EFFECTIVE MUNICIPALITIES INITIATIVE

Concept Paper on Local Referendum in Kosovo

Introduction
Direct participation of citizen in decision-making reinvigorates democracy as it raises the level of
public awareness and encourages debate of key civic issues. Direct democracy encourages
citizen input into public policy and enables them to participate more actively in public affairs.
Overall, exposure to referendums and initiatives increases the likelihood of voting, stimulates
contributions of specific groups, and enhances political culture and knowledge.
The mere fact of holding a referendum in itself increases public discussion about the matter in
question. A Law on Referenda provides an effective way of addressing contentious issues. It
provides the path for citizen involvement as well as for settlement of political issues between
governing parties in the municipal parliament and the executive branch. However, it is often
argued that referendums initiated by governments are problematic because they weaken
representative democracy and this is especially so when these are binding.1
In most countries, referendums are successful when used rarely, either on practical issues at the
local level, or for high profile affairs that often impact fundamentally matters of identity, morality
or about governance. Referendums should be used only when they can bring about the best
effects. Referendums may be either binding or non-binding. A non-binding referendum is merely
consultative or advisory and is left to the government or legislature to interpret the results,
choose or ignore them, although the second rarely happens as it is politically difficult.
Nevertheless, governments usually prefer that the law state them as non-binding in order to
have maneuver space in the event that the outcome of the referendum is not the outcome that
it supports. In Kosovo, it is recommended that local referendums be held only of a consultative
nature.
However, some issues do not lend themselves to a popular vote: the choice of yes or no, for or
against, involves a risk that various shades of opinion among the public will not be properly
expressed. On the other hand, the over-simplification of a complex question, which may
sometimes be entailed by the referendum process, may lead to incoherent results without an
overall vision of all the local problems and needs.
This concept paper dwells on the characteristics of local referenda in numerous countries in the
world covering issues such as calling and initiating a referendum, thresholds for civil initiatives,
the administration of referenda, its financing and the restrictions against holding a referendum
etc. Furthermore, the paper elaborates in detail the Kosovo context bearing in mind the specific

1 Such as the case in France.

Concept Paper on Local Referendum in Kosovo
principles of the Status Settlement, the newly adopted Law on Local Self-Government and Law
on Municipal Boundaries as well as specific recommendations from key local government
documents from the Council of Europe.

1. Types of local referenda:

Based on the issues they are held, local referenda falls is divided into two types:
1.1. Mandatory referendums: The governing authorities in certain circumstances, or in
relation to certain issues which are laid out in the law, must hold mandatory referendums.2 In
local referendums, it is usually boundary changes of municipalities that are put to vote, but other
issues such as expenditures that exceed a certain amount of money may also be subject to the
mandatory referendum.
1.2. Optional referendum: do not by law have to be held, but can be initiated by the
government, and in some cases by other entities, such as the legislature. Optional referendums
are usually held on major political issues due to public pressure or because the government is
divided and cannot decide on the given issue. Optional referendums may or may not be binding,
but even when not binding, it is politically difficult to ignore, and hence the government usually
respects the outcome.
1.3. Referendums at the request of the electorate: are divided into two categories: the
ordinary optional referendum and the popular initiative. Both result in a popular vote without an
authority taking a decision in this respect, but the authorities are the least involved in the case
of the popular initiative. One of the issues which can initiate this type of referendum is if a law
was passed by the Parliament, but is not yet in force, citizens can call for a rejective referendum.
1.4. Popular initiatives: A popular vote initiated by the citizens themselves plays a vital
educational role, in that it presupposes a direct and substantial commitment on the citizens' part
to seeking a satisfactory solution, acceptable to the majority, to a local problem. This type of
referendum undoubtedly encourages public debate and the evolution of ideas closer to the
views of the majority of citizens. The initiative also that allows ordinary citizens to propose new
laws. One of the main differences between citizen initiatives and government led mandatory
referendums is that citizens can write the former whereas only government officials can draft
the latter.3
An interesting example is Italy’s model taken up also by Malta and Albania. An abrogative
referenda, at the request of part of the electorate, cannot take place if the Parliament repeals
the legislation at issue. When a request is made for an abrogative referendum, Parliament may
rule out a referendum by revising the basic principles and the main substance of the old law. The
same should apply for Municipal Assemblies in Kosovo as well which can revise adopted
regulations or acts when they receive citizen requests for referendums to challenge that
regulation, without calling a referendum at all. In Kosovo, this would be a reactive measure
accepting the citizen’s will without actually holding a local referendum.
Similar options highly recommendable for Kosovo, include the following: After the initiators
gather the required number of signatures and send it to the legislature, the latter then may (a)
make the initiative a regulation, (b) amend it, or (c) formulate an alternative policy. Whereas in
some states the initiative question goes directly to the ballot if it is not adopted by the
legislature, Kosovo should however follow an alternative model whereby it requires petitioners

