The (non) existence of the Referendum Law: Petitions for the removal of mayors in a legal limbo

Weeks after citizens of four municipalities in northern Kosovo submitted signatures required for a vote on the dismissal of mayors, the Central Election Commission of Kosovo has remained silent, as if it does not exist. The President of the Assembly of the Municipality of North Mitrovica, however, did speak out, albeit on a completely different petition, stating that it had been rejected because there was no Referendum Law. Does the same fate await petitions for the dismissal of mayors, and who is responsible for the Serbs in Kosovo having only one right - a legal vacuum?

The President of the Assembly of North Mitrovica, Nexhat Uglanin, stated today for Kosovo Online that the request for a referendum on the revocation of the decision on the allocation of land near the Vojni remont site, submitted by the Serbian Democracy, had been rejected because there was no Referendum Law. He stated a few days earlier that the Administrative Instruction could not be stronger than the law and the constitution.

It is worth noting that the Administrative Instruction was issued by the Ministry of Administration and Local Self-Government of Kosovo, and it has been invoked by the highest officials of Kosovo, but the discussion about "non-existent laws" did not arise until the signatures of the Serbs from the north were submitted.

Furthermore, there is no law under which the Assembly of North Mitrovica and its president decide on the continuation of the process of mayor dismissal, our interlocutors say, emphasizing that the right to a referendum is provided for in international documents to which Kosovo has committed itself. Moreover, they add that neither the Law on Local Self-Government nor the Administrative Instruction address the conduct of voting for the dismissal of mayors based on the Referendum Law, so the absence of that law is not a legal vacuum that restricts the CEC. Nevertheless, the CEC remains silent.

Program Manager of the NGO Social Initiative, Milica Andric Rakic, explains that the absence of a Referendum Law cannot be a basis for rejecting petitions.

"The fact that there is no Referendum Law is not something that citizens should bear on their shoulders; institutions should provide them with an alternative way to implement what they intended, challenge the decision on the referendum, or, as requested, suspend that decision until the conditions for organizing a referendum are met through the adoption of a law. It is completely irresponsible to claim that the citizens' request was rejected due to the absence of such a law. That is not a reason for rejection; reasons for rejection could include not submitting within the deadline, not having a sufficient number of signatures as envisaged by the Law on Local Self-Government, or, for example, if the Central Election Commission rejects it because it turns out that the verified signatures are not valid, or they are from people who do not reside in those municipalities," Andric Rakic said for Kosovo Online.

She emphasized that the reasons she mentioned could be grounds for rejection, but the absence of a law was not a valid reason for rejection.

"I find it a bit strange that Uglanin takes responsibility for this by stating that he was the one who had rejected the initiative because potentially he could be criminally liable for obstructing the enforcement of the law and the constitutionally guaranteed rights of citizens. If I were in his place, I would leave it to other institutions. I don't see why he is taking this kind of responsibility and assuming it himself because he does not have jurisdiction in this matter," she said.

She emphasizes that the claim made in the media that the referendum is not guaranteed by the Constitution is also incorrect.

"Another thing he mentioned in the media is that the referendum is not guaranteed by the Constitution, which is absolutely untrue. Not only is it guaranteed by the Constitution, but also by the European Charter of Local Self-Government which Kosovo has committed to respect. It is also one of the basic principles followed by the Council of Europe in various member countries, ensuring citizens' right to participate in decisions of local authorities, so it is certainly guaranteed by legislation in Kosovo, as well as by numerous international documents," Andric Rakic stated.

Lawyer Ardian Bajraktari highlights for Kosovo Online that there is currently no Referendum Law in Kosovo and that the Administrative Instruction of the Ministry for Local Government regarding the dismissal of mayors is controversial.

"As for the dismissal of municipality mayors in relation to the relevant provision of the Law on Local Self-Government, the Ministry for Local Government has issued an Administrative Instruction which, in my opinion, is controversial," he said.

Bajraktari believes the relevant provision of the Law on Local Self-Government must be further materialized to enable the dismissal of municipality mayors through a petition that must be signed by 20 percent of citizens.

"For such a process to be successful, it must be supported by 50 plus one percent of citizens with voting rights in that municipality. Considering the relatively low participation of citizens in mayoral elections, I have the impression that it is difficult to reach that figure," he said.

