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]