Enforcement agencies deters those thinking of subverting the system,
and it identifies and punishes those who have broken the law.
Different agencies usually
share responsibility for enforcement, depending on the nature and severity of
the violation. An investigation may be launched by an oversight or supervisory
body but later transferred to an enforcement agency. For example, criminal
cases uncovered during a routine audit may be referred to the justice system.
If the prosecuting authorities decide to pursue a case, they could charge and
prosecute the alleged perpetrator, and the courts may impose a sentence if the
defendant is found guilty.
Effective enforcement requires
a functioning legal system and respect for the law. To ensure the integrity of
the enforcement system, its independence must be safeguarded. In countries
where the criminal justice system is inadequate, an electoral court or similar
body can be empowered to enforce election laws. Following are the principal
institutions of legal enforcement to maintain election integrity:
Election
Management and Oversight Bodies
Election management and oversight
bodies may be accorded enforcement powers. In Mexico,
for example, the Federal Electoral Institute and the Federal Electoral Tribunal
are mandated to oversee the enforcement of election legislation, consider challenges
and apply sanctions in cases of administrative error.
EMBs may have enforcement
powers, usually acting on the basis of a submitted complaint. While EMB-imposed sanctions are usually
limited to administrative actions (including disciplinary referrals) or minor
civil penalties, EMBs may also refer electoral violations to the prosecutors in appropriate cases.
In South Africa,
the Chief Electoral Officer may institute civil proceedings before a court,
including the Electoral Court,
to enforce provisions of the electoral law.
Regulatory
Agencies
Regulatory agencies often have
the power to enforce their own regulations, subject to appropriate procedural
requirements. EMBs with regulatory power may also sanction individuals found
guilty of violating regulations and, depending on the circumstances, impose
administrative sanctions, levy fines or make referral for criminal prosecution.
Investigative
Agencies
Each country has institutions
and procedures for investigating allegations of electoral wrongdoing or other criminal
misconduct. Investigators can:
- investigate incidents and
complaints to determine the facts and collect evidence against individuals
or organizations; and
- make findings of fact, summarize
evidence collected and report the results of investigation to the responsible
administrator, including an EMB.
Administrative and prosecutorial
agencies use investigatory reports, evidence and findings to determine whether
to initiate administrative, civil or criminal proceedings against a person or
group. This task may be entrusted to a law enforcement agency or a specialized
election investigation body. In Canada, for
example, it is the responsibility of the Commissioner of Canada Elections,
while in New Zealand
it is the responsibility of the police.
Security
Forces
Election security is the
responsibility of the government and is usually handled by the police. Good
security is essential for safeguarding election integrity. It assures voters
and candidates that the campaign will be conducted in an open climate, free of
fear or intimidation. Good security can support voter turnout and confidence in
the secrecy of the voting. The primary roles of security forces during
elections are to:
- protect the physical
safety of individuals, electoral sites and materials involved in an
election;
- investigate crimes and,
where applicable, arrest the suspects; and
- provide a deterrent
against resort to violence or fraud as an electoral tool.
Prosecution
Prosecution of electoral
wrongdoing is an essential part of enforcement. It lets those interested in
manipulating or subverting the election process know that such actions will not
be tolerated and will be punished. To maintain
electoral integrity, the prosecutorial authorities may:
- initiate investigations
(depending on the system);
- determine whether the
evidence warrants a prosecution, and who should be prosecuted;
- establish priorities for
prosecuting pending cases; and
- prosecute individuals
accused of having violated election-related laws or regulations.
In most countries, the
prosecutor is a government employee or elected official. (If elected, the
prosecutor is inherently more sensitive to public opinion and even the
political context of cases.) The prosecutor has considerable discretion in
determining which cases to prosecute. Abuse of this discretion can raise
questions about the integrity of the enforcement process.
Courts
The Judiciary ensures that
laws are enforced on the basis of impartial legal standards, rather than
political or other factors. The role of the courts in safeguarding electoral integrity
varies according to each country’s electoral system and degree of trust in the
justice system. In countries where there is little trust in the EMB or regular justice
system, specialized courts may be established, as they were in Mexico
and Kenya. Such specialized courts
may play an active role in adjudicating electoral disputes that might otherwise
be settled by an electoral management body.
In general, to safeguard
election integrity, the courts may:
- provide a non-political
forum to hear cases on election law violations, whether criminal or civil;
- help resolve electoral
disputes through special remedies such as recounts or certifying results;
- interpret the election
laws and even determine their constitutionality; and
- depending on the nature
of the violation, determine responsibility and sentence those found guilty
of a criminal violation.
