The electoral legal framework is composed of the constitutional provisions, legislation, rules, regulations and procedures that govern the electoral system design, the formation of electoral institutions and bodies, and the implementation of electoral activities. An inclusive, fair, concise and uncontested legal and institutional framework is an important foundation for successful and peaceful elections. In addition to electoral legislation and institutions, responsibilities, rules of engagement and coordination between the security sector agencies (SSAs) should also be detailed in the rules that govern their electoral engagement. Following the analysis and evaluation of the previous electoral cycle, an electoral management body (EMB) and SSAs should initiate legal and institutional reforms to address identified weaknesses, and where needed collaborate with other stakeholders. Other state and non-state actors may play an important role in the facilitation of public discussion and national consensus on the legislative and institutional framework.

A. Improved electoral management and justice

Reform of the legal and institutional electoral framework should draw on the evaluation of previous electoral processes. Such evaluation is conducted in the post-election period to identify disputed, deficient or ambiguous legal provisions and acts which have had a negative impact on the conduct of the previous electoral processes. The reform, among other things, needs to take into consideration (a) the appropriateness of the electoral system; (b) the credibility of the EMBs; (c) the effectiveness of the electoral dispute resolution mechanisms; (d) the integrity of processes for the registration of voters, political parties and candidates; (e) the quality of the legislation that regulates the roles and responsibilities of political parties; (f) the existence of mechanisms for the replacement of elected representatives; (g) the existence of mechanisms for information exchange with security sector and other relevant agencies and citizens’ groups; and so on. Electoral management bodies are in a good position to initiate, advise on and influence these changes.

• Advise political stakeholders about an appropriate electoral system that takes into consideration the advantages and disadvantages of different design options
  
  The specific choices in the electoral system may affect participation, representation, the stability of government, the accountability of elected officials, the complexity of electoral processes, and political pluralism.^[1] In particular, provisions relating to the formula for translating votes into seats, district magnitude, the votes-to-seat ratio, and boundary delimitation require careful consideration. An EMB is well positioned to advise legislators about the practical implications of different electoral systems in a given national and electoral context. In conflict-prone societies, an analysis may focus on the potential of a specific electoral system design to exacerbate or mitigate social conflict and electoral violence, including how gender-based violence can affect the participation of women in electoral processes and their representation in elective positions. At the very basic level, the legal framework should ensure that elections are a level playing field for all electoral actors. 

Gender and minority quotas are introduced in Nepal to defuse tension in 2007. Political and social exclusion is one of the main roots of conflict in Nepal.^[2] Gender and minority representation was therefore an integral part of the electoral law reform preceding the 2007 Constituent Assembly of Nepal. The electoral system design introduced quotas for women, securing them 33 per cent of seats, as well as for marginalized and oppressed groups and indigenous tribes, based on their representation in the population.^[3]

• Advise adoption of a legal framework which will allow for the establishment of credible electoral management bodies
  
  Careful consideration needs to be given to what type of EMB will perform best in a given country context and what will contribute to its credibility. Three major organizational modalities exist: independent, governmental and mixed.^[4] The legal framework should establish the fundamental principles that will ensure the credibility of the EMBs. These principles include independence, impartiality, integrity, transparency, efficiency, professionalism and service-mindedness.^[5] An EMB should advise the legislator about legal reforms needed to improve an EMB’s capacity to organize credible elections. A balanced composition, for example, geographical, ethnic, gender, linguistic, religious and other, will increase the credibility of an EMB.

Reform of the Indonesian National Election Commission in 1999 builds trust in democratic processes. ‘To indicate a breakaway from an old election system which allowed manipulation with electoral processes and massive election fraud in the past’, a new electoral law was adopted in early 1999. This led to the establishment of an independent National Election Commission (NEC). To promote trust, the Commission was composed of representatives from each of the competing 48 political parties and five government-appointed officials. In 1999, the NEC delivered the first open and competitive election since 1955. During the elections, approximately 100 million Indonesians cast their ballot.^[6]

• Establish trusted and efficient electoral dispute resolution mechanisms and introduce mechanisms to sanction perpetrators of electoral offences 