Political scientist Ognjen Gogic tells Kosovo Online that the decision of the Municipal Assembly of North Mitrovica to reject the request for a referendum on the revocation of the decision regarding the allocation of land near the Vojni remont site, citing the absence of a referendum law, cannot be reflected in the further process of mayor dismissal in this or the other three municipalities in northern Kosovo. According to him, the requests for petitions in these two cases were based on different articles of the Law on Local Self-Government. He also points out that it is the Central Election Commission that decides on the continuation of the process of mayor dismissal, not the Municipal Assembly of North Mitrovica or its president. Gogic explains that the petition regarding the land decision is based on an article that gives citizens the right to challenge a decision of the Municipal Assembly through a referendum, while the petition for mayor dismissal relates to another article of the law – the one concerning mayor dismissal.

"In the first situation, the legal way to challenge the decision is to put it to a referendum, and when it comes to the dismissal of the mayors, it is not a referendum, although colloquially referred to as such, but legally it is a voting procedure for the dismissal of the mayors. The Law on Local Self-Government stipulates that citizens should first submit a petition and then vote for the dismissal, and the Administrative Instruction further elaborates and gives the CEC the authority to initiate the procedure for the dismissal of the mayors after verifying the signatures in accordance with the Law on Local Elections. According to the Administrative Instruction, it is expected that the provisions of the Law on Local Elections, which govern the election of mayors, will be applied, but oppositely, that is, for their dismissal," Gogic says.

The implementation of the Administrative Instruction, after the collection of signatures through petitions is completed, he adds, is in the hands of the CEC.

"The CEC is the body that should decide whether the petition is acceptable or not, and the CEC decides whether to proceed further according to the procedure prescribed by the instruction, not the Municipal Assembly of North Mitrovica or its president, who cannot even express their views on this matter in the media as it encroaches upon the jurisdiction of another body. The CEC is the one that should decide whether the voting for the dismissal of the mayors can now be organized. In this situation, the CEC will not be able to invoke the absence of the referendum law. The President of the Municipal Assembly of North Mitrovica, Uglanin, referred to the absence of the referendum law, but the CEC will not be able to do so because neither the Law on Local Self-Government nor the Administrative Instruction mention that the voting for the dismissal of the mayors is conducted based on the referendum law, so the absence of that law is not a legal gap that limits the CEC," Gogic says.

He notes that the CEC can say that the Law on Local Elections cannot be applied to this situation because it does not provide for voting for dismissal, but the absence of the referendum law, he reiterates, cannot be the reason or the excuse to halt this procedure.

However, Gogic states that the legal framework for the dismissal of mayors is certainly unclear, and the CEC cannot put itself in a situation where it creates legal norms that are a matter of law and will probably refrain from doing so.

"The situation will be similar to that with the decision of the Central Bank of Kosovo, where the responsibility is passed on. Both the CBK and the CEC are considered independent institutions that the executive power cannot directly influence, so we will have a vicious circle, where the Prime Minister or the President of Kosovo will say that they cannot influence the work of the CEC and that the CEC is the one responsible for conducting the procedure for voting for the dismissal of the mayor. However, the CEC will say that there is not enough legal basis to do so without violating some laws," Gogic says.

The statement coming from the Municipality of North Mitrovica is somewhat accurate because there is indeed no law in Kosovo regulating the organization of referendums, Aleksandar Rapajic, the Program Director of the ACDC organization in North Mitrovica, said to Kosovo Online. However, he emphasizes that there is an Administrative Instruction on the procedure for mayor dismissal, which includes a referendum as one part of the process.

According to Rapajic, a situation where something is not regulated by law but is regulated by Administrative Instruction leads to a legal vacuum, resulting in different interpretations.

"We see that the Municipality of North Mitrovica interprets that there is no legal provision. Accordingly, we see that the Central Election Commission has not responded for over a month regarding the submitted signatures for the petition to dismiss the mayor based on the Administrative Instruction that was issued. The Central Election Commission usually reviews signatures much faster when it comes to electoral processes, so it is not quite clear why there is such a delay. We have certain information from Pristina that is also contradictory; we have information from media circles that the petition has been accepted, but until we receive official information from the institutions, we cannot comment on it. We also have certain analysts who state that there is no referendum law and that it is impossible to organize one. I think this shows how the legal framework is not regulated, how there is room for things not to be done that should be done, and that the whole process of Administrative Instruction was not made to solve the problem but only to prolong it for as long as possible," Rapajic said.

He recalls that although the procedure was not done according to the law, it was done according to the Administrative Instruction.

"According to the Administrative Instruction, citizens have collected signatures, and now a referendum should be organized. Now we come to the main problem. The first problem is to verify these signatures, but even when these signatures are verified, who decides on the referendum, who will organize it, and who will monitor its process? Many of these things are not regulated, and that's what brings us to this legal vacuum where every institution shies away from responsibility, and in the end, the citizens on the ground suffer because we still have mayors who do not reflect the wishes of the population," Rapajic said.