Abuse of Office
Many electoral laws contain provisions against
abuse of their position by office-holders during an election period. The concept of abuse of official position
refers to the use of office and related powers and privileges to advance the
electoral interests of a particular candidate or party (typically, the
office-holder or his/her party), or to disadvantage opposing parties or
candidates. Typically, such abuses of office involve:
- Mixing official business
and electoral campaigning, including by campaigning during officially-funded
trips or using official facilities for campaign purposes;
- Misusing other advantages
of incumbency, such as official transportation and resources, for political
purposes. This category overlaps with
the concept of misuse of administrative resources, discussed separately below,
but is of a more general nature;
- Channeling State funds to
projects and programs in electoral districts before or during the election
campaign, in an attempt to influence voters there;
- Engaging in campaign-style
travel within the area in which an election is being conducted, showing a
higher-than-usual level of “official” interest and/or commencing or
commissioning new public facilities to serve voters there; and/or
- Conducting official
business, including granting or denying approvals or requests, in an unbalanced
and politically biased manner.
The nature of the violation of abusing political
position makes it difficult to prove.
Office-holders, particularly senior officials, have many powers,
privileges and resources, and considerable discretion in terms of how they
apply them. Senior officials are often
required by law or regulation to travel only with official transportation and
security, and their high profile often brings considerable public attention,
including from the media. Such officials
do little to prevent confusion of their public and political roles by the press
and voters. Nevertheless the concept
seems important to preserve, and to reflect in law, since it is at the center
of the problem of campaign abuse by officials at all levels.
Armenia Parliamentary Elections,
2007
At the time of the 2007
parliamentary elections, the Armenian Electoral Code prohibited certain forms
of campaigning,[1] including various
activities by State officials and civil servants,[2] or utilizing State
resources. Among the prohibited
activities by officials were:
Campaigning in the course of performing official duties, or abuse of
official position to gain electoral advantage; using State premises or other
resources on any basis other than generally available to candidacies, except
security protection provided under law for high-level officials; and/or special
media coverage except for official and certain other activities.[3]
The interaction of these
prohibitions made them difficult to apply them in cases in which senior
officials combine official and campaign activities while receiving State
protection and other support. The press
repeatedly failed to distinguish between campaigning and official functions by
candidates. This was particularly true
during combined official and campaign trips around the country by the then
Prime Minister (later President).[4]
Georgia Parliamentary Elections,
2008
Under an amendment to the Unified Electoral Code, public officials were
prevented from organizing their subordinates to participate in the campaign,
gathering signatures or conducting campaign agitation during official trips,
and campaigning during the conduct of their official duties.[5] Officials in “political” positions, however,
could engage in the latter activity (and activities involving complementary
media programming) regardless.[6]
Misuse of Administrative Resources
While the violation of “abuse of office” is
difficult to apply, even the seemingly more concrete issue of misuse of
administrative resources by State and local officials is difficult to control
through law and regulations. The general
elements of this violation can be viewed to involve:
- Use of official funds,
facilities, equipment, services or supplies;
- By those who have official
access to them;
- And which are not equally
available to others; or
- Which are not made
available to other campaigns on an open and equal basis;
- For campaign purposes, or
to provide support or assistance to a campaign; and
- Without reimbursement of
the full costs of such resources.
In Georgia for the
parliamentary elections, 2008, the UEC provisions on abuse of office/misuse of
administrative resources were extensively reworked. The UEC article (previous Article 76),[7] prohibiting candidates or
others from abusing official positions for campaigning, was eliminated – in favor
of focusing on misuse of State administrative resources and activities of
public officials – by adoption of two new articles.[8]
The amendments (Election Code Articles 76-761) largely
eliminated the issue of abuse of position by public officials in favour of
focusing on misuse of State resources. Under the amendments, such resources can
be used, provided only that they are available to all. But (as ODIHR pointed out) the election law
should also have prohibited direct or indirect use of other types of administrative
resources – financial, material, technical and human – for campaign purposes by
election subjects, public officials and other campaigners on a privileged
basis. (With respect to facilities made available for campaign activities,
electoral subjects had equal rights of use; but campaigners had no access to
the equipment and services within government offices.)
With respect to transportation, furthermore, public officials were free
to use official vehicles, subject only to reimbursement for fuel; and the
restriction on official transportation did not apply to “political” officials.[9]
The amendments, however, did introduce a range of penalties for violations,
including administrative fines, de-registration of a candidate/list (subject to
approval by court) and other sanctions (including disqualification from future
elections).
There could well be benefit in changing the focus in this area from
general principles to specific instances, since that may encourage more
effective prevention and dispute resolution. On the other hand, limiting the
scope of these provisions to more specific items would only have been effective
of those items had been carefully defined, adequate to the task and subject to
effective enforcement.
While linked with specific applications (such as use of buildings, means
of communication and transportation), the Georgian
amendments concerning use of State resources by those with access to them were
ostensibly founded upon the principle of equal opportunity (including equal
conditions).[10] Yet, for example, civil servants who use
official vehicles for campaign purposes would be required only to reimburse for
fuel expenses,[11] which is inadequate to
place them into the same position as those who do not have access to such
vehicles at all.
Additional details were also supplied in the UEC concerning sanctions
for misuse of administrative resources.[12] According to international observers,
however, this reform was counter-productive, since (see above) it enabled
officials to utilize office spaces, facilities and other resources not
generally available to the public, and because the scope of the permissive
provision concerning “political” officials was unclear.[13]
[1]
Armenian Electoral Code (2007), Sections 4, 7 & 8.
[2]
Hereinafter collectively referred to as “officials”
[3] Id., Article 221 (see previous
footnote)
[4]
OSCE/ODIHR, EOM Final Report,
Armenia
Parliamentary Elections, 2007
[5]
Georgian Unified Election Code (September 2008), Article 761 (new),
section 1
[7] “Prohibition
on Use of Official Position During Election Agitation and Campaign”
[8] Id., Articles 76, “Prohibition of usage of
administrative resources during the election campaign”, and 761,
“Canceling of utilization of position or working status in pre-election
agitation and campaign”
[10]
Article 76.1 (as amended)
[12]
A new article empowered the CEC to impose administrative penalties for campaign
violations concerning actions by officials.[12]
For each violation, the CEC could impose a fine as well as other penalties –
including de-registration of an offending candidate or withdrawal of the
candidate’s right to participate in future elections (both subject to judicial
approval). Id., Sec. 2. The ability to
impose a lesser penalty through administrative proceedings could cause this
type of action to be taken more often than the previously-available but extreme
measure of de-registration.
[13] See
OSCE/ODIHR EOM Final Report,
Georgia
Parliamentary Elections, 2008, pp. 5-6.
