This question is asked by an official of the Swedish Ministry of Foreign Affairs.

Fewer countries refer to the conduct of elections as ”free and fair” elections in favor of ”credible”, ”legitimate”, ”participatory” etc. What are your views on this trend and shift in discourse and terminology?

Practitioners’ Network (PN) members agreed that a shift has indeed taken place in the discourse of terms used to characterize the conduct of elections, and that consequently there are fewer references to elections as “free and fair”. This shift was seen as a trend which began in the 1990s, when elections that were described as “free and fair” at the same time could be seen by analysts to lack integrity, and it was also predicted to become a more widespread trend in the future. Moreover, one PN member expected that the trend would go further as countries engage with new elections related technologies.

Behind the shift in discourse lies a rising awareness among analysts that election observation should be less of a "thumbs up/thumbs down" judgement on an election-day event, and increasingly an effort to monitor and evaluate the process of an election, against international obligations voluntarily undertaken by countries.

The shift in election observers’ focus from event to process was also explicitly connected to relatively lower levels of election-day fraud (at the polling station level) and the subsequent move of the efforts of those who seek to manipulate elections towards other parts of the electoral process. As a result, deeper analysis of the process would produce a more accurate characterization of an election.

Conscious efforts have been undertaken to contribute to the trend identified in the question, such as that of the NEEDS project. In practical terms, practitioners recognized that terminology shifts in line with shifts in methodology such as changes to assessment criteria. For instance, the European Union Election Observation Missions are discouraged from using the term “free and fair”. The methodological shift is discussed further in The Carter Centre’s "Using international law to assess elections", in Democracy Reporting International’s "Forget ‘International Standards’", and in the European Parliament’s "Following-up on Recommendations of EU Election Observation Missions".

Both the discussion by the PN members and parts of the referenced literature note that the use of the terms “free and fair” is not a satisfactory approach to evaluate an election; specific reasons for this include the all-encompassing, “black and white” nature of the terminology as well as the lack of a sufficient internationally-agreed definition. One PN member related the challenges to deepened assessments posed by the term “free and fair” to similar difficulties of the more subjectively defined concept of “International Standards”. The approach increasingly taken by election observers to refer to "International and Regional Obligations and Commitments", provides an avenue for improved characterization of electoral processes with a stronger link to countries’ sovereign and voluntary undertakings. At the same time, a common objective held by both Electoral Management Bodies (EMBs) and election observers was identified in terms of measuring the electoral process in accordance with Obligations.

The PN members not only agreed that a move away from the use of “free and fair” has taken place, but also that this shift makes sense. On the other hand, a challenge was raised regarding the increasingly ambiguous character of electoral observation assessments.

Electoral Management Bodies (EMBs) were seen as playing an important role in eliminating the use of “free and fair” when characterizing an election. This catchphrase is however still appealing to media, donors and politicians, as members of the PN indicated. Furthermore, the shift in terminology is not necessarily implemented universally. For instance, government representatives and EMB officials might have shifted their references further away from “free and fair”, while legal frameworks in countries may use the terminology still. It was further highlighted that the terms “free” and “fair” rest upon significant international jurisprudence as well.

In addition to the shift in discourse in favour of the terms “credible”, “legitimate” and “participatory”, PN members found the terms “integrity” and “transparency” as useful to characterize an election. One member stressed that electoral legitimacy is predicated on the existence of legal, sociological and moral legitimacy. Finally, the present-day use of the term “credible elections” was viewed as sufficient to form consensus on election outcomes, while yielding the possibility to avoid long discussions on how to weigh election irregularities.

Christine NDAYISHIMIYE du Burundi

Les élections véritables qui doivent caractériser une démocratie digne de ce nom doivent effectivement pouvoir être qualifiées de libres,  transparentes et crédibles.

Les élections sont libres quand chaque citoyen a la latitude d'exprimer sa volonté sans aucune influence, c'est à dire qu'il juge en âme et conscience les programmes qui lui sont présentés et choisit celui qui lui semble meilleur. Quand les politiciens distribuent des cadeaux pour avoir des voix, ils aboutissent à un vote non libre. Quand ils usent de la terreur pour faire peur aux électeurs, là non plus ils n'ont pas un vote libre.

Les élections sont dites transparentes lorsque, toutes les opérations électorales menées par l'équipe en charge de l'organisation des élections sont menées de façon que n'importe quel citoyen peut être témoin de tout ce qui se fait, de façon que n'importe observateur national ou international peut voir de ses yeux tout ce qui se fait. Quelques exemples de transparence: dans un processus transparent la liste éléctorale est affichée avant le jour des élections de façon que tout citoyen peut vérifier s"il n y a pas d'étranger ou alors de mineur qui aurait été enrôlé. En cas d'irrégularité, celle ci doit être dénoncée et corrigée. Un autre exemple de transparence c'est que les urnes ne soient pas déplacées après le vote, le comptage se fait au même endroit où a eu lieu le vote et les résultats sont tout de suite affichés au même endroit. Ceci pour éviter les suspictions et généralement il est conseillé de proclammer les résultats le plus tôt possible; 

Les élections doivent se conformer strictement à la loi électorale.  Elles doivent être périodiques, elles doivent être inclusives c'est à dire que toutes les composantes de la population ont la latitude d'y participer. Si toutes ces conditions sont respectées, on peut dire que les élections sont crédibles c'est à dire qu'on peut croire que'elles reflètent réellement la volonté du peuple lui qui est détenteur du pouvoir dans un régime démocratique.

My main concern is who declare the elections free and fair or credible or legitimate. In most cases, specially in Africa, the international observers, from AU, EU or the Carter would come into the country few days before the elections and even before the final results are announced they make statements. In my opinion the terminology is not the main issue, the issue is the process followed to make such validations either free and fair or credible or legitimate. In fact there is another concept that the observer mission are coming up with and this was used in Mozambique in almost every election since 1999, which is that misconduct have been registered but not enough to alter the final results. I remember a polling station that registered a turnout of 110% (a clear sign of ballot staffing) and this could have happened elsewhere, but the elections were considered free and fair and transparent. So, apart from looking at the terminology change i would suggest that focus be put on the process through which election are validated.

Since there are no internationally agreed definitions for those terms in an electoral context, and no standards defined (for, say "participation"), the whole business of characterisation of a given election is almost wholly subjective.

I think the terminology is changing as elections observers shift focus from the event to the process. This, in turn, reflects the achievements over the years in inhibiting or suppressing election day fraud. As fraud at the polling station level has diminished (though by no means disappeared) the efforts of those who would manipulate an election shifted away - to voter registration, to results transmission, to control of media and abuse of state resources for electoral gain.

It is difficult to extrapolate findings from the small samples (small number of observers) deployed on election day, typically by international observers. The larger number of domestic observers can offer greater confidence in the findings. But either way - as the margin of error of observation data approaches a margin of victory in a close election, you might have a problem, where hard data is concerned.

At the end of the day, it is the breadth and depth of the analysis - the narrative - rather than the numbers coming in from the field, that add credibility to the characterisation.

Finally, expect this trend to change even more as the uptake of technology, particularly any move towards internet voting, gathers pace.

I have noticed government representatives and EMB officials are often not referring to FFE, but rather chose to use another terminology. Having said that, in terms of the legal framework governing elections, be it the Constitution or Electoral Laws, I cannot say that I personally have noticed as much of a shift. Having said that, that's only a subjective opinion. Would be very interested in learning more about the data on which the original question was based.

There certainly exists definitions of FFE that are broadly acceptable to the polisci community, but operationalizing and validating those by observer missions, be it domestic or international, well that's a completely different discussion.

Actually this shift began in the late 1990s, as missions got heat for quickly calling an election "Free and Fair", then having reports come out later that cast doubt on the integrity of the process. Free and fair is alliterative, but was never accurately defined. One problem was that an election could be technically acceptable, but because of undemocratic parties or structural problems democracy was not accomplished. To increase their ability to accurately assess a process, observers began qualifying their statements and focusing more on individual aspects of the process.

Using current understanding a "free and fair election" might be defined as:

An election process that provides substantive choice, accurately reflects the will of the people, and establishes an accountable government.

Les terminologies changent d'un pays à l'autre et d'organisation à une autre autre,chose sûre, les élections libres et régulières ont des caractéristiques et des conditions,qui commencent à partir du recensement des électeurs jusqu'au jour des scrutins. le processus doit être libre et transparente pour tous,les conditions d'éligibilité doivent être égales à tous les candidatures que ça soit du pouvoir ou de l'opposition ainsi que de la société civile,la gestion de la campagne:l'utilisation des moyens,de communication,financiers,doivent être partagés d'une manière transparents et équitable à tous les candidats.

Thank you for posting such pertinent and timely question. EU observer missions have indeed been discouraged from using the FFE terminology. As one answer has already pointed out, observation methodology is shifting from merely evaluating the logistical conduct of electoral events, to a deeper assessment of the environment within which the event unfolds. EU EOMs, for instance, assess a country's legal framework holistically, evaluating freedom of expression of the media, freedom of assembly during the campaign period, and freedom of association in the formation of political parties and civil society, to list just a few.

The amorphous term "free and fair" cannot do justice to deepened assessment, and neither can the term "International Standards", which is legally inaccurate. "Standards" are artificial and arbitrary creations of international experts, derived from what is unilaterally perceived as international "Best Practice." The term "Standards" is thus being replaced by "International and Regional Obligations and Commitments." The latter term accurately encapsulates electoral parameters, which countries have voluntarily committed to abide by.

Obligations can arise through accession or ratification of international law, such as of the International Covenant for Civil and and Political Rights (ICCPR), which currently unites 167 states parties, and hence is almost universally applicable. Most countries publish their international obligations on the Ministry of Foreign Affairs homepages. Commitments are made, inter alia, by regional or sub-regional Declarations, enshrining electoral best practice in politically binding principles. In sum, when observers invoke International Obligations and Commitments, they side-step unilateral imposition of "eurocentric" concepts, by referring to a country's sovereign and voluntary undertakings instead. It should be noted that certain sovereign undertakings can also be enforced by the UN Human Rights Committee, or by designated regional Courts of Human Rights.

The methodological shift in terminology has been formally discussed here:

• http://www.cartercenter.org/des-search/des/Documents/UsingInternationalLaw-Democratization.pdf
• http://www.democracy-reporting.org/files/internationalstandards_discussionpaper_2.pdf
• http://www.europarl.europa.eu/committees/en/studiesdownload.html?languageDocument=EN&file=79410

Manuel

I appreciate the question. In itself it suggests forward movement in the practice and discourse of election management. Besides the suggested alternatives to evaluating an election as ‘free and fair’, another that comes to mind is: ‘integrity’.  As in:  ‘an election with a high degree of integrity’.  

All these alternatives point to a conceptual consensus - expressed in the public domain - resulting from a dialogue between domestic and international  social partners post E-day on the overall electoral process. More importantly, these alternatives capture awareness of the complexity of the overall democratization process of which the election and E-day are critical parts.   

Therefore, to evaluate an election and E-day as ‘credible’ or  ‘with a high degree of integrity’ with full awareness of whether a given country is in the process of establishing, re-establishing, deepening, defending, or more and more, reconfiguring their democratic project is more helpful, especially because it gives it an internal measure (next to the international benchmarks) to evaluate how far it is from the ideal of democracy and what it  needs to do to improve future elections.   

This trend has been discernible in the Commonwealth since the 1992 Kenya first multiparty elections when the Commonwealth observer group of 40 members were split almost down the middle on the issue of whether or not the elections were free and fair, and free from fear. The use of the phrase 'free and fair' in the circumstances was thought to be less than appropriate and probably too emotive and so thereafter other phrases like 'exercise of the free will of the electorate', or the electorate had an opportunity to exercise their franchise freely'.

The current use of the term 'credible elections' satisfies the need for a basis on which consensus on election outcomes can be formed and may avoid lengthy discussions on weighting election irregularities in the election preparations such as defective voters registers, flawed constituency delimitation, flawed nomination proceedings and balancing up the numerous errors and irregularities at polling and counting, as was evident in the 1992 Kenya elections. [The 'elephant in the room' then was the fear that a finding that the election was void might have sent Kenya down the path of a failed State along which Somalia next door had already embarked!]

Many great points have been made already, many thanks to you all and great to see this question posted. I'd start my post with the best quote I found on this issue:

“Measuring elections against a free and fair standard suggests a dichotomy – that elections either pass or fail a test of legitimacy – when elections are actually political processes more realistically judged along a continuum and placed in context.”

Eric Biornlud, "Beyond Free and Fair, Monitoring Elections and Building Democracy 2004"

In the NEEDS Project, we really worked hard to contribute to this shift. From the work we did on the EU observation methodology and its repercussions on the EMB activities that we could measure, the shift is certainly true, and destined to become more and more widespread in the next future. The main trigger has been really the reached awareness by many analysts, mentioned already in this exchange by Antonio Eduardo, that it is not the observers' job to give the "thumbs up/thumbs down" judgement on an election, but rather to evaluate the process ( and not the e-day event) according to the international  obligations that each state had voluntarily undertaken.  This is the space where EMBs and observers can collaborate more, as they have a common objective.

So, I conclude by saying that it is true that EMBs are playing an important role in eradicating the use of this catchphrase, but there is still a lot of work to do in this respect, as the appeal of this catchphrase for media, donor and politicians ( also those in charge of observation missions) remains very high!

Some other important references on this issue:  Elklit and Svensson (“What makes elections free and fair?” Journal of Democracy, Volume 8, Number 3, July 1997) concluded: “The phrase ‘free and fair’ cannot denote compliance with a fixed, universal standard of electoral competition; no such standard exists, and the complexity of the electoral process makes the notion of any simple formula unrealistic.”

The European Parliament’s 2008 briefing paper (DG External Policies of the Union) put it this way: “After 15 years of international election observation, with increased awareness of election standards and observation methodology, subjective and simplistic ‘free and fair’ statements have lost credibility. The particular problem with the ‘free and fair’ formula is that it only allows a black/white evaluation, while the quality of an election is mostly in a grey zone between fully in line with international standards and fundamentally flawed.”

I also took a stab at it with my former colleagues Gillian McCormack and Franck Balme of the NEEDS project  in the recent "The Evolution of the EU Observation: From Fraud Prevention to Democracy Support", page 61-62,  published by IDEA in the "Integrity of Elections: The Role of Regional Organizations" available at  http://www.idea.int/publications/integrity-of-elections/index.cfm

Domenico

The topic is compelling and posts already made are really interesting. I would like to suggest an article (http://www.oecd.org/dac/governance-development/44686489.pdf) which attempts to provide a foundation for building broader consensus on "international stadards for democratic elections".

I strongly believe "free and fair" is not just the issue of the election day. If the electoral roll is not correct, if there is political motivation in doing electoral delimitation, in this case freeness and fairness of election day cannot be certified as "free and fair". In many countries of the world the Prime Minister asks for vote one year before the election abusing the state resources. Again, sometimes government takes development projects in certain areas with a view to bag votes. These certainly makes impact on election results. Even the LTOs do not observe these type of campaign.  So observation should include these.

A credible and legitimate election must have a high degree of confidence of all stakeholders. An EMB  can gain this high degree of confidence by ensuring transparency in all activities.  

A very lively and interesting discussion - thanks to all contributors so far!

I would like to recall that both "free" and "fair" criteria have considerable international jurisprudence behind them, similarly to "genuine" and "periodic". CCPR General Comment 25, which was already mentioned, states inter alia that "In conformity with paragraph (b), elections must be conducted fairly and freely on a periodic basis within a framework of laws guaranteeing the effective exercise of voting rights." Prof. Goodwin-Gill's analysis in the 2006 edition of Free and Fair Elections (also addressing some of Eric Bjornlund's criticisms) demonstrates that both criteria remain valid.

Many criticisms of international observers voiced in previous contributions relate to an earlier era of election observation. "Thumbs up" or "down" statements are not common among reputable international observers these days, and ther methodologies emphasize long-term observation and the importance of overall context.  (Note also the emphasis on "genuine democratic elections" in the Declaration of Principles for International Election Observation).

Finally, on the use of "standards" as opposed to "obligations and commitments". While "standards" may deserve criticism for being too imprecise, this term is also sufficiently broad to include important "soft law" and numerous recommendations/guidelines/codes of good practice, such as e.g. IPU Declaration on Free and Fair Elections, or the Venice Commission's Code of Good Practice in Electoral Matters. It may therefore be premature to dismiss "standards" entirely.

Let me add my voice to commend the importance and currency of the question posed. i think the terminologies are shifting because there can never be an election which is REALLY free and fair in the sense of the word. No election can adequately make arrangement for the inclusion of minorities, hard-to-reach areas and under-served and socially-excluded groups. This therefore makes it difficult to label an election as "Free" and "Fair".

I support the use of "credible" and "legitimate" to the extent that the elections conform to international norms and host country legal framework.

I am surprised when you say less is being said about "Free and Fair" elections. It is a common parlance in the less developed countries. Politicians, who have become immune to fraudulent acts during elections, use these words as their choruses when addressing the nation. If you say it is less talked of, then the better, it could be that, politicians are changing for the better or there is no need talking about something that can never be.

COMMENTS FROM IRAMBONA LIBERATA/NEC RWANDA.

My point of view is that you may say that elections are "free,fair" as pillars of "credible and legitimate elections"  they are well prepared,example of some activities:

1.Review law and regulations,

2.To prepare on time schedule (calendar);
3.Preparing on time the budget;
4. To prepare on time the necessary equipment;
5. To prepare on time the electoral list of agents;
6. Work closely with many stakeholders as possible (the public, political parties, civil society, media, local authorities .....);
7.  Awareness and educate the public in time for the elections;
8.  Properly train election officials;
9.  Distribute election materials on time;
10.  Enlist voters properly;
11.  While conducting the election campaign;
12.  Publish the results in the time prescribed by law;
13.  Invite and accredit observers to time;............

In addition of that the voters are free and happy to make they choice,therefore a high turn up. The citizen and candidates  agree with  the elections results  after consolidation and announcement. There is no conflicts after elections when there is freedom and fairness in election.

As EMBs, i really invite every body to fight for "free and fair elections" if we want to enhance Democracy and Good Governance in the world.

Speaking of free and fair elections is very ambitious. In Mexico, for example, even though we have elections that are administered flawlessly (installed on election day thousands of boxes, led an army of millions of citizens) the fact is that the material conditions of the competition (from financial, material, human and even technical) can not be guaranteed by the election authority, as there are inequalities of origin (for the actual conduct of the parties) that make impisible ensure free and fair elections. For example, we now know that the PRI usage million pesos through electronic purses and authority until today did not know that fate, but in substance it is suspected that they were used for vote buying and coercion.

I reaaly liked what waas brought before us as food for thought. In my own opinion, it is very difficulty to really say this was free or fair. The question is according to who? It is better maybe to go by the majority and the accepted laws within individual countries as there is no single accepted definitions for these terms. There will always be other people complaining in such races like elections

La terminologie fût adopté le 26 mars 1994 par le Conseil interparlementaire sur les critères pour des élections libres et régulières. Cette déclaration était une première tentative de délimiter ce qu’il fallait entendre par ce concept d’élections libres,transparente et régulières au regard du droit public international et des droits de l’homme, et compte tenu de la pratique des États et des Organisations internationales. Dans certains pays d'afrique sub saharien, le concept est plus un discours qu'une réalité car,le regime en place organise la fraude soit en amont tout comme en aval et du coup le vote n'est transparente. il faut en effet une education au civisme électoral des parties prenantes au processus électoral en vue d'enduguer ce fleot en Afrique.

Le problème reste encore et toujours le sous développement, le contexte politique, le niveau de la culture démocratique dans le pays et le financement électoral. Ces données réunies influenceront sur la crédibilité, la fiabilité et l’indépendance des organisateurs d’élections.

Excellent discussion. The move away from free and fair pronouncements started long ago, as some have noted. This was mostly because observers increasingly realized that they were plain unable to make such an assessment, both because it was exceedingly complicated, but also because it was politically difficult. They were starting to draw criticism for doing so and sometimes their pronouncements were being pitted against each other. As conceptions of election processes broadened, so did observers consideration of the elements they would need to consider to assess elections comprehensively. While the nuance has advantages, unfortunately this has also meant that observers are increasingly failing to draw a bright line. Their assessments are becoming increasingly ambiguous - which often diminishes their influence. So many elections nowadays are what I call D-minus elections. Somehow observer statements allow the authorities to just squeeze by. As my book Monitoring Democracy and the Annan Commission report has pointed out, we need to rethink election assessment. Unfortunately a lot of the consultations on doing so are themselves constrained by the participation of some observer groups who prefer not to hear the criticisms.

