1.1 International Standards and Agreements
International standards are a set of principles defined in international/universal instruments and good practice guidelines. There are two distinct strands of international standards and instruments impacting on political finance: there is a series of international treaties and agreements that address democratic participation, e.g. human and political rights, and another that focuses on anti-corruption measures. At the regional level, there are also standards for oversight, accountability and enforcement [see Standards relating to oversight, accountability, and enforcement.pdf]
International and regional standards/good practice are both important to understanding the scope and purpose of regulating political finance as respect for fundamental rights needs to be balanced out with the necessity to limit the negative impact of money in politics. They not only help inform legislators in drafting laws, but are important reference tools to guide oversight institutions, in implementing political finance laws, whether through bylaws, enforcement policies and procedures or in reaching decisions in individual cases. As the political finance oversight body, a solid understanding of international and regional standards and good practice will be very helpful in how you plan and implement your work. Do not expect much consideration to be given in these standards to the enforceability of political finance regulations.
The European Commission, in the Compendium of International Standards for Elections, 4th edition, has classified agreed criteria or "benchmarks" based on their degree of importance (i.e. standards, political commitments or non-binding good practice), their area of influence (i.e. international or regional) and their region of application.
Below follows an illustrative list of international and regional standards and agreements.
Universal/General instruments
Paragraph 19 of the United Nations Human Rights Committee, General Comment No. 25 to Article 25 of the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Convention against Corruption (UNCAC) 2005, article 7.3, call for reasonable limitations on campaign expenditures and the need for transparency in the funding of candidatures for public elected office.
General comment n°25 paragraph 19
“Reasonable limitations on campaign expenditure may be justified where this is necessary to ensure that the free choice of voters is not undermined or the democratic process distorted by the disproportionate expenditure on behalf of any candidate or party. The results of genuine elections should be respected and implemented.”
UNCAC article 7(3)
“Each State Party shall also consider taking appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties.”
Regional instruments
Different regional institutions have developed a framework of standards for political finance regulation and supervision aiming at giving guidance as to how approaching and assessing political finance systems. The existing commitments and standards are those included in:
The 2003 African Union Convention on Preventing and Combating Corruption
Article 10
“Each State Party shall adopt legislative and other measures to proscribe the use of funds acquired through illegal and corrupt practices to finance political parties; and incorporate the principle of transparency into funding of political parties.″
The 2005 Southern African Development Community (SADC) Protocol against Corruption
Article 4(1)(i)
“Mechanisms to encourage participation by the media, civil society and non-governmental organizations in efforts to prevent corruption”
The 1996 Inter-American Convention Against Corruption of the Organization of American States (OAS)
Article 3(11)
“Mechanisms to encourage participation by civil society and nongovernmental organizations in efforts to prevent corruption”
The 2001 Inter-American Democratic Charter of the Organization of American States (OAS)
Article 5
“The strengthening of political parties and other political organizations is a priority for democracy. Special attention will be paid to the problems associated with the high cost of election campaigns and the establishment of a balanced and transparent system for their financing”
Article 7
“The (Parliamentary) Assembly believes that the rules on financing political parties and on electoral campaigns must be based on the following principles: a reasonable balance between public and private funding, fair criteria for the distribution of state contributions to parties, strict rules concerning private donations, a threshold on parties’ expenditures linked to election campaigns, complete transparency of accounts, the establishment of an independent audit authority and meaningful sanctions for those who violate the rules.”
Preamble
“Considering that political parties and electoral campaigns funding in all states should be subject to standards in order to prevent and fight against the phenomenon of corruption”
Article I(6)
“If the media accept paid political advertising, regulatory or self-regulatory frameworks should ensure that such advertising is readily recognizable as such.
Where media is owned by political parties or politicians, member states should ensure that this is made transparent to the public.”
Article II(5)
“Member states may consider introducing a provision in their regulatory frameworks to limit the amount of political advertising space and time which a given party or candidate can purchase.”
Article 10 provides for “fair and open financing of elections, and election campaigns of candidates political parties”.
Article 12 includes guidance on sources of financing, reporting, monitoring and sanctions related to political finance.
In addition to international and regional standards, there are a number of political commitments and good practice guidelines relating to political finance.
Political commitments
As underlined by the European Commission’s Compendium of International Standards for Elections, "political commitments may contain standards, but can be considered more of a political dialogue between the states concerned, the intention of which is not to make the standards binding at the level of international law." While these are non-binding, they shed light on and explain the aspirations and methods to be used in regulating political finance.