2The outcome of a mandatory referendum is generally binding.

3Lupia, Arthur and John G. Matsusaka. “Direct Democracy: New Approaches to Old Questions” Annual Review
Political Science No. 7, pp. 463-82. (2004).
Concept Paper on Local Referendum in Kosovo
to gather additional signatures to place an issue on the ballot that was not approved by the
legislature.4
The results of local referenda can be classified as follows:
1.5. Consultative/advisory referendums: Governments use these referendums to gauge
public opinion, but the outcomes of such elections have no direct implications for law. However,
politically, though not legally, even a purely consultative referendum may be expected to oblige
the local authority to follow the opinion expressed by the electorate. There are cases,
nonetheless where authorities do not take into consideration the results. This was the case in
Finland, in their decisions about an initiative to merge with another municipality; local councils
have departed more than was expected even from clear-cut referendum results. This clearly
tends to diminish popular trust in the importance and usefulness of referendums of a
consultative nature.5

1.6. Binding referendums: A more direct impact on the local government functions is made
through the binding referendums, which are implemented by the unconditionally of their results.
Binding referendums elevate the citizens to the position of a higher authority. Binding
referendums are an undoubted form of control of the citizen over the actions of the elected
representatives. It allows citizens to participate in local political life outside election periods. The
existence of this instrument brings pressure to bear on the legislative and executive bodies
throughout the mandate of the elected representatives, not just during the run up to the next
election, since it is possible that any action, which goes against the will of the majority of the
citizens, can be rescinded. On another point of view, binding results may results in a decrease in
the accountability of the local representatives at elections, since although they must account for
their management of the local authority as a whole, they cannot be held responsible for the
consequences of decisions taken by referendum. The difference between binding referendum
and mandatory referendum is that a binding referendum requires the local government to hold a
local referendum on whatever issue the local citizen have passed the threshold with gathered
signatures and the responsible authorities have approved the legality of their request.

1.7. Recommendation: All options considered in this section advocate for referendums as a
positive mechanism towards encouraging citizen participation in important issues. However,
taking into account Kosovo’s constitutional list of prohibited issues6, which may not be put up
for referendum, Kosovo citizen need to be encouraged for direct participation through citizen
initiatives. Given the current poor economic conditions in Kosovo, municipalities should not be
overloaded with the burden of referendums. Legally, local referendums in Kosovo must be
optional by nature thus the local authorities should organize local referenda mainly on issues,
which the Municipal Assembly and the Kosovo Assembly decide, are of high value to the citizen
and which fall within the municipal competences. In Kosovo’s case another requirement should
be met, namely that 2/3 majority of the Municipal Assembly members agree to put it on
referendum.
In addition, it is recommended that the Law on Local Referenda establish a high threshold for
citizen initiatives on calling a referendum in order to prevent frequent initiatives. As far as the
effect of results are concerned, the Law on Local Referenda in Kosovo should be oriented
towards consultative and advisory referendums thus taking into serious account the citizen’s
opinion throughout the policy-making decisions. There may be cases when citizen are strongly

4 This model is applied in of Massachusetts/USA and two other states. The Commonwealth of Massachusetts:
Lawmaking in Massachusetts. Retrieved from: http://www.mass.gov/legis/lawmkng.htm.
5 Local Referendums. Steering Committee on Local and Regional Authorities (CDLR), No. 52. Local Referendums.
6 See below for explanation.

