

The final phase of the Noumea Accord and the referendum(s) on independence

With the 2014 Provincial elections, New Caledonia enters the final phase of the Noumea Accord decolonisation process. As a result of the progressive transfer of governmental authority from France to New Caledonia, the country now has significant political autonomy and powers of self-government. The governmental powers still held by the French State are those covered by Article 27 of the Organic Law and the ‘régalien’ (prerogative) powers, although a number of powers (such as foreign relations) are currently shared by the New Caledonian Government and the French State.

Article 27 of the Organic Law stipulates that a three-fifths majority of the Congress can initiate the transfer to New Caledonia of power over: the administration of, control of legality over and the accounting and financial reporting regime for the Provinces, the Municipalities and their public institutions; tertiary education; and audiovisual communication.

Article 3.3 of the Noumea Accord’s Orientation Document provides that the prerogative powers of justice, public order, defence, currency and foreign affairs (to the extent not already shared with New Caledonia) can only be transferred subsequent to the self-determination referendum(s) at the end of the decolonisation process. It also provides that, during the period covered by the Noumea Accord, New Caledonians are to be trained and associated with the exercise of responsibility in these domains, in the interests of rebalancing and in preparation for the future.

The modalities of the self-determination referendum(s) and the ‘sortie’ from the Noumea Accord are specified in Article 5 of the Orientation Document, which provides that the first self-determination referendum must be held during the five-year term of the Congress beginning in 2014. A three-fifths majority of the Congress can set the date for the referendum, failing which the French State will organise the referendum in the fifth year. Article 5 specifies that the referendum will concern the transfer to New Caledonia of the prerogative powers, its accession to an international status of full responsibility and the transformation of (New Caledonian) citizenship into nationality. The word ‘independence’ is not used in the text of the Noumea Accord, but a positive response to the referendum is identified as resulting in New Caledonia’s ‘complète émancipation’ (complete emancipation) and ‘pleine souveraineté’ (full sovereignty). If, however, the response is negative, a second referendum can be held two years later, on the request of one third of the Congress. If the result is again negative, a third referendum can be held under the same conditions. If the result to this final consultation is negative, the political organisation of New Caledonia at that time will remain in place and local political representatives and the French State must organise new negotiations.

 

Restricted local electorates for the Provincial elections and the self-determination referendum(s)

Two different special local electoral rolls apply to restrict the eligible voters for the Provincial elections and for the self-determination referendum(s). The issue of who can legitimately participate in any self-determination processes has historically been a major source of contention between the Kanak independence movement and the largely non-Kanak local anti-independence (or French ‘loyalist’) movement. While self-determination via independence has been consistently demanded by the Kanak people engaged politically in the independence movement since the 1970s, they have also made a number of compromises to allow other long-term residents of New Caledonia to participate in any acts of self-determination for the country.

The compromise now enshrined in Article 188 of the Organic Law for the Provincial elections (which was clarified in 2007 by a Constitutional amendment following disagreement over the nature of the accord reached in 1998 and its legal translation in the terms of the Organic Law) essentially restricts eligible voters to individuals falling under one of the following categories:

  • New Caledonian residents established continuously from 1988 to 1998 (who were consequently eligible to be inscribed as voters on the electoral roll for the 1998 referendum validating the Noumea Accord, regardless of whether they were so inscribed);
  • Individuals who were inscribed as ineligible voters on the 1998 referendum electoral roll (generally having arrived in New Caledonia between November 1988 and November 1998), and who have been continuous New Caledonian residents for at least 10 years prior to the date of the Provincial election in question;
  • Individuals having obtained 18 years of age after 1998 and who were either continuous New Caledonian residents from 1988 to 1998, or who have one parent meeting one of the conditions above.

A number of exceptions exist to allow for interruptions to the periods of continual residence indicated above for education or training purposes, for military service, or for family, professional or medical reasons, so that those interruptions do not render individuals ineligible to vote in the relevant Provincial elections.

A different compromise was reached for the self-determination referendum(s) marking the end of the Noumea Accord process. Article 218 of the Organic Law restricts eligible voters in the referendum(s) to individuals falling under one of the following categories:

  • New Caledonian residents established continuously from 1988 (or a prior date) to 1998 (who were consequently eligible to be inscribed as voters on the electoral roll for the 1998 referendum validating the Noumea Accord, regardless of whether they were so inscribed);
  • New Caledonian residents who could have been inscribed as voters on the electoral roll for the 1998 referendum if their period of residence had not been broken for family, professional or medical reasons;
  • Individuals having Customary Civil Law Status or, being born in New Caledonia, having the centre of their material and moral interests in the country;
  • Individuals having one parent born in New Caledonia and having the centre of their material and moral interests in the country;
  • New Caledonian residents established continuously for 20 years from the date of the referendum in question, or, at the latest, from 31 December 2014;
  • Individuals born before 1 January 1989 who were continuous New Caledonian residents from 1988 to 1998;
  • Individuals born on or after 1 January 1989 who have obtained 18 years of age by the date of the referendum in question and who have one parent who was a continuous New Caledonian resident from 1988 to 1998.

The same exceptions allowing for certain types of interruptions to the periods of continual residence exist in relation to the special electorate for the self-determination referendum(s) as for that of the Provincial elections.

