Electoral Justice Essential to Tackling Evolving Challenges and Protecting Political and Electoral Rights
Around the globe, malign actors seeking to manipulate electoral outcomes are innovating and learning from each other at a rate that far outpaces the ability of governments to react effectively. In 2018, more than 65 elections took place, from Afghanistan to Zimbabwe. Many of these elections were contentious, leading to rising pressure on election management bodies, tribunals and courts to resolve politically charged allegations of fraud and avoid destabilizing transition processes. It is important that in 2019 and beyond the democracy and governance community focuses on developing effective responses to new and constantly evolving manipulation tactics.
This effort will only be successful if effective legal mechanisms are established – well in advance of elections – to detect and remedy electoral manipulation in real time and support the acceptance of electoral results. Strong and enforceable legal mechanisms and remedies can also serve as a powerful deterrent of future bad behavior. Unfortunately, domestic legal processes and systems are often internally focused, not learning from other countries, legal systems and global experiences, and are resistant or slow to change by design.
In response to this international challenge, the International Foundation for Electoral Systems (IFES) has produced important research and practical guidance on a number of critical election dispute resolution topics, including election annulments, effective remedies, fundamental principles for procedural justice and case management, best practices for post-election audit investigations and standards for adjudication.
IFES is also working with regional partners to pilot regional electoral jurisprudence networks to facilitate peer-to-peer knowledge exchange and professional support among election arbiters. Election disputes present unique challenges (for example, extremely tight deadlines and problematic access to evidence), and these exchanges provide an opportunity for adjudicators to share their experiences with peers in their region. The first of these meetings took place in Vilnius, Lithuania, in September 2018, supported by the United States Agency for International Development (USAID) under the Global Elections and Political Transitions Leader Award. An upcoming event in Johannesburg, South Africa, also supported by USAID, will launch an Africa regional network.
IFES has partnered closely with Mexico’s Electoral Tribunal of the Federal Judicial Branch in support of their Global Network on Electoral Justice (GNEJ) initiative that is working to institutionalize global knowledge transfers and exchanges between electoral adjudicators. The network’s inaugural meeting took place in November 2017, and the Second Plenary Assembly was held in Cancun, Mexico, in December 2018, with more than 29 countries and 24 international organizations and universities in attendance. Chad Vickery, director of IFES’ Center for Applied Research and Learning, and Katherine Ellena, legal advisor at the Center, attended the event. Speaking at the opening of the Second Plenary Assembly, Vickery noted that adjudicators are often asked to bring credibility to flawed elections, a theme that was echoed throughout the meeting and will continue to be a focus of the network in the coming years.
Electoral justice is not just about resolving disputes and guarding against electoral manipulation, but also focuses on protecting political and electoral rights. At the Second Plenary Assembly of the GNEJ, participants discussed the role courts and adjudicators can play in ensuring the full inclusion of political minorities, with a focus on indigenous candidates, persons with disabilities and independent candidates. Moderating a panel on the subject, Ellena stated that:
“The rising tide of independent candidates is an interesting topic for this group to consider, both in terms of what it means with respect to disaffection with existing party structures, but also research that suggests that independent candidates strengthen democracy by reducing corruption and reinvigorating citizens’ interest in politics. Given the increase in independent candidates, it is important to consider what this means for members of marginalized groups who want to run for office.”
Ellena also observed that the electoral and political rights of indigenous persons and persons with intellectual and psycho-social disabilities were particularly in need of closer examination and support.
The inclusion of political minorities is a fundamental rights issue, but it is also an important component of ensuring democratic resilience and consolidation following a conflict or political transition, when a society may be particularly fragile. Justice Barreiro from Colombia noted that affirmative action measures for political minorities could be an important mechanism to support peace processes and transitional elections, and that affirmative action measures “are a correction for historic disadvantages, not a tool for turning a minority into a majority or tyranny.”
In 2019, IFES will continue to serve on the steering committee of the Global Network of Electoral Justice as it plans for its Third Plenary Assembly in November. The purpose of this ongoing work will be to ensure that domestic judiciaries are able to effectively leverage the collective knowledge of their peers around the globe, protect the fundamental right of redress and effectively, efficiently and fairly resolve electoral complaints.