The legal framework for electoral dispute resolution should ensure that electoral actions, procedures and decisions throughout the electoral cycle are in conformity with the law and based on the right to an effective remedy.^[7] Electoral dispute resolution mechanisms can take on four separate types of challenge: (a) administrative, (b) judicial, (c) legislative and (d) international. The type of challenge will typically dictate which institution will be responsible for hearing and resolving the dispute concerned. Administrative challenges, which are the most common type of challenge, are addressed and usually resolved by the EMBs. Contested EMB decisions can be revisited either by the same organ or by a higher-ranking organ such as a constitutional court.^[8] This system is widespread. Judicial challenges are addressed to judicial bodies, which may be regular or administrative courts, a constitutional court or special electoral courts as defined by law. Legislative challenges systems allow legislative bodies or other defined political assemblies to resolve electoral disputes.^[9] ‘The international means for bringing electoral challenges are those legal instruments provided for in international treaties and conventions (for example the European Court of Human Rights or the Inter-American Court of Human Rights) after exhausting the domestic remedies provided.’^[10] Well-functioning electoral dispute resolution mechanisms have an inherent potential to prevent violence. The legal framework should therefore be simple, clear and consistent, making it easily understandable and ensuring complete and effective access to the system for resolving electoral disputes. Because the electoral process cannot be halted if a challenge is introduced, the timeliness of challenge submission and dispute resolution mechanisms is essential if the credibility of the electoral process is not to be affected.^[11]

Where individuals and groups feel they have impunity from prosecution they may be tempted to engage in electoral fraud or perpetrate acts of election-related violence to achieve political gains. When this is a risk, an EMB should get a mandate to investigate, prosecute and sanction perpetrators of electoral offences independently or in collaboration with other relevant agencies.

Improvement of the electoral dispute resolution system in Bhutan, 2008. After the 2008 parliamentary election, which saw some political violence,^[12] the EMB conducted a self-assessment of its electoral dispute resolution mechanisms. Based on the analysis of electoral complaints lodged during the 2008 elections, the Electoral Commission improved the rules and procedures for the submission of electoral challenges. It was noted that in some instances dealing with less severe complaints at the district level enhanced the effectiveness of electoral dispute resolution as disputes would be resolved faster and the central body could receive fewer complaints. Consequently, the electoral dispute resolution system became more effective and transparent.^[13]

The EMB sets up an Investigation and Prosecution Department in Kenya, 2012–2013. A sense of impunity among political and electoral officials is seen as an important factor that contributed to the violent outcomes of the 2007 Kenyan presidential elections. Ahead of the 2013 general election, the Independent Electoral and Boundaries Commission (IEBC) started building its capacity to investigate and prosecute election offences by setting up an Investigation and Prosecution Department. Neither the preceding Election Commission of Kenya (2002–2008) nor the Interim Independent Election Commission (2008–2011) had this mandate. The November 2011 Election Act gave the IEBC the mechanisms to settle electoral disputes, prosecute any offences defined under the Election Act, and impose sanctions against electoral offenders.^[14]

• Design legal provisions which facilitate credible processes for the registration of voters, political parties and candidates

The legal framework for voter registration should establish legal clarity and be conflict-sensitive in order to generate preventive potential.^[15] Laws regulating voter registration must ensure that there are no disfranchised categories. It is of the greatest importance, especially in conflict-prone societies, that no ethnic, religious or other social group feels disenfranchised or marginalized through boundary delimitation or other legal provision that may impact on their right to register for voting. The procedural criteria for political parties and candidates’ registration should be clear, reasonable and transparent.^[16] At the same time, they should not offer a pretext for banning parties.^[17] This legislation should be designed in a way which will enhance political pluralism, encourage reconciliation processes, and enhance gender equality and respect for human rights.