Concept Paper on Local Referendum in Kosovo

rejecting a particular adopted act or issue and have gathered the necessary signatures, however
the municipal authorities do not have the necessary financial means or stable political situation
to hold a referendum at that point. In these cases, the Municipal Assembly is recommended to
(a) make the initiative a regulation, (b) amend it, or (c) formulate an alternative policy.
However, for the set of issues (i.e. boundary changes, recall of mayor, rejection of legislation
etc. elaborated further below) in which local referenda is mandatory, the Law on Local
Referenda should also specify that the results are binding.
The citizen/authorities involved must have clear directives of the follow-up actions and the
effects of the referendum results. The text being put on referendum or the action being
requested through local referendum (i.e. refusal of a legislative act or municipal decision) must
be implemented if supported by the majority in the referendum. On another practical matter,
temporal limitations must also be specified in the Law on Local Referenda. A local referendum
may not be organized on the same issue for a period of 12 months.7

2. Legislative sources for the new Law on Local Referenda

The Law on Local Referenda should be based on the following legislation and guiding documents
and the principles set forth therein:

2.1. Marti Ahtisaari’s Comprehensive Proposal for Kosovo Status Settlement

Article 3.9 of the Status Settlement Constitutional Provisions presents unique limitations to
normal principles of referenda by requesting that a number of laws, mostly subject to neither
minority’s interests, nor any proposal contradicting any provisions of this Settlement may be
submitted to a referendum.8 This principle has been adopted fully by the Kosovo Constitution,
as is explained below.
Concerning the establishment of [other] new municipalities, Article 12.4 of the decentralization
provisions authorizes the Kosovo government to engage in consultations with a non-majority
Community.9 The same principle has also been adopted in its entirety by the Law on Municipal
Boundaries under Article 12 requesting the government to engage in these consultations. It
must be made clear that these consultations do not necessarily mean referendum. However,
should the result of these consultations develop into a request for municipal boundary changes,
than the central government has a specific procedure it need to undertake as is regulated by the
Law on Municipal Boundaries (see below).

2.2. Constitution of the Republic of Kosovo10

In accordance with the Status Settlement elaborated above, the Constitution foresees a number
of areas where legislation may be adopted or amended solely with a double majority of the
Kosovo Parliament and which may not be put up for referenda. These laws are the so-called
“Vital Interest” laws and they include the following issues:
ƒ Laws changing municipal boundaries, establishing or abolishing municipalities, defining the
scope of powers of municipalities and their participation in inter-municipal and cross-
border relations;

7 Montenegro applies the same rule whereas Croatia’s temporal limitation on the same issue is only 6 months.
8 Article 3.7 and 3.9 of the Status settlement.
9 In municipalities where that Community makes up at least 75% of the population of a concentrated settlement with

a minimum total population of 5000 inhabitants.

