Election Obligations & Standards Database

Sources

×
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.

Relevant Obligations

Key

  • Macro-Level Obligation
  • Foundational Obligations
  • Individual Rights and Freedoms
  • Process-Focused Obligations

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

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:
  • Genuine Elections That Reflect the Free Expression of the Will of the People
  • State Must Take Necessary Steps to Give Effect to Rights
  • 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. [?]
  • 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. [?]
  • Provisions of internal law may not be used as justification for failure to perform a treaty. [?]

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

  • Measures derogating from provisions of the covenant must be of a temporary and exceptional nature and strictly required by the exigencies of the situation. [?]
  • The state must publicly announce a state of emergency before any derogation measures are put into place. [?]
  • Laws governing states of emergency should provide a prompt and independent review by the legislature of the necessity of derogation measures. [?]
  • 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. [?]

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

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

Establishment, Regulation of, and Membership in Political Parties

  • Key Obligations:
  • Freedom of Association

Regulations and deadlines for legal recognition of political parties were clearly specified. Registration requirements were not so stringent that they jeopardized freedom of association

  • While some regulation to foster transparency and democratic practices by political parties may be acceptable, parties should generally be free to determine their internal policies. [?]

The Election Calendar and Enjoyment of Rights

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

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

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

Rule of Law and the Legal Framework

  • Key Obligations:
  • Rule of Law

The principles of rule of law were promoted

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

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

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

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

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

Internal Party Policies

  • Key Obligations:
  • Freedom of Association

Regulations and deadlines for legal recognition of political parties were clearly specified. Registration requirements were not so stringent that they jeopardized freedom of association

  • While some regulation to foster transparency and democratic practices by political parties may be acceptable, parties should generally be free to determine their internal policies. [?]

States Authorities Responsible for Upholding Rights

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

Citizens were able to participate in public affairs through nongovernmental organizations

  • States should safeguard the ability of civil society organizations to seek, receive, and use resources, including funding. [?]

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. [?]
  • 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. [?]
  • States have a duty to protect the fundamental human rights of all within their jurisdiction. [?]

Independence and Impartiality of the Electoral Management Body

  • Key Obligations:
  • Prevention of Corruption

Steps were taken to institutionalize efficient and effective public administration

  • Civil servants and public officials should be obliged by law to act neutrally and impartially. [?]

Universal Suffrage, the Right to Vote, and Voter Education

  • Key Obligations:
  • Right and Opportunity to Vote

The legal framework for elections was consistent with international human rights

  • The right to vote should not be restricted based on any perceived or actual disability and mental health status, including pursuant to an individualized assessment. [?]

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

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

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

  • 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. [?]
  • The state must perform both its "negative duty" to refrain from discrimination and its "positive duty" to prevent discrimination. [?]
  • The right to vote should not be restricted based on any perceived or actual disability and mental health status, including pursuant to an individualized assessment. [?]
  • Discrimination includes any distinction, exclusion, restriction, or preference on the basis of sex. [?]
  • Laws and regulations that withdraw suffrage rights based on disability should be amended or repealed. [?]
  • Guarantees of rights of persons with disabilities should be mainstreamed into all legislation and policies. [?]
  • Electoral system design should take into account the needs and facilitate participation and representation of vulnerable groups, including of women, minorities, and persons with disabilities. [?]

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

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

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

  • Laws and regulations that withdraw suffrage rights based on disability should be amended or repealed. [?]

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

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

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

The Legal Framework and Men and Women

  • Key Obligations:
  • Equality Between Men and Women

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

  • Collection and publication of gender-disaggregated information around electoral processes contributes to raising awareness and advancement of women's rights. [?]

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

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

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. [?]
  • 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. [?]
  • Specific measures aimed at ensuring de facto equality for persons with disabilities should not be considered discriminatory. [?]
  • Women and girls with disabilities are subject to multiple discrimination. [?]

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

  • 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 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. [?]
  • Special measures to ensure participation and representation of national minorities may include reduced or waived minimum support, deposit, and electoral threshold requirements, and quotas. [?]
  • 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

  • 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. [?]
  • Women should enjoy equality with men before the law. [?]
  • States should take special, temporary measures to achieve de facto equality for women. [?]
  • Temporary measures to achieve de facto equality for women may include the use of quotas to ensure their participation or representation. [?]
  • Discrimination must not be practiced based on sex. [?]
  • Discrimination includes any distinction, exclusion, restriction, or preference on the basis of sex. [?]
  • Special measures for advancing women where they have suffered past discrimination may include quotas to ensure participation or representation. [?]
  • 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. [?]

The Right to Vote, and Voting Operations

  • Key Obligations:
  • Right and Opportunity to Participate in Public Affairs

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

  • The right to vote should not be restricted based on any perceived or actual disability and mental health status, including pursuant to an individualized assessment. [?]

Internet and Exercise of Rights Online

  • Key Obligations:
  • State Must Take Necessary Steps to Give Effect to Rights
  • Right and Opportunity to Participate in Public Affairs
  • Transparency and Access to Information
  • Freedom of Association

Internet freedom and the exercise of human rights online were protected. Restrictions imposed were based in law, proportionate, and necessary in a democratic society

  • Internet freedom, including access to online resources and digital tools, should be protected as essential to the exercise of human rights online, with any restrictions based in law, proportionate, and necessary in a democratic society. [?]

Free Airtime and Paid Advertising

  • Key Obligations:
  • Transparency and Access to Information

Paid advertising on public media was identified as such, and the costs and conditions involved were reasonable and equally applied to all candidates and parties

  • Laws should address the applicability of regulations on paid political advertising in traditional media, including rules on placement, financing, and transparency, to such advertising online. [?]

Campaigning Without Interference

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

Restrictions on the campaign activities were proportionate, non-discriminatory, and subject to prompt independent and impartial judicial review

  • There should be no requirement to obtain a permission to hold an assembly. [?]
  • The procedure for notifying authorities of a planned assembly should be clear and simple. [?]
  • The state is obliged to provide and to cover costs related to the holding of assemblies in public spaces, including security, medical care, and cleaning. [?]

Protection of Personal Data

  • Key Obligations:
  • Transparency and Access to Information

The legal framework protected the privacy of personal information

  • States should adopt laws protecting privacy of personal information. [?]

Security of the Person of Candidates, Parties, and Their Supporters

  • Key Obligations:
  • Right to Security of the Person

The right to security of the person for all citizens (including EMB personnel) was protected throughout the election period

  • Any security-related restrictions of freedoms and the use of force by public security providers must be based in law, necessary, and proportionate to the objective of maintaining public order. [?]

Election Observation

  • Key Obligations:
  • Right and Opportunity to Participate in Public Affairs
  • Transparency and Access to Information

Citizen observers were able to access and comment on all parts of the electoral process, including voter registration

  • The participation of observers, citizen and international, may enhance all aspects of the electoral process. [?]
  • Observers should be permitted to follow all aspects and stages of an electoral process. [?]

International observers were accredited and were able to access and comment on all parts of the electoral process

  • The participation of observers, citizen and international, may enhance all aspects of the electoral process. [?]
  • Observers should be permitted to follow all aspects and stages of an electoral process. [?]

Misuse of State Resources

  • Key Obligations:
  • Prevention of Corruption

Public resources were not abused in support of a particular party or candidate

  • When public resources are permitted to be used during campaigns, they should be available to all parties and candidates without discrimination. [?]

The law was clear regarding the extent to which public employees could be involved in a campaign. Public employees were not coerced into voting for a particular candidate or party

  • The legal framework should provide for a general prohibition of abuse of public resources and of official position, clearly stipulating permissible and prohibited practices. [?]

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

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

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. [?]