An electoral campaign can be defined as the set of organizational and communication activities carried out by candidates and/or political parties with the aim of attracting voters. The electoral campaign often begins in earnest once the candidacies are formally announced. This period is distinguished by candidates and political parties mounting heightened political campaigns.[i]
This period is critical to a democratic election and rests on the fundamental rights of freedom of expression, association, peaceful assembly and movement. The importance of campaigning is recognized in international law:
The free communication of information and ideas between candidates and their supporters is recognized as necessary in international law, as is the need for candidates, parties and their supporters to be able to debate public affairs criticize and oppose one another publish political material and advertise political ideas. In addition, voters have a right to access information about the candidates for whom they will vote.[ii]
Having said this, it is important to acknowledge that the state may in certain defined circumstances limit candidates and their supporters and their right of expression (when those expressions seek to destroy or undermine other established rights or when they are in advocacy of national, racial or religious hatred that constitutes incitement) and rights of association and assembly (for example in the case of national security, public safety, public order, public health or morals or the protection of the rights and freedoms of others).[iii] The onus must be to ensure that whatever the restrictions, they are established in law, reasonable in a democratic society, uniformly applied and that there is the right to a timely appeal to the judiciary or other independent body.
Important elements of the electoral campaign are analyzed below:
In a strict sense, political campaigns can only be conducted by legally established political parties and formally proclaimed candidates. Nevertheless, other organizations such as trade unions, employer organizations, groups of citizens, the media and even famous people completely unrelated to politics often publicly express their support for a particular candidate and encourage the public to vote for that person thereby in a practical sense engaging in election campaign activities. In democratic systems it is not possible to impose restrictions on freedom of expression which would prevent such groups and individuals from making public declarations, especially taking into consideration that during elections citizens are called to express their opinion. However, legal provisions do regulate the conduct of candidates and political parties in electoral campaigns, including that certain electoral actors will receive public funding or benefits to cover the expenses of their electoral campaign.
In addition, the legislative framework should ensure that electoral campaign activities are not carried out by people who because of their professional or political position may influence voters in a way that violates ethical principles of equality. Furthermore, members of institutions and bodies that are involved in the electoral process (members of electoral administration bodies, the judiciary, etc.) or may unduly influence the opinion of voters (army and police) should also remain neutral and not be allowed to perform any acts of electoral campaigning. These restrictions on fundamental rights can be legally justified, provided that they are accurately stated and predetermined in the Constitution or the law and aim to ensure a fully democratic election. Therefore, the violation of such rules should also be followed by criminal, disciplinary or electoral penalties.
Electoral campaigns take place between formally and officially proclaimed candidates or parties and are usually limited to a certain period of time. Normally, the electoral campaign starts at the proclamation by the competent authorities and ends the day before the election day. In this way, the electoral laws seek to restrict acts of campaigning outside the campaign period, including the transmission of political advertisements. The length of the electoral campaign period often ranges from two to four weeks; however there are those exceptions that provide for longer periods of time. Such is the case in Mexico, where the campaign period for presidential elections lasts more than four months resulting among other things in excessive electoral campaign expenditures.
However, prohibitions are more problematic for periods prior to the formal proclamation of candidacies, starting from the announcement of elections. In this case, a conflict arises between rules proscribing prohibitions and freedom of speech as well as the constitutional functions of political parties. Therefore, in jurisdictions where such prohibitions are explicit, these rules are usually interpreted extremely narrowly and are mainly related to the prohibition of vote requests, rather than the performance of any other campaign act that does not constitute a formal vote request.
The legal framework usually includes a “period of reflection”, which consists of a prohibition of any electoral campaigning at least twenty-four hours (in some cases days) before the opening of the polls. The intent of this period is to restrict electoral campaigning as major voting operations open and thereby allowing voters to reflect and decide on their vote. One of the most important elements for achieving free and fair elections is the existence of an election campaign that respects the above-mentioned rules, thus ensuring free formation of voters’ preferences to be expressed on polling day. The level of equal opportunities for all candidates and of government neutrality in electoral campaigns depends to a large extent on the level of democratic development in each country and, ultimately, on the mechanisms for the protection of fundamental rights and the separation of powers.
Sometimes, however, when in the extreme the succession to power is at stake, mechanisms of public power are often used for the benefit of their holders. Hence, emphasis should be put on the role of electoral bodies and the judiciary to ensure full implementation of the equality of opportunities.
To sum up, elections are a means to convert the popular will to a representative government. In order to achieve this goal, it is necessary that all parties and candidates are free to transmit their political messages to the voters - to address political issues and propose solutions - during the campaign period. This period must be clearly defined, starting after the nominations of parties and candidates have been announced and ending before the polling day.
The State often provides candidates and parties with different kinds of support for their electoral campaigns aiming to encourage campaigning on an equitable basis and considerate of not wasting the resources of political parties. As such, the legal framework should contain provisions not only with regard to state funding of political parties, but also regarding maximum ceilings of campaign expenses (these aspects are dealt with in a subsequent section). The state may provide various in kind means of support to political campaigns but in doing so care must be taken that, “No party or candidate (especially the ruling party) is favoured, financially or otherwise through the availability or use of state resources.”[iv]
In kind support for electoral campaigns of parties and candidates usually include the following:
1. Material and Human Public Resources
The legal framework should make it clear that public resources may not be used in such a way as to tip the campaign playing field in favour any candidate or political party.
