Article 21 of the Universal Declaration of
Human Rights states, “The will of the people shall be the basis of the
authority of government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage…” Thus, the most
important question when analyzing a state’s democratic system under
international law is whether it affords universal and equal opportunity to
participate in the electoral process for all qualified voters. This is a broad
mandate that all nations should aspire to but few fully meet in reality, including
those under review here.[i]
Many other international and regional legal
documents, in particular the International Covenant on Civil and Political
Rights (ICCPR), speak to the issue of voter identification in the electoral
process more specifically. These documents can aid in judging the degree of
countries’ compliance with international norms.
As referenced in the introduction, there
are six basic standards that countries must meet in order to fully comply with
the most relevant international instruments: (1) any conditions
which apply to the process should be based on objective and reasonable
criteria, and only reasonable restrictions may be established; (2) obstacles to
registration should not be imposed; (3) there can be no discrimination in the
law or the process with respect to a number of identified groups including
ethnic and racial minorities; (4) there should be no “abusive interference” in
the process; (5) governments must take measures to ensure
that displaced persons can replace lost or destroyed documentation that proves
their citizenship; and (6) states must take active measures to ensure that
citizens are able to vote and to facilitate the process of registration,
including the identification process.
Most countries are bound to fail at least
one of these criteria. However, a few stand out as seeming from this research
to by and large meet the standards, most typically because they put substantial
resources into ensuring citizens have documentation or given the conditions of
the country they have established a scheme that provides sufficient flexibility
to be inclusive without incurring any evident significant fraud.
a. Reasonable and Objective
Criteria
In the context of voter identification
rules, reasonableness must be a balancing test between the need to prevent
noncitizens from voting and double voting and the like with ensuring universal
suffrage. In most countries the level of
fraud and the ways in which fraud are being perpetrated are murky. Moreover, it is often the case that the term
fraud is over-inclusive so as to encompass acts of incompetence or negligence.[ii] As voter registration
systems become more automated and digital, such problems will decline. In many
countries the fraud is more commonly in the nature of illegal acts committed by
election officials (e.g. ballot box stuffing), politicians abusing the voting
system (e.g. vote buying), and by incumbent governments sidelining the
opposition through a variety of means.
This must be considered when analyzing whether an ID regime is
reasonable and based on objective data.
Reasonableness must also be assessed
according to whether the citizens of a country appear to have few or no
problems meeting the identification requirements. In other words, a country’s
laws and practices would be considered reasonable if they are working in the
interests of its population given the particular political and historic
background and cultural environment of that country.
Flexibility in the system used in many
African countries usually helped these countries to meet the reasonableness
standard as assessed by whether citizens can meet the demands. These more
flexible regimes also are based on objective criteria: they take into account
the lack of documentation among the population and try to facilitate the
participation of a maximum number of citizens. To the extent that people in countries like
Cameroon or Kenya are unable to obtain the single identification card required
to register to vote, and this has not been demonstrably proven to be the best
or only means to address electoral fraud (an unknown), the laws cannot be
judged reasonable or based on the reality of the country’s capacity or
environment.
Most countries in Latin America require a
national identity card. In many countries this requirement is arguably not a reasonable restriction on
rights because not all citizens have access to that card or the state is not
able to competently disseminate such a document. However, there are countries
under review here that have such a requirement and are able to meet the
standard because they have invested significant resources in order to make the
system work. They have been able to achieve high levels of inclusivity by
ensuring an overwhelming majority of the country has true access to the
necessary documents.
b. Obstacles
A
prohibition on erecting obstacles to participation through a voter
identification system must include not only those occasions when governments
may purposefully try to erect unfair and unnecessary obstacles, but also those
instances when the lack of competence or capacity is so egregious that the
state disenfranchises citizens by making it impossible for them to acquire the
identification required to vote. Interpreted in this way, a majority of the
countries included in this study struggle to meet the test.
Charging
a fee for any aspect of obtaining identification can be considered an obstacle
to participation. Other examples would include major delays or complete
failures in delivering identity documents, erecting complex systems for
obtaining the identification—such as requiring repeated in-person visits or
multiple secondary documents, or a lack of clarity regarding the requirements.
Many of the countries included here have experienced these types of problems to
the detriment of their citizens’ right to vote and the fairness of their
electoral systems.
c. Discrimination
International
law does not allow discrimination in any aspect of the voting process,
including in the process of proving one’s identity. In Africa and Latin
America, while most of the laws regulating voter identification and
registration are not blatantly discriminatory, there is pervasive de facto
discrimination, most particularly against ethnic minorities and the poor.
Throughout Latin America in particular the system discriminates against
indigenous peoples who often live in more remote regions, do not have birth
certificates, and may speak a minority language. Requiring a national ID card
in countries where no serious attempt is made to provide such communities with
birth certificates and/or other identity documents or to send mobile units to
register and document these groups, would appear to violate the mandate against
discrimination in the voting process.
Charging
a fee for any part of the process—directly or indirectly—is also
discriminatory. While the direct fees can seem insignificant, in some instances
they represent a sizeable percentage of a poor person’s income. Indirect fees,
such as requiring people to travel long distances to apply for and obtain
identification documents are also relevant.
d. Internally Displaced Persons
Internally
displaced persons who lack necessary identification documents are a major
concern on both continents and countries have undertaken various efforts to
address it. Several countries under review have not undertaken the
necessary measures and are not complying with this requirement.
The
Democratic Republic of Congo has been singled out as implementing a process
that made it impossible for Internally Displaced People (IDPs) to get
replacement documentation. In Guatemala, up to one million citizens were
displaced by the conflict and many of these citizens still are without
necessary documentation. On the other hand, Peru actively assists people
displaced during its conflict to obtain the documents that they need to
participate in the electoral process.
e. Interference
The
most obvious form of abusive interference in the process of identification is
when governments manipulate that process for political purposes and deny
documentation to certain groups and not others. There have been allegations of
this in a handful of countries, and found fairly definitive evidence of it in
Nicaragua. In Nicaragua the ruling party controls the distribution of
identification documents and has been known to refuse such documents to
citizens believed to be supporters of the opposition.[iii] Such actions clearly violate
an international standard prohibiting interference or intimidation in the
voting process.
In
a couple of countries there have also been concerns about village or tribal
leaders having too much power over the registration process, especially in
places like Zanzibar and The Gambia. Village or tribal leaders there are
perceived as gatekeepers to the process possessing too much arbitrary
discretion. Such influence also potentially constitutes a transgression of the
principle of non-interference.
f. Active State Engagement
Some
of the countries appear to make an effort to undertake registration campaigns
that include providing citizens with documentation and conducting voter
education on the identification requirements. For example, reports indicate
that in its most recent registration exercise, Ghana made quite extensive
efforts to promote and ensure participation. Panama has been very strong in
ensuring widespread documentation, and has also publicized the voters’ list in
a wide variety of venues and informed people of the need to check this list.
Mexico also does a great deal to ensure that people at least have the
opportunity to obtain an ID card and register through its use of campaigns,
including birth registration awareness campaigns, and mobile offices. Venezuela
has made efforts through mobile units and, as indicated, Peru has taken major
strides to expand the reach of its registration and identification services.
[i]
NEEDS and European Commission, Compendium of International Standards for
Elections, 2007, p. 12.
[ii] See Chad Vickery and Erica Shein, Assessing Electoral Fraud in New Democracies: Refining the Vocabulary, IFES,
May 2012.
[iii] EU Election Observation
Mission, Nicaragua 2011, Final Report on the General Elections and
Parliamentary Elections, p. 6, 16.
