Investigating electoral
corruption is not easy. Cases may be highly politicized and may implicate
well-known politicians and sometimes investigation may be dangerous. Access to
witnesses and suspects may be difficult, some documents may disappear or the
investigation must focus on a high-ranking official or other powerful figure.
Difficulties vary with each
country’s social and political context but they usually include political
interference, physical safety threats, or lack of adequate legal and judicial
infrastructure.
Political
Interference
Investigations into electoral
fraud may implicate very powerful individuals who seek protection through
political interference. This may take the form of threats against investigators
or prosecutors to dissuade them from pursuing their investigations. Threats
include transferring investigators or prosecutors to another post; denying them
professional advancement or even dismissing them from their jobs; transferring
the investigation to another body; reducing government resources provided to
the agency conducting the investigation or prosecution; and pressuring other
agencies not to cooperate with the investigator or prosecutor.
Proper monitoring of
enforcement and a transparent enforcement process can help minimize the risk of
political interference.
Lack
of Legal and Judicial Infrastructure
Countries undergoing
transition may not have the legal and judicial infrastructure required to
support an investigation of political corruption. There may be legislative
gaps so investigators or prosecutors cannot demonstrate that a law has been
broken even though it is evident that misconduct has occurred. They may not
have the means to conduct a proper investigation because of lack of personnel,
resources or institutional capabilities. The penal system may not be able to keep
the suspect in custody until trial. The court system might be incapable of
ensuring an expeditious and impartial trial.
For instance, in the 1998 Cambodian elections, the National
Elections Committee was unsuccessful in its efforts to deal with violence and
election law violations. Cases were referred to government authorities but not one was ever prosecuted because the Committee had no law enforcement powers.
This was not surprising given the weak legal system, which had previously
proven unable to handle human rights cases effectively.[1]
Building an effective national
judicial system and the accompanying infrastructure is a long-term process.
Electoral authorities can start by seeing to it that their electoral and
related legislation establish a sound basis for free, fair and competitive
elections. In particular, the laws
should contain adequate provisions for enforcement. In some countries in
transition, where there is no history of an independent judiciary, the only way
to compensate for gaps in the legal system may be by establishing an electoral
commission with wide-ranging powers of the type normally exercised by judicial
institutions.
Culture
of Impunity
A culture of impunity may hold
sway in countries that are in transition or emerging from violent conflict.
Such a culture takes root particularly when the law enforcement system is weak
or inoperative, when people lacking power or influence are arrested and charged
while the rich, powerful and well-connected go free, and when officials have broad
legal immunity.
A culture of impunity breeds
corruption and unethical practices. Failure to enforce legislation weakens the
integrity of the system and the rule of law. Breaking this cycle is extremely
difficult; it requires a determined from civil society and strong political
will.
Personal
Safety
In a culture of impunity
without a strong judicial system, honest investigators enquiring into
corruption and criminal activities may become targets for retribution,
intimidation or even violence. Protecting investigators requires not only the
support of civil society, but international attention as well.[2]
Safety mechanisms, such as UN-sponsored international human rights observer
missions, may offer temporary support, but real change ultimately has to come
from within.
[1] Neou, Kassie and Gallup, Jeffrey C., “Conducting
Cambodia’s Elections,” Journal of Democracy, 10(2), 1999, p. 157
[2] See,
e.g., U.N. General Assembly, “Declaration on the Right and Responsibility of
Individuals, Groups and Organs of society to Promote and Protect Universally
Recognized Human rights and Fundamental Freedoms, UNGA Res. 53/144 (8 March
1999), UN Doc. A/RES/53/144; this resolution formally adopted the aforesaid
Declaration, which is commonly referred to as “The Declaration on human rights defenders”.