 

Challenges to the special electoral roll for the 2014 Provincial elections

In the lead up to the 2014 Provincial elections, certain pro-independence parties requested the inclusion on the special electoral roll of Kanak individuals whose names did not appear on the list. These political parties also requested the review of around six or seven thousand names appearing on the list of eligible voters for the elections, arguing that a presumption that they do not meet the conditions for inclusion is raised by the fact that their names do not appear on the general electoral roll in 1998. Combined with the fact that the people or entities challenging the inclusion of these names on the special electoral roll are legally unable to access the relevant information to prove their case, this presumption, it is argued, effectively reverses the burden of proof normally resting on them (see here, here and here).

In March 2014, a visiting mission of the UN Special Committee on Decolonisation travelled to New Caledonia to assess the implementation of the Noumea Accord in its final phase and to follow the situation relating to the review of the special electoral roll for the Provincial elections. This visit, which had reportedly been initiated following lobbying by pro-independence politician Roch Wamytan, was highly politically controversial in New Caledonia, being at once contested and dismissed by the various loyalist parties that were staunchly opposed to the legal challenges being brought in relation to the electoral roll (see here and here; the report made by the leader of the visiting mission to the Special Committee on Decolonisation is available here).

In the cases ultimately brought before the tribunal of Koné (the capital of the North Province), the court followed the logic of those bringing the challenges and the majority of the contested names were struck off the special electoral roll. However, in Noumea (New Caledonia’s capital and the capital of the South Province), where the bulk of the cases were heard, the tribunal dismissed the challenges on the grounds that the burden of proof regarding an individual’s ineligibility to vote lies with the person or entity challenging their inscription on the special electoral roll (see here, here and here).

On 7 May 2014, Les Nouvelles Calédoniennes reported that the finalised special electoral roll included 152,462 individuals, 96,347 being enrolled in the Southern Province, 35,698 in the Northern Province, and 20,417 in the Islands Province (see here).

However, over 700 appeals have reportedly been made to the French Court of Appeal in relation to the review of the special electoral roll. It will be some time before any judgement is passed down on this issue. Moreover, depending on the outcome, the judgement of the Court of Appeal could itself be used to legally contest the results of these Provincial elections, particularly if they are very close in the Southern Province (see here).

 

Counting seats – the battle for a majority in the New Caledonian Congress

There are 40 seats in the Provincial Assembly of the Southern Province, 22 in the Northern Province Assembly, and 14 in the Islands Province Assembly. Following each Provincial election, these seats are distributed according to a system of proportional straight-ticket voting. However, to qualify for the proportional distribution of seats for the relevant Provincial Assembly, a ticket must obtain a minimum vote equalling 5 % of the total number of individuals included on the special electoral roll for that Province. Consequently, tickets in the Southern Province need at least 4, 818 votes, compared with 1,622 in the North and 1,021 in the Islands (see here). The tickets must also comply with France’s parity laws, alternating male and female candidates.

The composition of the New Caledonian Congress is determined by that of the Provincial Assemblies: 32 members of the Southern Province, 15 of the Northern Province and 7 of the Islands Province also sit in the Congress. The collegial, multi-party New Caledonian Government, which has a maximum of 11 members, is itself elected by the Congress in a manner proportionate to the respective size of each political group within the Congress presenting a ticket for the Government, although groups need a minimum of six members to be eligible.

The major battle in this election is that being fought collectively by the pro-independence parties for a majority in the Congress, which would also give them the Presidency of the Congress and of the New Caledonian Government (see here and here).

In the Northern and Islands Provinces pro-independence parties dominate. At these elections, the disunity of the loyalist parties will work in their favour in the North, while the unity of the loyalist parties in the Islands will work in their disfavour.

In contrast, in the Southern Province loyalist parties dominate the political landscape. However, this year the pro-independence parties in the South have managed to negotiate a united ticket led by Roch Wamytan under the banner ‘Construisons notre nation arc-en-ciel’ (Let’s build our rainbow nation). This represents a significant strategic win for the pro-independence movement. The last time they presented such a united ticket at an election was in 1989.

While the negotiations proved long and difficult, the need for a united ticket was broadly accepted amongst the pro-independence camp, especially in light of the serious consequences resulting from their disunity in the past. In 2004, divisions within the pro-independence camp in the Southern Province resulted in no pro-independence ticket obtaining the required minimum 5 % threshold, and consequently no seats were held by pro-independence representatives in the Provincial Assembly for the following 5 years. In 2009, with fewer divisions and only 3 pro-independence tickets, one ticket exceeded 5 % and obtained 4 members in the 40-member Southern Province Assembly, 3 of whom also sat in the Congress. In 2014, the pro-independence parties in the South hope realistically for at least 6 to 8 seats in the Provincial Assembly. A major factor will be mobilising electors to vote on the 11 May.

In 2009, loyalist parties held 31 seats in the Congress and pro-independence parties held 23. The latter only need to gain 4 seats to achieve parity and 5 seats to obtain a majority in the Congress. Such a result will be difficult to obtain, but the mere fact that it is acknowledged as a real possibility by all sides of politics is significant.

 

PART 2 of this blog will discuss the results of the elections.

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