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Election Part

Legal Framework

A sound legal framework is essential for effective administration of genuine democratic elections. The legal framework includes the rules found in the domestic laws of the country that regulate how all aspects of the electoral process should unfold. These laws may include the constitution; election laws; laws regulating the media, political parties, civil society actors, etc.; and other rules and regulations promulgated by the appropriate authorities such as procedures for election administration. Ideally these laws will be written, will be clear and consistent with one another, and will provide a framework for elections that protects and advances international human rights.

Issues


International Human Rights Obligations and the Legal Framework

  • Key Obligations:
  • State Must Take Necessary Steps to Give Effect to Rights
  • Rule of Law

The legal framework for elections included the protection of fundamental rights and made international obligations domestically binding

  • States must take the steps necessary to give effect to human rights. [?]
  • The requirement to take steps to give effect to human rights is unqualified and of immediate effect. [?]
  • Necessary steps to give effect to human rights include education of the population and state officials in human rights. [?]
  • Treaty obligations should be implemented in good faith. [?]
  • Necessary steps to give effect to human rights include an obligation to regulate violations of human rights by non-state actors. [?]
  • States are required to give effect to internationally recognized human rights in domestic law. [?]
  • Laws must be consistent with international human rights. [?]
  • All branches of the government and other public or governmental authorities are responsible for meeting the obligation to give effect to human rights. [?]

Any restrictions placed on fundamental rights were reasonable and objective

  • Suspension or exclusion of participatory rights is prohibited except on grounds established by law and which are objective and reasonable. [?]

Key aspects of the election process were enshrined in law at the highest level (e.g., the electoral system was enshrined in the constitution)

  • The fundamental aspects of the electoral law should be enshrined in the constitution or at another level higher than ordinary law. [?]
  • Subsidiary legislation should lay out clear and precise regulations and administrative instructions for the electoral process. [?]

Participatory rights were protected at the highest level of the law (the constitution)

  • The fundamental aspects of the electoral law should be enshrined in the constitution or at another level higher than ordinary law. [?]
  • Suspension or exclusion of participatory rights is prohibited except on grounds established by law and which are objective and reasonable. [?]

Derogation of Obligations

  • Key Obligations:
  • State Must Take Necessary Steps to Give Effect to Rights
  • Genuine Elections That Reflect the Free Expression of the Will of the People
  • Rule of Law

When derogating obligations and/or restricting human rights, the least restrictive measures were taken and no limitations were placed on nonderogable rights

  • In applying a limitation, a state should use the least restrictive means required. [?]
  • Derogation measures cannot discriminate on the basis of race, color, sex, language, religion, sexual orientation, gender identity, disability, or social origin. [?]
  • Provisions of internal law may not be used as justification for failure to perform a treaty. [?]
  • Limitations must respect the non-derogable nature of certain rights and may not undermine the exercise of rights protected by other international obligations of the state. [?]

Prior to the derogation of human rights and electoral obligations, a state of emergency was publicly announced

  • At times, in a state of emergency, it may be necessary for a state to relax the full protection of human rights and electoral obligations or derogate their obligations. [?]
  • Measures derogating from provisions of the covenant must be of a temporary and exceptional nature and strictly required by the exigencies of the situation. [?]
  • Laws governing states of emergency should provide a prompt and independent review by the legislature of the necessity of derogation measures. [?]
  • The state must publicly announce a state of emergency before any derogation measures are put into place. [?]

Any restrictions on rights were justified by law and subject to review

  • Derogation measures must be justified by law and subject to review. [?]

The Election Calendar and Enjoyment of Rights

  • Key Obligations:
  • State Must Take Necessary Steps to Give Effect to Rights
  • Periodic Elections

The legal framework provided for regular elections and should require that they are held within a reasonable time period after they are called.

  • The legal framework should provide for regular elections. [?]
  • The legal framework should provide that elections are held within a reasonable period after they are called. [?]

The legal framework included a realistic electoral calendar that allowed adequate time to successfully implement all aspects of the election

  • The scheduling of voting processes must allow adequate time to successfully implement other necessary components of the electoral process. [?]

The legislative calendar related to the development of electoral laws was published well in advance of deadlines

  • States are required to give effect to internationally recognized human rights in domestic law. [?]
  • The legislative calendar related to the development of electoral laws should be published well in advance of deadlines. [?]

