Investigating electoral corruption is not easy. Cases may be highly politicized and may implicate well-known politicians; sometimes investigation may be dangerous. Access to witnesses and suspects may be difficult, some documents may disappear, or the investigation might target a high-ranking government official.
Difficulties vary with each country’s social and political context, but they usually involve political interference, physical safety issues, or the lack of legal and judicial infrastructure.
Political Interference
Investigations into electoral fraud may implicate very powerful individuals who seek protection through political interference. This may take the form of threats against investigators or prosecutors to dissuade them from pursuing their investigations. Threats include transferring investigators or prosecutors to another post; denying them professional advancement or even dismissing them from their job; transferring the investigation to another body; reducing government resources provided to the agency conducting the investigation or prosecution; and pressuring other agencies to refuse to cooperate with the investigator or prosecutor.
Proper monitoring of enforcement and a transparent enforcement process can help minimize the risk of political interference.
Lack of Legal and Judicial Infrastructure
Some countries undergoing a transition do not necessarily have the legal and judicial infrastructure required to support an investigation. There may be legislative gaps, with the result that investigators or prosecutors cannot show that a law has been broken even though it is evident that a crime has been committed. They may not have the means to conduct a proper investigation because of lack of personnel, resources or institutional experience. They may arrest an individual, only to find that the prison system cannot keep the person in custody until trial. The court system might be incapable of ensuring an impartial trial.
For instance, in the 1998 Cambodian elections, the National Elections Committee was unsuccessful in its efforts to deal with violence and election law violations. Because the Committee had no law enforcement powers, cases were referred to government authorities but not one was ever prosecuted. This was not surprising given the weak legal system, which previously had proved unable to handle human rights cases effectively. [1]
Building a national judicial system and the necessary infrastructure is a long-term process. Electoral authorities can start by ensuring that their election law and related legislation define the basis for free, fair and competitive elections, and contain provisions for enforcement of the law. In some countries in transition, where there is no history of an independent judiciary, the only way to compensate for gaps in the legal system may be by establishing an electoral commission with wide-ranging powers of the type normally exercised by judicial institutions.
Culture of Impunity
A culture of impunity may hold sway in countries that are in transition or emerging from a history of violent conflict. Such a culture takes root particularly when the law enforcement system is inoperative or virtually non-existent, when people lacking power or influence are arrested and charged while the powerful go free, and when officials have legal immunity.
A culture of impunity breeds corruption and unethical practices. Failure to enforce legislation weakens the integrity of the system and the rule of law. Breaking this cycle is extremely difficult; it requires determination from civil society and strong political will.
Physical Safety
In a culture of impunity without a strong judicial system, honest investigators looking into corruption and criminal activities may become targets for violence or intimidation. Protecting investigators requires not only political will but the support of civil society. Safety mechanisms, such as UN-sponsored international human rights observer missions, may offer temporary support but real change will have to come from within.
NOTES
[1] Neou, Kassie and Gallup, Jeffrey C., “Conducting Cambodia’s Elections,” Journal of Democracy, 10(2), 1999, p. 157.
