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:
i. Actors in the electoral
campaign
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.
ii Time limits
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.
iii. In-kind support for
political campaigns
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:
- Free broadcast time for
all candidates;
- Neutrality of the media, which
should ideally cover not only the broadcast time reserved for candidates but
also all the other programs. The electoral management bodies should be
responsible for monitoring equitable coverage;
- Political pluralism, so that no candidate
is excluded from access to the media;
- Prohibition or strict
limits on paid broadcast time that is not dedicated to news programs;
- Allocation of airtime
according to pre-determined objective criteria.
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.
iv. Freedom to Campaign
“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.
[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.
[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.
[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.