Rule of Law and the Legal Framework

  • Key Obligations:
  • Rule of Law

The principles of rule of law were promoted

  • Electoral legislation at all levels should not conflict. [?]
  • The legal framework should be available in the official languages of the country. [?]
  • Electoral legislation should be made widely available to the public for review. [?]
  • Electoral legislation for all elections should be located in a single body of laws. [?]
  • Electoral legislation should be publicly promulgated. [?]
  • States should take measures to promote the principles of the rule of law. [?]
  • The rule of law should be strengthened by public participation in decision making. [?]
  • Subsidiary legislation should lay out clear and precise regulations and administrative instructions for the electoral process. [?]

The legal framework for elections was stable

  • No substantial change to the electoral law should be made within the six months prior to the election without the consent of a majority of political actors. [?]

The laws regulating elections were equally enforced and were not arbitrarily applied

  • Electoral legislation should be publicly promulgated. [?]
  • Laws and procedures must not be arbitrarily applied. [?]
  • All are equal before the law, and laws should be equally enforced. [?]

Sanctions for violations of the electoral law were proportionate, appropriate, and effectively enforced

  • Effective implementation of electoral law requires sanctions against the infringement of electoral law. [?]
  • The legal framework for elections should provide effective redress for violations of electoral rights. [?]

States Authorities Responsible for Upholding Rights

  • Key Obligations:
  • State Must Take Necessary Steps to Give Effect to Rights

All branches of the government are responsible for protecting human rights, including those responsible for administering election processes

  • Necessary steps to give effect to human rights include education of the population and state officials in human rights. [?]
  • States have a duty to protect the fundamental human rights of all within their jurisdiction. [?]
  • All branches of the government and other public or governmental authorities are responsible for meeting the obligation to give effect to human rights. [?]
  • States should ensure transparency in the management of public affairs. [?]

Authority and Responsibility of the Electoral Management Body in Interpreting the Law

  • Key Obligations:
  • Rule of Law

The role of the electoral management body in interpreting and administering the election law was clearly defined in the legal framework

  • Everyone participating in the election should recognize the authority of the election commission. [?]
  • Legislation should give clear instructions on the role of the election commission in interpreting and administering the election law. [?]

Regularity of Elections

  • Key Obligations:
  • Periodic Elections

Elections have been held periodically

  • Elections are to be held at periodic intervals. [?]

The period between elections was not unduly long

  • The interval between elections must not be unduly long, such that the authority of the government is no longer representative of the will of the electors. [?]
  • In most instances, electoral processes will be held between two and five years apart. [?]

Postponement of Elections

  • Key Obligations:
  • Periodic Elections

The legal framework only allowed for temporary postponement of the election in times of declared public emergency

  • Temporary postponement of voting processes due to a public emergency is permitted, but only to the extent required by the circumstances, provided that such measures are not contrary to a state's obligations under international law. [?]

Freedom From Discrimination in the Legal Framework

  • Key Obligations:
  • Freedom from Discrimination and Equality Before the Law
  • Equality Between Men and Women

The legal framework for elections did not include provisions that discriminate on the basis of prohibited grounds

  • The state must perform both its "negative duty" to refrain from discrimination and its "positive duty" to prevent discrimination. [?]
  • Discrimination includes any distinction, exclusion, restriction, or preference on the basis of sex. [?]
  • Discrimination must not be practiced based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, sexual orientation, disability, gender identity and expression, migrant, refugee, repatriate, stateless or internally displaced status, genetic trait, mental or physical health condition, including infectious contagious condition and debilitating psychological condition, or other status at any time. [?]

Minorities were able to use their own language(s)

  • Where linguistic minorities exist, those that belong to such minorities should not be denied the right to use their own language. [?]

The legal framework for elections included guarantees of equality before the law

  • Women should enjoy equality with men before the law. [?]
  • All are equal before the law, and laws should be equally enforced. [?]

The legal framework provided equal access to any place or service intended for use by the public

  • Everyone has the right of equal access to any place or service intended for public use. [?]

Citizenship

  • Key Obligations:
  • Equality Between Men and Women
  • Freedom from Discrimination and Equality Before the Law

The rules regarding citizenship were clear and nondiscriminatory

  • States may regulate the law concerning nationality, citizenship, or naturalization, but may not discriminate against any particular nationality in doing so. [?]

Citizenship rules did not discriminate directly or indirectly against women

  • The state must perform both its "negative duty" to refrain from discrimination against women and its "positive duty" to prevent discrimination against women. [?]
  • Women should enjoy equality with men before the law. [?]
  • Discrimination includes any distinction, exclusion, restriction, or preference on the basis of sex. [?]
  • Discrimination must not be practiced based on sex. [?]

