The right to be elected is, “clearly established in
international law. However, these rights are subject to reasonable
restrictions.”[i] In turn, the
obligation of the legal framework is to, “ensure that all eligible citizens are guaranteed the right to universal
and equal suffrage as well as the right to contest elections without any
discrimination.”[ii] However, it is key to understand the word “eligible”
in this context because just as international law and legal frameworks
guarantee such inviolable rights, it remains permissible to apply reasonable
limits with respect to candidate qualifications just as is the case with regard
to voter qualifications. The reverse
remains true as well; that it remains unacceptable to apply discriminatory and
unreasonable limits on such basic human rights.
Inclusiveness is a key principle when
considering the qualifications and nomination of candidates. Failure to apply
the principle of inclusiveness results not only in the abridgement of the
rights of those wanting to stand for election but also the choice of candidates
presented to voters.[iii]
The eligibility requirements for candidates are not always
the same as the eligibility requirements for voters. Although the right to
stand for election has historically evolved in line with the right to vote,
there are some differences that make the first subject to more restrictions.
Consequently, eligible voters are not always eligible to stand for election.
In the same sense, those willing to stand for elections do not necessarily
manage to be amongst the final nominated candidates.
As a starting point, it can be stated that according to
the democratic principles, the eligibility criteria for candidates include at
least the same criteria required to be a voter: citizenship, adulthood and full
possession of civil and political rights. Any further requirement for candidacy
must be explicitly mentioned in the Constitution or in the law and sufficiently
justified by constitutional principles that permit the limitation of
fundamental rights of certain categories of citizens.
Most systems establish special candidacy requirements or set up certain
restrictions due to various reasons:
- In certain cases,
the aim is to ensure the neutrality of people in key positions of the
electoral process by establishing incompatibilities with being a candidate
(such as for the king, judges, members of the armed forces, etc.).
- Others establish
special requirements in order to ensure the maturity of candidates (an age
greater than that required to vote).
- Others aim to ensure that candidates are
part of the community, requiring for instance, that they have fulfilled
their military service obligations, they possess the citizenship of the
country concerned or they reside for a certain period of time in the
geographic constituency concerned.
- Others exclude for
similar reasons those convicted of serious crimes or specific offences.
- In other cases, the
restrictions aim to protect community interests, providing for the
disqualification of candidates whose economic relations with public
entities could result in conflict of interests.
- Certain restrictions
have their roots in the social or political history of each country: this
is the case of the exclusion of preachers of certain religions that
exercise influence in certain countries.
- There are other
formal requirements, such as the requirement to register by a set deadline with the
competent election authorities.
- In addition,
candidates may be required to have a certain level of education or a
particular profession.
Finally, in systems where political parties have
the monopoly on the nomination of candidates, candidates must be nominated by a
political party.Unreasonable
and discriminatory restrictions on the right to stand for office are, however,
not permissible. For example, there may
be no discrimination of an otherwise qualified citizen to contest an elections,
“on the basis of race, colour, sex, language, religion, political or other opinion,
association with a national minority, property, birth or other status.”[iv]
In the view of the HRC in Bwalya v. Zambia, single party electoral
systems are also to be added to the list of unreasonable restrictions.[v]
[i] DRI and The Carter Center, Strengthening International Law, 8.
[ii] International IDEA, International Electoral Standards, 33.
[iii] Patrick Merloe, Promoting Legal Frameworks for Democratic
Elections, 12.
[iv] International IDEA, International Electoral Standards, 34.
[v] DRI and The Carter Center, Strengthening International Law, 31.
