Introduction
A breach of public trust that results from illegal acts subverts the electoral
process. Enforcing
the legal framework of elections is essential in order to maintain electoral
integrity. Even the best legislation can be
thwarted or negated without sufficient enforcement,
Enforcement is a deterrent to
fraud and a safeguard against problems that threaten electoral integrity.
Dishonest or fraudulent practices are not the only source of integrity problems.
Problems may also result from human error or unintentional omissions. Even
when there is no ill intent, these mistakes should be subject to appropriate corrective
measures. Different institutions and mechanisms may be responsible for
enforcing election integrity and legislation, as specified by the legal
framework each country.
In some systems, enforcement
agencies have complete institutional independence. Others work under a common
institutional umbrella with the electoral policy-making or management bodies. Generally speaking, effective enforcement involves:
- clear definition of the
types of violations or offences;
- the opportunity to make a
complaint;
- determination to investigate;
- decision to initiate
proceedings in order to determine facts and obtain evidence;
- administrative or civil
proceedings, or prosecution and criminal proceedings to hold offenders
accountable for their actions;
- a detailed ruling and the
opportunity to appeal; and
- appropriate and effective
penalties and sanctions for those found responsible.
International Baseline
Since civil and political
(including electoral) rights are within the scope of the ICCPR (Article 25),
other provisions of the Convention apply, especially Article 2.3 (right to an
effective remedy). With respect to
enforcement proceedings of all kinds, however, it is necessary also to have due
regard for Article 14.1[1]
The latter provision has
received an authoritative interpretation[2] which
is highly relevant to the resolution of election cases. First, it is important to realize that the
protections in Article 14 do not apply only in criminal proceedings, “but must
be respected whenever domestic law entrusts a judicial body with a judicial
task.”[3]
Second, the rights of individuals subject to adjudication cannot be frustrated
by law or in fact, nor avoided by the specific character of the tribunal in
question.[4] Third, the right to equality before tribunals
also requires “equality of arms”, and that the proceeding not be substantively
nor procedurally unbalanced; for the same reason, legal representation may be
necessary to substantiate that right.[5] Finally, the requirements of Article 14.1 are
that all persons subject to legal (including by whatever name called: administrative,
civil or criminal) are entitled to a “fair and public hearing by a competent,
independent and impartial tribunal”.[6]
The general right described
above also involves several other elements.[7] These include:
- protecting judges (adjudicators) from any
form of political influence in their decision-making;
- limiting the dismissal of judges to serious
cause in accordance with fair and lawful procedures ensuring objectivity;
and
- requiring that judges be impartial and that
the nature of the proceedings must appear to a reasonable observer to be
fair;
Discussion
Many studies and commentators point out that, to be effective, enforcement must
be active, impartial and timely. Investigative agencies and their investigators
should have enough independence to examine allegations of election fraud or
other illegal activities, and to initiate legal proceedings. Investigators should
be objective, professional, and shielded from any political interference
with their work.
Integrity also means
protecting the rights of whistle-blowers, witnesses and the accused. Defendants
should have access to legal representation and to the information that has been
gathered against them. They must also be able to present an adequate defence.
These protections are discussed in the sections on Rights of the Accused and
Rights of Individuals in Investigations.
Prosecutors are usually government
employees or elected officials, who may be sensitive to public opinion and the
politics involved in the problem being investigated. Prosecutors may have
discretion to determine whether the evidence warrants a prosecution and, if so,
who will be prosecuted. The exercise of such discretion in a subjective or unconstrained
manner, however, may negatively affect electoral integrity. Courts and (where
applicable) juries determine guilt or innocence and should be impartial. An
objective judgment is based on factual evidence and the legal context, not on
political affiliation, discrimination or unsubstantiated rumour. An independent
judiciary is required for a criminal proceeding to be fair.
The enforcement process may be
subject to internal and external pressure and difficulties. A transparent
system with checks and balances can protect the integrity of enforcement
activities. These issues are discussed in the sections on Monitoring of
Enforcement and Investigating in Difficult Circumstances.
[1]
ICCPR, Article 14.1: “All persons shall
be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of his
rights and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal
established by law. The Press and the
public may be excluded from all or part of a trial for reasons of morals,
public order (ordre publique) or
national security in a democratic society, or when the interest of the private
lives of the parties so requires, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would prejudice
the interest of justice, but any judgement rendered in a criminal case or in a
suit at law shall be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or the
guardianship of children.”
[2] UN
Human Rights committee, General Comment No. 32, Article 14: Right to Equality Before Courts and Tribunals and to a Fair
Trial, 23 August 2007, U.N. Doc. CCPR/C/GC/32
[4] Ibid., para.
8: “
… A
situation in which an individual’s attempts to access the competent courts or
tribunals are systematically frustrated de jure or de facto runs counter the
uarantee of article 14, paragraph 1, first sentence. This guarantee also prohibits any distinctions
regarding access to courts and triubunals that are not based on law and cannot
be justified on objective and reasonable grounds. …”
[5] Ibid., paras. 10 & 13
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Afghan Elections 2009 (Kandahar) / Élections afghanes 2009 (Kandahar) by Canada in Afghanistan / Canada en Afghanistan is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 Generic License.
