Subverting the electoral process is a breach of public trust and an illegal act. Enforcing the law is essential in order to maintain electoral integrity. Without enforcement, the best legislation can be bypassed or ignored.
Enforcement is a deterrent to fraud and a guard against problems that threaten electoral integrity. Dishonest or fraudulent practices are not the only source of integrity problems. They may also result from human error or unintentional omissions. Even when there is no ill intent, these mistakes also need to be subject to corrective measures. Different institutions and mechanisms may be responsible for enforcing election integrity and legislation, as specified by each country’s legal framework.
In some systems, enforcement agencies have complete institutional independence, especially the institutions dealing with criminal justice. Others work under a common institutional umbrella with the electoral policy-making or management bodies. In all cases, enforcement requires:
- clear definition of the types of offences;
- the opportunity to make a complaint;
- a decision to investigate;
- a decision to initiate proceedings in order to determine facts and obtain evidence;
- prosecution and judicial proceedings that make offenders accountable for their actions, and provide for a ruling and the opportunity to appeal; and
- penalties and sanctions for those found guilty.
To be effective, enforcement must be active, impartial and timely. Investigative agencies and their investigators must have enough independence to examine allegations of election fraud or other illegal activities, and to initiate legal proceedings.
Investigators must be objective and professional, and shielded from any political interference with their work.
Integrity also requires that the rights of whistle-blowers, witnesses and the accused be protected. Defendants must 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 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 often have discretion in determining whether the evidence warrants a prosecution and, if so, who will be prosecuted. Subjective or unlimited discretion may have an impact on integrity.
Courts and (where applicable) juries determine guilt or innocence. They must be impartial. An objective judgment is based on factual evidence and the legal context, not on political affiliation, discrimination or unsubstantiated rumour. Usually, an independent judiciary is required for a hearing 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 the enforcement process. These issues are discussed in Monitoring of Enforcement and Investigating in Difficult Circumstances.
Image:
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.
