Summary
The legal framework for elections should provide effective redress for violations of electoral rights.
Obligations
Election Parts
Issues
Criteria
- There was a timely and effective means of seeking redress for violations of rights regarding candidacy and campaigning
- 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
- Sanctions for violations of the electoral law were proportionate, appropriate, and effectively enforced
Quotes
- 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.
- 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.
- We commit our Governments to: c) establish impartial, all-inclusive, competent and accountable national electoral bodies staffed by qualified personnel, as well as competent legal entities including effective constitutional courts to arbitrate in the event of disputes arising from the conduct of elections
- "[States should] strengthen supervision by ensuring an effective, transparent and accessible complaints and appeals system in order to put an end to the culture of impunity for election-related offences and enhance public confidence in the electoral process."
- Establish impartial, all-inclusive, competent and accountable national electoral bodies staffed by qualified personnel, as well as competent legal entities including effective constitutional courts to arbitrate in the event of disputes arising from the conduct of elections.
- 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.
- The applicant’s right to a hearing involving both parties must be protected.
- 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.
- Both the preliminary and the final results should be subject to challenges. Therefore the electoral law should differentiate between the procedures, deadlines and time-limits applicable to each phase.
- 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 specify whether the entities vested with the power to invalidate the election results can take action without being presented with a formal complaint and whether their decisions should be made on a polling-station-by-polling-station basis. It should be clear from the law whether a general invalidation mechanism applies or a matters and the admissibility of complaints and appeals.
- Mechanisms for resolving election disputes should be governed by a coherent body of legal norms, preferably in a distinct chapter or section of the law. The terms, wording and legal scope of the election dispute provisions on the different subject matters should be mutually uniform also as to secure their consistency and completeness. the language used through the law should be clear and consistent so as to eliminate arbitrary interpretation.
- Another important element of the legislative framework is the complaints and appeals process, which must provide effective and timely remedies in the event of violations of law. Complaints concerning the election process must be dealt with equitably, transparently, and according to due process of law. Procedures and deadlines should be clearly set out in the election law. Time frames must be sufficiently short to ensure a meaningful remedy. There must be accessible and adequate facilities for filing complaints.
- Financial sanctions should be proportionate and therefore severe enough to fulfil their purpose of inhibiting prohibited conduct. If they are merely symbolic, this may be read as an invitation to break the law, as the person committing the infraction may calculate that the benefits of violating a prohibition may be greater than the cost of the sanction.
- The legal framework should provide effective mechanisms and remedies for the enforcement of electoral rights. The right to vote is a fundamental human right and the right to a remedy for violation of the right to vote is also a fundamental human right. The legal framework for elections must set forth detailed and sufficient provisions protecting suffrage rights.
- Procedures and deadlines should be clearly set out in the election law. Time frames must be sufficiently short to ensure a meaningful remedy. There must be accessible and adequate facilities for filing complaints.
- 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.
- The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections.