Election observation is
an often used term. Nevertheless, it is
instructive to begin with a working definition taken from the 2005 UN Declaration of Principles
for International Election Observation which states:
International election
observation is: the systematic, comprehensive and accurate gathering of
information concerning the laws, processes and institutions related to the
conduct of elections and other factors concerning the overall electoral environment;
the impartial and professional analysis of such information; and the drawing of
conclusions about the character of electoral processes based on the highest
standards for accuracy of information and impartiality of analysis.[i]
In consolidated democratic systems it is considered that
the electoral processes are carried out in line with sufficient guarantees and
that the establishment of systems for observation and additional control are
not necessary. Thus, the combination of electoral management bodies, polling
officials, representatives of political parties, the possibility to challenge
the procedure before an independent authority and freedom of the media are seen
as sufficient elements to ensure electoral transparency. In these cases, there
is no imperative need for observation of the electoral process by
international, national and politically neutral organizations, with the
exception of missions of a very limited scope to demonstrate electoral
transparency, such as for example, the presence of international visitors. In
contrast, observation seems extremely useful in the transition to democracy. It
is, in this light, possible to establish a qualitative division between
electoral events based on the requirement or not for national or international
observation.
Election observation may
take the form of domestic observations (sometimes referred to as “monitoring”)
and international observation. Election
observation also varies with short term observation most often focusing on
election day and involving a large force of observers, and long term
observation which involves usually smaller expert teams of observers in country
well in advance of an election in order to observe the preparatory and campaign
phases as well as voting, vote counting and results.
Both types of election
observation play an important role in terms of enhancing
the transparency and credibility of elections and the acceptance of results and
may potentially contribute to the prevention, management or transformation of
election-related conflicts.[ii] Therefore, “The legal framework should provide for observers, including domestic and
foreign, and representatives of the media, political parties and candidates, to
ensure transparency of all electoral processes. Transparency of the
electoral process is a minimum standard necessary to ensure democratic
elections.”[iii]
International law is
largely silent in terms of the rights of observers[iv] but the value of
election observation can be enhanced by a legal framework that goes beyond
simply acknowledging its possibility. It
would be helpful if the legal framework specified the rights of observers to do
their job by freedom of movement, inspection of documents, attending meetings,
monitoring all phases, and having a right of recourse where observers have
complaints about interference. At the
same time, it would be helpful to specify what an observer may not do, such as
interfere with electoral procedures or act in any partisan manner. Ideally,
“The legal framework should strike a balance between rights of observers and
the orderly administration of the election processes.”[v]
Beyond the legal
framework, there are also expectations regarding how observers should conduct
themselves. As general principles,
election observation must must recognize and respect the sovereignty of the host
country, be non-partisan and neutral, comprehensive, transparent, accurate and
professional.[vi] In 2005, standards for the conduct of international election observation were
created by way of the Declaration of Principles for International Election
Observation and an accompanying Code of Conduct.
Notwithstanding that, “International election observation is neither a right,
nor as yet a recognized international standard”[vii]
there has been and continues to be a tremendous amount of such activity. In the 80’s and 90’s
various international entities carried out complex election observation
operations in African (Uganda, Mozambique, Angola, South Africa) and South
American countries (El Salvador, Nicaragua) as a form of cooperation in the
political transition process. However, since 1986, as an alternative to the
increasingly costly operations of international election observation, national
or international NGOs play the same role.
International election
observers rely upon some form of invitation or agreement with a sovereign state
in order to officially observe an election.
On the other hand, “As citizens,
domestic observers have a right to participate in the public affairs of their
countries.”[viii] As such, “A legal framework for elections should provide guarantees for the right
of domestic non-partisan observer groups.”[ix]
The phenomenon of
national election observation deserves to be carefully analyzed. On the one
hand, it is clear that this alternative presents many advantages, as it implies
significantly lower costs than the international operations and contributes to
the development of democratic awareness at national level. It is also an
essential element in countries where international election observation
missions are legally banned and this prohibition cannot be sufficiently
overcome by using international visitors. It should be acknowledged that certain countries are not favorable towards
international election observation, which explains why such operations are
sometimes "observed" themselves with suspicion, as national electoral
authorities and political parties consider that foreign interests are now
pursued through these NGOs.
National election observation is an ambiguous phenomenon. On the one
hand, it is very positive when seen as an alternative to the transfer of
thousands of international observers, of whom the vast majority is not familiar
with the country and even with the electoral process. On the other hand, it is
questionable whether it contributes to the reinforcement of the electoral
administration and the political parties. In the most effective scenario it is
not a case of either/or but a case of both national and international election
observation. Each approach has its own
limitations but each also can bring great value.
Overall, election
observation and monitoring by international and domestic election observers may
provide tremendous value in terms of aiding transparency, accountability and
confidence in elections. Increasing trends toward
longer term international observation and the role of domestic observers bode
well and should be seen as an obligation:
An
adage often repeated in the electoral arena is that it is possible to conduct a
credible election under a weak or even bad legal framework, if those with
governmental power have the will to do so – and it is extremely difficult to
conduct a credible election, even under a strong legal framework for democratic
elections, if those with governmental power intend otherwise. Civil society
therefore has a responsibility to organize itself to monitor implementation of
legal frameworks to ensure that credible elections take place and to expose the
facts when elections lack credibility. Knowledge of legal frameworks is
essential to accurately making that distinction.[x]
[i] European Commission, Handbook for European Union Election
Observation, 181.
[ii] SADC and EISA, Principles for Election Management, Monitoring,
and Observation, 30.
[iii] OSCE, Guidelines for Reviewing a Legal
Framework for Elections, 23.
[iv] DRI and The Carter Center, Strengthening International Law, 8.
[v] OSCE, Guidelines for Reviewing a Legal
Framework for Elections, 24.
[vi] International IDEA, International Electoral Standards, 17.
[viii] DRI and The Carter Center, Strengthening International Law, 45.
[ix] European Commission, Handbook for European Union Election
Observation, 73.
[x] Patrick Merloe, Promoting Legal Frameworks for Democratic
Elections, 6.