The Legal Framework and Men and Women

  • Key Obligations:
  • Equality Between Men and Women

The legal framework for elections included guarantees of equality before the law for men and women

  • The state must perform both its "negative duty" to refrain from discrimination against women and its "positive duty" to prevent discrimination against women. [?]
  • Women should enjoy equality with men before the law. [?]
  • Discrimination includes any distinction, exclusion, restriction, or preference on the basis of sex. [?]
  • Discrimination must not be practiced based on sex. [?]

Special Measures

  • Key Obligations:
  • Freedom from Discrimination and Equality Before the Law
  • Equality Between Men and Women

Special measures were taken to ensure de facto equality for people with disabilities

  • Discrimination must not be practiced based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, sexual orientation, disability, gender identity and expression, migrant, refugee, repatriate, stateless or internally displaced status, genetic trait, mental or physical health condition, including infectious contagious condition and debilitating psychological condition, or other status at any time. [?]
  • Women and girls with disabilities are subject to multiple discrimination. [?]
  • Specific measures aimed at ensuring de facto equality for persons with disabilities should not be considered discriminatory. [?]
  • Discrimination means any distinction, exclusion, restriction, or preference on the basis of race, color, sex, language, religion, political or other opinion, or national or social origin, sexual orientation, gender identity, or disability. [?]
  • Distinctions made on the basis of disabilities are to be considered discrimination. [?]

Special measures were taken, as necessary, to promote equality for minorities

  • Special measures for advancing ethnic minorities or groups that have suffered past discrimination should be taken when circumstances warrant, but should not be maintained after the objectives for which they were taken are met, and should not result in the maintenance of unequal rights for different groups. [?]
  • Discrimination means any distinction, exclusion, restriction, or preference on the basis of race, color, sex, language, religion, political or other opinion, or national or social origin, sexual orientation, gender identity, or disability. [?]
  • Special measures for advancing ethnic minorities or groups that have suffered past discrimination may include quotas to ensure minority participation or representation. [?]
  • Some measures taken to ensure equitable representation of minority groups should not be considered discriminatory. [?]

The state took steps to ensure de facto equality between men and women

  • Temporary special measures to achieve de facto equality for women can include financially assisting and training women candidates, amending electoral procedures, developing campaigns directed at equal participation, and targeting women for appointment to public positions, or the use of quotas. [?]
  • Discrimination includes any distinction, exclusion, restriction, or preference on the basis of sex. [?]
  • Discrimination must not be practiced based on sex. [?]
  • Special measures for advancing women where they have suffered past discrimination may include quotas to ensure participation or representation. [?]
  • Women should enjoy equality with men before the law. [?]
  • Discrimination must not be practiced based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, sexual orientation, disability, gender identity and expression, migrant, refugee, repatriate, stateless or internally displaced status, genetic trait, mental or physical health condition, including infectious contagious condition and debilitating psychological condition, or other status at any time. [?]
  • Discrimination means any distinction, exclusion, restriction, or preference on the basis of race, color, sex, language, religion, political or other opinion, or national or social origin, sexual orientation, gender identity, or disability. [?]
  • Temporary measures to achieve de facto equality for women may include the use of quotas to ensure their participation or representation. [?]
  • States should take special, temporary measures to achieve de facto equality for women. [?]

The Right to an Effective Remedy, Including Challenging Election Results

  • Key Obligations:
  • Right to an Effective Remedy
  • Rule of Law

The legal framework provided citizens with an effective (timely and enforceable) remedy throughout the electoral process

  • States must enforce a remedy when granted. [?]
  • Remedy should be available for complaints arising throughout the electoral process. [?]
  • States Parties are obliged to prevent a recurrence of the violation to the covenant. [?]
  • The right to remedy is required in the context of elections, and the announcement of results. [?]
  • Laws must be consistent with international human rights. [?]
  • Effective implementation of electoral law requires sanctions against the infringement of electoral law. [?]
  • Effective redress requires disputes to be dealt with in a timely manner. [?]
  • An effective remedy requires reparation for harm done. [?]
  • The legal framework for elections should provide effective redress for violations of electoral rights. [?]
  • Individuals must have the right to a remedy for violation of their participatory rights relating to the election process. [?]
  • At times, an effective remedy may require States Parties to take interim measures. [?]
  • Everyone has the right to an effective remedy by a competent national tribunal for acts that violate his or her rights or freedoms. [?]

The legal framework for elections included the right to challenge the election results as necessary

  • The right to challenge election results should be provided for by law. [?]