Introduction
A breach of public trust that results from illegal acts subverts the electoral process. Enforcing the legal framework of elections is essential in order to maintain electoral integrity. Even the best legislation can be thwarted or negated without sufficient enforcement,
Enforcement is a deterrent to fraud and a safeguard against problems that threaten electoral integrity. Dishonest or fraudulent practices are not the only source of integrity problems. Problems may also result from human error or unintentional omissions. Even when there is no ill intent, these mistakes should be subject to appropriate corrective measures. Different institutions and mechanisms may be responsible for enforcing election integrity and legislation, as specified by the legal framework each country.
In some systems, enforcement agencies have complete institutional independence. Others work under a common institutional umbrella with the electoral policy-making or management bodies. Generally speaking, effective enforcement involves:
International Baseline
Since civil and political (including electoral) rights are within the scope of the ICCPR (Article 25), other provisions of the Convention apply, especially Article 2.3 (right to an effective remedy). With respect to enforcement proceedings of all kinds, however, it is necessary also to have due regard for Article 14.1[1]
The latter provision has received an authoritative interpretation[2] which is highly relevant to the resolution of election cases. First, it is important to realize that the protections in Article 14 do not apply only in criminal proceedings, “but must be respected whenever domestic law entrusts a judicial body with a judicial task.”[3] Second, the rights of individuals subject to adjudication cannot be frustrated by law or in fact, nor avoided by the specific character of the tribunal in question.[4] Third, the right to equality before tribunals also requires “equality of arms”, and that the proceeding not be substantively nor procedurally unbalanced; for the same reason, legal representation may be necessary to substantiate that right.[5] Finally, the requirements of Article 14.1 are that all persons subject to legal (including by whatever name called: administrative, civil or criminal) are entitled to a “fair and public hearing by a competent, independent and impartial tribunal”.[6]
The general right described above also involves several other elements.[7] These include:
Discussion
Many studies and commentators point out that, to be effective, enforcement must be active, impartial and timely. Investigative agencies and their investigators should have enough independence to examine allegations of election fraud or other illegal activities, and to initiate legal proceedings. Investigators should be objective, professional, and shielded from any political interference with their work.
Integrity also means protecting the rights of whistle-blowers, witnesses and the accused. Defendants should have access to legal representation and to the information that has been gathered against them. They must also be able to present an adequate defence. These protections are discussed in the sections on Rights of the Accused and Rights of Individuals in Investigations.
Prosecutors are usually government employees or elected officials, who may be sensitive to public opinion and the politics involved in the problem being investigated. Prosecutors may have discretion to determine whether the evidence warrants a prosecution and, if so, who will be prosecuted. The exercise of such discretion in a subjective or unconstrained manner, however, may negatively affect electoral integrity. Courts and (where applicable) juries determine guilt or innocence and should be impartial. An objective judgment is based on factual evidence and the legal context, not on political affiliation, discrimination or unsubstantiated rumour. An independent judiciary is required for a criminal proceeding to be fair.
The enforcement process may be subject to internal and external pressure and difficulties. A transparent system with checks and balances can protect the integrity of enforcement activities. These issues are discussed in the sections on Monitoring of Enforcement and Investigating in Difficult Circumstances.
[1] ICCPR, Article 14.1: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre publique) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice, but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”
[2] UN Human Rights committee, General Comment No. 32, Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial, 23 August 2007, U.N. Doc. CCPR/C/GC/32
[3] Ibid., para. 7
[4] Ibid., para. 8: “ … A situation in which an individual’s attempts to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter the uarantee of article 14, paragraph 1, first sentence. This guarantee also prohibits any distinctions regarding access to courts and triubunals that are not based on law and cannot be justified on objective and reasonable grounds. …”
[5] Ibid., paras. 10 & 13
[6] Ibid., Part III
[7] Ibid.
Afghan Elections 2009 (Kandahar) / Élections afghanes 2009 (Kandahar) by Canada in Afghanistan / Canada en Afghanistan is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.0 Generic License.