Registration of displaced persons and refugees during elections in Bosnia and Herzegovina, 1996–1997. The international community intervened to end the violent conflict in Bosnia and Herzegovina (1992–1995) and mediate the peace agreement. The peace agreement stipulated that the Organization for Security and Co-operation in Europe (OSCE) would be mandated to supervise implementation of the post-war elections. The Provisional Election Commission, working under the supervision of the OSCE, adopted rules and regulations which allowed displaced people and refugees to vote in their pre-war municipalities. This largely defused tensions among the displaced groups.^[18]

The Seychelles introduce a year-round voter registration and inspection of the electoral roll, 2015. The 2011 parliamentary elections in the Seychelles were boycotted by the main opposition party because the government had not met the demand to revise the electoral law. This situation created tensions. To address the lack of trust in the accuracy of the voter register, [19] the reform of the electoral law, which came into effect in May 2015, introduced a change in the process of voter registration. Under the amended law, voter registration is now active and conducted throughout the year, resuming only the day after the announcement of election results.[20] Apart from the introduction of the new temporal procedure, the legislation established the possibility for the inspection of the voter roll. The register is now accessible to the public in all district administration offices across the country as well as at the archives section at the National Library Building in the capital of Victoria. Moreover, each registered political party also receives a copy of the voter roll.

• Introduce regulations that define the roles and responsibilities of political parties in the electoral processes

The electoral legal framework should include provisions defining the roles and responsibilities of political parties in the electoral processes. In particular, the electoral legal framework should provide political parties with incentives to resolve political conflicts through institutional frameworks and in a democratic way.^[21] One widely-used mechanism for defusing the risk of an outbreak of election-related violence is political parties’ own codes of conduct (CoCs). These are defined as a set of rules of behaviour for political parties and their supporters relating to their participation in an election process.^[22] A distinction is drawn between those texts to which political parties subscribe voluntarily and those which are imposed either by law or by some other authority. CoCs may therefore be: (a) a part of the electoral law or a particular provision in the electoral law that prescribes the conduct of the parties; (b) agreed by political parties as an outcome of negotiations among themselves or as a result of negotiations moderated by a third party; (c) agreed by the parties, and then embodied in law; or (d) determined by a third party, such as an EMB. If codes of conduct are embedded in the legislative framework, they are more likely to be implemented and enforced. They can prevent and defuse tensions by prohibiting the use of hate speech and violent means during the campaign and by including commitments for parties losing the elections to have to accept the election results and work together to maintain peace in the post-election period, as well as other measures including those directed towards the prevention and elimination of gender-based violence. CoCs may further become powerful tools for building confidence, as well as creating and promoting relationships.^[23]

The process leading to the formulation of a CoC may be initiated, driven, and facilitated in cooperation with civil society representatives or negotiated in party liaison committees. However, there are a number of challenges in terms of implementation and enforcement of such codes, in particular when political parties use violence as a political instrument.^[24] Stakeholders’ public declarations and commitments to respect a CoC can reinforce implementation, particularly if they are made jointly. Institutionalized monitoring of the codes of conduct, as well as public and civil society pressure directed at parties which disregard them, may also facilitate implementation

An electoral legal framework is introduced to sanction parties and candidates linked with organized crime in Colombia, 2009. Organized crime has been largely responsible for election-related violence in Colombia for the last decade. This violence is linked to efforts by criminal actors to get hold of power over the local governments during local elections through their connections with the politicians.^[25] Since 2009, penalties have been introduced for those parties that support candidates with links to illegal armed groups or are facing charges for crimes against humanity and drug trafficking.^[26] Furthermore, political parties are not allowed to replace an elected member of parliament who has been convicted of crimes against humanity or links to illegal groups. The law concerning the filling of these vacant seats provides political parties with incentives to avoid nominating candidates with suspected links to illegal groups.^[27]

• Define collaborative mechanisms and information exchange with security sector and other relevant agencies and citizens’ groups

Cooperation with security sector agencies will help electoral management bodies to ensure that electoral security arrangements are put in place to protect electoral stakeholders, including election officials, facilities, events and materials. The establishment of collaborative mechanisms that facilitate information exchange and joint action will be beneficial to both electoral and security organizations. If collaboration structures and procedures are defined in the electoral legal framework, this will ensure that coordination is structured and not left to chance.

The Mexican EMB, the Instituto Federal Electoral (IFE)[28], established a formal mechanism for collaboration with security sector agencies ahead of the 2012 federal elections. As a result of the number of attacks on civil society by organized criminal organizations, which had caused uncertainty and fear ahead of the 2012 federal election, the IFE initiated formal cooperation with a number of Mexican agencies in order to protect the electoral process. These included the Federal Police, the Army, the Office of the Special Prosecutor for Electoral Crimes (FEPADE), the Federal Electoral Tribunal (TEPFJ), the Navy, the intelligence agency (CISEN), local governments, communications (TELMEX), and infrastructure agencies (water and electricity). Through an inter-agency collaborative process, the IFE reached a formal political agreement with the security sector agencies (SSAs) and other organizations on how to respond to the threat of election-related violence during the election period. Practical aspects included agreement on the exchange of risk data and analysis between the IFE and its partners during and after the 2012 federal elections. The formal information-sharing mechanism between the IFE and the SSAs contributed towards a positive environment between partners, enhanced inter-agency coordination and increased election security during the elections.

B. Improved electoral security

Security sector agencies are mandated to provide safety to electoral actors, events, materials and information throughout the electoral cycle. In doing this, SSAs may follow regular rules of engagement. However, practice shows that, due to the specific dynamics of political and social mobilization and conflicts during elections, the SSAs may benefit from specific legal provisions referring to their electoral duties. These provisions can define the responsibilities of different SSAs, rules of engagement when securing electoral actors, events and facilities, enforcement of sanctions, and forms of collaboration between different SSAs and other relevant actors during elections. In some instances, SSAs benefit from an EMB being mandated to direct their work when they are engaged in electoral processes.

• Advise adoption of a legal framework that assigns clear electoral security responsibilities to different security sector and government agencies

The legal framework that regulates the electoral responsibilities of SSAs should establish a clear division of responsibilities and define the specific role of the various security sector agencies during elections. The responsibilities relating to public safety during elections—the safety of electoral materials during transport and storage, safeguarding of electoral facilities, intelligence gathering, the prosecution of electoral crimes, logistical support and so on—may be assigned to different ministries and institutions including the police, the army, intelligence agencies, the public prosecutor’s office and so on. Legal clarity will enhance preparedness and collaboration between the different agencies and the establishment of collaboration with electoral management bodies.

An EMB provides guidelines for the engagement of security sector agencies in India, 2011. The Constitution of India has vested in the Election Commission of India (ECI) the superintendence, direction and control of the entire process for the conduct of elections to Parliament and the legislature of every state and to the offices of President and Vice-President of India.^[29] The ECI mandate includes coordination of the police forces’ engagement in and around elections. The ECI’s Compendium of Instructions presents guidelines and directives to the Indian Central Police Force as well as the state police. The ‘maintenance of law and order and deployment of security forces and home guard’ section, among other things, describes the need for a ‘number of measures over and above the purview of normal law and order arrangements, for augmenting the measures taken for peaceful, free and fair poll’.^[30]

• Define rules of engagement for security sector agencies during elections

The conventional routines for engagement of law enforcement agencies, usually found in ‘rules of engagement’ (RoE) or ‘use of force’ (UoF) frameworks, guide the conduct, rights and obligations of security sector personnel in certain circumstances. In some contexts, these frameworks may need to be reviewed ahead of elections to ensure that the engagement of law enforcement agencies does not interfere with democratic processes and practices. In particular, it is important to ensure that security forces are not ‘baited into actions that may later be politicized’.^[31] Specific rules of engagement for electoral security, based on professional standards, may also be developed.^[32]

Revision of police rules in the context of preparations for general elections in Sierra Leone in 2012. The death of six persons in separate incidents, involving the use of live ammunition by the Sierra Leone Police, created concerns relating to the potential misuse of force ahead of and during the 2012 general elections. To ensure that such incidents do not create challenges for the management of elections, the Sierra Leone Police, with support from the United Nations, undertook a review of its Rules of Engagement in parallel with the development of a strategy on governance mechanisms in the force ahead of the general election in November 2012.^[33]

