Guiding principles for legal framework of elections

Original question:

I am working on democracy promotion in Southern Sudan and am currently researching the Draft Public Elections Act for 2006. I would like to compile a booklet of examples of election laws from other countries around the world which could be used as comparison. 

• Do you have any suggestions of where to find other countries elections laws?
• What are good elections laws?
• Any other general information on guidelines or best practices for creating affective and democratic election laws would also be extremely helpful.

Links to related resources:

• Chan Robles Virtual Law Library
• Arab Election Law Compendium
• International Electoral Standards: Guidelines for reviewing the legal framework of elections 
• The basis of internationally recognized electoral standards
• Checklist for the legal framework of elections
• UN Women Watch:Legal factors affecting women and elections in post-conflict countries

ACE Network Facilitator's response:

The organization and administration of electoral processes is complex and detailed. Usually it is specified in written laws and regulations, rather than determined through unwritten tradition or administrative policy making. The level of detail specified at different levels of the legal framework will vary from country to country depending on contextual factors, such as systems of law and the levels of trust in the EMB’s ability to make fair and consistent decisions and policies.

In order to promote consistency, equity and a common understanding of electoral frameworks the electoral process requires a clear, simple and relatively comprehensive legal definition. For confidence in the electoral processes it is also important that all parts of the electoral legal framework are freely and publicly available and that changes are discussed and shared with key stakeholders.

Normally the legal framework is based on international treaties and agreements, detailed in the law and backed by constitutional authority.  

Defining key electoral issues in the constitution may provide a workable means of entrenching electoral norms against manipulation by the ruling party.

These norms often include:

• the independence, composition, term of office, powers and functions of the EMB;
• electoral systems;
• suffrage rights and/or qualifications;
• political party and/or candidacy rights;
• the intervals or maximum intervals at which elections must be held; and
• electoral dispute settlement mechanisms

Electoral statute law may be a single omnibus law covering all electoral activity or separate laws on individual electoral issues. Both ways have their pros and cons, the important thing is that electoral law are kept in harmony, either through a single law overviewing all electoral activities or through a set of laws carefully harmonized with each other and with the constitution.

It is important to have in mind that a balance needs to be struck between providing for certainty and consistency in the legal framework, and allowing the EMB the flexibility to respond effectively to changing electoral circumstances. The amount of electoral detail in higher-level instruments – constitutions and statute law – will often depend on the level of trust in political participants and in the performance of the EMB.

Guiding principles for legal frameworks:

• The legal framework should be so structured as to be unambiguous, understandable and transparent, and should address all components of an electoral process necessary to ensure democratic elections. It is good practice for legislation to provide a clear and sufficiently detailed framework to ensure effectiveness and integrity in all matters relating to electoral administration.
• The legal framework for elections should seek to ensure that the boundaries of electoral units are drawn in such a way as to achieve the objective of according equal weight to each vote to the greatest degree possible to ensure effective representation.  
• The legal framework should ensure that all eligible citizens are guaranteed the right to universal and equal suffrage as well as the right to contest elections without any discrimination.
• All parts of the electoral legal framework should be freely and publicly available for stakeholders to see and discuss.  
• The legal framework should require that EMBs be established and operate in a manner that ensures the independent and impartial administration of elections. It is good practice for such legislation to define the status of the national EMB and any subsidiary EMBs, including their accountability, powers, responsibilities and functions.
• The legal framework should require that voter registers be maintained in a manner that is transparent and accurate, protects the right of qualified citizens to register, and prevents the unlawful or fraudulent registration or removal of persons.
• The legal framework should ensure that all political parties and candidates are able to compete in elections on the basis of equitable treatment.
• The legal framework should ensure that each political party and candidate enjoys the right to freedom of expression and freedom of association, and has access to the electorate, and that all stakeholders in the election process have an equal chance of success.
• The legal framework should ensure that all political parties and candidates have access to the media and are treated equitably by media owned or controlled by the state, and that no unreasonable limitations are placed on the right of political parties and candidates to free expression during election campaigns.
• The legal framework should ensure that all political parties and candidates are equitably treated by legal provisions governing campaign finances and expenditures.
• The legal framework should ensure that polling stations are accessible, that there is accurate recording of ballots and that the secrecy of the ballot is guaranteed.
• The legal framework should ensure that all votes are counted and tabulated accurately, equally, fairly and transparently.
• As a necessary safeguard of the integrity and transparency of the election, it is good practice for the legal framework to contain a provision for representatives nominated by parties and candidates contesting the election to observe all voting processes. The rights and responsibilities of candidate and party representatives in polling stations should also be defined in the legal framework.
• To ensure transparency and to increase credibility, the legal framework could provide the possibility for election observers to observe all stages of the electoral processes.
• The legal framework should provide effective mechanisms and remedies for compliance with the law and the enforcement of electoral rights, defining penalties for specific electoral offences.

For information about guidelines and best practices for election laws please see the International Electoral Standards: Guidelines for reviewing the legal framework of elections on  and Legislative Framework for the Indonesian General Elections 2004.

Using the search function on "Electoral Materials" in ACE you can access a number of laws and regulations that may be of interest (see http://www.aceproject.org/ero-en/search_materials_results/Laws%20and%20Regulations).  

I would also advise you to see the "Legal Framework" topic area of the ACE Encyclopaedia (http://www.aceproject.org/ace-en/topics/lf) and its different sub files.  

For additional election law recourses see also Chan Robles Virtual Law Library  and the Arab Election Law Compendium.

The opinions expressed by the ACE Network Facilitator do not necessarily reflect those of the ACE Partner organizations.

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