Enforcement agencies are those institutions that enforce the laws, including election-related laws. Enforcement is an important integrity mechanism as it deters those who might be interested in subverting the system as well as identifies and punishes those who have broken the law.
The responsibilities for enforcing laws and codes are usually divided among different agencies, depending on the nature and severity of the problem. Initial investigations may start with the oversight agency, but can be referred to an enforcement agency if it was determined that legal enforcement was required. For example, potential criminal cases uncovered during a routine audit can be referred to the justice system. If the prosecuting authorities decide to pursue the case, they could charge and prosecute the alleged perpetrator, with a court pronouncing sentence if the defendant were found guilty.
Effective enforcement requires a functioning legal system and a respect for the rule of law. An important factor in maintaining integrity in enforcement is the independence of the judiciary, as justice is supposed to be administered fairly, equally and impartially. In countries where the criminal justice system is inadequate, a body, such as an electoral court, can be empowered to enforce election law violations.
The principle institutions and their roles in the enforcement of election integrity are:
Election Management and Policy Bodies
Election management and policy bodies can be given enforcement powers. For example, in Mexico, the Federal Electoral Institute and the Federal Electoral Tribunal have the mandate to oversee the enforcement of election legislation and challenges, as well as the application of sanctions in cases of administrative faults.
In the case of South Africa, the Chief Electoral Officer may institute civil proceedings before a court, including the Electoral Court, to enforce provisions of the South African electoral law.
Regulatory Agencies
Regulatory agencies usually have the power to enforce the regulations they issue. They can sanction individuals found guilty of violating the regulations and, depending on the system, can levy fines or recommend criminal prosecution.
Investigative Agencies
Each country has its own institutions and procedures for investigating allegations of electoral wrongdoing and misconduct. Investigators:
- investigate incidents and complaints to determine the facts of the case;
collect evidence for use by prosecutors in court against individuals or organizations; and
- report on facts found, evidence collected and investigation results to the chief enforcement officer responsible for election investigations.
The investigation report, evidence and findings are used by prosecuting agencies to determine whether or not to initiate civil or criminal proceedings against an individual or group of persons.
This role can be assumed by a law enforcement agency, or a specialized election investigation body. In Canada, for example, this role is undertaken by Special Investigators who report to the Commissioner of Canada Elections. In New Zealand, this is done by the police. For more see Investigations.
Security Forces
Election security is the responsibility of the government and is usually handled by the police. Good security is an essential part of election integrity and assures the ability of the electorate and candidates to participate in an electoral climate free of fear and intimidation. Good security can help voter turnout and enables a free campaign and exchange of information. The primary roles of security forces in maintaining election integrity are to:
- protect the physical safety of the persons, electoral sites and materials involved in an election;
- investigate crimes, and if probable cause exists, arrest the suspects; and
- serve as a deterrent to those who are contemplating using violence or fraud as an electoral tool.
More on election security can be found in
Security.
Prosecutorial Authorities
Prosecution of electoral wrongdoing is an essential part of enforcement. It tells those interested in manipulating or corrupting the process that it will not be tolerated and that those who act illegally will be punished. The role of the prosecutor in preserving election integrity is to:
- initiate investigation of claims (depending on the system);
- determine whether the evidence warrants a prosecution and who should be prosecuted;
- establish priorities among pending cases for prosecution; and
- prosecute cases on behalf of the government against individuals accused of having broken election-related laws.
In most countries, the prosecutor is a government employee or elected official. As an elected official, the prosecutor is aware of public opinion and the political circumstances of each case. The prosecutor may also have discretion in determining which cases to prosecute. The potential for abuse of this discretion can raise integrity issues in the enforcement process which are discussed in Decision to Prosecute.
Courts
The judiciary plays an important role in maintaining integrity. It is supposed to make sure that the laws are enforced on the basis of impartial standards rather than political bias, and that those found guilty of crimes are punished. The scope of the role of the court in election integrity varies according to the electoral system and the level of trust in a country. In countries with a deep level of mistrust in the electoral administration and the administration of justice, specialized electoral courts may be established as was done in Mexico and Kenya. These courts may play a more active role in adjudicating electoral disputes that might otherwise be settled by the election management body.
In general, the role of the courts in helping to maintain election integrity is to:
- provide an apolitical forum to hear cases on election law violations, whether criminal or civil;
- help resolve electoral disputes by assisting with recounts or certifying a winner;
- interpret the laws and determine constitutionality of election law provisions if they are challenged; and
- depending on the system, determine guilt and sentence those found guilty.