Electoral Legitimacy which has no direct attribution to what can be considered as "free and fair".

Legitimacy is a term much bruited about in discussions of electoral law and policy.  Courts and commentators repeatedly profess their concern with electoral legitimacy.   Occasionally questions are voiced about the legitimacy of the entire electoral process such as substantive due process as to the conduct of an election.

Although the concept of electoral legitimacy features prominently in constitutional legal debates, it rarely receives analysis.  Those who appeal to electoral legitimacy frequently fail to explain what they mean or the criteria that they employ.  Confusion often results — not only among readers and listeners but also, I believe, in the minds of those who write and speak about electoral legitimacy.

I have two ambitions.  The first is to clarify what we characteristically mean when we talk about electoral legitimacy.  In pursuit of this goal I shall draw a number of distinctions.  Perhaps most important, I shall argue that the term electoral legitimacy invites appeal to three distinct kinds of criteria that in turn support these three concepts of electoral legitimacy: legal, sociological, and moral.  When electoral legitimacy functions as a legal concept, legitimacy and illegitimacy are gauged by legal norms.  As measured by sociological criteria, a claim of electoral authority is legitimate insofar as it is accepted as deserving of respect or obedience.  A final set of criteria is moral.  Pursuant to a moral concept, electoral legitimacy inheres in the moral justification, if any, for claims of authority asserted in the name of the law as an exemplar of normative conduct.

Distinguishing among legal, sociological, and moral legitimacy often yields an immediate and practical payoff.  It comes in increased understanding of electoral debates, enhanced precision of thought, and the potential for clearer expression.  When we can identify a particular electoral legitimacy claim as legal, sociological, or moral, its meaning will typically become plain.  We will also be better situated to consider the standards for establishing benchmarks in an assessment of an electoral process.

My second aim is to advance substantive understanding of the electoral process. When we examine electoral legitimacy with improved conceptual tools — with a sharpened awareness of what we mean by electoral legitimacy and why we care about it — striking conclusions emerge.

First, the legal legitimacy of an electoral process depends much more on its present sociological acceptance (and thus its sociological legitimacy) than upon the legality of its formal ratification.  Other fundamental elements of the electoral process, including practices of interpretation, also owe their legitimacy to current sociological acceptance.  By contrast, most ordinary electoral protocols derive their legitimacy from legal/convention norms established by or under a code of conduct.


Second, although an electoral process deserves to be recognized as morally legitimate, the nature and significance of its moral legitimacy are easily misunderstood.  The electoral process is not perfect, nor has it ever possessed the unanimous consent of the governed.  As a result, the electoral process qualifies as legitimate only under what I shall describe as “minimal” (rather than “ideal”) theories of moral legitimacy.  The electoral process’s moral legitimacy, like that of elections of most nations, arises from the facts that it exists, that it is accepted as law, that it is reasonably (rather than completely) just, and that agreement to a better electoral process would be difficult if not impossible to achieve. 

The electoral process does not rest on a single rock of electoral legitimacy, as many appear to assume, but on sometimes shifting sands.  Realistic discourse about electoral legitimacy must reckon with the snarled interconnections among the electoral legal process, its diverse sociological foundations, and the felt imperatives of practical exigency and moral right which cannot be adumbrated in the over used and most devoid term "free and fair".

La question de l’observation électorale ainsi celle de la légitimité des élections sont  aussi complexe qu’il faut les traiter comme modules à part entière

This reply is posted on behalf of the MCS Centre.

While it is just possible that an election may be FREE in the sense that access to information about candidates and access to polling booths etc., may be not a problem , it may not be FAIR if there may be no level-playing field with differential access to funds, facilities etc. So instead of FREE and FAIR, some may have decided to use less value-judgmental words like 'credible', 'legitimate' etc., though to me it seems a case of 'semantic hair-splitting'. These words are in noway value-neutral and questions like 'credible for whom', 'legitimate for whom' can be asked without fully satisfactory answers forthcoming. All in all it seems to me that the change to new words does not signify a qualitatively superior election but more a case of better packaging.