Summary
Remedy should be available for complaints arising throughout the electoral process.
Obligations
Election Parts
Issues
- The Right to an Effective Remedy, Including Challenging Election Results
- Right to an Effective Remedy for Electoral Management Body Actions
- Right to an Effective Remedy
- Right to an Effective Remedy and the Media
- Right to an Effective Remedy and Vote Counting and Tabulation
- Right to an Effective Remedy and Voter Education
- Right to an Effective Remedy and Voter Registration
- Right to an Effective Remedy and Voting Operations
Criteria
- An effective and timely remedy was available for all citizens for violations of their rights throughout the electoral process
- An effective (timely and enforceable) remedy was available for all violations of their fundamental rights
- There was an effective means of seeking redress for violations concerning boundary delimitation and the electoral system
- The legal framework provided citizens with an effective (timely and enforceable) remedy throughout the electoral process
- A system to file complaints related to the media was available for all citizens
- The right to challenge the election results was guaranteed by law
- There was a timely and effective means of seeking redress for violations of rights, including regarding voter education
- An effective remedy was available for all citizens for violations of their rights during the voter registration process
- The state provided an effective (timely and enforceable) remedy to all citizens for violations of their rights, including in the context of voting operations
Quotes
- State Parties re-affirm their commitment to regularly holding transparent, free and fair elections in accordance with the Union’s Declaration on the Principles Governing Democratic Elections in Africa. To this end, State Parties shall: 2. Establish and strengthen national mechanisms that redress election related disputes in a timely manner.
- Adequate arrangements shall be made to hear and dispose of all petitions relating to the conduct of elections and announcement of results.
- Every woman has the right to the recognition, enjoyment, exercise and protection of all human rights and freedoms embodied in regional and international human rights instruments. These rights include, among others: ...g. The right to simple and prompt recourse to a competent court for protection against acts that violate her rights.
- The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible.
- In accordance with the procedural time limits prescribed by law for publication of the preliminary and final results and for filing and deciding upon related challenges, all complaints and appeals should be determined once and for all within a maximum of two months.
- Where a polling-station-by-polling-station resolution mechanism applies, the invalidation of voting in a particular polling station should be considered by means of an evaluation of the way the alleged irregularities or violations have affected the outcome of the election.
- ...different types of complaint that will inevitably arise. These might include refusal of the right to stand as a candidate or to vote, attempts to suppress voter turnout, alleged misinterpretation of the electoral laws or procedures, alleged violations of the criminal law, disputes regarding the accuracy of the count, or claims that the cumulative effect of such irregularities is so extensive as to invalidate the elections. Generally, what is at issue is either the validity of the result, or the penalization of those who have violated electoral laws. The right to a remedy for violation of human rights is itself a human right, while sanctions against those who infringe the provisions of the electoral law are implicitly required in any effective system of implementation.
- The electoral law should clearly state the grounds upon which the election results may be partially or fully invalidated. A mere reference to the constitution should not be held as providing a sufficient basis for adjudicating such cases. Also, the law should specify the amount and type of evidence required for a review of the results. In the absence of clear and unambiguous standards of evidence, the determination of what evidence would satisfy these standards could vary on a scale that may undermine the whole process.
- All complaints pertaining to the overall final results or the declaration of election results to be partially or fully void should be filed with the highest body of the judiciary, the Constitutional Court or with the court where the highest electoral body is located. In the latter case, the ruling delivered by the court may be further appealed to the highest body of the judiciary.
- The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals.
- Challenges pertaining to the preliminary results of the election within the mandate of lower level electoral bodies should be filed with the highest electoral body so as to secure a coherent and hierarchical procedure. The time-limit for filing and deciding upon such challenges should not exceed one month, so as to enable the publication of the final election results no later than this deadline (taking into account the deadline for publication of the preliminary results).
- Disputes relating to the electoral registers, which are the responsibility, for example, of the local administration operating under the supervision of or in co-operation with the electoral commissions, can be dealt with by courts of first instance.
- The final results should not be published before all challenges of the preliminary results have been decided upon by the highest body of the judiciary or the constitutional court.
- The principle of effective investigation is directly linked to the fact that individuals must have accessible and effective remedies in place to protect their political rights.
- In accordance with the procedural time limits prescribed by law for publication of the preliminary and final results and for filing and deciding upon related challenges, all complaints and appeals should be determined once and for all within a maximum of two months.
- The electoral law should provide a mechanism for the invalidation of election results. In both parliamentary and presidential elections, the decision to partially or fully invalidate election results should be assigned to the highest electoral body. This decision should be reviewable by the highest body of the judiciary or the Constitutional Court.