Public spaces and buildings, for example, can often be used for campaigning and for the placement of campaign posters or signs of the different candidates. However, the fairness of a campaign will be undermined where state resources such as public buildings are used for campaign events in an unreasonable way to favour one candidate or political party.[v] From a democratic perspective, this space should be allocated on an equitable basis or according to reasonable and objective pre-determined criteria, for example, in proportion to the votes obtained by the party in the most recent elections. The same approach should apply to other material resources such as vehicles and office use where such use is permitted. These operations should be conducted or supervised by the electoral management bodies in order to ensure equal opportunities for all candidates and parties.
In terms of human resources the legal framework should clearly specify the extent to which public employees may participate in the political campaign and at a minimum require a complete separation of roles as public servant and partisan of a political campaign. Public servants should also be protected against intimidation or coercion to support a particular candidate or party in fear for their employment.[vi]
The banning the political contribution of government resources (other than direct political funding schemes) is a global trend with 94 of 110 countries for which data is available, reporting a ban, albeit the effectiveness of which is open to further study.[vii]
2. Broadcast time on state media
The allocation of broadcast time is highly important taking into account that electoral campaigns are more and more conducted through the media. As a result, it is essential that the allocation of state controlled media broadcast time be included in the legal framework. In doing so, the following principles should be respected regarding state controlled media:
Globally, 69% of countries, including a large focus in Africa, provide free or subsidized media access to political parties.[viii]
With respect to private media, electoral legislation usually contains two types of provisions. The first is addressed to the candidates and usually sets a limit on the amounts that can be spent on this type of activity. The second is addressed to the Media and prohibits discrimination regarding prices and inclusion or exclusion of candidates from political advertising.
3. Copy of updated electoral lists
Another public contribution or indirect method of public funding is providing to candidates a copy of the census or the updated electoral lists, with the dual purpose of enabling parties and candidates to carry out a personalized campaign and to monitor and manage voter turnout during voting. In some countries, a problem has emerged regarding the protection of valuable and personal citizen census data for only authorized purposes As a result, there have been cases of candidacies by organized economic groups with the sole purpose of obtaining these documents that contain valuable data. Regulatory response to this problem have been the penalization of the use of such documents for purposes other than the election and regulations providing for the maintenance of archives of the information obtained by each political group. In this way, people or entities using this data for commercial purposes can be more easily tracked and held to account.
4. Electoral mail
In addition to the above public support, political parties and candidates can often send electoral materials or print ballot papers at very low rates or even for free. In some cases, political parties and candidates may be reimbursed for the printing of electoral campaign materials by being granted an amount of money per actual shipment.
5. Other legal guarantees
The election campaign is limited to a relatively short period of time. This means that any legal dispute arising between the contenders must have a rapid and definitive resolution, because otherwise it would prejudice the electoral process. This is the main reason for the broad decision making powers attributed to electoral management bodies and for the establishment of accelerated procedures for adjudication. However, the final control of such decisions poses a new problem; the prevention of judicial review is an exception to the traditional structure of judicial control and even to the concept of the separation of powers, but in order to be effective, petitions should be resolved within a short deadline.
“Campaigning as part of a genuine election process requires that a number of related rights and freedoms be enjoyed, for example the freedoms of expression, association, assembly, and movement.”[ix] To give effect to these international principles, the domestic legal framework should establish the right to open and fair campaigning.[x]
It is essential that, “The legal framework should state in clear language what type of conduct and behaviour is prohibited during the electoral campaign.”[xi] The intent is not to limit freedoms of expression, association or peaceful assembly but rather to prohibit behavior that could impede these fundamental freedoms enshrined in international law. Sometimes in addition to statute, codes of conduct are arrived at by political actors often with the assistance of the electoral management body, however just as with legislation the provisions, codes of conduct, “should not be unduly restrictive and should provide the opportunity for active and open campaigning, free from interference.”[xii]
Law enforcement at times will be necessary to ensure both the freedom to campaign and the enforcement of reasonable limitations such as where demonstrations become violent. However, “While the authorities are responsible for providing a safe and secure environment for campaign activities, security concerns should not be misused as a reason to abridge fundamental freedoms.”[xiii] The primary obligation of law enforcement agencies should be act in a politically neutral manner and protect citizens from election-related violence, intimidation and coercion.[xiv] Timely and effective judicial redress should be available where rights are violated or unreasonable restrictions are applied.[xv]
In addition to legal sanctions and enforcement mechanisms, it is preferable that the legal framework also provide a more flexible mechanism such as an advisory committee coordinated by the electoral management body allowing, “the stakeholders to exchange views with each other or raise complaints of violations of campaign provisions or codes of conduct with a view to finding a common approach to resolving them and containing electoral violence.”[xvi]
[i] SADC and EISA, Principles for Election Management, Monitoring, and Observation, 18.
[ii] DRI and The Carter Center, Strengthening International Law, 36.
[iii] Ibid., 36.
[iv] International IDEA, International Electoral Standards, 56.
[v] European Commission, Handbook for European Union Election Observation, 52.
[vi] OSCE, Election Observation Handbook, 62.
[vii] International Institute for Democracy and Electoral Assistance (International IDEA), Political Finance Regulations Around the World: An Overview of the International IDEA Database, Edited by Magnus Ohman (Sweden: Trydells Forum, 2012), 10.
[viii] Ibid., 10.
[ix] DRI and The Carter Center, Strengthening International Law, 54.
[x] European Commission, Handbook for European Union Election Observation, 51.
[xi] International IDEA, International Electoral Standards, 56.
[xii] Ibid., 56.
[xiii] OSCE, Election Observation Handbook, 61.
[xiv] European Commission, Handbook for European Union Election Observation, 52.
[xv] OSCE, Election Observation Handbook, 61.
[xvi] International IDEA, International Electoral Standards, 57.