10 The Constitution is still in a draft status.

Concept Paper on Local Referendum in Kosovo

 ƒ Laws implementing the rights of communities and their members, other than those set
forth in the Constitution;
ƒ Law on the use of language;
ƒ Law on local elections;
ƒ Law on protection of cultural heritage;
ƒ Law on religious freedom or on agreements with religious communities;
ƒ Law on education;
ƒ Law on the use of symbols, including Community symbols and on public holidays.11

The Constitution assigns the Kosovo Assembly with the authority to “announce referenda
according to the law”12. According to Article 114.3, the Constitutional Court is responsible for
reviewing the compatibility with the Constitution of any proposed referendum.13 In addition, the
Constitution also specifies that the competent authority to prepare, supervise, direct and verify
all activities concerning elections and referenda as well as announce their results.14

2.3. Law on Local Self-Government

The Law on Local Self-Government refers to the Referendum as a means for the local citizen to
contest acts promulgated in the Municipal Assembly.15 The threshold for registered voters who
can gather signatures to initiate procedures for a referendum to challenge any regulation
adopted by the Municipal Assembly is 10%. The Municipal Assembly reviews the request and
decides whether to put it on referendum.16 What needs to be specified further by the Law on
Local Referenda is what rule should be applied for the results, in case a referendum is organized.
In case the majority of the voters vote for the changes or the removal of that particular
regulation, then the municipal government must be obliged to implement that result.
Another issue regulated in the Law on Local Self-Government is the citizens right to initiate the
recall of the municipal Mayor.17 With the collection of 20% of signatures from registered voters,
the request is submitted to the Municipal Assembly, which is then submitted to the voting
administration institution, (in the case of Kosovo, the Central Election Commission) for
validation.18 If the majority of the registered voters approve the request, than the results of this
referendum are binding for the authorities and new elections must be held according to the Law
on Elections.19 However, the right for recall of Mayor should be restricted for the last year of
the mandate.20
The selection or changing of symbols of a municipality is also regulated by this Law. For these
actions to be implemented the Municipal Assembly requires a double majority vote from its
members.21 However, “extensive public consultation is a prerequisite prior to any decision by
the authorities. This may, but is not required to, be done through a local referenda. Its results
would then not be binding since the referendum would serve of a consultative nature. If the
Municipal Assembly adopts changes without consulting the population and citizens of the

11 Article 81 of draft Constitution.

12 Article 65 of draft Constitution.
13 Article 114.3.2 of draft Constitution.
14 Article 139.1 of draft Constitution.
15 Article 71 of Law on Local Self-Government.
16 Ibid.
17 Article 72.1 of Law on Local Self-Government.
18 Ibid. Article 72.2.
19 Ibid. Article 72.3.
20 The example is set in Bosnia and Herzegovina, the Association of Elected Officials recommended that the right to

recall mayor be banned from legislation during the mayor’s last year of mandate.
21 Article 7.5 of Law on Local Self-Government.

Concept Paper on Local Referendum in Kosovo

municipality reject the changes, then they are allowed to gather signatures of 10% of the voting
population and propose a referendum to challenge the decision.22 However, it must be clear
that the Municipal Assembly is the final authority to decide whether this citizen’s proposal is put
to referendum.

2.4. Law on Municipal Boundaries

The Law on Municipal Boundaries is also important for the development of the framework of
local referenda in Kosovo since it specifies two relevant issues (changing of municipal boundaries
and changing of name or residency of municipality). On the first issue, article 9 of this Law states
the following:
“Establishment of new municipalities, merger, separation, alteration of municipal boundaries, and
delineation of the name or residency of the municipality shall be effected through a revision or
amendment of this Law.”23
Details of what type of municipal boundary changes are allowed and the relevant procedure for
initiating them is elaborated below under point 6. On the second issue, Article 4.3 of this Law
states that the proposal to change the name and residency of a municipality must be approved
by the double majority of the Municipal Assembly members (present at that session).24 This act
requires the engagement of the central level as well since the Kosovo Assembly is then required
to amend the Law on Municipal Boundaries as stated under Article 9.25 Again, as is the case with
symbols, if citizens of the municipality reject the changes, then according to the aforementioned
Law on Local Self-Government they are allowed to gather signatures of 10% of the voting
population and propose a referendum to challenge the decision.26