• Define sanctions and enforcement mechanisms against perpetrators of electoral fraud and violence

Researchers point to the increased importance of sanctions and enforcement mechanisms directed against perpetrators of electoral violence. Höglund and Jarstad (2010) argue that ‘more attention needs to be directed at measures which can support the implementation of the legal framework. Without sanctions against those breaking the electoral law, including violence makers, a culture of impunity is upheld’.^[34] The report of the Global Commission on Elections, Democracy and Security (2012) finds that ‘electoral violence is more likely in a context in which institutions like the courts, the criminal justice system, the security forces, and the media are corrupt or too weak to carry out their roles in the face of violence and intimidation. To ensure long-term electoral security, there is no substitute for ending the impunity that often surrounds electoral violence’.^[35] This, however, requires meeting the rule-of-law challenges, and the development of ‘institutions, processes, and networks that deter election-related violence and, should deterrence fail, hold perpetrators accountable’.^[36]

• Formalize collaborative mechanisms for coordination and information exchange with electoral management bodies, other relevant agencies and political parties

Enhanced information exchange and coordination between security sector agencies and other electoral actors is required during elections. Practice shows that these collaborative mechanisms require flexibility and the commitment of the organizations involved. Given the mandate of SSAs to provide electoral security, they represent a key interlocutor to different stakeholders, including electoral management bodies, political parties, and other relevant agencies and citizens’ groups. In particular, the responsibilities of SSAs to collaborate with an EMB and other state agencies should be formalized within the relevant legal framework or through intra-institutional collaboration agreements. Collaboration will improve information exchange and allow holistic analysis and coordination of prevention and mitigation efforts.

The police formalize coordination with political parties ahead of general elections in Liberia in 2011. Although the 2005 general elections were categorized as violence-free, orderly and well managed, a few incidents of violence were recorded during the campaign phase. This was despite the fact that political parties committed themselves to abstain from violence and intimidation by signing a code of conduct.^[37] Ahead of the 2011 general elections, the Liberian National Police (LNP) and 11 political parties signed a memorandum of understanding (MoU) which regulates the conduct of political rallies with the aim of ensuring a peaceful environment during elections. The MoU provisions specify that (a) each political party was expected to submit at least two focal persons to work with the LNP during rallies, marches and campaigns, and (b) all marches would be monitored by LNP officers in a peaceful manner.^[38]

Prior to the 2016 elections, the Georgian Central Election Commission (CEC) initiated several coordination mechanisms to improve communication around electoral security. The CEC set up a coordination body with the police to discuss security threats, share information, and collaborate on the development of procedures. They also developed an electoral security training module to help train poll workers, law enforcement officials, and security personnel. Following the trainings, poll workers met with their local security counterparts to ensure that they could deploy security effectively if needed. Election Day was relatively peaceful, and the CEC now has an established mechanism and communication strategy with their security counterparts.

 C. Improved infrastructure for peace

Improved infrastructure for peace (I4P) relates to putting in place standing capabilities for peace building and conflict prevention from the community to the national level. These strategies may include mobilization and coordination of state and non-state actors, including civil society organizations (CSOs), traditional and religious leaders, reputable individuals and other organizations and individuals that have the capacity to contribute in preventing and defusing social conflicts. The value of the infrastructures of peace in the prevention and mitigation of election-related violence in different national contexts is well documented.^[39] The initial electoral phase, in which legal and institutional frameworks for the organization and conduct of elections are discussed, provides an opportunity for early engagement of various state and non-state actors. On the one hand, they can engage in facilitation of a national consensus relating to electoral legal frameworks; on the other hand, they can promote and advocate for the acknowledgement of the role that civil society groups and traditional leaders may have in resolving electoral disputes.

