There are many types of
investigations. The media often undertake their own investigations when
reporting on allegations of voting fraud or other electoral problems. NGOs and
national election observers may also investigate problems that they encounter
and gather evidence. They then publicize the problem or give the evidence
to a government prosecutor.
Citizen groups and the media
can play an effective role in ensuring that integrity issues are unofficially
investigated if lack of political will or resources prevents the holding of an
official investigation. In countries where such unofficial investigations take
place, the law would generally include rules to protect the rights and privacy
of individuals, and to prevent interference with official investigations.
Official
Investigations
Each country has its own
system for investigating complaints about electoral violations. The details of
the system are usually set out in legislation and regulations, which mandate a
specific agency or agencies to handle these issues.
In some systems, the official
investigative mechanism is the police, working with the electoral management
body or an oversight agency. In other systems, investigation is the
responsibility of the electoral management body or a specific office within that
body—for instance, the Commissioner of Canada Elections in Canada.
In federal systems, the
investigative body that will handle a case may be decided by which law has been
broken. For example, in the United States
there is an office within the Department of Justice for federal election crimes,
but individual states handle violations of state law. The national-level
Federal Elections Commission investigates violations of campaign financing
legislation, although few cases are addressed in this manner.
An official investigation
seeks to determine whether an infraction or crime has been committed, uncover
the relevant facts and consider whether the facts indicate who is responsible.
If the investigation leads to a reasonable assumption of guilt, the information
must be handed to the enforcement agency. The relevant official (prosecutor in
criminal cases) usually determines whether the evidence warrants further
action, and who should be charged with what crime or violation.
However, in many cases
a determination of who is responsible may not be possible or even relevant to
the outcome of an investigation of an administrative (rather than criminal)
nature. This is true, for example, when an EMB investigates complaints of fraud
or other irregularities. Its main and most urgent aim will be to establish if
any irregularities indeed occurred and then to correct or eliminate their
impact on the election results. The question as to who committed the
irregularity may then be a secondary matter, or one that can be addressed
without the urgency required of releasing credible election results.
Investigating
with Integrity
Election-related
investigations must be held to the same high standards of integrity that
are expected of electoral administrators and participants. In general, maintaining integrity in an investigation requires:
- Independence. An investigation must
be objective and impartial. This is difficult when political pressure is
placed on investigators to arrive at a certain outcome. It is easier to
maintain objectivity if the investigative agency is not dependent on
another agency for direction, resources or personnel.
- Neutrality. The investigative
agency should be neutral, as should its investigators. Neutrality may be
easier to maintain if the agency is politically independent, and if staff
members are public service employees rather than political appointees.
Neutrality can also be promoted by requiring individual investigators to
disclose potential conflicts of interest in cases under investigation and
by ensuring that they do not participate in investigating those cases.
- Jurisdiction. An investigative
agency’s jurisdiction over a particular case is determined primarily by
which laws have been broken. This can especially be an issue in a federal
system where elections may be held, sometimes concurrently, in national,
regional and local jurisdictions.
- Qualified investigators. Investigators should be
professionals who know how to investigate and gather evidence that will be
protected and admissible in administrative proceedings or in court, and
how to protect the rights of witnesses. Otherwise the investigation could
be inadequate or the integrity of the investigation could be compromised.
- Effective procedures. The integrity problems
discussed in this section can be prevented through development of
effective operating procedures for investigation and information
collection, with the aim of protecting/analyzing evidence and safeguarding
the rights of witnesses and suspects.
- Respect for the political
and civil rights of witnesses and suspects.
The ICCPR is the international legal baseline for the protection of
civil and political as well as more general human rights. With reference to the rights of persons
involved in adjudicatory proceedings, the relevant comments of the UN
Human Rights Committee should be taken into account.[1]
- Timing. The timing of an investigation
may have a significant impact on its integrity. If it is initiated in the
middle of an election campaign, the investigation may be used as political
ammunition by some candidates.
Not proceeding when an investigation is warranted, however, could undermine
the integrity of the process. On balance, it may be said that an investigation
should be undertaken promptly enough so that evidence and witnesses are still
available, but without disturbing the electoral process.
- Voter Fraud. Voter fraud investigations should be
handled especially carefully, so as not to deter voters from exercising
their right to vote freely.[2]
[1] UNHRC,
General Comment No. 32, op. cit.
[2] The Federal Crime of Election Fraud,” Proceedings of the Third Annual Trilateral Conference on Electoral Systems, IFES, May 8–10, 1996, p. 9. “Most voting fraud investigations require that
individual voters be interviewed concerning the circumstances under which they
voted or didn’t vote. … Such interviews should generally not be conducted
immediately prior to an election or while voting is taking place. This is
because having federal agents interview citizens about the circumstances under
which they voted (or did not vote) can easily ‘chill’ lawful voting activity by
the interviewees, as well as voters similarly situated. This is not an
appropriate result.” Donsanto, Craig.