2.5. European Charter of Local Self-Government

The Charter’s concept of local government is based on the following two ideas: a) that local
authorities have to manage a substantial share of public affairs under their own responsibility and
in the interests of the local population; and b) a right of citizens that is exercised through
elected councils or directly through referendums or other forms of citizen participation.27
Article five (5) of the Charter which refers to the protection of local authority boundaries,
specifies that changes in local authority boundaries shall not be made without prior consultation
of the local communities concerned, possibly by means of a referendum where this is permitted
by statute. According to the Charter, local referendums and popular initiatives should be
organized by the local authorities only on questions which fall within their competences.
Regarding the nature of referendums, the Council of Europe declares the following:
“Referendums on specifically worded draft amendments will usually have a binding
character and their implementation will not present particular problems. Referendums
on questions of principle or other generally worded proposals should be consultative only.
While some countries recognize that such referendums may bind parliament in
principle, this leads to difficulties of implementation and entails a high risk of political
conflicts”28.

22 Ibid. Article 71.

23 Article 9 of Law on Municipal Boundaries.
24 Article 4.3 of Law on Municipal Boundaries.
25 Ibid. Article 9.
26 Article 71 of Law on Local Self-Government.
27 Article 3 of European Charter of Local Self-Government.
28 Council of Europe 2001 No. 10, p. 6.

Concept Paper on Local Referendum in Kosovo

During the drafting of the Kosovo Law on Local Referenda, the following non-binding
documents should also be taken into consideration:
ƒ Council of Europe, Committee of Minister, Recommendation No. R (96) 2 on
Referendums and Popular Initiatives at Local Level
ƒ Report of Steering Committee on Local and Regional Authorities (CDLR) for the 10th
Conference of European Ministers responsible for Local Government,
ƒ Venice Commission reports and recommendations on Referenda
ƒ Council of Europe – Guidelines on National Referenda.

3. Voters’ Eligibility in Local Referenda

In most cases, only those persons are entitled to take part who can vote in local authority
elections: in many countries, this means only citizens. Failure to consult the other residents of
the municipality, who may be numerous, is a serious drawback in democratic terms, which is
hardly justified by the convenience of being able to use the existing electoral register. The
specification of voters eligible to vote at local referendums should reference the Law on Local
Elections as well as the Law on Citizenship (both still to be promulgated).
In Kosovo, citizens of foreign countries and stateless persons should be entitled to vote if they
have proof of permanent residence in the given local authority for at least three years.29

4. Citizen Initiatives to Call a Referenda / Thresholds

Low thresholds are very appealing, but in order to promote cooperation among various societal
and institutional sectors, and in order to avoid frequent referendums on frivolous matters, it is
advisable to introduce additional filters.
A concern with the appropriate level of the threshold for popular initiatives for a referendum
may be observed in two countries - Finland and Luxembourg – which combine a system of
popular motions with a purely consultative form of referendum. In Finland, it has been suggested
that a certain percentage of the electorate should be able to bring about the holding of a
referendum without the need for a majority decision by the municipal council. On the other
hand, in Luxembourg, the quorum is considered too low allowing groups of citizens to impose a
referendum relatively easily and it is argued that if there were too many referendums they could
block the proper functioning of local government.30
Countries with a low threshold for initiating referenda include Estonia with 1% of the population
for popular initiatives; Finland with 5% of voters who can submit an initiative to the municipal
council, but the initiative is not binding; Albania, which requires 10% of voters to initiate
procedures for a referendum, and Armenia with 5% of voters. On the other hand, in Bulgaria, a
quarter of registered voters may initiate a referendum procedure with the municipal council
deciding in the last instance. If a referendum is decided by half the registered voters, it must take
place. Furthermore, in other countries we have an example of a higher threshold of 10% or
more required to hold a referendum (i.e. Malta with 10% and Spain where the referendum must
take place at the request of 20% of the municipality’s voters).