• Mobilize and involve non-state actors in discussions on the electoral framework in order to achieve citizens’ participation and national consensus

The involvement of multiple stakeholders, who share a mandate and an interest in contributing to peaceful elections, in the discussion on the reform of the electoral legal framework may be crucial for avoiding legal controversies at later stages. When processes are not inclusive and trusted, non-state actors can take initiatives to convene cooperative forums aiming to bring together relevant stakeholders, including EMBs, political parties, security sector agencies, traditional or customary governance structures and civil society organizations. These forums may create an environment of ownership and trust and ensure the involvement of minority groups and balanced gender representation. They can work to secure the commitment of the organizations involved to adhere to, or implement, conclusions resulting from the discussions. If national actors are unwilling to agree on reforms, international specialists and/ or reputable individuals may be involved to mediate and help align processes to international standards and obligations. Notwithstanding, the primary responsibility remains with the various national stakeholders.

Civil society helps to resolve legal deadlocks ahead of the 2005 presidential elections in Guinea-Bissau. The 2005 presidential election was intended to mark the end of Guinea-Bissau’s history of trouble marked by civil war and political violence. In 2003, a Transitional Charter was adopted to allow the transitional government to govern the country until the new leadership was elected. Ahead of the 2005 presidential elections, the Citizens’ Goodwill Task Force (CGWTF), supported by the International Peace and Prosperity Project, engaged international legal experts in a review of the electoral laws regarding candidacy for public office contained within the Transitional Charter. After expert review, the CGWTF recommended that the Charter’s legal status should be recognized by the High Court in order to resolve issues relating to candidates’ eligibility to run for presidential office.^[40] The CGWTF also drafted an election code of conduct to promulgate an ‘issue-based and peaceful campaign’. It was endorsed by all but one of the presidential candidates. The code of conduct was distributed in French and Arabic and presented in rural areas by the country’s main religious and civil society leaders. International organizations and national leaders praised the CGWTF’s efforts as important in contributing to enhanced national debate on the electoral legal framework.^[41]

• Promote understanding of the role of non-state actors in contributing to peaceful elections, and advocate for the integration of alternative conflict resolution mechanisms into the electoral legal framework

The effect of the efforts of formal institutions, such as EMBs and SSAs, to prevent and mitigate election-related violence may be maximized if they are combined with existing peace building and conflict prevention initiatives. These may include national mediation panels, peace councils, traditional and religious leaders, and reputable institutions and individuals, including women’s organizations and activists that work to promote gender equality and participation. Formal recognition and integration of these actors in the electoral legal framework, as part of dispute mediation and resolution, may be an effective strategy to prevent and mitigate election-related violence.

The Electoral Law of South Africa recognizes the role of the local peace committees in mediation of electoral disputes. The transition from apartheid to a new democratic order from 1991 to 1994 was supported by a fairly well-developed peace architecture, with the local peace committees as the primary strategy to prevent violence. These committees were a product of the National Peace Accord signed on September 1991 by 27 South African stakeholders, including the government, the main political parties and the major liberation movements. The South African Electoral Law (103A, insertion to the 2003 amendment to the Electoral Act, no. 34, 2003) states that the Independent Electoral Commission of South Africa can resolve any electoral dispute, complaint or infringement of the code of conduct through conciliation or mediation.^[42]

• Involve the public into decision-making processes on electoral institutions
  
  Mistrust in the integrity of an electoral process can stem from a lack of knowledge about the institutions and practices of the election administration. To avoid confusion and the spread of rumours, campaigns to inform voters about how the organization of election works can be launched. Apart from that, initiatives to involve the public in the process of the operationalization of the EMB and provide the opportunity of an exchange between the public and the election administrators can enhance transparency of and confidence in the electoral process.

The Civil Network OPORA and the local Council of Europe Office organize a public discussion with the candidates for members of the Central Election Commission (CEC) of Ukraine. The public trust in the CEC has been low and civil society activists raise doubts on the independence of the Commission[43]. These doubts put the credibility of the electoral process at risk. The CEC of Ukraine is appointed by the Verkhovna Rada, the Ukranian parliament, upon the submission of the President[44]. To increase the transparency of the decision-making process, OPORA and the Ukrainian Council of Europe office invited civil society, expert community, media and members of Ukrainian Parliament to meet the candidates for the CEC proposed by the President. The event gave the opportunity to inquire into the candidates perspectives on election administration issues and on reforms of the legal framework for elections in general and the CEC in particular.