Need of “regularizing, monitoring and enforcing standards of political financing to reduce corruption, promote citizen participation, and enhance political legitimacy of democratic institutions.”
Article 5(4)
“a clear separation between the State and political parties; in particular, political parties will not be merged with the State.”
Article 7(6)
“To ensure that the will of the people serves as the basis of the authority of government, the participating States will (…) respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities”
The 2015 New Delhi Declaration on Political Finance Regulation in South Asia
Paragraph B1
“In order to strike a balance between the need for a healthy competition and the level playing field, the [political finance] regulations should be realistic, protecting every legitimate need of political parties, candidates and the citizens. These should take into account the realistic costs of campaign materials, services and advertising.”
Good practice (non-binding documents)
According to the European Commission’s Compendium of International Standards for Elections, "good practice" refers to policy papers that certain state institutions/ organisations are working on, or draft conventions and declarations that have not yet been adopted and can therefore neither be considered as legally nor politically binding documents.
The 2001 Southern African Development Community (SADC) Parliamentary Forum Norms and standards
Part 2(3)
“In the interest of creating conditions for a level playing field for all political parties and promoting the integrity of the electoral process, parties should not use public funds in the electoral process. The electoral law should prohibit the Government to aid or to abet any party gaining unfair advantage.
Those countries that are not yet funding contesting political parties should introduce the necessary legislation to do so in order to foster uniformity and leveling the playing field.
There must be accountability in the use of public funds.”
Part 2(5)
“In the interest of promoting and entrenching pluralism, multi-party democracy and the integrity of the electoral process, the complete independence and impartiality of the Electoral Commission in dealing with all political parties should be reaffirmed in the constitution.
To further enhance the independence and impartiality of the Electoral Commission it should have its own budget directly voted for by Parliament and not get its allocation from a Ministry or a Government Department.”
Part 3(6)
“The Electoral Commission should therefore be legally empowered to prohibit certain types of expenditures so as to limit the undue impact of money on the democratic process and the outcome of an election. It should be empowered to ensure that proper election expenses returns are submitted on time, to inspect party accounts, and for parties to have properly audited and verified accounts.”
Paragraph 4(7)
“The use of public assets and funds for political party purposes should be regulated in order to level the playing field for political competition.
The use of public resources for political campaigns and political party activities should generally be avoided but, if permitted, access thereto must be equitable and paid for, and conditions of such access and payment must be clearly provided for in the law.”
Paragraph 4(10)
“Public funding should be extended to all parties (and independent candidates) contesting elections who can demonstrate a track record of support in the most recently held elections, based, for example, on their share of the popular vote.
The EMB should be responsible for regulating the use of these public funds and beneficiaries of the funds must provide verifiable accounts to the EMB.
Consideration should be given to the establishment of rules governing the disclosure of all sources of funding of political parties.”
The 1994 Declaration on Criteria for Free and Fair Elections of the Inter-Parliamentary Union (IPU)
Article 4(1)(3)
“(States should) Provide for the formation and free functioning of political parties, possibly regulate the funding of political parties and electoral campaigns, ensure the separation of party and State, and establish the conditions for competition in legislative elections on an equitable basis.”
Preamble recognises "the need to further promote standards in [the area of political finance] on the basis of the values of European legal heritage."
Article 108
"First of all, funding must be transparent; such transparency is essential whatever the level of political and economic development of the country concerned"
Article 38
“Party funding must comply with the principles of accountability and transparency.”
OSCE/ODIHR / Venice Commission Guidelines on Political Party Regulation, 2nd edition, 2020.
Article 204
"Political parties need appropriate funding to fulfil their core functions, both during and between election periods. At the same time, the regulation of political party funding is essential to guarantee parties’ independence from undue influence of private donors, as well as state and public bodies, to ensure that parties have the opportunity to compete in accordance with the principle of equal opportunity, and to provide for transparency in political financing."
Guidelines for Reviewing a Legal Framework for Elections by OSCE/ODIHR, 2nd edition 2013.
Section 11.1
"Campaign finance is a difficult subject of regulation in elections, due to the balance that must be sought between minimizing disproportionate expenditures, which may undermine the free choice of voters, and the rights of freedom of association and expression, which often are exercised by donating money or services to a candidate or political party."
Reports of the Council of Europe’s Group of States against Corruption (GRECO) that encompass the assessment studies on transparency in political party funding in all 49 GRECO members.