29 This is also the case in Estonia. Decentralization: Experiments and Reforms; On the account of minority

representation, According to the European Commission, voters must not find themselves obliged to reveal their
membership of a minority. European Commission through Democracy through Law (Venice Commission). Study No.
287/2004 on Referendums in Europe. Adopted by Venice Commission on 2005.
30 Local Referendums. Steering Committee on Local and Regional Authorities (CDLR), No. 52. Local Referendums.

Concept Paper on Local Referendum in Kosovo

In Kosovo, the threshold is settled by law on the following issues: a) recall of Mayor, b) changing
of municipal boundaries and c) challenging a municipal act/legislation (including changes on the
name, residency or symbols of the municipality).
Firstly, on the first issue of recalling directly elected mayors, Kosovo has already granted this
option with Article 72 of the Law on Local Self-Government. The threshold of initiating
procedures for a referendum stands at 20% of registered voters with the simple majority of the
municipality’s voters required for the removal of the Mayor. However, as mentioned above, the
Law on Local Referenda should restrict the right for recall of Mayor on the last year of the
mandate.
Secondly, on the issue of changing of municipal boundaries, as elaborated further below under
point 6, only 10% of registered voters from the area of the municipalities, which are effected by
the changes, are required to initiate procedures for referendum. In this case, the request is
submitted to the Kosovo Assembly who has the final authority to permit a referendum.
Furthermore, a local referendum for municipal boundary changes is not held should the Kosovo
Assembly decide against such an initiative. Finally, the citizen’s right to challenge municipal acts
or legislation including the changes of symbols, name or residency of the municipality is
guaranteed by the Law on Local Self-Government (Article 71).
The Law on Local Referenda must take into consideration these specific constraints concerning
boundary changes as well as the aforementioned thresholds for citizen initiatives pertaining to
the Mayor’s removal.
Considering these thresholds already inscribed in the existing legislation, it is highly
recommended that a higher threshold be established for other issues in order to prevent the
possibility of frequent referenda. On the issues falling within the local government sphere of
own competences, the Municipal Assembly should always consult the citizen. This consultation
must not necessarily be through a referendum but it may be through municipal financed surveys,
public hearings etc. These issues include:
ƒ Local economic development
ƒ Urban and rural planning
ƒ Environment
ƒ Transportation
ƒ Public housing
ƒ Naming of roads and streets, etc.
On these issues of high interest for the citizen, the Law on Local Referenda should permit the
citizen to initiate proposals for referenda while introducing a threshold of 25% for citizen
initiatives.

5. Announcing a Local Referenda

Referendums called by the municipal legislature exist in the following states: Belgium, the Czech
Republic, Estonia, Finland, Ireland, Luxembourg, the Netherlands (temporary law) and
Macedonia. In Hungary, a referendum may be called by the municipal council itself, a quarter of
its members or one of its committees. Hungary thus provides a fairly easy way for governing
institutions at the local level to call a referendum.31 In Croatia, a representative body of a local
self-government unit can call the local referendum.32 The Croatian central government also has
the authority to call a referendum, however these are only advisory referendums for the area of

31 Ibid.
32 Article 4, Croatian Law on Referendum and Other Forms of Individual Participation (1996).
Concept Paper on Local Referendum in Kosovo
one or more local self-government unit/s of the local administration and self-government in
order to hear first the opinion of the inhabitants from this area about the regional organization
of the local self-government unit/s”.33 In Bulgaria, a local referendum can be called by a quarter
of the municipal councilors, mayor of the municipality but the municipal council decides in the
last instance.
In Kosovo’s case, the Law on Local Referenda should regulate this sphere by authorizing the
Municipal Assembly to call the local referenda on all (but one) issues at stake, be it mandatory as
required by the legislation or be it a request by citizen initiatives. This should also include cases
for the recall of Mayor. The exception is the procedure for municipal changes, which according
to the Law on Municipal Boundaries requires a different path.34 When initiatives are proposed to
change municipal boundaries, the request is reviewed by the Kosovo Assembly who must then
request from the Central Election Commission to announce local referenda in a certain
municipality/municipalities.35

