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.
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.
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.
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.
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.
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.
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.