6. Amalgamation and Break of Municipalities through Referenda

The case of Territorial Reorganization in Kosovo through referenda requires compatibility with
Status Settlement, Law on Local Self-Government and Law on Municipal Boundaries. According
to Law on Municipal Boundaries, border changes can be done through the following actions:

ƒ Merger of one or more municipalities with an existing municipality

ƒ Merger of two or more municipalities to form a new municipality
ƒ Break of a part of a municipality (or municipalities) to join another municipality
ƒ Break of a municipality or municipalities part(s)/section(s) to form a new municipality
The initiatives to change municipal boundaries can be made by the Kosovo government, the
Municipal Assembly, Assemblies depending on what changes of border are planned and how
many municipalities are affected, or 10% of citizen from the parts of municipalities. In the case of
the latter, the initiative request is sent to the Kosovo Assembly.36 As requested by the Status
Settlement, Article 12 the Law on Municipal Boundaries requests of the government to engage
into consultation with minority communities in municipalities where this community makes 75%
of the population with the aim of establishing new municipalities.37
In Slovenia, its Law on Local Self-Government also allows local referendums for changing of
municipal boundaries.38 The Law allows changes of municipal boundaries through referendums
for merging of municipalities or division of municipal territory to form two or more
municipalities. In order for the changes to be legitimate, the majority of registered voters from
all effected municipalities must approve the merging or separation.

7. The Role of Central Government in Local Referenda

According to the Venice Commission, state authorities must observe their duty of neutrality as
a means of ensuring that voters can form an opinion freely.39 The Kosovo government and
municipal authorities must be clearly limited to engage in supporting or opposing a particular

33 Article 7 Croatian Law on Referendum and Other Forms of Individual Participation (1996).
34 Article 11 of Law on Municipal Boundaries (English translation, 7 February 2008).
35 Ibid.
36 Ibid.
37 These municipalities have to number 5000 inhabitants.
38 Article 15 of Slovenian Law on Local Self Government.
39 EC – Venice Commission Study No. 371/2006 Draft Guidelines on Referendum.

Concept Paper on Local Referendum in Kosovo

local issue, which is lobbied to be put in the local referendum. However, the Law on Local
Referenda should specify the mechanisms of engagement of the Kosovo Assembly and the
Ministry for Local Government Administration in approving the text, which is to be submitted
to a local referendum to review the compatibility of it with local government competences. As
was referred to above, the Kosovo Assembly has a defined role in reviewing the request for
municipal boundary changes, according to Article 11 of the Law on Municipal Boundaries. The
Ministry for Local Government Administration must also maintain its strict role of oversight
over municipalities to ensure that the issues requested to be put on local referenda do not
surpass the local government’s competences and do not breach any laws.

8. Local Referenda Campaign and Financing

In conformity with the freedom of expression, a legal provision should be made to allow
minimum access to privately owned audiovisual media, with regard to the referendum campaign
and to advertising, for all participants in the referendum. Referendum campaign funding must be
made transparent by all institutions or initiatives which are participating. The use of public funds
by the state and local authorities for campaigning purposes must be prohibited by law. Public
funds may be used solely for administrative purposes of the referendum. 40 On the other hand,
private funding must be allowed for the collection of signatures for popular initiatives.41
As per Council of Europe’s recommendation, “the use of public funds by the authorities for
campaigning purposes during the referendum campaign proper (i.e. in the month preceding the
vote) must be prohibited. A strict upper limit must be set on the use of public funds for
campaigning purposes in the preceding period.”42 Switzerland and Croatia prohibit the use of
public funds for referendum. Overall, it should be considered that limited funding be made
available to supporters or opponents at equal measure. They may also receive support from
other sources, but a ceiling must be set. Public funding may only go towards (a) referendum
administration, (c) balanced and limited campaigning to both sides, and (c) neutral information
only.

9. Local Referenda Administration Bodies

The Central Election Commission, which functions under UNMIK Regulation 2000/21 and is
“responsible for the conduct of elections in Kosovo,”43 should be tasked with the organization
of referendums with a similar mandate to that of elections. Adhering to the principle of
subsidiarity, local referenda should be implemented by Municipal Election Commissions, but
under direct supervision of the Central Election Commission. However, the exclusive mandate
of the Central Election Commission and of Municipal Election Commissions does not extend to
a number of issues that are to be exercised either by other institutions or jointly, e.g. the
formulation of questions needs to be done jointly with initiators and opponents of a measure as
well as subject to judicial review. This is also in compliance with the Kosovo draft Constitution
which authorizes the Central Election Commission to administer and organize are electoral
activities and referendums in Kosovo.44 Furthermore, the municipal authorities must establish a
Referendum Committee depending on the type of local referendum organized. The Committee
must be comprised of representative from the institution or group of citizen lobbying for the

40 Ibid.
41 Venice Commission Study No. 287/2004.
42 Council of Europe 2001, Recommendation 10: 4.
43 Article 4.1 of UNMIK Regulation 2000/21 on the Establishment of the Central Election Commission.
44 Article 139 of the draft Constitution.

Concept Paper on Local Referendum in Kosovo

referendum. In case it is a popular initiative, then there must be a requirement to designate at
least one interlocutor responsible for providing liaison with the municipal authorities.45

10. Complaint Resolution Mechanisms for Referenda

Currently the Election Complaint and Appeals Commission (ECAC) is an independent body
competent to adjudicate complaints and permitted appeals concerning the electoral process
whilst under the full authority of the SRSG.46 Any person who has a legal interest in a matter
within the jurisdiction of the ECAC, or who believes that their rights concerning the electoral
process as established by a Regulation, Administrative Direction, or Electoral Rule has been
violated, may submit a complaint to the ECAC.47
Concerning local referenda, the best option for Kosovo municipalities is to authorize the ECAC
to review and decide over complaints on local referenda. However, the ECAC role and mandate
must be taken into consideration as a capable authority after the departing of the UNMIK
mandate. The Law on Local Referenda should also regulate the appeal procedures through
judicial mechanisms and the compliance of these procedures with the Law on Elections. Appeals
on the local referendum procedures may be directed to the District Court and further on to
the Supreme Court or the Constitutional Court. According to the draft Constitution, the
Constitutional Court decides on matters of compatibility with the constitution of a proposed
referendum.48

11. Referenda Results and Annulment

Referendums on questions of principle or other generally worded proposals should preferably
not be binding. If they are binding, the subsequent procedure should be laid down in specific
rules. According to Article 139 of the draft Constitution, the Central Election Commission is
responsible for verifying the referenda results thus the Municipal Election Commissions should
report to the Central Election Commission, which is then the final authority to declare the
validity of the results of local referenda and their certification. This authority must also bear the
right to annul the referendum. Therefore, the Appeal body should have the right to annul the
referendum where irregularities may have affected the outcome. It must be possible to annul the
entire referendum or merely the results of one [a particular polling station]. In the event of
annulment, a new referendum must be called.

45 Local Referendums Steering Committee on Local and Regional Authorities (CDLR), No. 52. Local Referendums.
46 The ECAC derives from UNMIK Regulation 2004/12 as amended by UNMIK Reg. 2007/26 and UNMIK Reg.
2007/28 on Elections for the Assembly of Kosovo, and UNMIK Reg. 2007/27 On Municipal Elections of Kosovo.
47 Section 42.1 of UNMIK Regulation 2004/12, as amended, and Section 44.1 of UNMIK Regulation No. 2007/27.
48 Article 114.3.2 of the draft Constitution.

Concept Paper on Local Referendum in Kosovo